Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Independent Contractors Bill 2006

Part 5 Transitional provisions

Division 1 State and Territory laws other than unfair contracts laws

31   Definitions

                   In this Division:

continuation contract , in relation to a services contract, has the meaning given by section 32.

contract period means the period in relation to which a contract has effect.

covers : a reform opt-in agreement covers a services contract as described in subsection 33(3).

date of effect , in relation to a reform opt-in agreement, has the meaning given by subsection 33(2).

pre-reform commencement contract means a services contract that was entered into before the reform commencement.

reform commencement means the commencement of Part 2.

reform opt-in agreement has the meaning given by subsection 33(1).

related continuation contract has the meaning given by subsection 32(3).

State or Territory contractor laws means the laws of the States and Territories, as in force from time to time after the reform commencement, to the extent that they would, apart from this Division, be affected by the exclusion provisions, but not including laws to the extent that they make provision as mentioned in paragraph 7(1)(c).

Note:          Paragraph 7(1)(c) relates to laws that provide for services contracts to be void etc. on an unfairness ground. Transitional provisions relating to the effect of Part 2 on such laws are contained in Division 2 of this Part.

32   Continuation contracts and related continuation contracts

Continuation contracts

             (1)  A services contract (the later contract ) is a continuation contract in relation to a pre-reform commencement contract if:

                     (a)  the parties to the later contract are the same as the parties to the pre-reform commencement contract; and

                     (b)  one or more of the following subparagraphs is satisfied in relation to the later contract:

                              (i)  the later contract is entered into pursuant to an option or similar right contained in the pre-reform commencement contract, or contained in another contract that is a continuation contract in relation to the pre-reform commencement contract;

                             (ii)  the contract period of the later contract immediately follows the contract period of the pre-reform commencement contract;

                            (iii)  the contract period of the later contract immediately follows the contract period of another contract that is a continuation contract in relation to the pre-reform commencement contract; and

                     (c)  the later contract relates to the performance of the same kind of work as the pre-reform commencement contract.

Note 1:       See also subsection 35(7), under which a contract may be taken to be a continuation contract.

Note 2:       For how this section applies in a transfer of business situation, see section 36.

             (2)  For the purposes of subparagraphs (1)(b)(ii) and (iii), the contract period of a services contract is taken to immediately follow the contract period of another services contract even if those periods are interrupted by an interval, but only if that interval:

                     (a)  is consistent with a regular pattern of contracting between the parties to the contracts; or

                     (b)  is covered by regulations made for the purposes of this paragraph.

Related continuation contracts

             (3)  A services contract is a related continuation contract in relation to another services contract if:

                     (a)  the following subparagraphs are satisfied:

                              (i)  the other services contract is a pre-reform commencement contract;

                             (ii)  the first-mentioned services contract is a continuation contract in relation to the other contract; or

                     (b)  the 2 services contracts are continuation contracts in relation to the same pre-reform commencement contract.

33   Reform opt-in agreement

             (1)  A reform opt-in agreement is an agreement in writing, signed by the parties to the agreement, to one or more of the following effects:

                     (a)  that the parties no longer want the State or Territory contractor laws to apply to a specified services contract, or to any related continuation contracts in relation to the specified contract, that the parties have entered into or may enter into;

                     (b)  that the parties no longer want the State or Territory contractor laws to apply to any services contracts of a specified class, or to any related continuation contracts in relation to any contracts in the specified class, that the parties have entered into or may enter into;

                     (c)  that the parties no longer want the State or Territory contractor laws to apply to any services contracts that they have entered into or may enter into.

Note:          The agreement must relate to the whole body of the State or Territory contractor laws (rather than just to some of those laws).

             (2)  A reform opt-in agreement’s date of effect is:

                     (a)  the date on which the agreement is entered into; or

                     (b)  if a later date is specified in the agreement as its date of effect—that later date.

             (3)  A reform opt-in agreement covers a services contract if the agreement is to the effect that the parties to the agreement no longer want the State or Territory contractor laws to apply to the contract (whether the parties’ intent is expressed as mentioned in paragraph (1)(a), (b) or (c)).

             (4)  A purported revocation or variation of a reform opt-in agreement is of no effect for the purposes of this Division.

34   Prohibited conduct in relation to reform opt-in agreements

             (1)  A person must not:

                     (a)  take or threaten to take any action; or

                     (b)  refrain, or threaten to refrain, from taking any action;

with intent to coerce another person (the targeted person ) to enter into, or to not enter into, a reform opt-in agreement.

             (2)  A person must not knowingly make a false statement with intent to persuade or influence another person (the targeted person ) to enter into, or to not enter into, a reform opt-in agreement.

             (3)  If a person breaches subsection (1) or (2), a penalty may be imposed by the Court.

             (4)  The maximum penalty that may be imposed under subsection (3) for a breach of subsection (1) or (2) is:

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

                     (b)  60 penalty units in other cases.

             (5)  An application to the Court for the imposition of a penalty under subsection (3) may be made by:

                     (a)  a workplace inspector; or

                     (b)  the targeted person; or

                     (c)  an organisation of employees , or an organisation or association of employers, of which the targeted person is a member, if it is acting with the written consent of the targeted person.

             (6)  A penalty imposed under subsection (3) is payable to the Commonwealth, or to some other person if the Court so directs.

             (7)  Division 3 of Part 14 of the Workplace Relations Act 1996 has effect as if a breach of subsection (1) or (2) were a contravention of a civil remedy provision within the meaning of that Division.

35   Continued application of the State or Territory contractor laws to certain services contracts

Services contracts to which this section applies

             (1)  This section applies to a services contract (the relevant contract ) if:

                     (a)  the relevant contract:

                              (i)  is a pre-reform commencement contract; or

                             (ii)  is a continuation contract in relation to a pre-reform commencement contract; and

                     (b)  some or all of the contract period of the relevant contract occurs after the reform commencement; and

                     (c)  the contractor law test is satisfied in relation to the relevant contract (see subsection (2)).

             (2)  The contractor law test is satisfied in relation to the relevant contract if one of the following paragraphs applies to the contract that, as between the relevant contract and its related continuation contracts (if any), is the contract (the test contract ) that was entered into both before the reform commencement and closest to the reform commencement:

                     (a)  if the contract period of the test contract did not start before the reform commencement—one or more of the State or Territory contractor laws would have applied before the reform commencement in relation to the test contract if its contract period had started when it was entered into;

                     (b)  if the contract period of the test contract started before the reform commencement—one or more of the State or Territory contractor laws applied before the reform commencement in relation to the test contract.

             (3)  For the purpose of subsection (2), a reference to the State or Territory contactor laws, in relation to a time before the reform commencement, is a reference to laws that would have been State or Territory contractor laws if:

                     (a)  this Division had been in force at that time; and

                     (b)  the reform commencement had occurred before that time.

Exclusion provisions do not apply

             (4)  Subject to subsection (5), the exclusion provisions do not apply in relation to the State or Territory contractor laws in relation to so much of the contract period of the relevant contract as occurs after the reform commencement and before the first of the following days (the transition day ):

                     (a)  the date of effect of a reform opt-in agreement (if any) that covers the contract;

                     (b)  the first day after the end of the period of 3 years that started on the reform commencement.

Note:          If the exclusion provisions do not apply, the State or Territory contractor laws will continue to apply.

             (5)  The regulations may provide that subsection (4) does not affect the application of the exclusion provisions in relation to a specified State or Territory contractor law, either:

                     (a)  generally; or

                     (b)  as specified in the regulations.

What if the contract period ends before the transition day?

             (6)  If:

                     (a)  the contract period of the relevant contract ends before the transition day; and

                     (b)  there is no further contract between the parties that (disregarding subsection (7)) is a related continuation contract in relation to the relevant contract;

the consequences that result from the contract period ending (including consequences relating to the fact that there is no further contract as mentioned in paragraph (b)) are as provided by or under the relevant terms of any contract between the parties, the State or Territory contractor laws and any other relevant laws.

Note:          The independent contractor may (for example) have an entitlement under the State or Territory contractor laws to recover an amount on account of accrued entitlements (such as leave), an entitlement to a reinstatement or re-engagement remedy, or an entitlement to a redundancy payment.

             (7)  If:

                     (a)  in a situation to which subsection (6) applies, the independent contactor obtains a remedy that results in his or her reinstatement or re-engagement, with effect from a time before the transition day; and

                     (b)  the services contract (the remedy contract ) under which he or she is reinstated or re-engaged would not otherwise be a continuation contract in relation to:

                              (i)  if subparagraph (1)(a)(i) applies—the relevant contract; or

                             (ii)  if subparagraph (1)(a)(ii) applies—the pre-reform commencement contract referred to in that subparagraph;

the remedy contract is taken to be such a continuation contract.

What if the contract period does not end before the transition day?

             (8)  If the contract period of the relevant contract does not end before the transition day, the contract is to be treated, for the purposes of the State or Territory contractor laws, as if, on the transition day, it had been brought to an end by agreement of the parties (rather than by the unilateral act of one party).

Note:          Because of this subsection, the occurrence of the transition day may trigger an entitlement under a State or Territory contractor law to recover an amount on account of accrued entitlements (such as leave). But the occurrence of the transition day should not trigger an entitlement under such a law to a reinstatement or re-engagement remedy, or to a redundancy payment, as such remedies are generally not available for the ending of contracts by agreement.

36   How section 35 applies if there is a transfer of business

When this section applies to a post-transfer contract—general

             (1)  Subject to subsection (2), this section applies to a services contract (the post-transfer contract ) if:

                     (a)  under a services contract (the first contract ) between an independent contractor and another person (the former principal ), the independent contractor performs or performed work of a particular kind for a business; and

                     (b)  the first contract:

                              (i)  is a pre-reform commencement contract; or

                             (ii)  is a continuation contract in relation to a pre-reform commencement contract; and

                     (c)  after the reform commencement, there is a transfer (by whatever means, and however described) of all or part of the business; and

                     (d)  the post-transfer contract is a services contract, entered into by the independent contractor with another person, that is for the performance, after the transfer takes effect, of the same kind of work for the business or the transferred part of the business.

Section does not apply to a post-transfer contract if reform opt-in agreement has already taken effect

             (2)  This section does not apply to the post-transfer contract if:

                     (a)  a reform opt-in agreement covered the first contract, or covered another contract that is a continuation contract in relation to:

                              (i)  if subparagraph (1)(b)(i) applies—the first contract; or

                             (ii)  if subparagraph (1)(b)(ii) applies—the pre-reform commencement contract referred to in that subparagraph; and

                     (b)  the reform opt-in agreement’s date of effect is before the transfer takes effect.

Note:          If this subsection applies, subsection (3) will not apply and so the post-transfer contract cannot be a continuation contract.

If section applies, post-transfer contract may be continuation contract (even though parties are not the same)

             (3)  If this section applies to the post-transfer contract, then, in determining for the purpose of section 35 whether the post-transfer contract is a continuation contract in relation to:

                     (a)  if subparagraph (1)(b)(i) applies—the first contract; or

                     (b)  if subparagraph (1)(b)(ii) applies—the pre-reform commencement contract referred to in that subparagraph;

the following provisions have effect:

                     (c)  the parties to the post-transfer contract are taken to be the same as the parties to the contract referred to in whichever of paragraphs (a) and (b) of this subsection applies;

                     (d)  subsection 32(2) has effect as if that subsection also contained a paragraph referring to the interval being because of the transfer of the business or the part of the business.

37   Application of the State or Territory contractor laws in relation to pre-reform commencement matters not affected by exclusion provisions

                   The exclusion provisions do not affect the application of the State or Territory contractor laws in relation to matters that occurred before the reform commencement.



 

Division 2 Unfair contracts laws

38   Definition

                   In this Division:

reform commencement means the commencement of Part 2.

39   New applications relating to unfair contracts

                   An application in relation to a services contract may be made under Part 3 even if the contract was entered into before the reform commencement.

40   Applications under the Workplace Relations Act 1996 in progress at the reform commencement

             (1)  This section applies to an application in relation to a contract for services that was made before the reform commencement under section 832 of the Workplace Relations Act 1996 if the proceeding (including any appeal to a court in relation to the proceeding) in relation to the application was not finally determined before the reform commencement.

             (2)  Despite the repeal of sections 832, 833 and 834 of the Workplace Relations Act 1996 by the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 , those sections continue to apply to the application after the reform commencement as if they had not been repealed.

41   Applications under an excluded State or Territory law in progress at the reform commencement

             (1)  This section applies to a proceeding in relation to a contract for services that was commenced before the reform commencement under a law of a State or Territory that makes provision as mentioned in paragraph 7(1)(c) if the proceeding (including any appeal) was not finally determined before the reform commencement.

             (2)  The exclusion provisions do not apply in relation to the law of the State or Territory (including any law relating to appeals) to the extent that it relates to the proceeding (including any appeal).