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A Bill for an Act relating to independent contractors, and for related purposes
Administered by: DEWR
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 27 Jun 2006
Introduced HR 22 Jun 2006

2004-2005-2006

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Independent Contractors Bill 2006

 

No.      , 2006

 

(Employment and Workplace Relations)

 

 

 

A Bill for an Act relating to independent contractors, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Objects of this Act............................................................................. 2

4............ Definitions.......................................................................................... 3

5............ Services contract................................................................................. 4

Part 2—Exclusion of certain State and Territory laws                                      6

6............ Definitions.......................................................................................... 6

7............ Exclusion of certain State and Territory laws..................................... 6

8............ What are workplace relations matters................................................ 7

9............ What is an unfairness ground.............................................................. 9

10.......... Regulations may specify laws that are intended to be excluded......... 9

Part 3—Unfair contracts                                                                                                   10

11.......... Application of Part........................................................................... 10

12.......... Court may review services contract................................................. 10

13.......... Limitation on applications for review of services contracts—prescribed circumstances        11

14.......... Limitation on applications for review of services contracts—other proceedings in progress 11

15.......... Powers of Court............................................................................... 11

16.......... Orders that Court may make............................................................ 12

17.......... Costs only where proceeding instituted vexatiously........................ 13

Part 4—Contract outworkers in the textile, clothing and footwear industry             15

Division 1—Preliminary                                                                                            15

18.......... Object of Part................................................................................... 15

19.......... Definitions........................................................................................ 15

Division 2—Protection of contract outworkers in the textile, clothing and footwear industry 17

20.......... Minimum rate of pay....................................................................... 17

21.......... State or Territory minimum rates of pay......................................... 18

Division 3—Enforcement and compliance                                                       19

Subdivision A—Workplace inspectors                                                                 19

22.......... Powers of workplace inspectors...................................................... 19

Subdivision B—Penalties                                                                                        21

23.......... Imposition and recovery of penalties............................................... 21

24.......... Recovery of amounts of pay............................................................ 22

25.......... Interest up to judgment.................................................................... 23

26.......... Interest on judgment......................................................................... 23

27.......... Plaintiffs may choose small claims procedure in magistrates courts 24

28.......... Enforcement of penalties etc............................................................ 25

29.......... General provisions............................................................................ 26

Division 4—Record-keeping                                                                                  27

30.......... Records relating to services contracts with contract outworkers..... 27

Part 5—Transitional provisions                                                                                    28

Division 1—State and Territory laws other than unfair contracts laws  28

31.......... Definitions........................................................................................ 28

32.......... Continuation contracts and related continuation contracts.............. 29

33.......... Reform opt-in agreement.................................................................. 30

34.......... Prohibited conduct in relation to reform opt-in agreements............. 31

35.......... Continued application of the State or Territory contractor laws to certain services contracts               32

36.......... How section 35 applies if there is a transfer of business................. 34

37.......... Application of the State or Territory contractor laws in relation to pre-reform commencement matters not affected by exclusion provisions......................................................................... 36

Division 2—Unfair contracts laws                                                                        37

38.......... Definition.......................................................................................... 37

39.......... New applications relating to unfair contracts................................... 37

40.......... Applications under the Workplace Relations Act 1996 in progress at the reform commencement         37

41.......... Applications under an excluded State or Territory law in progress at the reform commencement         37

Part 6—Regulations                                                                                                            39

42.......... Regulations may make provision for transitional matters................ 39

43.......... Power to make regulations................................................................ 39

 


A Bill for an Act relating to independent contractors, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Independent Contractors Act 2006.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Sections 3 to 43

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Objects of this Act

             (1)  The principal objects of this Act are:

                     (a)  to protect the freedom of independent contractors to enter into services contracts; and

                     (b)  to recognise independent contracting as a legitimate form of work arrangement that is primarily commercial; and

                     (c)  to prevent interference with the terms of genuine independent contracting arrangements.

             (2)  The Act achieves these objects, principally, by providing for the rights, entitlements, obligations and liabilities of parties to services contracts to be governed by the terms of those contracts, subject to:

                     (a)  the rules of common law and equity as applying in relation to those contracts; and

                     (b)  the laws of the Commonwealth as applying in relation to those contracts; and

                     (c)  the laws of the States and Territories as applying in relation to those contracts, other (in general) than any such laws that confer or impose rights, entitlements, obligations or liabilities of a kind more commonly associated with employment relationships.

4  Definitions

                   In this Act:

Commonwealth authority means:

                     (a)  a body corporate established for a public purpose by or under a law of the Commonwealth; or

                     (b)  a body corporate:

                              (i)  incorporated under a law of the Commonwealth or a State or Territory; and

                             (ii)  in which the Commonwealth has a controlling interest.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

Court means the Federal Court of Australia or the Federal Magistrates Court.

exclusion provisions means subsections 7(1) and 10(1).

independent contractor is not limited to a natural person.

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

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

services contract has the meaning given by section 5.

workplace inspector has the same meaning as in the Workplace Relations Act 1996.

5  Services contract

General meaning

             (1)  A services contract is a contract for services:

                     (a)  to which an independent contractor is a party; and

                     (b)  that relates to the performance of work by the independent contractor; and

                     (c)  that has the requisite constitutional connection specified in subsection (2).

Note:          Conditions or collateral arrangements relating to a services contract may be taken to be part of the services contract: see subsection (4).

The requisite constitutional connection

             (2)  A contract for services has the requisite constitutional connection if:

                     (a)  at least one party to the contract is:

                              (i)  a constitutional corporation; or

                             (ii)  the Commonwealth or a Commonwealth authority; or

                            (iii)  a body corporate incorporated in a Territory in Australia; or

                     (b)  one or more of the following subparagraphs is satisfied:

                              (i)  the work concerned is wholly or principally to be performed in a Territory in Australia;

                             (ii)  the contract was entered into in a Territory in Australia;

                            (iii)  at least one party to the contract is a natural person who is resident in, or a body corporate that has its principal place of business in, a Territory in Australia.

             (3)  Without limiting its effect apart from this subsection, subparagraph (2)(a)(i) also has the effect it would have if the reference to a constitutional corporation were, by express provision, confined to a constitutional corporation that has entered into the contract for the purposes of the business of the corporation.

Conditions and collateral arrangements

             (4)  A condition or collateral arrangement that relates to a services contract is taken to be part of that services contract if, were the condition or arrangement itself a contract for services, it would have the requisite constitutional connection.


 

Part 2Exclusion of certain State and Territory laws

  

6  Definitions

                   In this Part:

officer, of a body corporate, has the same meaning as in the Corporations Act 2001.

party, in relation to a services contract to which a body corporate is a party, includes a person who is an officer of the body corporate.

State or Territory industrial law has the same meaning as in the Workplace Relations Act 1996.

7  Exclusion of certain State and Territory laws

             (1)  Subject to subsection (2), the rights, entitlements, obligations and liabilities of a party to a services contract are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:

                     (a)  take or deem a party to a services contract to be an employer or employee, or otherwise treat a party to a services contract as if the party were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for a party to the contract to be so taken, deemed or treated);

                     (b)  confer or impose rights, entitlements, obligations or liabilities on a party to a services contract in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on a party to a services contract);

                     (c)  without limiting paragraphs (a) and (b)—provide for the whole or a part of a services contract:

                              (i)  to be void, set aside or otherwise unenforceable; or

                             (ii)  to be amended or varied, or to have effect as if it were amended or varied;

                            on an unfairness ground.

Note 1:       For the meaning of workplace relations matter, see section 8.

Note 2:       For the meaning of unfairness ground, see section 9.

Note 3:       Division 1 of Part 5 provides for a transitional period during which the State and Territory laws (other than laws that provide as mentioned in paragraph (1)(c)) may continue to apply despite this subsection.

             (2)  Subsection (1) does not apply in relation to:

                     (a)  a law of a State or Territory, to the extent that the law:

                              (i)  applies to a services contract to which an outworker is a party; and

                             (ii)  makes provision, otherwise than as mentioned in paragraph (1)(c), in relation to such a contract; or

                     (b)  any of the following laws:

                              (i)  Chapter 6 of the Industrial Relations Act 1996 of New South Wales (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);

                             (ii)  the Owner Drivers and Forestry Contractors Act 2005 of Victoria;

                            (iii)  any instrument made under a provision of a law referred to in subparagraph (i) or (ii); or

                     (c)  a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.

8  What are workplace relations matters

             (1)  Subject to subsection (2), workplace relations matter means any of the following matters:

                     (a)  remuneration, allowances or other amounts payable to employees;

                     (b)  leave entitlements of employees;

                     (c)  hours of work of employees;

                     (d)  enforcing or terminating contracts of employment;

                     (e)  making, enforcing or terminating agreements (not being contracts of employment) determining terms and conditions of employment;

                      (f)  disputes between employees and employers, or the resolution of such disputes;

                     (g)  industrial action by employees or employers;

                     (h)  any other matter that is substantially the same as a matter that relates to employees or employers and that is dealt with by or under:

                              (i)  the Workplace Relations Act 1996; or

                             (ii)  a State or Territory industrial law;

                            unless the matter is specified in regulations made for the purposes of this paragraph;

                      (i)  any other matter specified in regulations made for the purposes of this paragraph.

             (2)  None of the following is a workplace relations matter:

                     (a)  prevention of discrimination or promotion of EEO, but only if the State or Territory law concerned is neither a State or Territory industrial law nor contained in such a law;

                     (b)  superannuation;

                     (c)  workers compensation;

                     (d)  occupational health and safety (including entry of a representative of a trade union for a purpose connected with occupational health and safety);

                     (e)  child labour;

                      (f)  the observance of a public holiday, except the rate of payment of an employee for the public holiday;

                     (g)  deductions from wages or salaries;

                     (h)  industrial action affecting essential services;

                      (i)  attendance for service on a jury;

                      (j)  professional or trade regulation;

                     (k)  consumer rights;

                      (l)  taxation;

                    (m)  any other matter specified in regulations made for the purposes of this paragraph.

9  What is an unfairness ground

             (1)  Subject to subsection (2), each of the following grounds is an unfairness ground in relation to a services contract:

                     (a)  the contract is unfair;

                     (b)  the contract is harsh or unconscionable;

                     (c)  the contract is unjust;

                     (d)  the contract is against the public interest;

                     (e)  the contract is designed to, or does, avoid the provisions of:

                              (i)  the Workplace Relations Act 1996; or

                             (ii)  a State or Territory industrial law; or

                            (iii)  an award, agreement or other instrument made under a law referred to in subparagraph (i) or (ii);

                      (f)  the contract provides for remuneration at a rate that is, or is likely to be, less than the rate of remuneration for an employee performing similar work;

                     (g)  any other ground that is substantially the same as a ground specified in any of paragraphs (a) to (f);

                     (h)  any other ground specified in regulations made for the purposes of this paragraph.

             (2)  A ground specified in subsection (1) is not an unfairness ground in relation to a services contract to the extent that the ground relates to matters that, because of subsection 8(2), are not workplace relations matters.

10  Regulations may specify laws that are intended to be excluded

             (1)  The rights, entitlements, obligations and liabilities of a party to a services contract are not affected by a law of a State or Territory that is specified in regulations made for the purposes of this subsection, to the extent that the law is so specified.

             (2)  To avoid doubt, subsection (1) has effect even if a law specified in regulations made under that subsection:

                     (a)  is a law referred to in paragraph 7(2)(a) or (b); or

                     (b)  deals with matters that, because of subsection 8(2), are not workplace relations matters.


 

Part 3Unfair 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.


 

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

Division 1Preliminary

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 2Protection 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 3Enforcement and compliance

Subdivision AWorkplace 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 BPenalties

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 4Record-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.


 

Part 5Transitional provisions

Division 1State 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 2Unfair 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).


 

Part 6Regulations

  

42  Regulations may make provision for transitional matters

             (1)  The regulations may make provision for matters of a transitional, saving or application nature arising out of, or relating to, the provisions of this Act or of the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006.

             (2)  Without limiting subsection (1), regulations made for the purpose of that subsection may prescribe modifications of Division 1 of Part 5.

             (3)  Subject to subsection (4), despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made for the purpose of subsection (1) of this section may be expressed to take effect from a date before the regulations are registered under that Act.

             (4)  Subsection (3) does not apply to regulations that create, modify or otherwise affect a provision that makes a person liable to an offence or civil penalty.

             (5)  In this section:

modifications includes additions, omissions and substitutions.

43  Power to make regulations

                   The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.