South Australian Numbered Acts South Australian Numbered ActsAfter section 99 insert:
Part 3A—Outworkers
Division 1—Preliminary
99A—Interpretation
In this Part—
"apparent responsible contractor"—see section 99D;
"code of practice" means the code of practice in operation under Division 2
(if any);
"remuneration" includes—
(a) any
remuneration or other amount, including Commission, payable in relation to
work done by an outworker;
(b) any
amount payable to an outworker in respect of annual leave or long service
leave;
(c) any
amount for which an outworker is entitled to be reimbursed or compensated for
under the code of practice;
"unpaid remuneration" means remuneration that is the subject of a claim under
section 99D.
99B—Responsible contractors
(1) Subject to this
section, a person will be taken to be a responsible contractor in relation to
an outworker or a group of outworkers engaged (or previously engaged) under a
contract of employment with someone else if the person is a person who
initiates an order for the relevant work (other than (if relevant) as a
purchaser at the point of sale by retail), or distributes the relevant work
(even though there may then be a series of contracts before the work is
actually performed by the outworker or outworkers).
(2) The fact that a
person is to be taken to be a responsible contractor for the purposes of this
Part does not affect any obligation of another person as an employer under a
contract of employment.
(3) A person whose
sole business in connection with the clothing industry is the sale of clothing
(and associated items) by retail will not be taken to be a responsible
contractor under this section (but may be taken to be an employer under a
contract of employment between the person and an outworker).
Division 2—Code of practice
99C—Code of practice
(1) The Governor may,
by regulation, establish a code of practice for the purpose of ensuring that
outworkers are treated fairly in a manner consistent with the objects of this
Act.
(2) The
code of practice may make different provision according to the matters or
circumstances to which they are expressed to apply.
(3) The
code of practice may apply, adopt or incorporate, with or without
modification, a standard or other document prepared or published by a body
specified in the code, as in force at a particular time or as in force from
time to time.
(4) A code of practice
may—
(a)
require employers or other persons engaged in an industry, or a sector of an
industry, specified or described in the code to adopt the standards of conduct
and practice with respect to outworkers set out in the code; and
(b) make
arrangements relating to the remuneration of outworkers, including by
specifying matters for which an outworker is entitled to be reimbursed or
compensated for with respect to his or her work or status as an outworker; and
(c) make
provision to assist outworkers to receive their lawful entitlements; and
(d) make
such other provision in relation to the work or status of outworkers as the
Governor thinks fit.
(5) The Commission may
make an award incorporating any term of the code of practice or make any other
provision to give effect to the code of practice.
(6)
Subsection (5) does not limit the powers of the Commission to make awards
that relate to outworkers under the other provisions of this Act.
(7) If there is an
inconsistency between an award and the code of practice, the award prevails to
the extent of the inconsistency.
Division 3—Recovery of unpaid remuneration
99D—Outworker may initiate a claim against a responsible contractor
(1) An outworker may
initiate a claim for unpaid remuneration (an
"unpaid remuneration claim") against a person identified by the outworker as
the person who the outworker believes on reasonable grounds to be a
responsible contractor in relation to the outworker (the "apparent responsible
contractor ).
(2) The
unpaid remuneration claim may be for all or any of the remuneration that is
payable to the outworker on account of work performed by the outworker that
was (or apparently was) initiated or distributed by the
apparent responsible contractor (and it does not matter that there may be more
than 1 responsible contractor).
(3) The
unpaid remuneration claim must be made within 6 months after the relevant work
is completed by the outworker.
(4) The
unpaid remuneration claim is to be made by serving a written notice on the
apparent responsible contractor that—
(a)
claims payment of the unpaid remuneration; and
(b) sets
out the following particulars:
(i)
the name of the outworker; and
(ii)
the address at which the outworker may be contacted; and
(iii)
a description of the work that has been performed; and
(iv)
the date or dates on which the work was performed; and
(v)
the amount of unpaid remuneration claimed in respect of
the work.
(5) The particulars
set out in the unpaid remuneration claim must be verified by statutory
declaration.
(6) A claim under this
section may only be made in respect of work performed after the commencement
of this section.
99E—Liability of apparent responsible contractor on a claim
(1) Except as provided
by subsection (4), an apparent responsible contractor served with an
unpaid remuneration claim is liable for the amount of
unpaid remuneration claimed.
(2) An
apparent responsible contractor may, within 14 days after being served with an
unpaid remuneration claim, refer the claim to another person the
apparent responsible contractor knows or has reason to believe is the employer
of the outworker under this Act (the "designated employer ).
(3) An
apparent responsible contractor refers an unpaid remuneration claim under
subsection (2) by—
(a)
advising the outworker who has made the claim, in writing, of the name and
address of the designated employer; and
(b)
serving a copy of the claim (a "referred claim") on the actual employer.
(4) The
apparent responsible contractor is not liable for the whole or any part of an
amount of an unpaid remuneration claim for which the designated employer
served with a referred claim accepts liability in accordance with
section 99F.
99F—Liability of actual employer to which a claim is referred
(1) A designated
employer served with a referred claim under section 99E may, within 14
days after being served, accept liability for the whole or any part of an
amount of unpaid remuneration claimed by paying it to the outworker concerned.
(2) A designated
employer who accepts liability under subsection (1) must serve notice in
writing on the apparent responsible contractor of that acceptance and of the
amount paid.
99G—Recovery of amount of unpaid remuneration
(1) An amount payable
to an outworker by an apparent responsible contractor that is not paid in
accordance with the requirements of this Division may be recovered by the
outworker as a monetary claim under Chapter 5 Part 2.
(2) Sections 165 and
182 will not apply in proceedings brought under this section.
(3) In proceedings
brought under this section, an order for the apparent responsible contractor
to pay the amount claimed must be made unless the
apparent responsible contractor satisfies the Court that the work was not
performed or that the amount of the claim for the work in the unpaid
remuneration claim is not the correct amount in respect of the work.
99H—Ability of responsible contractor to claim contribution or to make
deduction
(1) If an
apparent responsible contractor pays to the outworker concerned the whole or
any part of the amount of any unpaid remuneration claim under this Division,
the apparent responsible contractor may—
(a)
recover the amount paid from a related employer; or
(b)
deduct or set-off the amount paid from or against any amount that the
apparent responsible contractor owes to a related employer (whether or not in
respect of work that has been carried out by the outworker).
(2) For the purposes
of subsection (1), a related employer in relation to an
apparent responsible contractor is—
(a) the
actual employer of the outworker concerned; or
(b)
another responsible contractor whose contractual relationship with the
outworker concerned on account of the work performed by the outworker is, when
all relevant contractual relationships are considered, closer than the
contractual relationship between the apparent responsible contractor and the
outworker.
99I—Offence provision
A person must not—
(a) by
intimidation or by any other act or omission, intentionally hinder or prevent
a person from making an unpaid remuneration claim under section 99D; or
(b) make
a statement that the person knows to be false or misleading in a material
particular in any referred claim under section 99E or any notice served
for the purposes of section 99F; or
(c)
serve a referred claim on a person under section 99E that the person does
not know, or have reasonable grounds to believe, is an actual employer.
Maximum penalty: $5 000.
99J—Non-derogation
Nothing in this Division—
(a)
limits or excludes any other right of recovery of remuneration of an
outworker, or any liability with respect to payment of remuneration to an
outworker (whether arising under this Act or any other Act or law or whether
arising by virtue of any award or other industrial instrument or by virtue of
an agreement or otherwise); or
(b)
limits or excludes any right of recovery arising under any other law with
respect to any amount of money owed by a responsible contractor to another
person.