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Independent Contractors Bill 2006

Part 4 Contract outworkers in the textile, clothing and footwear industry

Division 1 Preliminary

18   Object of Part

                   The object of this Part is to ensure that an individual who is an outworker in the textile, clothing or footwear industry (other than an employee in that industry) is paid not less than:

                     (a)  the amount he or she would have been entitled to be paid, because of the Australian Fair Pay and Conditions Standard, if he or she had been an employee; or

                     (b)  the minimum rate of pay (if any) to which he or she is entitled under a law of a State or Territory.

19   Definitions

                   In this Part:

Australian Fair Pay and Conditions Standard has the same meaning as in the Workplace Relations Act 1996 .

breach has the same meaning as in the Workplace Relations Act 1996 .

contract outworker means an individual who:

                     (a)  is a party to a services contract; and

                     (b)  performs work under it for another party or parties to the contract.

eligible court means:

                     (a)  the Court; or

                     (b)  a District, County or Local Court; or

                     (c)  a magistrates court.

judgment has the same meaning as in the Workplace Relations Act 1996.

legal practitioner has the same meaning as in the Workplace Relations Act 1996 .

occupier has the same meaning as in the Workplace Relations Act 1996 .

premises has the same meaning as in the Workplace Relations Act 1996 .

TCF outwork means work:

                     (a)  that comprises packing, processing or otherwise working on articles or materials for the textile, clothing or footwear industry; and

                     (b)  is performed in or about:

                              (i)  private residential premises; or

                             (ii)  premises that are not business or commercial premises of anyone who is obliged under the contract to pay for the work performed.



 

Division 2 Protection of contract outworkers in the textile, clothing and footwear industry

20   Minimum rate of pay

             (1)  To the extent that work performed under and in accordance with a services contract to which a contract outworker is a party is work that:

                     (a)  is performed by:

                              (i)  the contract outworker; or

                             (ii)  one or more other individuals who are not parties to the contract; and

                     (b)  is TCF outwork;

a person who is obliged under the contract to pay for the work performed must pay the contract outworker and each other individual not less than the statutory amount calculated under subsection (3) for his or her work.

             (2)  The obligation imposed by subsection (1) on a person to pay not less than the statutory amount for work performed under a services contract does not apply to that person to the extent that the obligation relates to work performed under another services contract.

Example:    A person (the head contractor ) enters into a services contract with a contract outworker (the first contract outworker ) under which the first contract outworker is to provide shirts. If the first contract outworker enters into a services contract with another individual (the second contract outworker ) to perform the work of sewing the shirts, while the first contract outworker performs the work of packing the shirts, the statutory minimum in respect of the sewing would be owed by the first contract outworker to the second contract outworker (but not by the head contractor to either the first or second contract outworker). The statutory minimum in respect of the packing would be owed by the head contractor to the first contract outworker.

             (3)  The statutory amount owed to the contract outworker and to each other individual is the amount that he or she would have been entitled to be paid because of Division 2 of Part 7 of the Workplace Relations Act 1996 for the work mentioned in subsection (1) if he or she had performed the work as an employee.

Note:          Division 2 of Part 7 of the Workplace Relations Act 1996 sets out the provisions of the Australian Fair Pay and Conditions Standard relating to wages.

             (4)  A person may discharge an obligation under subsection (1) to pay an amount to an individual other than a contract outworker by paying the amount to the contract outworker for the benefit of the individual.

21   State or Territory minimum rates of pay

             (1)  Subsection 20(1) does not oblige a person to pay an amount to a contract outworker or other individual in respect of work performed under and in accordance with a services contract if:

                     (a)  a minimum rate of pay in respect of the work is determined by or under a law of a State or Territory; and

                     (b)  the contract outworker or individual is entitled to be paid the minimum rate of pay.

             (2)  To avoid doubt, subsection (1) has effect even if the minimum rate referred to in that subsection is less than the statutory amount that would otherwise be owed to the contract outworker under subsection 20(3) in respect of that work.



 

Division 3 Enforcement and compliance

Subdivision A Workplace inspectors

22   Powers of workplace inspectors

Purpose for which powers of workplace inspectors can be exercised

             (1)  The powers of a workplace inspector under this section may be exercised for the purpose of ascertaining whether section 20 is being, or has been, observed.

Powers of workplace inspectors

             (2)  The powers of a workplace inspector are:

                     (a)  to, without force, enter:

                              (i)  premises on which the workplace inspector has reasonable cause to believe that work to which section 20 applies is being, or has been, performed; or

                             (ii)  a place of business in which the workplace inspector has reasonable cause to believe that there are documents relevant to the purpose set out in subsection (1); and

                     (b)  on premises or in a place referred to in paragraph (a):

                              (i)  to inspect any work, material, machinery, appliance, article or facility; and

                             (ii)  as prescribed, to take samples of any goods or substances; and

                            (iii)  to interview any person; and

                            (iv)  to require a person having the custody of, or access to, a document relevant to that purpose to produce the document to the workplace inspector within a specified period; and

                             (v)  to inspect, and make copies of or take extracts from, a document produced to the workplace inspector; and

                            (vi)  to require a person to tell the workplace inspector who has custody of a document; and

                     (c)  to require a person, by notice, to produce to the workplace inspector a document relevant to the purpose set out in subsection (1).

Note:          Contravening a requirement under this section to produce a document may be an offence under section 819 of the Workplace Relations Act 1996 .

When may the powers be exercised?

             (3)  A workplace inspector may exercise the powers in subsection (2) at any time during ordinary working hours or at any other time at which it is necessary to do so for the purpose set out in subsection (1).

Production of documents

             (4)  If a person who is required under subparagraph (2)(b)(iv) to produce a document contravenes the requirement, a workplace inspector may, by written notice served on the person, require the person to produce the document at a specified place within a specified period of not less than 14 days.

Note:          Contravening a requirement under this section to produce a document may be an offence under section 819 of the Workplace Relations Act 1996 .

             (5)  Where a document is produced to a workplace inspector under paragraph (2)(c) or subsection (4), the workplace inspector may:

                     (a)  inspect, and make copies of or take extracts from, the document; and

                     (b)  retain the document for such period as is necessary for the purpose of exercising powers or performing functions as a workplace inspector.

             (6)  During the period for which a workplace inspector retains a document, the workplace inspector must permit the person otherwise entitled to possession of the document, or a person authorised by the person, to inspect, and make copies of or take extracts from, the document at all reasonable times.

Notices under paragraph (2)(c)

             (7)  The notice referred to in paragraph (2)(c) must:

                     (a)  be in writing; and

                     (b)  be served on the person; and

                     (c)  require the person to produce the document at a specified place within a specified period of not less than 14 days.

Service may be effected by sending the notice to the person’s fax number.

Person must produce document even if it may incriminate him or her

             (8)  A person is not excused from producing a document under paragraph (2)(c) on the ground that the production of the document may tend to incriminate the person.

Limited use immunity for documents produced

             (9)  If an individual produces a document under this section, the document produced and any information or thing (including any document) obtained as a direct or indirect consequence of the production of the document is not admissible in evidence against the individual in any criminal proceedings, other than proceedings for an offence against section 819 of the Workplace Relations Act 1996 .

           (10)  If a workplace inspector proposing to enter, or being on, premises is required by the occupier to produce evidence of authority, the workplace inspector is not entitled to enter or remain on the premises without producing to the occupier the workplace inspector’s identity card.

Subdivision B Penalties

23   Imposition and recovery of penalties

             (1)  If a person breaches subsection 20(1), a penalty may be imposed by an eligible court.

             (2)  If:

                     (a)  2 or more breaches of subsection 20(1) are committed by the same person; and

                     (b)  the breaches arose out of a course of conduct by the person; and

                     (c)  a court has not imposed a penalty on the person in respect of any of the breaches;

the breaches are taken for the purposes of this section to constitute a single breach of that subsection.

             (3)  The maximum penalty that may be imposed under subsection (1) for a breach of subsection 20(1) is:

                     (a)  300 penalty units for a body corporate; or

                     (b)  60 penalty units in other cases.

             (4)  An application to an eligible court for the imposition of a penalty under subsection (1) may be made by:

                     (a)  a workplace inspector; or

                     (b)  an individual to whom the obligation concerned is owed.

             (5)  If, in a proceeding against a person under this section, it appears to the court that an individual has not been paid an amount that the person was required to pay, the court may order the person to pay to the individual the amount of the underpayment.

             (6)  An order must not be made under subsection (5) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.

             (7)  A proceeding under this section in relation to a breach of subsection 20(1) must be commenced not later than 6 years after the commission of the breach.

             (8)  A penalty imposed under subsection (1) is payable to the Commonwealth, or to some other person if the eligible court so directs.

24   Recovery of amounts of pay

             (1)  If a person is required by subsection 20(1) to pay an amount to an individual, the amount of the payment may be sued for in an eligible court by:

                     (a)  a workplace inspector; or

                     (b)  an individual to whom the payment is required to be paid.

             (2)  A proceeding under this section in relation to a requirement under subsection 20(1) to pay an amount to an individual must be commenced not later than 6 years after the person was required to make the payment to the individual.

25   Interest up to judgment

             (1)  In exercising its powers under section 23 or in a proceeding under section 24, an eligible court must, on application:

                     (a)  order that there be included in the sum for which an order is made or judgment given, interest at such rate as the eligible court thinks fit on all or any part of the money for all or any part of the period between the date when the cause of action arose and the date on which the order is made or judgment entered; or

                     (b)  without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which an order is made or judgment given a lump sum instead of any such interest.

             (2)  Subsection (1) does not:

                     (a)  authorise the giving of interest on interest or of a sum instead of such interest; or

                     (b)  apply in relation to any debt on which interest is payable as of right, whether by virtue of an agreement or otherwise; or

                     (c)  authorise the giving of interest, or a sum instead of interest, except by consent, on any sum for which judgment is given by consent.

             (3)  Subsection (1) does not apply if good cause is shown to the contrary.

26   Interest on judgment

                   A debt under a judgment or order of an eligible court made under section 23 or 24 carries interest from the date on which the judgment is entered or order made at such rate as would apply under section 52 of the Federal Court of Australia Act 1976 if the debt were a judgment debt to which that section applies.

27   Plaintiffs may choose small claims procedure in magistrates courts

             (1)  An action started by a person under section 24 in a magistrates court is to be dealt with in accordance with this section if the person indicates, in a manner mentioned in subsection (5) or by rules of court relating to that court, that he or she wants a small claims procedure to apply.

             (2)  The procedure is governed by the following conditions:

                     (a)  the court may not award an amount exceeding $10,000;

                     (b)  the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;

                     (c)  at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;

                     (d)  a person is not entitled to be represented by a legal practitioner unless the court permits;

                     (e)  if the court permits a party to be represented by a legal practitioner, the court may, if it thinks fit, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

             (3)  If the case is heard in a court of a Territory, the regulations may (despite paragraphs (2)(d) and (e)) prohibit or restrict legal representation of the parties.

             (4)  Despite paragraphs (2)(d) and (e), if:

                     (a)  the case is heard in a court of a State; and

                     (b)  in a particular proceeding in that court (whatever the nature of the proceeding), the law of the State prohibits or restricts legal representation of the parties;

regulations made under this Act may prohibit or restrict legal representation of the parties to the same extent as that law.

             (5)  For the purposes of subsection (1), the manner in which a person indicates that he or she wants a small claims procedure to apply to an action that the person starts in a magistrates court is:

                     (a)  by:

                              (i)  endorsing the papers initiating the action with a statement that the person wants a small claims procedure to apply to the action; or

                             (ii)  lodging with the court a paper that identifies the action and states that the person wants a small claims procedure to apply to the action; and

                     (b)  by serving a copy of the papers initiating the action, together with a copy of the paper (if any) mentioned in subparagraph (a)(ii), on every other party to the action.

             (6)  Subsection (5) does not apply to an action that a person starts in a magistrates court if rules of court relating to that court prescribe the manner in which the person indicates that he or she wants a small claims procedure to apply to the action.

28   Enforcement of penalties etc.

             (1)  If an eligible court has:

                     (a)  imposed a pecuniary penalty under this Part; or

                     (b)  ordered the payment of an amount under subsection 23(5) or as a result of the operation of section 24; or

                     (c)  ordered the payment of costs or expenses;

a certificate signed by a registrar, specifying the amount payable and by whom and to whom respectively it is payable, may be filed in an eligible court.

             (2)  A certificate filed in a court under subsection (1) is enforceable in all respects as a final judgment of the court in which it is filed.

             (3)  If there are 2 or more creditors under a certificate, process may be issued separately by each creditor for the enforcement of the certificate as if there were separate judgments.

29   General provisions

             (1)  Division 3 of Part 14 of the Workplace Relations Act 1996 has effect as if a breach of subsection 20(1) were a contravention of a civil remedy provision within the meaning of that Division.

             (2)  This section is subject to section 27.



 

Division 4 Record-keeping

30   Records relating to services contracts with contract outworkers

             (1)  The regulations may make provision in relation to:

                     (a)  the making of outworker records by a person who is a party to a services contract and who is subject to an obligation under subsection 20(1); and

                     (b)  the making of outworker records by a contract outworker who is a party to a services contract and to whom an obligation is owed under subsection 20(1) in relation to the contract; and

                     (c)  the inspection of records mentioned in paragraphs (a) and (b); and

                     (d)  the giving of records mentioned in paragraphs (a) and (b) (or a copy of them) by a party to the contract concerned to one or more other parties to the contract; and

                     (e)  the retention of outworker records by parties to the contract concerned; and

                      (f)  civil penalties for contraventions of the regulations, not exceeding:

                              (i)  5 penalty units for an individual; or

                             (ii)  25 penalty units for a body corporate.

             (2)  In subsection (1):

outworker records , in relation to a services contract, means records relating to the contract to the extent that work to be performed under the contract is TCF outwork.