An Act relating to independent contractors, and for related
purposes
Part 1—Preliminary
1
Short title [see Note 1]
This Act may be cited as the Independent
Contractors Act 2006.
2
Commencement
(1) 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.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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11 December 2006
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2. Sections 3 to 43
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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.
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1 March 2007
(see F2007L00412)
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Note: 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.
(2) 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.
3
Objects of this Act
(1) The principal objects of this Act are:
(a) to protect the freedom of
independent contractors to enter into services contracts; and
(b) to recognise independent
contracting as a legitimate form of work arrangement that is primarily
commercial; and
(c) to prevent interference with the
terms of genuine independent contracting arrangements.
(2) 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:
(a) the rules of common law and equity
as applying in relation to those contracts; and
(b) the laws of the Commonwealth as
applying in relation to those contracts; and
(c) 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.
4
Definitions
In this Act:
Commonwealth authority means:
(a) a body corporate established for a
public purpose by or under a law of the Commonwealth; or
(b) a body corporate:
(i) incorporated under a
law of the Commonwealth or a State or Territory; and
(ii) 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 Magistrates Court.
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.
penalty unit has the meaning given by section 4AA
of the Crimes Act 1914.
services contract has the meaning given by section 5.
5
Services contract
General meaning
(1) A services contract is a
contract for services:
(a) to which an independent contractor
is a party; and
(b) that relates to the performance of
work by the independent contractor; and
(c) that has the requisite
constitutional connection specified in subsection (2).
Note: 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
(2) A contract for services has the requisite
constitutional connection if:
(a) at least one party to the contract
is:
(i) a constitutional
corporation; or
(ii) the Commonwealth or a
Commonwealth authority; or
(iii) a body corporate
incorporated in a Territory in Australia; or
(b) one or more of the following
subparagraphs is satisfied:
(i) the work concerned is
wholly or principally to be performed in a Territory in Australia;
(ii) the contract was
entered into in a Territory in Australia;
(iii) 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.
(3) 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
(4) 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.
Part 2—Exclusion of certain State and Territory laws
6
Definitions
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.
7
Exclusion of certain State and Territory laws
(1) 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:
(a) 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);
(b) 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);
(c) 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:
(i) make an order or
determination (however described) setting aside, or declaring to be void or
otherwise unenforceable, all or part of the contract;
(ii) make an order or
determination (however described) amending or varying all or part of the
contract.
Note 1: For the meaning of workplace relations
matter, see section 8.
Note 2: For the meaning of unfairness ground,
see section 9.
Note 3: 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.
(2) Subsection (1) does not apply in
relation to:
(a) 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
(b) any of the following laws:
(i) 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);
(ii) the Owner Drivers
and Forestry Contractors Act 2005 of Victoria; or
(c) 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.
8 What
are workplace relations matters
(1) Subject to subsection (2), workplace
relations matter means any of the following matters:
(a) remuneration, allowances or other
amounts payable to employees;
(b) leave entitlements of employees;
(c) hours of work of employees;
(d) enforcing or terminating contracts
of employment;
(e) making, enforcing or terminating
agreements (not being contracts of employment) determining terms and conditions
of employment;
(f) disputes between employees and
employers, or the resolution of such disputes;
(g) industrial action by employees or
employers;
(h) 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:
(i) the Fair Work Act
2009; or
(ia) the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009; or
(ii) a State or Territory
industrial law;
unless the matter is specified
in regulations made for the purposes of this paragraph;
(i) any other matter specified in
regulations made for the purposes of this paragraph.
(2) None of the following is a workplace
relations matter:
(a) 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;
(b) superannuation;
(c) workers compensation;
(d) occupational health and safety
(including entry of a representative of a trade union for a purpose connected
with occupational health and safety);
(e) child labour;
(f) the observance of a public
holiday, except the rate of payment of an employee for the public holiday;
(g) deductions from wages or salaries;
(h) industrial action affecting
essential services;
(i) attendance for service on a jury;
(j) professional or trade regulation;
(k) consumer protection;
(l) taxation;
(m) any other matter specified in regulations
made for the purposes of this paragraph.
9 What
is an unfairness ground
(1) Subject to subsection (2), each of
the following grounds is an unfairness ground in relation to a
services contract:
(a) the contract is unfair;
(b) the contract is harsh or
unconscionable;
(c) the contract is unjust;
(d) the contract is against the public
interest;
(e) the contract is designed to, or
does, avoid the provisions of:
(i) the Fair Work Act
2009; or
(ia) 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
(ii) a State or Territory
industrial law; or
(iii) an award, agreement or
other instrument made under a law referred to in subparagraph (i), (ia) or
(ii);
(f) 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;
(g) any other ground that is
substantially the same as a ground specified in any of paragraphs (a) to
(f);
(h) any other ground specified in
regulations made for the purposes of this paragraph.
(2) 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.
(3) 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.
10
Regulations may specify laws that are intended to be excluded
(1) 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.
(2) To avoid doubt, subsection (1) has
effect even if a law specified in regulations made under that subsection:
(a) is a law referred to in paragraph
7(2)(a) or (b); or
(b) deals with matters that, because
of subsection 8(2), are not workplace relations matters.
Part 3—Unfair contracts
11
Application of Part
(1) This Part applies to a services contract,
other than:
(a) 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
(b) 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:
(i) a director of the body
corporate; or
(ii) a member of the family
of a director of the body corporate.
(2) In this section:
director has the same meaning as in the Corporations
Act 2001.
12
Court may review services contract
(1) An application may be made to the Court
to review a services contract on either or both of the following grounds:
(a) the contract is unfair;
(b) the contract is harsh.
Note: A proceeding pending in the Federal
Magistrates Court may be transferred to the Federal Court of Australia: see
Part 5 of the Federal Magistrates Act 1999.
(2) An application under subsection (1)
may be made only by a party to the services contract.
(3) In reviewing a services contract, the
Court must only have regard to:
(a) the terms of the contract when it
was made; and
(b) to the extent that this Part
allows the Court to consider other matters—other matters as existing at the
time when the contract was made.
(4) For the purposes of this Part, services
contract includes a contract to vary a services contract.
Note: The effect of subsection (4) is that a
contract to vary a services contract can be reviewed under this Part, as the
contract to vary will itself be a services contract.
13
Limitation on applications for review of services contracts—prescribed
circumstances
An application to review a services
contract must not be made under subsection 12(1) in the circumstances
prescribed by the regulations.
14
Limitation on applications for review of services contracts—other proceedings in
progress
(1) An application to review a services
contract must not be made under subsection 12(1) if other review proceedings
have been commenced in relation to the services contract, unless the other
review proceedings:
(a) have been discontinued by the
person who commenced them; or
(b) have failed for want of
jurisdiction.
(2) A person must not commence other review
proceedings in relation to a services contract if an application to review the
contract has been made under subsection 12(1), unless:
(a) the application has been
discontinued by the person who made it; or
(b) the proceedings in relation to the
application have failed for want of jurisdiction.
(3) In this section:
other review proceedings means proceedings in
relation to a services contract:
(a) under a provision of a law of a
State or Territory that makes provision as mentioned in paragraph 7(1)(c) and
is not affected by the exclusion provisions; or
(b) under a provision of a law of the
Commonwealth, or of a State or Territory, that is specified in regulations made
for the purposes of this paragraph.
Note: Paragraph 7(1)(c) relates to laws that provide
for contracts to be void etc. on an unfairness ground.
15
Powers of Court
(1) In reviewing a services contract in
relation to which an application has been made under subsection 12(1), the
Court may have regard to:
(a) the relative strengths of the
bargaining positions of the parties to the contract and, if applicable, any
persons acting on behalf of the parties; and
(b) whether any undue influence or
pressure was exerted on, or any unfair tactics were used against, a party to
the contract; and
(c) whether the contract provides
total remuneration that is, or is likely to be, less than that of an employee
performing similar work; and
(d) any other matter that the Court
thinks is relevant.
(3) If the Court forms the opinion that a
ground referred to in subsection 12(1) is established in relation to the whole
or a part of the services contract, the Court must record its opinion, stating
whether the opinion relates to the whole or a specified part of the contract.
(4) The Court may form the opinion that a
ground referred to in subsection 12(1) is established in relation to the whole
or a part of the services contract even if the ground was not canvassed in the
application.
Note: An alternative dispute resolution process (for
example, mediation) may be used to deal with some or all of the matters in
dispute in a proceeding under this Part: see Part 4 of the Federal
Magistrates Act 1999 and section 53A of the Federal Court of
Australia Act 1976.
16
Orders that Court may make
(1) If the Court records an opinion under
section 15 in relation to a services contract, the Court may make one or
more of the following orders in relation to the opinion:
(a) an order setting aside the whole
or a part of the contract;
(b) an order varying the contract.
(2) An order may only be made for the purpose
of placing the parties to the services contract as nearly as practicable on
such a footing that the ground on which the opinion is based no longer applies.
(3) If an application under this Part is
pending, the Court may make an interim order if it considers it is desirable to
do so to preserve the position of a party to the services contract.
(4) An order takes effect on the date of the
order or a later date specified in the order.
(5) A party to the services contract may
apply to the Court to enforce an order by injunction or otherwise as the Court
considers appropriate.
(6) Subject to section 14, this section
does not limit any other rights of a party to the services contract.
Note 1: The rights of a party to a services contract
may be affected by the exclusion provisions.
Note 2: An appeal may be brought to the Federal Court
of Australia from a judgment of the Federal Magistrates Court: see section 24
of the Federal Court of Australia Act 1976.
17
Costs only where proceeding instituted vexatiously
(1) A party (the first party)
to a proceeding (including an appeal) in a matter arising under this Part must
not be ordered to pay costs incurred by any other party to the proceeding
unless the first party instituted the proceeding vexatiously or without
reasonable cause.
(2) Despite subsection (1), if a court
hearing a proceeding (including an appeal) in a matter arising under this Part
is satisfied that a party (the first party) to the proceeding
has, by unreasonable act or omission, caused another party to the proceeding to
incur costs in connection with the proceeding, the court may order the first
party to pay some or all of those costs.
(3) In this section:
costs includes all legal and professional
costs and disbursements, and expenses of witnesses.
Part 5—Transitional provisions
Division 1—State and Territory laws other than unfair contracts laws
31
Definitions
In this Division:
continuation contract, in relation to a
services contract, has the meaning given by section 32.
contract period means the period in relation
to which a contract has effect.
covers: a reform opt‑in agreement covers
a services contract as described in subsection 33(3).
date of effect, in relation to a reform opt‑in
agreement, has the meaning given by subsection 33(2).
pre‑reform commencement contract means
a services contract that was entered into before the reform commencement.
reform commencement means the commencement of
Part 2.
reform opt‑in agreement has the meaning
given by subsection 33(1).
related continuation contract has the meaning
given by subsection 32(3).
State or Territory contractor laws means the
laws of the States and Territories, as in force from time to time after the
reform commencement, to the extent that they would, apart from this Division,
be affected by the exclusion provisions, but not including laws to the extent that
they make provision as mentioned in paragraph 7(1)(c).
Note: Paragraph 7(1)(c) relates to laws that provide
for services contracts to be void etc. on an unfairness ground. Transitional
provisions relating to the effect of Part 2 on such laws are contained in
Division 2 of this Part.
32
Continuation contracts and related continuation contracts
Continuation contracts
(1) A services contract (the later
contract) is a continuation contract in relation to a pre‑reform
commencement contract if:
(a) the parties to the later contract
are the same as the parties to the pre‑reform commencement contract; and
(b) one or more of the following
subparagraphs is satisfied in relation to the later contract:
(i) the later contract is
entered into pursuant to an option or similar right contained in the pre‑reform
commencement contract, or contained in another contract that is a continuation
contract in relation to the pre‑reform commencement contract;
(ii) the contract period of
the later contract immediately follows the contract period of the pre‑reform
commencement contract;
(iii) the contract period of
the later contract immediately follows the contract period of another contract
that is a continuation contract in relation to the pre‑reform
commencement contract; and
(c) the later contract relates to the
performance of the same kind of work as the pre‑reform commencement
contract.
Note 1: See also subsection 35(7), under which a contract
may be taken to be a continuation contract.
Note 2: For how this section applies in a transfer of
business situation, see section 36.
(2) For the purposes of subparagraphs (1)(b)(ii)
and (iii), the contract period of a services contract is taken to immediately
follow the contract period of another services contract even if those periods
are interrupted by an interval, but only if that interval:
(a) is consistent with a regular
pattern of contracting between the parties to the contracts; or
(b) is covered by regulations made for
the purposes of this paragraph.
Related continuation contracts
(3) A services contract is a related
continuation contract in relation to another services contract if:
(a) the following subparagraphs are
satisfied:
(i) the other services
contract is a pre‑reform commencement contract;
(ii) the first‑mentioned
services contract is a continuation contract in relation to the other contract;
or
(b) the 2 services contracts are
continuation contracts in relation to the same pre‑reform commencement
contract.
33
Reform opt‑in agreement
(1) A reform opt‑in agreement is
an agreement in writing, signed by the parties to the agreement, to one or more
of the following effects:
(a) that the parties no longer want
the State or Territory contractor laws to apply to a specified services
contract, or to any related continuation contracts in relation to the specified
contract, that the parties have entered into or may enter into;
(b) that the parties no longer want
the State or Territory contractor laws to apply to any services contracts of a
specified class, or to any related continuation contracts in relation to any
contracts in the specified class, that the parties have entered into or may
enter into;
(c) that the parties no longer want the
State or Territory contractor laws to apply to any services contracts that they
have entered into or may enter into.
Note: The agreement must relate to the whole body of
the State or Territory contractor laws (rather than just to some of those
laws).
(2) A reform opt‑in agreement’s date
of effect is:
(a) the date on which the agreement is
entered into; or
(b) if a later date is specified in
the agreement as its date of effect—that later date.
(3) A reform opt‑in agreement covers
a services contract if the agreement is to the effect that the parties to the
agreement no longer want the State or Territory contractor laws to apply to the
contract (whether the parties’ intent is expressed as mentioned in paragraph (1)(a),
(b) or (c)).
(4) A purported revocation or variation of a
reform opt‑in agreement is of no effect for the purposes of this
Division.
34
Prohibited conduct in relation to reform opt‑in agreements
(1) A person must not:
(a) take or threaten to take any
action; or
(b) refrain, or threaten to refrain,
from taking any action;
with intent to coerce another person (the targeted
person) to enter into, or to not enter into, a reform opt‑in
agreement.
(2) A person must not knowingly make a false
statement with intent to persuade or influence another person (the targeted
person) to enter into, or to not enter into, a reform opt‑in
agreement.
(3) If a person breaches subsection (1)
or (2), a penalty may be imposed by the Court.
(4) The maximum penalty that may be imposed
under subsection (3) for a breach of subsection (1) or (2) is:
(a) 300 penalty units for a body
corporate; or
(b) 60 penalty units in other cases.
(5) An application to the Court for the
imposition of a penalty under subsection (3) may be made by:
(a) a Fair Work Inspector; or
(b) the targeted person; or
(c) an organisation of employees, or
an organisation or association of employers, of which the targeted person is a
member, if it is acting with the written consent of the targeted person.
(6) A penalty imposed under subsection (3)
is payable to the Commonwealth, or to some other person if the Court so
directs.
(7) Division 4 of Part 4‑1 of
the Fair Work Act 2009 has effect as if a breach of subsection (1)
or (2) were a contravention of a civil remedy provision within the meaning of
that Division.
35
Continued application of the State or Territory contractor laws to certain
services contracts
Services contracts to which this section applies
(1) This section applies to a services
contract (the relevant contract) if:
(a) the relevant contract:
(i) is a pre‑reform
commencement contract; or
(ii) is a continuation
contract in relation to a pre‑reform commencement contract; and
(b) some or all of the contract period
of the relevant contract occurs after the reform commencement; and
(c) the contractor law test is
satisfied in relation to the relevant contract (see subsection (2)).
(2) The contractor law test is satisfied in
relation to the relevant contract if one of the following paragraphs applies to
the contract that, as between the relevant contract and its related
continuation contracts (if any), is the contract (the test contract)
that was entered into both before the reform commencement and closest to the
reform commencement:
(a) if the contract period of the test
contract did not start before the reform commencement—one or more of the State
or Territory contractor laws would have applied before the reform commencement
in relation to the test contract if its contract period had started when it was
entered into;
(b) if the contract period of the test
contract started before the reform commencement—one or more of the State or
Territory contractor laws applied before the reform commencement in relation to
the test contract.
(3) For the purpose of subsection (2), a
reference to the State or Territory contactor laws, in relation to a time
before the reform commencement, is a reference to laws that would have been
State or Territory contractor laws if:
(a) this Division had been in force at
that time; and
(b) the reform commencement had
occurred before that time.
Exclusion provisions do not apply
(4) Subject to subsection (5), the
exclusion provisions do not apply in relation to the State or Territory
contractor laws in relation to so much of the contract period of the relevant
contract as occurs after the reform commencement and before the first of the
following days (the transition day):
(a) the date of effect of a reform opt‑in
agreement (if any) that covers the contract;
(b) the first day after the end of the
period of 3 years that started on the reform commencement.
Note: If the exclusion provisions do not apply, the
State or Territory contractor laws will continue to apply.
(5) The regulations may provide that
subsection (4) does not affect the application of the exclusion provisions
in relation to a specified State or Territory contractor law, either:
(a) generally; or
(b) as specified in the regulations.
What if the contract period ends before the transition
day?
(6) If:
(a) the contract period of the
relevant contract ends before the transition day; and
(b) there is no further contract
between the parties that (disregarding subsection (7)) is a related
continuation contract in relation to the relevant contract;
the consequences that result from the contract period
ending (including consequences relating to the fact that there is no further
contract as mentioned in paragraph (b)) are as provided by or under the
relevant terms of any contract between the parties, the State or Territory
contractor laws and any other relevant laws.
Note: The independent contractor may (for example)
have an entitlement under the State or Territory contractor laws to recover an
amount on account of accrued entitlements (such as leave), an entitlement to a
reinstatement or re‑engagement remedy, or an entitlement to a redundancy
payment.
(7) If:
(a) in a situation to which
subsection (6) applies, the independent contactor obtains a remedy that
results in his or her reinstatement or re‑engagement, with effect from a
time before the transition day; and
(b) the services contract (the remedy
contract) under which he or she is reinstated or re‑engaged would
not otherwise be a continuation contract in relation to:
(i) if
subparagraph (1)(a)(i) applies—the relevant contract; or
(ii) if subparagraph (1)(a)(ii)
applies—the pre‑reform commencement contract referred to in that
subparagraph;
the remedy contract is taken to be such a continuation
contract.
What if the contract period does not end before the
transition day?
(8) If the contract period of the relevant
contract does not end before the transition day, the contract is to be treated,
for the purposes of the State or Territory contractor laws, as if, on the
transition day, it had been brought to an end by agreement of the parties
(rather than by the unilateral act of one party).
Note: Because of this subsection, the occurrence of
the transition day may trigger an entitlement under a State or Territory
contractor law to recover an amount on account of accrued entitlements (such as
leave). But the occurrence of the transition day should not trigger an
entitlement under such a law to a reinstatement or re‑engagement remedy,
or to a redundancy payment, as such remedies are generally not available for
the ending of contracts by agreement.
36 How
section 35 applies if there is a transfer of business
When this section applies to a post‑transfer
contract—general
(1) Subject to subsection (2), this
section applies to a services contract (the post‑transfer contract)
if:
(a) under a services contract (the first
contract) between an independent contractor and another person (the former
principal), the independent contractor performs or performed work of a
particular kind for a business; and
(b) the first contract:
(i) is a pre‑reform
commencement contract; or
(ii) is a continuation
contract in relation to a pre‑reform commencement contract; and
(c) after the reform commencement,
there is a transfer (by whatever means, and however described) of all or part
of the business; and
(d) the post‑transfer contract
is a services contract, entered into by the independent contractor with another
person, that is for the performance, after the transfer takes effect, of the
same kind of work for the business or the transferred part of the business.
Section does not apply to a post‑transfer
contract if reform opt‑in agreement has already taken effect
(2) This section does not apply to the post‑transfer
contract if:
(a) a reform opt‑in agreement
covered the first contract, or covered another contract that is a continuation
contract in relation to:
(i) if subparagraph (1)(b)(i)
applies—the first contract; or
(ii) if subparagraph (1)(b)(ii)
applies—the pre‑reform commencement contract referred to in that
subparagraph; and
(b) the reform opt‑in
agreement’s date of effect is before the transfer takes effect.
Note: If this subsection applies, subsection (3)
will not apply and so the post‑transfer contract cannot be a continuation
contract.
If section applies, post‑transfer contract may be
continuation contract (even though parties are not the same)
(3) If this section applies to the post‑transfer
contract, then, in determining for the purpose of section 35 whether the
post‑transfer contract is a continuation contract in relation to:
(a) if subparagraph (1)(b)(i) applies—the
first contract; or
(b) if subparagraph (1)(b)(ii)
applies—the pre‑reform commencement contract referred to in that
subparagraph;
the following provisions have effect:
(c) the parties to the post‑transfer
contract are taken to be the same as the parties to the contract referred to in
whichever of paragraphs (a) and (b) of this subsection applies;
(d) subsection 32(2) has effect as if
that subsection also contained a paragraph referring to the interval being
because of the transfer of the business or the part of the business.
37
Application of the State or Territory contractor laws in relation to pre‑reform
commencement matters not affected by exclusion provisions
The exclusion provisions do not affect
the application of the State or Territory contractor laws in relation to
matters that occurred before the reform commencement.
Division 2—Unfair contracts laws
38
Definition
In this Division:
reform commencement means the commencement of
Part 2.
39 New
applications relating to unfair contracts
An application in relation to a services
contract may be made under Part 3 even if the contract was entered into
before the reform commencement.
40
Applications under the Workplace Relations Act 1996 in progress at the
reform commencement
(1) This section applies to an application in
relation to a contract for services that was made before the reform
commencement under section 832 of the Workplace Relations Act 1996
if the proceeding (including any appeal to a court in relation to the
proceeding) in relation to the application was not finally determined before
the reform commencement.
(2) Despite the repeal of sections 832,
833 and 834 of the Workplace Relations Act 1996 by the Workplace
Relations Legislation Amendment (Independent Contractors) Act 2006, those
sections continue to apply to the application after the reform commencement as
if they had not been repealed.
41
Applications under an excluded State or Territory law in progress at the reform
commencement
(1) This section applies to a proceeding in
relation to a contract for services that was commenced before the reform
commencement under a law of a State or Territory that makes provision as mentioned
in paragraph 7(1)(c) if the proceeding (including any appeal) was not finally
determined before the reform commencement.
(2) The exclusion provisions do not apply in
relation to the law of the State or Territory (including any law relating to
appeals) to the extent that it relates to the proceeding (including any
appeal).
Part 6—Regulations
42
Regulations may make provision for transitional matters
(1) The regulations may make provision for
matters of a transitional, saving or application nature arising out of, or
relating to, the provisions of this Act or of the Workplace Relations
Legislation Amendment (Independent Contractors) Act 2006.
(2) Without limiting subsection (1),
regulations made for the purpose of that subsection may prescribe modifications
of Division 1 of Part 5.
(3) Subject to subsection (4), despite
subsection 12(2) of the Legislative Instruments Act 2003, regulations
made for the purpose of subsection (1) of this section may be expressed to
take effect from a date before the regulations are registered under that Act.
(4) Subsection (3) does not apply to
regulations that create, modify or otherwise affect a provision that makes a
person liable to an offence or civil penalty.
(5) In this section:
modifications includes additions, omissions
and substitutions.
43
Power to make regulations
The Governor‑General may make regulations
prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.