Commonwealth Numbered Regulations - Explanatory Statements Commonwealth Numbered Regulations - Explanatory Statements[Index] [Search] [Download] [Related Items] [Help]
WORKPLACE RELATIONS AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 263
Issued by the authority of the Minister for Employment and Workplace Relations
Workplace Relations Act 1996
Workplace Relations Amendment Regulations 2004 (No. 2)
The Workplace Relations Act 1996 (the Act) provides a statutory framework for co-operative workplace relations in the federal jurisdiction.
Subsection 359(1) of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 353A(1) of the Act provides that regulations may be made requiring employers of employees under an award, certified agreement or AWA to make and retain records relating to the employment of those employees and for inspection of those records. Subsection 353A(2) provides that regulations may require these employers to issue pay slips to those employees at such times and containing such particulars as are prescribed in the regulations.
In 1996 the Parliament of Victoria referred the majority of its legislative power in relation to workplace relations to the Parliament of the Commonwealth with the result that minimum terms and conditions of employment of employees in Victoria who are not covered by an award, certified agreement, AWA, old IR agreement or Victorian employment agreement are set out in Schedule 1A to the Act.
The Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 (the Amendment Act) amended the Act with effect on 1 January 2004 by, among other matters, improving the workplace relations arrangements in Victorian workplaces for employees covered by Schedule 1A to the Act. In addition, it established a minimum rate of pay for contract outworkers in the TCF industry in Victoria.
The Amendment Act also amended section 514 of the Act to provide for the enforcement of these entitlements by allowing regulations to be made in relation to the keeping and inspection of records for employees in Victoria not covered by an award, certified agreement or AWA. These are employees employed under State employment agreements or covered by Schedule 1A. In particular, the Amendment Act inserted section 549 into the Act which provides for regulations to be made in relation to the keeping and inspection of records for contract outworkers in the TCF industry.
The purpose of the Regulations is to give effect to the changes in the Act which extend the record keeping requirements and inspection powers already in force for employees employed under awards, certified agreements or AWAs to all employees in Victoria and to contract outworkers in the TCF industry in Victoria. The Regulations prescribe the records to be made and kept by employers of employees covered by Schedule 1A and by a party to a contract for services who is obliged to pay for work performed by contract outworkers.
The Regulations amend the Workplace Relations Regulations 1996 (the WR Regulations) to prescribe the requirements for keeping and inspection of record:
• for employees covered by Schedule 1A, as provided for by subsection 514(2) of the Act; and
• contract outworkers as provided for by subsection 549(1) of the Act.
The Regulations also prescribe procedures and obligations for the inspection of records in relation to:
• employees employed under Victorian employment agreements and employees covered by Schedule 1A, as provided for by subsection 514(2) of the Act; and
• contract outworkers, as provided for by subsection 549(1) of the Act.
The Regulations also set out the procedures to be followed by contract outworkers in the TCF industry to indicate that they wish to commence an action to recover unpaid entitlements under small claims procedures.
The Act does not impose any conditions that need to be met before the power to make the Regulations may be exercised.
Details of the Regulations are attached.
The Regulations commence on the date of their notification in the Gazette.
REGULATION IMPACT STATEMENT
Workplace Relations Amendment Regulations 2004 (No. 2)
PART XV - SCHEDULE 1A WORKERS
BACKGROUND
1. In 1996 Victoria referred the majority of its legislative power in relation to workplace relations to the Commonwealth with the result that minimum pay and conditions of employment for employees in Victoria are established by:
(a) a federal award, if the employer, or an employer organisation of which the employer is a member, is named as a bound party in the award; or
(b) a certified agreement or Australian workplace agreement (AWA), where employers and employees have agreed to the terms and conditions of such an agreement; or
(c) an old IR agreement or Victorian employment agreement; or, in all other cases
(d) Schedule 1A of the Act.
2. The Amendment Act amended the Act to:
• give Schedule 1A employees an entitlement to payment for work performed in excess of 38 hours a week;
• give Schedule 1A employees an entitlement to eight days personal leave -which can be taken as sick leave, with up to five of the eight days available as carer's leave;
• give Schedule 1A employees an entitlement to two days bereavement leave for the death of a member of their family or of their household; and
• give the Australian Industrial Relations Commission power to include supported wage arrangements in industry sector orders.
3. The Amendment Act also improved arrangements for the enforcement of Schedule 1A by:
• giving inspectors the right to enter workplaces where employees are employed under Schedule 1A to investigate alleged breaches of the Act, and to inspect records held by the employer, without prior notice;
• allowing regulations to be made requiring employers to keep employment records for employees who are not employed under federal awards, certified agreements or AWAs; and
• providing that a breach of Schedule 1A conditions can be prosecuted under sections 178 and 179 of the Act.
PROBLEM
4. Employers of employees covered by an award, certified agreement, AWA or old IR agreement are required by regulations 131A - 131U of the WR Regulations to keep records in relation to those employees that allow an inspector to determine whether the employment conditions set out in the award, certified agreement, AWA or old IR agreement have been complied with. It is an offence if the records are not kept as required under the regulations.
5. Employers who employ employees under Schedule 1A of the Act have not been required to keep any records regarding employees, however they have been required to issue payslips under regulation 132E. Employers who employ employees under state employment agreements have been required to keep records and issue payslips but have not been required to make the records available for inspection by inspectors.
6. Following the commencement of the Amendment Act, section 514 of the Act allows regulations to be made requiring employers of employees in Victoria not employed under an award, certified agreement or AWA to;
• make and retain employment records;
• permit the inspection of such records; and
• issue pay slips.
8. The purpose in making and keeping the records is to demonstrate that employees are receiving entitlements of at least the minimum entitlements prescribed by Schedule 1A of the Act.
OBJECTIVE
9. A key objective of the Amendment Act is to provide improved protection for Schedule 1A employees while not imposing undue costs on business.
10. This Regulation Impact Statement (RIS) concerns a proposal to make regulations under the Act that require Victorian employers to keep employment records for Schedule 1A employees.
11. The objective of the proposed regulations is to ensure compliance with the minimum entitlements set out in Schedule 1A by requiring employers to maintain employment records demonstrating that the minimum entitlements have been met.
12. The two options to address the problem are:
• to make regulations requiring employers to keep records sufficient to demonstrate that they are meeting their obligations under Schedule 1A; or
• to maintain the status quo and not make regulations.
OPTIONS
Option A - making regulations requiring employers to keep employment records for Schedule 1A employees
13. This option would require employers to keep records which clearly demonstrate that employees are receiving the minimum entitlements under Schedule 1A; for example, a record of:
• the employee's work classification and declared industry sector;
• payments made to the employee;
• the basis on which payments were calculated;
• overtime - including hours worked; and
• leave accrued and taken.
14. Enforcement of the minimum entitlements under Schedule 1A depends on inspectors or employees being able to inspect records of the payments made to, and the entitlements received by, employees.
15. The proposed regulations would be substantially the same as the existing time and wage records regulations which apply to employers of employees covered by an award, certified agreement, AWA or old IR agreement.
16. Where the employer fails to keep adequate records, or fails to produce the records for inspection, the employer would be liable to incur a penalty.
Costs and benefits to government
17. This option would be beneficial to the government as it would give regulatory effect to the policy objective of the Amendment Act, which is to improve the conditions of Schedule 1A employees. Without a requirement for employers to keep records demonstrating that Schedule 1A entitlements have been met, it is difficult to determine if employees are receiving their statutory entitlements.
18. Because Victorian employers are already required to keep time and wage records for employees covered by a federal award or agreement, this option assists in establishing consistency for time and wage records for all Victorian employees. This is beneficial to the government as one of its key policy objectives is to work towards a simplified workplace relations system.
19. There may be some impact on enforcement and compliance costs for the Department of Employment and Workplace Relations. However, as the Department is already responsible for services in relation to entitlements under Schedule 1A, there would be no increase in the number of employees and employers to whom the services are provided. It is anticipated that any additional enforcement costs will be absorbed within existing budget allocations.
Costs and benefits to business
20. There is currently no requirement for employers of Schedule 1A employees to keep employment records. While this option would impose a new regulatory requirement on employers, the impact on business is likely to be minimal as the regulations will impose only the minimum record keeping requirements necessary to enable compliance with Schedule 1A to be established. Furthermore, employers are already required to keep some records for taxation purposes and most businesses would already keep employment records which comply with the proposed regulations.
21. This option would provide evidence to employers that they were meeting the minimum terms and conditions of employment under Schedule 1A as they would be required to document the details of these terms and conditions. In the event of a dispute, the records would be valuable to employers as evidence that they have met their obligations.
22. The proposed regulations would also provide administrative consistency to employers who employ both federal award or agreement employees and Schedule 1A employees as the record keeping requirements would be substantially the same for both groups.
23. The issue of record keeping and payslip requirements has been discussed at length at the Workplace Relations Ministers' Council and the National Workplace Relations Consultative Council. At both forums, time and wage templates have been agreed to by all jurisdictions and have been endorsed by the Australian Chamber of Commence and Industry, which has undertaken to promote them to members.
24. The proposed regulations would not need to be as comprehensive as the templates. In addition, consultation with employer representatives has indicated that many employers that would be affected by the proposed regulations are already meeting the requirements of the proposed regulations.
Costs and benefits to employees
25. There are no costs to employees.
26. Enforcement of the minimum entitlements under Schedule 1A will be assisted by the requirement for employers to keep and produce records documenting the terms and conditions of employment. This will benefit employees as employers will be legally required to keep records demonstrating that the employee is receiving the minimum entitlements under Schedule 1A. Under this option there will be less scope for employers to avoid their obligations under Schedule 1A.
27. This option would also ensure employees are aware of their minimum entitlements and have access to their employment records.
Option B - maintain the status quo and do not regulate
28. Under this option, there would be no requirement for employers to keep and maintain records demonstrating that the minimum terms and conditions of employment have been met.
Costs and benefits to government
29. Under this option, there would be no regulatory requirement on employers to maintain records demonstrating that the minimum terms and conditions of employment had been met. However inspectors would still have the right to enter Schedule 1A workplaces to investigate alleged breaches of the Act and to demand documents from an employer without prior notice. This would have a significant impact on inspectors who would be unable to quickly determine whether the minimum terms and conditions of employment were being met. This option would increase the workload of inspectors and the cost of enforcement and compliance for the government.
Costs and benefits to business
30. Some businesses may favour this option as there would be no regulatory requirement to keep records for employees covered by Schedule 1A and employers could therefore not be penalised for failing to keep adequate records.
31. While there would be no regulatory requirement to keep records under this option, inspectors would still have the right to enter Schedule 1A workplaces to investigate alleged breaches of the Act and to demand documents from an employer. This would be disruptive to the employer, and to this extent, it would be better for the employer if the inspector could access records clearly demonstrating that Schedule 1A obligations have been met.
32. Without a specific regulatory requirement to keep and maintain records, some businesses may be less likely to adopt good business practice.
Costs and benefits to employees
33. Schedule 1A provides a safety net of minimum terms and conditions of employment for employees who do not have the protection of a federal award, certified agreement, AWA, old IR agreement or Victorian employment agreement. It is important that the minimum terms and conditions are able to be enforced. This option would be detrimental to employees as there would be no regulatory requirement for employers to keep records demonstrating that the minimum terms and conditions of employment have been met. Without documentary evidence, an employee may have difficulty establishing that an employer had failed to meet the minimum terms and conditions of employment.
34. To ensure compliance with federal awards, certified agreements, AWAs, old IR agreements and Victorian employment agreements, regulations require employers to keep time and wage records demonstrating that the terms and conditions of the award or agreement have been met. Under this option, the same protection would not be afforded to Schedule 1A employees.
CONSULTATION
35. Recent consultations with employer representatives such as ACCI, VECCI, and AiG, have confirmed support for the regulations. Employers believe that the regulations will eliminate the confusion created by varying requirements as to what records need to be kept for different employees. Employer representatives have outlined that they expect the regulations to be substantially the same as the current regulations which govern record keeping requirements for employers of employees covered by an award, certified agreement, AWA or old IR agreement.
36. As outlined above, there has been extensive consultation with employer and employee representatives through the National Workplace Relations Consultative Council regarding the use of time and wage templates. As employer representatives have confirmed that many employers are already using the templates, it is envisaged that the introduction of time and wage record regulations will have a minimal impact on employers.
SUMMARY
37. As Schedule 1A of the Act provides a safety net of minimum terms and conditions of employment for employees who are not protected by a federal award, certified agreement, AWA, old IR agreement or Victorian employment agreement, it is desirable that these terms and conditions are able to be enforced. Option A provides a mechanism where employers will be required to keep employment records demonstrating that they have met their obligations under Schedule 1A. This option is likely to improve compliance among employers as they are not currently required to keep employment records. However, because the proposed regulations under this option would require only minimal record keeping requirements, it is envisaged that the cost of compliance will be minimal. Furthermore, as outline above, most employers already keep these records for taxation and general business purposes. Option A would be beneficial for the government, for inspectors, for employers and employees.
38. On the other hand, Option B, maintaining the status quo, does not assist the enforcement of Schedule 1A minimum terms and conditions. Under this option employers would not be required to maintain employment records demonstrating that they had met their obligations under Schedule 1A, although they would still be required to meet these obligations. Furthermore, inspectors would still be able to enter Schedule 1A workplaces to investigate possible breaches of the Act. It is considered that the costs of this option to the government, inspectors, employees and also to employers outweigh the benefits.
39. Option A is therefore the recommended approach.
CONTRACT OUTWORKERS IN THE TEXTILE, CLOTHING AND FOOTWEAR INDUSTRY IN VICTORIA
BACKGROUND
40. The Amendment Act amends the Act to establish a minimum rate of pay for contract outworkers in the TCF industry in Victoria. The basis of this minimum rate of pay is the greater of the applicable minimum rate of pay set under Schedule 1A of the Act and the rate payable under the common rule award (if any) that would be applicable to the work, if the work were performed by an employee, whichever is higher.
41. Section 549 of the Amendment Act provides that regulations can be made in relation to the making of contract outworker records, the inspection of contract outworker records, the giving of contract outworker records by a party to the contract to another party and the retention of contract outworker records.
PROBLEM
42. Under pressure for greater international competitiveness, the TCF industry has undergone major restructuring in recent years. This has resulted in high volume manufacturing in the industry tending to move off-shore. Where manufacturing has remained in Australia, there appears to have been a shift from factory based work, to contract outwork. This situation appears to be most prevalent in the TCF industry, particularly the clothing industry.
43. Contract outworkers engaged within the TCF industry within Australia are generally considered to be in a disadvantaged industrial position. Contract outworkers are generally independent contractors rather than employees and are therefore not covered by any industrial instruments guaranteeing them minimum entitlements and conditions. Consequently, contract outworkers often receive payment, and work under conditions inferior to factory workers doing comparable work.
44. The Amendment Act addresses this situation for contract outworkers in the TCF industry in Victoria by amending the Act to establish a minimum rate of pay. The Amendment Act provides for the enforcement of this entitlement by authorising federal workplace inspectors to enter premises and inspect documents to establish whether or not the minimum rate of pay is being paid. However, at present there is no requirement for businesses to keep records relating to contract outworkers. Enforcement of the amendment to the Act establishing a minimum rate of pay is likely to be frustrated by a lack of appropriate records. The Amendment Act provides that regulations can be made in relation to the making of contract outworker records.
OBJECTIVE
45. One of the objectives of the Amendment Act is to ensure that the rate of pay paid to contract outworkers in the TCF industry in Victoria is in keeping with accepted norms for employees in the industry. The Amendment Act does this by providing a minimum rate of pay for contract outworkers in the TCF industry in Victoria and by authorising federal workplace inspectors to enter premises where contract outworker records are kept to determine compliance with the entitlement.
46. The objective of the proposed regulations is to assist enforcement of the minimum rate of pay by requiring businesses to keep records demonstrating that the entitlement has been paid.
47. This RIS considers the costs and benefits of making regulations in relation to the keeping and inspection of records for contract outworkers (Option A). It also considers the costs and benefits of not making regulations (Option B).
OPTIONS
Option A - the introduction of regulations that require records to be kept
in relation to contract outworkers in the TCF industry in Victoria
48. Successful enforcement of the minimum wage entitlement established by s. 541 of the Amendment Act will depend on inspectors having access to records which demonstrate that the contract outworker has received at least the minimum wage.
49. The proposed regulations are likely to increase administration costs for certain businesses in the Victorian TCF industry. This option therefore recommends that the regulations impose only the minimum record keeping requirements to enable inspectors to determine whether the minimum wage is being paid. This would include; work performed, the hours worked, the payments made in respect of the work performed, and the basis on which payments were calculated. Where a business fails to keep adequate records, or fails to produce the records for inspection, the business would be liable to incur a penalty.
Costs and benefits to government
50. This option would be beneficial to the government as it would assist the enforcement of the minimum wage rate for contract outworkers in the TCF industry in Victoria.
51. It is estimated that there are approximately 144,000 contract outworkers in Victoria. It is anticipated that there would be a modest impact on enforcement and compliance costs for the Department of Employment and Workplace Relations. This could be accommodated within current budgetary allocations.
Costs and benefits to business
52. There is currently no requirement for businesses hiring contract outworkers to keep and maintain records relating to outworkers or the work they perform. This option would therefore impose a new regulatory requirement on businesses hiring contract outworkers in the TCF industry in Victoria. However, as the proposed regulations will impose only the minimum record keeping requirements to enable inspectors to determine whether or not the minimum wage rate is being paid to contract outworkers, the effect on business is likely to be minimal. Additionally, most businesses already keep some sort of record of work performed, and payment made in respect of work performed, as part of standard business practice.
53. This option would provide certainty to businesses that they are meeting their obligations under the Act as they would be required to document the details of payments made. In the event of a dispute, the records would be valuable to business as proof that the minimum rate was being paid.
54. The issue of record keeping requirements has been discussed at length at the Workplace Relations Ministers' Council and the National Workplace Relations Consultative Council. At both meetings, time and wage templates have been agreed to by all jurisdictions and have been endorsed by the Australian Chamber of Commence and Industry, which has undertaken to promote them to members. While the proposed regulations will not need to be as comprehensive as the templates to meet requirements under the Act, consultation with employer representatives has indicated that many businesses that will be affected by the proposed regulations will already be using the templates and will therefore already be meeting the requirements of the proposed regulations.
55. As many businesses already keep certain records of work performed and payment for work performed as good business practice, the cost to business is likely to be minimal.
Costs and benefits to contract outworkers
56. There are no costs to contract outworkers.
57. Enforcement of the minimum rate of pay depends on inspectors having defined powers of inspection and the power to require businesses to produce records documenting that the minimum rate of pay has been paid. This will benefit contract outworkers as businesses will be legally required to keep records demonstrating that the contract outworker is receiving the minimum entitlement under the Act. Under this option there will be less scope for businesses to avoid their obligations under the Act.
58. This option will also provide certainty to contract outworkers of the detail of the records that would be kept on their behalf.
Option B - maintain the status quo and do not regulate
59. While the Amendment Act requires businesses hiring contract outworkers in the TCF industry in Victoria to meet the minimum wage rate for work performed, under this option there would be no regulatory requirement on businesses to keep and maintain records documenting the nature of the work performed or the rate of pay.
Costs and benefits to government
60. The most significant cost to government if regulations are not drafted, is that it would be difficult to enforce the minimum wage rate for contract outworkers.
61. The Amendment Act gives inspectors the right to enter premises where contract outworker records are kept to investigate alleged breaches of the Act, and to demand records from businesses without prior notice. Under this option however, there would be no regulatory requirement on businesses to keep and maintain records demonstrating that the minimum rate of pay has been paid. This would have a significant impact on inspectors who would be unable to quickly determine whether the minimum rate of pay has been paid. This option would involve a higher workload for inspectors than Option A and higher costs of enforcement for government.
Costs and benefits to business
62. This option would be beneficial to business as there would be no regulatory requirement to keep and maintain records for contract outworkers, and therefore no additional administrative costs, or the risk of being penalised for failing to keep adequate records.
63. While there would be no regulatory requirement to keep and maintain records under this option, under s. 542 of the Act, inspectors would still have the right to enter premises relevant to contract outwork to investigate alleged breaches of the Act and to demand records from a business. This would be disruptive to the business, and to this extent, it would be better for the business if the inspector could access records clearly demonstrating that the minimum wage rate was being paid to the contract outworker.
Costs and benefits to contract outworkers
64. The Amendment Act provides a minimum wage rate for contract outworkers in the TCF industry in Victoria. This option would not be beneficial to contract outworkers as there would be no requirement on businesses hiring contract outworkers to keep records demonstrating that the minimum wage rate had been paid. Without documentary evidence, a contract outworker would have difficulty establishing that the business had failed to pay the minimum wage rate.
CONSULTATION
65. Following the introduction of the Amendment Act, the Office of Workplace Services, within the Department of Employment and Workplace Relations, established an Outworker Project Team (OPT) to investigate and report on levels of understanding of and compliance with, the contract outworker provisions of the Act.
66. In conducting education and compliance activities, it became obvious that there was a reluctance by contract outworkers to deal with OPT advisers. An outworker hotline was established and was advertised in the ethnic press, however no calls were received. Anecdotal evidence from industry bodies and contract outworkers confirms a general reluctance to deal with government representatives in general, for a range of cultural and other reasons.
67. To this extent, consultations with contract outworkers can neither support or negate the need for time and wage record regulations.
SUMMARY
68. The Amendment Act amended the Act to provide a minimum rate of pay for contract outworkers in the TCF industry in Victoria. Contract outworkers are generally considered to be one of the most disadvantaged working groups. To assist in the enforcement of this entitlement, Option A would require businesses that hire contract outworkers to keep minimal records demonstrating that the minimum wage rate has been paid. This option provides benefits to government, to government inspectors and to contract outworkers.
69. On the other hand, Option B, maintaining the status quo, does not assist the enforcement of the minimum wage rate. Under this option, businesses would not be required to maintain records demonstrating that they had paid the minimum wage rate, although they would still be required to do so. Furthermore, inspectors would still be able to enter premises where contract outworker records are kept to investigate possible breaches of the minimum wage rate. This option provides no benefit to government, to inspectors, or to contract outworkers.
70. Option A is therefore the recommended approach.
ATTACHMENT
DETAILS OF WORKPLACE RELATIONS AMENDMENT REGULATIONS 2004 (No. 2)
Regulation 1
Regulation 1 specifies that the name of the Regulations is the Workplace Relations Amendment Regulations 2004 (No. 2).
Regulation 2
Regulation 2 specifies that the Regulations commence on the date of their notification in the Gazette.
Regulation 3
Regulation 3 provides that the Workplace Relations Regulations 1996 (the Principal Regulations) are amended as provided for in Schedule 1.
Schedule 1 - Amendments
Item 1
Item 1 inserts regulations 32AB and 32AC after regulation 32A of Part 6A, of the Principal Regulations.
Regulation 32AB provides, for the purposes of subsection 547(1) of the Workplace Relations Act 1996 (the Act), the manner in which a person who is a contract outworker in the TCF industry in Victoria and who has commenced an action in a magistrates court may, in the absence of rules of the court to this effect, indicate that he or she wishes a small claims procedure to apply.
Subregulation 32AB(1) provides that the person may indicate he or she wants a small claims procedure to apply to an action that the person has commenced by:
• endorsing the papers initiating the action with a statement that he or she wants the small claims procedure to apply (subparagraph 32AB(1)(a)(i)); or
• lodging with the magistrates court a paper that identifies the action and states that he or she wants a small claims procedure to apply (subparagraph 32AB(a)(ii))
The person initiating the small claims procedure must also give a copy of the papers initiating the action and any paper referred to in- subparagraph 32AB(1)(a)(ii) to every other party to the action (paragraph 32AB(1)(b)).
Regulation 32AC provides, for the purposes of subsection 547(2) of the Act, the prescribed maximum amount that can be recovered by a contract outworker in the TCF industry in Victoria using a small claims procedure. The prescribed maximum amount is $10,000. This amount is the same as the amount which may be claimed by employees in Victoria under the small claims procedures. It is the maximum amount which may be awarded in that jurisdiction.
Item 2
Part 9A of the Principal Regulations deals with the keeping of employment records by employers of employees employed under awards, certified agreements, AWAs or Victorian employment agreements. Part 9A also deals with the inspection of records for employees employed under awards, certified agreements or AWAs.
This item amends subregulation 131A(1) and subregulation 131A(1AA) to remove the word 'Part' in those subregulations and replace it with the word 'Division'. This amendment is consequential to the introduction of Division 3 and Division 4 into Part 9A of the Principal Regulations (see item 6, below).
Item 3
This item inserts regulation 131KA after regulation 131K in Division 1 of Part 9A, of the Principal Regulations.
Subregulation 131KA(1) makes it an offence for a person to make, or make use of, an entry in any record which must be kept under Division 1 of Part 9A, if the person does so knowing that the entry is false or misleading. Failure to comply with the subregulation is an offence with a maximum penalty of 10 penalty points. A penalty unit is presently set at $110.
Subregulation 131KA(2) provides that strict liability applies to the fact that a record must be kept under Division 1 of Part 9A. The application of strict liability in this way reflects subsections 9.3(1) and 9.4(1) of the Criminal Code (and the common law position) that ignorance of the law is generally no excuse. The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included.
Item 4
Regulation 131R of the Principal Regulations provides for Crown immunity from prosecution. It also provides that an act or omission made on or before 30 June 1993, is not an offence. The record keeping regulations under Division 1 commenced on 26 August 1992. The offences commenced at a date after the regulations commenced to give employers time to comply with the regulations. This item amends regulation 131R so that it only applies to offences under Division 1 of Part 9A. This amendment is consequential to the separation of Part 9A into four divisions.
Item 5
This item removes regulation 131U and replaces it with regulations 131TA, 131TB, 131TC, 131TD, 131U and 131UA.
Subregulation 131TA provides that the record of an employee must be in a condition that allows an inspector to ascertain whether the employee's conditions of employment are being complied with. It also provides that records must be in the English language or in a form that is readily accessible and convertible into a legible form in the English language. This is a 'catch all' provision which ensures that, even if the regulations do not prescribe a particular record requirement, all necessary records are kept to enable an inspector to work out whether an employee has received his or her entitlements.
Subregulation 131TB(1) provides that an employer must not alter, or allow to be altered, a record made under regulation 131T unless the employer is required to do so under subregulations 131TB(2) or (3). (Regulation 131T requires an employer of an employee under an employment agreement to keep records of details such as the employee's name, classification, the pay received, all deductions made from the employee's pay and the reasons for the deductions, the employee's starting and finishing times, leave taken, superannuation contributions and any other matters required by the regulations.) Subregulation 131TA(2) requires an employer to correct any error in a record, as soon as practicable. Subregulation 131TA(3) requires an employer to record the nature of the error in a record where a correction is made. A failure to comply with each of these subregulations is an offence with a penalty of 10 penalty units.
Regulation 131TC provides for the inspection and copying of records. The regulation provides that an employer must make a copy of a record available, on request, to an employee, former employee or inspector (as defined in the Act). The copy must be in a legible form in the English language. Regulation 131TC also specifies where and when the copy should be made available to a person entitled to inspect it. Where an employer keeps records where the employee works, a copy of the record must be made available immediately. Likewise where a former employee is seeking a copy of a record and the record is kept where he or she previously worked, a copy of the record must be made available immediately. However, if the record is kept at another premises, the employer has 14 days to make a copy of the record available. In these circumstances, the employer may make the copy of the record available at the premises where the employee works or the former employee last worked for the employer, or another premises within 25 kilometres, or at any premises agreed between the employer and the person making the request. Failure to comply with the provision is an offence with a penalty of 10 penalty units.
Regulation 131TD requires an employer to tell a person entitled to inspect a copy of the records where the records are kept. Failure to comply with regulation 131TD is an offence with a penalty of 10 penalty units. Strict liability applies to the fact that subregulation 131TC(1) applies to the request. Therefore, ignorance of the requirement under subregulation 131TC(1) that an employer must make a copy of a record available to a person entitled to inspect the record is no excuse for failing to tell a person where the record is kept. This application of strict liability reflects subsections 9.3(1) and 9.4(1) of the Criminal Code and the common law position that ignorance of the law is generally no excuse. The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included. Subregulation 131TD(3) also provides that a person entitled to inspect a record may interview the employer or a representative of the employer during ordinary working hours about the record. Subregulation 131TD(4) provides that the employer or the representative of the employer must reasonably assist the interviewer in the conduct of the interview. Failure to comply with subregulation 131TD(4) is an offence with a penalty of 10 penalty units.
Subregulation 131U(1) makes it an offence for a person to make, or make use of, an entry in any record which must be kept under Division 2 of Part 9A, if the person does so knowing that the entry is false or misleading. Failure to comply with subregulation 131U(1) is an offence with a penalty of 10 penalty units. Subregulation 131U(2) provides that strict liability applies to the fact that a record must be kept under Division 2 of Part 9A. Therefore, ignorance of the requirement to keep a record under Division 2 of Part 9A, is no excuse for making use of an entry which is false or misleading. This application of strict liability reflects subsections 9.3(1) and 9.4(1) of the Criminal Code (and the common law position) that ignorance of the law is generally no excuse. The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included. Regulation 131U is amended to apply only to employers keeping records for employees employed under state employment agreements (in accordance with Part XV of the Act) under Division 2 of Part 9A, of the Principal Regulations. The amendment is consequential to the introduction of Divisions 3 and 4 into Part 9A of the Principal Regulations.
Regulation 131UA provides for Crown immunity from prosecution.
Item 6
This item inserts Division 3 and Division 4 in Part 9A, after Division 2 in Part 9A of the Principal Regulations. Division 3 sets out the record keeping requirements for employers of employees in Victoria who are not employed under an award, certified agreement, AWA, employment agreement or old IR agreement. These are Victorian employees covered by Subdivision B of Part XV of the Act. Division 4 sets out the record keeping requirements in relation to contract outworkers in the TCF industry in Victoria.
Division 3 - Employees in Victoria not employed under award, certified agreement, AWA, employment agreement or old IR agreement (Part XV of the Act)
Regulation 131V is an application provision. It provides that Division 3 of Part 9A, applies to the employer of an employee in Victoria who is not employed under an award, certified agreement, AWA, employment agreement or old IR agreement. Employees employed under an award, certified agreement, AWA or old IR agreement are covered by Division 1 of Part 9A. Employees employed under an employment agreement are covered by Division 2 of Part 9A.
Subregulation 131VA(1) requires an employer who employs an employee in Victoria, who is not employed under an award, certified agreement, AWA, employment agreement or old IR agreement, to keep records in accordance with Division 3 of Part 9A. The records must be kept:
• in the case of entries required under regulation 131VC (Contents of records -general) or paragraph 131VG(1)(e), for 7 years after the date on which an entry is changed or the employee's employment is terminated, whichever is the earliest; or
• in any other case, for 7 years after the entry is made.
Failure to keep the records as required under Division 3 of Part 9A, is an offence with a penalty of 10 penalty units.
Strict liability applies to the fact that the record must be in accordance with Division 3 of Part 9A or that it is of a kind required under regulation 131VC or paragraph 131VG(1)(e). This application of strict liability reflects subsections 9.3(1) and 9.4(1) of the Criminal Code (and the common law position) that ignorance of the law is generally no excuse. A standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included.
Regulation 131VB provides that the record relating to an employee must be in a condition that allows an inspector to ascertain whether an employee's minimum conditions of employment have been complied with. It also provides that records must be in the English language or in a form that is readily accessible and convertible into a legible form in the English language. This is a 'catch all' provision which ensures that, even if the regulations do not prescribe a particular record requirement, all necessary records must be kept to enable an inspector to work out whether an employee has received his or her entitlements.
Regulation 131VC provides that the record relating to an employee must contain a number of specified particulars concerning the employee and his or her employment such as the employer's name, the employee's name and date of birth, the employee's work classification and declared industry sector, whether the employee's employment is full-time or part-time, permanent, temporary or casual and the date on which the employee's employment began. The declared industry sector is defined in section 489 of the Act as an industry sector which is declared in a declaration in force under section 20 of the Employee Relations Act 1992 (Victoria) immediately before the commencement of the Commonwealth Powers (Industrial Relations) Act 1996 (Victoria)(17 December 1996). Similarly, the employee's work classification is defined in section 489 of the Act as a work classification that was, immediately before the commencement of the Commonwealth Powers (Industrial Relations) Act 1996 (Victoria), declared as a work classification under the Employee Relations Act 1992 (Victoria) or has been declared by the Employee Relations Commission of Victoria to be an interim work classification.
Regulation 131VD provides that, if overtime may be paid to the employee, the record relating to that employee must state the number of hours worked by the employee during each day and when the employee started and ceased work.
Regulation 131VE provides that the record must state the rate of remuneration at which the employee is paid including the gross and net amounts paid and the deductions, if any, made from that remuneration.
Regulation 131VF provides that, if the employee is entitled to leave of any kind, the record must state the leave taken by the employee, the employee's entitlement to the leave and the accrual of leave. This includes details of annual leave, sick leave, bereavement leave, carer's leave, long service leave, maternity leave, paternity leave and adoption leave.
Regulation 131VG provides that, if the employer makes superannuation contributions for the benefit of the employee, the record relating to that employee must state a number of particulars. These particulars include the amount of the contributions made, the period for which the contributions were made and when the contributions were made. These particulars are not required in respect of contributions to a defined benefit superannuation fund, as it is not possible to ascertain this information. Other particulars required for contributions to any fund include the name of the fund, the basis on which the employer became liable to make the contributions and details relating to choice of funds.
Regulation 131VH provides that, if the employee's employment is terminated, the record relating to that employee must state whether the termination was by consent, by notice or summarily or in some other manner and the name of the person who acted to terminate the employment.
Regulation 131VJ provides that an employer may only alter a record, or allow a record to be altered, if it is to correct an error. The employer must correct any error as soon as the employer becomes aware of the error and must record the nature of the error along with the correction. A failure to comply with this provision is an offence with a penalty of 10 penalty units.
Subregulation 131VK(1) makes it an offence for a person to make, or make use of, an entry in any record which must be kept under Division 3 of Part 9A, if the person does so knowing that the entry is false or misleading. A failure to comply with this provision is an offence with a penalty of 10 penalty units. Subregulation 131VK(2) provides that strict liability applies to the fact that a record is required to be kept under Division 3 of Part 9A. This application of strict liability reflects subsections 9.3(1) and 9.4(1) of the Criminal Code (and the common law position) that ignorance of the law is generally no excuse. The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included.
Regulation 131VL provides for the inspection and copying of records. The regulation provides that an employer must make a copy of a record available on request to an employee, a former employee or an inspector. The record must be in a legible form in the English language. Regulation 131VL also specifies where a record must be made available to a person entitled to inspect it. Where an employer keeps records where the employee works, a copy of the record must be made available immediately. Likewise where a former employee is seeking a copy of a record and the record is kept where he or she previously worked, a copy of the record must be made available immediately. However, if the record is kept at another premises, the employer has 14 days to make a copy of the record available. In these circumstances, the employer may make the copy of the record available at the premises where the employee works or the former employee last worked for the employer, or another premises within 25 kilometres, or at any premises agreed between the employer and the person making the request. Failure to comply with the provision is an offence with a penalty of 10 penalty units.
Regulation 131VM requires an employer to tell a person entitled to inspect a copy of the records, where the records are kept. Failure to comply with regulation 131VM is an offence with a penalty of 10 penalty units. Strict liability applies to the fact that subregulation 131VL(1) applies to the request. Therefore, ignorance of the requirement under subregulation 131VL(1), that an employer must make a copy of records available to a person entitled to inspect the copy, is no excuse for failing to tell a person where the record is kept. This application of strict liability reflects subsections 9.3(1) and 9.4(1) of the Criminal Code (and the common law position) that ignorance of the law is generally no excuse. The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included. Subregulation 131VM(3) also provides that a person entitled to inspect a record may interview the employer or a representative of the employer during ordinary working hours about the record. Subregulation 131VM(4) provides that the employer or the representative of the employer must reasonably assist the interviewer in the conduct of the interview. Failure to comply with this provision is an offence with a penalty of 10 penalty units.
Regulation 131VN provides that, in the event of transfer or assignment of a business, records concerning employees who become employees of the new employer as a consequence of the transfer or assignment must be transferred to the new employer. Strict liability applies to the fact that these records must be kept under regulation 131VA. If the former employer is a Commonwealth authority, a copy of the records must be transferred to the new employer. The new employer is required to keep the transferred records. However, the new employer is not required to make records of anything occurring in the course of an employee's employment with the former employer. Failure to comply with the regulation is an offence with a penalty of 10 penalty units.
Regulation 131VO provides for Crown immunity from prosecution under Division 3 of Part 9A. It also provides that an act or omission on or before 31 December 2004 is not an offence under Division 3 of Part 9A. This provides employers with time to comply with the record keeping requirements of the Regulations prior to the offences commencing.
Division 4 - Contract outworkers in the TCF industry in Victoria
Regulation 131W is an application provision. It provides that Division 4 of Part 9A applies to a person who is a party to a contract of services referred to in subsection 541(1) of the Act and is obliged to pay for work carried out under the contract of services. Such a person is called a 'record keeper'. The work referred to in subsection 541(1) of the Act is called 'contract work'.
Subregulation 131WA(1) requires a record keeper to make outworker records in accordance with Division 4 of Part 9A. A record keeper must keep the records for 7 years after the latest of the following dates:
• the date on which an entry is made;
• the date on which an entry is changed; or
• the date on which payment is made to the outworker for the contract work.
Failure to keep the records as required under Division 4 of Part 9A, is an offence with a penalty of 10 penalty units.
The offence against regulation 131WA is a strict liability offence. Strict liability applies to the fact that the record must be kept in accordance with Division 4 of Part 9A. This application of strict liability reflects subsections 9.3(1) and 9.4(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. A standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included.
Subregulation 131WB(1) provides that an outworker record relating to contract work must be in a condition that allows an inspector to ascertain whether the contract outworker is being paid at least the minimum amount. It also provides that records must be in a legible form in the English language or in a form that is readily accessible and convertible into a legible form in the English language. This is a 'catch all' provision which ensures that, even if the regulations do not prescribe a particular record requirement, all necessary records must be kept to enable an inspector to work out whether an outworker has received his or her entitlements.
Regulation 131WC provides that an outworker record must contain a number of specified particulars about who carries out the contract work, for whom the work is done and the date the work is completed.
Regulation 131WD provides that the outworker record must contain a number of specified particulars relating to payment for the contract work performed.
Regulation 131WE provides that a record keeper must not alter, or allow to be altered, an outworker record except to correct an error in an outworker record. The record keeper must correct an outworker record as soon as the record keeper becomes aware of the error and must also record the nature of the error. Failure to comply with this provision is an offence with a penalty of 10 penalty units.
Subregulation 131WF(1) makes it an offence for a person to make or make use of an entry in any record which must be kept under Division 4 of Part 9A, if the person does so knowing that the entry is false or misleading. Failure to comply with this provision is an offence with a penalty of 10 penalty units. Subregulation 131WF(2) provides that strict liability applies to the fact that a record must be kept under Division 4 of Part 9A. This application of strict liability reflects subsections 9.3(1) and 9.4(1) of the Criminal Code (and the common law position) that ignorance of the law is no excuse. The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included.
Regulation 131WG provides for inspection and copying of records. The regulation provides that a record keeper must make a copy of a record available on request to a contract outworker to whom the record relates, or to an inspector. Failure to comply with the provision is an offence with a penalty of 10 penalty units. The regulation also provides for the copy of the record to be made available immediately, if the record is kept on the premises occupied by the record keeper or, otherwise, within 14 days. The records must be made available in a legible form in the English language. The regulation includes a note referring to section 542 of the Act which identifies the powers of inspectors in relation to outworker records.
Regulation 131WH requires a record keeper to assist a person entitled to inspect and copy a record by providing information concerning the location of the record. The regulation also provides that a person so entitled may interview the record keeper about the record and the record keeper must give reasonable assistance to the interviewer in the conduct of the interview. Failure to comply with the provision is an offence with a penalty of 10 penalty units. Strict liability applies to the fact that subregulation 131WG(1) applies to the request. Therefore, ignorance of the requirement that a record keeper must make a copy of a record available to an outworker or an inspector is no excuse for failing to tell such a person where the record is kept. This application of strict liability reflects subsections 9.3(1) and 9.4(1) of the Criminal Code (and the common law position) that ignorance of the law is generally no excuse. The standard note referring to section 6.1 of the Criminal Code, which governs strict liability, is included.
Regulation 131WJ requires a record keeper, in the event of transfer or assignment of a business, to transfer outworker records. The requirement to transfer outworker records would also apply in the event of a succession of business. If the former record keeper is a Commonwealth authority, a copy of the records must be transferred. The new record keeper is required to keep the transferred records. However, the new record keeper is not required to make records of anything occurring in the course of the contract work performed for the former record keeper. Failure to comply with the provision is an offence with a penalty of 10 penalty units.
Regulation 131WK provides for Crown immunity from prosecution under Division 4 of Part 9A. It also provides that an act or omission on or before 31 December 2004 is not an offence under Division 4 of Part 9A. This provides record keepers with time to comply with the record keeping requirements of the regulations prior to the offences commencing.