VersionNo. 001
Back to Work Act 2015
No. 3 of 2015
Version incorporating amendments as at
1 July 2015
TABLE OF PROVISIONS
SectionPage
1
SectionPage
Part 1—Preliminary
1Purpose
2Commencement
3Definitions
Part 2—Back to Work Scheme
4Establishment of Back to Work Scheme
5Eligibility criteria for payments under the Back to Work Scheme
Part 3—Claiming Back to Work payments
Division 1—Making a claim
6Making a claim
Division 2—Decision on claims
7Commissioner to decide claims
8Payment of claim
9Power to correct decision
10Notification of decision
Division 3—Objections and reviews
11Objections
12Determination of objection
13Suspension of determination
14Review
15Request for further and better particulars
16Grounds of review
17Burden of proof on review
18VCAT powers on review
19Giving effect to decision on review
Part 4—Back to Work records
20Requirement to keep proper records
21Additional records
22Inclusion of false or misleading information in records
23Accessibility
24Form of record—English language
25Period of retention
26Wilfully destroying records
Part 5—Administration and enforcement
Division 1—Administration
27Administration
28Authorised officers
Division 2—Investigations
29Authorised investigations
30Power of investigation
31Powers of entry and inspection
32Search warrant
33Announcement before entry
34Copy of warrant to be given to occupier
35Protection against self-incrimination
36Obstruction of authorised officer
Division 3—Repayments and penalties
37Power to require repayment and impose penalty
38Power to recover amount paid in error etc.
39Recovery of amounts from third parties
40Indemnification of third party
Division 4—Confidentiality
41Definition
42Prohibition on certain disclosures of information by authorised persons
43Permitted disclosures to particular persons
44Permitted disclosures of a general nature
45Permitted disclosure that may identify a particular person
46Prohibition on secondary disclosure of information
47Further restrictions on disclosure
Part 6—Miscellaneous
Division 1—Further offences and ancillary provisions for offences
48False and misleading information in connection with claims
49Criminal liability of officers of bodies corporate—accessorial liability
50Criminal liability of officers of bodies corporate—failure to exercise due diligence
51Time for commencing prosecution
Division 2—Miscellaneous
52Evidence
53Appropriation of Consolidated Fund
54Back to Work Scheme reports
55Regulations
Part 7—Amendment of Taxation Administration Act 1997
56Offset of refund against other liability
57Permitted disclosures to particular persons
58Repeal of Part
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Endnotes
1General information
2Table of Amendments
3Amendments Not in Operation
4Explanatory details
1
VersionNo. 001
Back to Work Act 2015
No. 3 of 2015
Version incorporating amendments as at
1 July 2015
1
Part 1—Preliminary
Back to Work Act 2015
No. 3 of 2015
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The purpose of this Act is to establish a Back to Work Scheme for the purpose of providing relief to employers in respect of the costs associated with hiring certain unemployed or retrenched workers.
2Commencement
This Act comes into operation on 1 July 2015.
3Definitions
In this Act—
authorised investigation—see section 29;
authorised officer means the Commissioner or a person referred to in section 28(2);
Back to Work payment means a payment under the Back to Work Scheme;
Back to Work record means a record required to be kept by a claimant by or under section20 or 21;
Back to Work Scheme means the scheme established under section 4;
claim means a claim for a Back to Work payment;
claimant means a person who makes or has made a claim;
Commissioner means Commissioner of State Revenue under the Taxation Administration Act 1997;
eligibility criteria means the criteria determined under section 5;
eligible employee means an employee who is determined, or is in a class determined, in accordance with the eligibility criteria to be an eligible employee;
function includes a power, an authority and a duty;
perform a function includes exercise a power;
taxation law has the same meaning as in the Taxation Administration Act 1997.
Part 2—Back to Work Scheme
4Establishment of Back to Work Scheme
There is established by this Act a scheme for payments to employers for the purpose of providing relief in respect of the costs associated with hiring certain unemployed or retrenched workers.
5Eligibility criteria for payments under the Back to Work Scheme
(1)The Minister is to determine the criteria governing the eligibility for payments under the Back to Work Scheme.
(2)The Minister must cause notice of the eligibility criteria to be published in the Government Gazette.
(3)A notice under subsection (2) is not a legislative instrument within the meaning of the Subordinate Legislation Act 1994.
(4)The eligibility criteria may impose a cap on the amount of any Back to Work payment and a cap on the number of payments that may be made during any specified period.
Part 3—Claiming Back to Work payments
Division 1—Making a claim
6Making a claim
(1)A person may make a claim to the Commissioner for a Back to Work payment in relation to an eligible employee of the person.
(2)A claim—
(a)must be in the form approved by the Commissioner; and
(b)must contain the information required by the Commissioner about the claimant's eligibility for the payment; and
(c)must be made within the time (if any) provided for in the eligibility criteria; and
(d)must comply with any other requirements of the eligibility criteria.
Division 2—Decision on claims
7Commissioner to decide claims
(1)The Commissioner must decide whether a claimant meets the eligibility criteria for a Back to Work payment and, if so, must determine the amount of the payment.
(2)The amount of the payment is to be determined in accordance with the eligibility criteria.
(3)If the Commissioner decides that a claimant meets the eligibility criteria for a Back to Work payment, the Commissioner may authorise the payment.
8Payment of claim
(1)A Back to Work payment is to be paid by electronic funds transfer or in any other way the Commissioner thinks appropriate.
(2)A Back to Work payment is to be paid—
(a)to the claimant; or
(b)to another person nominated in writing by the claimant.
(3)If the claimant requests, the Commissioner may apply the amount of a Back to Work payment, or part of the amount, towards any liability of the claimant under a taxation law or another law under the general administration of the Commissioner.
9Power to correct decision
(1)If the Commissioner decides a claim and is later satisfied (independently of an objection under this Act) that the decision is incorrect, the Commissioner may vary or reverse the decision.
(2)A decision cannot be varied or reversed under this section more than 5 years after it was made unless,at the time the decision was made, all the facts and circumstances affecting the eligibility of the claimant for a Back to Work payment were not fully and truly disclosed to the Commissioner.
10Notification of decision
(1)When the Commissioner decides a claim (ordecides to vary or reverse an earlier decision on a claim) the Commissioner must give the claimant notice of the decision.
(2)If the decision is to refuse a claim, or to vary or reverse an earlier decision on a claim, the Commissioner must state in the notice the reasons for the decision.
Division 3—Objections and reviews
11Objections
(1)A claimant who is dissatisfied with any of the following decisions of the Commissioner may lodge a written objection with the Commissioner—
(a)a decision on the claim (including a decision to reverse or vary an earlier decision);
(b)a decision to require the claimant to pay a penalty imposed under section 37.
(2)The grounds for the objection must be stated fully and in detail, and must be in writing.
(3)On an objection, the objector has the burden of proving the objector's case.
(4)The objection must be lodged with the Commissioner within 60 days after the date of the notice of decision.
(5)If the Commissioner is satisfied that the claimant has a reasonable excuse for failing to lodge the objection within the 60-day period, the Commissioner may extend the time for lodging the objection.
(6)An objection is taken to have been lodged with the Commissioner when it is received by the Commissioner.
12Determination of objection
(1)The Commissioner must consider an objection and either allow the objection in whole or in part or disallow the objection.
(2)The Commissioner may determine an objection that is subject to a right of review at any time before the hearing of the review proceedings commences.
(3)The Commissioner must give notice in writing to the objector of the determination of the objection.
(4)The Commissioner must, in the notice, give the reasons for disallowing an objection or for allowing an objection in part only.
13Suspension of determination
(1)The Commissioner may suspend the determination of an objection for any period during which the objector, or another person having information relevant to the objection, fails to provide information relevant to the objection that the Commissioner has requested under this Act.
(2)The Commissioner must give the objector written notice of the suspension and the suspension takes effect on service of the notice.
14Review
(1)If—
(a)an objector is dissatisfied with the Commissioner's determination of the objection; or
(b)90 days (not including any period of suspension under section 13) have passed since the objection was received by the Commissioner and the Commissioner has not determined the objection—
the objector, in writing, may request the Commissioner to refer the matter to VCAT.
(2)The objector's request—
(a)in the circumstances referred to in subsection(1)(a), must be made within 60days after the date of service on the objector of the notice of the Commissioner's determination of the objection; or
(b)in the circumstances referred to in subsection(1)(b), may be made at any time after the 90day period (not including any period of suspension under section 13).
(3)Subject to section 15, within 60 days after the request the Commissioner must refer the matter to VCAT for review.
15Request for further and better particulars
(1)Within 30 days after receiving a request to refer a matter for review, the Commissioner may require the objector to give further and better particulars of the objection.
(2)If, within 30 days after giving the notice—
(a)particulars are given, the Commissioner is not bound to refer the matter for review until 30 days after the Commissioner has received full details of the objection; or
(b)particulars are not given, the Commissioner must not refer the matter for review.
16Grounds of review
On a review—
(a)the objector's case is limited to the grounds of the objection; and
(b)the Commissioner's case is limited to the grounds on which the objection was disallowed—
unless VCAT otherwise orders.
17Burden of proof on review
On a review, the objector has the burden of proving the objector's case.
18VCAT powers on review
(1)VCAT must review a matter referred to it and, subject to subsection (2), may confirm or vary the decision on the claim for a Back to Work payment.
(2)If the objector does not appear before VCAT, VCAT must confirm the decision. However, if good cause is shown within 6 weeks after the day on which the decision is confirmed, VCAT may re-open and review the matter.
19Giving effect to decision on review
(1)Within 60 days after the decision on review becomes final, the Commissioner must take any action that is necessary to give effect to it.
(2)If no appeal to a court from a decision of VCAT on a review is instituted within 30 days after the day on which the decision is made, the decision is to be taken, for the purposes of this section, to have become final at the end of that period.
Part 4—Back to Work records
20Requirement to keep proper records
A claimant must keep, or cause to be kept, all records that are necessary to enable the claimant's eligibility for a Back to Work payment to be properly assessed.
Penalty:In the case of an individual, 10 penalty units;
In the case of a body corporate, 50penalty units.
Note
Section 50 applies to an offence against this section.
21Additional records
(1)The Commissioner, by written notice given to a claimant, may require the claimant to keep, or cause to be kept, additional records specified in the notice.
(2)A person must comply with a notice under subsection (1).
Penalty:In the case of an individual, 10 penalty units;
In the case of a body corporate, 50penalty units.
Note
Section 50 applies to an offence against subsection (2).
22Inclusion of false or misleading information in records
A claimant must not include in a Back to Work record any matter that is, to the claimant's knowledge, false or misleading in a material particular.
Penalty:In the case of an individual, 10 penalty units;
In the case of a body corporate, 50penalty units.
Note
Section 50 applies to an offence against this section.
23Accessibility
A claimant must keep a Back to Work record so that it is able to be readily produced to the Commissioner if the Commissioner requires its production.
Penalty:In the case of an individual, 10 penalty units;
In the case of a body corporate, 50penalty units.
Note
Section 50 applies to an offence against this section.
24Form of record—English language
(1)A claimant must keep a Back to Work record in English or in a form that can be readily converted or translated into English.
Penalty:In the case of an individual, 10 penalty units;
In the case of a body corporate, 50penalty units.
Note
Section 49 applies to an offence against this subsection.
(2)The Commissioner may recover from a claimant the costs reasonably incurred by the Commissioner in converting or translating a Back to Work record into English—
(a)in the Magistrates' Court irrespective of the amount; or
(b)in any other court of competent jurisdiction.
25Period of retention
(1)A claimant must keep a Back to Work record for not less than 5years after the date it was made.
Penalty:In the case of an individual, 10 penalty units;
In the case of a body corporate, 50penalty units.
Note
Section 50 applies to an offence against this subsection.
(2)Subsection (1) does not apply to a claimant if the Commissioner authorises them in writing to destroy the record before the end of the 5-year period.
26Wilfully destroying records
A person must not wilfully damage or destroy a Back to Work record.
Penalty:In the case of an individual, 10 penalty units;
In the case of a body corporate, 50penalty units.
Note
Section 50 applies to an offence against this section.
Part 5—Administration and enforcement
Division 1—Administration
27Administration
The Commissioner has the general administration of this Act and the regulations.
Note
See section 69 of the Taxation Administration Act 1997 for the Commissioner's powers of delegation.
28Authorised officers
(1)The Commissioner is an authorised officer for the purposes of this Act.
(2)Persons who are appointed as authorised officers under the Taxation Administration Act 1997 are authorised officers for the purposes of this Act.
Division 2—Investigations
29Authorised investigations
An authorised investigation is an investigation to determine—
(a)whether a claim has been properly made; or
(b)whether an objection to a decision made under this Act should be allowed in whole or in part or disallowed; or
(c)whether a claimant to whom, or for whose benefit, a Back to Work payment has been made was eligible for the payment; or
(d)any other matter reasonably related to the administration or enforcement of this Act.
30Power of investigation
(1)For the purposes of an authorised investigation, the Commissioner may, by written notice, require a person—
(a)to give the Commissioner written information specified in the notice; or
(b)to attend at a specified time and place before the Commissioner or an authorised officer to answer questions relevant to the investigation; or
(c)to produce a document to the Commissioner at a specified time and place.
(2)The Commissioner may require information or evidence that is not given orally to be provided in the form of, or verified by, a statutory declaration.
(3)The Commissioner may require evidence that is given orally to be given on oath and for that purpose the Commissioner or an authorised officer may administer an oath.
(4)The person to whom the notice is given must comply with the notice within the period specified in the notice or any extended period allowed by the Commissioner.
Penalty:In the case of an individual, 60 penalty units;
In the case of a body corporate, 300penalty units.
Note
Section 50 applies to an offence against subsection (4).
31Powers of entry and inspection
(1)An authorised officer may, for the purposes of an authorised investigation, exercise any of the following powers—
(a)inspect premises and any thing found at the premises;
(b)require a person to produce a document relevant to the investigation for inspection and (if necessary) to operate a computer or other device in which information is stored to produce a document in understandable form;
(c)retain a document for inspection, to make a copy of it, or to take extracts from it;
(d)require a person to answer questions relevant to the investigation;
(e)require a person to give the authorised officer other assistance that may be reasonable in the circumstances to carry out the authorised investigation.
(2)An authorised officer may enter premises for the purposes of an authorised investigation—
(a)with the consent of the occupier; or
(b)on the authority of a warrant issued under section 32.
(3)An occupier who consents in writing to entry and inspection of premises under this section must be given a copy of the signed consent immediately.
(4)An authorised officer may not exercise any powers under this section if the authorised officer fails to produce, on request, the authorised officer's identity card issued under the Taxation Administration Act 1997 for inspection by the occupier of the premises.
(5)An authorised officer may be accompanied by any assistants the authorised officer reasonably requires to carry out an authorised investigation.
32Search warrant
(1)An authorised officer may apply to a magistrate for the issue of a search warrant in relation to particular premises if the authorised officer believes on reasonable grounds that there is, or may be within the next 72 hours, on the premises a particular thing that may be relevant to the administration or execution of this Act.
(2)If a magistrate is satisfied by the evidence on oath, whether oral or by affidavit, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, on the premises a particular thing that may be relevant to the administration or execution of this Act, the magistrate may issue a search warrant authorising an authorised officer named in the warrant and any assistants the authorised officer considers necessary—
(a)to enter the premises, or the part of premises, named or described in the warrant; and
(b)to search for and seize, or secure against interference, a thing named or described in the warrant; and
(c)if reasonably necessary for the purposes referred to in paragraph (b), to break open any receptacle in or on the premises.
(3)In addition to any other requirement, a search warrant issued under this section must state—
(a)the premises to be searched; and
(b)a description of the thing for which the search is to be made; and
(c)any conditions to which the warrant is subject; and
(d)whether entry is authorised to be made at any time or during stated hours; and
(e)a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.
(4)A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act.
(5)The rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.