FAIR WORK AMENDMENT (TEXTILE, CLOTHING AND FOOTWEAR INDUSTRY) BILL 2011 [2012]

i Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. ,

2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Amendments

Fair Work Act 2009

Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

A Bill for an Act to amend the Fair Work Act 2009,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Fair Work Amendment (Textile,

Clothing and Footwear Industry) Act 2011.

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.

2 Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. ,

2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments Schedule 1

Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

Schedule 1--Amendments

Fair Work Act 2009

1 At the end of section 4

Add:

Application, saving and transitional provisions for amendments

(4) Schedule 1 contains application, saving and transitional provisions

relating to amendments of this Act.

2 After subsection 9(5)

Insert:

(5A) Part 6-4A contains special provisions about TCF outworkers.

3 At the end of Division 3 of Part 1-1

Add:

9A Application, saving and transitional provisions for amendments

(Schedule 1)

Schedule 1 contains application, saving and transitional provisions

relating to amendments of this Act.

Note:

Application, saving and transitional provisions relating to the

enactment of this Act, and States becoming referring States, are in the

Fair Work (Transitional Provisions and Consequential Amendments)

Act 2009.

4 At the end of section 11

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

5 Section 12

Insert:

Commonwealth outworker entity means an entity that is an

outworker entity otherwise than because of section 30F or 30Q.

Schedule 1 Amendments

4 Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. ,

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Note:

Sections 30F and 30Q extend the meaning of outworker entity in

relation to a referring State.

6 Section 12

Insert:

directly, when used in relation to TCF work: see section 17A.

7 Section 12 (at the end of the definition of employee)

Add:

Note 3:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

8 Section 12 (definition of employee record)

Repeal the definition, substitute:

employee record, in relation to an employee, means:

(a) something that is an employee record, in relation to the

employee, for the purposes of the Privacy Act 1988; or

(b) in the case of a TCF contract outworker who is taken to be an

employee by Division 2 of Part 6-4A of this Act--something

that would be an employee record, in relation to the

outworker, for the purposes of the Privacy Act 1988, if the

outworker were an employee for the purposes of that Act.

9 Section 12 (at the end of the definition of employer)

Add:

Note 3:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

10 Section 12

Insert:

indirectly, when used in relation to TCF work: see section 17A.

11 Section 12

Insert:

indirectly responsible entity, in relation to TCF work performed by

a TCF outworker: see subsections 789CA(3), (4) and (5).

Amendments Schedule 1

Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

12 Section 12 (note at the end of the definition of national

system employee)

Omit "Note:", substitute "Note 1:".

13 Section 12 (at the end of the definition of national system

employee)

Add:

Note 2:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

14 Section 12 (note at the end of the definition of national

system employer)

Omit "Note:", substitute "Note 1:".

15 Section 12 (at the end of the definition of national system

employer)

Add:

Note 2:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

16 Section 12

Insert:

responsible person, in relation to TCF work performed by a TCF

outworker: see subsection 789CA(1).

17 Section 12

Insert:

TCF award worker: see subsection 483A(1A).

18 Section 12

Insert:

TCF contract outworker: see subsection 789BB(2).

19 Section 12

Insert:

TCF outwork code: see section 789DA.

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6 Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. ,

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20 Section 12 (definition of TCF outworker)

Omit "whose work is covered by a TCF award".

21 Section 12

Insert:

TCF work means work in the textile, clothing or footwear industry.

22 Section 12

Insert:

unpaid amount, in relation to TCF work performed by a TCF

outworker: see subsections 789CA(1) and (4).

23 After section 17

Insert:

17A Meaning of directly and indirectly (in relation to TCF work)

(1) If there is a chain or series of 2 or more arrangements for the

supply or production of goods produced by TCF work performed

by a person (the worker), the following provisions have effect:

(a) the work is taken to be performed directly for the person (the

direct principal) who employed or engaged the worker (and

the direct principal is taken to have arranged for the work to

be performed directly for the direct principal);

(b) the work is taken to be performed indirectly for each other

person (an indirect principal) who is a party to any of the

arrangements in the chain or series (and each indirect

principal is taken to have arranged for the work to be

performed indirectly for the indirect principal).

(2) This section does not limit the circumstances in which TCF work is

performed directly or indirectly for a person (or in which a person

arranges for TCF work to be performed directly or indirectly for

the person).

(3) This section does not apply for the purposes of Division 2A or 2B

of Part 1-3.

24 At the end of section 25

Amendments Schedule 1

Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances). However, that Division does not

apply for the purposes of Divisions 2A and 2B of this Part.

25 At the end of section 42

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

26 At the end of section 60

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

27 At the end of section 133

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

28 At the end of section 170

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

29 After subsection 203(2)

Insert:

(2A) If, in accordance with this Part, the enterprise agreement includes

terms that would be outworker terms if they were included in a

modern award, the flexibility term must not allow the effect of

those outworker terms to be varied.

30 At the end of section 259

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

31 At the end of section 283

Add:

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8 Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. ,

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Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

32 At the end of section 301

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

33 At the end of section 308

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

34 At the end of section 322

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

35 At the end of section 335

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

36 At the end of section 380

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

37 At the end of section 407

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

38 Section 478

Omit "TCF outworkers" (wherever occurring), substitute "TCF award

workers".

39 Paragraph 480(b)

Omit "TCF outworkers", substitute "TCF award workers".

Amendments Schedule 1

Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

40 Subdivision AA of Division 2 of Part 3-4 (heading)

Repeal the heading, substitute:

Subdivision AA--Entry to investigate suspected contravention

relating to TCF award workers

41 Section 483A (heading)

Repeal the heading, substitute:

483A Entry to investigate suspected contravention relating to TCF

award workers

42 Subsection 483A(1)

Omit "A permit holder", substitute "Subject to subsection (6), a permit

holder".

43 Paragraph 483A(1)(a)

Omit "TCF outworker", substitute "TCF award worker".

44 Paragraph 483A(1)(b)

Omit "TCF outworkers", substitute "TCF award workers".

45 After subsection 483A(1)

Insert:

(1A)

TCF award worker is:

(a)

employee whose work is covered by a TCF award; or

(b) an individual who, for the purpose of a contract for the

provision of services, performs work that is covered by a

TCF award.

46 At the end of section 483A

Add:

(6) Particular premises of a person cannot be entered under

paragraph (1)(a) if:

(a) the person is accredited (however described) by a person or

body specified by name in the regulations; and

(b) the accreditation is in writing and is in force; and

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principal place of business of the accredited person.

Note:

The fact that this subsection may result in certain premises not being

able to be entered under paragraph (1)(a) for the purpose of

investigating a particular suspected contravention does not:

(a) prevent the premises being entered for that purpose under

Subdivision A; or

(b) prevent the premises being entered under paragraph (1)(b) of this

section.

(7) Before the Governor-General makes a regulation specifying a

particular person or body for the purposes of paragraph (6)(a), the

Minister must be satisfied that the person or body:

(a) has aims that are consistent with the objects of Part 6-4A; and

(b) has the endorsement of:

(i) at least one employee organisation that is entitled to

represent the industrial interests of TCF award workers;

and

(ii) at least one employer organisation that is entitled to

represent the industrial interests of persons who employ

or engage TCF award workers.

47 Subparagraph 483B(3)(a)(i)

Omit "employs a TCF outworker", substitute "employs or engages a

TCF award worker".

48 Subparagraphs 483B(3)(a)(ii) and (iii)

Omit "TCF outworker", substitute "TCF award worker".

49 Section 484

Omit "TCF outworkers", substitute "TCF award workers".

50 Paragraph 518(2)(ca)

Omit "TCF outworker", substitute "TCF award worker".

51 Paragraph 518(2)(cb)

Omit "TCF outworkers", substitute "TCF award workers".

52 Paragraphs 518(2)(cc) and (d)

Omit "TCF outworker", substitute "TCF award worker".

Amendments Schedule 1

Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

53 Paragraphs 518(3)(b) and (c)

Omit "TCF outworker", substitute "TCF award worker".

54 At the end of section 529

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

55 At the end of section 538

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

56 At the end of section 561

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

57 At the end of section 574

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

58 At the end of section 680

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

59 At the end of section 720

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

60 At the end of section 736

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

61 After Part 6-4

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Insert:

Part 6-4A--Special provisions about TCF

outworkers

Division 1--Introduction

789AA Guide to this Part

This Part contains special provisions about TCF outworkers.

Division 2 provides for TCF contract outworkers to be taken to be

employees in certain circumstances for the purposes of most of the

provisions of this Act.

Division 3 provides for TCF outworkers (whether employees or

contractors) to recover unpaid remuneration from entities that are

indirectly responsible for work done by the outworkers.

Division 4 allows the regulations to prescribe a code dealing with

standards of conduct and practice relating to TCF outwork.

Division 5 contains miscellaneous provisions.

789AB Meanings of employee and employer

In this Part, employee and employer have their ordinary meanings.

789AC Objects of this Part

The objects of this Part are to eliminate exploitation of outworkers

in the textile, clothing and footwear industry, and to ensure that

those outworkers are employed or engaged under secure, safe and

fair systems of work, by:

(a) providing nationally consistent rights and protections for

those outworkers, regardless of whether they are employees

or contractors; and

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(b) establishing an effective mechanism by which those

outworkers can recover amounts owing to them in relation to

their work from other parties in a supply chain; and

practice to be complied with by parties in a supply chain.

Division 2--TCF contract outworkers taken to be

employees in certain circumstances

789BA Provisions covered by this Division

(1) This Division covers the provisions of this Act, other than the

following provisions (and other than regulations made for the

purposes of the following provisions):

(a) Division 1, and this Division, of this Part;

(b) Divisions 2A and 2B of Part 1-3 (application of this Act in

referring States);

(d) Part 3-5 (stand down);

(e) Part 6-3 (extension of National Employment Standards

entitlements);

(f) Part 6-4 (additional provisions relating to termination of

employment);

(g) Part 1 of Schedule 1.

(2) Provisions of this Act that are not covered by this Division are to

be interpreted disregarding the effect of this Division in relation to

other provisions of this Act.

Note:

For example, references to national system employees and national

system employers, in provisions of this Act that are not covered by

this Division, are to be interpreted disregarding the effect of this

Division in relation to the definitions of those expressions in

sections 13 and 14.

(3) References in provisions that are covered by this Division to

matters dealt with in, or occurring under, provisions of this Act that

are not covered by this Division (the excluded provisions) are to be

interpreted having regard to the fact that this Division does not

apply for the purposes of the excluded provisions.

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14 Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. ,

2011

789BB TCF contract outworkers taken to be employees in certain

circumstances

(1) For the purposes of the provisions covered by this Division:

(a) a TCF contract outworker is taken to be an employee (within

the ordinary meaning of that expression), and to be a national

system employee, in relation to particular TCF work

performed by the outworker, if:

(i) the work is performed directly or indirectly for a

Commonwealth outworker entity; and

(ii) if the entity is a constitutional corporation--the work is

performed for the purposes of a business undertaking of

the corporation; and

(b) the person (whether a Commonwealth outworker entity

referred to in subparagraph (a)(i) or another person) that

engaged the outworker is taken to be the employer (within

the ordinary meaning of that expression), and to be a national

system employer, of the outworker in relation to the TCF

work.

Note 1:

See section 17A for when TCF work is performed directly or

indirectly for a person.

Note 2:

See also section 789BC, which allows regulations to deal with matters

relating to TCF contract outworkers who are taken by this section to

be employees.

(2)

TCF contract outworker is a TCF outworker who performs

work for the purpose of a contract for the provision of services

(rather than as an employee).

(3) In interpreting any of the following for the purposes of the

provisions covered by this Division:

(a) provisions of this Act;

(b) any instrument that is relevant to the relationship between the

TCF contract outworker and the person referred to in

paragraph (1)(b);

an interpretation that is consistent with the objective stated in

subsection (4) is to be preferred to an interpretation that is not

consistent with that objective.

(4) The objective is that a TCF contract outworker who is taken to be

an employee in relation to TCF work should have the same rights

and obligations in relation to the work as an employee would have

Amendments Schedule 1

Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

if he or she were employed by the person referred to in

paragraph (1)(b) to do the work.

(5) This section has effect subject to regulations made for the purposes

of section 789BC.

789BC Regulations relating to TCF outworkers who are taken to be

employees

(1) For the purpose of furthering the objective stated in subsection

789BB(4), the regulations may do either or both of the following in

relation to TCF outworkers (deemed employees) who are taken by

section 789BB to be employees of other persons (deemed

employers) in relation to TCF work:

(a) provide that provisions covered by this Division apply in

relation to deemed employees and deemed employers with

specified modifications;

(b) otherwise make provision relating to how provisions covered

by this Division apply in relation to deemed employees and

deemed employers.

(2) Regulations made for the purposes of subsection (1) may provide

differently:

(a) for the purposes of different provisions; or

(b) in relation to different situations.

(3) This section does not allow regulations to:

(a) modify a provision that creates an offence, or that imposes an

obligation which, if contravened, constitutes an offence; or

(b) include new provisions that create offences.

Division 3--Recovery of unpaid amounts

789CA When this Division applies

Outworker not paid for TCF work in certain circumstances

(1) This Division applies if:

(a) a TCF outworker performs TCF work for a person (the

responsible person):

(i) as an employee of the responsible person; or

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(ii) under a contract for the provision of services to the

responsible person; and

(b) the responsible person does not pay an amount (the unpaid

amount) that is payable, in relation to the TCF work, by the

responsible person:

(i) to the outworker; or

(ii) to another person, for the benefit of the outworker;

on or before the day when the amount is due for payment;

and

(i) a contract; or

(ii) this Act, or an instrument made under or in accordance

with this Act; or

(iii) another law of the Commonwealth; or

(iv) a transitional instrument as continued in existence by

Schedule 3 to the Fair Work (Transitional Provisions

and Consequential Amendments) Act 2009; or

(v) a State or Territory industrial law, or a State industrial

instrument; and

(d) there are one or more indirectly responsible entities in

relation to the TCF work.

Note:

For the purpose of this Division, the effect of Division 2 must be taken

into account in determining whether a TCF outworker performs work

as a national system employee of a national system employer.

(2) Without limiting paragraph (1)(b), the unpaid amount may (subject

to paragraph (1)(c)) be an amount of any of the following kinds

that relates to (or is attributable to) the TCF work:

(a) an amount payable by way of remuneration or commission;

(b) an amount payable in respect of leave;

superannuation fund;

(d) an amount payable by way of reimbursement for expenses

incurred.

Meaning of indirectly responsible entity

(3) Subject to subsections (4) and (5), a person is an indirectly

responsible entity in relation to the TCF work if:

(a) the person is a Commonwealth outworker entity; and

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Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

(b) the TCF work was performed indirectly:

(i) for the entity; and

(ii) if the entity is a constitutional corporation--for the

purposes of a business undertaking of the corporation.

Note:

See section 17A for when TCF work is performed indirectly for a

person.

Extent of liability of indirectly responsible entity

(4) If subsection (3) is satisfied in relation to a Commonwealth

outworker entity and part only of the TCF work:

(a) the entity is an indirectly responsible entity in relation to that

part of the TCF work; and

(b) for the purposes of applying this Division in relation to the

entity and that part of the TCF work, the unpaid amount is

so much only of the amount referred to in paragraph (1)(b) as

is attributable to that part of the TCF work.

Retailer of goods not an indirectly responsible entity in certain

circumstances

(5)

If:

(a) a Commonwealth outworker entity, as a retailer, sells goods

produced by the TCF work; and

(b) the entity does not have any right to supervise or otherwise

control the performance of the work before the goods are

delivered to the entity;

the entity is not an indirectly responsible entity in relation to the

TCF work.

789CB Liability of indirectly responsible entity for unpaid amount

(1) Subject to subsection (2), each indirectly responsible entity (or the

indirectly responsible entity, if there is only one) is liable to pay

the unpaid amount.

(2) An indirectly responsible entity is not liable to pay the unpaid

amount to the TCF outworker unless the TCF outworker has taken

reasonable steps to get the responsible person to pay the unpaid

amount.

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(3) If there are 2 or more indirectly responsible entities, those entities

are jointly and severally liable for the payment of the unpaid

amount.

(4) Subject to subsection (5), this section does not affect the liability of

the responsible person to pay the unpaid amount.

(5) Payment of the unpaid amount (or part of the amount) by an

indirectly responsible entity discharges the liability of the

responsible person, to the extent of the payment. This does not

affect any right that the indirectly responsible entity has to recover

an equivalent amount from the responsible person or another

person, or to be otherwise indemnified in relation to the making of

the payment.

Note:

The indirectly responsible entity has a right to recover an equivalent

amount from the responsible person: see section 789CE.

789CC Demand for payment from an indirectly responsible entity

(1) The TCF outworker, or a person acting on behalf of the outworker,

may give an indirectly responsible entity a written demand for

payment of the unpaid amount if, under section 789CB, the entity

is liable to pay the unpaid amount.

(2) The demand must:

(a) specify the unpaid amount, and identify the responsible

person; and

(b) include particulars of:

(i) the TCF work to which the unpaid amount relates, and

why the amount is payable in respect of the work; and

(ii) the steps the TCF outworker has taken to get the

responsible person to pay the unpaid amount; and

(iii) the reasons for considering that the entity to which the

demand is given is an indirectly responsible entity in

relation to the TCF work; and

proceedings may be commenced against the entity under

section 789CD.

(3) The time specified for the purpose of paragraph (2)(c) must not be

less than 14 days after the demand is given to the indirectly

responsible entity.

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Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. , 2011

789CD Proceedings against indirectly responsible entity for

payment of unpaid amount

(1)

If:

(a) in accordance with section 789CC, an indirectly responsible

entity has been given a demand for payment of the unpaid

amount; and

(b) the unpaid amount has not been paid in full by the time

specified in the demand;

proceedings may be commenced for an order requiring the entity to

pay the unpaid amount.

(2) The proceedings may be commenced:

(a) by the TCF outworker; or

(b) on the TCF outworker's behalf, by:

(i) an organisation that is entitled to represent the industrial

interests of the outworker; or

(ii)

inspector.

(3) The proceedings may be commenced in:

(a) the Federal Court; or

(b) the Federal Magistrates Court; or

(4) The court may make an order requiring the entity to pay the unpaid

amount (or so much of it as is still owing) to the TCF outworker, or

to another person on the outworker's behalf, if the court is satisfied

that:

(a) the unpaid amount is (or is to an extent) still owing; and

(b) the entity against which the proceedings have been

commenced is, under section 789CB, liable to pay the unpaid

amount.

(5) In making the order the court must, on application, include an

amount of interest in the sum ordered, unless good cause is shown

to the contrary.

(6) Without limiting subsection (5), in determining the amount of

interest, the court must take into account the period between the

day when the amount was due for payment by the responsible

person and the day when the order is made.

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(7) Proceedings cannot be commenced under this section more than 6

years after the time when the unpaid amount became due for

payment by the responsible person.

789CE Indirectly responsible entity may recover from responsible

person

(1) This section applies if an indirectly responsible entity pays an

amount in discharge of a liability of the entity under section 789CB

(whether or not the payment is made pursuant to an order under

section 789CD).

(2) The entity may, in accordance with this section, recover from the

responsible person an amount (the recoverable amount) equal to

the sum of:

(a) the amount paid by the entity as mentioned in subsection (1);

and

(b) any interest paid by the entity in relation to that amount

pursuant to an order under section 789CD.

(3) The entity may recover the recoverable amount:

(a) by offsetting it against any amount that the entity owes to the

responsible person; or

(b) by action against the responsible person under subsection (4).

(4) The entity may commence proceedings against the responsible

person for payment to the entity of the recoverable amount. The

proceedings may be commenced in:

(a) the Federal Court; or

(b) the Federal Magistrates Court; or

(5) The court may make an order requiring the responsible person to

pay the entity the recoverable amount (or so much of it as is still

owing) if the court is satisfied that:

(a) this section applies as mentioned in subsection (1); and

(b) the entity has not otherwise recovered the recoverable

amount in full from the responsible person.

(6) In making the order the court must, on application, include an

amount of interest in the sum ordered, unless good cause is shown

to the contrary.

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(7) Without limiting subsection (6), in determining the amount of

interest, the court must take into account the period between the

day when the recoverable amount was paid by the entity and the

day when the order is made.

(8) Proceedings cannot be commenced under this section more than 6

years after the time when the entity paid the recoverable amount.

789CF Division does not limit other liabilities or rights

Nothing in this Division limits any other liability or right in respect

of the entitlement of the TCF outworker to the unpaid amount (or

to have the unpaid amount paid to another person for the

outworker's benefit).

Division 4--Code of practice relating to TCF outwork

789DA Regulations may provide for a code

For the purpose of furthering the objects of this Part, the

regulations may prescribe a code (the TCF outwork code) dealing

with standards of conduct and practice to be complied with in

relation to any of the following:

(a) the employment or engagement of TCF outworkers;

(b) arranging for TCF work to be performed, if the work:

(i) is to be performed by TCF outworkers; or

(ii) is of a kind that is often performed by TCF outworkers;

Note 1:

In situations where there is a chain or series of arrangements for the

supply or production of goods, the TCF outwork code may (subject to

section 789DC) impose obligations on any persons that are parties to

arrangements in that chain or series.

Note 2:

References in other provisions to "this Act" include the code, because

the code is in the regulations and is therefore within the definition of

this Act in section 12.

789DB Matters that may be dealt with in TCF outwork code

(1) The matters that may be dealt with in the TCF outwork code

include (but are not limited to) the following:

(a) record keeping requirements;

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(b) reporting on compliance with record keeping requirements,

or with other requirements of the code;

of the code.

(2) The TCF outwork code must not specify wages or other

entitlements for TCF outworkers.

789DC Persons on whom obligations may be imposed by TCF

outwork code

(1) The TCF outwork code may only impose obligations on a person if

one or more of subsections (2) to (5) applies to the person.

Note:

See also subsection (6), which limits the matters in relation to which

obligations may be imposed.

(2) This subsection applies to a person if the person is a national

system employer that employs TCF outworkers.

Note:

For the purpose of this Division, the effect of Division 2 must be taken

into account in determining whether a person is a national system

employer that employs TCF outworkers.

(3) This subsection applies to a person if:

(a) the person is a Commonwealth outworker entity; and

(b) the person arranges for TCF work to be performed (directly

or indirectly):

(i) for the person; and

(ii) if the person is a constitutional corporation--for the

purposes of a business undertaking of the corporation;

and

(c)

the

work:

(i) is to be performed by TCF outworkers; or

(ii) is of a kind often performed by TCF outworkers.

Note:

See section 17A for when a person arranges for TCF work to be

performed directly or indirectly for the person.

(4) This subsection applies to a person if:

(a) the person arranges for TCF work to be performed; and

(b)

the

work:

(i) is to be performed by TCF outworkers; or

(ii) is of a kind often performed by TCF outworkers; and

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(i) for another person, being a Commonwealth outworker

entity; and

(ii) if that Commonwealth outworker entity is a

constitutional corporation--for the purposes of a

business undertaking of that corporation.

(5) This subsection applies to a person if the person is a constitutional

corporation that sells goods produced by TCF work.

(6) The capacity for the TCF outwork code to impose obligations on a

person is subject to the following limitations:

(a) the obligations that may be imposed on a person because

subsection (2) applies to the person are limited to obligations

relating to the person's employment of TCF outworkers;

(b) the obligations that may be imposed on a person because

subsection (3) applies to the person are limited to obligations

relating to TCF work (or an arrangement for TCF work)

because of which that subsection applies to the person;

subsection (4) applies to the person are limited to obligations

relating to TCF work (or an arrangement for TCF work)

because of which that subsection applies to the person;

(d) the obligations that may be imposed on a person because

subsection (5) applies to the person are limited to obligations

relating to the person being a seller of goods as referred to in

that subsection.

789DD Other general matters relating to content of TCF outwork

code

(1) The TCF outwork code may be expressed to apply in relation to:

(a) all persons covered by section 789DC, or specified classes of

those persons; and

(b) all TCF work, or specified classes of TCF work.

Note:

A class of person or TCF work may (for example) be identified by

reference to a particular sector of the textile, clothing or footwear

industry.

(2) The TCF outwork code may provide differently for:

(a) different classes of persons covered by section 789DC; or

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24 Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. ,

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(b) different classes of TCF work; or

(c)

different

situations.

789DE Relationship between the TCF outwork code and other

instruments

(1) A TCF award prevails over the TCF outwork code, to the extent of

any inconsistency.

(2) The TCF outwork code prevails over any of the following, to the

extent of any inconsistency:

(a) an enterprise agreement;

(b) a workplace determination;

existence by Schedule 3 to the Fair Work (Transitional

Provisions and Consequential Amendments) Act 2009.

(3) Subject to subsection (5), the TCF outwork code may:

(a) make provision in relation to a matter by applying, adopting

or incorporating any matter contained in an instrument or

other writing as in force or existing from time to time; or

(b) make provision to the effect that compliance with a specified

term of an instrument or other writing as in force or existing

from time to time is taken to satisfy a particular requirement

of the code.

(4) The kinds of instrument or other writing by reference to which the

TCF outwork code may make provision as mentioned in

subsection (3) include (but are not limited to) the following:

(a) a TCF award;

(b) a code (however described), dealing with matters relating to

outworkers, that is made under a law of a State or Territory.

(5) The TCF outwork code cannot make provision as mentioned in

subsection (3) by reference to any of the following:

(a) an enterprise agreement;

(b) a workplace determination;

existence by Schedule 3 to the Fair Work (Transitional

Provisions and Consequential Amendments) Act 2009.

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(6) Subsections (3) and (4) have effect despite subsection 14(2) of the

Legislative Instruments Act 2003.

Division 5--Miscellaneous

789EA Part not intended to exclude or limit State or Territory laws

relating to outworkers

(1) This Part is not intended to exclude or limit the operation of a law

of a State or Territory (or an instrument made under a law of a

State or Territory), to the extent that the law (or instrument) relates

to outworkers and is capable of operating concurrently with this

Part.

(2) A reference in subsection (1) to this Part includes a reference to

any regulations made for the purposes of this Part.

62 At the end of section 791

Add:

Note:

See also Division 2 of Part 6-4A (TCF contract outworkers taken to be

employees in certain circumstances).

63 After section 795

Insert:

795A Schedule 1

Schedule 1 has effect.

Note:

Schedule 1 contains application, saving and transitional provisions

relating to amendments of this Act.

64 At the end of the Act

Add:

Schedule 1--Application, saving and

transitional provisions relating to

amendments of this Act

Note: See

section

795A.

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26 Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 No. ,

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Part 1--Amendments made by the Fair Work

Amendment (Textile, Clothing and

Footwear Industry) Act 2011

1 Definitions

In this Part:

amended Act means this Act as amended by the amending Act.

amending Act means the Fair Work Amendment (Textile, Clothing

and Footwear Industry) Act 2011.

commencement means the commencement of this Part.

deemed employee means a TCF contract outworker who is taken

by section 789BB of the amended Act to be an employee.

deemed employer means a person who is taken by section 789BB

of the amended Act to be the employer of a deemed employee.

2 Section 789BB of amended Act applies to contracts entered into

after commencement

(1) Section 789BB of the amended Act applies in relation to particular

TCF work performed by a TCF contract outworker only if the

contract for the provision of services, for the purpose of which the

outworker performs the work, is entered into after commencement.

(2) Subclause (1) does not prevent regulations made for the purposes

of section 789BC of the amended Act, or clause 7 of this Part, from

dealing with the effect, in relation to a person who is taken by

section 789BB of the amended Act to be an employee, of matters

that occurred before commencement.

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3 Effect on TCF contract outworker's entitlements

Accrued entitlements not affected

(1) The amendments made by the amending Act do not affect any

entitlement that a TCF contract outworker had accrued before

commencement.

Effect of modern award term requiring National Employment

Standards to be applied to TCF contract outworker

(2) To avoid doubt, if:

(a) a term of a modern award requires the principal of a TCF

contract outworker to apply the National Employment

Standards to the outworker as if the outworker were an

employee; and

(b) because of Division 2 of Part 6-4A of the amended Act, the

outworker is taken to be an employee (being a national

system employee) of the principal for the purposes of

Part 2-2 of the amended Act (the National Employment

Standards);

then, to the extent that the term gives the outworker an entitlement

that is the same as an entitlement (the NES entitlement) of the

outworker (as a national system employee) under the National

Employment Standards, the term operates in parallel with the

outworker's NES entitlement, but not so as to give the outworker a

double benefit.

4 Fair work instruments etc. made before commencement

(1) This clause applies in relation to:

(a) a fair work instrument made before commencement; or

(b) a transitional instrument as continued in existence by

Schedule 3 to the Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009.

(2) A reference in the instrument to an employee or an employer does

not include a deemed employee or a deemed employer, unless the

instrument is, after commencement, varied to make it clear that the

reference is intended to include a deemed employee or deemed

employer.

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(3) This clause is not to be taken to confer a power to vary the

instrument.

5 Application of Division 3 of Part 6-4A of amended Act

For the purposes of Division 3 of Part 6-4A of the amended Act, an

entity is not an indirectly responsible entity in relation to particular

TCF work if the arrangement to which the entity is a party, being

the arrangement because of which the work can be regarded as

being performed indirectly for the entity, was entered into before

commencement.

6 Application of subsection 203(2A) of amended Act

Subsection 203(2A) of the amended Act applies in relation to

enterprise agreements made after commencement.

7 Regulations dealing with various matters

Application, saving and transitional

(1) The regulations may make provisions dealing with matters of an

application, saving or transitional nature relating to the

amendments made by the amending Act.

(2) The provisions of this Part have effect subject to any regulations

that are made for the purpose of subclause (1).

Application to TCF outworkers of provisions of the Fair Work

(Transitional Provisions and Consequential Amendments) Act

2009

(3) The regulations may make provisions dealing with how the Fair

Work (Transitional Provisions and Consequential Amendments)

Act 2009 applies in relation to TCF outworkers.

(4) Without limiting subclause (3), regulations made for the purposes

of that subclause may:

(a) provide that the Fair Work (Transitional Provisions and

Consequential Amendments) Act 2009 applies with specified

modifications; or

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(b) otherwise make provision relating to how provisions of that

Act apply.

Regulations may be expressed to take effect before registration

(5) Despite subsection 12(2) of the Legislative Instruments Act 2003,

regulations made for the purposes of subclause (1) or (3) of this

clause may be expressed to take effect from a date before the

regulations are registered under that Act.

Commonwealth of Australia Bills

FAIR WORK AMENDMENT (TEXTILE, CLOTHING AND FOOTWEAR INDUSTRY) BILL 2011 [2012]