New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 20)
Omit section 5 (1). Insert instead:
(1) General definition In this Act, "employee" means:(a) a person employed in any industry, whether on salary or wages or piece-work rates, or(b) any person taken to be an employee by subsection (3).
Insert after section 127 (11):
(12) Nothing in this section limits or excludes any liability with respect to payment of remuneration by a person who is a principal contractor arising under this Act or any other law or any industrial instrument.
Insert after section 127:
127A Definitions-sections 127B-127G In sections 127B-127G:
"employer" means a person described in clause 1 (f) of Schedule 1 as an employer, being a person other than a person whose sole business in connection with the clothing industry is sale of clothing by retail.Note: A person described in clause 1 (f) of Schedule 1 as an employer is taken to be an employer for the purposes of this Act by section 5 (3)."outworker" in the clothing trades means a person described in clause 1 (f) of Schedule 1 as an employee.Note: A person described in clause 1 (f) of Schedule 1 as an employee is taken to be an employee for the purposes of this Act by section 5 (3)."remuneration" means an amount payable, within the meaning of the definition of "amount payable" in section 364 (1), in connection with work done by an outworker and includes an amount payable to the outworker under the Annual Holidays Act 1944 or the Long Service Leave Act 1955 .
"unpaid remuneration claim" means a claim for unpaid remuneration under section 127B.
127B Claims by outworkers in clothing trades for unpaid remuneration(1) When may an outworker make an unpaid remuneration claim under this section? An outworker in the clothing trades 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").(2) The claim must be made within 6 months after the work is completed.(3) How is an unpaid remuneration claim made? The claim is to be made by serving a written notice on the apparent employer that:(a) claims payment of the unpaid remuneration, and(b) sets out the following particulars:(i) the name of the outworker,(ii) the address at which the outworker may be contacted,(iii) a description of the work done,(iv) the date on which the work was done,(v) the amount of unpaid remuneration claimed in respect of the work.(4) The particulars set out in the unpaid remuneration claim must be verified by statutory declaration.(5) This section applies only in respect of remuneration for work carried out after the commencement of the section.(6) Clause 3 of Schedule 1 does not apply to an employer served with an unpaid remuneration claim under this section.
127C Liability of apparent employer for unpaid remuneration for which an unpaid remuneration claim has been made(1) Except as provided by subsection (4), an apparent employer served with an unpaid remuneration claim under section 127B is liable (subject to any proceedings as referred to in section 127E) for the amount of unpaid remuneration claimed.(2) 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").(3) An apparent employer refers an unpaid remuneration claim in accordance with this section by:(a) advising the outworker concerned in writing of the name and address of the actual employer, and(b) serving a copy of the claim (a "referred claim") on the actual employer.(4) 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 127D.
127D Liability of actual employer for unpaid remuneration for which an unpaid remuneration claim has been made(1) An actual employer served with a referred claim under section 127C 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.(2) An actual employer who accepts liability must serve notice in writing on the apparent employer of that acceptance and of the amount paid.(3) The apparent employer may, after 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, 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).
127E Recovery of amount of unpaid remuneration(1) Part 2 of Chapter 7 (Recovery of remuneration and other amounts) applies to recovery of an amount payable to an outworker in the clothing trades 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 127C. For the purposes of this section, a reference in Part 2 of Chapter 7 to an industrial instrument is to be construed as a reference to the provisions of this section.(2) 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.
127F Offences relating to unpaid remuneration claims and referred claims A person must not:(a) by intimidation or by any other act or omission, intentionally hinder, prevent or discourage a person from making an unpaid remuneration claim, or(b) make any statement that the person knows is false or misleading in a material particular in any notice given for the purposes of section 127C or 127D, or(c) serve a referred claim on a person under section 127C that the person does not know, or have reasonable grounds to believe, is an actual employer.Maximum penalty: 100 penalty units.
127G Effect of sections 127A-127F(1) Sections 127A-127F do not (except as provided by section 127B (6)), limit or exclude any other rights of recovery of remuneration of an outworker in the clothing trades, or any liability of any person with respect to the remuneration of such an outworker, whether or not arising under this Act or any other law or an industrial instrument.Note: An outworker may, for example, seek an order from an industrial court under section 365 instead of making an unpaid remuneration claim under section 127B.(2) Nothing in section 127D (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.
Insert “ Industrial Relations (Ethical Clothing Trades) Act 2001 ” in alphabetical order under “Other industrial relations legislation” in section 382 (1).
Insert at the end of the section:
(2) This section does not apply to any part of premises used both for residential purposes and for work in or in connection with the clothing trades.
Omit clause 1(f). Insert instead:
(f) Any person (not being the occupier of a factory) who performs outside a factory any work in the clothing trades or the manufacture of clothing products, whether directly or indirectly, for the occupier of a factory or a trader who sells clothing by wholesale or retail. (In such a case, the occupier or trader is taken to be the employer.)
Omit “ "factory" has the same meaning as in section 4 (1) of the Factories, Shops and Industries Act 1962 ”. Insert instead “ "factory" has the same meaning as “Factory” had in the Factories, Shops and Industries Act 1962 immediately before that definition was repealed by Schedule 2.4 [2] to the Occupational Health and Safety Act 2000 ”.
Omit “ "occupier" has the same meaning as in section 4 (1) of the Factories, Shops and Industries Act 1962 ”. Insert instead “ "occupier" has the same meaning as “Occupier” had in the Factories, Shops and Industries Act 1962 immediately before that definition was amended by Schedule 2.4 [3] to the Occupational Health and Safety Act 2000 ”.