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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Outworkers (Improved Protection) Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
PART 2--PROTECTION OF OUTWORKERS 5
Division 1--Outworkers as Employees 5
4. What is relevant industrial legislation? 5
5. Outworkers are employees for the purposes of relevant
industrial legislation 5
Division 2--Applied Clothing Trades Award 6
6. Modified Federal Award applies to Victorian outworkers 6
7. Effect of applied Clothing Trades Award 8
8. Conditions, exceptions or limitations 8
Division 3--Registration of Employers 9
9. Registration of employers 9
10. Notice of registration 10
11. Approval to engage more than 10 outworkers 11
12. Board of Reference 11
13. Membership and procedure 11
Division 4--Unpaid Remuneration 12
14. Definitions 12
15. Claims by outworkers for unpaid remuneration 13
16. Liability of apparent employer for unpaid remuneration for
which an unpaid remuneration claim has been made 14
17. Liability of actual employer for unpaid remuneration for
which an unpaid remuneration claim has been made 15
18. Recovery of amount of unpaid remuneration 15
19. Offences relating to unpaid remuneration claims and referred
claims 16
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Clause Page
20. Effect of sections 14 to 19 16
21. Liability of principal contractor for remuneration payable to
outworkers of subcontractor 17
22. Written statements for the purposes of section 21 18
23. Operation of section 21 18
PART 3--ENSURING ETHICAL CLOTHING INDUSTRY
OUTWORK PRACTICES 19
Division 1--Ethical Clothing Trades Council of Victoria 19
24. Establishment and functions 19
25. Membership 21
26. Chairperson 22
27. Constitution and procedure 22
28. Quarterly reports 22
29. Report on implementation of ethical outwork practices 23
30. Assistance for Council 24
Division 2--Mandatory Code of Practice 24
31. When can a mandatory code of practice be made? 24
32. What can the mandatory code contain? 25
33. How is the mandatory code made? 25
34. Effect of the mandatory code 25
35. Variation and revocation 26
36. Availability of the mandatory code 26
37. Competition policy authorisation 26
38. Exemptions 27
PART 4--COMPLIANCE 28
Division 1--Information Services Officers 28
39. What are the functions of information services officers? 28
40. Appointment of information services officers 28
41. Identity cards 29
42. When may powers be exercised? 29
43. Power of entry 29
44. Powers on entry 32
45. Power to require production of documents 32
46. Retention of documents 32
47. Confidentiality 33
Division 2--Entry and Inspection by Industrial Officers 33
48. Definitions 33
49. Rights of entry 34
50. Procedure on entry with Court order 35
51. Provisions relating to authorities issued to officers 36
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Clause Page
52. When access to premises may be denied on religious grounds 37
53. No entry to residential premises without permission 38
54. Offences 38
Division 3--Other Offences 39
55. Prohibition of victimisation 39
56. Employers' registration 39
57. Failing to produce documents, hindering information services
officers and giving them false information 39
58. Protection against self-incrimination 40
59. Impersonating information services officers 41
Division 4--Prosecutions, Evidence and Recovery of Money 41
60. Proceedings for offences to be brought in Industrial Division
of the Magistrates' Court 41
61. Who can prosecute under this Act? 41
62. Judicial notice of signatures 42
63. Conduct of agents imputed to corporations 43
64. Reverse onus of proof in certain cases 43
65. Recovery of money owed 43
66. Court may order payment of arrears on finding of guilt 44
67. Representation in Magistrates' Court proceedings 45
PART 5--GENERAL 46
68. Review of Act 46
69. Regulations 46
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 48
70. Amendment of Schedule 1 48
__________________
SCHEDULE--Constitution and procedure of Council 50
ENDNOTES 54
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PARLIAMENT OF VICTORIA
Initiated in Assembly 9 October 2002
As amended by Assembly 31 October 2002
A BILL
to improve the protection of outworkers in the clothing industry, to
apply the federal Clothing Trades Award to Victorian outworkers in
that industry, to establish an Ethical Clothing Trades Council of
Victoria, to make consequential amendments to the Victorian Civil
and Administrative Tribunal Act 1998 and for other purposes.
Outworkers (Improved Protection) Act
2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to improve the protection of outworkers in
5 the clothing industry;
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s. 2
(b) to apply the federal Clothing Trades Award
to Victorian outworkers in that industry;
(c) to establish an Ethical Clothing Trades
Council of Victoria.
5 2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 July 2003, it comes into
10 operation on that day.
3. Definitions
In this Act--
"applied Clothing Trades Award" means the
Federal Award as applied to outworkers by
15 section 6;
"Board of Reference" means the Board of
Reference for outworkers established by
section 12;
"clothing work" means packing, processing or
20 working on articles or materials in the
clothing industry;
"Code of Practice Committee" means the
committee described in clause 5 of Part 2 of
the Homeworkers Code;
25 "Council" means Ethical Clothing Trades
Council of Victoria established by
section 24;
"Department" means Department of Innovation,
Industry and Regional Development;
30 "employer" has the meaning given by
section 5(b);
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"Federal Award" means the Clothing Trades
Award 1999 made by order of the Federal
Commission on 29 November 1999;
"Federal Commission" means the Australian
5 Industrial Relations Commission;
"Homeworkers Code" means the agreement,
known as the Homeworkers Code of
Practice, containing two parts and Part 2 of
which was signed on behalf of the Textile
10 Clothing and Footwear Union of Australia,
the Council of the Textile and Fashion
Industries Ltd, the Australian Chamber of
Manufactures and the Australian Business
Chamber and various individual companies
15 in 1997;
"interested organisation" means an organisation
that is not a registered organisation but that
is representative of a significant number of
employers;
20 "information services officer" means a person
appointed under section 40;
"lawful entitlements" of an outworker means the
entitlements conferred on the outworker by
law, including any entitlements conferred by
25 or under relevant industrial legislation or any
other legislation;
"mandatory code" means the code of practice (if
any) in force under Division 2 of Part 3;
"member" of the Council includes the
30 chairperson;
"outwork" means work performed by an
outworker in the clothing industry;
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"outworker" means a person engaged, for
someone else's business in the clothing
industry, in or about a private residence or
other premises that are not necessarily
5 business or commercial premises, to pack,
process or work on articles or material;
"peak body" means a body that is representative
of a significant number of organisations
representing employers or outworkers;
10 "registered employer" means a person who is
registered as an employer under Division 3
of Part 2;
"registered organisation" means an organisation
registered under the Workplace Relations
15 Act 1996 of the Commonwealth;
"relevant industrial legislation" has the
meaning given by section 4;
"Secretary" means Secretary to the Department;
"subordinate instrument" has the meaning
20 given by section 3 of the Interpretation of
Legislation Act 1984;
"Tribunal" means Victorian Civil and
Administrative Tribunal established by the
Victorian Civil and Administrative
25 Tribunal Act 1998.
__________________
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PART 2--PROTECTION OF OUTWORKERS
Division 1--Outworkers as Employees
4. What is relevant industrial legislation?
For the purposes of this Act, "relevant industrial
5 legislation" means--
(a) this Act;
(b) the Long Service Leave Act 1992;
(c) the Occupational Health and Safety Act
1985;
10 (d) regulations or other subordinate instruments
made under an Act specified in paragraph
(a), (b) or (c);
(e) the applied Clothing Trades Award.
5. Outworkers are employees for the purposes of
15 relevant industrial legislation
For the purposes of relevant industrial
legislation--
(a) an outworker is an employee;
(b) a person who engages an outworker is an
20 employer;
(c) the contract between an outworker and a
person who engages him or her is a contract
of employment;
(d) the conditions on or under which an
25 outworker performs work are conditions of
employment;
(e) the relationship between an outworker and a
person who engages him or her is an
employment relationship.
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Division 2--Applied Clothing Trades Award
6. Modified Federal Award applies to Victorian
outworkers
(1) The Federal Award, as varied by the Federal
5 Commission from time to time, applies to
outworkers as a law of Victoria subject to--
(a) the modifications set out in this section; and
(b) any condition, exception or limitation
specified by the Tribunal under section 8.
10 (2) Provisions of the following kind that are contained
in the Federal Award do not apply to outworkers
under this Act--
(a) anti-discrimination provisions (clause 3);
(b) the commencement date and period of
15 operation (clause 5);
(c) coverage of the award (clause 6);
(d) parties bound by the award (clause 7);
(e) persons, organisations, industries and
employers exempted from coverage
20 (clause 8);
(f) the relationship with other awards (clause 9);
(g) enterprise flexibility provisions (clause 10);
(h) agreements regarding facilitative provisions
(clause 11);
25 (i) dispute resolution procedures and
consultative mechanisms (clauses 12
and 13);
(j) provisions for the employment of apprentices
(clauses 20 and 20A);
30 (k) provisions regarding the supported wages
system (being the Commonwealth
Government system to promote employment
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for people who cannot work at full award
wages because of a disability) (clause 31);
(l) provisions for claiming payment from an
employer (clauses 46.5 and 47.23);
5 (m) provisions for the referral of matters to the
Federal Commission (clause 46.8);
(n) provisions for the registration of employers
and provisions prohibiting the employment
of outworkers without such registration
10 (clauses 47.1, 47.2 and 48);
(o) provisions limiting the number of
outworkers a person may employ
(clause 47.5);
(p) provisions for the appointment of Boards of
15 Reference (clause 49).
Note: The Federal Award provides for further exclusions
from the award in relation to outworkers (see
clauses 47.20.1 and 47.20.2).
(3) A reference in sub-section (2) to a clause of the
20 Federal Award is a reference to the Federal Award
as varied to 23 May 2002. If the Federal Award is
varied after that day with the result that the
provisions referred to in a paragraph in sub-
section (2) are contained in a different clause, the
25 reference to the clause in that paragraph is taken
to be a reference to the different clause.
(4) For the purposes of the applied Clothing Trades
Award--
(a) a reference in the Federal Award to a
30 registered employer is taken to be a reference
to a registered employer within the meaning
of this Act;
(b) a reference in the Federal Award to a
requirement to apply for registration under
35 clause 48 of the Federal Award is taken to be
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a reference to a requirement to apply for
registration under Division 3 of Part 2 of this
Act;
(c) a reference in clause 46 of the Federal
5 Award to the Industrial Registrar is taken to
be a reference to the Board of Reference
within the meaning of this Act.
7. Effect of applied Clothing Trades Award
(1) The applied Clothing Trades Award has the effect
10 of binding all employers and outworkers so that
their employment relationship is governed by the
provisions of the applied Clothing Trades Award.
(2) The applied Clothing Trades Award also has the
effect of binding all persons engaged in the
15 clothing industry who contract for clothing work
to be performed outside their factory or workshop.
(3) A provision of a contract of employment is of no
effect to the extent that it provides a condition of
employment that is less favourable to an
20 outworker than that applicable under the applied
Clothing Trades Award.
(4) An employer or other person engaged in the
clothing industry must not contravene a provision
of the applied Clothing Trades Award that applies
25 to the employer or other person.
Penalty: 120 penalty units.
(5) This section is subject to section 8.
8. Conditions, exceptions or limitations
(1) An employer may apply to the Tribunal for an
30 order specifying a condition, exception or
limitation on the applied Clothing Trades Award
as it applies to the employer or outworkers
engaged by the employer.
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(2) An application can only be made on the ground
that the applied Clothing Trades Award imposes a
financial obligation on the employer and the
employer does not have the capacity to meet that
5 obligation.
(3) On an application under sub-section (1), the
Tribunal may make an order specifying a
condition, exception or limitation on the applied
Clothing Trades Award as it applies to the
10 applicant or outworkers engaged by the applicant
if the Tribunal is satisfied that the ground for the
application is made out.
(4) In determining whether the ground for the
application is made out, the Tribunal must have
15 regard to any statement of principles by, and any
relevant decision of, the Federal Commission with
respect to economic incapacity.
Division 3--Registration of Employers
9. Registration of employers
20 (1) A person engaged in the clothing industry who is
not a registered employer must not--
(a) engage an outworker; or
(b) enter into, or purport to enter into, a contract
to have clothing work performed outside the
25 person's factory or workshop.
(2) A person engaged in the clothing industry must
not give another person work to be performed if
the first person knows or has reason to know--
(a) that the work may be performed outside the
30 other person's factory or workshop; and
(b) that the other person is not a registered
employer.
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(3) On application by a person, the Board of
Reference may register the person as an employer
for a period of 12 months.
(4) An application for registration must specify the
5 place where the applicant proposes to keep all
documents that relate to the contracting out of
clothing work (including the terms and conditions
or contracts of employment of outworkers).
(5) The Board of Reference--
10 (a) must allocate a registration number to a
registered employer; and
(b) may impose any conditions it considers
appropriate on the registration of a person as
an employer.
15 (6) The Board of Reference may cancel the
registration of a registered employer if the Board
is satisfied that the registered employer has failed
to comply with a condition of registration.
(7) The Board of Reference may renew a registered
20 employer's registration from time to time on
application by the registered employer.
(8) The Board of Reference must keep a register of
registered employers.
10. Notice of registration
25 (1) As soon as practicable after registration and each
renewal of registration, a registered employer
must publish a notice in a newspaper generally
circulating in Victoria stating--
(a) that the person is a registered employer of
30 outworkers; and
(b) the person's name and registration number.
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(2) A registered employer is not required to publish a
notice under sub-section (1) if the Board of
Reference, on application by the registered
employer, grants the registered employer an
5 exemption from sub-section (1).
11. Approval to engage more than 10 outworkers
(1) A person must not have more than 10 outworkers
working for the person at any one time unless the
person has the consent of the Board of Reference.
10 (2) The Board of Reference may consent to a person
having a specified number of outworkers, greater
than 10, working for the person at any one time.
12. Board of Reference
(1) A Board of Reference for outworkers is
15 established.
(2) The Board of Reference has the functions
conferred on it by or under this Act.
(3) In particular, and without limiting sub-section (2),
the Board of Reference has the following
20 functions--
(a) to consider applications for registration as an
employer of outworkers;
(b) to keep a register of employers of
outworkers;
25 (c) to consider applications to engage more than
10 outworkers;
(d) to consider applications for exemption of the
requirement to publish a notice under
section 10(1).
30 13. Membership and procedure
(1) The Board of Reference consists of the following
5 part-time members appointed by the Secretary--
(a) a chairperson;
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(b) 2 people nominated by the Textile, Clothing
and Footwear Union of Australia (Victorian
Branch);
(c) 1 person nominated by the Australian
5 Industry Group, Victorian Branch;
(d) 1 person nominated by the Victorian
Employers' Chamber of Commerce and
Industry.
(2) The terms and conditions of members are as
10 determined from time to time by the Secretary.
(3) A member may appoint a substitute to act for him
or her at any time that he or she is unable to act as
member.
(4) The quorum of the Board of Reference is the
15 chairperson, one member appointed under sub-
section (1)(b) and one of the members appointed
under sub-section (1)(c) or (d).
(5) A question arising at a meeting of the Board of
Reference is determined by a majority of votes
20 and the chairperson does not have a deliberative
vote but, in the case of an equality of votes, has a
casting vote.
(6) Subject to this section, the Board of Reference
may regulate its own procedure.
25 Division 4--Unpaid Remuneration
14. Definitions
In this Division--
"employer" means a person who engages an
outworker, being a person other than a
30 person whose sole business in connection
with the clothing industry is the sale of
clothing by retail;
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"remuneration" includes--
(a) any remuneration or other amount,
including commission, payable in
relation to work done by an outworker;
5 (b) amounts payable to an outworker in
respect of annual leave or long service
leave;
(c) an amount for which an outworker is
entitled to be reimbursed or
10 compensated for an expense incurred or
loss sustained by the outworker;
"unpaid remuneration claim" means a claim for
unpaid remuneration under section 15.
15. Claims by outworkers for unpaid remuneration
15 (1) An outworker may make a claim under this
section for any unpaid remuneration against the
person the outworker believes is his or her
employer (the "apparent employer") if the
employer has not paid the outworker all or any of
20 the remuneration for work done by the outworker
for the employer (the "unpaid remuneration").
(2) The claim must be made within 6 months after the
work is completed.
(3) The claim is to be made by serving a written
25 notice on the apparent employer that--
(a) claims payment of the unpaid remuneration;
and
(b) sets out the following particulars--
(i) the name of the outworker;
30 (ii) the address at which the outworker may
be contacted;
(iii) a description of the work done;
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(iv) the date on which the work was done;
(v) the amount of unpaid remuneration
claimed in respect of the work.
(4) The particulars set out in the unpaid remuneration
5 claim must be verified by statutory declaration.
(5) This section applies only in respect of
remuneration for work carried out after the
commencement of this section.
16. Liability of apparent employer for unpaid
10 remuneration for which an unpaid remuneration
claim has been made
(1) Except as provided by sub-section (4), an apparent
employer served with an unpaid remuneration
claim under section 15 is liable (subject to any
15 proceedings as referred to in section 18) for the
amount of unpaid remuneration claimed.
(2) An apparent employer may, within 14 days after
being served with an unpaid remuneration claim,
refer the claim in accordance with this section to
20 another person the apparent employer knows or
has reasonable grounds to believe is the person for
whom the work was done (the "actual
employer").
(3) An apparent employer refers an unpaid
25 remuneration claim in accordance with this
section by--
(a) advising the outworker concerned in writing
of the name and address of the actual
employer; and
30 (b) serving a copy of the claim (a "referred
claim") on the actual employer.
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(4) The apparent employer is not liable for the whole
or any part of an amount of unpaid remuneration
claimed for which the actual employer served with
a referred claim accepts liability in accordance
5 with section 17.
17. Liability of actual employer for unpaid remuneration
for which an unpaid remuneration claim has been
made
(1) An actual employer served with a referred claim
10 under section 16 may, within 14 days after the
service, accept liability for the whole or any part
of the amount of unpaid remuneration claimed by
paying it to the outworker concerned.
(2) An actual employer who accepts liability must
15 serve notice in writing on the apparent employer
of that acceptance and of the amount paid.
(3) The apparent employer may, after the apparent
employer has paid to the outworker concerned any
part of the amount of unpaid remuneration
20 claimed for which the actual employer served with
the referred claim has not accepted liability,
deduct or set-off the amount the apparent
employer has paid to the outworker from any
amount that the apparent employer owes to the
25 actual employer (whether or not in respect of
work the subject of the referred claim).
18. Recovery of amount of unpaid remuneration
(1) Sections 65 and 66 apply to recovery of an
amount payable to an outworker from an apparent
30 employer who fails to make a payment in respect
of an amount of unpaid remuneration for which
the employer is liable under section 16.
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(2) In proceedings referred to in sub-section (1), an
order for the apparent employer to pay the amount
concerned must be made unless the apparent
employer proves that the work was not done or
5 that the amount claimed for the work in the unpaid
remuneration claim is not the correct amount in
respect of the work.
19. Offences relating to unpaid remuneration claims and
referred claims
10 A person must not--
(a) make any statement that the person knows is
false or misleading in a material particular in
any referred claim under section 16 or any
notice given for the purposes of section 17;
15 or
(b) serve a referred claim on a person under
section 16 that the person does not know, or
have reasonable grounds to believe, is an
actual employer.
20 Penalty: 120 penalty units.
20. Effect of sections 14 to 19
(1) Sections 14 to 19 do not limit or exclude any other
rights of recovery of remuneration of an
outworker, or any liability of any person with
25 respect to the remuneration of an outworker,
whether or not arising under this Act or any other
law or the applied Clothing Trades Award.
Note: An outworker may, for example, seek an order from
the Magistrates' Court under section 65 instead of
30 making an unpaid remuneration claim under
section 15.
(2) Nothing in section 17(3) limits or excludes any
right of recovery arising under any other law with
respect to any amount of money owed by the
35 apparent employer to the actual employer.
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21. Liability of principal contractor for remuneration
payable to outworkers of subcontractor
(1) This section applies where--
(a) a person (the "principal contractor") has
5 entered into a contract for the carrying out of
work by another person (the
"subcontractor"); and
(b) outworkers employed or engaged by that
subcontractor are engaged in carrying out the
10 work (the "relevant outworkers"); and
(c) the work is carried out in connection with a
business undertaking of the principal
contractor.
(2) The principal contractor is liable for the payment
15 of any remuneration of the relevant outworkers
that has not been paid for work done in connection
with the contract during any period of the contract
unless the principal contractor has a written
statement given by the subcontractor under this
20 section for that period of the contract.
(3) The principal contractor may withhold any
payment due to the subcontractor under the
contract until the subcontractor gives a written
statement under this section for any period up to
25 the date of the statement. Any penalty for late
payment under the contract does not apply to any
payment withheld under this sub-section.
(4) Sections 65 and 66 apply to the recovery of
remuneration payable by a principal contractor
30 under this section.
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22. Written statements for the purposes of section 21
(1) The written statement referred to in section 21 is a
statement by the subcontractor that all
remuneration payable to relevant outworkers for
5 work under the contract done during that period
has been paid.
(2) The regulations may make provision for or with
respect to the form of the written statement.
(3) The subcontractor must keep a copy of any
10 written statement under this section for at least
6 years after it was given.
(4) The written statement is not effective to relieve
the principal contractor of liability under
section 21 if the principal contractor had, when
15 given the statement, reason to believe it was false.
(5) A subcontractor must not give the principal
contractor a written statement knowing it to be
false.
Penalty: 120 penalty units.
20 23. Operation of section 21
(1) Section 21 does not apply in relation to a contract
if the subcontractor is in receivership or in the
course of being wound up or, in the case of an
individual, is bankrupt and if payments made
25 under the contract are made to the receiver,
liquidator or trustee in bankruptcy.
(2) Nothing in section 21 or this section limits or
excludes any liability with respect to payment of
remuneration by a person who is a principal
30 contractor arising under this Act or any other law
or the applied Clothing Trades Award.
__________________
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PART 3--ENSURING ETHICAL CLOTHING INDUSTRY
OUTWORK PRACTICES
Division 1--Ethical Clothing Trades Council of Victoria
24. Establishment and functions
5 (1) The Ethical Clothing Trades Council of Victoria is
established.
(2) The Council has the functions conferred on it by
or under this or any other Act.
(3) In particular, and without limiting sub-section (2),
10 the Council has the following functions in relation
to the clothing industry--
(a) to advise and make recommendations to the
Minister generally on the industry and
outwork practices in the industry, including
15 the impact of developments in the industry
on outworkers;
(b) to advise the Minister on the level of
compliance of sectors of the industry with
their obligations (whether or not voluntarily
20 undertaken) to ensure that outworkers
receive their lawful entitlements;
(c) to make recommendations about the means
by which compliance with those obligations
might be encouraged and enforced;
25 (d) to foster the adoption and observance of self-
regulatory mechanisms, such as the
Homeworkers Code and other voluntary
industry agreements, through consultation
with the Code of Practice Committee,
30 industry retailers and manufacturers, relevant
industrial organisations and other interested
persons and bodies;
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(e) to support changes to the Homeworkers
Code that the Council considers might
increase its effectiveness in ensuring that
outworkers receive their lawful entitlements;
5 (f) to promote, as may be appropriate, the
Homeworkers Code, any similar voluntary
industry code and any code made under this
Act, and persons who comply with those
codes;
10 (g) to facilitate consultation between industry
retailers and relevant industrial organisations
concerning the making and implementation
of voluntary agreements relating to outwork
practices in the industry;
15 (h) to conduct education programs and
disseminate information relating to
outworkers and the industry;
(i) to advise and make recommendations to the
Minister on the operation, and any
20 amendment to or revocation of, the
mandatory code (if in force) and the scope of
any exemptions that should be given by the
regulations;
(j) to make the reports referred to in this
25 Division.
(4) The Council may provide advice, and make
recommendations, to the Minister even though the
Minister has not requested it to do so.
(5) In performing its functions, the Council--
30 (a) must consider, where relevant, anything done
or published by the Ethical Clothing Trades
Council of New South Wales; and
(b) is subject to the control and direction of the
Minister, except in relation to any report
35 given to the Minister under this Division.
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25. Membership
(1) The Council consists of the following 7 part-time
members appointed by the Minister--
(a) a chairperson;
5 (b) a person appointed from a list of 3 names
submitted by the Australian Retailers
Association, Victorian Division;
(c) a person appointed from a list of 3 names
submitted by the Victorian Employers'
10 Chamber of Commerce and Industry;
(d) a person appointed from a list of 3 names
submitted by the Australian Industry Group,
Victorian Branch;
(e) a person appointed from a list of 3 names
15 submitted by the Victorian Trades Hall
Council;
(f) a person appointed from a list of 3 names
submitted by the Textile Clothing and
Footwear Union of Australia (Victorian
20 Branch);
(g) a person having the experience or skills in
the clothing industry that the Minister
considers will enable the person to make a
contribution to the work of the Council or
25 who is chosen by the Minister to represent
consumer, community or other interests.
(2) If a list for the purposes of sub-section (1)(b), (c),
(d), (e) or (f) is not submitted within the time or in
the manner directed by the Minister, the Minister
30 may appoint a person to be a member instead of
the member required to be appointed, being a
person who in the Minister's opinion is suitably
representative of the persons represented by the
body referred to in that paragraph.
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26. Chairperson
(1) The Minister may appoint as chairperson a person
who the Minister considers has a sufficient
knowledge of outwork practices in the clothing
5 industry to ensure that the work of the Council is
efficiently performed.
(2) The chairperson must not be a person who
represents an employer, employees or outworkers
in the clothing industry or a person who has a
10 direct financial interest in the clothing industry.
27. Constitution and procedure
The Schedule has effect with respect to the
Council.
28. Quarterly reports
15 (1) The Council must--
(a) monitor whether outworkers are receiving
their lawful entitlements; and
(b) make quarterly written reports to the
Minister on its findings.
20 (2) The Council must report on, and may include
recommendations with respect to, the following
matters in a quarterly report--
(a) activities of clothing industry retailers and
manufacturers in relation to their obligations
25 under the Homeworkers Code;
(b) participation by clothing industry retailers in
voluntary agreements relating to outwork
practices in the industry;
(c) activities of clothing industry retailers and
30 manufacturers in relation to their obligations
under the mandatory code (if in force).
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(3) The first quarterly report for the purposes of this
section is to be made as soon as practicable after
the end of 3 months after the commencement of
this section.
5 (4) The Minister may waive the requirement that the
Council make a quarterly report for any period
specified by the Minister.
29. Report on implementation of ethical outwork
practices
10 (1) The Council must--
(a) evaluate action (whether voluntary or
otherwise) taken by the clothing industry
during the period of 12 months after the
commencement of this section to improve
15 compliance in the industry with obligations
to ensure outworkers receive their lawful
entitlements; and
(b) report to the Minister on its findings.
(2) The report must include the Council's
20 recommendations as to--
(a) whether, if a mandatory code were made, it
would improve compliance; and
(b) the content of the code, including appropriate
compliance mechanisms.
25 (3) The Council must forward the report to the
Minister as soon as practicable after the end of the
12 month period.
(4) As soon as practicable after receiving the report--
(a) the Minister must cause it to be laid before
30 each House of Parliament; or
(b) if a House is not sitting when the Minister
seeks to comply with paragraph (a), the
Minister must give the report to the clerk of
that House.
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(5) The clerk of a House must--
(a) give a copy of the report to each member of
the House as soon as practicable after the
report is received under sub-section (4)(b);
5 and
(b) cause the report to be laid before the House
on the next sitting day of the House.
(6) A report that is given to the clerk of a House
under sub-section (4)(b) is taken to have been
10 published by order, or under the authority, of the
House.
30. Assistance for Council
The Council may, with the approval of the
Minister, arrange for the use of the services of any
15 staff (by secondment or otherwise) or facilities of
a government department.
Division 2--Mandatory Code of Practice
31. When can a mandatory code of practice be made?
(1) The Minister may make a mandatory code of
20 practice for the purpose of ensuring that
outworkers receive their lawful entitlements.
(2) In particular, the Minister may make the code if
he or she considers--
(a) that current voluntary self-regulatory
25 mechanisms are inadequate to achieve
improvements in the level of compliance
with obligations to ensure outworkers
receive their lawful entitlements; or
(b) that persons engaged in the clothing industry
30 are not attempting in good faith to negotiate
improvements or extensions to those
voluntary self-regulatory mechanisms.
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(3) The Minister may make the code only after
considering a report of the Council under
section 29 (report on implementation of ethical
outwork practices).
5 32. What can the mandatory code contain?
(1) The mandatory code may require employers or
other persons engaged in the clothing industry, or
a sector of the clothing industry, specified or
described in the code to adopt the standards of
10 conduct and practice set out in the code with
respect to outworkers.
(2) The code may apply, adopt or incorporate (with or
without modification) a standard or other
document prepared or published by a body
15 specified in the code, as in force at a particular
time or as in force from time to time.
33. How is the mandatory code made?
(1) The Minister makes the mandatory code by order
published in the Government Gazette.
20 (2) The code takes effect on the day the order is
published or the later day specified in the order.
34. Effect of the mandatory code
(1) An employer or other person engaged in the
clothing industry, or a sector of the clothing
25 industry, specified or described in the mandatory
code must not fail, without reasonable excuse, to
adopt any standard of conduct or practice set out
in the code with respect to outworkers that the
employer or other person is required by the code
30 to adopt.
Penalty: 120 penalty units.
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(2) If there is an inconsistency between the provisions
of the mandatory code and the provisions of the
applied Clothing Trades Award, the provisions of
the applied Clothing Trades Award prevail to the
5 extent of the inconsistency.
35. Variation and revocation
(1) The Minister may, by order published in the
Government Gazette, amend or revoke the
mandatory code at any time.
10 (2) Before amending or revoking the code, the
Minister--
(a) must consult the Council and consider any
relevant report or recommendation made by
it; and
15 (b) may consult any other organisations or
persons the Minister thinks appropriate.
(3) If the Minister revokes the mandatory code, he or
she may make another mandatory code in
accordance with this Division.
20 36. Availability of the mandatory code
The Secretary must ensure that copies of the
mandatory code as amended from time to time are
available for public inspection, without charge, at
the principal office of the Department during
25 ordinary office hours.
37. Competition policy authorisation
(1) This section takes effect on the day on which the
mandatory code takes effect.
(2) For the purposes of Part IV of the Trade Practices
30 Act 1974 of the Commonwealth and of the
Competition Code, the following are specifically
authorised--
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(a) any agreements entered into before or after
the commencement of this section by
persons in order to comply with any
requirements imposed on them by the
5 mandatory code;
(b) the conduct of the persons in entering into
those agreements;
(c) the conduct of the persons in performing
those agreements;
10 (d) any thing done by persons in order to comply
with any requirements imposed on them by
the mandatory code.
(3) Things authorised to be done by sub-section (2)
are authorised only to the extent (if any) that they
15 would otherwise contravene Part IV of the Trade
Practices Act 1974 of the Commonwealth or the
Competition Code.
(4) In this section--
"agreement" includes a contract, arrangement or
20 understanding.
38. Exemptions
The regulations may exempt any person or body
or class of persons or bodies from the operation of
the mandatory code or from a specified provision
25 of the code.
__________________
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PART 4--COMPLIANCE
Division 1--Information Services Officers
39. What are the functions of information services
officers?
5 (1) The primary function of information services
officers is to provide information about the
operation of this Act to employers, outworkers,
others engaged in the clothing industry and other
interested members of the community.
10 (2) Information services officers also have the
function of ensuring compliance with this Act and
the regulations, and any other functions conferred
by or under this Act or the regulations.
40. Appointment of information services officers
15 The Minister may, by instrument, appoint as an
information services officer for the purposes of
this Act a person employed under Part 3 of the
Public Sector Management and Employment
Act 1998 who, in the Minister's opinion--
20 (a) is competent to perform the functions and
exercise the powers of an information
services officer; and
(b) is of good repute, having regard to character,
honesty and integrity; and
25 (c) agrees in writing to perform the functions of
an information services officer in accordance
with such criteria as are established from
time to time by the Minister.
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41. Identity cards
(1) Each information services officer must be issued
with an identity card in the form approved by the
Minister.
5 (2) The identity card must bear a photograph and the
signature of the information services officer.
(3) An information services officer must produce his
or her identity card for inspection--
(a) before exercising a power under this Part
10 other than a requirement made by post, fax,
e-mail or other electronic communication;
and
(b) at any time during the exercise of a power
under this Part, if asked to do so.
15 Penalty: 10 penalty units.
42. When may powers be exercised?
(1) An information services officer may exercise
powers under this Division only to the extent that
it is reasonably necessary to do so for the purpose
20 of determining compliance with this Act or the
regulations.
(2) In exercising powers under this Division, an
information services officer must--
(a) cause as little inconvenience as possible; and
25 (b) not remain on premises any longer than is
reasonably necessary.
43. Power of entry
(1) At any time during ordinary working hours, an
information services officer may without force
30 enter--
(a) any premises at which the officer has
reasonable grounds for believing that
outwork is being or has been performed; or
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(b) any premises, being a place of business at
which the officer has reasonable grounds for
believing that there are documents that are
relevant to the purpose of determining
5 compliance with this Act or the regulations.
(2) If an owner or occupier of premises is present
when an information services officer exercises a
power of entry under this section, the officer
must--
10 (a) produce his or her identity card for
inspection; and
(b) inform the owner or occupier of the purpose
of the entry.
(3) If an information services officer exercises a
15 power of entry under this section without the
owner or occupier being present, the officer
must--
(a) on leaving the premises, leave a notice
setting out--
20 (i) the time of entry; and
(ii) the purpose of entry; and
(iii) a description of all things done while
on the premises; and
(iv) the time of departure; and
25 (v) the procedure for contacting the officer
for further details of the entry; and
(b) post a copy of that notice--
(i) to the owner of the premises, if the
identity and address of that owner are
30 known to the officer; and
(ii) to the occupier of the premises, if the
identity and address of the occupier are
known to the officer.
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(4) An information services officer does not have
authority to enter any part of premises used for
residential purposes, unless--
(a) the officer has, before the entry and in
5 addition to complying with sub-section (2),
informed the occupier that he or she may
refuse to consent to the entry; and
(b) the occupier has consented to the entry.
(5) If an occupier consents to an entry under sub-
10 section (4), the information services officer who
requested consent must before entering the
premises ask the occupier to sign an
acknowledgment in the prescribed form stating--
(a) that the occupier has been informed of the
15 purpose of the entry; and
(b) that the occupier has been informed that he
or she may refuse to consent to the entry; and
(c) that the occupier has consented to the entry;
and
20 (d) the date and time that the occupier
consented.
(6) An occupier who signs an acknowledgment must
be given a copy of the signed acknowledgment
before the information services officer leaves the
25 premises.
(7) If, in any proceeding, an acknowledgment is not
produced to the court or a tribunal, it must be
presumed, until the contrary is proved, that the
occupier did not consent to the entry.
30 (8) Sub-section (4) does not apply to any part of
premises used both for residential purposes and
for work in or in connection with the clothing
industry. However, an information services
officer may only enter such premises under this
35 section if an owner or occupier is present.
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44. Powers on entry
On exercising a power of entry under section 43,
an information services officer may--
(a) inspect any work, material, machinery,
5 appliance, article, facility or other thing;
(b) take samples of any goods or substances in
accordance with the regulations;
(c) interview any outworker or employee;
(d) require a person having the custody of, or
10 access to, a document relevant to the purpose
of determining compliance with this Act or
the regulations to produce the document to
the information services officer within a
reasonable period specified by the
15 information services officer;
(e) inspect, and make copies of or take extracts
from, a document produced to him or her.
45. Power to require production of documents
(1) An information services officer, by written notice,
20 may require a person to produce to him or her,
within a reasonable period specified in the notice,
a document relevant to the purpose of determining
compliance with this Act or the regulations.
(2) An information services officer may inspect, and
25 make copies of or take extracts from, a document
produced to him or her under sub-section (1).
46. Retention of documents
(1) An information services officer may retain a
document produced to him or her for the period
30 necessary for the purpose of performing functions
and exercising powers as an information services
officer.
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(2) During the period that the information services
officer retains a document, he or she must permit
the person otherwise entitled to its possession to
inspect it and make copies of or take extracts from
5 it.
47. Confidentiality
(1) An information services officer must not, except
to the extent necessary to carry out the officer's
functions, give to any other person, whether
10 directly or indirectly, any information acquired by
the officer in carrying out those functions.
Penalty: 60 penalty units.
(2) Sub-section (1) does not apply to the giving of
information--
15 (a) to a court or tribunal in the course of legal
proceedings; or
(b) pursuant to an order of a court or tribunal; or
(c) to the extent reasonably required to enable
the investigation or the enforcement of a law
20 of Victoria or of any other State or Territory
or of the Commonwealth; or
(d) with the written authority of the Minister; or
(e) with the written authority of the person to
whom the information relates.
25 Division 2--Entry and Inspection by Industrial Officers
48. Definitions
In this Division--
"authorised industrial officer" means an officer
or employee of the Union who holds an
30 authority;
"authority" means instrument of authority issued
under section 51;
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"Court" means Magistrates' Court sitting as the
Industrial Division;
"outworkers' records" includes records of the
remuneration of relevant outworkers or other
5 records relating to relevant outworkers that
are required to be kept by an employer by or
under relevant industrial legislation;
"officer" of the Union includes any person who is
concerned in, or takes part in, the
10 management of the Union;
"relevant industrial legislation" does not
include the Occupational Health and
Safety Act 1985 or subordinate instruments
made under that Act;
15 "relevant outworker" means an outworker who
is a member of the Union or who is eligible
to become a member of the Union;
"Union" means Textile Clothing and Footwear
Union of Australia (Victorian Branch).
20 49. Rights of entry
(1) An authorised industrial officer may without force
enter, during working hours, any premises where
relevant outworkers are engaged, for the purpose
of holding discussions with the outworkers at the
25 premises in any lunch time or non-working time.
(2) An authorised industrial officer may without force
enter, during working hours, any premises where
relevant outworkers are engaged or where
outworkers' records are kept, for the purpose of
30 investigating any suspected contravention of
relevant industrial legislation.
(3) For the purpose of investigating any such
suspected contravention, the authorised industrial
officer may--
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(a) require any employer of relevant outworkers
to produce for the officer's inspection, during
the usual office hours at the employer's
premises or at any mutually convenient time
5 and place, any outworkers' records and other
documents kept by the employer that are
related to the suspected contravention; and
(b) make copies of the entries in any such
records or other documents related to any
10 such suspected contravention.
(4) An authorised industrial officer must, before
exercising a power conferred by this section, give
the employer concerned--
(a) at least 24 hours' notice, except as provided
15 by paragraph (b); or
(b) in respect of any requirement to produce
records or other documents that are kept
elsewhere than on the employer's premises--
at least 48 hours' notice.
20 (5) The Court may, on the ex parte application of an
authorised industrial officer, by order waive the
requirement to give the employer concerned
notice of an intended exercise of a power
conferred by this section if the Court is satisfied
25 that to give such notice would defeat the purpose
for which it is intended to be exercised.
50. Procedure on entry with Court order
(1) Before entering premises in accordance with a
Court order under section 49(5), the authorised
30 industrial officer must--
(a) announce that he or she is authorised by the
order to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
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(2) The authorised industrial officer need not comply
with sub-section (1) if he or she believes on
reasonable grounds that immediate entry to the
premises is required to ensure--
5 (a) the safety of any person; or
(b) that an effective entry is not frustrated.
(3) If the occupier or another person who apparently
represents the occupier is present at the premises
when entry under a Court order is being made, the
10 authorised industrial officer must--
(a) identify himself or herself to that person by
producing his or her authority for inspection
by that person; and
(b) give to that person a copy of the order.
15 51. Provisions relating to authorities issued to officers
(1) The Court may, on application, issue an
instrument of authority for the purposes of this
Division to an officer or employee of the Union.
(2) In determining whether or not to issue an
20 authority, the Court must take into account the
prescribed criteria (if any).
(3) An authorised industrial officer is required to
produce the authority--
(a) if requested to do so by the occupier of any
25 premises that the officer enters; or
(b) if requested to do so by a person whom the
officer requires to produce anything or to
answer any question.
(4) Unless revoked earlier under this section, an
30 authority remains in force until the earlier of--
(a) 3 years after the day on which it was issued;
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(b) the time at which the person to whom it was
issued ceases to be an officer or employee of
the Union.
(5) The Court may, on application, revoke the
5 authority if satisfied that the person to whom it
was issued has intentionally hindered or
obstructed employers, outworkers or employees
during their working time or has otherwise acted
in an improper manner in the exercise of any
10 power conferred on the person by this Division.
(6) An application for the revocation of an authority
must set out the grounds on which the application
is made.
(7) A person to whom an authority has been issued
15 under this section must, within 14 days after the
expiry or revocation of the authority, return the
authority to the Court.
Penalty: 20 penalty units.
52. When access to premises may be denied on religious
20 grounds
(1) An authorised industrial officer may be denied
access to premises occupied by an employer if--
(a) the employer holds a current certificate of
exemption issued under sub-section (2); and
25 (b) all the outworkers engaged by the employer
hold a current certificate of exemption issued
under sub-section (2); and
(c) there are no more that 20 outworkers
engaged by the employer.
30 (2) The Court may issue a certificate of exemption to
an employer or an outworker if the Court is
satisfied that he or she is a practising member of a
religious society or order whose doctrines or
beliefs preclude membership of any organisation
35 or body other than that society or order.
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(3) The Court may cancel a certificate of exemption
if--
(a) the employer or outworker to whom it has
been issued agrees; or
5 (b) it was issued in error; or
(c) the Court is satisfied that the employer or
outworker has ceased to be a person eligible
to be issued with the certificate.
53. No entry to residential premises without permission
10 An authorised industrial officer does not have
authority under this Division to enter any part of
premises used for residential purposes, except
with the consent of the occupier.
54. Offences
15 (1) An authorised industrial officer must not
deliberately hinder or obstruct an employer,
outworkers or employees during their working
time.
Penalty: 120 penalty units.
20 (2) A person must not deliberately hinder or obstruct
an authorised industrial officer in the exercise of
the powers conferred by this Division.
Penalty: 120 penalty units.
(3) A person must not, without reasonable excuse, fail
25 to comply with a requirement of an authorised
industrial officer under this Division.
Penalty: 120 penalty units.
(4) A person must not purport to exercise the powers
of an authorised industrial officer under this
30 Division if the person is not the holder of a current
authority.
Penalty: 120 penalty units.
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Division 3--Other Offences
55. Prohibition of victimisation
(1) An employer must not victimise an outworker.
Penalty: 120 penalty units.
5 (2) An employer victimises an outworker if the
employer subjects or threatens to subject the
outworker to any detriment because the
outworker, or a person associated with the
outworker, has--
10 (a) claimed a benefit or exercised a power or
right that he or she is entitled to claim or
exercise under this Act or the regulations; or
(b) brought, or otherwise participated in, a
proceeding under this Act or the regulations;
15 or
(c) informed any person of an alleged
contravention of this Act or the regulations
by any person.
(3) In this section--
20 "outworker" includes a prospective outworker;
"employer" includes a prospective employer.
56. Employers' registration
A person (including a registered employer) must
not fail, without reasonable excuse, to comply
25 with Division 3 of Part 2.
Penalty: 10 penalty units.
57. Failing to produce documents, hindering information
services officers and giving them false information
(1) A person must not, without reasonable excuse--
30 (a) fail to comply with a notice to produce a
document given under section 44 or 45; or
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(b) otherwise obstruct or hinder an information
services officer performing functions or
exercising powers under this Act.
Penalty: 60 penalty units.
5 (2) A person must not--
(a) give information to an information services
officer that the person knows to be false or
misleading in a material particular; or
(b) produce a document to an information
10 services officer that the person knows to be
false or misleading in a material particular
without indicating the respect in which it is
false or misleading and, if practicable,
providing correct information.
15 Penalty: 60 penalty units.
58. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to
refuse or fail to give information, produce a
document or do any other thing that the person is
20 required to do by or under this Part, if the giving
of the information, production of the document or
doing of the thing would tend to incriminate the
person.
(2) Despite sub-section (1), it is not a reasonable
25 excuse for a natural person to refuse or fail to
produce a record or other document that the
person is required to keep by this Act or the
regulations, if the production of the record or
other document would tend to incriminate the
30 person.
(3) Nothing in sub-section (1) affects the application
of section 105 of the Victorian Civil and
Administrative Tribunal Act 1998.
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59. Impersonating information services officers
A person must not impersonate an information
services officer.
Penalty: 60 penalty units.
5 Division 4--Prosecutions, Evidence and Recovery of Money
60. Proceedings for offences to be brought in Industrial
Division of the Magistrates' Court
If a person is charged with an offence against this
Act, the charge must be heard, and all penalties
10 recovered, before the Magistrates' Court sitting as
the Industrial Division.
61. Who can prosecute under this Act?
(1) A prosecution for an offence against this Act may
only be brought by--
15 (a) a person authorised by--
(i) the Minister; or
(ii) the Secretary, if the Minister has
authorised the Secretary to give such an
authorisation; or
20 (iii) a person employed in the Department
under Part 3 of the Public Sector
Management and Employment Act
1998 who the Minister has authorised
to give such an authorisation; or
25 (b) an officer of the Textile Clothing and
Footwear Union of Australia (Victorian
Branch).
(2) Any authorisation for the purposes of
sub-section (1)(a)--
30 (a) must be in writing; and
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(b) may be given generally, or only in relation to
a particular case or cases, or a particular
class of case or cases; and
(c) may be revoked by the person who gave it at
5 any time by notice in writing.
(3) The revocation of an authorisation does not affect
any proceedings started by a person before that
person's authorisation was revoked unless the
notice of revocation states otherwise.
10 (4) In a prosecution for an offence under this Act, the
Industrial Division of the Magistrates' Court must
presume, in the absence of evidence to the
contrary, that the prosecutor is authorised to bring
the prosecution.
15 (5) A prosecution may only be conducted by--
(a) the person authorised by or under sub-
section (1) to bring the prosecution; or
(b) a legal practitioner (within the meaning of
the Legal Practice Act 1996) briefed by the
20 person authorised to bring the prosecution.
62. Judicial notice of signatures
All courts must take judicial notice of--
(a) the signature of a person who is, or was at
the time the signature purports to have been
25 made, the Minister, the Secretary, an
employee to whom section 61(1)(a)(iii)
applies or a person referred to in section
61(1)(b); and
(b) the fact that a person listed in paragraph (a)
30 held the position he or she purported to hold
at the time the signature purports to have
been made.
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63. Conduct of agents imputed to corporations
For the purposes of this Act, any conduct engaged
in on behalf of a corporation--
(a) by a director, employee or agent of the
5 corporation acting within the scope of the
person's actual or apparent authority; or
(b) by any other person at the direction, or with
the consent (express or implied) of such a
director, employee or agent--
10 is also conduct engaged in by the corporation.
64. Reverse onus of proof in certain cases
In a prosecution against an employer for failing to
pay an outworker an amount owed to the
outworker under a contract of employment if--
15 (a) the outworker is dead; and
(b) the employer alleges that the period shown in
the charge as being the period of continuous
employment of the outworker with the
employer is wrong--
20 the employer bears the onus of proving the
allegation.
65. Recovery of money owed
(1) An outworker who is owed any money by an
employer under this Act or any other Act, or
25 under any contract of employment, may take
proceedings in the Industrial Division of the
Magistrates' Court to recover the money owing.
The debt must arise out of the employment
relationship.
30 (2) The proceedings must be started within 6 years
after the outworker's entitlement to the money
arising.
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(3) Before proceedings may be started under this
section, the employer must be given a written
demand for the money owed.
(4) If the Court is satisfied that the employer--
5 (a) had reasonable notice of the outworker's
claim; and
(b) had no reasonable grounds on which to
dispute the claim; and
(c) in the circumstances should have paid the
10 claim without the need for proceedings being
taken to establish the validity of the claim--
the Court may order the employer to pay interest
to the outworker on top of any other amount to
which the outworker is entitled.
15 (5) The interest must not be greater than the rate fixed
under section 2 of the Penalty Interest Rates Act
1983 that applies at the time the Court makes the
order.
(6) If a claim is made under this section by an
20 outworker's personal representative, sub-sections
(4) and (5) apply despite anything to the contrary
in section 29 of the Administration and Probate
Act 1958.
66. Court may order payment of arrears on finding of
25 guilt
(1) If the Industrial Division of the Magistrates' Court
finds an employer guilty of an offence relating to
the underpayment of an outworker, the Court may
order the employer to pay the outworker any
30 amount that the outworker was underpaid and that
is still owed to the outworker, in addition to
imposing a penalty for the offence.
(2) However, under this section the Court may only
order the employer to pay an amount in respect of
35 a period of up to 6 years.
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(3) Sub-sections (4), (5) and (6) of section 65 apply to
this section.
(4) An order under this section may be enforced as if
it were an order made by the Court in a civil
5 proceeding. However, if any amount remains to be
paid after all reasonable means of civil
enforcement have been tried, the order may be
enforced as if it were a fine imposed by the Court.
(5) Nothing in this section limits an outworker's rights
10 under section 15 or 65, and nothing in either of
those sections limits the power of the Court under
this section.
67. Representation in Magistrates' Court proceedings
(1) An outworker may be represented in any
15 proceeding referred to in section 65 or 66 by a
person who is an employee or agent of--
(a) a registered organisation of which the
outworker is a member or eligible to become
a member; or
20 (b) a peak body of which an organisation
representing the outworker is a member.
(2) An employer may be represented in any
proceeding referred to in section 65 or 66 by a
person who is an employee or agent of--
25 (a) a registered organisation of which the
employer is a member or eligible to become
a member; or
(b) an interested organisation of which the
employer is a member or eligible to become
30 a member; or
(c) a peak body of which an organisation
representing the employer is a member.
__________________
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PART 5--GENERAL
68. Review of Act
(1) The Minister must review this Act to determine
whether the policy objectives of the Act remain
5 valid and whether the terms of the Act remain
appropriate for securing those objectives.
(2) The review is to be undertaken before the end of,
or as soon as possible after, the period of 5 years
after the day on which this Act receives the Royal
10 Assent.
(3) The Minister must cause a report on the outcome
of the review to be laid before each House of
Parliament as soon as practicable after the review
is completed and in any event before the end of
15 the period of 6 years after the day on which this
Act receives the Royal Assent.
69. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
20 (a) prescribing criteria for the issue of
authorities under Division 2 of Part 4;
(b) requiring employers to keep records in
relation to the contracting out of work in the
clothing industry and the engagement of
25 outworkers;
(c) prescribing any matter or thing required or
permitted by this Act to be prescribed or
necessary to be prescribed to give effect to
this Act.
30 (2) The regulations--
(a) may be of general or limited application;
(b) may differ according to differences in time,
place or circumstances;
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(c) may impose a penalty, not exceeding
20 penalty units, for a contravention of the
regulations.
__________________
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s. 70
ADMINISTRATIVE TRIBUNAL ACT 1998
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
70. Amendment of Schedule 1
In Schedule 1 to the Victorian Civil and
5 Administrative Tribunal Act 1998, after Part 15
insert--
"PART 15AA--OUTWORKERS (IMPROVED
PROTECTION) ACT 2002
51AA. Constitution of Tribunal
10 In a proceeding under the Outworkers
(Improved Protection) Act 2002 the Tribunal
is to be constituted by--
(a) one member who, in the opinion of the
President, has knowledge of, or
15 experience in, industrial relations
matters; or
(b) if it is constituted by more than one
member, at least one member who, in the
opinion of the President, has knowledge
20 of, or experience in, industrial relations
matters.
51AB. Intervention by Minister
The Minister administering the Outworkers
(Improved Protection) Act 2002 may
25 intervene in a proceeding under that Act at any
time before the Tribunal has finished hearing it.
51AC. Unincorporated associations can be parties
(1) Section 61(1) does not apply to a proceeding
under the Outworkers (Improved Protection)
30 Act 2002.
(2) An unincorporated association that is a party to
a proceeding under the Outworkers
(Improved Protection) Act 2002 has the same
right to representation in the proceeding as a
35 body corporate.
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ADMINISTRATIVE TRIBUNAL ACT 1998
51AD. Representation
In addition to any right of representation under
section 62, a party to a proceeding under the
Outworkers (Improved Protection) Act 2002
5 may be represented by an employee or agent
of--
(a) a registered organisation or interested
organisation of which the party is a
member or eligible to become a member;
10 or
(b) a peak body of which an organisation
representing the employee is a member.".
__________________
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ADMINISTRATIVE TRIBUNAL ACT 1998
SCHEDULE
Section 27
CONSTITUTION AND PROCEDURE OF COUNCIL
PART 1--CONSTITUTION
1. Period of office of members
5 Subject to this Schedule, a member holds office for the
period (not exceeding 3 years) specified in his or her
instrument of appointment, and is eligible for re-
appointment.
2. Payment of members
10 (1) A member, other than a member who is an employee in the
public service within the meaning of the Public Sector
Management and Employment Act 1998, is entitled to
receive the fees, if any, that are fixed from time to time by
the Minister in respect of the member.
15 (2) A member is entitled to receive the allowances that are fixed
from time to time by the Minister.
3. Acting members
(1) The Minister may appoint a person who is eligible to be
appointed as a member to act as member--
20 (a) during a vacancy in the office of the member; or
(b) if the member is absent or, for any other reason, is
unable to perform the duties of office.
(2) In the case of an acting member appointed for a member
who was appointed under section 25(1)(b), (c), (d), (e) or
25 (f), the acting member must be appointed from the same, or
another, list submitted by the organisation that nominated
the member.
(3) The Minister--
(a) may determine the terms and conditions of
30 appointment of an acting member; and
(b) may terminate the appointment at any time.
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(4) While acting in a member's place, the acting member--
(a) has all the powers and must perform all the duties of
the member; and
(b) is entitled to be paid the fees and allowances (if any)
5 to which the member would have been entitled.
(5) An acting member is eligible for re-appointment.
4. Resignation and removal
(1) A member may resign from the office of member by writing
signed by the member and delivered to the Minister.
10 (2) The Minister may remove a member from office at any time.
(3) The office of a member also becomes vacant if the
member--
(a) becomes an insolvent under administration within the
meaning of the Corporations Act; or
15 (b) is convicted in Victoria of an offence punishable by
imprisonment for 12 months or more or elsewhere of
an offence that, if committed in Victoria, would be so
punishable; or
(c) becomes incapable of performing the duties of a
20 member; or
(d) is absent, without leave first being granted by the
Council, for 4 consecutive meetings of the Council of
which reasonable notice has been given to the
member personally or by post.
25 5. Effect of other Acts
(1) The Public Sector Management and Employment Act
1998 does not apply to a member in respect of the office of
member.
(2) If by or under any Act provision is made--
30 (a) requiring a person who is the holder of a specified
office to devote the whole of his or her time to the
duties of that office, or
(b) prohibiting the person from engaging in employment
outside the duties of that office--
35 the provision does not operate to disqualify the person from
holding that office and also the office of a member or from
accepting and retaining any remuneration payable to the
person under this Act as a member.
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(3) For the avoidance of doubt, the office of member is not to be
taken to be an office or place of profit under the Crown for
the purposes of section 55(d), 80A(5A)(a) or 83(4) of the
Constitution Act 1975 or section 13A(5A)(a) or (5C) of the
5 County Court Act 1958.
PART 2--PROCEDURE
6. General procedure
(1) The chairperson, or in his or her absence, the acting
chairperson, or in the absence of both of them, a member
10 elected by the members present, must preside at a meeting
of the Council.
(2) The quorum of the Council is 4 members.
(3) A question arising at a meeting is determined by a majority
of votes and the person presiding has a deliberative vote
15 and, in the case of an equality of votes, a second or casting
vote.
(4) The Council must ensure that accurate minutes are kept of
each meeting.
(5) The Council may transact any of its business at a meeting at
20 which the members or any of them participate by telephone,
closed-circuit television or in any other similar way.
(6) Subject to this Act, the Council may regulate its own
procedure.
7. Conflicts of interest
25 (1) Whenever the Council is to make a decision on a matter at a
meeting, each member present at the meeting must, before
the matter is considered, declare any direct or indirect
pecuniary interest that he or she has in the matter.
Penalty: 5 penalty units.
30 (2) The Council or the chairperson must cause the declaration to
be tabled at that meeting or at the next meeting of the
Council and the person presiding at that meeting must cause
the declaration to be recorded in the minutes of the meeting.
(3) A member who has a conflict of interest in a matter--
35 (a) must not be present during any deliberations on the
matter, unless a full declaration of the interest has
been made and the Council directs otherwise; and
(b) is not entitled to vote on the matter.
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(4) A member who has a conflict of interest in a matter must not
be present during any deliberations leading to a direction, or
take part in making a direction under sub-clause (3)(a).
(5) If a member votes on a matter in contravention of sub-
5 clause (3)(b), his or her vote must be disallowed.
8. Resolutions without meetings
(1) If--
(a) the Council has taken reasonable steps to give notice
to each member setting out the terms of a proposed
10 resolution; and
(b) at least 4 of the members sign a document containing
a statement that they are in favour of the resolution in
the terms set out in the document--
a resolution in those terms is deemed to have been passed at
15 a meeting of the Council held on the day on which the
document is signed or, if the members referred to in
paragraph (b) do not sign it on the same day, on the day on
which the last of those members signs the document.
(2) For the purposes of sub-clause (1), 2 or more separate
20 documents containing a statement in identical terms, each of
which is signed by one or more members, are deemed to
constitute one document.
(3) If a resolution is deemed by this section to have been passed
at a meeting of the Council, each member must as soon as
25 practicable be advised of the matter and given a copy of the
resolution.
(4) The members referred to in sub-clause (1)(b) must not
include a member who, because of clause 7, is not entitled to
vote on the resolution.
30 9. Effect of a vacancy or defect
An act or decision of the Council is not invalid only
because--
(a) of a vacancy in its membership; or
(b) of a defect or irregularity in the appointment of any of
35 its members; or
(c) in the case of an acting member, the occasion for that
member so acting had not arisen or had ceased.
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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INDEX
Subject Section
Act
amendments to other Acts 70
commencement 2
purposes 1
review 68
Applied Clothing Trades Award
See Clothing Trades Award
Authorised industrial officers
access denied on religious grounds 52
authorities issued to 51
definition 48
no entry to residential premises without consent 53
offences regarding 54
powers 49-50
Board of Reference
consent to engagement of more than 10 outworkers 11
equivalent to Industrial Registrar in Federal Award 6
definition 3
establishment, functions 12
membership and procedure 13
registration of employers by 9-10
Clothing Trades Award
application 6
applied Clothing Trades Award (def.) 3
conditions, exceptions, limitations 8
construction of references in 6
definition of Federal Award 3
effect 7
Clothing work (def.) 3
Code of Practice Committee (def.) 3
Contractors
See Principal contractors; Subcontractors
63
Corporations
Council
See Ethical Clothing Trades Council of Victoria
3, 14, 21, 37, 48,
Definitions
55
Employees
persons considered to be 5
Employers
certificates of exemption 52
definition 3, 14, 55
duties, rights regarding applied Award 7-8
legal representation 67
liability for unpaid remuneration
actual employers 17
apparent employers 16, 18
money owed by apparent employer to actual
employer 17, 20
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Subject Section
persons considered to be 5
registered employer (def.) 3
registration 9-10, 56
references in Federal Award to registered employer 6
victimisation of outworkers by 55
Ethical Clothing Trades Council of Victoria
assistance for 30
chairperson 26
constitution and procedure 27, Sch.
consultation with 35
establishment and functions 24
membership 25
reports 28-29, 31
Federal Award See Clothing Trades Award
3, 24
Homeworkers Code
Industrial legislation
See Relevant industrial legislation
Information services officers
appointment 40
confidentiality 47
definition 3
functions 39
identity cards 41
offences regarding 41, 47, 57, 59
powers (general) 42
powers as to production, retention of documents 45-46
powers of entry and inspection 43-44
3, 67
Interested organisations
Lawful entitlements (def.) 3
Mandatory code of practice
amendment 35
availability 36
competition policy authorisation 37
contents 32
effect 34
exemptions 38
making of 31, 33
revocation 35
Minister
authorisation of persons to bring prosecutions 61
judicial notice 62
powers regarding Council 24-26, 28-30
powers regarding information services officers 40-41
powers regarding mandatory code of practice 31, 33, 35
review of Act by 68
Offences and penalties
Court orders as additional penalties 66
proceedings and prosecutions for 60-61, 64-67
regarding
authorised industrial officers 51, 54
contraventions of applied Award 7
false statements by subcontractors 22
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Subject Section
information services officers 41, 47, 57, 59
mandatory code of practice 34
registration, number of outworkers 56
unpaid remuneration claims, referred claims 19
victimisation 55
Outworkers and outwork
approval to engage more than 10 outworkers 11, 56
certificates of exemption 52
considered to be employees 5
definitions 3, 55
legal representation in proceedings 67
outworkers' records (def.) 48
relevant outworkers (def.) 21, 48
3, 67
Peak bodies
21-23
Principal contractors
60, 65-67
Proceedings
64
Proof
61, 64
Prosecutions
Registered employers See Employers
3, 67
Registered organisations
22, 38, 69
Regulations
4, 5, 48
Relevant industrial legislation
Religious beliefs and doctrines
precluding membership of organisations, bodies 52
Remuneration See Unpaid remuneration
3, 13, 36, 61, 62
Secretary
Self-incrimination
protection against 58
21-23
Subcontractors
Tribunal
See Victorian Civil and Administrative Tribunal
Union officers
authorised industrial officers 48-54
judicial notice 62
power to bring prosecutions 61
Unpaid remuneration
claims 14, 15
Court orders regarding payment of 66
interest on money owed 65
liability of employers 16-17
liability of principal contractors 21-23
offences relating to claims, referred claims 19
recovery of amounts payable 18, 20, 65-67
referred claims 16
remuneration (def.) 14
55
Victimisation
8
Victorian Civil and Administrative Tribunal
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