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Outworkers (Improved Protection) Bill
As Sent 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, to apply the
federal Clothing Trades Award to Victorian 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 July 2003, 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 "relevant industrial legislation" for the purposes of the
Act.
Clause 5 deems an outworker to be an employee for the purposes of
relevant industrial legislation.
Division 2--Applied Clothing Trades Award
Clause 6 provides that the federal Clothing Trades Award 1999, as varied
from time to time, applies to outworkers in Victoria subject to
the modifications set out in this Act and any condition, exception
or limitation specified by the Tribunal under section 8.
Certain provisions of the Federal Award, as listed, do not apply
to outworkers. A reference in the Federal Award to a registered
employer is taken as being a reference to a registered employer
under this Act. Likewise, a reference to a requirement to apply
for registration under clause 48 of the Federal Award is taken to
be a requirement to apply for registration under Division 3 of
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541324 BILL LA AS SENT 1/11/2002
Part 2 of this Act. A reference in clause 46 of the Federal Award
to the Industrial Registrar is taken to be a reference to the Board
of Reference under this Act.
Clause 7 provides that the applied Clothing Trades Award has the effect of
binding all employers and outworkers, and all persons engaged in
the clothing industry who contract for clothing work to be
performed outside their factory or workshop. A provision of a
contract is of no effect to the extent that it provides a condition of
employment that is less favourable to an outworker than that
applicable under the applied Clothing Trades Award. It is an
offence for an employer or other person engaged in the clothing
industry to contravene a provision of the applied Clothing Trades
Award that applies to the employer or other person.
Clause 8 provides that an employer may apply to the Tribunal for an 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. An application can only be
made on the grounds that the applied award imposes a financial
obligation on the employer that the employer does not have
capacity to meet. In determining whether the ground for an
application is made out, the Tribunal must have 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
Clause 9 provides that a person engaged in the clothing industry who is not
a registered employer must not engage an outworker or enter
into, or purport to enter into, a contract to have clothing work
performed outside the person's factory or workshop. A person
engaged in the clothing industry must not give another person
work to be performed if they know, or have reason to know, that
the work may be performed outside the other person's factory or
workshop and that the other person is not a registered employer.
The Board of Registration may register a person for 12 months
on application. The application for registration must specify the
place where the applicant proposes to keep all documents that
relate to contracting out of work in the clothing industry.
The Board of Reference may impose conditions on the
registration of an employer and may cancel the registration of the
employer if satisfied that the employer has failed to comply with
a condition or registration. Registrations may be renewed by the
Board from time to time on application. The Board must keep a
register of registered employers.
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Clause 10 requires a registered employer to publish a notice in a newspaper
generally circulating in Victoria after registration and each
renewal of registration. The notice is to state that the name and
registration number of the person registered to employ
outworkers. A registered employer may seek an exemption from
publishing the notice from the Board of Reference.
Clause 11 provides that a person must have the approval of the Board of
Reference to engage more than 10 outworkers at any one time.
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.
Clause 12 establishes the Board of Reference. The Board of Reference is to
consider applications for registration as an employer of
outworkers, keep a register of employers of outworkers, consider
applications from employers to engage more than 10 outworkers
at any one time and consider applications for an exemption from
publishing a notice under section 10(1).
Clause 13 sets out the membership and procedure of the Board of
Reference. The Board consists of 5 part-time members as listed.
The members include persons nominated by specified employer
and union organisations as well as a chairperson. The terms and
conditions of members are determined by the Secretary to the
Department. Members may appoint substitutes to act for them at
any time they are unable to act as member. The quorum of the
Board is the chairperson, one member who is a representative of
a union and one member who is a representative of an employer
organisation. Questions arising at meetings are determined by
majority vote and the chairperson does not have a deliberative
vote but, in the case of an equality of votes, has a casting vote.
The Board may regulate its own procedure subject to this section.
Division 4--Unpaid Remuneration
Clause 14 sets out the definitions of terms used in this Division.
Clause 15 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 16 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
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believe is the actual employer of the outworker. The outworker
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 17 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 18 provides for outworkers to recover amounts payable by apparent
employers under sections 65 and 66. 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 19 creates an offence where a person--
· makes a false statement in a notice with respect to
liability for a claim for unpaid remuneration;
· 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 20 provides that sections 14 to 19 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 the applied Clothing Trades Award.
Clause 21 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 the
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 outworkers have been
paid, as provided for in section 22. 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 65 and 66 apply to recovery of
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remuneration by an outworker of a subcontractor from a principal
contractor under this section.
Clause 22 sets out the requirements for written statements under section 21
and provides a penalty for providing a false statement. A false
statement does not relive the principal contractor of liability
under section 21 if the principal contractor had, when given the
statement, reason to believe it was false.
Clause 23 provides that section 21 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 24 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 25 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 26 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 27 provides for the Schedule outlining the constitution and
procedure of the Council to have effect with respect to the
Council.
Clause 28 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, participation by clothing
retailers in voluntary industry agreements relating to outworker
practices, and the activities of clothing industry 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 29 provides for the Council to evaluate action taken by the clothing
industry during the 12 months after the commencement of this
section of the Act 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 30 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 31 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
to negotiate in good faith improvements or extensions to
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voluntary self-regulatory mechanisms. The mandatory code can
only be made after the Minister has considered a report of the
Council under section 29.
Clause 32 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 33 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 34 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 the applied Clothing Trades Award
that are applicable to outworkers prevail over the mandatory code
to the extent of any inconsistency.
Clause 35 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 36 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 37 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 section 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 38 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 39 sets out the functions of the information services officers as being
to provide information about the Act, as well as ensuring
compliance with the Act and the regulations and any other
functions conferred on them by this Act or the regulations.
Clause 40 sets out the appointment mechanism for, and the qualifications
of, information services officers. Information services officers
are appointed by the Minister under the Public Sector
Management and Employment Act 1998. Persons appointed
must, in the Minister's opinion, be competent to perform their
duties, be of good repute and character, and be honest.
Clause 41 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 42 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 this Act or the
regulations. In doing so they must cause as little inconvenience
as possible and not remain on the premises any longer than is
reasonably necessary.
Clause 43 allows information services officers to enter any premises
without force where they have reasonable grounds for believing
that outwork is being performed or documents relevant to
compliance with this Act or the regulations are kept.
An information services officer may only enter during working
hours and may not enter any part of premises that are used for
residential purposes without the informed consent of the
occupier.
Clause 44 sets out the powers of information services officers in inspecting,
taking samples of goods or interviewing outworkers or
employees. Under section 58, 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 documents
relevant to determining compliance with the Act or the
regulations within a reasonable period and may make copies of a
document.
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Clause 45 allows an information services officer to require, by written
notice, the production of a document for the purposes of
determining compliance with this Act or the regulations.
The information services officer may make copies of a document.
Clause 46 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 47 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 Officers
Clause 48 sets out the definitions of terms used in this Division.
Clause 49 allows an authorised industrial officer to enter premises, during
working hours, where outworkers are engaged or where
outworkers' records are kept, for the purpose of holding
discussions during non-working time or investigating a suspected
contravention of relevant industrial legislation. An authorised
industrial officer may require the production of outworkers'
records and other documents that are related to the suspected
contravention and may make copies. Before exercising these
powers an authorised industrial officer must give the employer at
least 24 hours notice to enter premises or 48 hours notice in
respect of any requirement to produce documents that are not
kept on the employer premises. The Court may make an order
waiving the requirement for notice if satisfied that the notice
would defeat the purpose of the exercise.
Clause 50 sets out the procedure on entry for an authorised industrial officer
who enters any premises under a Court order.
Clause 51 allows the Court to issue an instrument of authority to an officer
or employee of the Textile Clothing and Footwear Union of
Australia (Victorian Branch) in accordance with the regulations.
An authorised industrial officer is required to produce the
authority in request. An authority is valid for 3 years. The Court
may revoke an authority if satisfied that the industrial officer has
intentionally hindered or obstructed employers, outworkers or
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employees during working time or has acted in an improper
manner.
Clause 52 allows an authorised industrial officer to be denied access to
premises on religious grounds where the employer and
outworkers hold certificates of exemption and there are no more
than 20 outworkers engaged. The Court may issue and cancel
certificates of exemption.
Clause 53 provides that an authorised industrial officer does not have
authority to enter any part of premises that is used for residential
purposes without the consent of the occupier.
Clause 54 creates offences in relation to the exercise of powers under this
Division by authorised industrial officers. An authorised
industrial officer must not deliberately hinder or obstruct an
employer, outworker or employees during working time.
A person must not deliberately hinder or obstruct an authorised
industrial officer or fail to comply with a requirement of an
authorised industrial officer without reasonable excuse. A person
must not purport to exercise the powers of an authorised
industrial officer unless they hold a current authority.
Division 3--Other Offences
Clause 55 requires than an employer must not victimise an outworker who
claims a benefit, or exercises a power or right, under the Act or
the regulations, brings or participates in a proceeding under the
Act or the regulations or informs any person of an alleged
contravention of the Act or the regulations.
Clause 56 provides that a person must not fail, without reasonable excuse,
to comply with Division 3 of Part 2--Registration of Employers.
Clause 57 creates offences for failing to comply with a written notice of an
information services officer to produce documents, hindering
information services officers and giving information services
officers false information.
Clause 58 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 59 makes it an offence to impersonate an information services
officer.
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Division 4--Prosecutions, Evidence and Recovery of Money
Clause 60 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 61 sets out who can bring a prosecution for an offence against this
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.
Clause 62 provides that all courts must take judicial note of certain
signatures in relation to authorisations to prosecute.
Clause 63 provides for the imputation to a corporation of conduct engaged
in on behalf of the corporation.
Clause 64 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 65 provides that an outworker who is owed money under the Act or
any other Act 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 66 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 67 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.
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PART 5--GENERAL
Clause 68 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 69 enables the Governor in Council to make regulations in relation
to any matter or thing permitted by the Act, including the
prescribing the criteria for the issue of authorities to industrial
officers, and the prescribing of documents or records to be kept
under the Act. The regulations may specify penalties of up to
20 penalty units for a contravention of the regulations.
PART 6--AMENDMENT OF VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
Clause 70 amends Schedule 1 to the Victorian Civil and Administrative
Tribunal Act 1998 by inserting a new Part 15AA, which sets out
certain variations to the standard VCAT procedure for
proceedings under this Act.
SCHEDULE
Sets out the constitution and procedure of the Council, including 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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