Courts (Fair Work and Work Safety) Legislation Amendment Act 2019 (ACT)

Case

Courts (Fair Work and Work Safety) Legislation Amendment Act 2019

A2019-32

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  3

Part 2ACT Civil and Administrative Tribunal Act 2008

4            Meaning of civil dispute and civil dispute application—ActNew section 16 (2)  4

5            New division 8.1A  4

6            Dictionary, new definition of fair work claim  5

Part 3Confiscation of Criminal Assets Act 2003

7           Meaning of offence and of particular kinds of offencesSection 13 (2), definition of relevant offence, paragraph (a)                  6

8            Section 13 (2), definition of serious offence, new paragraph (aa)           6

Part 4Crimes Act 1900

9            Summary disposal of certain cases at prosecutor’s electionSection 374 (1)  7

10          Summary disposal of certain casesNew section 375 (1) (ba)  7

Part 5Magistrates Court Act 1930

11          Personal actions at law—amount or valueSection 257 (4), new example  8

12Civil disputes under ACT Civil and Administrative Tribunal Act
Section 266A (2), except note  8

13          New part 4.2A  8

14          Jurisdiction of Industrial CourtSection 291Q (2) (a) and (b)  13

15          Section 291Q (5)  13

16          Dictionary, new definitions  14

Part 6Work Health and Safety Act 2011

17          Reckless conduct—category 1New section 31 (3)  15

Courts (Fair Work and Work Safety) Legislation Amendment Act 2019

A2019-32

An Act to amend legislation about courts, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Courts (Fair Work and Work Safety) Legislation Amendment Act 2019.

  2. Commencement

    (1)The following provisions commence on the day after this Act’s notification day:

    ·     section 3

    ·     parts 3 and 4

    ·     section 14

    ·     part 6.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

    (2)The remaining provisions commence on a day fixed by the Minister by written notice.

    NoteA single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

    (3)If the remaining provisions have not commenced within 12 months beginning on this Act’s notification day they automatically commence on the first day after that period.

    (4)The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.

  3. Legislation amended

    This Act amends the following legislation:

    ·     ACT Civil and Administrative Tribunal Act 2008

    ·     Confiscation of Criminal Assets Act 2003

    ·     Crimes Act 1900

    ·     Magistrates Court Act 1930

    ·     Work Health and Safety Act 2011.

Part 2ACT Civil and Administrative Tribunal Act 2008

  1. Meaning of civil dispute and civil dispute application—Act
    New section     16 (2)

    insert

    (2)To remove any doubt, a civil dispute application does not include a fair work claim.

    Note 1A fair work claim may be started in the Magistrates Court (see Magistrates Court Act 1930, pt 4.2A).

    Note 2Orders may be sought for the contravention of a civil remedy provision in the Federal Court and Federal Circuit Court (see Fair Work Act 2009 (Cwlth), s 539).

  2. New division 8.1A

    insert

Division 8.1A            Removal of combined fair work matter

82ARemoval from tribunal to Magistrates Court—combined fair work matter

(1)This section applies if, in the course of dealing with a civil dispute application, the tribunal becomes aware that a matter arising in relation to the application amounts to a fair work claim.

Example—matter arising in relation to application

a counter claim to the application

(2)The tribunal must order that the application and the matter (the combined fair work matter) be removed to the Magistrates Court.

(3)The tribunal may make the order on its own initiative or on application by a party to the matter.

(4)On removal of the matter to the Magistrates Court, the civil dispute application is taken to be finalised in the tribunal.

Note 1A fair work claim may be started in the Magistrates Court (see Magistrates Court Act 1930, pt 4.2A).

Note 2Orders may be sought for the contravention of a civil remedy provision in the Federal Court and Federal Circuit Court (see Fair Work Act 2009 (Cwlth), s 539).

  1. Dictionary, new definition of fair work claim

    insert

    fair work claim—see the Magistrates Court Act 1930, s 266E.

Part 3Confiscation of Criminal Assets Act 2003

  1. Meaning of offence and of particular kinds of offences
    Section 13 (2), definition of relevant offence, paragraph (a)

    substitute

    (a)means either—

    (i)an offence punishable by imprisonment for longer than 12 months; or

    (ii)an offence against the Work Health and Safety Act 2011, section 31 (1); and

  2. Section 13 (2), definition of serious offence, new paragraph (aa)

    insert

    (aa)an offence against the Work Health and Safety Act 2011, section 31 (1); or

Part 4Crimes Act 1900

  1. Summary disposal of certain cases at prosecutor’s election
    Section 374 (1)

    substitute

    (1)This section applies if a person (the defendant) is before the Magistrates Court charged with—

    (a)an offence punishable by imprisonment for longer than 2 years but not longer than 5 years; or

    (b)an offence against the Work Health and Safety Act 2011, section 31 (1).

  2. Summary disposal of certain cases
    New section 375 (1) (ba)

    insert

    (ba)if the person is a body corporate—an offence against the Work Health and Safety Act 2011, section 31 (1); or

Part 5Magistrates Court Act 1930

  1. Personal actions at law—amount or value
    Section 257 (4), new example

    insert

    Example—s (4)

    jurisdiction under the Fair Work Act 2009 (Cwlth), ch 4, pt 4-1 (Civil remedies) to award an amount of more than $250 000 in compensation for loss

  2. Civil disputes under ACT Civil and Administrative Tribunal Act
    Section 266A (2), except note

    substitute

    (2)To remove any doubt, this section does not apply—

    (a)in relation to the enforcement of an order made by the ACAT; or

    (b)to a combined fair work matter removed by the ACAT to the Magistrates Court under the ACT Civil and Administrative Tribunal Act 2008, s 82A.

  3. New part 4.2A

    insert

Part 4.2AFair work claims

Note 1Jurisdiction is conferred on the Magistrates Court (as an eligible State and Territory court) in relation to the contravention of a civil remedy provision and related matters under the Fair Work Act 2009 (Cwlth), s 539 and the Fair Work Regulations 2009 (Cwlth), reg 4.01A.

Note 2A person may choose to have the contravention of a civil remedy provision dealt with under a small claims procedure (see Fair Work Act 2009 (Cwlth), s 548 and Fair Work Regulations 2009 (Cwlth), reg 4.01).

Note 3A party to a proceeding for a fair work small claim may be represented by an official of an industrial association in circumstances stated by the Commonwealth legislation (see s 266G and Fair Work Act 2009 (Cwlth), s 548 and Fair Work Regulations 2009 (Cwlth), reg 4.01).

Note 4The Fair Work Act 2009 (Cwlth), s 539 (2), sets out who may apply for orders in relation to the contravention of a civil remedy provision.

Note 5The Magistrates Court may make orders in relation to a fair work claim for parties to pay a particular amount or a pecuniary penalty, may order interest up to judgement and may order costs in limited circumstances (see Fair Work Act 2009 (Cwlth), s 545 (3) and (3A), s 546 (1), s 547 and s 570).

266CObject of pt 4.2A

The object of this part is to provide for the timely, inexpensive and informal resolution of fair work claims in the Magistrates Court.

266DApplication of pt 4.2A

To remove any doubt, the following provisions do not apply to a fair work claim:

(a)part 4.3 (Case stated for Supreme Court);

(b) part 4.4 (Transfer of proceedings from or to Supreme Court);

(c)part 4.5 (Civil appeals).

NoteAn appeal lies to the Federal Court from the Magistrates Court (as an eligible State or Territory court)—see the Fair Work Act 2009 (Cwlth), s 565.

266EDefinitions—pt 4.2A

In this part:

civil remedy provision—see the Fair Work Act 2009 (Cwlth), section 539 (1).

eligible State or Territory court—see the Fair Work Act 2009 (Cwlth), section 12.

NoteThe Magistrates Court is an eligible State or Territory Court (see Fair Work Act 2009 (Cwlth), s 12).

fair work claim means—

(a)a fair work general claim; or

(b)a fair work small claim.

fair work general claim means a claim—  

(a)in relation to a civil remedy provision; and

(b)that may be heard by the Magistrates Court (as an eligible State or Territory court); and

(c)that is not a fair work small claim.

fair work small claim means a claim—

(a)in relation to a civil remedy provision; and

(b)that may be heard by the Magistrates Court (as an eligible State or Territory court); and

(c)that may be dealt with under the small claims procedure mentioned in the Fair Work Act 2009 (Cwlth), section 548.

official, of an industrial association—see the Fair Work Act 2009 (Cwlth), section 12.

266FFair work claim—compulsory mediation

(1)After a person has started a proceeding for a fair work claim in the Magistrates Court, and before the court hears the claim, the registrar must direct the parties to the claim to attend mediation at a stated time and place.

(2)The purpose of the mediation is to achieve a timely, cost-effective, proportionate and agreed resolution of the claim if possible.

(3)The registrar may dispense with the mediation on the joint application of the parties to the claim.

(4)The person who conducts the mediation may make a recommendation or express an opinion during the mediation to assist the parties to the proceeding achieve the purpose of the mediation.

(5)Failure to comply with subsection (1) does not affect the validity of any orders made by the court in relation to the claim.

266GFair work small claim—representation by official of industrial association

A party to a fair work small claim may be represented in the Magistrates Court by an official of an industrial association if the court grants the party leave.

266HFair work small claim that is fair work general claim

(1)This section applies to a proceeding started in the Magistrates Court  as a fair work small claim but which the court considers to be a fair work general claim.

(2)The court must continue the proceeding as a proceeding for a fair work general claim.

266ICombined fair work matter—procedure if removed from ACAT

(1)If the ACAT makes an order under section 82A of the ACT Civil and Administrative Tribunal Act 2008 to remove a combined fair work matter to the Magistrates Court, the ACAT must send the court any document or thing that was before the ACAT in relation to the matter (the matter material).

(2)A proceeding for a combined fair work matter is taken to have started in the court on the day the matter material is received by the court.

266JFair work claim—deciding or adjourning proceedings

(1)This section applies to a fair work claim started in the Magistrates Court if—

(a)a party to the claim does not attend mediation as directed by the registrar under section 266F; and

(b)the court is satisfied that the party has been made aware of the time and place for the mediation.

(2)The Magistrates Court may—

(a)decide the claim; or

(b)adjourn the proceedings for the claim.

  1. Jurisdiction of Industrial Court
    Section 291Q (2) (a) and (b)

    substitute

    (a)any criminal proceeding in relation to an industrial or work safety offence that is a summary offence against a person who is—

    (i)a corporation; or

    (ii)an individual, but only if the individual was an adult at the time of the alleged offence;

    (b)any criminal proceeding in relation to an industrial or work safety offence that is an indictable offence against a person who is—

    (i)a corporation; or

    (ii)an individual, but only if the individual was an adult at the time of the alleged offence;

  2. Section 291Q (5)

    substitute

    (5)The Industrial Court may exercise the jurisdiction of the Magistrates Court in relation to—

    (a)an industrial or work safety matter; and

    (b)a fair work claim; and

    (c)a combined fair work matter.

  3. Dictionary, new definitions

    insert

    civil remedy provision, for part 4.2A (Fair work claims)—see section 266E.

    combined fair work matter—see the ACT Civil and Administrative Tribunal Act 2008, see section 82A (2).

    eligible State or Territory court, for part 4.2A (Fair work claims)—see section 266E.

    fair work claim, for part 4.2A (Fair work claims)—see section 266E.

    fair work general claim, for part 4.2A (Fair work claims)—see section 266E.

    fair work small claim, for part 4.2A (Fair work claims)—see section 266E.

    official, of an industrial association, for part 4.2A (Fair work claims)—see section 266E.

Part 6Work Health and Safety Act 2011

  1. Reckless conduct—category 1
    New section 31 (3)

    insert

    (3)A category 1 offence is declared to be an indictable offence.

    NoteAn indictable offence is an offence punishable by imprisonment for longer than 2 years or an offence declared by an ACT law to be an indictable offence (see Legislation Act, s 190 (1)).

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 22 August 2019.

  2. Notification

    Notified under the Legislation Act on 9 October 2019.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Courts (Fair Work and Work Safety) Legislation Amendment Bill 2019, which was passed by the Legislative Assembly on 24 September 2019.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2019

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