This is a Bill, not an Act. For current law, see the Acts databases.
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Protecting
Vulnerable Workers) Bill 2017
A Bill for an Act to amend the Fair Work Act 2009,
and for related purposes
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Schedule 1--Amendments
Part 1--Increasing maximum penalties for contraventions of
certain civil remedy provisions
Fair Work Act 2009
Part 2--Liability of responsible franchisor entities and holding
Fair Work Act 2009
Part 3--Unreasonable requirements
Fair Work Act 2009
Part 4--Powers of the Fair Work Ombudsman
Fair Work Act 2009
Part 5--Hindering and obstructing the Fair Work Ombudsman
Fair Work Act 2009
Part 6--False or misleading information or documents
Fair Work Act 2009
Part 7--Application and transitional provisions
Fair Work Act 2009
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
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 is the Fair Work Amendment (Protecting Vulnerable
Workers) Act 2017.
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.
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Commencement information
Commencement
Date/Details
The day after this Act receives the Royal
This table relates only to the provisions of this Act as originally
enacted.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
(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repealed as set out in the applicable items in the Schedule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.
Amendments Schedule 1
Increasing maximum penalties for contraventions of certain civil remedy provisions
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Schedule 1--Amendments
Part 1--Increasing maximum penalties for
contraventions of certain civil remedy
Fair Work Act 2009
1 Section 12
serious contravention has the meaning given by section 557A.
2 Subsection 539(2) (after note 3)
See section 557A in relation to a serious contravention of a civil
remedy provision.
3 Subsection 539(2) (cell at table item 1, column 4)
Repeal the cell, substitute:
4 Subsection 539(2) (cell at table item 2, column 4)
Repeal the cell, substitute:
5 Subsection 539(2) (cell at table item 3, column 4)
Repeal the cell, substitute:
Schedule 1 Amendments
Part 1 Increasing maximum penalties for contraventions of certain civil remedy
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
6 Subsection 539(2) (cell at table item 4, column 4)
Repeal the cell, substitute:
7 Subsection 539(2) (cell at table item 5, column 4)
Repeal the cell, substitute:
8 Subsection 539(2) (cell at table item 7, column 4)
Repeal the cell, substitute:
9 Subsection 539(2) (cell at table item 8, column 4)
Repeal the cell, substitute:
Amendments Schedule 1
Increasing maximum penalties for contraventions of certain civil remedy provisions
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
10 Subsection 539(2) (cell at table item 9, column 4)
Repeal the cell, substitute:
11 Subsection 539(2) (cell at table item 10, column 4)
Repeal the cell, substitute:
12 Subsection 539(2) (cell at table item 29, column 4)
Repeal the cell, substitute:
13 After section 557
Schedule 1 Amendments
Part 1 Increasing maximum penalties for contraventions of certain civil remedy
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
557A Serious contravention of civil remedy provisions
(1) A contravention of a civil remedy provision by a person is a
serious contravention if the person's conduct constituting the
(a) deliberate; and
(b) part of a systematic pattern of conduct relating to one or more
For the liability of bodies corporate for serious contraventions, see
(2) In determining whether the person's conduct constituting the
contravention of the provision was part of a systematic pattern of
conduct, a court may have regard to:
(a) the number of contraventions (the relevant contraventions)
of this Act committed by the person; and
(b) the period over which the relevant contraventions occurred;
(c) the number of other persons affected by the relevant
(d) except if the provision contravened is section 535--whether
the person also contravened subsection 535(1), (2) or (4) by
failing to make or keep, in accordance with that section, an
employee record relating to the conduct constituting the
relevant contraventions; and
(e) except if the provision contravened is section 536--whether
the person also contravened subsection 536(1), (2) or (3) by
failing to give, in accordance with that section, a pay slip
relating to the conduct constituting the relevant
(3) Subsection (2) does not limit the matters that a court may have
(4) Subsection 557(1) does not apply for the purposes of determining
whether the person's conduct was part of a systematic pattern of
(5) Subsection (4) does not otherwise affect the operation of
subsection 557(1) in relation to serious contraventions of civil
Amendments Schedule 1
Increasing maximum penalties for contraventions of certain civil remedy provisions
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
(6) If a person is applying for an order in relation to a serious
contravention of a civil remedy provision, the person's application
under subsection 539(2) must specify the relevant serious
(7) If, in proceedings for an order in relation to a serious contravention
of a civil remedy provision, the court:
(a) is not satisfied that the person has committed a serious
contravention against that provision; and
(b) is satisfied that the person has contravened that provision;
the court may make a pecuniary penalty order against the person
not for the serious contravention but for the contravention of that
557B Liability of bodies corporate for serious contravention
(1) For the purposes of subsection 557A(1), a contravention of a civil
remedy provision by a body corporate is deliberate if the body
corporate expressly, tacitly or impliedly authorised the
(2) This section does not limit section 793.
Schedule 1 Amendments
Part 2 Liability of responsible franchisor entities and holding companies
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Part 2--Liability of responsible franchisor entities
Fair Work Act 2009
14 Section 12
franchisee entity of a franchise: see subsection 558A(1).
responsible franchisor entity for a franchisee entity: see
15 Section 537 (after the paragraph relating to Division 4)
Division 4A imposes obligations on responsible franchisor entities
in relation to certain contraventions of civil remedy provisions by
franchisee entities and on holding companies in relation to certain
contraventions of civil remedy provisions by subsidiaries.
16 Subsection 539(2) (after table item 29)
Part 4-1--Civil remedies
(a) the Federal Court;
17 After Division 4 of Part 4-1
Amendments Schedule 1
Liability of responsible franchisor entities and holding companies Part 2
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Division 4A--Responsibility of responsible franchisor
entities and holding companies for certain
contraventions
558A Meaning of franchisee entity and responsible franchisor entity
(1) A person is a franchisee entity of a franchise if:
(a) the person is a franchisee (including a subfranchisee) in
relation to the franchise; and
(b) the business conducted by the person under the franchise is
substantially or materially associated with intellectual
property relating to the franchise.
(2) A person is a responsible franchisor entity for a franchisee entity
of a franchise if:
(a) the person is a franchisor (including a subfranchisor) in
relation to the franchise; and
(b) the person has a significant degree of influence or control
over the franchisee entity's affairs.
558B Responsibility of responsible franchisor entities and holding
companies for certain contraventions
Responsible franchisor entities
(1) A person contravenes this subsection if:
(a) an employer who is a franchisee entity of a franchise
contravenes a civil remedy provision referred to in
subsection (7); and
(b) the person is a responsible franchisor entity for the franchisee
(c) the contravention by the franchisee entity occurs in the
franchisee entity's capacity as a franchisee entity; and
(i) the responsible franchisor entity or an officer (within the
meaning of the Corporations Act 2001) of the
responsible franchisor entity knew or could reasonably
be expected to have known that the contravention by the
franchisee entity would occur; or
Schedule 1 Amendments
Part 2 Liability of responsible franchisor entities and holding companies
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
(ii) at the time of the contravention by the franchisee entity,
the responsible franchisor entity or an officer (within the
meaning of the Corporations Act 2001) of the
responsible franchisor entity knew or could reasonably
be expected to have known that a contravention by the
franchisee entity of the same or a similar character was
likely to occur.
This subsection is a civil remedy provision (see this Part).
Holding companies
(2) A person contravenes this subsection if:
(a) the person is a body corporate; and
(b) a subsidiary (within the meaning of the Corporations Act
2001) of the body corporate who is an employer contravenes
a civil remedy provision referred to in subsection (7); and
(i) the body corporate or an officer (within the meaning of
the Corporations Act 2001) of the body corporate knew
or could reasonably be expected to have known that the
contravention by the subsidiary would occur; or
(ii) at the time of the contravention by the subsidiary, the
body corporate or an officer (within the meaning of the
Corporations Act 2001) of the body corporate knew or
could reasonably be expected to have known that a
contravention by the subsidiary of the same or a similar
character was likely to occur.
This subsection is a civil remedy provision (see this Part).
Reasonable steps to prevent a contravention of the same or a
similar character
(3) A person does not contravene subsection (1) or (2) if, as at the time
of the contravention referred to in paragraph (1)(a) or (2)(b), the
person had taken reasonable steps to prevent a contravention by the
franchisee entity or subsidiary of the same or a similar character.
(4) For the purposes of subsection (3), in determining whether a
person took reasonable steps to prevent a contravention by a
franchisee entity or subsidiary (the contravening employer) of the
Amendments Schedule 1
Liability of responsible franchisor entities and holding companies Part 2
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
same or a similar character, a court may have regard to all relevant
matters, including the following:
(a) the size and resources of the franchise or body corporate (as
the case may be);
(b) the extent to which the person had the ability to influence or
control the contravening employer's conduct in relation to
the contravention referred to in paragraph (1)(a) or (2)(b) or a
contravention of the same or a similar character;
(c) any action the person took directed towards ensuring that the
contravening employer had a reasonable knowledge and
understanding of the requirements under the applicable
provisions referred to in subsection (7);
(d) the person's arrangements (if any) for assessing the
contravening employer's compliance with the applicable
provisions referred to in subsection (7);
(e) the person's arrangements (if any) for receiving and
addressing possible complaints about alleged underpayments
or other alleged contraventions of this Act within:
(i) the franchise; or
(ii) the body corporate or any subsidiary (within the
meaning of the Corporations Act 2001) of the body
as the case may be;
(f) the extent to which the person's arrangements (whether legal
or otherwise) with the contravening employer encourage or
require the contravening employer to comply with this Act or
any other workplace law.
(5) Subsection (4) does not limit subsection (3).
Civil proceedings in relation to contravention by franchisee entity
or subsidiary not required
(6) To avoid doubt, a reference in paragraph (1)(a) or (2)(b) to a
contravention by a franchisee entity or subsidiary includes any
contravention whether or not an order has been sought or made
against the franchisee entity or subsidiary under Division 2 for the
Schedule 1 Amendments
Part 2 Liability of responsible franchisor entities and holding companies
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Relevant civil remedy provisions
(7) The civil remedy provisions are the following:
(a) subsection 44(1) (which deals with contraventions of the
National Employment Standards);
(b) section 45 (which deals with contraventions of modern
(c) section 50 (which deals with contraventions of enterprise
(d) section 280 (which deals with contraventions of workplace
(e) section 293 (which deals with contraventions of national
minimum wage orders);
(f) section 305 (which deals with contraventions of equal
(g) subsection 323(1) (which deals with methods and frequency
(h) subsection 323(3) (which deals with methods of payment
specified in modern awards or enterprise agreements);
(i) subsection 325(1) (which deals with unreasonable
requirements to spend or pay amounts);
(j) subsection 328(1), (2) or (3) (which deal with employer
obligations in relation to guarantees of annual earnings);
(k) subsection 357(1) (which deals with misrepresenting
employment as an independent contracting arrangement);
(l) section 358 (which deals with dismissing an employee to
engage as an independent contractor);
(m) section 359 (which deals with misrepresentations to engage
an individual as an independent contractor);
(n) subsection 535(1), (2) or (4) (which deal with employer
obligations in relation to employee records);
(o) subsection 536(1), (2) or (3) (which deal with employer
obligations in relation to pay slips).
558C Right of responsible franchisor entity or holding company to
(1) This section applies if:
Amendments Schedule 1
Liability of responsible franchisor entities and holding companies Part 2
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
(a) a person pays an amount to, or on behalf of, an employee
pursuant to an order under subsection 545(1) relating to a
contravention by the person of subsection 558B(1) or (2) in
relation to a franchisee entity or subsidiary (the contravening
employer); and
(b) the person has not otherwise recovered from the contravening
employer an amount (the recoverable amount) equal to the
amount paid by the person.
(2) The person may commence proceedings against the contravening
employer for payment to the person of so much of the recoverable
amount as has not been recovered.
(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) The court may make an order requiring the contravening employer
to pay the person the recoverable amount (or so much of it as has
not been recovered from the contravening employer), if the court is
satisfied that this section applies as referred to in subsection (1).
(5) 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.
(6) Without limiting subsection (5), in determining the amount of
interest, the court must take into account the period between the
day when the amount referred to in paragraph (1)(a) was paid by
the person and the day when the order is made.
(7) Proceedings cannot be commenced under this section more than 6
years after the time when the person paid the amount referred to in
Schedule 1 Amendments
Part 3 Unreasonable requirements
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Part 3--Unreasonable requirements
Fair Work Act 2009
18 Section 151
Repeal the section, substitute:
151 Terms about payments and deductions for benefit of employer
A modern award must not include a term that has no effect because
(a) subsection 326(1) (which deals with unreasonable deductions
for the benefit of an employer); or
(b) subsection 326(3) (which deals with unreasonable
requirements to spend or pay an amount); or
(c) subsection 326(4) (which deals with deductions or payments
in relation to employees under 18).
19 Subsection 253(1) (note 2)
Repeal the note, substitute:
Certain terms of enterprise agreements relating to deductions, or
requiring employees to spend or pay amounts, have no effect (see
20 Division 2 of Part 2-9 (heading)
Repeal the heading, substitute:
Division 2--Payment of wages etc.
21 Section 325 (heading)
Repeal the heading, substitute:
325 Unreasonable requirements to spend or pay amount
22 Subsection 325(1)
Repeal the subsection, substitute:
Amendments Schedule 1
Unreasonable requirements Part 3
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
(1) An employer must not directly or indirectly require an employee to
spend, or pay to the employer or another person, an amount of the
employee's money or the whole or any part of an amount payable
to the employee in relation to the performance of work, if:
(a) the requirement is unreasonable in the circumstances; and
(b) for a payment--the payment is directly or indirectly for the
benefit of the employer or a party related to the employer.
This subsection is a civil remedy provision (see Part 4-1).
23 Section 326
Repeal the section, substitute:
326 Certain terms have no effect
Unreasonable deductions for benefit of employer
(1) A term of a modern award, an enterprise agreement or a contract of
employment has no effect to the extent that the term permits, or has
the effect of permitting, an employer to deduct an amount from an
amount that is payable to an employee in relation to the
performance of work, if the deduction is:
(a) directly or indirectly for the benefit of the employer or a
party related to the employer; and
(b) unreasonable in the circumstances.
(2) The regulations may prescribe circumstances in which a deduction
referred to in subsection (1) is or is not reasonable.
Unreasonable requirements to spend or pay an amount
(3) A term of a modern award, an enterprise agreement or a contract of
employment has no effect to the extent that the term:
(a) permits, or has the effect of permitting, an employer to make
a requirement that would contravene subsection 325(1); or
(b) directly or indirectly requires an employee to spend or pay an
amount, if the requirement would contravene
subsection 325(1) if it had been made by an employer.
Schedule 1 Amendments
Part 3 Unreasonable requirements
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Deductions or payments in relation to employees under 18
(4) A term of a modern award, an enterprise agreement or a contract of
employment has no effect to the extent that the term:
(a) permits, or has the effect of permitting, an employer to
deduct an amount from an amount that is payable to an
employee in relation to the performance of work; or
(b) requires, or has the effect of requiring, an employee to make
a payment to an employer or another person;
if the employee is under 18 and the deduction or payment is not
agreed to in writing by a parent or guardian of the employee.
24 Section 327 (heading)
Repeal the heading, substitute:
327 Things given or provided, and amounts required to be spent or
paid, in contravention of this Division
25 Paragraph 327(b)
Repeal the paragraph, substitute:
(b) any amount that the employee has been required to spend or
pay contrary to subsection 325(1), or in accordance with a
term to which subsection 326(3) applies, is taken to be a
deduction, from an amount payable to the employee, made by
the employer otherwise than in accordance with section 324.
26 Paragraph 557(2)(i)
Repeal the paragraph, substitute:
(i) subsection 325(1) (which deals with unreasonable
requirements to spend or pay amounts);
Amendments Schedule 1
Powers of the Fair Work Ombudsman Part 4
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Part 4--Powers of the Fair Work Ombudsman
Fair Work Act 2009
27 Section 12
FWO notice: see subsection 712A(1).
28 Subsection 539(2) (after table item 32)
(a) the Federal Court;
(c) an eligible State
or Territory court
29 Subsection 683(1)
Omit "(other than his or her functions or powers as an inspector)",
substitute "(subject to subsections (1A) and (1B))".
30 After subsection 683(1)
(1A) The Fair Work Ombudsman must not delegate his or her functions
or powers as an inspector.
(1B) The Fair Work Ombudsman may delegate to a member of the staff
of the Office of the Fair Work Ombudsman who is an SES
employee or an acting SES employee:
(a) the power under subsection 712A(1) to give an FWO notice;
(b) the power under subsection 712A(3) to vary an FWO notice
by specifying a later time.
SES employee and acting SES employee are defined in the Acts
Interpretation Act 1901.
Schedule 1 Amendments
Part 4 Powers of the Fair Work Ombudsman
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
31 At the end of subsection 685(1)
A report must not include information relating to an individual's
affairs (see section 714A).
32 At the end of section 686
An annual report must not include information relating to an
individual's affairs (see section 714A).
33 Subdivision D of Division 3 of Part 5-2 (heading)
Repeal the heading, substitute:
Subdivision D--Functions and powers of Fair Work
Inspectors--general
34 Section 703
Before "The functions", insert "(1)".
35 At the end of section 703
(2) To avoid doubt, the power to issue an FWO notice under
section 712A is not a compliance power.
36 Before section 708
Subdivision DA--Power to enter premises
37 Before section 711
Subdivision DB--Powers to ask questions and require records
and documents
38 After section 712
Amendments Schedule 1
Powers of the Fair Work Ombudsman Part 4
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
712A Fair Work Ombudsman may give FWO notice
Fair Work Ombudsman may require information, documents etc.
(1) The Fair Work Ombudsman may give a written notice (the FWO
notice), in the form prescribed by the regulations (if any), to a
person if the Fair Work Ombudsman reasonably believes that the
(a) has information or documents relevant to an investigation by
an inspector into a suspected contravention of this Act; or
(b) is capable of giving evidence that is relevant to such an
(2) The notice may require the person:
(a) to give the information to the Fair Work Ombudsman, or a
specified member of the staff of the Office of the Fair Work
Ombudsman, by the time, and in the manner and form,
specified in the notice; or
(b) to produce the documents to the Fair Work Ombudsman, or a
specified member of the staff of the Office of the Fair Work
Ombudsman, by the time, and in the manner, specified in the
(c) to attend before the Fair Work Ombudsman, or a specified
member of the staff of the Office of the Fair Work
Ombudsman who is an SES employee or an acting SES
employee, at the time and place specified in the notice, and
answer questions relevant to the investigation.
The time specified under paragraph (a), (b) or (c) must be at least
14 days after the notice is given.
See also sections 712B (which deals with the requirement to comply
with an FWO notice), 712D (which deals with protection from
liability), 713 (which deals with self-incrimination etc.), 713AA
(which deals with legal professional privilege) and 714 (which deals
with the power to keep records or documents).
SES employee and acting SES employee are defined in the Acts
Interpretation Act 1901.
(3) The Fair Work Ombudsman may, in writing, vary an FWO notice
given to a person by specifying a later time which is at least 14
days after the notice is first given to the person. This subsection
does not limit the application of subsection 33(3) of the Acts
Interpretation Act 1901.
Schedule 1 Amendments
Part 4 Powers of the Fair Work Ombudsman
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Legal representation
(4) A person attending before the Fair Work Ombudsman, or a
member of the staff mentioned in paragraph (2)(c), may be
represented by a lawyer if the person chooses.
Oath or affirmation
(5) The Fair Work Ombudsman, or a member of the staff mentioned in
paragraph (2)(c), may require the information or answers to be
verified by, or given on, oath or affirmation, and either orally or in
writing. For that purpose, the Fair Work Ombudsman, or any
member of the staff of the Office of the Fair Work Ombudsman,
may administer the oath or affirmation.
(6) The oath or affirmation is an oath or affirmation that the
information or answers are or will be true.
712B Requirement to comply with FWO notice
(1) A person who has been given an FWO notice must do the
following (as applicable):
(a) give information or produce a document in accordance with
(b) attend to answer questions in accordance with the notice;
(c) take an oath or make an affirmation when required to do so
under subsection 712A(5);
(d) answer questions relevant to the investigation while attending
as required by the FWO notice.
This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply to the extent that the person is not
capable of complying with the requirement.
712C Payment for expenses incurred in attending as required by an
(1) A person who attends as required by an FWO notice is (subject to
subsection (2)) entitled to be paid fees and allowances, fixed by or
calculated in accordance with the regulations, for reasonable
expenses (including legal expenses) incurred by the person in so
Amendments Schedule 1
Powers of the Fair Work Ombudsman Part 4
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
(2) The person is not entitled to be paid for expenses under this section
unless the person:
(a) applies, in writing, to the Fair Work Ombudsman for
payment of the expenses within 3 months after the
(b) provides to the Fair Work Ombudsman sufficient evidence to
establish that the person incurred the expenses.
(3) An application under paragraph (2)(a) must:
(a) if a form is prescribed by the regulations--be in that form;
(b) include any information prescribed by the regulations.
712D Protection from liability relating to FWO notices
A person who, in good faith, gives information, produces a record
or document, or answers a question, when required to do so under
an FWO notice is not liable to:
(a) any proceedings for contravening any other law because of
that conduct; or
(b) civil proceedings for loss, damage or injury of any kind
suffered by another person because of that conduct.
Subdivision DC--Other rules relating to answers, records and
39 Section 713
Repeal the section, substitute:
713 Self-incrimination etc.
Excuses that are not available
(1) A person is not excused from giving information, producing a
record or document, or answering a question, under
paragraph 709(d) or subsection 712(1), or under an FWO notice,
on the ground that to do so might tend to incriminate the person or
otherwise expose the person to a penalty or other liability.
Schedule 1 Amendments
Part 4 Powers of the Fair Work Ombudsman
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Use/derivative use indemnity in relation to requirement under
paragraph 709(d) or subsection 712(1)
(2) In the case of an individual who produces a record or document,
under paragraph 709(d) or subsection 712(1), none of the
(a) the record or document produced;
(b) producing the record or document;
(c) any information, document or thing obtained as a direct or
indirect consequence of producing the record or document;
is admissible in evidence against the individual in criminal
proceedings, other than:
(d) proceedings for an offence against section 137.1 or 137.2 of
the Criminal Code that relates to this Act (false or misleading
information or documents); and
(e) proceedings for an offence against section 149.1 of the
Criminal Code that relates to this Act (obstruction of
Use indemnity in relation to FWO notices
(3) In the case of an individual who gives information, produces a
record or document, or answers a question, under an FWO notice,
any information or answer given, or record or document produced,
is not admissible in evidence against the individual in proceedings,
(a) proceedings for a contravention of section 712B or 718A
(requirement to comply with FWO notice and false or
misleading information or documents); and
(b) proceedings for an offence against section 137.1 or 137.2 of
the Criminal Code that relates to this Act (false or misleading
information or documents); and
(c) proceedings for an offence against section 149.1 of the
Criminal Code that relates to this Act (obstruction of
40 After section 713A
Amendments Schedule 1
Powers of the Fair Work Ombudsman Part 4
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
713AA Legal professional privilege
Nothing in this Part requires a person to produce a document that
would disclose information that is the subject of legal professional
41 Subsection 714(1)
Omit "an inspector", substitute "the Fair Work Ombudsman, an
inspector or any other person".
42 Subsection 714(1)
Omit "the inspector", substitute "he or she".
43 Subsection 714(2)
Omit "an inspector", substitute "the Fair Work Ombudsman, an
inspector or any other person".
44 Subsection 714(2)
Omit "the inspector", substitute "he or she".
45 After section 714
714A Reports not to include information relating to an individual's
(1) Information relating to the affairs of an individual must not be
included in a report under section 685 (which allows the Minister
to require reports) or in a report referred to in section 686 (which
deals with annual reports) if:
(a) the individual is named, or otherwise specifically identified,
in the report as the individual to whom the information
(b) it is reasonably likely that people generally (other than people
to whom the individual has disclosed information relating to
the individual's affairs) would be able to work out the
identity of the individual to whom the information relates.
(2) For the purposes of applying paragraph (1)(b) to information
relating to a particular individual's affairs, the context in which the
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Part 4 Powers of the Fair Work Ombudsman
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
information appears, and information that is otherwise publicly
available, must be taken into account (as well as any other relevant
46 Before section 715
Subdivision DD--Enforceable undertakings and compliance
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Hindering and obstructing the Fair Work Ombudsman and inspectors Part 5
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Part 5--Hindering and obstructing the Fair Work
Ombudsman and inspectors
Fair Work Act 2009
47 Subsection 539(2) (before table item 31, after the
subheading "Part 5-2--Office of the Fair Work
(a) the Federal Court;
(c) an eligible State
or Territory court
48 After section 707
707A Hindering or obstructing the Fair Work Ombudsman and
inspectors etc.
(1) A person must not intentionally hinder or obstruct:
(a) the Fair Work Ombudsman or an inspector in the
performance of his or her functions or the exercise of his or
her powers as the Fair Work Ombudsman or an inspector; or
(b) an assistant referred to in section 710 assisting an inspector
(c) a member of the staff of the Office of the Fair Work
Ombudsman in the performance of his or her functions or the
exercise of his or her powers in relation to an FWO notice.
This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if:
(a) the person has a reasonable excuse; or
(b) if the Fair Work Ombudsman or inspector referred to in
paragraph (1)(a) or (b) (as the case requires) was required to
show his or her identity card to the person under
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Part 5 Hindering and obstructing the Fair Work Ombudsman and inspectors
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
subsection 708(3) or paragraph 711(3)(b)--the Fair Work
Ombudsman or inspector:
(i) failed to do so; or
(ii) failed to tell the person of the effect of this section.
(3) A reference in subsection (1) to the Fair Work Ombudsman
includes a reference to a delegate of the Fair Work Ombudsman.
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False or misleading information or documents Part 6
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Part 6--False or misleading information or
Fair Work Act 2009
49 At the end of section 535
(4) An employer must not make or keep a record for the purposes of
this section that the employer knows is false or misleading.
This subsection is a civil remedy provision (see Part 4-1).
(5) Subsection (4) does not apply if the record is not false or
misleading in a material particular.
50 At the end of section 536
(3) An employer must not give a pay slip for the purposes of this
section that the employer knows is false or misleading.
This subsection is a civil remedy provision (see Part 4-1).
(4) Subsection (3) does not apply if the pay slip is not false or
misleading in a material particular.
51 Subsection 539(2) (table item 29, column 1)
After "535(2)", insert "535(4)".
52 Subsection 539(2) (table item 29, column 1)
After "536(2)", insert "536(3)".
53 Subsection 539(2) (after table item 33)
(a) the Federal Court;
(c) an eligible State
or Territory court
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Part 6 False or misleading information or documents
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
54 Paragraph 557(2)(n)
Omit "and (2)", substitute ", (2) and (4)".
55 Paragraph 557(2)(o)
Omit "and (2)", substitute ", (2) and (3)".
56 At the end of Division 3 of Part 5-2
Subdivision F--False or misleading information or documents
718A False or misleading information or documents
(1) A person must not give information or produce a document to the
Fair Work Ombudsman, an inspector, or a person referred to in
subsection 712A(2), (the official) exercising powers or performing
functions under, or in connection with, a law of the
Commonwealth if the person knows, or is reckless as to whether,
the information or the document:
(a) is false or misleading; or
(b) for information--omits any matter or thing without which the
information is misleading.
This subsection is a civil remedy provision (see Part 4-1).
Sections 137.1 and 137.2 of the Criminal Code create offences for
providing false or misleading information or documents.
(2) Subsection (1) does not apply as a result of paragraph (1)(a) if the
information or the document is not false or misleading in a material
(3) Subsection (1) does not apply as a result of paragraph (1)(b) if the
information did not omit any matter or thing without which the
information is misleading in a material particular.
(4) Subsection (1) does not apply to a person who produces a
document if the document is accompanied by a written statement
signed by the person or, in the case of a body corporate, by a
competent officer of the body corporate:
(a) stating that the document is, to the knowledge of the person,
false or misleading in a material particular; and
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Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
(b) setting out, or referring to, the material particular in which
the document is, to the knowledge of the person, false or
(5) Subsection (1) does not apply if, before the information was given
or the document was produced by a person to the official, the
official did not take reasonable steps to inform the person that the
person may be liable to a civil remedy for contravening
(6) For the purposes of subsection (5), it is sufficient if the following
form of words is used:
"You may be liable to a civil remedy for giving false or misleading
information or producing false or misleading documents".
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Part 7 Application and transitional provisions
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
Part 7--Application and transitional provisions
Fair Work Act 2009
57 In the appropriate position in Schedule 1
Part 4--Amendments made by the Fair Work
Amendment (Protecting Vulnerable
Workers) Act 2017
15 Definitions
amended Act means this Act as amended by the Fair Work
Amendment (Protecting Vulnerable Workers) Act 2017.
16 Application of amendments--unreasonable requirements to
spend or pay amounts
Subsection 325(1) of the amended Act applies in relation to
requirements made after this clause commences.
17 Saving of regulations--unreasonable deductions
Regulations in force, immediately before the commencement of
this clause, for the purposes of subsection 326(2) of the Fair Work
Act 2009 have effect after that commencement as if they had been
made for the purposes of subsection 326(2) of the amended Act.
18 Application of amendments--increasing maximum penalties for
contraventions of certain civil remedy provisions
(1) Sections 539, 557A and 557B of the amended Act apply in relation
to conduct engaged in on or after the commencement of this Part.
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(a) conduct was engaged in by a person before and after that
(b) the conduct is part of a course of conduct referred to in
the conduct engaged in before that commencement is to be treated
as constituting a separate contravention from the conduct engaged
in after that commencement for the purposes of section 557.
(3) However, a court may still consider a contravention of a civil
remedy provision (whether or not the provision is referred to in
subsection 557(2)) by a person that occurred before the
commencement of this Part for the purposes of determining
whether a person's conduct was part of a systematic pattern of
conduct referred to in paragraph 557A(1)(b).
19 Application of amendments--responsibility of responsible
franchisor entities and holding companies
(1) Section 558B of the amended Act applies in relation to
contraventions of civil remedy provisions by franchisee entities or
subsidiaries that occur after the end of the period of 6 weeks
beginning on the day this Part commences.
(2) To avoid doubt, in determining for the purposes of
paragraph 558B(1)(d) or (2)(c) of the amended Act whether a
person could reasonably be expected to have had knowledge as
referred to in that paragraph, a court may have regard to conduct
that occurred, or circumstances existing, before the end of the
period referred to in subclause (1).
20 Application of amendments--hindering or obstructing the Fair
Work Ombudsman and inspectors etc.
Section 707A of the amended Act applies in relation to conduct
engaged in at or after the commencement of this Part.
21 Application of power to give FWO notices
Sections 712A to 712D of the amended Act apply in relation to an
FWO notice given after this Part commences, whether the
investigation to which the notice relates is begun before or after the
commencement of this Part.
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Part 7 Application and transitional provisions
Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017
22 Application of amendments relating to self-incrimination etc.
Section 713 of the amended Act applies in relation to information
given, records or documents produced or questions answered after
the commencement of this Part.
23 Application of requirement for reports not to include information
relating to an individual's affairs
Section 714A of the amended Act applies in relation to reports
prepared after the commencement of this Part.
24 Application of amendments--false or misleading information or
Subsections 535(4) and 536(3) and section 718A of the amended
Act apply in relation to conduct engaged in after the
commencement of this Part.