Commonwealth Numbered Regulations

WORKPLACE RELATIONS AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 263 - SCHEDULE 1

(regulation 3)

[1] After regulation 32A

insert in Part 6A

32AB Recovery of pay by contract outworkers in Victoria in textile, clothing and footwear industry — small claims procedure
(1) For subsection 547 (1) of the Act, 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 giving a copy of the papers initiating the action, together with a copy of the paper (if any) mentioned in subparagraph (a) (ii), to every other party to the action.

(2)

Subregulation (1) 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.

32AC Recovery of small claims by contract outworkers in Victoria in textile, clothing and footwear industry — maximum amount

For paragraph 547 (2) (a) of the Act, the prescribed amount is $10 000.

[2] Subregulations 131A (1) and (1AA)

omit

Part.

insert

Division.

[3] After regulation 131K

insert

131KA False or misleading entry
(1) A person commits an offence if:

(a)

the person makes, or makes use of, an entry in any record required to be kept under this Division; and

(b) the person does so knowing that the entry is false or misleading.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that the record is required to be kept under this Division.

Note
For strict liability , see section 6.1 of the Criminal Code .

[4] Regulation 131R

substitute

131R Offences

(1)

Nothing in this Division makes the Crown in right of the Commonwealth, a State or a Territory liable to prosecution.

(2)

An act or omission that occurs on or before 30 June 1993 is not an offence under this Division.

[5] Regulation 131U

substitute

131TA Form of record

(1)

A record relating to an employee to which this Division applies must be in a condition that enables an inspector to determine whether the employee's conditions of employment are being complied with.

(2) The record must be:

(a)

in a legible form in the English language; or

(b)

in a form that is readily accessible, and is convertible into a legible form in the English language.

131TB Alteration and correction of records
(1) Subject to subregulation (2) or (3), an employer must not:

(a)

alter a record mentioned in regulation 131T; or

(b) allow a record mentioned in regulation 131T to be altered.

Penalty:
10 penalty units.

(2) An employer must correct any error in a record as soon as practicable.

Penalty:
10 penalty units.

(3) An employer who corrects an error in a record must record the nature of the error with the correction.

Penalty:
10 penalty units.

131TC Inspection and copying of records
(1) An employer must make a copy of a record available, in accordance with subregulations (2) and (3), on request by:

(a)

the employee, or the former employee, to whom the record relates; or

(b) an inspector.

Penalty:
10 penalty units.

(2)

The employer must make the copy available in a legible form in the English language to the person making the request, for inspection and copying.

(3) The employer must make the copy available:

(a)

if the record is kept at the premises where the employee works or, in the case of a former employee, where the former employee last worked for the employer — at once at those premises; or

(b) in any other case — within 14 days:

(i)

at those premises; or

(ii)

at other premises within 25 kilometres of those premises; or

(iii)

at premises agreed between the employer and the person making the request.

131TD Information concerning records
(1) An employer to whom a request is made by a person under subregulation 131TC (1) must tell the person, on request, where records relating to an employee, or a class of employees, are kept.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that subregulation 131TC (1) applies to the request.

Note
For strict liability , see section 6.1 of the Criminal Code .

(3)

The person may interview the employer, or a representative of the employer, at any time during ordinary working hours, about a record made or to be made by the employer.

(4) The employer must give reasonable assistance to the person in the conduct of the interview.

Penalty:
10 penalty units.

131U False or misleading entry
(1) A person commits an offence if:

(a)

the person makes, or makes use of, an entry in any record required to be kept under this Division; and

(b) the person does so knowing that the entry is false or misleading.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that the record is required to be kept under this Division.

Note
For strict liability , see section 6.1 of the Criminal Code .

131UA Offences

Nothing in this Division makes the Crown in right of the Commonwealth, a State or a Territory liable to prosecution.

[6] Part 9A, after Division 2

insert

Division 3 Employees in Victoria not employed under award, certified agreement, AWA, employment agreement or old IR agreement (Part XV of Act)
131V Application of Division 3
For section 514 of the Act, this Division applies to the employer of an employee in Victoria who is employed otherwise than under the following:

(a)

an award;

(b)

a certified agreement;

(c)

an AWA;

(d)

an employment agreement;

(e)

an old IR agreement.

131VA Records relating to employees — section 514 of the Act
(1) For subsection 514 (2) of the Act, the employer of an employee must make a record in relation to the employee in accordance with this Division.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that the record is in accordance with this Division.

Note
For strict liability , see section 6.1 of the Criminal Code .

(3) Subject to regulation 131VN, an employer must keep an entry in a record:
(a) in the case of a particular of a kind mentioned in regulation 131VC or paragraph 131VG (1) (e) — for a continuous period of 7 years starting on the earlier of:

(i)

the date on which entry is changed; or

(ii)

the date on which employee's employment with the employer is terminated; or

(b) in any other case — for a continuous period of 7 years after the date on which the entry is made.

Penalty:
10 penalty units.

(4) Strict liability applies in paragraph (3) (a) to the fact that the particular is of a kind mentioned in regulation 131VC or paragraph 131VG (1) (e).

Note
For strict liability , see section 6.1 of the Criminal Code .

131VB Form of record

(1)

A record relating to an employee to which this Division applies must be in a condition that enables an inspector to determine whether the employee's conditions of employment are being complied with.

(2) The record must be:

(a)

in a legible form in the English language; or

(b)

in a form that is readily accessible, and is convertible into a legible form in the English language.

(a)

the employer's name;

(b)

the employee's name;

(c)

the employee's date of birth as provided by the employee;

(d) the employee's work classification and declared industry sector (if any);

Note
The terms declared industry sector and work classification are defined in section 489 of the Act.

(e) whether the employee's employment is:

(i)

full-time; or

(ii)

part-time;

(f) whether the employee's employment is:

(i)

permanent; or

(ii)

temporary; or

(iii)

casual;

(g)

the date on which the employee's employment began.

131VD Contents of record — overtime
If overtime may be paid to the employee, the record must state:

(a)

the number of hours worked by the employee during each day; and

(b)

when the employee started and ceased work.

131VE Contents of record — remuneration

The record must state the rate of remuneration at which the employee is paid, including the gross and net amounts paid, and the deductions made from that remuneration.

131VF Contents of record — leave
If the employee is entitled to leave of any kind, the record must include details of:

(a)

the leave taken by the employee; and

(b)

the employee's entitlement from time to time to that leave; and

(c)

accrual of leave.

131VG Contents of record — superannuation contributions
(1) If the employer makes superannuation contributions for the employee's benefit, the record must state:

(a)

the amount of the contributions made; and

(b)

the period for which the contributions were made; and

(c)

when the contributions were made; and

(d)

the name of each fund to which the contributions were made; and

(e) the basis on which the employer became liable to make the contributions, including:

(i)

whether any election was made as to the fund to which contributions are to be made; and

(ii)

the date of any relevant election; and

(iii)

the name of the person who made each relevant election.

(2)

If a record states that an election was made, the record must include a copy, or details of the election.

(3) In paragraphs (1) (a), (b) and (c):

contributions does not include contributions to a defined benefit superannuation fund within the meaning of the Occupational Superannuation Standards Regulations.

131VH Contents of record — termination of employment
If the employee's employment is terminated, the record must state:
(a) whether the employment was terminated:

(i)

by consent; or

(ii)

by notice; or

(iii)

summarily; or

(iv)

in another manner, specifying the manner; and

(b)

the name of the person who acted to terminate the employment.

131VJ Alteration and correction of records
(1) Subject to subregulation (2) or (3), an employer must not alter a record, or allow a record to be altered.

Penalty:
10 penalty units.

(2) An employer must correct any error in a record as soon as the employer becomes aware of the error.

Penalty:
10 penalty units.

(3) An employer who corrects an error in a record must record the nature of the error with the correction.

Penalty:
10 penalty units.

131VK False or misleading entry
(1) A person commits an offence if:

(a)

the person makes, or makes use of, an entry in a record required to be kept under this Division; and

(b) the person does so knowing that the entry is false or misleading.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that the record is required to be kept under this Division.

Note
For strict liability , see section 6.1 of the Criminal Code .

131VL Inspection and copying of records
(1) An employer must make a copy of a record available, in accordance with subregulations (2) and (3), on request by:

(a)

the employee, or the former employee, to whom the record relates; or

(b) an inspector.

Penalty:
10 penalty units.

Note
The powers that an inspector may exercise under this regulation are set out in section 86 of the Act.

(2)

The employer must make the copy available in a legible form in the English language to the person making the request, for inspection and copying.

(3) The employer must make the copy available:

(a)

if the record is kept at the premises where the employee works or, in the case of a former employee, where the former employee last worked for the employer — at once at those premises; or

(b) in any other case — within 14 days:

(i)

at those premises; or

(ii)

at other premises within 25 kilometres of those premises; or

(iii)

at premises agreed between the employer and the person making the request.

131VM Information concerning records
(1) An employer to whom a request is made by a person under subregulation 131VL (1) must tell the person, on request, where records relating to an employee, or a class of employees, are kept.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that subregulation 131VL (1) applies to the request.

Note
For strict liability , see section 6.1 of the Criminal Code .

(3)

The person may interview the employer, or a representative of the employer, at any time during ordinary working hours, about a record made or to be made by the employer.

(4) The employer must give reasonable assistance to the person in the conduct of the interview.

Penalty:
10 penalty units.

131VN Transfer and assignment of business

(1)

This regulation applies if an employer (the former employer ) transfers or assigns the business or a part of the business in which the employee is employed and the employee becomes an employee of the transferee or assignee (the new employer ).

(2) Subject to subregulation (4), the former employer must transfer to the new employer all records concerning the employee that, at the date of transfer or assignment, the former employer is required to keep under regulation 131VA.

Penalty:
10 penalty units.

(3) Strict liability applies in subregulation (2) to the fact that the records are required to be kept under regulation 131VA.

Note
For strict liability , see section 6.1 of the Criminal Code .

(4)

If the former employer is a Commonwealth authority, the former employer must transfer to the new employer a copy of all records concerning the employee that, at the date of transfer or assignment, the former employer is required to keep under regulation 131VA.

(5) The new employer who receives transferred records must keep the transferred records as if they had been made by the new employer at the time they were made by the former employer.

Penalty:
10 penalty units.

(6)

The new employer is not required to make records of anything occurring in the course of an employee's employment with the former employer.

131VO Offences

(1)

Nothing in this Division makes the Crown in right of the Commonwealth, a State or a Territory liable to prosecution.

(2)

An act or omission that occurs on or before 31 December 2004 is not an offence under this Division.

Division 4 Contract outworkers in Victoria in the textile, clothing and footwear industry
131W Application of Division 4
For section 549 of the Act, this Division applies to a person (a  record keeper ) who:

(a)

is a party to a contract for services referred to in subsection 541 (1) of the Act; and

(b)

is obliged to pay for work to which that subsection applies ( contract work ).

131WA Outworker records relating to contract work
(1) A record keeper must make an outworker record in relation to contract work in accordance with this Division.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that the outworker record is in accordance with this Division.

Note
For strict liability , see section 6.1 of the Criminal Code .

(3) Subject to regulation 131WJ, a record keeper must keep an entry in a record for a continuous period of 7 years after the latest of the following dates:

(a)

the date on which the entry is made;

(b)

the date on which the entry is changed;

(c) the date on which payment is made to the outworker for the contract work.

Penalty:
10 penalty units.

131WB Form of outworker record

(1)

An outworker record relating to contract work to which this Division applies must be in a condition that enables an inspector to determine whether payment to the outworker complies with the Act.

(2) The outworker record must be:

(a)

in a legible form in the English language; or

(b)

in a form that is readily accessible, and is convertible into a legible form in the English language.

131WC Contents of outworker record — general
An outworker record must contain the following particulars:

(a)

the name of the record keeper;

(b)

the name of the contract outworker;

(c)

if any of the contract work is performed by an individual who is not party to the contract — the name of that individual;

(d)

details of the contract work to be performed;

(e)

details of the contract work completed, including the date of completion;

(f)

the date on which the contract started.

131WD Contents of outworker record — remuneration
The outworker record relating to the contract work must state:

(a)

the contract price for the work; and

(b)

the rate or basis at which the price for the work is determined; and

(c)

if the record keeper knows the hours worked in relation to the work — the hours worked; and

(d)

payments made for the work.

131WE Alteration and correction of outworker records
(1) Subject to subregulation (2) or (3), a record keeper must not alter an outworker record, or allow an outworker record to be altered.

Penalty:
10 penalty units.

(2) A record keeper must correct any error in an outworker record as soon as the record keeper becomes aware of the error.

Penalty:
10 penalty units.

(3) A record keeper who corrects an error in an outworker record must record the nature of the error with the correction.

Penalty:
10 penalty units.

131WF False or misleading entry
(1) A person commits an offence if:

(a)

the person makes, or makes use of, an entry in any outworker record required to be kept under this Division; and

(b) the person does so knowing that the entry is false or misleading.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that the outworker record is required to be kept under this Division.

Note
For strict liability , see section 6.1 of the Criminal Code .

131WG Inspection and copying of outworker records
(1) A record keeper must make a copy of an outworker record available, in accordance with subregulations (2) and (3), on request by:

(a)

the contract outworker to whom the outworker record relates; or

(b) an inspector.

Penalty:
10 penalty units.

Note
The powers that an inspector may exercise under this regulation are set out in section 542 of the Act.

(2)

The record keeper must make the copy available in a legible form in the English language to the person making the request, for inspection and copying.

(3) The record keeper must make the copy available:

(a)

if the outworker record is kept at the premises occupied by the record keeper at the time the contract work was done — at once at those premises; or

(b) in any other case — within 14 days:

(i)

at those premises; or

(ii)

at other premises within 25 kilometres of those premises; or

(iii)

at premises agreed between the record keeper and the person making the request.

131WH Information concerning outworker records
(1) A record keeper to whom a request is made by a person under subregulation 131WG (1) must tell the person, on request, where outworker records relating to the contract work are kept.

Penalty:
10 penalty units.

(2) Strict liability applies in subregulation (1) to the fact that subregulation 131WG (1) applies to the request.

Note
For strict liability , see section 6.1 of the Criminal Code .

(3)

The person may interview the record keeper, or a representative of the record keeper, at any time during ordinary working hours, about an outworker record made or to be made by the record keeper.

(4) The record keeper must give reasonable assistance to the person in the conduct of the interview.

Penalty:
10 penalty units.

131WJ Transfer and assignment of business
(1) This regulation applies if:

(a)

a record keeper (the former record keeper ) transfers or assigns the business or a part of the business for which contract work was done; and

(b)

after the transfer or assignment, the contract outworker who performed the work performs contract work for the transferee or assignee (the new record keeper ).

(2) Subject to subregulation (3), the former record keeper must transfer to the new record keeper all outworker records concerning the contract outworker mentioned in subregulation (1).

Penalty:
10 penalty units.

(3)

If the former record keeper is a Commonwealth authority, the former record keeper must transfer to the new record keeper a copy of all outworker records concerning the contract outworker mentioned in subregulation (1).

(4) The new record keeper who receives transferred outworker records must keep the transferred outworker records as if they had been made by the new record keeper at the time they were made by the former record keeper.

Penalty:
10 penalty units.

(5)

The new record keeper is not required to make outworker records of contract work performed for the former record keeper.

131WK Offences

(1)

Nothing in this Division makes the Crown in right of the Commonwealth, a State or a Territory liable to prosecution.

(2)

An act or omission that occurs on or before 31 December 2004 is not an offence under this Division.