A Bill for an Act to amend the Fair Work Act 2009, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee Employees) Act 2015.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provisions | Commencement | Date/Details |
| 1. The whole of this Act | The day after this Act receives the Royal Assent. | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Fair Work Act 2009
1 Section 12
Insert:
apparent franchisor entity: see subsection 789GE(2).
franchisee employee: see subsection 789GC(1).
franchisee employer: see subsection 789GC(1).
franchise‑related work: see subsection 789GC(1).
franchisor entity: see subsection 789GC(3).
2 Section 12 (definition of unpaid amount)
Repeal the definition, substitute:
unpaid amount:
(a) in relation to TCF work performed by a TCF outworker: see subsections 789CA(1) and (4); and
(b) in relation to franchise‑related work performed by a franchisee employee: see subsection 789GC(1).
3 After subsection 9(5A)
Insert:
(5AA) Part 6‑4AA provides for the recovery of unpaid amounts for franchisee employees.
4 After paragraph 789BA(1)(f)
Insert:
(fa) Part 6‑4AA (recovery of unpaid amounts for franchisee employees);
5 After Part 6‑4A
Insert:
Part 6‑4AA—Recovery of unpaid amounts for franchisee employees
Division 1—Introduction
789GA Guide to this Part
This Part provides for employees employed by a franchisee (or by a related body corporate of a franchisee) to recover unpaid remuneration from the franchisor (or from a related body corporate of the franchisor).
789GB Meanings of employee and employer
In this Part, employee means a national system employee, and employer means a national system employer.
Division 2—Recovery of unpaid amounts for franchisee employees
789GC When this Division applies
Franchisee employees not paid for work in certain circumstances
(1) This Division applies if:
(a) an employee (the franchisee employee) is employed by an employer (the franchisee employer) who is:
(i) a franchisee under a franchise; or
(ii) a related body corporate of a franchisee under a franchise; and
(b) the franchisee employee performs work (franchise‑related work) for the franchisee employer for the purposes of business activities carried on by the franchisee under the franchise; and
(c) the franchisee employer does not pay an amount (the unpaid amount) that is payable, in relation to the franchise‑related work, by the employer:
(i) to the franchisee employee; or
(ii) to another person, for the benefit of the franchisee employee;
on or before the day when the amount is due for payment; and
(d) the unpaid amount is payable under:
(i) a contract; or
(ii) this Act, or an instrument made under or in accordance with this Act; or
(iii) another law of the Commonwealth; or
(iv) a transitional instrument as continued in existence by Schedule 3 to the Transitional Act; or
(v) a State or Territory industrial law, or a State industrial instrument.
(2) Without limiting paragraph (1)(c), the unpaid amount may (subject to paragraph (1)(d)) be an amount of any of the following kinds that relates to (or is attributable to) the franchise‑related work:
(a) an amount payable by way of remuneration or commission;
(b) an amount payable in respect of leave;
(c) an amount payable by way of contributions to a superannuation fund;
(d) an amount payable by way of reimbursement for expenses incurred.
Meaning of franchisor entity
(3) A person is a franchisor entity in relation to the franchise‑related work if:
(a) the person is:
(i) the franchisor under the franchise; or
(ii) a related body corporate of the franchisor; and
(b) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory.
789GD Liability of franchisor entity for unpaid amount
(1) Each franchisor entity (or the franchisor entity, if there is only one) is liable to pay the unpaid amount.
(2) If there are 2 or more franchisor entities, those entities are jointly and severally liable for the payment of the unpaid amount.
(3) Subject to subsection 789GG(2), this section does not affect the liability of the franchisee employer to pay the unpaid amount.
789GE Demand for payment from an apparent franchisor entity
(1) The franchisee employee, or a person acting on behalf of the franchisee employee, may give an apparent franchisor entity a written demand for payment of the amount that the franchisee employee reasonably believes the entity is liable for under section 789GD in relation to the franchise‑related work.
(2) An entity is an apparent franchisor entity in relation to the franchise‑related work if the franchisee employee reasonably believes that the entity is a franchisor entity in relation to the franchise‑related work.
(3) The demand must:
(a) specify the amount, and identify the franchisee employer; and
(b) include particulars of the franchise‑related work to which the amount relates, and why the amount is payable by the entity to which the demand is given; and
(c) state that if the specified amount is not paid by a specified time, proceedings may be commenced against the entity under section 789GF.
(4) The time specified for the purpose of paragraph (3)(c) must not be less than 14 days after the demand is given to the entity.
789GF Court order for entity to pay amount demanded
(1) If:
(a) in accordance with section 789GE, an apparent franchisor entity has been given a demand for payment of a specified amount; and
(b) the amount has not been paid in full by the time specified in the demand;
a person or organisation specified in subsection (2) (the applicant) may commence proceedings for an order requiring the apparent franchisor entity or the franchisor entity to pay the specified amount.
(2) The proceedings may be commenced:
(a) by the franchisee employee; or
(b) on the franchisee employee’s behalf, by:
(i) an organisation that is entitled to represent the industrial interests of the franchisee employee; or
(ii) an inspector.
(3) The proceedings may be commenced in:
(a) the Federal Court; or
(b) the Federal Circuit Court; or
(c) an eligible State or Territory court.
(4) Subject only to subsections (5) and (6), the court may make an order requiring a franchisor entity for the franchisee employee to pay, to the employee or to another person on the employee’s behalf, the specified amount (or so much of that amount as the applicant alleges is still owing).
(5) The court must not make an order under subsection (4) in relation to a franchisor entity for the franchisee employee if the entity satisfies the court that the entity is not liable under section 789GD to pay any of the specified amount.
(6) If a franchisor entity for the franchisee employee satisfies the court that the amount of the entity’s liability under section 789GD is less than the specified amount (or is less than so much of that amount as the applicant alleges is still owing), the court must not make an order under subsection (4) requiring the entity to pay more than that lesser amount.
(7) In making the order, the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(8) Without limiting subsection (7), in determining the amount of interest, the court must take into account the period between the day when the unpaid amount was due for payment by the franchisee employer and the day when the order is made.
(9) Proceedings cannot be commenced under this section more than 6 years after the time when the unpaid amount became due for payment by the franchisee employer.
789GG Effect of payment by entity (including entity’s right to recover from franchisee employer)
(1) This section applies if an entity pays an amount in discharge of a liability of the entity under section 789GD, or pursuant to an order under section 789GF.
(2) The payment discharges the liability of the franchisee employer for the unpaid amount, to the extent of the payment. This does not affect any right that the entity has to recover an equivalent amount from the franchisee employer (under this section or otherwise) or from another person, or to be otherwise indemnified in relation to the making of the payment.
(3) The entity may, in accordance with this section, recover from the franchisee employer an amount (the recoverable amount) equal to the sum of:
(a) the amount paid by the entity as mentioned in subsection (1); and
(b) any interest paid by the entity in relation to that amount pursuant to an order under section 789GF.
(4) The entity may recover the recoverable amount:
(a) by offsetting it against any amount that the entity owes to the franchisee employer; or
(b) by action against the franchisee employer under subsection (5).
(5) The entity may commence proceedings against the franchisee employer for payment to the entity of the recoverable amount. The proceedings may be commenced in:
(a) the Federal Court; or
(b) the Federal Circuit Court; or
(c) an eligible State or Territory court.
(6) The court may make an order requiring the franchisee employer to pay the entity the recoverable amount (or so much of it as is still owing) if the court is satisfied that:
(a) this section applies as mentioned in subsection (1); and
(b) the entity has not otherwise recovered the recoverable amount in full from the franchisee employer.
(7) In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(8) Without limiting subsection (7), in determining the amount of interest, the court must take into account the period between the day when the recoverable amount was paid by the entity and the day when the order is made.
(9) Proceedings cannot be commenced under this section more than 6 years after the time when the entity paid the recoverable amount.
789GH Division does not limit other liabilities or rights
Nothing in this Division limits any other liability or right in respect of the entitlement of the franchisee employee to the unpaid amount (or to have the unpaid amount paid to another person for the employee’s benefit).
6 At the end of Schedule 1
Add:
Part 3—Amendments made by the Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee Employees) Act 2015
13 Definitions
In this Part:
amending Act means the Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee Employees) Act 2015.
14 Application of the amendments made by the amending Act
Part 6‑4AA, as inserted by Schedule 1 to the amending Act, applies in relation to an amount that is payable by a franchisee employer if the franchise is entered into on or after the commencement of that Schedule.