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The main purposes of this Act are—
to improve the protection of outworkers in the clothing industry;
to establish an Ethical Clothing Trades Council of Victoria.
Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
If a provision of this Act does not come into operation before 1 January 2004, it comes into operation on that day.
In this Act—
S. 3 def. of Australian Fair Pay and Conditions Standard inserted by No. 40/2007 s. 3, substituted by No. 24/2009 s. 19(1)(a).
Australian Fair Pay and Conditions Standard means the Australian Fair Pay and Conditions Standard that continues in existence under the Fair Work Transition Act;
S. 3 def. of clothing industry inserted by No. 9/2005 s. 4(1)(a).
clothing industry means the industry including wholly or partly designing, preparing, manufacturing, processing or finishing, or wholly or partly controlling, managing or supervising the designing, preparing, manufacturing, processing or finishing, of any type of garment, apparel or articles (such as aprons, all descriptions of whitework, including napery, sheets, pillow slips, pillow shams, diapers, handkerchiefs, towels, chenille bedspreads, mosquito nets, chenille bath mats, and when made into clothing or whitework establishment cot covers, blankets or bedspreads, scarves, collars, cuffs, neckware, muffs, rugs and mats such as are made in the establishment of a furrier from furred, haired or woollen skins, hats, caps, bonnets, berets or any other kind of headwear, umbrellas or parasols or the like), whether inside or outside of a factory or workroom;
clothing work means packing, processing or working on articles or material in the clothing industry;
Code of Practice Committee means the committee described in clause 5 of Part 2 of the Homeworkers Code;
S. 3 def. of common rule order repealed by No. 24/2009 s. 19(1)(b).
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S. 3 def. of Common-wealth Act repealed by No. 24/2009 s. 19(1)(c).
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S. 3 def. of Common-wealth Fair Work Act inserted by No. 24/2009 s. 19(2).
Commonwealth Fair Work Act means the Fair Work Act 2009 of the Commonwealth;
Council means Ethical Clothing Trades Council of Victoria established by section 15;
S. 3 def. of Department amended by No. 43/2012 s. 3(Sch. item 37).
Department means Department of Business and Innovation;
employer—
includes—
a person who is usually an employer; and
an unincorporated club;
in Division 2 of Part 2, does not include a person whose sole business in connection with the clothing industry is the sale of clothing by retail;
Note
Section 4(1)(b) provides that a person who engages an outworker is an employer.
S. 3 def. of Fair Work Transition Act inserted by No. 24/2009 s. 19(2).
Fair Work Transition Act means the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;
S. 3 def. of federal award substituted by No. 24/2009 s. 19(1)(d).
federal award means—
an award that is a transitional instrument that continues in existence under the Fair Work Transition Act;
a transitional award or common rule that continues in existence under the Fair Work Transition Act;
any other award-based transitional instrument under the Fair Work Transition Act;
any award that is taken to be a modern award under the Fair Work Transition Act;
any other modern award, within the meaning of the Commonwealth Fair Work Act;
Homeworkers Code means the agreement, known as the Homeworkers Code of Practice, containing two parts and Part 2 of which was signed on behalf of the Textile Clothing and Footwear Union of Australia, the Council of the Textile and Fashion Industries Ltd, the Australian Chamber of Manufactures and the Australian Business Chamber and various individual companies in 1997;
information services officer means a person appointed under section 31;
S. 3 def. of interested organisation amended by No. 24/2009 s. 19(1)(e).
interested organisation means an organisation (other than within the meaning in this Act) that is representative of a significant number of employers in an industry or a range of industries;
lawful entitlements of an outworker means the entitlements conferred on the outworker by law, including any entitlements conferred by or under relevant industrial legislation or any other legislation;
mandatory code means the code of practice (if any) in force under Division 2 of Part 3;
member of the Council includes the chairperson;
S. 3 def. of National Employment Standards inserted by No. 24/2009 s. 19(2).
National Employment Standards has the same meaning as in the Commonwealth Fair Work Act;
S. 3 def. of organisation inserted by No. 24/2009 s. 19(2).
organisation has the same meaning as in the Commonwealth Fair Work Act;
outwork means clothing work contracted to be performed outside the contractor's factory or workshop;
S. 3 def. of outwork document amended by No. 24/2009 s. 19(1)(f).
outwork document means a document relating to the contracting out of clothing work and includes a document that is required to be kept by an employer or contractor by or under relevant industrial legislation;
S. 3 def. of outworker amended by No. 9/2005 s. 4(1)(b).
outworker means a person engaged, in or about a private residence or other premises that are not necessarily business or commercial premises, to perform clothing work;
S. 3 def. of payment of wages provisions inserted by No. 24/2009 s. 19(2).
payment of wages provisions means Division 2 of Part 2-9 of the Commonwealth Fair Work Act;
peak body means a body that is representative of a significant number of organisations representing employers, employees or outworkers in an industry or a range of industries;
S. 3 def. of police officer inserted by No. 37/2014 s. 10(Sch. item 120.1).
police officer has the same meaning as in the Victoria Police Act 2013;
S. 3 def. of registered organisation repealed by No. 24/2009 s. 19(1)(g).
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S. 3 def. of relevant industrial legislation amended by No. 12/2018 s. 60(1).
relevant industrial legislation means—
this Act;
the Long Service Leave Act 2018;
the Public Holidays Act 1993;
regulations and other subordinate instruments made under an Act specified in paragraph (a), (b) or (c);
Secretary means Secretary to the Department;
subordinate instrument has the meaning given by section 3 of the Interpretation of Legislation Act 1984.
For the purposes of the laws specified in subsection (2)—
an outworker is an employee;
a person who engages an outworker is an employer;
the contract between an outworker and a person who engages him or her is a contract of employment;
the conditions on or under which an outworker performs work are conditions of employment;
the relationship between an outworker and a person who engages him or her is an employment relationship.
The laws referred to in subsection (1) are—
this Act;
S. 4(2)(b) repealed by No. 24/2009 s. 20(1).
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S. 4(2)(c) substituted by No. 12/2018 s. 60(2).
the Long Service Leave Act 2018;
S. 4(2)(d) amended by No. 107/2004 s. 182.
the Occupational Health and Safety Act 2004;
the Public Holidays Act 1993;
S. 4(2)(ea) inserted by No. 71/2007 s. 27(1), repealed by No. 24/2009 s. 20(2).
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S. 4(2)(f) amended by Nos 71/2007 s. 27(2), 24/2009 s. 20(3).
regulations and other subordinate instruments made under an Act specified in paragraph (a), (c), (d) or (e).
S. 5 amended by No. 9/2005 s. 4(2) (ILA s. 39B(1)).
In this Division—
remuneration includes—
any remuneration or other amount, including commission, payable in relation to work done by an outworker;
amounts payable to an outworker in respect of annual leave or long service leave;
an amount for which an outworker is entitled to be reimbursed or compensated for an expense incurred or loss sustained by the outworker;
unpaid remuneration claim means a claim for unpaid remuneration under section 6.
S. 5(2) inserted by No. 9/2005 s. 4(2).
For the avoidance of doubt, a reference in this Division to remuneration includes a reference to any amount to which an outworker is entitled in accordance with section 14A(1).
An outworker may make a claim under this section for any unpaid remuneration against the person the outworker believes is his or her employer (the apparent employer) if the employer has not paid the outworker all or any of the remuneration for work done by the outworker for the employer (the unpaid remuneration).
The claim must be made within 6 months after the work is completed.
The claim is to be made by serving a written notice on the apparent employer that—
claims payment of the unpaid remuneration; and
sets out the following particulars—
the name of the outworker;
the address at which the outworker may be contacted;
a description of the work done;
the date on which the work was done;
the amount of unpaid remuneration claimed in respect of the work.
The particulars set out in the unpaid remuneration claim must be verified by statutory declaration.
This section applies only in respect of remuneration for work carried out after the commencement of this section.
Except as provided by subsection (4), an apparent employer served with an unpaid remuneration claim under section 6 is liable (subject to any proceedings as referred to in section 9) for the amount of unpaid remuneration claimed.
An apparent employer may, within 14 days after being served with an unpaid remuneration claim, refer the claim in accordance with this section to another person the apparent employer knows or has reasonable grounds to believe is the person for whom the work was done (the actual employer).
An apparent employer refers an unpaid remuneration claim in accordance with this section by—
advising the outworker concerned in writing of the name and address of the actual employer; and
serving a copy of the claim (a referred claim) on the actual employer.
The apparent employer is not liable for the whole or any part of an amount of unpaid remuneration claimed for which the actual employer served with a referred claim accepts liability in accordance with section 8.
S. 7(5) inserted by No. 9/2005 s. 5.
An apparent employer cannot refer an unpaid remuneration claim under this section to a person that is a business or body corporate owned or managed by the outworker who made the claim.
An actual employer served with a referred claim under section 7 may, within 14 days after the service, accept liability for the whole or any part of the amount of unpaid remuneration claimed by paying it to the outworker concerned.
An actual employer who accepts liability must serve notice in writing on the apparent employer of that acceptance and of the amount paid.
If the apparent employer has paid to the outworker concerned any part of the amount of unpaid remuneration claimed for which the actual employer served with the referred claim has not accepted liability, the apparent employer may deduct or set-off the amount the apparent employer has paid to the outworker 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).
Sections 60 and 61 apply to recovery of an amount payable to an outworker from an apparent employer who fails to make a payment in respect of an amount of unpaid remuneration for which the employer is liable under section 7.
In proceedings referred to in subsection (1), an order for the apparent employer to pay the amount concerned must be made unless the apparent employer proves that the work was not done or that the amount claimed for the work in the unpaid remuneration claim is not the correct amount in respect of the work.
A person must not—
make any statement that the person knows is false or misleading in a material particular in any referred claim under section 7 or any notice served for the purposes of section 8; or
serve a referred claim on a person under section 7 that the person does not know, or have reasonable grounds to believe, is an actual employer.
- 120 penalty units.
S. 11(1) amended by No. 24/2009 s. 21.
Sections 5 to 10 do not limit or exclude any other rights of recovery of remuneration of an outworker, or any liability of any person with respect to the remuneration of an outworker, whether or not arising under this Act or any other law.
Note
An outworker may, for example, seek an order from the Magistrates' Court under section 60 instead of making an unpaid remuneration claim under section 6.
Nothing in section 8(3) limits or excludes any right of recovery arising under any other law with respect to any amount of money owed by the apparent employer to the actual employer.