FAIR WORK ACT 2009 - SECT 558B Responsibility of responsible franchisor entities and holding companies for certain contraventions
FAIR WORK ACT 2009 - SECT 558B
Responsibility of responsible franchisor entities and holding companies for certain contraventionsResponsible 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 entity; and
(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
(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.
Note: This subsection is a civil remedy provision (see this Part).
(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.
Note: 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 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 corporate;
(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 contravention.
Relevant civil remedy provisions
(7) The civil remedy provisions are the following:
(a) section 44 (which deals with contraventions of the National Employment Standards);
(b) section 45 (which deals with contraventions of modern awards);
(c) section 50 (which deals with contraventions of enterprise agreements);
(d) section 280 (which deals with contraventions of workplace determinations);
(e) section 293 (which deals with contraventions of national minimum wage orders);
(f) section 305 (which deals with contraventions of equal remuneration orders);
(g) subsection 323(1) (which deals with methods and frequency of payment);
(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 on employees to spend or pay amounts);
(ia) subsection 325(1A) (which deals with unreasonable requirements on prospective employees 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).