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Workplace Relations Amendment (Minimum Entitlements for Victorian Workers) Bill 2001
Schedule 2 Contract outworkers in Victoria in the textile, clothing and footwear industry

Part 1 Amendment of the Workplace Relations Act 1996

1  Subsection 86(1)

After “this Act”, insert “other than section 541”.

2  Section 305

After “subsection 86(2)”, insert “or subparagraph 542(2)(b)(iv), paragraph 542(2)(c) or subsection 542(4)”.

3  After Part XV

Insert:

Part XVI Contract outworkers in Victoria in the textile, clothing and footwear industry

Division 1 Preliminary

537   Object of Part

                   The object of this Part is to ensure that an individual who is an outworker other than an employee performing work in Victoria in the textile, clothing or footwear industry is paid not less than the amount he or she would have been entitled to be paid for performing the same work as an employee.

538   Definitions

                   In this Part:

contract outworker means an individual who:

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

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

court of competent jurisdiction means:

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

                     (b)  a magistrate’s court.

employee has the same meaning as in Part XV.

Division 2 New Commonwealth provisions

Subdivision A General

539   Constitutional corporations

                   Without affecting its operation apart from this section, this Part applies where a person who is a party to a contract for services is a constitutional corporation.

540   Interstate trade or commerce etc.

                   Without affecting its operation apart from this section, this Part applies where work is contracted to be performed under a contract for services in the course of, or in relation to, trade or commerce:

                     (a)  between Australia and a place outside Australia; or

                     (b)  between the States; or

                     (c)  within a Territory; or

                     (d)  between a State and a Territory; or

                     (e)  between 2 Territories.

Subdivision B Minimum rate of pay

541   Minimum rate of pay

             (1)  To the extent that work performed under and in accordance with a contract for services 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)  satisfies the criteria in subsection (2);

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) or (5) (as appropriate) for his or her work.

             (2)  The criteria are:

                     (a)  the work is performed in Victoria; and

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

                     (c)  the work 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.

             (3)  The statutory amount owed to the contract outworker and each other individual is the amount that he or she would have been entitled to be paid because of clause 1 of Schedule 1A for the work mentioned in subsection (1) if he or she had performed the work as an employee in or about any premises in Victoria. This subsection is subject to subsection (5).

             (4)  For the purposes of subsection (3), disregard provisions in clause 1 of Schedule 1A that deal with paid leave.

             (5)  The statutory amount owed to a contract outworker or other individual who holds a certificate in force under section 509 is the amount (worked out by reference to the minimum rate of pay specified in the certificate) that he or she would have been entitled to be paid if he or she had performed the work as an employee in or about any premises in Victoria.

             (6)  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 on behalf of the individual.

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

Example:    A person (the head contractor ) enters into a contract for services with a contract outworker under which the contract outworker is to make shirts. If the contract outworker subcontracts some of that work to other contract outworkers and agrees to pay them for that work, it is the subcontractor who is subject to the obligation in subsection (1) and not the head contractor.

Subdivision C Inspectors

542   Powers of inspectors

Purpose for which powers of inspectors can be exercised

             (1)  The powers of an inspector under this section may be exercised for the purpose of ascertaining whether section 541 is being, or has been, observed.

Powers of inspectors

             (2)  The powers of an inspector are:

                     (a)  to, without force, enter:

                              (i)  premises on which the inspector has reasonable cause to believe that work to which section 541 applies is being or has been performed; or

                             (ii)  a place of business in which the 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 inspector within a specified period; and

                             (v)  to inspect, and make copies of or take extracts from, a document produced to him or her; and

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

When may the powers be exercised?

             (3)  An 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).

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

             (5)  Where a document is produced to an inspector under paragraph (2)(c) or subsection (4), the 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 an inspector.

             (6)  During the period for which an inspector retains a document, the 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 them

             (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 paragraph (2)(c), 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 unless it is proceedings for an offence against section 305.

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

Subdivision D Enforcement of minimum rate of pay

543   Imposition and recovery of penalties

             (1)  If a person breaches subsection 541(1), a penalty may be imposed by the Court or a court of competent jurisdiction.

             (2)  Subject to subsection (3), if:

                     (a)  2 or more breaches of subsection 541(1) are committed by the same person; and

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

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

             (3)  Subsection (2) does not apply in relation to a breach of subsection 541(1) that is committed by the person after a court has imposed a penalty on the person for an earlier breach of that subsection.

             (4)  The maximum penalty that may be imposed under subsection (1) for a breach of subsection 541(1) is:

                     (a)  $10,000 for a body corporate; or

                     (b)  $2,000 in other cases.

             (5)  A penalty for a breach of subsection 541(1) may be sued for and recovered by:

                     (a)  an inspector;

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

             (6)  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.

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

             (8)  A proceeding under this section in relation to a breach of subsection 541(1) must be commenced not later than 6 years after the commission of the breach.

544   Recovery of pay

                   If a person is required by subsection 541(1) to pay an amount to an individual, the individual may sue for the amount of the payment in the Court or in any court of competent jurisdiction not later than 6 years after the person was required to make the payment to him or her.

545   Interest up to judgment

             (1)  In exercising its powers under section 543 or in a proceeding under section 544, the Court or a court of competent jurisdiction 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 Court or court of competent jurisdiction (as the case requires) 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.

546   Interest on judgment

                   A debt under a judgment or order of a court of competent jurisdiction made under section 543 or 544 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.

547   Plaintiffs may choose small claims procedure in magistrates’ courts

             (1)  An action started by a person under section 544 in a magistrate’s court is to be dealt with in accordance with this section if the person indicates, in a manner prescribed by the regulations 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 $ 5,0 00 or such higher amount as is prescribed;

                     (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 counsel or solicitor unless the court permits;

                     (e)  if the court permits a party to be represented by counsel or solicitor, 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.

548   Enforcement of penalties etc.

             (1)  If a court has:

                     (a)  imposed a monetary penalty under this Part (other than a penalty for an offence); or

                     (b)  under subsection 543(6), ordered the payment of an amount; 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 the Court or in any other court of competent jurisdiction.

             (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.

549   Records relating to contracts for services 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 contract for services and who is subject to an obligation under subsection 541(1); and

                     (b)  the making of outworker records by a contract outworker who is a party to a contract for services and to whom an obligation is owed under subsection 541(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.

             (2)  In subsection (1):

outworker records , in relation to a contract for services, means records relating to the contract to the extent that work to be performed under the contract meets the criteria in subsection 541(2).



 

Part 2 Application

4  Application of amendments made by Part 1

The amendments made by Part 1 apply to work performed after the commencement of item 3 under a contract for services whether or not the contract was entered into before or after that commencement.