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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Outworkers (Improved Protection) Act 2003
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
PART 2--PROTECTION OF OUTWORKERS 5
Division 1--Outworkers as Employees 5
4. Outworkers are employees for the purposes of certain laws 5
Division 2--Unpaid Remuneration 6
5. Definitions 6
6. Claims by outworkers for unpaid remuneration 6
7. Liability of apparent employer for unpaid remuneration for
which an unpaid remuneration claim has been made 7
8. Liability of actual employer for unpaid remuneration for which
an unpaid remuneration claim has been made 8
9. Recovery of amount of unpaid remuneration 8
10. Offences relating to unpaid remuneration claims and referred
claims 9
11. Effect of sections 5 to 10 9
12. Liability of principal contractor for remuneration payable to
outworkers of subcontractor 10
13. Written statements for the purposes of section 12 11
14. Operation of section 12 11
PART 3--ENSURING ETHICAL CLOTHING INDUSTRY
OUTWORK PRACTICES 12
Division 1--Ethical Clothing Trades Council of Victoria 12
15. Establishment and functions 12
16. Membership 14
17. Chairperson 15
18. Constitution and procedure 15
19. Quarterly reports 15
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Clause Page
20. Report on implementation of ethical outwork practices 16
21. Assistance for Council 17
Division 2--Mandatory Code of Practice 17
22. When can a mandatory code of practice be made? 17
23. What can the mandatory code contain? 18
24. How is the mandatory code made? 18
25. Effect of the mandatory code 18
26. Variation and revocation 19
27. Availability of the mandatory code 19
28. Competition policy authorisation 19
29. Exemptions 20
PART 4--COMPLIANCE 21
Division 1--Information Services Officers 21
30. What are the functions of information services officers? 21
31. Appointment of information services officers 21
32. Identity cards 21
33. Police to assist information services officers 22
34. When may powers be exercised? 22
35. Power of entry 22
36. Powers on entry 25
37. Power to require production of documents 25
38. Retention of documents 26
39. Confidentiality 26
Division 2--Entry and Inspection by Union Officials 27
40. Definitions and purpose of Division 27
41. Investigating suspected contraventions of Act 27
42. Discussions with outworkers 29
43. Conduct not authorised under sections 41 and 42 30
44. Entry with Court order 30
45. Issue of permits 31
46. Revocation of permits 32
47. Conduct attracting civil penalties 33
48. Civil penalties 33
49. Application and enforcement of civil penalties 34
Division 3--Victimisation 34
50. Prohibition of victimisation 34
Division 4--Other Offences 35
51. Failing to produce documents, hindering information services
officers and giving them false information 35
52. Protection against self-incrimination 36
53. Impersonation of information services officer 36
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Clause Page
Division 5--Prosecutions, Evidence and Recovery of Money 36
54. Proceedings for offences to be brought in Industrial Division of
the Magistrates' Court 36
55. Who can prosecute under this Act? 36
56. Judicial notice of signatures 38
57. Prosecutions under Federal Awards (Uniform System) Act
2003 38
58. Conduct of agents imputed to corporations 38
59. Reverse onus of proof in certain cases 39
60. Recovery of money owed 39
61. Court may order payment of arrears on finding of guilt 40
62. Representation in Magistrates' Court proceedings 41
63. Proceedings by and against unincorporated clubs 41
PART 5--GENERAL 43
64. Review of Act 43
65. Regulations 43
__________________
SCHEDULE--Constitution and Procedure of Council 45
ENDNOTES 49
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PARLIAMENT OF VICTORIA
Initiated in Assembly 26 February 2003
A BILL
to improve the protection of outworkers in the clothing industry, to
establish an Ethical Clothing Trades Council of Victoria and for other
purposes.
Outworkers (Improved Protection) Act
2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to improve the protection of outworkers in
5 the clothing industry;
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s. 2
(b) to establish an Ethical Clothing Trades
Council of Victoria.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
5 operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 January 2004, it comes into
operation on that day.
3. Definitions
10 In this Act--
"clothing work" means packing, processing or
working on articles or material in the
clothing industry;
"Code of Practice Committee" means the
15 committee described in clause 5 of Part 2 of
the Homeworkers Code;
"common rule order" has the same meaning as
in the Federal Awards (Uniform System)
Act 2003;
20 "Commonwealth Act" means the Workplace
Relations Act 1996 of the Commonwealth;
"Council" means Ethical Clothing Trades
Council of Victoria established by
section 15;
25 "Department" means Department of Innovation,
Industry and Regional Development;
"employer"--
(a) includes--
(i) a person who is usually an
30 employer; and
(ii) an unincorporated club;
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(b) 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;
5 Note: Section 4(1)(b) provides that a person who
engages an outworker is an employer.
"federal award" means an award made by order
of the Australian Industrial Relations
Commission under the Commonwealth Act;
10 "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,
15 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;
20 "information services officer" means a person
appointed under section 31;
"interested organisation" means an organisation
that is not a registered organisation but that
is representative of a significant number of
25 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
30 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
35 chairperson;
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"outwork" means clothing work contracted to be
performed outside the contractor's factory or
workshop;
"outwork document" means a document relating
5 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 or a
common rule order;
10 "outworker" means a person engaged, for
someone else's business, in or about a private
residence or other premises that are not
necessarily business or commercial premises,
to perform clothing work;
15 "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;
20 "registered organisation" means an organisation
registered under the Commonwealth Act;
"relevant industrial legislation" means--
(a) this Act;
(b) the Long Service Leave Act 1992;
25 (c) the Public Holidays Act 1993;
(d) regulations and other subordinate
instruments made under an Act
specified in paragraph (a), (b) or (c);
"Secretary" means Secretary to the Department;
30 "subordinate instrument" has the meaning
given by section 3 of the Interpretation of
Legislation Act 1984.
__________________
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PART 2--PROTECTION OF OUTWORKERS
Division 1--Outworkers as Employees
4. Outworkers are employees for the purposes of certain
laws
5 (1) For the purposes of the laws specified in sub-
section (2)--
(a) an outworker is an employee;
(b) a person who engages an outworker is an
employer;
10 (c) the contract between an outworker and a
person who engages him or her is a contract
of employment;
(d) the conditions on or under which an
outworker performs work are conditions of
15 employment;
(e) the relationship between an outworker and a
person who engages him or her is an
employment relationship.
(2) The laws referred to in sub-section (1) are--
20 (a) this Act;
(b) the Federal Awards (Uniform System) Act
2003;
(c) the Long Service Leave Act 1992;
(d) the Occupational Health and Safety Act
25 1985;
(e) the Public Holidays Act 1993;
(f) regulations and other subordinate
instruments (including common rule orders)
made under an Act specified in paragraph
30 (a), (b), (c), (d) or (e).
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Division 2--Unpaid Remuneration
5. Definitions
In this Division--
"remuneration" includes--
5 (a) any remuneration or other amount,
including commission, payable in
relation to work done by an outworker;
(b) amounts payable to an outworker in
respect of annual leave or long service
10 leave;
(c) an amount for which an outworker is
entitled to be reimbursed or
compensated for an expense incurred or
loss sustained by the outworker;
15 "unpaid remuneration claim" means a claim for
unpaid remuneration under section 6.
6. Claims by outworkers for unpaid remuneration
(1) An outworker may make a claim under this
section for any unpaid remuneration against the
20 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").
25 (2) The claim must be made within 6 months after the
work is completed.
(3) The claim is to be made by serving a written
notice on the apparent employer that--
(a) claims payment of the unpaid remuneration;
30 and
(b) sets out the following particulars--
(i) the name of the outworker;
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(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;
5 (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
10 remuneration for work carried out after the
commencement of this section.
7. Liability of apparent employer for unpaid
remuneration for which an unpaid remuneration
claim has been made
15 (1) Except as provided by sub-section (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.
20 (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
25 whom the work was done (the "actual
employer").
(3) An apparent employer refers an unpaid
remuneration claim in accordance with this
section by--
30 (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.
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(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
5 with section 8.
8. 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
10 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.
(2) An actual employer who accepts liability must
15 serve notice in writing on the apparent employer
of that acceptance and of the amount paid.
(3) If the apparent employer has paid to the outworker
concerned any part of the amount of unpaid
remuneration claimed for which the actual
20 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
25 actual employer (whether or not in respect of
work the subject of the referred claim).
9. Recovery of amount of unpaid remuneration
(1) Sections 60 and 61 apply to recovery of an
amount payable to an outworker from an apparent
30 employer who fails to make a payment in respect
of an amount of unpaid remuneration for which
the employer is liable under section 7.
(2) In proceedings referred to in sub-section (1), an
order for the apparent employer to pay the amount
35 concerned must be made unless the apparent
employer proves that the work was not done or
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that the amount claimed for the work in the unpaid
remuneration claim is not the correct amount in
respect of the work.
10. Offences relating to unpaid remuneration claims and
5 referred claims
A person must not--
(a) make any statement that the person knows is
false or misleading in a material particular in
any referred claim under section 7 or any
10 notice served for the purposes of section 8;
or
(b) serve a referred claim on a person under
section 7 that the person does not know, or
have reasonable grounds to believe, is an
15 actual employer.
Penalty: 120 penalty units.
11. Effect of sections 5 to 10
(1) Sections 5 to 10 do not limit or exclude any other
rights of recovery of remuneration of an
20 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 or a common rule order.
Note: An outworker may, for example, seek an order from
25 the Magistrates' Court under section 60 instead of
making an unpaid remuneration claim under
section 6.
(2) Nothing in section 8(3) limits or excludes any
right of recovery arising under any other law with
30 respect to any amount of money owed by the
apparent employer to the actual employer.
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12. Liability of principal contractor for remuneration
payable to outworkers of subcontractor
(1) This section applies where--
(a) a person (the "principal contractor") has
5 entered into a contract for the carrying out of
work by another person (the
"subcontractor"); and
(b) outworkers employed or engaged by that
subcontractor are engaged in carrying out the
10 work (the "relevant outworkers"); and
(c) the work is carried out in connection with a
business undertaking of the principal
contractor.
(2) The principal contractor is liable for the payment
15 of any remuneration of the relevant outworkers
that has not been paid for work done in connection
with the contract during any period of the contract
unless the principal contractor has a written
statement given by the subcontractor under this
20 section for that period of the contract.
(3) The principal contractor may withhold any
payment due to the subcontractor under the
contract until the subcontractor gives a written
statement under this section for any period up to
25 the date of the statement. Any penalty for late
payment under the contract does not apply to any
payment withheld under this sub-section.
(4) Sections 60 and 61 apply to the recovery of
remuneration payable by a principal contractor
30 under this section.
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13. Written statements for the purposes of section 12
(1) The written statement referred to in section 12 is a
statement by the subcontractor that all
remuneration payable to relevant outworkers for
5 work under the contract done during that period
has been paid.
(2) The regulations may prescribe the form and
content of the written statement.
(3) The subcontractor must keep a copy of any
10 written statement under this section for at least
6 years after it was given.
(4) The written statement is not effective to relieve
the principal contractor of liability under
section 12 if the principal contractor had, when
15 given the statement, reason to believe it was false.
(5) A subcontractor must not give the principal
contractor a written statement knowing it to be
false.
Penalty: 120 penalty units.
20 14. Operation of section 12
(1) Section 12 does not apply in relation to a contract
if the subcontractor is in receivership or in the
course of being wound up or, in the case of an
individual, is bankrupt and if payments made
25 under the contract are made to the receiver,
liquidator or trustee in bankruptcy.
(2) Nothing in section 12 or this section limits or
excludes any liability with respect to payment of
remuneration by a person who is a principal
30 contractor arising under this Act or any other law
or any common rule order.
__________________
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Part 3--Ensuring Ethical Clothing Industry Outwork Practices
s. 15
PART 3--ENSURING ETHICAL CLOTHING INDUSTRY
OUTWORK PRACTICES
Division 1--Ethical Clothing Trades Council of Victoria
15. Establishment and functions
5 (1) The Ethical Clothing Trades Council of Victoria is
established.
(2) The Council has the functions conferred on it by
or under this or any other Act.
(3) In particular, and without limiting sub-section (2),
10 the Council has the following functions in relation
to the clothing industry--
(a) to advise and make recommendations to the
Minister generally on the industry and
outwork practices in the industry, including
15 the impact of developments in the industry
on outworkers;
(b) to advise the Minister on the level of
compliance of sectors of the industry with
their obligations (whether or not voluntarily
20 undertaken) to ensure that outworkers
receive their lawful entitlements;
(c) to make recommendations about the means
by which compliance with those obligations
might be encouraged and enforced;
25 (d) to foster the adoption and observance of self-
regulatory mechanisms, such as the
Homeworkers Code and other voluntary
industry agreements, through consultation
with the Code of Practice Committee,
30 industry retailers and manufacturers, relevant
industrial organisations and other interested
persons and bodies;
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(e) to support changes to the Homeworkers
Code that the Council considers might
increase its effectiveness in ensuring that
outworkers receive their lawful entitlements;
5 (f) to promote, as may be appropriate, the
Homeworkers Code, any similar voluntary
industry code and any code made under this
Act, and persons who comply with those
codes;
10 (g) to facilitate consultation between industry
retailers and relevant industrial organisations
concerning the making and implementation
of voluntary agreements relating to outwork
practices in the industry;
15 (h) to conduct education programs and
disseminate information relating to
outworkers and the industry;
(i) to advise and make recommendations to the
Minister on the operation, and any
20 amendment to or revocation of, the
mandatory code (if in force) and the scope of
any exemptions that should be given by the
regulations;
(j) to make the reports referred to in this
25 Division.
(4) The Council may provide advice, and make
recommendations, to the Minister even though the
Minister has not requested it to do so.
(5) In performing its functions, the Council--
30 (a) must consider, where relevant, anything done
or published by the Ethical Clothing Trades
Council of New South Wales; and
(b) is subject to the control and direction of the
Minister, except in relation to any report
35 given to the Minister under this Division.
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16. Membership
(1) The Council consists of the following 7 part-time
members appointed by the Minister--
(a) a chairperson;
5 (b) a person appointed from a list of 3 names
submitted by the Australian Retailers
Association, Victorian Division;
(c) a person appointed from a list of 3 names
submitted by the Victorian Employers'
10 Chamber of Commerce and Industry;
(d) a person appointed from a list of 3 names
submitted by the Australian Industry Group,
Victorian Branch;
(e) a person appointed from a list of 3 names
15 submitted by the Victorian Trades Hall
Council;
(f) a person appointed from a list of 3 names
submitted by the Textile Clothing and
Footwear Union of Australia (Victorian
20 Branch);
(g) a person having the experience or skills in
the clothing industry that the Minister
considers will enable the person to make a
contribution to the work of the Council or
25 who is chosen by the Minister to represent
consumer, community or other interests.
(2) If a list for the purposes of sub-section (1)(b), (c),
(d), (e) or (f) is not submitted within the time or in
the manner directed by the Minister, the Minister
30 may appoint a person to be a member instead of
the member required to be appointed, being a
person who in the Minister's opinion is suitably
representative of the persons represented by the
body referred to in that paragraph.
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17. Chairperson
(1) The Minister may appoint as chairperson a person
who the Minister considers has a sufficient
knowledge of outwork practices in the clothing
5 industry to ensure that the work of the Council is
efficiently performed.
(2) The chairperson must not be a person who
represents an employer, employees or outworkers
in the clothing industry or a person who has a
10 direct financial interest in the clothing industry.
18. Constitution and procedure
The Schedule has effect with respect to the
Council.
19. Quarterly reports
15 (1) The Council must--
(a) monitor whether outworkers are receiving
their lawful entitlements; and
(b) make quarterly written reports to the
Minister on its findings.
20 (2) The Council must report on, and may include
recommendations with respect to, the following
matters in a quarterly report--
(a) activities of clothing industry retailers and
manufacturers in relation to their obligations
25 under the Homeworkers Code;
(b) participation by clothing industry retailers in
voluntary agreements relating to outwork
practices in the industry;
(c) activities of clothing industry retailers and
30 manufacturers in relation to their obligations
under the mandatory code (if in force).
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(3) The first quarterly report for the purposes of this
section is to be made as soon as practicable after
the end of 3 months after the commencement of
this section.
5 (4) The Minister may waive the requirement that the
Council make a quarterly report for any period
specified by the Minister.
20. Report on implementation of ethical outwork
practices
10 (1) The Council must--
(a) evaluate action (whether voluntary or
otherwise) taken by the clothing industry
during the period of 12 months after the
commencement of this section to improve
15 compliance in the industry with obligations
to ensure outworkers receive their lawful
entitlements; and
(b) report to the Minister on its findings.
(2) The report must include the Council's
20 recommendation as to--
(a) whether, if a mandatory code were made, it
would improve compliance; and
(b) the content of the code, including appropriate
compliance mechanisms.
25 (3) The Council must forward the report to the
Minister as soon as practicable after the end of the
12 month period.
(4) As soon as practicable after receiving the report--
(a) the Minister must cause it to be laid before
30 each House of Parliament; or
(b) if a House is not sitting when the Minister
seeks to comply with paragraph (a), the
Minister must give the report to the clerk of
that House.
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(5) The clerk of a House must--
(a) give a copy of the report to each member of
the House as soon as practicable after the
report is received under sub-section (4)(b);
5 and
(b) cause the report to be laid before the House
on the next sitting day of the House.
(6) A report that is given to the clerk of a House
under sub-section (4)(b) is taken to have been
10 published by order, or under the authority, of the
House.
21. Assistance for Council
The Council may, with the approval of the
Minister, arrange for the use of the services of any
15 staff (by secondment or otherwise) or facilities of
a government department.
Division 2--Mandatory Code of Practice
22. When can a mandatory code of practice be made?
(1) The Minister may make a mandatory code of
20 practice for the purpose of ensuring that
outworkers receive their lawful entitlements.
(2) In particular, the Minister may make the code if
he or she considers--
(a) that current voluntary self-regulatory
25 mechanisms are inadequate to achieve
improvements in the level of compliance
with obligations to ensure that outworkers
receive their lawful entitlements; or
(b) that persons engaged in the clothing industry
30 are not attempting in good faith to negotiate
improvements or extensions to those
voluntary self-regulatory mechanisms.
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(3) The Minister may make the code only after
considering a report of the Council under
section 20 (report on implementation of ethical
outwork practices).
5 23. What can the mandatory code contain?
(1) The mandatory code may require employers or
other persons engaged in the clothing industry, or
a sector of the clothing industry, specified or
described in the code to adopt the standards of
10 conduct and practice set out in the code with
respect to outworkers.
(2) The code may apply, adopt or incorporate (with or
without modification) a standard or other
document prepared or published by a body
15 specified in the code, as in force at a particular
time or as in force from time to time.
24. How is the mandatory code made?
(1) The Minister makes the mandatory code by order
published in the Government Gazette.
20 (2) The code takes effect on the day the order is
published or the later day specified in the order.
25. Effect of the mandatory code
(1) An employer or other person engaged in the
clothing industry, or a sector of the clothing
25 industry, specified or described in the mandatory
code must not fail, without reasonable excuse, to
adopt any standard of conduct or practice set out
in the code with respect to outworkers that the
employer or other person is required by the code
30 to adopt.
Penalty: 120 penalty units.
(2) If there is an inconsistency between the provisions
of the mandatory code and the provisions of a
federal award or a common rule order, the
35 provisions of the federal award or common rule
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order that are applicable to outworkers prevail to
the extent of the inconsistency.
26. Variation and revocation
(1) The Minister may, by order published in the
5 Government Gazette, amend or revoke the
mandatory code at any time.
(2) Before amending or revoking the code, the
Minister--
(a) must consult the Council and consider any
10 relevant report or recommendation made by
it; and
(b) may consult any other organisations or
persons the Minister thinks appropriate.
(3) If the Minister revokes the mandatory code, he or
15 she may make another mandatory code in
accordance with this Division.
27. Availability of the mandatory code
The Secretary must ensure that copies of the
mandatory code as amended from time to time are
20 available for public inspection, without charge, at
the principal office of the Department during
ordinary office hours.
28. Competition policy authorisation
(1) This section takes effect on the day on which the
25 mandatory code takes effect.
(2) For the purposes of Part IV of the Trade Practices
Act 1974 of the Commonwealth and of the
Competition Code, the following are specifically
authorised--
30 (a) any agreements entered into before or after
the commencement of this section by
persons in order to comply with any
requirements imposed on them by the
mandatory code;
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(b) the conduct of the persons in entering into
those agreements;
(c) the conduct of the persons in performing
those agreements;
5 (d) any thing done by persons in order to comply
with any requirements imposed on them by
the mandatory code.
(3) Things authorised to be done by sub-section (2)
are authorised only to the extent (if any) that they
10 would otherwise contravene Part IV of the Trade
Practices Act 1974 of the Commonwealth or the
Competition Code.
(4) In this section--
"agreement" includes a contract, arrangement or
15 understanding.
29. Exemptions
The regulations may exempt any person or body
or class of persons or bodies from the operation of
the mandatory code or from a specified provision
20 of the code.
__________________
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PART 4--COMPLIANCE
Division 1--Information Services Officers
30. What are the functions of information services
officers?
5 (1) The primary function of information services
officers is to provide information about the
operation of relevant industrial legislation to
employers, employees, outworkers and other
interested members of the community.
10 (2) Information services officers also have the
function of ensuring compliance with relevant
industrial legislation, and any other functions
conferred by or under this or any other Act.
31. Appointment of information services officers
15 The Secretary may, by instrument, appoint as an
information services officer for the purposes of
this Act a person employed under Part 3 of the
Public Sector Management and Employment
Act 1998 who, in the Secretary's opinion--
20 (a) is competent to perform the functions and
exercise the powers of an information
services officer; and
(b) is of good repute, having regard to character,
honesty and integrity; and
25 (c) agrees in writing to perform the functions of
an information services officer in accordance
with the criteria established from time to
time by the Secretary.
32. Identity cards
30 (1) Each information services officer must be issued
with an identity card in the form approved by the
Secretary.
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(2) The identity card must bear a photograph and the
signature of the information services officer.
(3) An information services officer must produce his
or her identity card for inspection--
5 (a) before exercising a power under this
Division other than a requirement made by
post, fax, e-mail or other electronic
communication; and
(b) at any time during the exercise of a power
10 under this Division, if asked to do so.
Penalty: 10 penalty units.
33. Police to assist information services officers
(1) An information services officer may request the
assistance of a member of the police force.
15 (2) A member of the police force may assist an
information services officer to take any action
authorised by this Division.
34. When may powers be exercised?
(1) An information services officer may exercise
20 powers under this Division only to the extent that
it is reasonably necessary to do so for the purpose
of determining compliance with relevant industrial
legislation.
(2) In exercising powers under this Division, an
25 information services officer must--
(a) cause as little inconvenience as possible; and
(b) not remain on premises any longer than is
reasonably necessary.
35. Power of entry
30 (1) At any time during working hours, an information
services officer may without force enter--
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(a) any premises at which the officer has
reasonable grounds for believing that
outwork is being or has been performed; or
(b) any premises, being a place of business at
5 which the officer has reasonable grounds for
believing that there are outwork documents
that are relevant to the purpose of
determining compliance with relevant
industrial legislation.
10 (2) If an owner or occupier of premises is present
when an information services officer exercises a
power of entry under this section, the officer
must--
(a) produce his or her identity card for
15 inspection; and
(b) inform the owner or occupier of the purpose
of the entry.
(3) If an information services officer exercises a
power of entry under this section without the
20 owner or occupier being present, the officer
must--
(a) on leaving the premises, leave a notice
setting out--
(i) the time of entry; and
25 (ii) the purpose of entry; and
(iii) a description of all things done while
on the premises; and
(iv) the time of departure; and
(v) the procedure for contacting the officer
30 for further details of the entry; and
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(b) post a copy of that notice--
(i) to the owner of the premises, if the
identity and address of that owner are
known to the officer; and
5 (ii) to the occupier of the premises, if the
identity and address of the occupier are
known to the officer.
(4) An information services officer does not have
authority to enter any part of premises used for
10 residential purposes, unless--
(a) the officer has, before the entry and in
addition to complying with sub-section (2),
informed the occupier that he or she may
refuse to consent to the entry; and
15 (b) the occupier has consented to the entry.
(5) If an occupier consents to an entry under sub-
section (4), the information services officer who
requested consent must before entering the
premises ask the occupier to sign an
20 acknowledgment in the prescribed form stating--
(a) that the occupier has been informed of the
purpose of the entry; and
(b) that the occupier has been informed that he
or she may refuse to consent to the entry; and
25 (c) that the occupier has consented to the entry;
and
(d) the date and time that the occupier
consented.
(6) An occupier who signs an acknowledgment must
30 be given a copy of the signed acknowledgment
before the information services officer leaves the
premises.
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(7) If, in any proceeding, an acknowledgment is not
produced to the court or a tribunal, it must be
presumed, until the contrary is proved, that the
occupier did not consent to the entry.
5 (8) Sub-section (4) does not apply to any part of
premises used both for residential purposes and
for work in or in connection with the clothing
industry. However, an information services
officer may only enter such premises under this
10 section if an owner or occupier is present.
36. Powers on entry
On exercising a power of entry under section 35,
an information services officer may--
(a) inspect any work, material, machinery,
15 appliance, article, facility or other thing;
(b) take samples of any goods or substances in
accordance with the regulations;
(c) interview any outworker or employee;
(d) require a person having the custody of, or
20 access to, an outwork document relevant to
the purpose of determining compliance with
relevant industrial legislation to produce the
document to the information services officer
within a reasonable period specified by the
25 information services officer;
(e) inspect, and make copies of or take extracts
from, a document produced to him or her.
37. Power to require production of documents
(1) An information services officer, by written notice,
30 may require a person to produce to him or her,
within a reasonable period specified in the notice,
an outwork document relevant to the purpose of
determining compliance with relevant industrial
legislation.
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(2) An information services officer may inspect, and
make copies of or take extracts from, a document
produced to him or her under sub-section (1).
38. Retention of documents
5 (1) An information services officer may retain a
document produced to him or her for the period
necessary for the purpose of performing functions
and exercising powers as an information services
officer.
10 (2) During the period that the information services
officer retains a document, he or she must permit
the person otherwise entitled to its possession to
inspect it and make copies of or take extracts
from it.
15 39. Confidentiality
(1) An information services officer must not, except
to the extent necessary to carry out his or her
functions, give to any other person, whether
directly or indirectly, any information acquired by
20 the officer in carrying out those functions.
Penalty: 60 penalty units.
(2) Sub-section (1) does not apply to the giving of
information--
(a) to a court or tribunal in the course of legal
25 proceedings; or
(b) pursuant to an order of a court or tribunal; or
(c) to the extent reasonably required to enable
the investigation or the enforcement of a law
of Victoria or of any other State or Territory
30 or of the Commonwealth; or
(d) with the written authority of the Secretary; or
(e) with the written authority of the person to
whom the information relates.
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Division 2--Entry and Inspection by Union Officials
40. Definitions and purpose of Division
(1) In this Division--
"ancillary document" has the meaning given in
5 section 285B(5) of the Commonwealth Act;
"AWA" has the same meaning as in the
Commonwealth Act;
"Court" means Magistrates' Court sitting as the
Industrial Division;
10 "officer" of the Union includes any person who is
concerned in, or takes part in, the
management of the Union;
"permit" means permit issued under section 45;
"Union" means Textile Clothing and Footwear
15 Union of Australia (Victorian Branch).
(2) The purpose of this Division is to provide certain
rights of entry, inspection and discussion for
authorised representatives of the Union, similar to
the provisions in Division 11A of Part IX of the
20 Commonwealth Act (as in force on 27 February
2003).
41. Investigating suspected contraventions of Act
(1) This section applies if a person who holds a
permit suspects that a contravention of this Act
25 has occurred, or is occurring.
(2) For the purpose of investigating the suspected
contravention, the person may enter, during
working hours, any premises--
(a) occupied by an employer or contractor who
30 is bound by a federal award (or a common
rule order that is based on a federal award)
that relates to outwork; or
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(b) where outworkers work who are, or are
eligible to become, members of the Union.
(3) After entering the premises, the person may, for
the purpose of investigating the suspected
5 contravention--
(a) require the employer or contractor to allow
the person, during working hours, to inspect
and, if the person wishes, to make copies of
any of the following that are kept by the
10 employer or contractor on the premises and
are relevant to the suspected contravention--
(i) any time sheets; or
(ii) any pay sheets; or
(iii) any other documents, other than an
15 AWA, an ancillary document or a
document that shows some or all of the
content of an AWA or of an ancillary
document; and
(b) during working hours, inspect or view any
20 work, material, machinery, or appliance, that
is relevant to the suspected contravention;
and
(c) during working hours, interview any
employees or outworkers who are--
25 (i) members of the Union; or
(ii) eligible to become members of the
Union--
about the suspected contravention.
(4) For the purpose of investigating the suspected
30 contravention, the person may (regardless of
whether the person exercises powers under sub-
section (2) or (3)) require an employer or
contractor mentioned in sub-section (2)--
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(a) to produce documents of the kind mentioned
in any of sub-paragraphs (i), (ii) or (iii) of
sub-section (3)(a) at the premises of the
employer or contractor or at some other
5 agreed place; and
(b) if the documents are to be produced at the
premises of the employer or contractor--to
allow the person, during working hours, to
enter the premises and--
10 (i) inspect the documents; and
(ii) if the person wishes to do so--make
copies of the documents; and
(c) if the documents are to be produced at some
other place--to allow the person, at an
15 agreed time, to inspect the documents at that
place and, if the person wishes to do so, to
make copies of them.
42. Discussions with outworkers
(1) Subject to sub-sections (2) and (3), a person who
20 holds a permit may enter premises in which
outworkers who are, or are eligible to become,
members of the Union work for the purpose of
holding discussions with any of those outworkers
who wish to participate in those discussions.
25 (2) The person may only enter the premises during
working hours and may only hold the discussions
during the outworkers' meal-time or other breaks.
(3) The person may not enter premises if all of the
following conditions are satisfied--
30 (a) no more than 20 outworkers work at the
premises; and
(b) all the outworkers at the premises are
engaged by an employer who is the holder of
a conscientious objection certificate under
35 section 267 of the Commonwealth Act that
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has been endorsed as provided for in
section 285C(4) of that Act; and
(c) none of the outworkers engaged at the
premises is a member of a registered
5 organisation.
43. Conduct not authorised under sections 41 and 42
(1) If--
(a) a person proposes to enter, or is on, premises
in accordance with section 41 or 42; and
10 (b) the occupier of the premises requires the
person to show his or her permit--
the person is not entitled under that section to
enter or remain on the premises unless he or she
shows the occupier the permit.
15 (2) A person is only entitled to enter premises, and
exercise powers, under section 41 or 42, if the
person has given the occupier of the premises at
least 24 hours notice of the person's intention to
do so, except as provided by section 44.
20 (3) A person is not, in exercising any powers under
section 41 or 42, entitled to enter any part of
premises used for residential purposes, except
with the permission of the occupier.
44. Entry with Court order
25 (1) On the ex parte application of a person who holds
a permit, the Court may by order waive the
requirement to give the occupier of premises
notice of an intention to enter premises, or
exercise powers, under section 41 or 42, if the
30 Court is satisfied that to give such notice would
defeat the purpose for which the power is intended
to be exercised.
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(2) Before entering premises in accordance with a
Court order under sub-section (1), the person
seeking entry must--
(a) announce that he or she is authorised by the
5 order to enter the premises; and
(b) give any person at the premises an
opportunity to allow entry to the premises.
(3) The person seeking entry need not comply with
sub-section (2) if he or she believes on reasonable
10 grounds that immediate entry to the premises is
required to ensure--
(a) the safety of any person; or
(b) that an effective entry is not frustrated.
(4) If the occupier or another person who apparently
15 represents the occupier is present at the premises
when entry under a Court order is being made, the
person entering must--
(a) identify himself or herself to the occupier or
person representing the occupier by
20 producing his or her permit for inspection;
and
(b) give the occupier or person representing the
occupier a copy of the order.
45. Issue of permits
25 (1) The Court may, on application by the secretary of
the Union, issue a permit for the purposes of this
Division to an officer or employee of the Union.
(2) The regulations may prescribe the form and
content of the permit.
30 (3) Unless revoked earlier, a permit remains in force
until the earlier of--
(a) 3 years after the day on which it was issued;
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(b) the time at which the person to whom it was
issued ceases to be an officer or employee of
the Union.
(4) If one or more permits issued to a person under
5 this section have been revoked, the Court must
take that fact into account when deciding whether
to issue a further permit under this section to the
person.
46. Revocation of permits
10 (1) An application for revocation of a permit may be
made to the Court by--
(a) an employer claiming that--
(i) the employer, or an employee or
outworker of the employer, has been
15 hindered or obstructed by the holder of
the permit; or
(ii) the holder of the permit has otherwise
acted in an improper manner; or
(b) a registered organisation of employers,
20 claiming that--
(i) one of its members, or an employee or
outworker of one of its members, has
been hindered or obstructed by the
holder of the permit; or
25 (ii) the holder of the permit has otherwise
acted in an improper manner; or
(c) an information services officer claiming
that--
(i) an employer, or an employee or
30 outworker of an employer, has been
hindered or obstructed by the holder of
the permit; or
(ii) the holder of the permit has otherwise
acted in an improper manner.
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(2) An application for the revocation of a permit must
set out the grounds on which the application is
made.
(3) The Court may, on an application under sub-
5 section (1), revoke the permit if satisfied that the
grounds for the application have been made out.
47. Conduct attracting civil penalties
(1) A person exercising powers under section 41
or 42 must not deliberately hinder or obstruct an
10 employer, contractor, employees or outworkers.
(2) The occupier of premises must not refuse or
unduly delay entry to the premises by a person
entitled to enter the premises under section 41
or 42.
15 (3) An employer or contractor must not refuse or fail
to comply with a requirement under
section 41(3)(a) or (4).
(4) A person must not otherwise intentionally hinder
or obstruct a person exercising powers under
20 section 41 or 42.
(5) For the avoidance of doubt, a failure to agree on a
place or a time as mentioned in section 41(4)(a) or
(c) does not constitute hindering or obstructing a
person exercising powers under section 41(4).
25 (6) A person to whom a permit has been issued must,
within 14 days after the expiry or revocation of
the permit, return the permit to the Court.
48. Civil penalties
(1) If a person contravenes a penalty provision, the
30 contravention is not an offence. However, a court
may make an order imposing a penalty on a
person who contravenes a penalty provision.
(2) The penalty cannot be more than $10 000 for a
body corporate or $2000 in other cases.
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(3) An application for an order under sub-section (1)
may be made by any person.
(4) A court may grant an injunction requiring a
person not to contravene, or to cease
5 contravening, a penalty provision.
(5) In this section--
"court" means Supreme Court, County Court or
Magistrates' Court;
"penalty provision" means section 47(1), (2),
10 (3), (4) or (6).
49. Application and enforcement of civil penalties
(1) A court that imposes a penalty under section 48(1)
may order that the penalty, or a part of the
penalty, be paid--
15 (a) into the Consolidated Fund; or
(b) to a particular registered organisation or
other person.
(2) An order imposing a penalty under section 48(1)
is taken, for the purposes of enforcement, to be an
20 order made by the court in a civil proceeding.
Division 3--Victimisation
50. Prohibition of victimisation
(1) An employer, a contractor, a registered
organisation or an interested organisation must not
25 victimise an outworker.
Penalty: 120 penalty units.
(2) An employer, contractor or organisation
victimises an outworker if the employer,
contractor or organisation subjects or threatens to
30 subject the outworker to any detriment because
the outworker, or a person associated with the
outworker, has--
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(a) claimed a benefit or exercised a power or
right that he or she is entitled to claim or
exercise under this Act; or
(b) brought, or otherwise participated in, a
5 proceeding under this Act; or
(c) informed any person of an alleged
contravention of this Act or the regulations
by any person.
(3) In this section--
10 "outworker" includes a prospective outworker;
"employer" includes a prospective employer.
Division 4--Other Offences
51. Failing to produce documents, hindering information
services officers and giving them false information
15 (1) A person must not, without reasonable excuse--
(a) fail to comply with a requirement to produce
a document under section 36 or 37; or
(b) otherwise obstruct or hinder an information
services officer performing functions or
20 exercising powers under this Act.
Penalty: 60 penalty units.
(2) A person must not--
(a) give information to an information services
officer that the person knows to be false or
25 misleading in a material particular; or
(b) produce a document to an information
services officer that the person knows to be
false or misleading in a material particular
without indicating the respect in which it is
30 false or misleading and, if practicable,
providing correct information.
Penalty: 60 penalty units.
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52. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to
refuse or fail to give information, produce a
document or do any other thing that the person is
5 required to do by or under this Part, if the giving
of the information, production of the document or
doing of the thing would tend to incriminate the
person.
(2) Despite sub-section (1), it is not a reasonable
10 excuse for a natural person to refuse or fail to
produce a record or other document that the
person is required to keep by this Act or the
regulations, if the production of the record or
other document would tend to incriminate the
15 person.
53. Impersonation of information services officer
A person must not impersonate an information
services officer.
Penalty: 60 penalty units.
20 Division 5--Prosecutions, Evidence and Recovery of Money
54. Proceedings for offences to be brought in Industrial
Division of the Magistrates' Court
If a person is charged with an offence against this
Act, the charge must be heard, and all penalties
25 recovered, before the Magistrates' Court sitting as
the Industrial Division.
55. Who can prosecute under this Act?
(1) A prosecution for an offence against this Act may
only be brought by--
30 (a) a person authorised by--
(i) the Minister; or
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(ii) the Secretary, if the Minister has
authorised the Secretary to give such an
authorisation; or
(iii) a person employed in the Department
5 under Part 3 of the Public Sector
Management and Employment Act
1998 who the Minister has authorised
to give such an authorisation; or
(b) an officer of the Textile Clothing and
10 Footwear Union of Australia (Victorian
Branch).
(2) Any authorisation for the purposes of
sub-section (1)(a)--
(a) must be in writing; and
15 (b) may be given generally, or only in relation to
a particular case or cases, or a particular
class of case or cases; and
(c) may be revoked by the person who gave it at
any time by notice in writing.
20 (3) The revocation of an authorisation does not affect
any proceedings started by a person before that
person's authorisation was revoked unless the
notice of revocation states otherwise.
(4) In a prosecution for an offence under this Act, the
25 Industrial Division of the Magistrates' Court must
presume, in the absence of evidence to the
contrary, that the prosecutor is authorised to bring
the prosecution.
(5) A prosecution may only be conducted by--
30 (a) the person authorised by or under sub-
section (1) to bring the prosecution; or
(b) a legal practitioner (within the meaning of
the Legal Practice Act 1996) briefed by the
person authorised to bring the prosecution.
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56. Judicial notice of signatures
All courts must take judicial notice of--
(a) the signature of a person who is, or was at
the time the signature purports to have been
5 made, the Minister, the Secretary, an
employee to whom section 55(1)(a)(iii)
applies or a person referred to in
section 55(1)(b); and
(b) the fact that a person listed in paragraph (a)
10 held the position he or she purported to hold
at the time the signature purports to have
been made.
57. Prosecutions under Federal Awards (Uniform
System) Act 2003
15 Despite anything to the contrary in the Federal
Awards (Uniform System) Act 2003, an officer
of the Textile Clothing and Footwear Union of
Australia (Victorian Branch) may bring a
prosecution for an offence against section 7(2) of
20 that Act if the relevant common rule order is a
common rule order that applies to outworkers.
58. Conduct of agents imputed to corporations
For the purposes of this Act, any conduct engaged
in on behalf of a corporation--
25 (a) by a director, employee or agent of the
corporation acting within the scope of the
person's actual or apparent authority; or
(b) by any other person at the direction, or with
the consent (express or implied) of such a
30 director, employee or agent--
is also conduct engaged in by the corporation.
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59. Reverse onus of proof in certain cases
In a prosecution against an employer for failing to
pay an outworker an amount owed to the
outworker under a contract of employment if--
5 (a) the outworker is dead; and
(b) the employer alleges that the period shown in
the charge as being the period of continuous
employment of the outworker with the
employer is wrong--
10 the employer bears the onus of proving the
allegation.
60. Recovery of money owed
(1) An outworker who is owed any money by an
employer under relevant industrial legislation, or
15 under any contract of employment, may take
proceedings in the Industrial Division of the
Magistrates' Court to recover the money owing.
The debt must arise out of the employment
relationship.
20 (2) The proceedings must be started within 6 years
after the outworker's entitlement to the money
arising.
(3) Before proceedings may be started under this
section, the employer must be given a written
25 demand for the money owed.
(4) If the Court is satisfied that the employer--
(a) had reasonable notice of the outworker's
claim; and
(b) had no reasonable grounds on which to
30 dispute the claim; and
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(c) in the circumstances should have paid the
claim without the need for proceedings being
taken to establish the validity of the claim--
the Court may order the employer to pay interest
5 to the outworker on top of any other amount to
which the outworker is entitled.
(5) The interest must not be greater than the rate fixed
under section 2 of the Penalty Interest Rates Act
1983 that applies at the time the Court makes the
10 order.
(6) If a claim is made under this section by an
outworker's personal representative, sub-sections
(4) and (5) apply despite anything to the contrary
in section 29 of the Administration and Probate
15 Act 1958.
61. Court may order payment of arrears on finding of
guilt
(1) If the Industrial Division of the Magistrates' Court
finds an employer guilty of an offence relating to
20 the underpayment of an outworker, the Court may
order the employer to pay the outworker any
amount that the outworker was underpaid and that
is still owed to the outworker, in addition to
imposing a penalty for the offence.
25 (2) However, under this section the Court may only
order the employer to pay an amount in respect of
a period of up to 6 years.
(3) Sub-sections (4), (5) and (6) of section 60 apply to
this section.
30 (4) An order under this section may be enforced as if
it were an order made by the Court in a civil
proceeding. However, if any amount remains to be
paid after all reasonable means of civil
enforcement have been tried, the order may be
35 enforced as if it were a fine imposed by the Court.
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(5) Nothing in this section limits an outworker's rights
under section 60, and nothing in that section limits
the power of the Court under this section.
62. Representation in Magistrates' Court proceedings
5 (1) An outworker may be represented in any
proceeding referred to in section 60 or 61 by a
person who is an employee or agent of--
(a) a registered organisation of which the
outworker is a member or eligible to become
10 a member; or
(b) a peak body of which an organisation
representing the outworker is a member.
(2) An employer may be represented in any
proceeding referred to in section 60 or 61 by a
15 person who is an employee or agent of--
(a) a registered organisation of which the
employer is a member or eligible to become
a member; or
(b) an interested organisation of which the
20 employer is a member or eligible to become
a member; or
(c) a peak body of which an organisation
representing the employer is a member.
63. Proceedings by and against unincorporated clubs
25 (1) For the purposes of this Act, the treasurer of a
club is to be taken to be the employer of a person
employed or engaged for the purposes or on
behalf of the club, and any proceeding that may be
taken under this Act by or against the club may be
30 taken by or against the treasurer on behalf of the
club.
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s. 63
(2) The treasurer is authorised to retain out of the
funds of the club sufficient money to meet
payments made by the treasurer on behalf of the
club under this section.
5 (3) In this section--
"club" means an unincorporated club;
"treasurer" includes a person having possession
or control of any funds of a club.
__________________
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Act No.
Part 5--General
s. 64
PART 5--GENERAL
64. Review of Act
(1) The Minister must review this Act to determine
whether the policy objectives of the Act remain
5 valid and whether the terms of the Act remain
appropriate for securing those objectives.
(2) The review is to be undertaken before the end of,
or as soon as possible after, the period of 5 years
after the day on which this Act receives the Royal
10 Assent.
(3) The Minister must cause a report on the outcome
of the review to be laid before each House of
Parliament as soon as practicable after the review
is completed and in any event before the end of
15 the period of 6 years after the day on which this
Act receives the Royal Assent.
65. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
20 (a) requiring employers to keep records in
relation to the contracting out of work in the
clothing industry and the engagement of
outworkers;
(b) prescribing any matter or thing required or
25 permitted by this Act to be prescribed or
necessary to be prescribed to give effect to
this Act.
(2) The regulations--
(a) may be of general or limited application;
30 (b) may differ according to differences in time,
place or circumstances;
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(c) may impose a penalty, not exceeding
20 penalty units, for a contravention of the
regulations.
__________________
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SCHEDULE
Section 18
CONSTITUTION AND PROCEDURE OF COUNCIL
PART 1--CONSTITUTION
5 1. Period of office of members
Subject to this Schedule, a member holds office for the
period (not exceeding 3 years) specified in his or her
instrument of appointment, and is eligible for re-
appointment.
10 2. Payment of members
(1) A member, other than a member who is an employee in the
public service within the meaning of the Public Sector
Management and Employment Act 1998, is entitled to
receive the fees, if any, that are fixed from time to time by
15 the Minister in respect of the member.
(2) A member is entitled to receive the allowances that are fixed
from time to time by the Minister.
3. Acting members
(1) The Minister may appoint a person who is eligible to be
20 appointed as a member to act as member--
(a) during a vacancy in the office of the member; or
(b) if the member is absent or, for any other reason, is
unable to perform the duties of office.
(2) In the case of an acting member appointed for a member
25 who was appointed under section 16(1)(b), (c), (d), (e) or
(f), the acting member must be appointed from the same, or
another, list submitted by the organisation that nominated
the member.
(3) The Minister--
30 (a) may determine the terms and conditions of
appointment of an acting member; and
(b) may terminate the appointment at any time.
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(4) While acting in a member's place, the acting member--
(a) has all the powers and must perform all the duties of
the member; and
(b) is entitled to be paid the fees and allowances (if any)
5 to which the member would have been entitled.
(5) An acting member is eligible for re-appointment.
4. Resignation and removal
(1) A member may resign from the office of member by writing
signed by the member and delivered to the Minister.
10 (2) The Minister may remove a member from office at any time.
(3) The office of a member also becomes vacant if the
member--
(a) becomes an insolvent under administration within the
meaning of the Corporations Act; or
15 (b) is convicted in Victoria of an offence punishable by
imprisonment for 12 months or more or elsewhere of
an offence that, if committed in Victoria, would be so
punishable; or
(c) becomes incapable of performing the duties of a
20 member; or
(d) is absent, without leave first being granted by the
Council, for 4 consecutive meetings of the Council of
which reasonable notice has been given to the
member personally or by post.
25 5. Effect of other Acts
(1) The Public Sector Management and Employment Act
1998 does not apply to a member in respect of the office of
member.
(2) If by or under any Act provision is made--
30 (a) requiring a person who is the holder of a specified
office to devote the whole of his or her time to the
duties of that office; or
(b) prohibiting the person from engaging in employment
outside the duties of that office--
35 the provision does not operate to disqualify the person from
holding that office and also the office of a member or from
accepting and retaining any remuneration payable to the
person under this Act as a member.
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(3) For the avoidance of doubt, the office of member is not to be
taken to be an office or place of profit under the Crown for
the purposes of section 55(d), 80A(5A)(a) or 83(4) of the
Constitution Act 1975 or section 13A(5A)(a) or (5C) of the
5 County Court Act 1958.
PART 2--PROCEDURE
6. General procedure
(1) The chairperson, or in his or her absence, the acting
chairperson, or in the absence of both of them, a member
10 elected by the members present, must preside at a meeting
of the Council.
(2) The quorum of the Council is 4 members.
(3) A question arising at a meeting is determined by a majority
of votes and the person presiding has a deliberative vote
15 and, in the case of an equality of votes, a second or casting
vote.
(4) The Council must ensure that accurate minutes are kept of
each meeting.
(5) The Council may transact any of its business at a meeting at
20 which the members or any of them participate by telephone,
closed-circuit television or in any other similar way.
(6) Subject to this Act, the Council may regulate its own
procedure.
7. Conflicts of interest
25 (1) Whenever the Council is to make a decision on a matter at a
meeting, each member present at the meeting must, before
the matter is considered, declare any direct or indirect
pecuniary interest that he or she has in the matter.
Penalty: 5 penalty units.
30 (2) The Council or the chairperson must cause the declaration to
be tabled at that meeting or at the next meeting of the
Council and the person presiding at that meeting must cause
the declaration to be recorded in the minutes of the meeting.
(3) A member who has a conflict of interest in a matter--
35 (a) must not be present during any deliberations on the
matter, unless a full declaration of the interest has
been made and the Council directs otherwise; and
(b) is not entitled to vote on the matter.
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(4) A member who has a conflict of interest in a matter must not
be present during any deliberations leading to a direction, or
take part in making a direction under sub-clause (3)(a).
(5) If a member votes on a matter in contravention of sub-
5 clause (3)(b), his or her vote must be disallowed.
8. Resolutions without meetings
(1) If--
(a) the Council has taken reasonable steps to give notice
to each member setting out the terms of a proposed
10 resolution; and
(b) at least 4 of the members sign a document containing
a statement that they are in favour of the resolution in
the terms set out in the document--
a resolution in those terms is deemed to have been passed at
15 a meeting of the Council held on the day on which the
document is signed or, if the members referred to in
paragraph (b) do not sign it on the same day, on the day on
which the last of those members signs the document.
(2) For the purposes of sub-clause (1), 2 or more separate
20 documents containing a statement in identical terms, each of
which is signed by one or more members, are deemed to
constitute one document.
(3) If a resolution is deemed by this section to have been passed
at a meeting of the Council, each member must as soon as
25 practicable be advised of the matter and given a copy of the
resolution.
(4) The members referred to in sub-clause (1)(b) must not
include a member who, because of clause 7, is not entitled to
vote on the resolution.
30 9. Effect of a vacancy or defect
An act or decision of the Council is not invalid only
because--
(a) of a vacancy in its membership; or
(b) of a defect or irregularity in the appointment of any of
35 its members; or
(c) in the case of an acting member, the occasion for that
member so acting had not arisen or had ceased.
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Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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