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This is a Bill, not an Act. For current law, see the Acts databases.
FAIR WORK CONTRACTS BILL 2004
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Fair Work
Contracts Bill 2004
Contents
Page
2004
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Industrial Relations)
Fair Work Contracts
Bill 2004
A Bill for
An Act about certain work contracts, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Fair Work Contracts Act 2004.
This Act commences on 1 July 2006.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
The object of this Act is to ensure fair conditions for workers under work
contracts.
4 Application
outside ACT
This Act extends to—
(a) a work contract made, or amended, in the ACT for work outside the ACT;
and
(b) a work contract made, or amended, outside the ACT for work in the
ACT.
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition ‘contract
worker—see section 9.’ means that the term ‘contract
worker is defined in that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
7 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
(1) A work contract is a contract for services for the doing
of work in an industry.
Example of work
contract
A contract under which a person is to transport goods, or install
electrical fittings, and—
• is paid to achieve a particular result or outcome; and
• must supply plant and equipment, or tools of trade, for the work
needed to achieve the result or outcome; and
• is, or would be, liable for the cost of rectifying any defect in
the work done.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) To remove any doubt, a work contract does not include a contract of
employment.
A contract worker under a work contract is a person engaged
to do work under the contract.
The principal under a work contract is a party to the
contract other than a contract worker.
Part
3 Review of work
contracts
11 Applications
for review
(1) Application may be made to the consumer and trader tribunal for review
of a work contract.
(2) An application may be made only—
(a) by an interested person; and
(b) on the ground that the work contract is unfair.
(3) For this part, each of the following is an interested
person:
(a) a party to the work contract;
(b) an industrial organisation whose rules entitle it to represent the
industrial interests of a contract worker under the work contract, if the
organisation acts with the written consent of the worker;
(c) an industrial organisation whose rules entitle it to represent the
industrial interests of a principal under the work contract, if the organisation
acts with the written consent of the principal.
Note 1 If a form is approved under s 27 for this provision, the
form must be used.
Note 2 A fee may be determined under s 28 for this
provision.
12 Remuneration
cap—individual contract workers
(1) The tribunal may review a work contract under which the contract
worker is an individual only if the total value of the remuneration for the
worker under the contract is, during the relevant period, less than the
remuneration cap.
(2) In this section:
relevant period means—
(a) the 12-month period before the day the application to review the
contract is made to the tribunal; or
(b) if the contract has been terminated in the 12-month period mentioned
in paragraph (a)—the 12-month period before the day the contract is
terminated.
remuneration cap means $200 000, WCI indexed.
13 Revenue
cap—corporate contract workers
(1) The tribunal may review a work contract under which the contract
worker is a corporation only if satisfied the gross revenue of the corporation
from all sources is, during the relevant period, less than the revenue
cap.
(2) In this section:
relevant period means—
(a) the 12-month period before the day the application to review the
contract is made to the tribunal; or
(b) if the contract has been terminated in the 12-month period mentioned
in paragraph (a)—the 12-month period before the day the contract is
terminated.
revenue cap means $200 000, WCI
indexed.
14 Time
limit for applications—terminated contracts
The tribunal may review a work contract that has been terminated only if
the application for review is made no later than 12 months after the day the
contract is terminated.
15 Representative
parties
(1) This section applies if 2 or more people have the same or a similar
work contract, whether or not it is with the same principal.
(2) An application may be made to the tribunal under this part in relation
to the contract by any of those people on behalf of some or all of
them.
(3) Unless the tribunal orders otherwise, a proceeding under this part may
also be continued against any of those people on behalf of some or all of
them.
(4) At any stage of a proceeding to which this section applies, the
tribunal may appoint a party to the proceeding, or someone else, to represent
some or all of the people having the same or a similar work contract.
(5) If the tribunal appoints someone under subsection (4) who is not
already a party to the proceeding, the tribunal must join the person as a party
to the proceeding.
Note The Consumer and Trader Tribunal Act 2003, s 28 (2)
provides for the tribunal to join a person as party to a proceeding.
(6) An order made in a proceeding to which this section applies binds
everyone represented by a person appointed under subsection (4) but must not be
enforced against anyone not a party to the proceeding without the
tribunal’s leave.
(7) An application for leave under subsection (6) must be made in
writing.
Note 1 If a form is approved under s 27 for
this provision, the form must be used.
Note 2 A fee may be determined under s 28 for this
provision.
(8) The applicant must give a copy of the application to each person
against whom the order is sought to be enforced.
(9) The tribunal may, by written order, exempt a represented person from
an order mentioned in subsection (6) if satisfied that facts or matters peculiar
to the person would make it unfair for the person to be bound by the
order.
(10) The tribunal may also act under subsection (9) on its own
initiative.
16 Review
of work contract
(1) The tribunal must, on application under section 11, review a work
contract and decide whether it is unfair.
(2) In reviewing the work contract, the tribunal must consider the
following:
(a) the relative strength of the bargaining positions of the parties to
the contract and, if applicable, anyone acting for a party;
(b) whether any undue influence or pressure was exerted on, or any unfair
tactics were used against, a party to the contract;
(c) whether the contract provides for any payment by the contract worker
and the provisions about the payment if the contract is terminated;
Example of payment by contract
worker
payment for goodwill, plant or equipment
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(d) any action taken by a party to mitigate any claimed unfairness under
the contract.
(3) The tribunal may also consider anything else the tribunal considers
relevant.
17 Unfairness
under work contracts
(1) This section does not limit the cases in which the tribunal may find
that a work contract is unfair.
(2) However, the tribunal may decide that a work contract is unfair if
satisfied about any of the following:
(a) the contract provides for remuneration at a rate that is, or is likely
to be, less than the rate of remuneration for an employee doing similar
work;
(b) the contract avoids, or is designed to avoid, the provisions of an
industrial award or agreement;
(c) the contract, if terminated, does not result in the contract worker
being treated fairly in relation to any amount paid by the worker under the
contract;
(d) the contract is, or appears to be, against the public
interest.
Example for par (c)
the contract does not provide for repayment of the amount paid or
compensation for the contract worker
Example for par (d)
the effect of the contract, or a series of similar contracts, would
adversely affect the safety of workers or a section of the public
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) Also, the tribunal may decide that a work contract is
unfair—
(a) as originally made; or
(b) as subsequently amended; or
(c) because of the conduct of a party.
18 Orders
to amend or set aside unfair work contract
(1) This section applies if the tribunal decides that a work contract is
unfair.
(2) The tribunal may, by written order—
(a) amend the contract; or
(b) set aside all or any part of the contract; or
(c) if the contract has been terminated—reinstate the contract with
any amendment the tribunal considers fair and reasonable.
(3) The amendment of a work contract, including a reinstated work
contract, may include—
(a) the omission of any provision of the contract; and
(b) the insertion of new and substituted provisions into the
contract.
(4) An order under this section may only be made for the purpose of
putting the parties to the work contract as nearly as practicable on a footing
that avoids the contract being unfair.
(5) An order under subsection (3) may be expressed to commence
on—
(a) the day the order is made; or
(b) if a later date of commencement is stated in the order—that
later date.
19 Orders
for compensation
(1) This section applies if the tribunal is satisfied that an order under
section 18 would be inadequate for putting the parties to the work contract as
nearly as practicable on a footing that avoids the contract being
unfair.
(2) The tribunal may, in writing, order a party to the work contract to
pay a stated amount of compensation to another party to the contract.
(3) An order for compensation may be made instead of, or in addition to,
an order under section 18.
20 Orders
prohibiting further unfair work contracts
(1) This section applies if the tribunal is satisfied
that—
(a) a principal under a work contract found to be unfair is likely to
enter into another unfair work contract as principal; or
(b) if the principal mentioned in paragraph (a) is a corporation—an
executive officer of the corporation is likely to—
(i) enter into an unfair work contract as principal; or
(ii) be an executive officer of a corporation likely to enter into an
unfair work contract.
(2) The tribunal may, in writing, order the person not to enter into a
work contract of a stated kind.
(3) In this section:
executive officer, of a corporation, means a person, by
whatever name called and whether or not the person is a director of the
corporation, who is concerned with, or takes part in, the corporation’s
management.
Part
4 Tribunal
proceedings
The powers of the tribunal under this Act are additional to those under the
Consumer and Trader Tribunal Act 2003.
(1) The tribunal may require a party to a proceeding arising from an
application under this Act to pay all or any part of the costs of another party
reasonably incurred in relation to the proceeding if satisfied about any of the
following:
(a) an application by the party is frivolous or vexatious;
(b) the party acted unreasonably in pursuing, or failing to settle, a
matter before the tribunal;
(c) the party contravenes a tribunal direction.
(2) However, the tribunal may award costs under subsection (1) only if
satisfied that it is in the interests of justice to do so.
(3) In deciding whether it is in the interests of justice to award costs,
the tribunal must consider the following:
(a) whether the party’s actions were deliberate or could easily have
been avoided;
(b) whether (and if so, the extent to which) the party’s actions
affected the tribunal’s ability to conduct the proceeding in accordance
with the Consumer and Trader Tribunal Act 2003, section 21 (Principles
about tribunal procedures);
(c) the importance to the community of people being able to afford to
bring applications to the tribunal under this Act;
(d) the relative financial capacities of the parties to meet the costs of
the proceeding.
(4) The tribunal may also consider anything else the tribunal considers
relevant.
(5) Costs under this section are payable at
2/3 of the scale of costs
prescribed by the rules applying to a civil proceeding in the Supreme
Court.
Part
5 Enforcing tribunal
orders
23 Court
may enforce order filed in court
(1) This section applies if a party to a proceeding under part 3 (Review
of work contracts)—
(a) applies to a court of competent jurisdiction to enforce a tribunal
order made in the proceeding; and
(b) files a copy of the order, certified in writing by the tribunal
registrar, in the court.
(2) If the court is satisfied that a person (the respondent)
against whom the order is made has contravened, is contravening or is likely to
contravene the order, it may—
(a) make an order restraining the respondent from contravening the
tribunal order (including an order requiring the respondent to do something);
or
(b) make any other order the court considers appropriate to enforce the
tribunal order; or
(c) enforce the tribunal order as if it were a final judgment of the
court.
24 Enforcement
in Magistrates Court
(1) To remove any doubt, the Magistrates Court has jurisdiction to act
under this part to enforce a tribunal order.
(2) However, this section does not affect any limit on the Magistrates
Court’s jurisdiction under the Magistrates Court Act 1930, part 4.2
(Civil jurisdiction).
25 Contravention
of court enforcement order
A person must not contravene an order of a court under section
23.
Maximum penalty: 50 penalty units.
A provision of a contract or agreement is void if it limits or modifies, or
purports to limit or modify, the operation of this Act (including this section),
or an order under this Act, in relation to a work contract.
(1) The Minister may, in writing, approve forms for this Act.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for that purpose.
Note For other provisions about forms, see the Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making
of determinations and regulations relating to fees (see pt 6.3).
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
29 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note A regulation must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) A regulation may make provision in relation to the making, keeping or
transfer of records relating to work contracts.
(3) A regulation may create offences and prescribe maximum penalties of
not more than 10 penalty units for the offences.
Part
7 Transitional and consequential
provisions
30 Application
to work contracts
(1) This Act applies in relation to conditions under a work contract only
if the contract was made on or after the commencement of this Act.
(2) This section expires on 1 July 2008.
31 Legislation
amended—sch 1
This Act amends the Consumer and Trader Tribunal Act 2003 in
schedule 1.
Schedule
1 Consumer and Trader Tribunal Act
2003—consequential amendments
(see s 31)
[1.1] New
section 6 (a) (iii)
insert
(iii) exercise other functions given to the tribunal under other Acts;
and
substitute
(2) The tribunal has—
(a) a general division; and
(b) a fair work contracts division.
insert
10A Deputy president—fair work contracts
division
A person may be appointed under section 10 as the deputy president for the
fair work contracts division only if—
(a) the person—
(i) is a lawyer, and has been a lawyer for not less than 5 years;
or
(ii) has had experience at a high level in industry, commerce, government
or industrial relations; or
(iii) has, at least 5 years previously, obtained qualifications from a
university or other tertiary educational institution in the field of law,
economics, industrial relations or some other field of study considered by the
Executive to be substantially relevant to the functions of the deputy president;
and
(b) the Executive is satisfied the person is suitable for appointment
because of the person’s expertise and experience in the field of
industrial relations.
[1.4] Section
15 (b) and note
substitute
(b) for disciplinary action to be taken against a person under the Act;
or
(c) for the exercise of a function given to the tribunal under another
Act.
Note The following Acts provide for applications to be made to the
tribunal:
• Agents Act 2003
• Security Industry Act 2003
• Fair Work Contracts Act 2004.
in division 4.2, insert
25A Conduct of proceedings—tribunal
divisions
(1) A proceeding arising under the Fair Work Contracts Act 2004
must be conducted in the fair work contracts division of the
tribunal.
(2) Any other proceeding must be conducted in—
(a) the general division of the tribunal; or
(b) if directed by the president, a division created by regulation under
section 7 (Establishment of tribunal).
substitute
(b) for an application in relation to a disciplinary action—the
commissioner and the person to whom the application relates; or
(c) for a proceeding arising from an application to review a work contract
under the Fair Work Contracts Act 2004–—each party to the
contract.
substitute
29 Representation
(1) A person may be represented in a proceeding by a lawyer or someone
else.
(2) However, in a proceeding before the tribunal arising under the Fair
Work Contracts Act 2004, an interested person may be represented by a lawyer
only with leave of the tribunal.
(3) In this section:
interested person—see the Fair Work Contracts Act
2004, section 11 (3).
substitute
(2) The tribunal may take any other action it considers appropriate that
is consistent with this Act and the Act under which the application to which the
proceeding before the tribunal applies was made.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
(see s 5)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• chief executive (see s 163)
• consumer and trader tribunal
• contravene
• lawyer.
contract worker—see section 9.
industrial organisation means an organisation registered
under the Workplace Relations Act 1996 (Cwlth), schedule 1B (Registration
and Accountability of Organisations).
industry includes—
(a) any profession, trade, manufacture, business, project or occupation in
which people work; and
(b) a part of an industry or of a number of industries.
interested person, for part 3 (Review of work
contracts)—see section 11 (3).
order means an order by the tribunal under this
Act.
principal—see section 10.
remuneration includes non-financial remuneration.
termination, of a work contract, means the termination or
other ending of the contract.
tribunal means the consumer and trader tribunal.
unfair includes harsh and unconscionable.
WCI means the Wage Cost Index (Canberra) issued by the
Australian Statistician.
Note In June 2004, this was series 6345.0.
WCI indexed, for an amount, means the amount as adjusted in
line with any adjustment in the WCI since the commencement of the provision in
which the amount appears.
work contract—see section 8.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2004.
2 Notification
Notified under the Legislation Act on 2004.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2004
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