1Short title
This Act may be cited as the Independent Contractors Act 2006.
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Bill homepage (APH)This Act may be cited as the Independent Contractors Act 2006.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 11 December 2006 |
2. Sections 3 to 43 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 1 March 2007 (see F2007L00412) |
This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
The principal objects of this Act are:
to protect the freedom of independent contractors to enter into services contracts; and
to recognise independent contracting as a legitimate form of work arrangement that is primarily commercial; and
to prevent interference with the terms of genuine independent contracting arrangements.
The Act achieves these objects, principally, by providing for the rights, entitlements, obligations and liabilities of parties to services contracts to be governed by the terms of those contracts, subject to:
the rules of common law and equity as applying in relation to those contracts; and
the laws of the Commonwealth as applying in relation to those contracts; and
the laws of the States and Territories as applying in relation to those contracts, other (in general) than any such laws that confer or impose rights, entitlements, obligations or liabilities of a kind more commonly associated with employment relationships.
In this Act:
Commonwealth authority means:
a body corporate established for a public purpose by or under a law of the Commonwealth; or
a body corporate:
incorporated under a law of the Commonwealth or a State or Territory; and
in which the Commonwealth has a controlling interest.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
Court means the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2).
exclusion provisions means subsections 7(1) and 10(1).
Fair Work Inspector has the same meaning as in the Fair Work Act 2009.
independent contractor is not limited to a natural person.
organisation means an organisation that is registered or an association that is recognised under the Fair Work (Registered Organisations) Act 2009.
services contract has the meaning given by section 5.
General meaning
A services contract is a contract for services:
to which an independent contractor is a party; and
that relates to the performance of work by the independent contractor; and
that has the requisite constitutional connection specified in subsection (2).
Conditions or collateral arrangements relating to a services contract may be taken to be part of the services contract: see subsection (4).
The requisite constitutional connection
A contract for services has the requisite constitutional connection if:
at least one party to the contract is:
a constitutional corporation; or
the Commonwealth or a Commonwealth authority; or
a body corporate incorporated in a Territory in Australia; or
one or more of the following subparagraphs is satisfied:
the work concerned is wholly or principally to be performed in a Territory in Australia;
the contract was entered into in a Territory in Australia;
at least one party to the contract is a natural person who is resident in, or a body corporate that has its principal place of business in, a Territory in Australia.
Without limiting its effect apart from this subsection, subparagraph (2)(a)(i) also has the effect it would have if the reference to a constitutional corporation were, by express provision, confined to a constitutional corporation that has entered into the contract for the purposes of the business of the corporation.
Conditions and collateral arrangements
A condition or collateral arrangement that relates to a services contract is taken to be part of that services contract if, were the condition or arrangement itself a contract for services, it would have the requisite constitutional connection.
The Minister may, by legislative instrument, make rules prescribing modifications of this Act or the regulations for their application in relation to Norfolk Island.
To avoid doubt, the rules may not do the following:
create an offence or civil penalty;
provide powers of:
arrest or detention; or
entry, search or seizure;
impose a tax;
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
directly amend the text of this Act or the regulations.
If the rules prescribe modifications of this Act or the regulations for their application in relation to Norfolk Island, then this Act or the regulations have effect as so modified in relation to Norfolk Island.
This Act and the regulations would, in the absence of any such rules, apply in relation to Norfolk Island in the same way as they apply in relation to the rest of Australia.
In this Part:
officer, of a body corporate, has the same meaning as in the Corporations Act 2001.
party, in relation to a services contract to which a body corporate is a party, includes a person who is an officer of the body corporate.
State or Territory industrial law has the same meaning as in the Fair Work Act 2009.
Subject to subsection (2), the rights, entitlements, obligations and liabilities of a party to a services contract are not affected by a law of a State or Territory to the extent that the law would otherwise do one or more of the following:
take or deem a party to a services contract to be an employer or employee, or otherwise treat a party to a services contract as if the party were an employer or employee, for the purposes of a law that relates to one or more workplace relations matters (or provide a means for a party to the contract to be so taken, deemed or treated);
confer or impose rights, entitlements, obligations or liabilities on a party to a services contract in relation to matters that, in an employment relationship, would be workplace relations matters (or provide a means for rights, entitlements, obligations or liabilities in relation to such matters to be conferred or imposed on a party to a services contract);
without limiting paragraphs (a) and (b)—expressly provide for a court, commission or tribunal to do any of the following in relation to a services contract on an unfairness ground:
make an order or determination (however described) setting aside, or declaring to be void or otherwise unenforceable, all or part of the contract;
make an order or determination (however described) amending or varying all or part of the contract.
For the meaning of workplace relations matter, see section 8.
For the meaning of unfairness ground, see section 9.
Division 1 of Part 5 provides for a transitional period during which the State and Territory laws (other than laws that provide as mentioned in paragraph (1)(c)) may continue to apply despite this subsection.
Subsection (1) does not apply in relation to:
a law of a State or Territory, to the extent that the law deals with matters relating to outworkers (including entry of a representative of a trade union to premises for a purpose connected with outworkers), other than matters mentioned in paragraph (1)(c); or
any of the following laws:
Chapter 6 of the Industrial Relations Act 1996 of New South Wales (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of, a provision of Chapter 6);
the Owner Drivers and Forestry Contractors Act 2005 of Victoria; or
a law of a State or Territory that is specified in regulations made for the purposes of this paragraph, to the extent that the law is so specified.
Subject to subsection (2), workplace relations matter means any of the following matters:
remuneration, allowances or other amounts payable to employees;
leave entitlements of employees;
hours of work of employees;
enforcing or terminating contracts of employment;
making, enforcing or terminating agreements (not being contracts of employment) determining terms and conditions of employment;
disputes between employees and employers, or the resolution of such disputes;
industrial action by employees or employers;
any other matter that is substantially the same as a matter that relates to employees or employers and that is dealt with by or under:
the Fair Work Act 2009; or
the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or
a State or Territory industrial law;
unless the matter is specified in regulations made for the purposes of this paragraph;
any other matter specified in regulations made for the purposes of this paragraph.
None of the following is a workplace relations matter:
prevention of discrimination or promotion of EEO, but only if the State or Territory law concerned is neither a State or Territory industrial law nor contained in such a law;
superannuation;
workers compensation;
occupational health and safety (including entry of a representative of a trade union for a purpose connected with occupational health and safety);
child labour;
the observance of a public holiday, except the rate of payment of an employee for the public holiday;
deductions from wages or salaries;
industrial action affecting essential services;
attendance for service on a jury;
professional or trade regulation;
consumer protection;
taxation;
any other matter specified in regulations made for the purposes of this paragraph.
Subject to subsection (2), each of the following grounds is an unfairness ground in relation to a services contract:
the contract is unfair;
the contract is harsh or unconscionable;
the contract is unjust;
the contract is against the public interest;
the contract is designed to, or does, avoid the provisions of:
the Fair Work Act 2009; or
the Workplace Relations Act 1996, as in force at any time before the WR Act repeal day, or as that Act applies after that day because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or
a State or Territory industrial law; or
an award, agreement or other instrument made under a law referred to in subparagraph (i), (ia) or (ii);
the contract provides for remuneration at a rate that is, or is likely to be, less than the rate of remuneration for an employee performing similar work;
any other ground that is substantially the same as a ground specified in any of paragraphs (a) to (f);
any other ground specified in regulations made for the purposes of this paragraph.
A ground specified in subsection (1) is not an unfairness ground in relation to a services contract to the extent that the ground relates to matters that, because of subsection 8(2), are not workplace relations matters.
In this section:
WR Act repeal day has the meaning given by Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
The rights, entitlements, obligations and liabilities of a party to a services contract are not affected by a law of a State or Territory that is specified in regulations made for the purposes of this subsection, to the extent that the law is so specified.
To avoid doubt, subsection (1) has effect even if a law specified in regulations made under that subsection:
is a law referred to in paragraph 7(2)(a) or (b); or
deals with matters that, because of subsection 8(2), are not workplace relations matters.
This Part applies to a services contract, other than:
a services contract to the extent that the contract relates to the performance of work by the independent contractor for the private and domestic purposes of another party to the contract; or
without limiting paragraph (a), a services contract to which an independent contractor that is a body corporate is a party, unless the work to which the contract relates is wholly or mainly performed by:
a director of the body corporate; or
a member of the family of a director of the body corporate.
In this section:
director has the same meaning as in the Corporations Act 2001.
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