Treasury Laws Amendment (Working Holiday Maker Reform) Act 2016 (89 of 2016)

Schedule 2   Registration of employers of working holiday makers

Taxation Administration Act 1953

4   At the end of Subdivision 16-BA in Schedule 1

Add:

Registration of employers of working holiday makers

16-146 Employers of working holiday makers must be registered

(1) An entity must apply to the Commissioner to register under section 16-147 if:

(a) the entity must pay an amount to the Commissioner under subsection 16-70(1) from salary, wages, commission, bonuses or allowances it pays to an individual as the individual's *working holiday taxable income; and

(b) in a case where a period has been determined under subsection 16-148(5) during which the entity cannot apply under this section - the period has ended.

(2) The entity must apply in the *approved form by the day on which the entity is first required to withhold an amount under Division 12 from salary, wages, commission, bonuses or allowances it pays to an individual as the individual's *working holiday taxable income.

(3) However, the Commissioner may allow a longer period for applying.

(4) An entity that contravenes this section is liable to an administrative penalty of 20 penalty units.

Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

Note 2: Division 298 contains machinery provisions for administrative and civil penalties.

(5) This section does not affect an obligation that an entity has under section 16-140.

16-147 Registering employers of working holiday makers

(1) The Commissioner must register an entity under this section if, and only if, the entity:

(a) has applied under section 16-146 for registration; and

(b) has made a declaration to the Commissioner, in the *approved form, that states that the entity:

(i) has a genuine business requirement to employ one or more *working holiday makers; and

(ii) agrees to comply with the Fair Work Act 2009 in relation to its employment of any individual who is a working holiday maker; and

(iii) agrees to check that any individual it employs as a working holiday maker holds a visa that causes that person to be a working holiday maker; and

(c) has given to the Commissioner, in the approved form, information relating to its employment, or proposed employment, of working holiday makers.

(2) Subparagraph (1)(b)(i) does not apply if the entity is not carrying on a *business.

(3) The registration takes effect on the day determined by the Commissioner.

Notification of the Commissioner's decision

(4) The Commissioner must notify the entity of:

(a) the Commissioner's decision on the application; and

(b) if the Commissioner decides to register the entity - the day on which the registration takes effect;

within 30 days after the making of the application.

Note: The decision on the application is reviewable (see section 20-80).

(5) If the Commissioner decides to register the entity, the *Australian Business Registrar must enter in the *Australian Business Register a statement that the entity is registered under this section. The statement must specify the day on which the registration takes effect.

(6) Entry of the statement in the *Australian Business Register under subsection (5) is taken to be a notification of the entity for the purposes of subsection (4).

(7) A failure to comply with subsection (4) or (5) does not affect the validity of the Commissioner's decision.

Basis of registration

(8) A registration under this section is granted on the basis that:

(a) the registration may be cancelled under section 16-148; and

(b) the registration may be cancelled, suspended, varied or made subject to conditions by or under later legislation; and

(c) no compensation is payable if the registration is cancelled, suspended, varied or made subject to conditions as mentioned in any of the above paragraphs.

16-148 Cancelling the registration of employers of working holiday makers

(1) The Commissioner may cancel an entity's registration under section 16-147 if:

(a) the entity advises the Commissioner, in the *approved form, that the entity does not employ, and does not intend to employ, any individual who is a *working holiday maker; or

(b) the Commissioner is satisfied that:

(i) the entity; or

(ii) if the entity is a partnership - any of the partners; or

(iii) if the entity is a company - any director, shareholder or employee of the company who participates in the management or control of the company; or

(iv) if the entity is a trustee of a trust - any appointer of trustees of the trust, or any person who participates in the control of the trust;

is not a fit and proper person.

(2) The cancellation takes effect on the day determined by the Commissioner. The day must not be earlier than the day on which notice of the cancellation is given under subsection (6).

(3) If the Commissioner is considering whether the entity, or another person mentioned in subparagraph (1)(b)(ii), (iii) or (iv), is a fit and proper person, the Commissioner must give the entity a notice that:

(a) informs the entity accordingly; and

(b) invites the entity to make submissions to the Commissioner on the matter within 28 days after the Commissioner gives the notice.

(4) Without limiting the matters to which the Commissioner may have regard in considering whether the entity, or another person mentioned in subparagraph (1)(b)(ii), (iii) or (iv), is a fit and proper person, the Commissioner must have regard to:

(a) whether a court has made a finding, in proceedings commenced by the Fair Work Ombudsman, that the entity has contravened the Fair Work Act 2009; and

(b) whether the entity has failed to withhold amounts as required by Division 12; and

(c) any relevant information the entity has provided in submissions to the Commissioner within the period specified in paragraph (3)(b).

(5) The Commissioner must, having regard to the reasons for the cancellation, determine a period, starting when the cancellation takes effect, during which the entity cannot apply under section 16-146 for registration.

Notification of the cancellation

(6) The Commissioner must notify the entity of:

(a) the cancellation; and

(b) the day on which the cancellation takes effect; and

(c) the period determined under subsection (5) for the cancellation.

Note: A decision to cancel, including a determination under subsection (5), is reviewable (see section 20-80).

(7) The *Australian Business Registrar must enter in the *Australian Business Register a statement that the entity's registration under section 16-147 has been cancelled. The statement must specify the day on which the cancellation takes effect.

(8) A failure to comply with subsection (6) or (7) does not affect the validity of the Commissioner's decision.