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Fair Work Bill 2009

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2008-2009

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Fair Work Bill 2008

 

 

(1)     Clause 12, page 14 (after line 2), after the definition of Deputy President , insert:

                   designated outworker term of a modern award, enterprise agreement, workplace determination or other instrument, means any of the following terms, so far as the term relates to outworkers in the textile, clothing or footwear industry:

                     (a)  a term that deals with the registration of an employer or outworker entity;

                     (b)  a term that deals with the making and retaining of, or access to, records about work to which outworker terms of a modern award apply;

                     (c)  a term imposing conditions under which an arrangement may be entered into by an employer or an outworker entity for the performance of work, where the work is of a kind that is often performed by outworkers;

                     (d)  a term relating to the liability of an employer or outworker entity for work undertaken by an outworker under such an arrangement, including a term which provides for the outworker to make a claim against an employer or outworker entity;

                     (e)  a term that requires minimum pay or other conditions, including the National Employment Standards, to be applied to an outworker who is not an employee;

                      (f)  any other terms prescribed by the regulations.

[designated outworker terms]

(2)     Clause 12, page 24 (lines 10 to 12), omit paragraph (e) of the definition of outworker entity , substitute:

                     (e)  a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as:

                              (i)  the person arranges for work to be performed for the person (either directly or indirectly); and

                             (ii)  the work is of a kind that is often performed by outworkers; and

                            (iii)  the work is, or is reasonably likely, to be performed in the Territory or in connection with the activity carried on in the Territory.

[outworkers]

(3)     Clause 27, page 46 (line 22), at the end of paragraph (2)(d), add “(within the ordinary meaning of the term)”.

[outworkers]

(4)     Clause 46, page 61 (lines 1 to 3), omit the note, substitute:

Note:          Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4-1 in relation to outworkers who are not employees.

[outworkers]

(5)     Page 69, after clause 57 (after line 14), insert:

57A   Designated outworker terms of a modern award continue to apply

             (1)  This section applies if, at a particular time:

                     (a)  an enterprise agreement applies to an employer; and

                     (b)  a modern award covers the employer (whether the modern award covers the employer in the employer’s capacity as an employer or an outworker entity); and

                     (c)  the modern award includes one or more designated outworker terms.

             (2)  Despite section 57, the designated outworker terms of the modern award apply at that time to the following:

                     (a)  the employer;

                     (b)  each employee who is both:

                              (i)  a person to whom the enterprise agreement applies; and

                             (ii)  a person who is covered by the modern award;

                     (c)  each employee organisation that is covered by the modern award.

             (3)  To avoid doubt:

                     (a)  designated outworker terms of a modern award can apply to an employer under subsection (2) even if none of the employees of the employer is an outworker; and

                     (b)  to the extent to which designated outworker terms of a modern award apply to an employer, an employee or an employee organisation because of subsection (2), the modern award applies to the employer, employee or organisation.

[designated outworker terms]

(6)     Clause 140, page 136 (lines 25 and 26), omit “is, or is reasonably likely to be,”, substitute “is of a kind that is often”.

[outworkers]

(7)     Clause 186, page 176 (after line 11), after subclause (4), insert:

Requirement that there be no designated outworker terms

          (4A)  FWA must be satisfied that the agreement does not include any designated outworker terms.

[designated outworker terms]

(8)     Clause 200, page 186 (line 22), after “employee”, insert “in any respect”.

[designated outworker terms]

(9)     Clause 253, page 229 (line 6), at the end of subclause (1), add:

               ; or (c)  it is a designated outworker term.

[designated outworker terms]

(10)   Clause 272, page 244 (line 18), at the end of subclause (3), add:

               ; or (c)  any designated outworker terms.

[designated outworker terms]

(11)   Clause 545, page 442 (after line 20), after subclause (3), insert:

          (3A)  An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:

                     (a)  the outworker entity was required to pay the amount under a modern award; and

                     (b)  the outworker entity has contravened a civil remedy provision by failing to pay the amount.

Note 1:       For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:       For limitations on orders in relation to costs, see section 570.

[outworkers]

(12)   Clause 547, page 443 (lines 25 and 26), omit “an employer was required to pay to, or on behalf of, an employee”, substitute “a person was required to pay to, or on behalf of, another person”.

[outworkers]

(13)   Clause 548, page 445 (lines 9 to 14), omit paragraph (1)(b), substitute:

                     (b)  the order relates to an amount referred to in subsection (1A); and

[outworkers]

(14)   Clause 548, page 445 (after line 17), after subclause (1), insert:

          (1A)  The amounts are as follows:

                     (a)  an amount that an employer was required to pay to, or on behalf of, an employee:

                              (i)  under this Act or a fair work instrument; or

                             (ii)  because of a safety net contractual entitlement; or

                            (iii)  because of an entitlement of the employee arising under subsection 542(1);

                     (b)  an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.

[outworkers]

(15)   Clause 679, page 516 (line 9), after “employers”, insert “, outworkers, outworker entities”.

[outworkers]

(16)   Clause 682, page 517 (line 13), after “employers”, insert “, outworkers, outworker entities”.

[outworkers]

(17)   Clause 682, page 517 (lines 23 to 26), after “employees” (wherever occurring), insert “or outworkers”.

[outworkers]