(1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to an unincorporated association as if it were a person, but with the changes set out in this section.
(2) An offence against this Subdivision that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who:
(a) did the relevant act; or
(b) aided, abetted, counselled or procured the relevant act; or
(c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the member).
(3) A civil penalty provision in this Subdivision that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who:
(a) engaged in the conduct; or
(b) aided, abetted, counselled or procured the conduct; or
(c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the member).
Subdivision E—Prohibited employers
245AYAA Objects of this Subdivision
(1) The objects of this Subdivision are as follows:
(a) to protect, to the extent possible, non‑citizens (other than holders of permanent visas) from being exploited, or further exploited, by employers;
(b) to ensure that such non‑citizens are not exposed to employers or workplaces that have engaged in serious, deliberate or repeated non‑compliance with certain laws;
(c) to ensure that non‑compliance is dealt with in a way that considers the impact of any sanctions on such non‑citizens, the employer and the community as a whole.
(2) This Subdivision aims to achieve its objects by:
(a) empowering the Minister to declare persons to be prohibited employers; and
(b) requiring the Minister to ensure that imposing such a prohibition, including the duration of such a prohibition, is proportionate to the person’s misconduct; and
(c) requiring the Minister to consider the impact on non‑citizens (other than holders of permanent visas) of making such a declaration; and
(d) encouraging employers to demonstrate their ability to:
(i) remediate their non‑compliance; and
(ii) comply with the law relating to migrant worker sanctions in the future.
245AYA Overview
(1) This Subdivision provides for the Minister to declare a person to be a prohibited employer for a specified period if:
(a) the person is subject to a migrant worker sanction; and
(b) no more than 5 years have passed since the person became subject to that sanction.
(2) Sections 245AYE to 245AYJ set out when a person is subject to a migrant worker sanction.
(3) While a declaration is in effect, a prohibited employer must not:
(a) allow certain additional non‑citizens to begin work; or
(b) have a material role in a decision made by a body corporate or other body to allow certain additional non‑citizens to begin work.
(4) After a person stops being a prohibited employer, the person must give the Department specified information about certain lawful non‑citizens who the person allows to begin to work in the 12 month period after so ceasing.
245AYB Definitions
In this Subdivision:
ABN has the same meaning as in the A New Tax System (Australian Business Number) Act 1999.
allows a non‑citizen to begin work has the meaning given by section 245AYC.
Fair Work Ombudsman means the Fair Work Ombudsman provided for by section 681 of the Fair Work Act 2009.
FW order means an order under Division 2 of Part 4‑1 of the Fair Work Act 2009.
inspector has the same meaning as in the Fair Work Act 2009.
migrant worker sanction has the meaning given by sections 245AYE to 245AYJ.
prohibited employer has the meaning given by section 245AYD.
work means any work, whether for reward or otherwise.
245AYC Meaning of allows a non‑citizen to begin work
(1) A person allows a non‑citizen to begin work at a particular time if, and only if:
(a) the person employs the non‑citizen by entering into a contract of service at that time; or
(b) the person engages the non‑citizen by entering into a contract for services at that time; or
(c) the person begins at that time to participate in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the non‑citizen for:
(i) the person; or
(ii) another participant in the arrangement or any such arrangement; or
(d) the person enters into a contract at that time to bail or license a chattel to the non‑citizen or another person with the intention that the non‑citizen will use the chattel to perform a transportation service; or
(e) the person enters into a contract at that time to lease or license premises, or a space within premises, to the non‑citizen or another person with the intention that the non‑citizen will use the premises or space to perform sexual services (within the meaning of the Criminal Code); or
(f) the prescribed circumstances exist at that time.
Note: Other parts of speech and grammatical forms of “allows a non‑citizen to begin work” (for example, “the non‑citizen is allowed to begin work”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).
(2) In paragraph (1)(e):
premises means:
(a) an area of land or any other place, whether or not it is enclosed or built on; or
(b) a building or other structure; or
(c) a vehicle or vessel.
245AYD Meaning of prohibited employer
A person is a prohibited employer at a particular time if:
(a) a declaration in relation to the person has been made under subsection 245AYK(1); and
(b) the declaration is in effect at that time.
245AYE When a person is subject to a migrant worker sanction—bar placed on approved work sponsor etc.
Bar placed on approved work sponsor
(1) A person is subject to a migrant worker sanction if:
(a) the person is an approved work sponsor; and
(b) a bar is placed on the person under paragraph 140M(1)(c) or (d); and
(c) either:
(i) the person has not requested the Minister to waive the bar in accordance with any regulations made for the purposes of section 140P; or
(ii) if the person has made such a request—the Minister has not waived the bar under subsection 140O(2).
Failure to comply with compliance notice
(2) A person is subject to a migrant worker sanction if:
(a) the person is or was an approved work sponsor; and
(b) a civil penalty order is made against the person in relation to a contravention of subsection 140RB(5).
245AYF When a person is subject to a migrant worker sanction—conviction of work‑related offence etc.
Conviction of work‑related offence
(1) A person is subject to a migrant worker sanction if the person is convicted of a work‑related offence.
Conviction of certain offences against humanity
(2) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the person has been convicted of an offence against the following provisions of the Criminal Code:
(i) Division 270 (other than section 270.7B or section 270.8 to the extent an offence against that section relates to an offence against section 270.7B);
(ii) Division 271 (other than Subdivision BA); and
(b) the person engaged in the relevant conduct in Australia; and
(c) the offence related, wholly or partly, to another person who, at the time the relevant conduct was engaged in, was a non‑citizen (other than the holder of a permanent visa).
Conviction of certain offences against the Fair Work Act 2009 etc.
(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the person has been convicted of an offence against the Fair Work Act 2009, or a relevant workplace law, that is an offence of a kind prescribed by the regulations; and
(b) the offence related, wholly or partly, to a prescribed person who, at the time the relevant conduct was engaged in, was a non‑citizen (other than the holder of a permanent visa); and
(c) any circumstances prescribed by the regulations apply in relation to the offence.
245AYG When a person is subject to a migrant worker sanction—contravention of certain civil penalty provisions etc.
Contravention of certain civil penalty provisions of this Act
(1) A person is subject to a migrant worker sanction if:
(a) a civil penalty order has been made against the person in relation to the contravention of a work‑related provision; or
(b) both of the following apply:
(i) a civil penalty order has been made against the person in relation to a contravention of another civil penalty provision prescribed by the regulations;
(ii) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa).
Contravention of certain provisions of relevant workplace law
(2) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) a court has made an order under a relevant workplace law that the person pay a pecuniary penalty for a contravention of a provision of that law; and
(b) the provision is prescribed by the regulations; and
(c) the order was not made in criminal proceedings; and
(d) the contravention related, wholly or partly, to a prescribed person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa); and
(e) any circumstances prescribed by the regulations apply in relation to the contravention of the provision.
245AYH When a person is subject to a migrant worker sanction—contravention of certain civil remedy provisions of the Fair Work Act 2009
Contravention of civil remedy provisions (within the meaning of the Fair Work Act 2009)
(1) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) a FW order has been made against the person in relation to a contravention of a civil remedy provision (within the meaning of the Fair Work Act 2009); and
(b) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa).
Contravention relating to the advertisement of rates of pay
(2) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) a FW order has been made against the person in relation to a contravention of subsection 536AA(1) or (2) of the Fair Work Act 2009 (employer obligations in relation to advertising rates of pay); or
(b) both of the following apply:
(i) a FW order has been made against the person in relation to a contravention of subsection 716(5) of that Act (failure to comply with compliance notice);
(ii) the relevant compliance notice given under section 716 of that Act related to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay).
Contravention relating to compliance notices
(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) a FW order has been made against the person in relation to a contravention of subsection 716(5) of the Fair Work Act 2009 (failure to comply with compliance notice); and
(b) the relevant compliance notice given under section 716 of that Act related to a contravention (the original contravention) of:
(i) a provision of the National Employment Standards (within the meaning of that Act); or
(ii) a term of a modern award (within the meaning of that Act); or
(iii) a term of an enterprise agreement (within the meaning of that Act); or
(iv) a term of a workplace determination (within the meaning of that Act); or
(v) a term of a national minimum wage order (within the meaning of that Act); or
(vi) a term of an equal remuneration order (within the meaning of that Act); and
(c) the original contravention related, wholly or partly, to another person who, at the time of the original contravention, was a non‑citizen (other than the holder of a permanent visa).
245AYI When a person is subject to a migrant worker sanction—contravention of term of enforceable undertaking etc.
Undertaking in relation to contravention of civil remedy provision (within the meaning of the Fair Work Act 2009)
(1) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the Fair Work Ombudsman has accepted an undertaking given by the first person under section 715 of the Fair Work Act 2009 in relation to a contravention of a civil remedy provision (within the meaning of that Act); and
(b) a court has made one or more orders under subsection 715(7) of that Act in relation to the undertaking; and
(c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa).
(2) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the Fair Work Ombudsman has accepted an undertaking given by the first person under section 715 of the Fair Work Act 2009 in relation to a contravention of a civil remedy provision (within the meaning of that Act); and
(b) all of the following apply:
(i) the undertaking has not been withdrawn;
(ii) an application for an order under subsection 715(7) of that Act in relation to the undertaking has not been made;
(iii) a court has not made one or more orders under that subsection in relation to the undertaking; and
(c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa); and
(d) the first person has contravened a term of the undertaking.
Undertaking in relation to contravention relating to advertisement of rates of pay
(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the Fair Work Ombudsman has accepted an undertaking given by the person under section 715 of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and
(b) a court has made one or more orders under subsection 715(7) of that Act in relation to the undertaking.
(4) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) the Fair Work Ombudsman has accepted an undertaking given by the person under section 715 of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and
(b) all of the following apply:
(i) the undertaking has not been withdrawn;
(ii) an application for an order under subsection 715(7) of that Act in relation to the undertaking has not been made;
(iii) a court has not made one or more orders under that subsection in relation to the undertaking; and
(c) the person has contravened a term of the undertaking.
245AYJ When a person is subject to a migrant worker sanction—failure to comply with certain compliance notices
Compliance notice in relation to contravention of relevant fair work provision
(1) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:
(a) an inspector has given the first person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of:
(i) a provision of the National Employment Standards (within the meaning of that Act); or
(ii) a term of a modern award (within the meaning of that Act); or
(iii) a term of an enterprise agreement (within the meaning of that Act); or
(iv) a term of a workplace determination (within the meaning of that Act); or
(v) a term of a national minimum wage order (within the meaning of that Act); or
(vi) a term of an equal remuneration order (within the meaning of that Act); and
(b) a court has confirmed the compliance notice after reviewing it under subsection 717(1) of that Act; and
(c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa); and
(d) the first person has failed to comply with the compliance notice and the first person does not have a reasonable excuse for so failing.
(2) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:
(a) an inspector has given the first person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of:
(i) a provision of the National Employment Standards (within the meaning of that Act); or
(ii) a term of a modern award (within the meaning of that Act); or
(iii) a term of an enterprise agreement (within the meaning of that Act); or
(iv) a term of a workplace determination (within the meaning of that Act); or
(v) a term of a national minimum wage order (within the meaning of that Act); or
(vi) a term of an equal remuneration order (within the meaning of that Act); and
(b) all of the following apply:
(i) the compliance notice has not been withdrawn;
(ii) the first person has not made an application under subsection 717(1) of that Act in relation to the compliance notice;
(iii) a court has not cancelled the compliance notice after reviewing it under that subsection; and
(c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa); and
(d) the first person has failed to comply with the compliance notice and the first person does not have a reasonable excuse for so failing.
Compliance notice in relation to contravention relating to advertisement of rates of pay