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Independent Contractors Bill 2006

Part 3 Unfair contracts

   

11   Application of Part

             (1)  This Part applies to a services contract, other than:

                     (a)  a services contract to the extent that the contract relates to the performance of work by the independent contractor for the private and domestic purposes of another party to the contract; or

                     (b)  without limiting paragraph (a), a services contract to which an independent contractor that is a body corporate is a party, unless the work to which the contract relates is wholly or mainly performed by:

                              (i)  a director of the body corporate; or

                             (ii)  a member of the family of a director of the body corporate.

             (2)  In this section:

director has the same meaning as in the Corporations Act 2001 .

12   Court may review services contract

             (1)  An application may be made to the Court to review a services contract on either or both of the following grounds:

                     (a)  the contract is unfair;

                     (b)  the contract is harsh.

Note:          A proceeding pending in the Federal Magistrates Court may be transferred to the Federal Court of Australia: see Part 5 of the Federal Magistrates Act 1999 .

             (2)  An application under subsection (1) may be made only by a party to the services contract.

13   Limitation on applications for review of services contracts—prescribed circumstances

                   An application to review a services contract must not be made under subsection 12(1) in the circumstances prescribed by the regulations.

14   Limitation on applications for review of services contracts—other proceedings in progress

             (1)  An application to review a services contract must not be made under subsection 12(1) if other review proceedings have been commenced in relation to the services contract, unless the other review proceedings:

                     (a)  have been discontinued by the person who commenced them; or

                     (b)  have failed for want of jurisdiction.

             (2)  A person must not commence other review proceedings in relation to a services contract if an application to review the contract has been made under subsection 12(1), unless:

                     (a)  the application has been discontinued by the person who made it; or

                     (b)  the proceedings in relation to the application have failed for want of jurisdiction.

             (3)  In this section:

other review proceedings means proceedings in relation to a services contract under a provision of a law of a State or Territory that makes provision as mentioned in paragraph 7(1)(c) and is not affected by the exclusion provisions.

Note:          Paragraph 7(1)(c) relates to laws that provide for contracts to be void etc. on an unfairness ground.

15   Powers of Court

             (1)  In reviewing a services contract in relation to which an application has been made under subsection 12(1), the Court may have regard to:

                     (a)  the relative strengths of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and

                     (b)  whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and

                     (c)  whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar work; and

                     (d)  any other matter that the Court thinks is relevant.

             (2)  If, in reviewing a services contract, the Court has regard to the matter referred to in paragraph (1)(c), the Court must also consider whether the terms of the contract and the total remuneration provided under the contract are commensurate with the terms of, and remuneration provided under, other services contracts relating to the performance of similar work in the particular industry.

             (3)  If the Court forms the opinion that a ground referred to in subsection 12(1) is established in relation to the whole or a part of the services contract, the Court must record its opinion, stating whether the opinion relates to the whole or a specified part of the contract.

             (4)  The Court may form the opinion that a ground referred to in subsection 12(1) is established in relation to the whole or a part of the services contract even if the ground was not canvassed in the application.

             (5)  The Court must exercise its powers under this section in a way that furthers the objects of this Act as far as practicable.

Note:          An alternative dispute resolution process (for example, mediation) may be used to deal with some or all of the matters in dispute in a proceeding under this Part: see Part 4 of the Federal Magistrates Act 1999 and section 53A of the Federal Court of Australia Act 1976 .

16   Orders that Court may make

             (1)  If the Court records an opinion under section 15 in relation to a services contract, the Court may make one or more of the following orders in relation to the opinion:

                     (a)  an order setting aside the whole or a part of the contract;

                     (b)  an order varying the contract.

             (2)  An order may only be made for the purpose of placing the parties to the services contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies.

             (3)  If an application under this Part is pending, the Court may make an interim order if it considers it is desirable to do so to preserve the position of a party to the services contract.

             (4)  An order takes effect on the date of the order or a later date specified in the order.

             (5)  A party to the services contract may apply to the Court to enforce an order by injunction or otherwise as the Court considers appropriate.

             (6)  Subject to section 14, this section does not limit any other rights of a party to the services contract.

Note 1:       The rights of a party to a services contract may be affected by the exclusion provisions.

Note 2:       An appeal may be brought to the Federal Court of Australia from a judgment of the Federal Magistrates Court: see section 24 of the Federal Court of Australia Act 1976 .

17   Costs only where proceeding instituted vexatiously

             (1)  A party (the first party ) to a proceeding (including an appeal) in a matter arising under this Part must not be ordered to pay costs incurred by any other party to the proceeding unless the first party instituted the proceeding vexatiously or without reasonable cause.

             (2)  Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Part is satisfied that a party (the first party ) to the proceeding has, by unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first party to pay some or all of those costs.

             (3)  In this section:

costs includes all legal and professional costs and disbursements, and expenses of witnesses.