Outworkers (Improved Protection) Act 2003

i Outworkers (Improved Protection) Act 2003 Act No. 22/2003 TABLE OF PROVISIONS Section 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 -- 1 of 52 -- Section Page ii 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 -- 2 of 52 -- Section Page iii 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 -- 3 of 52 -- 1 Outworkers (Improved Protection) Act 2003 † [Assented to 13 May 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 the clothing industry; (b) to establish an Ethical Clothing Trades Council of Victoria. Victoria No. 22 of 2003 -- 4 of 52 -- Part 1—Preliminary Outworkers (Improved Protection) Act 2003 Act No. 22/2003 2 2. Commencement (1) Subject to sub-section (2), this Act comes into 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 In this Act— "clothing work" means packing, processing or working on articles or material in the clothing industry; "Code of Practice Committee" means the committee described in clause 5 of Part 2 of the Homeworkers Code; "common rule order" has the same meaning as in the Federal Awards (Uniform System) Act 2003; "Commonwealth Act" means the Workplace Relations Act 1996 of the Commonwealth; "Council" means Ethical Clothing Trades Council of Victoria established by section 15; "Department" means Department of Innovation, Industry and Regional Development; "employer"— (a) includes— (i) a person who is usually an employer; and (ii) an unincorporated club; s. 2 -- 5 of 52 -- Part 1—Preliminary Outworkers (Improved Protection) Act 2003 Act No. 22/2003 3 (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; 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; "Homeworkers Code" means the agreement, known as the Homeworkers Code of Practice, containing two parts and Part 2 of which was signed on behalf of the Textile Clothing and Footwear Union of Australia, the Council of the Textile and Fashion Industries Ltd, the Australian Chamber of Manufactures and the Australian Business Chamber and various individual companies in 1997; "information services officer" means a person appointed under section 31; "interested organisation" means an organisation that is not a registered organisation but that is representative of a significant number of employers in an industry or a range of industries; "lawful entitlements" of an outworker means the entitlements conferred on the outworker by law, including any entitlements conferred by or under relevant industrial legislation or any other legislation; "mandatory code" means the code of practice (if any) in force under Division 2 of Part 3; "member" of the Council includes the chairperson; s. 3 -- 6 of 52 -- Part 1—Preliminary Outworkers (Improved Protection) Act 2003 Act No. 22/2003 4 "outwork" means clothing work contracted to be performed outside the contractor's factory or workshop; "outwork document" means a document relating to the contracting out of clothing work and includes a document that is required to be kept by an employer or contractor by or under relevant industrial legislation or a common rule order; "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; "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; "registered organisation" means an organisation registered under the Commonwealth Act; "relevant industrial legislation" means— (a) this Act; (b) the Long Service Leave Act 1992; (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; "subordinate instrument" has the meaning given by section 3 of the Interpretation of Legislation Act 1984. __________________ s. 3 -- 7 of 52 -- Part 2—Protection of Outworkers Outworkers (Improved Protection) Act 2003 Act No. 22/2003 5 PART 2—PROTECTION OF OUTWORKERS Division 1—Outworkers as Employees 4. Outworkers are employees for the purposes of certain laws (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; (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 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— (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 1985; (e) the Public Holidays Act 1993; (f) regulations and other subordinate instruments (including common rule orders) made under an Act specified in paragraph (a), (b), (c), (d) or (e). s. 4 -- 8 of 52 -- Part 2—Protection of Outworkers Outworkers (Improved Protection) Act 2003 Act No. 22/2003 6 Division 2—Unpaid Remuneration 5. Definitions In this Division— "remuneration" includes— (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 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; "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 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) 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; s. 5 -- 9 of 52 -- Part 2—Protection of Outworkers Outworkers (Improved Protection) Act 2003 Act No. 22/2003 7 (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 this section. 7. Liability of apparent employer for unpaid remuneration for which an unpaid remuneration claim has been made (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. (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. s. 7 -- 10 of 52 -- Part 2—Protection of Outworkers Outworkers (Improved Protection) Act 2003 Act No. 22/2003 8 (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 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 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 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 employer served with the referred claim has not accepted liability, the apparent employer may deduct or set-off the amount the apparent employer has paid to the outworker from any amount that the apparent employer owes to the actual employer (whether or not in respect of work the subject of the referred claim). 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 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 concerned must be made unless the apparent employer proves that the work was not done or s. 8 -- 11 of 52 -- Part 2—Protection of Outworkers Outworkers (Improved Protection) Act 2003 Act No. 22/2003 9 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 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 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 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 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 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 respect to any amount of money owed by the apparent employer to the actual employer. s. 10 -- 12 of 52 -- Part 2—Protection of Outworkers Outworkers (Improved Protection) Act 2003 Act No. 22/2003 10 12. Liability of principal contractor for remuneration payable to outworkers of subcontractor (1) This section applies where— (a) a person (the "principal contractor") has 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 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 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 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 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 under this section. s. 12 -- 13 of 52 -- Part 2—Protection of Outworkers Outworkers (Improved Protection) Act 2003 Act No. 22/2003 11 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 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 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 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. 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 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 contractor arising under this Act or any other law or any common rule order. __________________ s. 13 -- 14 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 12 PART 3—ENSURING ETHICAL CLOTHING INDUSTRY OUTWORK PRACTICES Division 1—Ethical Clothing Trades Council of Victoria 15. Establishment and functions (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), 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 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 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; (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, industry retailers and manufacturers, relevant industrial organisations and other interested persons and bodies; s. 15 -- 15 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 13 (e) to support changes to the Homeworkers Code that the Council considers might increase its effectiveness in ensuring that outworkers receive their lawful entitlements; (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; (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; (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 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 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— (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 given to the Minister under this Division. s. 15 -- 16 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 14 16. Membership (1) The Council consists of the following 7 part-time members appointed by the Minister— (a) a chairperson; (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' 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 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 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 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 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. s. 16 -- 17 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 15 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 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 direct financial interest in the clothing industry. 18. Constitution and procedure The Schedule has effect with respect to the Council. 19. Quarterly reports (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. (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 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 manufacturers in relation to their obligations under the mandatory code (if in force). s. 17 -- 18 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 16 (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. (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 (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 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 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. (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 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. s. 20 -- 19 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 17 (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); 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 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 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 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 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 are not attempting in good faith to negotiate improvements or extensions to those voluntary self-regulatory mechanisms. s. 21 -- 20 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 18 (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). 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 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 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. (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 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 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 provisions of the federal award or common rule s. 23 -- 21 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 19 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 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 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 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 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 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— (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; s. 26 -- 22 of 52 -- Part 3—Ensuring Ethical Clothing Industry Outwork Practices Outworkers (Improved Protection) Act 2003 Act No. 22/2003 20 (b) the conduct of the persons in entering into those agreements; (c) the conduct of the persons in performing those agreements; (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 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 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 of the code. __________________ s. 29 -- 23 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 21 PART 4—COMPLIANCE Division 1—Information Services Officers 30. What are the functions of information services officers? (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. (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 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— (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 (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 (1) Each information services officer must be issued with an identity card in the form approved by the Secretary. s. 30 -- 24 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 22 (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— (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 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. (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 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 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 (1) At any time during working hours, an information services officer may without force enter— s. 33 -- 25 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 23 (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 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. (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 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 owner or occupier being present, the officer must— (a) on leaving the premises, leave a notice setting out— (i) the time of entry; and (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 for further details of the entry; and s. 35 -- 26 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 24 (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 (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 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 (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 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 (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 be given a copy of the signed acknowledgment before the information services officer leaves the premises. s. 35 -- 27 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 25 (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. (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 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, 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 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 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, 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. s. 36 -- 28 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 26 (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 (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. (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. 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 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 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 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. s. 38 -- 29 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 27 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 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; "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 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 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 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 is bound by a federal award (or a common rule order that is based on a federal award) that relates to outwork; or s. 40 -- 30 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 28 (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 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 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 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 work, material, machinery, or appliance, that is relevant to the suspected contravention; and (c) during working hours, interview any employees or outworkers who are— (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 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)— s. 41 -- 31 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 29 (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 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— (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 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 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. (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— (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 section 267 of the Commonwealth Act that s. 42 -- 32 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 30 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 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 (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. (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. (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 (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 Court is satisfied that to give such notice would defeat the purpose for which the power is intended to be exercised. s. 43 -- 33 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 31 (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 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 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 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 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 (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. (3) Unless revoked earlier, a permit remains in force until the earlier of— (a) 3 years after the day on which it was issued; s. 45 -- 34 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 32 (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 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 (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 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, 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 (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 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. s. 46 -- 35 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 33 (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- 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 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. (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 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). (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 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. s. 47 -- 36 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 34 (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 contravening, a penalty provision. (5) In this section— "court" means Supreme Court, County Court or Magistrates' Court; "penalty provision" means section 47(1), (2), (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— (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 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 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 subject the outworker to any detriment because the outworker, or a person associated with the outworker, has— s. 49 -- 37 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 35 (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 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— "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 (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 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 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 false or misleading and, if practicable, providing correct information. Penalty: 60 penalty units. s. 51 -- 38 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 36 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 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 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 person. 53. Impersonation of information services officer A person must not impersonate an information services officer. Penalty: 60 penalty units. 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 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— (a) a person authorised by— (i) the Minister; or s. 52 -- 39 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 37 (ii) the Secretary, if the Minister has authorised the Secretary to give such an authorisation; or (iii) a person employed in the Department 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 Footwear Union of Australia (Victorian Branch). (2) Any authorisation for the purposes of sub-section (1)(a)— (a) must be in writing; and (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. (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 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— (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. s. 55 -- 40 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 38 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 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) 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 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 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— (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 director, employee or agent— is also conduct engaged in by the corporation. s. 56 -- 41 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 39 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— (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— 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 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. (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 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 dispute the claim; and s. 59 -- 42 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 40 (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 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 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 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 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. (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. (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 enforced as if it were a fine imposed by the Court. s. 61 -- 43 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 41 (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 (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 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 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 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 (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 taken by or against the treasurer on behalf of the club. s. 62 -- 44 of 52 -- Part 4—Compliance Outworkers (Improved Protection) Act 2003 Act No. 22/2003 42 (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. (3) In this section— "club" means an unincorporated club; "treasurer" includes a person having possession or control of any funds of a club. __________________ s. 63 -- 45 of 52 -- Part 5—General Outworkers (Improved Protection) Act 2003 Act No. 22/2003 43 PART 5—GENERAL 64. Review of Act (1) The Minister must review this Act to determine whether the policy objectives of the Act remain 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 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 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— (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 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; (b) may differ according to differences in time, place or circumstances; s. 64 -- 46 of 52 -- Part 5—General Outworkers (Improved Protection) Act 2003 Act No. 22/2003 44 (c) may impose a penalty, not exceeding 20 penalty units, for a contravention of the regulations. __________________ s. 65 -- 47 of 52 -- Outworkers (Improved Protection) Act 2003 Act No. 22/2003 45 SCHEDULE Section 18 CONSTITUTION AND PROCEDURE OF COUNCIL PART 1—CONSTITUTION 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. 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 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 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 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— (a) may determine the terms and conditions of appointment of an acting member; and (b) may terminate the appointment at any time. Sch. -- 48 of 52 -- Outworkers (Improved Protection) Act 2003 Act No. 22/2003 46 (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) 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. (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 (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 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. 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— (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— 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. Sch. -- 49 of 52 -- Outworkers (Improved Protection) Act 2003 Act No. 22/2003 47 (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 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 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 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 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 (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. (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— (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. Sch. -- 50 of 52 -- Outworkers (Improved Protection) Act 2003 Act No. 22/2003 48 (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- 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 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 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 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 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. 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 its members; or (c) in the case of an acting member, the occasion for that member so acting had not arisen or had ceased. ═══════════════ Sch. -- 51 of 52 -- Outworkers (Improved Protection) Act 2003 Act No. 22/2003 49 ENDNOTES † Minister's second reading speech— Legislative Assembly: 27 February 2003 Legislative Council: 8 April 2003 The long title for the Bill for this Act was "to improve the protection of outworkers in the clothing industry, to establish an Ethical Clothing Trades Council of Victoria and for other purposes." Endnotes -- 52 of 52 --