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Outworkers (Improved Protection) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 states that the main purpose of the Act is to improve the
protection of outworkers in the clothing industry and to establish
the Ethical Clothing Trades Council of Victoria.
Clause 2 sets out the Act's commencement dates. The Act comes into
operation on a day or days to be proclaimed. If a provision of the
Act does not come into operation before 1 January 2004, it comes
into operation on that day.
Clause 3 sets out the definitions of terms used in the Act.
PART 2--PROTECTION OF OUTWORKERS
Division 1--Outworkers as Employees
Clause 4 defines an outworker to be an employee for the purposes of
certain specified laws.
Division 2--Unpaid Remuneration
Clause 5 sets out the definitions of terms used in this Division.
Clause 6 provides for outworkers to make a claim for unpaid remuneration
by serving a written notice on the person that the outworker
believes to be their employer--the apparent employer. The claim
must be made within 6 months after the work is completed and
be verified by a statutory declaration.
Clause 7 provides that the apparent employer is liable for the amount of
unpaid remuneration claimed by the outworker unless the
apparent employer refers the claim within 14 days to the person
that the apparent employer knows or has reasonable grounds to
believe is the actual employer of the outworker. The outworker
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551012 BILL LA CIRCULATION 28/2/2003
is to be advised in writing of the name and address of the actual
employer. The apparent employer is not liable for any unpaid
remuneration for which the actual employer accepts liability.
Clause 8 provides that an actual employer served with a referred claim
may accept liability for some or all of the claim by paying the
outworker and serving a written notice on the apparent employer
of the acceptance of the claim and the amount paid. If the actual
employer has not accepted liability, the apparent employer may
deduct or set-off an amount paid to the outworker by the apparent
employer from any amount that the apparent employer owes to
the actual employer (whether or not in respect of work the subject
of the referred claim).
Clause 9 provides for outworkers to recover amounts payable by apparent
employers under sections 60 and 61 of this Act. In such
proceedings, an order for the apparent employer to pay the
amount concerned must be made unless the apparent employer
can show that the work was not done or that the amount claimed
is not correct.
Clause 10 creates an offence where a person--
· makes a false statement in a referred claim under
section 7 or a notice served with respect to liability for a
claim for unpaid remuneration under section 8;
· serves a referred claim on a person where the employer
does not know or have reasonable grounds to believe
the person is an actual employer.
Clause 11 provides that clauses 5 to 10 do not affect any other rights of
recovery of remuneration of an outworker or any liability of any
person with respect to the remuneration of an outworker under
this Act or any other law or common rule order.
Clause 12 applies where a principal contractor has entered into a contract
for work, connected to a business undertaking of the principal
contractor, that is to be carried out by a subcontractor, and
outworkers of the subcontractor are engaged to carry out the
work. The principal contractor is liable to pay any unpaid
remuneration of the outworkers of the subcontractor unless the
principal contractor has a written statement from the
subcontractor that all amounts owing to them have been paid, as
provided for in clause 14. The principal contractor may lawfully,
and without penalty, withhold any payments due to the
subcontractor until a written statement is provided. The clause
also provides that section 60 and 61 of this Act apply to recovery
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of remuneration by an outworker of a subcontractor from a
principal contractor under this section.
Clause 13 sets out the requirements for written statements under section 12
and provides a penalty for providing a false statement. A false
statement does not relieve the principal contractor of liability
under section 12 if the principal contractor had, when given the
statement, reason to believe it was false.
Clause 14 provides that section 12 does not apply if the subcontractor is in
receivership, liquidation or bankrupt and if payments have been
made to the receiver, liquidator or trustee in bankruptcy.
PART 3--ENSURING ETHICAL CLOTHING INDUSTRY
OUTWORK PRACTICES
Division 1--Ethical Clothing Trades Council of Victoria
Clause 15 establishes an Ethical Clothing Trades Council of Victoria.
The Council is to advise and make recommendations to the
Minister on the clothing industry and outworker practices in the
industry, advise and make recommendations on compliance with
obligations regarding outworkers' entitlements and on the
effectiveness of self-regulatory mechanisms in ensuring
outworkers receive their lawful entitlements. The Council will
also foster and promote the adoption and observance of self-
regulatory mechanisms such as voluntary industry agreements,
facilitate consultation between industry retailers and relevant
industrial organisations regarding voluntary agreements and may
conduct education programs relating to outworkers and the
industry. The Council may provide advice and make
recommendations even when not requested by the Minister.
In performing its functions the Council is subject to the direction
of the Minister other than in relation to any report given to the
Minister under this Division. The Council must also consider
anything done or published by the NSW Council.
Clause 16 provides for the Council to consist of 7 part-time members
appointed by the Minister. The members include persons
selected from nominations by specified employer and union
organisations, as well as the chairperson and a person with
relevant experience in the clothing industry or in representing
consumer, community or other interests.
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Clause 17 provides for the Minister to appoint a chairperson who has
sufficient knowledge of outwork practices in the clothing
industry to ensure that the work of the Council is efficiently
performed. The chairperson must not be someone who
represents an employer, employees or outworkers in the clothing
industry or someone with a direct financial interest in the
industry.
Clause 18 provides for the Schedule outlining the constitution and
procedure of the Council to have effect with respect to the
Council.
Clause 19 provides for the Council to monitor whether outworkers are
receiving their lawful entitlements and to make quarterly reports
to the Minister on its findings. The Council must report on, and
may make recommendations with respect to, activities of
clothing industry retailers and manufacturers under the
Homeworkers Code of Practice, the participation by clothing
retailers in voluntary industry agreements relating to outwork
practices and the activities of clothing industry retailers and
manufacturers in relation to their obligations under the
mandatory code (if in force). The first report is to be made
3 months after commencement. The Minister may waive the
requirement that the Council make a quarterly report for any
period.
Clause 20 provides for the Council to evaluate action taken by the clothing
industry during the 12 months after the commencement of this
section to improve compliance with obligations to ensure
outworkers receive their lawful entitlements and report its
findings to the Minister as soon as practicable after the end of the
12 month period. The report must include recommendations as
to whether a mandatory code would improve compliance and the
contents of a mandatory code, including appropriate compliance
mechanisms. The Minister must table the report in Parliament as
soon as practicable.
Clause 21 provides that the Minister may approve the Council using the
services of staff or facilities of a government department.
Division 2--Mandatory Code of Practice
Clause 22 provides for the making of a mandatory code of practice for the
purpose of ensuring that outworkers receive their lawful
entitlements. The Minister may make the code if it is considered
that the current voluntary self-regulatory mechanisms are
inadequate to achieve improvements in the level of compliance
within the industry or that the clothing industry is not attempting
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to negotiate in good faith improvements or extensions to
voluntary self-regulatory mechanisms. The mandatory code can
only be made after the Minister has considered a report of the
Council under clause 20.
Clause 23 provides for the mandatory code to contain a requirement for
employers or other persons engaged in the clothing industry to
adopt the standards of conduct and practice set out in the code
with respect to outworkers. The code may apply, adopt or
incorporate a standard or other document prepared or published
by a body specified in the code.
Clause 24 provides for the Minister to make the mandatory code by order
published in the Government Gazette. The code takes affect on
the day the order is published or the later day specified in the
order.
Clause 25 provides an offence for an employer or other person engaged in
the clothing industry to fail, without reasonable excuse, to adopt
any standard of conduct or practice set out in the code. However,
the provisions of a federal award or common rule order that are
applicable to outworkers prevail over the mandatory code to the
extent of any inconsistency.
Clause 26 provides for the Minister to amend or revoke the mandatory code
only after consultation with the Council and consideration of any
relevant report or recommendation made by it. If the Minister
revokes the mandatory code, he or she may make another one in
accordance with this Division.
Clause 27 provides that the Secretary must ensure that copies of the
mandatory code are made available for inspection at the principal
office of the Department from time to time without charge.
Clause 28 specifically authorises the conduct of persons in entering into
and performing agreements where those agreements are entered
into before or after the commencement of this clause by persons
in order to comply with any requirement imposed on them by the
mandatory code, for the purposes of Part IV of the
Commonwealth Trade Practices Act 1974 and the Competition
Code.
Clause 29 provides for the regulations to exempt any person or body or
class of persons or bodies from the operation of the mandatory
code or a specified provision of the code.
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PART 4--COMPLIANCE
Division 1--Information Services Officers
Clause 30 sets out the functions of the information services officers as being
to provide information about relevant industrial legislation, as
well as ensuring compliance with relevant industrial legislation
and any other functions conferred on them by this Act and the
regulations.
Clause 31 sets out the appointment mechanism for, and the qualifications
of, information services officers. Information services officers
are appointed by the Secretary under the Public Sector
Management and Employment Act 1998. Persons appointed
must, in the Secretary's opinion, be competent to perform their
duties, be of good repute and character, and be honest.
Clause 32 provides that the information services officers are to be provided
with approved identity cards, which must be produced when
exercising powers. Identity cards carry the officer's photo and
signature.
Clause 33 allows information services officers to request assistance from
the police.
Clause 34 provides that information services officers may exercise powers
under this Act only when reasonably necessary to do so for the
purpose of determining compliance with relevant industrial
legislation. In doing so they must cause as little inconvenience as
possible and not remain on the premises any longer than is
reasonably necessary.
Clause 35 allows information services officers to enter any premises
without force where they have reasonable grounds for believing
that outwork is being, or has been performed or outwork
documents relevant to determining compliance with relevant
industrial legislation are kept. An information services officer
may only enter during working hours and may not enter any part
of premises that are used solely for residential purposes without
the informed consent of the occupier.
Clause 36 sets out the powers of information services officers in inspecting,
taking samples of goods or interviewing outworkers or
employees. Under clause 52, an outworker or employee who is
interviewed may refuse to answer any question if answering the
question would tend to incriminate them. An information
services officer may require the production of outwork
documents relevant to determining compliance with relevant
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industrial legislation within a reasonable period and may make
copies of documents.
Clause 37 allows an information services officer to require, by written
notice, the production of an outwork document for the purposes
of determining compliance with relevant industrial legislation.
The information services officer may make copies of a document.
Clause 38 allows an information services officer to retain a document for a
period necessary for the performing of functions and exercising
powers as an information services officer.
Clause 39 imposes confidentiality requirements on information services
officers in respect of information they receive while performing
their functions. An information services officer must not give
any information acquired in the performing of his/her duties to
another person, unless to do so is necessary in performing the
functions of the office. This provision does not apply to the
giving of information to a court or tribunal, or to the giving of
information to the extent reasonably required to enable an
investigation or enforcement of a law.
Division 2--Entry and Inspection by Industrial Officials
Clause 40 sets out the purpose of the Division and definitions of terms used
in the Division.
Clause 41 allows authorised officers to enter any premises, during working
hours and without force, for the purpose of investigating a
suspected contravention of this Act. For the purposes of
investigating the suspected contravention, the authorised officer
may enter any premises where outworkers work who are, or are
eligible to become, members of the union or which are occupied
by an employer or contractor bound by a federal award or
common rule order that relates to outwork. After entering the
premises the authorised officer may, for the purposes of
investigating the suspected contravention make copies of
documents that are relevant to the suspected contravention,
including time and pay sheets. The authorised officer may also
inspect or view any work, material or machinery, and interview
any employee or outworker who is a member or eligible to be a
member of the union. For the purposes of investigating the
suspected contravention, the authorised officer may require an
employer to produce documents.
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Clause 42 allows an authorised officer to enter premises where outworkers
who are, or are eligible to become, members of the union work,
for the purpose of holding discussions with any outworkers who
wish to participate. Such discussions may only take place during
meal times and other breaks. The authorised officer may not enter
premises if no more than 20 outworkers are engaged to work at
the premises, and all the outworkers at the premises are engaged
by an employer who is the holder of a conscientious objection
certificate in force under section 267 of the Commonwealth Act,
and none of the outworkers engaged at the premises is a member
of a registered organisation.
Clause 43 requires an authorised officer to produce his/her permit prior to
entry. An authorised officer may only enter premises if he or she
has given the occupier at least 24 hours notice. Entry to any part
of a premises used for residential purposes may only occur with
the permission of the occupier.
Clause 44 allows the Court, on the ex parte application of an authorised
officer, to make an order waiving the requirement for notice if
satisfied that the notice would defeat the purpose of the exercise.
The clause sets out the procedure on entry for an authorised
officer who enters any premises under a Court order.
Clause 45 allows the Court to issue a permit, on application by the secretary
of the Textile Clothing and Footwear Union of Australia
(Victorian Branch), to an officer or employee of the union to
exercise powers under section 41 and 42. A permit is valid for
3 years.
Clause 46 allows the Court to revoke a permit on application, if satisfied
that the authorised officer has intentionally hindered or
obstructed employers or employees or has acted in an improper
manner. An employer, a registered organisation of employers or
an information services officer may make the application.
Clause 47 specifies conduct in relation to this Division that attracts civil
penalties. An authorised officer must not deliberately hinder or
obstruct an employer, contractor, employees or outworkers.
An occupier must not refuse entry to an authorised officer.
An employer must not refuse to comply with the requirements of
section 41(3)(a) or (4). A person must not deliberately hinder or
obstruct an authorised officer. A person to whom a permit has
been issued must, within 14 days after its expiry or revocation,
return the permit to the Court.
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Clause 48 states that a contravention of a penalty provision in section 47 is
not an offence. A court, however, may make an order imposing a
penalty on a person who contravenes a penalty provision.
The penalty can not be more than $10 000 for a body corporate or
$2000 in other cases. A court may grant an injunction requiring a
person not to contravene, or to cease contravening a penalty
provision.
Clause 49 empowers a court that imposes a penalty under section 48(1) to
order that the penalty be paid into the Consolidated Fund or to a
particular registered organisation, or person.
Division 3--Victimisation
Clause 50 requires that an employer, a contractor, a registered organisation
or an interested organisation must not victimise an outworker
who claims a benefit, or exercises a power or right, under the
Act, brings or participates in a proceeding under the Act or
informs any person of an alleged contravention of the Act or
regulations.
Division 4--Other Offences
Clause 51 creates offences for failing to comply with a requirement made
by an information services officer to produce documents,
hindering information services officers and giving information
services officers false information.
Clause 52 provides for protection against self-incrimination in respect of
information and documents other than in respect of documents
required to be kept under the Act or regulations.
Clause 53 makes it an offence to impersonate an information services
officer.
Division 5--Prosecutions, Evidence and Recovery of Money
Clause 54 provides for proceedings for an offence against the Act to be
heard, and penalties to be recovered, in the Industrial Division of
the Magistrates' Court.
Clause 55 sets out who can bring a prosecution for an offence against the
Act. These are persons who are authorised by the Minister, the
Secretary or an employee of the Department authorised by the
Minister to authorise a person. An officer of the union can also
bring a prosecution. The clause also sets out provisions relating
to authorisation and revocation of authorisation of those who can
prosecute.
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Clause 56 provides that all courts must take judicial note of certain
signatures in relation to authorisations to prosecute.
Clause 57 allows union officers to bring prosecutions under section 7(2) of
the Federal Awards (Uniform System) Act 2003 in relation to
offences connected with common rule orders that apply to
outworkers.
Clause 58 provides for the imputation to a corporation of conduct engaged
in on behalf of the corporation.
Clause 59 provides that, in a prosecution of an employer for failing to pay
an outworker an amount owed to an outworker under a contract
of employment, if the outworker is dead and the employer alleges
that the period of continuous employment shown in the charge is
wrong, the employer bears the onus of proving the allegation.
Clause 60 provides that an outworker who is owed money under relevant
industrial legislation or under any contract of employment, may
take proceedings to recover the money owing in the Industrial
Division of the Magistrates' Court. The proceedings must be
started within 6 years after the entitlements arises. In some
circumstances, the Court may charge interest on any money it
finds the outworker is entitled to.
Clause 61 allows the Court to order an employer it finds guilty of an
offence relating to underpayment to pay the outworker any
amount the outworker was underpaid, in addition to imposing a
penalty for the offence. The Court may only order the employer
to pay an amount in respect of a period of up to 6 years.
The Court may also charge interest in some circumstances.
Clause 62 provides that an outworker may be represented before the Court
by an employee or agent of a registered organisation or peak
body. An employer may be represented by an employee or agent
of a registered organisation, an interested organisation or a peak
body.
Clause 63 provides that for the purposes of this Act, the treasurer of an
unincorporated club is taken to be the employer of a person, and
any proceedings that may be taken under this Act by or against
the club may be taken by or against the treasurer on behalf of the
club.
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PART 5--GENERAL
Clause 64 provides that the Minister must review the Act, before the end of
or as soon as possible after 5 years, to determine whether the
policy objectives of the Act remain valid and whether the terms
of the Act remain appropriate for securing those objectives.
The outcome of the review must be reported to Parliament no
later than 6 years after the day on which the Act receives Royal
Assent.
Clause 65 enables the Governor in Council to make regulations in relation
to any matter or thing permitted by the Act, including regulations
with respect to authorities for industrial officers, and the
prescribing of documents or records to be kept under the Act.
The regulations may require penalties of up to 20 penalty units
for a contravention of the regulations.
SCHEDULE
Schedule sets out the constitution and procedure of the Council, including
the period of office, payment of members, acting members,
resignation and removal of members, conflicts of interest,
resolutions without meetings and the effect of a vacancy or
defect.
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