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Workplace Relations Legislation Amendment (Independent Contractors

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					2004-2005-2006

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES



Presented and read a first time




Workplace Relations Legislation
Amendment (Independent Contractors)
Bill 2006
No.           , 2006
(Employment and Workplace Relations)




A Bill for an Act to amend the Workplace Relations
Act 1996, and for related purposes
Contents
                  1        Short title ........................................................................................... 1
                  2        Commencement ................................................................................. 1
                  3        Schedule(s) ........................................................................................ 2

Schedule 1—Sham arrangements                                                                                                      3

     Part 1—General provisions                                                                                                    3
           Workplace Relations Act 1996                                                                                           3

     Part 2—Provision relating to Victoria                                                                                        7
           Workplace Relations Act 1996                                                                                           7

Schedule 2—Consequential amendments and transitional
           provisions                                                                                                             8

     Part 1—Consequential amendments and transitional provisions
            relating to TCF outworkers                                                                                            8
           Workplace Relations Act 1996                                                                                           8

     Part 2—Consequential amendments relating to unfair contracts                                                               10
           Building and Construction Industry Improvement Act 2005                                                              10
           Workplace Relations Act 1996                                                                                         10




i    Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006                                        No.
, 2006
 1   A Bill for an Act to amend the Workplace Relations
 2   Act 1996, and for related purposes
 3   The Parliament of Australia enacts:
 4   1 Short title
 5                This Act may be cited as the Workplace Relations Legislation
 6                Amendment (Independent Contractors) Act 2006.

 7   2 Commencement
 8           (1) Each provision of this Act specified in column 1 of the table
 9               commences, or is taken to have commenced, in accordance with
10               column 2 of the table. Any other statement in column 2 has effect
11               according to its terms.
12




       Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006     No.    ,
                                                                                       2006    1
      Commencement information
      Column 1               Column 2                                            Column 3
      Provision(s)           Commencement                                        Date/Details
      1. Sections 1 to 3     The day on which this Act receives the
      and anything in        Royal Assent.
      this Act not
      elsewhere covered
      by this table
      2. Schedule 1          Immediately after the commencement of the
                             provision(s) covered by table item 3.
      3. Schedule 2          At the same time as Part 2 of the
                             Independent Contractors Act 2006
                             commences.
 1                   Note:     This table relates only to the provisions of this Act as originally
 2                             passed by the Parliament and assented to. It will not be expanded to
 3                             deal with provisions inserted in this Act after assent.

 4            (2) Column 3 of the table contains additional information that is not
 5                part of this Act. Information in this column may be added to or
 6                edited in any published version of this Act.

 7   3 Schedule(s)
 8                   Each Act that is specified in a Schedule to this Act is amended or
 9                   repealed as set out in the applicable items in the Schedule
10                   concerned, and any other item in a Schedule to this Act has effect
11                   according to its terms.




     2       Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006
     No.   , 2006
                                                             Sham arrangements Schedule 1
                                                                 General provisions Part 1


 1

 2   Schedule 1—Sham arrangements
 3   Part 1—General provisions

 4   Workplace Relations Act 1996
 5   1 After Part 21
 6          Insert:

 7   Part 22—Sham arrangements
 8


 9   900 Misrepresenting an employment relationship as an independent
10            contracting arrangement
11           (1) A person contravenes this subsection if:
12                (a) the person is a party to a contract with an individual; and
13                (b) the person makes a representation to the individual that the
14                    contract is a contract for services under which the individual
15                    performs work, or is to perform work, for the person as an
16                    independent contractor; and
17                (c) the contract, as in force at the time of the representation, is a
18                    contract of employment under which the person is the
19                    employer of the individual, rather than a contract for services
20                    under which the individual performs work as an independent
21                    contractor.
22                Note:      In this subsection, employer and employment have the meanings
23                           given by subsections 6(1) and 7(1) respectively.

24           (2) A person does not contravene subsection (1) if the person proves
25               that, at the time the person made the representation concerned, the
26               person:
27                 (a) believed that the contract was a contract for services rather
28                      than a contract of employment; and
29                 (b) could not reasonably have been expected to know that the
30                      contract was a contract of employment rather than a contract
31                      for services.
32                Note:      In this subsection, employment has its ordinary meaning—see
33                           paragraph 4(2)(pa) of Schedule 2.



       Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006    No.    ,
                                                                                   2006       3
     Schedule 1 Sham arrangements
     Part 1 General provisions



 1            (3) Subsection (1) is a civil remedy provision.
 2                Note:       Division 3 of Part 14 contains other provisions relevant to civil
 3                            remedies.


 4   901 Misrepresenting a proposed employment relationship as a
 5            proposed independent contract arrangement
 6            (1) A person contravenes this subsection if:
 7                 (a) the person offers to enter into a contract with an individual;
 8                     and
 9                 (b) the person makes a representation to the individual that the
10                     contract, if entered into, would be a contract for services
11                     under which the individual would perform work for the
12                     person as an independent contractor; and
13                 (c) the contract, if entered into, would be a contract of
14                     employment under which the person would be the employer
15                     of the individual, rather than a contract for services under
16                     which the individual would perform work as an independent
17                     contractor.
18                Note:       In this subsection, employer and employment have the meanings
19                            given by subsections 6(1) and 7(1) respectively.

20            (2) A person does not contravene subsection (1) if the person proves
21                that when the person made the representation concerned, the
22                person:
23                  (a) believed that if the contract had been entered into, it would
24                      have been a contract for services rather than a contract of
25                      employment; and
26                  (b) could not reasonably have been expected to know that if the
27                      contract had been entered into, it would have been a contract
28                      of employment rather than a contract for services.
29                Note:       In this subsection, employment has its ordinary meaning—see
30                            paragraph 4(2)(pb) of Schedule 2.

31            (3) Subsection (1) is a civil remedy provision.
32                Note:       Division 3 of Part 14 contains other provisions relevant to civil
33                            remedies.




     4       Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006
     No.   , 2006
                                                                Sham arrangements Schedule 1
                                                                    General provisions Part 1



 1   902 Dismissal etc. for purpose of engaging certain persons as
 2             independent contractors
 3           (1) An employer contravenes this subsection if:
 4                (a) the employer dismisses, or threatens to dismiss, an individual
 5                    who:
 6                      (i) is an employee of the employer; and
 7                     (ii) performs particular work for the employer; and
 8                (b) the employer’s sole or dominant purpose in dismissing or
 9                    threatening to dismiss the individual is to engage the
10                    individual as an independent contractor to perform the same
11                    work, or substantially the same work, under a contract for
12                    services.
13           (2) Subsection (1) is a civil remedy provision.
14                Note:      Division 3 of Part 14 contains other provisions relevant to civil
15                           remedies.

16           (3) It is presumed, in proceedings under Division 3 of Part 14 alleging
17               a contravention of subsection (1), that the employer’s sole or
18               dominant purpose was the purpose referred to in paragraph (1)(b),
19               unless the employer proves otherwise.

20   903 Prohibited conduct for purpose of engaging certain persons as
21             independent contractors
22           (1) A person who employs, or has at any time employed, an individual
23               to perform particular work contravenes this subsection if:
24                 (a) the person makes a statement that the person knows is false;
25                     and
26                 (b) the person’s intention in making the statement is to persuade
27                     or influence the individual to enter into a contract for services
28                     under which the individual will perform, as an independent
29                     contractor, the same work, or substantially the same work,
30                     for the person.
31           (2) Subsection (1) is a civil remedy provision.
32                Note:      Division 3 of Part 14 contains other provisions relevant to civil
33                           remedies.




       Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006    No.       ,
                                                                                   2006          5
     Schedule 1 Sham arrangements
     Part 1 General provisions



 1   904 Penalty for contravention
 2            (1) The Court may, on application by an eligible person, make an
 3                order imposing a pecuniary penalty on a person who has
 4                contravened subsection 900(1), 901(1), 902(1) or 903(1).
 5            (2) The maximum penalty that may be imposed under subsection (1)
 6                is:
 7                  (a) 60 penalty units for an individual; or
 8                  (b) 300 penalty units for a body corporate.
 9            (3) Each of the following is an eligible person for the purposes of this
10                section:
11                  (a) a workplace inspector;
12                  (b) an individual affected by the contravention;
13                  (c) an organisation of employees of which the individual
14                      affected by the contravention is (or has applied to become) a
15                      member, if it is acting with the written consent of the
16                      individual.

17   905 Meaning of Court
18                In this Part:
19                Court means the Federal Court of Australia or the Federal
20                Magistrates Court.

21   2 After paragraph 4(2)(p) of Schedule 2
22           Insert:
23                (pa) subsection 900(2);
24                (pb) subsection 901(2);




     6       Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006
     No.   , 2006
                                                            Sham arrangements Schedule 1
                                                        Provision relating to Victoria Part 2


 1


 2   Part 2—Provision relating to Victoria

 3   Workplace Relations Act 1996
 4   3 After Division 11 of Part 21
 5          Insert:

 6   Division 11A—Sham arrangements

 7   886A Additional effect of Act—sham arrangements
 8                Without affecting its operation apart from this section, section 902
 9                also has effect in relation to the dismissal, or threatened dismissal,
10                by an employer of an employee in Victoria, and for this purpose:
11                  (a) each reference in that section to an employer (within the
12                      meaning of that section) is to be read as a reference to an
13                      employer (within the meaning of this Division) in Victoria;
14                      and
15                  (b) each reference in that section to an employee (within the
16                      meaning of that section) is to be read as a reference to an
17                      employee (within the meaning of this Division) in Victoria.




       Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006    No.    ,
                                                                                   2006       7
     Schedule 2 Consequential amendments and transitional provisions
     Part 1 Consequential amendments and transitional provisions relating to TCF
     outworkers

 1

 2   Schedule 2—Consequential amendments and
 3         transitional provisions
 4   Part 1—Consequential amendments and transitional
 5          provisions relating to TCF outworkers

 6   Workplace Relations Act 1996
 7   1 Subparagraph 169(1)(a)(v)
 8           Omit “(other than section 905)”.

 9   2 Subsection 819(1)
10           Omit “or subparagraph 906(2)(b)(iv), paragraph 906(2)(c) or subsection
11           906(4)”, substitute “or subparagraph 22(2)(b)(iv), paragraph 22(2)(c) or
12           subsection 22(4) of the Independent Contractors Act 2006”.

13   3 Part 22
14           Repeal the Part.

15   4 Saving—regulations under section 913
16           Despite the repeal of subsection 913(1) of the Workplace Relations Act
17           1996 by item 3 of this Schedule, a regulation in force under that section
18           as in force immediately before the commencement of that item
19           continues in force after that commencement as if it had been made
20           under subsection 30(1) of the Independent Contractors Act 2006 as in
21           force after that commencement.

22   5 Saving—investigations and proceedings under the
23        Workplace Relations Act 1996 in progress at the reform
24        commencement
25   (1)     This item applies to an investigation or proceeding in relation to a
26           breach, or suspected breach, of subsection 905(1) of the Workplace
27           Relations Act 1996 as in force before the reform commencement that:
28                  (a) was commenced before the reform commencement under
29                      Part 22 of the Workplace Relations Act 1996; and
30                  (b) was not completed or finally determined, as the case requires,
31                      before the reform commencement.


     8       Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006
     No.   , 2006
                        Consequential amendments and transitional provisions Schedule 2
          Consequential amendments and transitional provisions relating to TCF outworkers
                                                                                   Part 1


1   (2)     Despite the repeal of Part 22 of the Workplace Relations Act 1996 by
2           item 3 of this Schedule, that Part continues to apply to the investigation
3           or proceeding mentioned in subitem (1) after the reform commencement
4           as if the Part had not been repealed.
5   (3)     In this item:
6           reform commencement means the commencement of Part 2 of the
7           Independent Contractors Act 2006.




      Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006    No.    ,
                                                                                  2006       9
     Schedule 2 Consequential amendments and transitional provisions
     Part 2 Consequential amendments relating to unfair contracts


 1


 2   Part 2—Consequential amendments relating to unfair
 3          contracts

 4   Building and Construction Industry Improvement Act 2005
 5   6 Section 47
 6             Repeal the section.

 7   Workplace Relations Act 1996
 8   7 Sections 832 to 834
 9             Repeal the sections.
10   Note:     Section 40 of the Independent Contractors Act 2006 is a transitional provision relating
11             to this item.




     10         Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006
     No.     , 2006

				
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