Industrial Relations Legislation Amendment Act 2021 (Vic)
Industrial Relations Legislation Amendment Act 2021
No. 14 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of Child Employment Act 2003
3Definitions
4Application for a permit
5Multiple children or occasions of employment
6Investigation of an application for a permit
7Determining an application for a permit
8Supplementary permits
9Permit conditions
10Secretary may vary or cancel permit
11Variations that may be made to a permit
12Record keeping by employers
13Application of Worker Screening Act 2020
14Contravention of conditions
15Provisions that do not apply to employment in entertainment
16Section 34 substituted
17Appointment of child employment officers
18Identity cards
19Confidentiality
20Who can prosecute under this Act?
21Judicial notice of signatures
22Delegation
23New section 56 inserted
Part 3—Amendment of Construction Industry Long Service Leave Act 1997
24New section 17A inserted
Part 4—Amendment of Equal Opportunity Act 2010
25Definitions
26New section 22A inserted
Part 5—Amendment of Inquiries Act 2014
27Definitions
28Section 51 substituted
29Section 91 substituted
30Section 121 substituted
Part 6—Amendment of Labour Hire Licensing Act 2018
31Definitions
32Definitions
33Person may apply for a licence
34Authority may conduct enquiries and require further information or consent to disclosure of information
35New section 35A inserted
36New Division 8 inserted in Part 7
37New Part 9 inserted
38Statute law revision amendments
Part 7—Amendment of Long Service Benefits Portability Act 2018
Division 1—Wage Inspectorate Victoria amendments
39Disclosure of information to other entities and authorities
Division 2—Other amendments
40Information to be kept on workers register
41Application and relevant day
42Service credits—service before relevant day
43Quarterly returns by employers
44Quarterly returns by contract workers
45Employers to keep long service records
46Portable Long Service Benefits Governing Board
47New section 37A inserted
48Disclosure of information to other entities and authorities
49Criminal liability of officers of bodies corporate—accessorial liability
50New section 80 inserted
51Who is an employer?
52Who is an employee?
53Crediting service
54No double-dipping
55Clause 16 of Schedule 1 repealed
56Who is an employer?
57Who is an employee?
58Who is a contract worker?
59Crediting service
60What is the security industry?
61Who is an employer?
62Who is an employee?
63Who is a contract worker?
64Crediting service
Part 8—Amendment of Long Service Leave Act 2018
Division 1—Wage Inspectorate Victoria amendments
65Appointment of authorised officers
66Identity cards
67Confidentiality
68Offences concerning long service leave records
69Who can prosecute under this Act?
70Judicial notice of signatures
71Long service leave records
72New Division 1 of Part 8 inserted
73New Division 2 of Part 8 inserted
Division 2—Other amendments
74Definitions
75What happens if employment ends before leave is taken?
76Contracting out prohibited
77Criminal liability of officers of bodies corporate—accessorial liability
Part 9—Amendment of Owner Drivers and Forestry Contractors Act 2005
Division 1—Wage Inspectorate Victoria amendments
78Definitions
79Contents and availability of information booklet
80Publication of schedules
81Appointment of authorised officer
82Identity cards
83Authorised officers subject to directions
84Who can prosecute under the Act?
85Judicial notice of signatures
86New section 70 inserted
Division 2—Other amendments
87Information booklet not required for short term engagements
88Provision of applicable schedule to contractor before engagement
89Membership of Forestry Industry Council
90Criminal liability of officers of bodies corporate—accessorial liability
Part 10—Repeal of this Act
91Repeal of this Act
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Endnotes
1 General information
Industrial Relations Legislation Amendment Act 2021
No. 14 of 2021
[Assented to 11 May 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Child Employment Act 2003 to transfer functions to the Wage Inspectorate Victoria; and
(b)to amend the Construction Industry Long Service Leave Act 1997 to allow for information sharing with the Portable Long Service Benefits Authority; and
(c)to amend the Equal Opportunity Act 2010 in relation to contract workers; and
(d)to amend the Inquiries Act 2014 in relation to detrimental action taken against workers; and
(e)to amend the Labour Hire Licensing Act 2018—
(i)to insert definitions relating to businesses providing labour hire services and to require licence holders to provide information on the turnover of those businesses; and
(ii)to empower the Labour Hire Licensing Authority to waive, reduce or refund fees payable under that Act in whole or in part; and
(iii)to provide that revenue generated by the licensing scheme may be used by the Labour Hire Licensing Authority; and
(iv)to make other related amendments; and
(f)to amend the Long Service Benefits Portability Act 2018—
(i)to make further provision in relation to service credits for employees in the community services sector; and
(ii)to provide for the nomination of representatives by employee organisations and employer organisations for appointment to the Portable Long Service Benefits Governing Board; and
(iii)to allow the Portable Long Service Benefits Authority to share information with certain entities; and
(iv)to make other miscellaneous amendments; and
(g)to amend the Long Service Leave Act 2018—
(i)to clarify that the offence relating to non-payment of long service leave entitlements is a continuing offence; and
(ii)to clarify that the prohibition against annulling, varying or excluding a provision of that Act applies to deeds; and
(iii)to transfer functions to the Wage Inspectorate Victoria; and
(iv)to make other miscellaneous amendments; and
(h)to make miscellaneous amendments to the Owner Drivers and Forestry Contractors Act 2005 including the transfer of functions to the Wage Inspectorate Victoria.
2Commencement
(1)This Act (other than sections 57 and 62) comes into operation on 1 July 2021.
(2)Subject to subsection (3), sections 57 and 62 come into operation on a day or days to be proclaimed.
(3)If sections 57 and 62 do not come into operation before 1 January 2022, they come into operation on that day.
Part 2—Amendment of Child Employment Act 2003
3Definitions
In section 3 of the Child Employment Act 2003—
(a)insert the following definition—
"Wage Inspectorate Victoria means the Wage Inspectorate Victoria established under section 19 of the Wage Theft Act 2020;";
(b)in the definition of Department, for "State Development, Business and Innovation" substitute "Premier and Cabinet".
4Application for a permit
In section 13 of the Child Employment Act 2003—
(a)in subsections (1) and (2)(a), for "Secretary" substitute "Wage Inspectorate Victoria";
(b)in subsection (2)(h)—
(i)for "Secretary" substitute "Wage Inspectorate Victoria";
(ii)for "a website maintained by the Department" substitute "its website";
(c)in subsection (4), for "Secretary" substitute "Wage Inspectorate Victoria".
5Multiple children or occasions of employment
In section 13A of the Child Employment Act 2003—
(a)in subsections (1), (2) and (3), for "Secretary" substitute "Wage Inspectorate Victoria";
(b)in subsection (4)—
(i)for "Secretary" (where twice occurring) substitute "Wage Inspectorate Victoria";
(ii)in paragraphs (a) and (b), for "his or her" substitute "its".
6Investigation of an application for a permit
In section 14 of the Child Employment Act 2003—
(a)in subsection (1)—
(i)for "Secretary" (where twice occurring) substitute "Wage Inspectorate Victoria";
(ii)in paragraph (a), for "he or she" substitute "it";
(b)in subsection (2), for "Secretary" substitute "Wage Inspectorate Victoria".
7Determining an application for a permit
(1)In section 16(1) of the Child Employment Act 2003, for "Secretary may grant a permit if the Secretary is" substitute "Wage Inspectorate Victoria may grant a permit if".
(2)For section 16(2) of the Child Employment Act 2003 substitute—
"(2)If the Wage Inspectorate Victoria is not satisfied of the matters referred to in subsection (1), it must refuse the application.".
(3)In section 16 of the Child Employment Act 2003—
(a)in subsection (3), for "Secretary grants an application for a permit, he or she" substitute "Wage Inspectorate Victoria grants an application for a permit, it";
(b)in subsection (4), for "Secretary" substitute "Wage Inspectorate Victoria".
8Supplementary permits
In section 16A of the Child Employment Act 2003—
(a)in subsections (1)(c), (2), (3) and (4), for "Secretary" (wherever occurring) substitute "Wage Inspectorate Victoria";
(b)in subsection (5), for "Secretary may refuse to grant a supplementary permit if the Secretary" substitute "Wage Inspectorate Victoria may refuse to grant a supplementary permit if it";
(c)in subsections (6), (8) and (9), for "Secretary" substitute "Wage Inspectorate Victoria".
9Permit conditions
In section 17(1) of the Child Employment Act 2003, for "Secretary" substitute "Wage Inspectorate Victoria".
10Secretary may vary or cancel permit
(1)In the heading to section 18 of the Child Employment Act 2003, for "Secretary" substitute "Wage Inspectorate Victoria".
(2)In section 18 of the Child Employment Act 2003—
(a)in subsections (1) and (2), for "Secretary" substitute "Wage Inspectorate Victoria";
(b)in subsection (3), for "Secretary may cause to be carried out any investigation or inquiry that the Secretary" substitute "Wage Inspectorate Victoria may cause to be carried out any investigation or inquiry that it";
(c)in subsection (4), for "Secretary varies or cancels a permit, the Secretary" substitute "Wage Inspectorate Victoria varies or cancels a permit, it";
(d)in subsection (5), for "Secretary" substitute "Wage Inspectorate Victoria".
11Variations that may be made to a permit
In section 18A(2) of the Child Employment Act 2003, for "Secretary must not vary a permit unless the Secretary is" substitute "Wage Inspectorate Victoria must not vary a permit unless".
12Record keeping by employers
In section 18B(3)(a), (4)(b) and (5)(b) of the Child Employment Act 2003, for "Secretary" substitute "Wage Inspectorate Victoria".
13Application of Worker Screening Act 2020
In section 19A(2)(p) of the Child Employment Act 2003, for "Secretary of the Department of Premier and Cabinet" substitute "Wage Inspectorate Victoria".
14Contravention of conditions
In section 23 of the Child Employment Act 2003—
(a)in subsection (2), for "Secretary" substitute "Wage Inspectorate Victoria";
(b)in subsection (3), for "Secretary must not specify that a condition does not apply unless the Secretary" substitute "Wage Inspectorate Victoria must not specify that a condition does not apply unless it".
15Provisions that do not apply to employment in entertainment
In section 28(2) of the Child Employment Act 2003, for "Secretary" substitute "Wage Inspectorate Victoria".
16Section 34 substituted
For section 34 of the Child Employment Act 2003 substitute—
"34 Availability of the mandatory code
The Wage Inspectorate Victoria must ensure that—
(a)the mandatory code, as varied from time to time, is published on its website; and
(b)copies of the mandatory code, as varied from time to time, are made available for public inspection, without charge, at its principal office during ordinary office hours.".
17Appointment of child employment officers
In section 38 of the Child Employment Act 2003—
(a)in subsection (1), for "Secretary" substitute "Wage Inspectorate Victoria";
(b)in subsection (2), for "Secretary's" substitute "Wage Inspectorate Victoria's".
18Identity cards
In section 39(1) of the Child Employment Act 2003, for "Secretary" substitute "Wage Inspectorate Victoria".
19Confidentiality
In section 46(2)(d) of the Child Employment Act 2003, for "Secretary" substitute "Wage Inspectorate Victoria".
20Who can prosecute under this Act?
For section 49A(1) of the Child Employment Act 2003 substitute—
"(1)A prosecution for an offence against this Act may only be brought by—
(a)the Wage Inspectorate Victoria; or
(b)a person employed under Part 3 of the Public Administration Act 2004 who is authorised by the Wage Inspectorate Victoria to bring a prosecution.".
21Judicial notice of signatures
(1)In the heading to section 49B of the Child Employment Act 2003 omit "of signatures".
(2)In section 49B(a) of the Child Employment Act 2003, after "Secretary" insert ", the Commissioner of the Wage Inspectorate Victoria".
(3)At the end of section 49B of the Child Employment Act 2003 insert—
"(2)All courts must take judicial notice of the official seal of the Wage Inspectorate Victoria affixed to a document and, until the contrary is proved, must presume that it was duly affixed.".
22Delegation
In section 52 of the Child Employment Act 2003, for "Secretary" (where twice occurring) substitute "Wage Inspectorate Victoria".
23New section 56 inserted
After section 55 of the Child Employment Act 2003 insert—
"56 Transitional provisions—Industrial Relations Legislation Amendment Act 2021
(1)An application under section 13 that was pending immediately before the commencement of section 4 of the amending Act is taken, on and after that commencement, to be an application to the Wage Inspectorate Victoria under section 13 as amended by the amending Act.
(2)An application under section 13A that was pending immediately before the commencement of section 5 of the amending Act is taken, on and after that commencement, to be an application to the Wage Inspectorate Victoria under section 13A as amended by the amending Act.
(3)In determining an application referred to in subsection (1) or (2), the Wage Inspectorate Victoria may have regard to any investigations and inquiries carried out by the Secretary under section 14 in relation to the application before the commencement of section 6 of the amending Act.
(4)A permit granted under section 16 that was in force immediately before the commencement of section 7 of the amending Act remains in force on and after that commencement as if it had been granted by the Wage Inspectorate Victoria under section 16 as amended by the amending Act.
(5)A permit granted under section 16A that was in force immediately before the commencement of section 8 of the amending Act remains in force on and after that commencement as if it had been granted by the Wage Inspectorate Victoria under section 16A as amended by the amending Act.
(6)Any conditions to which a permit referred to in subsection (4) or (5) was subject immediately before the commencement of section 9 of the amending Act remain in force on and after that commencement as if they had been determined by the Wage Inspectorate Victoria under section 17 as amended by the amending Act.
(7)The approval of a form under section 18B(3)(a) that was in force immediately before the commencement of section 12 of the amending Act remains in force on and after that commencement until a form is approved by the Wage Inspectorate Victoria under that section as amended by the amending Act.
(8)If an employer provided a copy of an exemption to the Secretary under section 18B(5)(b) before the commencement of section 12 of the amending Act, the copy is taken, on and after that commencement, to have been provided to the Wage Inspectorate Victoria.
(9)A person who was a child employment officer immediately before the commencement of section 17 of the amending Act remains a child employment officer on and after that commencement as if the person had been appointed by the Wage Inspectorate Victoria under section 38 as amended by the amending Act.
(10)Any directions in force under section 38(2) immediately before the commencement of section 17 of the amending Act remain in force on and after that commencement as if they were directions issued by the Wage Inspectorate Victoria under section 38(2) as amended by the amending Act.
(11)An identity card issued to a child employment officer under section 39 that was in force immediately before the commencement of section 18 of the amending Act remains in force on and after that commencement as if it had been issued by the Wage Inspectorate Victoria under section 39 as amended by the amending Act.
(12)A written authority that was in force under section 46(2)(d) immediately before the commencement of section 19 of the amending Act remains in force on and after that commencement in accordance with its tenor as if it had been given by the Wage Inspectorate Victoria under section 46(2)(d) as amended by the amending Act.
(13)An authorisation by the Secretary that was in force under section 49A(1) immediately before the commencement of section 20 of the amending Act remains in force on and after that commencement as if it had been given by the Wage Inspectorate Victoria under section 49A(1) as amended by the amending Act.
(14)A delegation by the Secretary under section 52 that was in force immediately before the commencement of section 22 of the amending Act remains in force on and after that commencement as if it were a delegation by the Wage Inspectorate Victoria under section 52 as amended by the amending Act.
(15)In this section—
amending Act means the Industrial Relations Legislation Amendment Act 2021.".
Part 3—Amendment of Construction Industry Long Service Leave Act 1997
24New section 17A inserted
After section 17 of the Construction Industry Long Service Leave Act 1997 insert—
"17A Disclosure of information
(1)At the request of the Portable Long Service Benefits Authority, the trustee may disclose relevant information to that Authority for the performance of that Authority's functions.
(2)In this section—
Portable Long Service Benefits Authority means the Authority established by section 35 of the Long Service Benefits Portability Act 2018;
relevant information means information held by the trustee in relation to the administration of this Act.".
Part 4—Amendment of Equal Opportunity Act 2010
25Definitions
In section 4(1) of the Equal Opportunity Act 2010—
(a)for the definition of employment activity substitute—
"employment activity means—
(a)an employee, in the employee's individual capacity—
(i)making a reasonable request to the employee's employer, orally or in writing, for information regarding the employee's employment entitlements; or
(ii)communicating to the employee's employer, orally or in writing, the employee's concern that the employee has not been, is not being or will not be given some or all of the employee's employment entitlements; or
(b)a contract worker, in the contract worker's individual capacity—
(i)making a reasonable request to the contract worker's principal, orally or in writing, for information regarding the contract worker's employment entitlements; or
(ii)communicating to the contract worker's principal, orally or in writing, the contract worker's concern that the contract worker has not been, is not being or will not be given some or all of the contract worker's employment entitlements;";
(b)in the definition of employment entitlements, for ", means the employee's rights and entitlements" substitute "or a contract worker, means the rights and entitlements of the employee or contract worker".
26New section 22A inserted
After section 22 of the Equal Opportunity Act 2010 insert—
"22A Principal must make reasonable adjustments for contract worker with a disability
(1)This section applies to a contract worker with a disability who requires adjustments in order to perform the genuine and reasonable requirements of the work.
(2)The principal must make reasonable adjustments unless the contract worker could not or cannot adequately perform the genuine and reasonable requirements of the work even after the adjustments are made.
Example
A principal may be able to make reasonable adjustments for a contract worker with a disability by—
· providing a ramp for access to the workplace or a particular software package for computers;
· modifying work instructions or reference manuals;
· allowing the contract worker to be absent during work hours for rehabilitation, assessment or treatment;
· allowing the contract worker to take breaks more frequently.
(3)In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including—
(a)the contract worker's circumstances, including the nature of the disability; and
(b)the nature of the contract worker's role; and
(c)the nature of the adjustment required to accommodate the disability; and
(d)the financial circumstances of the principal; and
(e)the size and nature of the workplace and the principal's business; and
(f)the effect on the workplace and the principal's business of making the adjustment including—
(i)the financial impact of doing so; and
(ii)the number of persons who would benefit from or be disadvantaged by doing so; and
(iii)the impact on efficiency and productivity and, if applicable, on customer service of doing so; and
(g)the consequences for the principal of making the adjustment; and
(h)the consequences for the contract worker of not making the adjustment; and
(i)any relevant action plan made under Part 3 of the Disability Discrimination Act 1992 of the Commonwealth; and
(j)if the principal is a public sector body within the meaning of section 38 of the Disability Act 2006, any relevant Disability Action Plan made under that section.
(4)For the purposes of subsection (2), in determining whether or not the contract worker could or can adequately perform the genuine and reasonable requirements of the work, all the relevant facts and circumstances must be considered, including—
(a)the contract worker's training, qualifications and experience; and
(b)the contract worker's current performance in the work, if applicable.
(5)A principal is not required to make an adjustment under subsection (2) to the extent that the principal has complied with, or has been exempted from compliance with, a relevant disability standard made under the Disability Discrimination Act 1992 of the Commonwealth in relation to the subject matter of that adjustment.
(6)A principal is not required to make an adjustment under subsection (2) that relates to a building or land to the extent that—
(a)a determination has been made under section 160B of the Building Act 1993 in relation to that building or land, in relation to the subject matter of that adjustment; and
(b)the principal complies with the determination.".
Part 5—Amendment of Inquiries Act 2014
27Definitions
In section 3 of the Inquiries Act 2014—
(a)insert the following definitions—
"contract worker, in relation to a business or other undertaking, means—
(a)a person who does work for the business or other undertaking under a contract between the person's employer and the person who conducts the business or other undertaking; or
(b)a person who does work for the business or other undertaking for fee or reward on the person's own account (other than a person who conducts the business or other undertaking);
detrimental action, in relation to an employee, includes dismissal;
worker, in relation to a business or other undertaking, means—
(a)an employee of the person who conducts the business or other undertaking; or
(b)a contract worker of the business or other undertaking.";
(b)in the definition of Victorian Inspectorate, for "2011." substitute "2011;".
28Section 51 substituted
For section 51 of the Inquiries Act 2014 substitute—
"51 Offence of taking detrimental action against workers
(1)A person who conducts a business or other undertaking must not take or threaten to take detrimental action against a worker of the business or other undertaking because—
(a)the worker has given information to a Royal Commission; or
(b)the person believes that the worker has given or will give information to a Royal Commission.
Penalty:120 penalty units or imprisonment for 12 months.
Notes
1 See also section 72 of the Criminal Procedure Act 2009, which deals with the evidential burden of proof.
2 Section 128 applies to an offence against this subsection.
(2)It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in subsection (1)(a) or (b) was not a substantial reason for the detrimental action.
(3)Subsection (1) does not apply if a person takes or threatens to take detrimental action against a worker because—
(a)the worker unlawfully gave information to a Royal Commission; or
(b)the worker contravened section 50 of this Act or section 314 of the Crimes Act 1958 in respect of the information given to a Royal Commission.".
29Section 91 substituted
For section 91 of the Inquiries Act 2014 substitute—
"91 Offence of taking detrimental action against workers
(1)A person who conducts a business or other undertaking must not take or threaten to take detrimental action against a worker of the business or other undertaking because—
(a)the worker has given information to a Board of Inquiry; or
(b)the person believes that the worker has given or will give information to a Board of Inquiry.
Penalty:120 penalty units or imprisonment for 12 months.
Notes
1 See also section 72 of the Criminal Procedure Act 2009, which deals with the evidential burden of proof.
2 Section 128 applies to an offence against this subsection.
(2)It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in subsection (1)(a) or (b) was not a substantial reason for the detrimental action.
(3)Subsection (1) does not apply if a person takes or threatens to take detrimental action against a worker because—
(a)the worker unlawfully gave information to a Board of Inquiry; or
(b)the worker contravened section 90 of this Act or section 314 of the Crimes Act 1958 in respect of the information given to a Board of Inquiry.".
30Section 121 substituted
For section 121 of the Inquiries Act 2014 substitute—
"121 Offence of taking detrimental action against workers
(1)A person who conducts a business or other undertaking must not take or threaten to take detrimental action against a worker of the business or other undertaking because—
(a)the worker has given information to a Formal Review; or
(b)the person believes that the worker has given or will give information to a Formal Review.
Penalty:120 penalty units or imprisonment for 12 months.
Notes
1 See also section 72 of the Criminal Procedure Act 2009, which deals with the evidential burden of proof.
2 Section 128 applies to an offence against this subsection.
(2)It is a defence in a proceeding for an offence against subsection (1) if the reason referred to in subsection (1)(a) or (b) was not a substantial reason for the detrimental action.
(3)Subsection (1) does not apply if a person takes or threatens to take detrimental action against a worker because—
(a)the worker unlawfully gave information to a Formal Review; or
(b)the worker contravened section 120 in respect of the information given to a Formal Review.".
Part 6—Amendment of Labour Hire Licensing Act 2018
31Definitions
In section 3 of the Labour Hire Licensing Act 2018 insert the following definitions—
"tier 1 business, in relation to an application for a licence or a renewal of a licence or the holder of a licence, means—
(a)a business that, for the 4 quarters immediately preceding the day by which information in respect of the turnover of the business is required to be given to the Authority under Part 3 in relation to the application or an annual licence fee, had a turnover of no more than $2 000 000 or any other amount prescribed by the regulations; or
(b)a business that did not operate in the 4 quarters immediately preceding the day on which the application for a licence is made but the business is projected to have a turnover in the first 4 quarters of operation of no more than $2 000 000 or any other amount prescribed by the regulations;
tier 2 business, in relation to an application for a licence or a renewal of a licence or the holder of a licence, means—
(a)a business that for the 4 quarters immediately preceding the day by which information in respect of the turnover of the business is required to be given to the Authority under Part 3 in relation to the application or an annual licence fee had a turnover of between $2 000 001 and $10 000 000 or any other range prescribed by the regulations; or
(b)a business that did not operate in the 4 quarters immediately preceding the day on which the application for a licence is made but the business is projected to have a turnover in the first 4 quarters of operation of between $2 000 001 and $10 000 000 or any other range prescribed by the regulations;
tier 3 business, in relation to an application for a licence or renewal of a licence or the holder of a licence, means—
(a)a business that for the 4 quarters immediately preceding the day by which information in respect of the turnover of the business is required to be given to the Authority under Part 3 in relation to the application or an annual licence fee had a turnover of more than $10 000 000 or any other amount prescribed by the regulations; or
(b)a business that did not operate in the 4 quarters immediately preceding the day on which the application for a licence is made but the business is projected to have a turnover in the first 4 quarters of operation of more than $10 000 000 or any other amount prescribed by the regulations;".
32Definitions
In section 3 of the Labour Hire Licensing Act 2018 insert the following definitions—
"quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December in any year;
turnovermeans the total ordinary income that is derived in the course of running a business;".
33Person may apply for a licence
After section 17(2)(f) of the Labour Hire Licensing Act 2018 insert—
"(fa)details of the estimated turnover of the business for the 4 quarters immediately preceding the date of the application for the purposes of ascertaining whether the business is a tier 1 business, tier 2 business or tier 3 business;".
34Authority may conduct enquiries and require further information or consent to disclosure of information
In section 47(b)(i) of the Labour Hire Licensing Act 2018, after "information" insert "including in relation to the turnover of the business".
35New section 35A inserted
After section 35 of the Labour Hire Licensing Act 2018 insert—
"35A Waiver, reduction or refund of fees
(1)The Authority may, if the Authority considers that special circumstances apply—
(a)waive or reduce, in whole or in part, fees that would otherwise be payable under this Part; or
(b)refund, in whole or in part, any fee (other than an application fee payable under section 17(6) or 28(2)(b)) paid under this Part.
(2)If a person is granted for any reason a refund of the whole or any part of a fee paid under this Part, the Authority may apply the refund—
(a)towards a liability of the person arising under this Act; or
(b)with the written consent of the person, towards any future liability of the person arising under this Act.".
36New Division 8 inserted in Part 7
After Division 7 of Part 7 of the Labour Hire Licensing Act 2018 insert—
"Division 8—Labour Hire Licensing Authority Account
115Establishment of Labour Hire Licensing Authority Account
(1)There is established in the Public Account as part of the Trust Fund under the Financial Management Act 1994 an account to be known as the Labour Hire Licensing Authority Account.
(2)There must be paid into the Labour Hire Licensing Authority Account the following—
(a)all fees paid to, or recovered by or on behalf of, the Authority under this Act;
(b)any proceeds from the investments of the Account;
(c)other amounts received by the Authority.
(3)The Authority may pay out of the Labour Hire Licensing Authority Account the following—
(a)any amounts required to enable the Authority to perform its functions or duties or exercise its powers under this Act;
(b)the costs and expenses incurred by the Authority in administering this Act;
(c)any refund, in whole or in part, of fees paid under this Act.
(4)Money standing to the credit of the Labour Hire Licensing Authority Account may be invested in any manner in which trust funds may be invested under the Trustee Act 1958.".
37New Part 9 inserted
After Part 8 of the Labour Hire Licensing Act 2018 insert—
"Part 9—Further transitional provisions
120Transitional provision—Industrial Relations Legislation Amendment Act 2021
Despite the commencement of section 31 of the Industrial Relations Legislation Amendment Act 2021, the amendments made by that section are taken not to have come into force in relation to the granting of any application for a licence or renewal of a licence received by the Authority under Part 3 before the commencement of that section.".
38Statute law revision amendments
In sections 19(1)(b) and 34(1)(b) of the Labour Hire Licensing Act 2018, for "Work Safe" substitute "WorkSafe".
Part 7—Amendment of Long Service Benefits Portability Act 2018
Division 1—Wage Inspectorate Victoria amendments
39Disclosure of information to other entities and authorities
In section 51(3) of the Long Service Benefits Portability Act 2018, in the definition of Victorian government entity, after paragraph (b) insert—
"(ba)the Wage Inspectorate Victoria; or".
Division 2—Other amendments
40Information to be kept on workers register
In section 9(e) of the Long Service Benefits Portability Act 2018, after "this Act" insert "whether expressed in days, part days or hours".
41Application and relevant day
(1)For the heading to section 23 of the Long Service Benefits Portability Act 2018 substitute—
"Relevant day".
(2)Section 23(1) of the Long Service Benefits Portability Act 2018 is repealed.
(3)In section 23(2) of the Long Service Benefits Portability Act 2018, before paragraph (c) of the definition of relevant day insert—
"(ba)for the community services sector—1 July 2019;".
42Service credits—service before relevant day
At the foot of section 24(2) of the Long Service Benefits Portability Act 2018 insert—
"Note
This section only applies to a registered active worker in the contract cleaning industry or the security industry who made an application within 12 months after 1 July 2019.".
43Quarterly returns by employers
In section 27(2)(b)(ii) of the Long Service Benefits Portability Act 2018—
(a)omit "or part days";
(b)after "relates" insert ", whether expressed in days, part days or hours".
44Quarterly returns by contract workers
In section 28(2)(a) of the Long Service Benefits Portability Act 2018—
(a)omit "or part days";
(b)after "industry" insert ", whether expressed in days, part days or hours".
45Employers to keep long service records
In section 34(2)(d) of the Long Service Benefits Portability Act 2018—
(a)omit "or part days";
(b)after "quarter" insert ", whether expressed in days, part days or hours".
46Portable Long Service Benefits Governing Board
(1)For section 37(2) of the Long Service Benefits Portability Act 2018 substitute—
"(2)The Governing Board consists of 9 persons, including—
(a)8 persons appointed by the Minister, of whom—
(i)3 persons must be nominated by one or more organisations of employers to represent the interests of employers for a covered industry; and
(ii)3 persons must be nominated by one or more organisations of employees to represent the interests of employees for a covered industry; and
(iii)2 persons do not represent an organisation of employers or employees for a covered industry but, in the Minister's opinion, have the necessary skills, qualifications and experience to be members of the Governing Board; and
(b)the registrar.
Note
The registrar is a non-voting member—see section 43(3).".
(2)Section 37(3)(a) of the Long Service Benefits Portability Act 2018 is repealed.
47New section 37A inserted
After section 37 of the Long Service Benefits Portability Act 2018 insert—
"37A Nominations for appointment of members to the Board
(1)For the purposes of appointing persons to the Board to satisfy the requirements set out in section 37(2)(a)(i), the Minister must call for nominations of persons by organisations of employers for a covered industry.
(2)For the purposes of appointing persons to the Board to satisfy the requirements set out in section 37(2)(a)(ii), the Minister must call for nominations of persons by organisations of employees for a covered industry.
(3)An organisation referred to in subsection (1) or (2) may nominate any number of persons for appointment to the Board.
(4)A nomination referred to in this section must be given to the Minister—
(a)in the manner specified by the Minister; and
(b)on or before the date specified by the Minister.".
48Disclosure of information to other entities and authorities
(1)After section 51(1) of the Long Service Benefits Portability Act 2018 insert—
"(1A)The Authority may disclose relevant information to a prescribed non-government entity for the performance of a function of that entity.
(1B)At the request of the trustee, the Authority may disclose relevant information to the trustee for the performance of the trustee's functions.".
(2)In section 51(3) of the Long Service Benefits Portability Act 2018 insert the following definition—
"trustee has the same meaning as in the Construction Industry Long Service Leave Act 1997;".
49Criminal liability of officers of bodies corporate—accessorial liability
In section 71(6) of the Long Service Benefits Portability Act 2018, for "section 323 or 324" substitute "Subdivision (1) of Division 1 of Part II".
50New section 80 inserted
After section 79 of the Long Service Benefits Portability Act 2018 insert—
"80 Transitional provision—Industrial Relations Legislation Amendment Act 2021
The amendments made by section 46 of the Industrial Relations Legislation Amendment Act 2021 apply to an appointment to the Board made after the commencement of that section, including the reappointment of an existing member.".
51Who is an employer?
For clause 3(2)(c) of Schedule 1 to the Long Service Benefits Portability Act 2018 substitute—
"(c)an entity that has a current governing body appointed under an Act of the Commonwealth or the State by the Governor-General, the Governor in Council, or a Minister;".
52Who is an employee?
For clause 4(2)(e) of Schedule 1 to the Long Service Benefits Portability Act 2018 substitute—
"(e)an individual who is prescribed to be an excluded employee for the community services sector;
(f)an individual who is a member of a class prescribed to be an excluded class of employees for the community services sector.".
53Crediting service
For the example at the foot of clause 6(1) in Schedule 1 to the Long Service Benefits Portability Act 2018 substitute—
"Example
A worker (including a casual worker) who is absent from work for a period described in clause 14 is entitled to be credited with service for that period. A worker who is employed on a casual basis may also be entitled to be credited with service if the employer and the worker have agreed to the period being credited as days of service of the worker: see clause 14(1)(f) of Schedule 1.".
54No double-dipping
(1)In clause 15(1) of Schedule 1 to the Long Service Benefits Portability Act 2018 after "fair work instrument" insert ", the Long Service Leave Act 2018 or a contract of employment".
(2)In clause 15(2) of Schedule 1 to the Long Service Benefits Portability Act 2018 after "fair work instrument" (wherever occurring) insert ", the Long Service Leave Act 2018 or a contract of employment".
55Clause 16 of Schedule 1 repealed
Clause 16 of Schedule 1 to the Long Service Benefits Portability Act 2018 is repealed.
56Who is an employer?
In clause 3(3)(c) of Schedule 2 of the Long Service Benefits Portability Act 2018 substitute—
"(c)an entity that has a current governing body appointed under an Act of the Commonwealth or the State by the Governor-General, the Governor in Council, or a Minister;".
57Who is an employee?
(1)In clause 4(2)(a) of Schedule 2 to the Long Service Benefits Portability Act 2018 before "the individual's" insert "subject to subclause (2A),".
(2)For clause 4(2)(b) of Schedule 2 to the Long Service Benefits Portability Act 2018 substitute—
"(b)the individual is prescribed to be an excluded employee for the contract cleaning industry; or
(c)the individual is a member of a class prescribed to be an excluded class of employees for the contract cleaning industry.".
(3)After clause 4(2) of Schedule 2 to the Long Service Benefits Portability Act 2018 insert—
"(2A)An individual referred to in subclause (2)(a) is an employee for the contract cleaning industry if—
(a)the individual is employed in accordance with subclause (1); and
(b)the registrar is satisfied that long service leave charges under the Construction Industry Long Service Leave Act 1997—
(i)are no longer being paid in respect of the individual; or
(ii)are being paid by a person other than a person recorded as an employer of the individual under section 9(b) of this Act.".
58Who is a contract worker?
(1)In clause 5(2)(a) of Schedule 2 to the Long Service Benefits Portability Act 2018, before "the individual's" insert "subject to subclause (2A),".
(2)After clause 5(2) of Schedule 2 to the Long Service Benefits Portability Act 2018 insert—
"(2A)An individual referred to in subclause (2)(a) is a contract worker for the contract cleaning industry if—
(a)the individual performs work in accordance with subclause (1); and
(b)the registrar is satisfied that long service leave charges under the Construction Industry Long Service Leave Act 1997 are no longer being paid in respect of the individual.".
59Crediting service
For the example at the foot of clause 7(1) in Schedule 2 to the Long Service Benefits Portability Act 2018 substitute—
"Example
A worker (including a casual worker) who is absent from work for a period described in clause 21 is entitled to be credited with service for that period. A worker who is employed on a casual basis may also be entitled to be credited with service if the employer and the worker have agreed to the period being credited as days of service of the worker: see clause 21(1)(f) of Schedule 2.".
60What is the security industry?
In clause 1(1)(a) of Schedule 3 to the Long Service Benefits Portability Act 2018 after "licensed" insert "or registered".
61Who is an employer?
In clause 3(3)(c) of Schedule 3 to the Long Service Benefits Portability Act 2018 substitute—
"(c)an entity that has a current governing body appointed under an Act of the Commonwealth or the State by the Governor-General, the Governor in Council, or a Minister;".
62Who is an employee?
(1)In clause 4(2)(a) of Schedule 2 to the Long Service Benefits Portability Act 2018, before "the individual's" insert "subject to subclause (2A),".
(2)For clause 4(2)(b) of Schedule 2 of the Long Service Benefits Portability Act 2018 substitute—
"(b)the individual is prescribed to be an excluded employee for the security industry; or
(c)the individual is a member of a class prescribed to be an excluded class of employees for the security industry.".
(3)After clause 4(2) of Schedule 3 to the Long Service Benefits Portability Act 2018 insert—
"(2A)An individual referred to in subclause (2)(a) is an employee for the security industry if—
(a)the individual is employed in accordance with subclause (1); and
(b)the registrar is satisfied that long service leave charges under the Construction Industry Long Service Leave Act 1997—
(i)are no longer being paid in respect of the individual; or
(ii)are being paid by a person other than a person recorded as an employer of the individual under section 9(b) of this Act.".
63Who is a contract worker?
(1)In clause 5(2)(a) of Schedule 3 to the Long Service Benefits Portability Act 2018, before "the individual's" insert "subject to subclause (2A),".
(2)After clause 5(2) of Schedule 3 to the Long Service Benefits Portability Act 2018 insert—
"(2A)An individual referred to in subclause (2)(a) is a contract worker for the security industry if—
(a)the individual performs work in accordance with subclause (1); and
(b)the registrar is satisfied that long service leave charges under the Construction Industry Long Service Leave Act 1997 are no longer being paid in respect of the individual.".
64Crediting service
For the example at the foot of clause 7(1) in Schedule 3 to the Long Service Benefits Portability Act 2018 substitute—
"Example
A worker (including a casual worker) who is absent from work for a period described in clause 21 is entitled to be credited with service for that period. A worker who is employed on a casual basis may also be entitled to be credited with service if the employer and the worker have agreed to the period being credited as days of service of the worker: see clause 21(1)(f) of Schedule 3.".
Part 8—Amendment of Long Service Leave Act 2018
Division 1—Wage Inspectorate Victoria amendments
65Appointment of authorised officers
(1)In section 29(1) of the Long Service Leave Act 2018, for "Secretary" substitute "Wage Inspectorate Victoria".
(2)In section 29(2) of the Long Service Leave Act 2018, for "Secretary's directions" substitute "directions of the Wage Inspectorate Victoria".
66Identity cards
In section 30(1) of the Long Service Leave Act 2018, for "Secretary" substitute "Wage Inspectorate Victoria".
67Confidentiality
In section 33(2)(d) of the Long Service Leave Act 2018, for "Secretary" substitute "Wage Inspectorate Victoria".
68Offences concerning long service leave records
Section 37(1) of the Long Service Leave Act 2018 is repealed.
69Who can prosecute under this Act?
For section 40(1) of the Long Service Leave Act 2018 substitute—
"(1)A prosecution for an offence against this Act may only be brought by—
(a)the Wage Inspectorate Victoria; or
(b)a person employed under Part 3 of the Public Administration Act 2004 who is authorised by the Wage Inspectorate Victoria to bring a prosecution; or
(c)a prescribed person.".
70Judicial notice of signatures
(1)In the heading to section 41 of the Long Service Leave Act 2018 omit "of signatures".
(2)In section 41 of the Long Service Leave Act 2018, after "the Secretary" insert ", the Commissioner of the Wage Inspectorate Victoria".
(3)At the end of section 41 of the Long Service Leave Act 2018 insert—
"(2)All courts must take judicial notice of the official seal of the Wage Inspectorate Victoria affixed to a document and, until the contrary is proved, must presume that it was duly affixed.".
71Long service leave records
Section 51 of the Long Service Leave Act 2018 is repealed.
72New Division 1 of Part 8 inserted
Before section 55 of the Long Service Leave Act 2018 insert the following heading—
"Division 1—Long Service Leave Act 2018".
73New Division 2 of Part 8 inserted
After section 57 of the Long Service Leave Act 2018 insert—
"Division 2—Industrial Relations Legislation Amendment Act 2021
58Transitional provision—Industrial Relations Legislation Amendment Act 2021
(1)A person who was an authorised officer immediately before the commencement of section 65 of the amending Act remains an authorised officer on and after that commencement as if the person had been appointed by the Wage Inspectorate Victoria under section 29 as amended by the amending Act.
(2)An identity card issued to an authorised officer under section 30(1) that was in force immediately before the commencement of section 66 of the amending Act remains in force on and after that commencement as if it had been issued by the Wage Inspectorate Victoria under section 30(1) as amended by the amending Act.
(3)A written authority given by the Secretary under section 33(2)(d) that was in force immediately before the commencement of section 67 of the amending Act remains in force on and after that commencement as if it had been given by the Wage Inspectorate Victoria under section 33(2)(d) as amended by the amending Act.
(4)An authorisation given by the Secretary under section 40(1) that was in force immediately before the commencement of section 69 of the amending Act remains in force on and after that commencement as if it had been given by the Wage Inspectorate Victoria under section 40(1) as amended by the amending Act.
(5)In this section—
amending Act means the Industrial Relations Legislation Amendment Act 2021.".
Division 2—Other amendments
74Definitions
In section 3(1) of the Long Service Leave Act 2018, in the definition of Secretary, for "Department of Economic Development, Jobs, Transport and Resources" substitute "Department of Premier and Cabinet".
75What happens if employment ends before leave is taken?
For section 9(1) and (2) of the Long Service Leave Act 2018 substitute—
"(1)If an employee's employment ends (other than because of the employee's death) before the employee has taken all the long service leave to which the employee is entitled—
(a)the employee is taken to have started long service leave on the day on which the employment ends; and
(b)the full amount of the employee's long service leave entitlement, calculated as at the day on which the employment ends, is due and payable to the employee on that day.
(2)The employer of an employee referred to in subsection (1) must pay the employee the full amount of the employee's long service leave entitlement.
Penalty:In the case of a natural person, 12 penalty units for each day during which the offence continues;
In the case of a body corporate, 60 penalty units for each day during which the offence continues.
Note
Section 43 applies to an offence against this subsection.
(3)The obligation imposed under subsection (2) to pay the employee's long service leave entitlement continues from the day on which the entitlement accrues under subsection (1)(b) until the employer has paid the full amount of the entitlement to the employee.".
76Contracting out prohibited
(1)In section 23(1) of the Long Service Leave Act 2018—
(a)after "an employment agreement" insert "or a relevant deed";
(b)after "the employment agreement" insert "or relevant deed".
(2)In section 23(2) of the Long Service Leave Act 2018—
(a)after "an employment agreement" insert "or a relevant deed";
(b)after "the agreement" insert "or the deed".
(3)After section 23(2) of the Long Service Leave Act 2018 insert—
"(3)In this section—
employee includes a former employee;
employer includes a former employer;
relevant deed means a deed or agreement between an employer and an employee, however that deed or agreement is named, that is executed at any time before, during or after the employment of the employee.
Note
A deed of settlement between a former employer and a former employee is an example of a relevant deed.".
77Criminal liability of officers of bodies corporate—accessorial liability
In section 43(6) of the Long Service Leave Act 2018, for "section 323 or 324" substitute "Subdivision (1) of Division 1 of Part II".
Part 9—Amendment of Owner Drivers and Forestry Contractors Act 2005
Division 1—Wage Inspectorate Victoria amendments
78Definitions
In section 3 of the Owner Drivers and Forestry Contractors Act 2005—
(a)insert the following definition—
"Wage Inspectorate Victoria means the Wage Inspectorate Victoria established under section 19 of the Wage Theft Act 2020.";
(b)in the definition of vehicle, in paragraph (b), for "bicycle." substitute "bicycle;".
79Contents and availability of information booklet
In section 13(2) and (3) of the Owner Drivers and Forestry Contractors Act 2005, for "Secretary" (wherever occurring) substitute "Wage Inspectorate Victoria".
80Publication of schedules
In section 15(2) and (3) of the Owner Drivers and Forestry Contractors Act 2005, for "Secretary" (wherever occurring) substitute "Wage Inspectorate Victoria".
81Appointment of authorised officer
In section 60A of the Owner Drivers and Forestry Contractors Act 2005, for "Secretary" substitute "Wage Inspectorate Victoria".
82Identity cards
In section 60B(1) and (3) of the Owner Drivers and Forestry Contractors Act 2005, for "Secretary" substitute "Wage Inspectorate Victoria".
83Authorised officers subject to directions
(1)In the heading to section 60C of the Owner Drivers and Forestry Contractors Act 2005, for "Secretary's" substitute "Wage Inspectorate Victoria's".
(2)In section 60C(1) of the Owner Drivers and Forestry Contractors Act 2005, for "Secretary's" substitute "Wage Inspectorate Victoria's".
84Who can prosecute under the Act?
In section 60K(1)(a) and (b), (2)(c) and (5)(a) and (c) of the Owner Drivers and Forestry Contractors Act 2005, for "Secretary" substitute "Wage Inspectorate Victoria".
85Judicial notice of signatures
(1)In the heading to section 60L of the Owner Drivers and Forestry Contractors Act 2005 omit "of signatures".
(2)In section 60L(a) of the Owner Drivers and Forestry Contractors Act 2005, after "Secretary" insert ", the Commissioner of the Wage Inspectorate Victoria".
(3)At the end of section 60L of the Owner Drivers and Forestry Contractors Act 2005 insert—
"(2)All courts must take judicial notice of the official seal of the Wage Inspectorate Victoria affixed to a document and, until the contrary is proved, must presume that it was duly affixed.".
86New section 70 inserted
After section 69 of the Owner Drivers and Forestry Contractors Act 2005 insert—
"70 Transitional provisions—Industrial Relations Legislation Amendment Act 2021
(1)A person who was an authorised officer immediately before the commencement of section 81 of the amending Act remains an authorised officer on and after that commencement as if the person had been appointed by the Wage Inspectorate Victoria under section 60A as amended by the amending Act.
(2)An identity card issued to an authorised officer under section 60B that was in force immediately before the commencement of section 82 of the amending Act remains in force on and after that commencement as if it had been issued by the Wage Inspectorate Victoria under section 60B as amended by the amending Act.
(3)Any directions in force under section 60C(1) immediately before the commencement of section 83 of the amending Act remain in force on and after that commencement as if they were directions issued by the Wage Inspectorate Victoria under section 60C(1) as amended by the amending Act.
(4)An authorisation by the Secretary that was in force under section 60K(1)(b) immediately before the commencement of section 84 of the amending Act remains in force on and after that commencement as if it had been given by the Wage Inspectorate Victoria under section 60K(1)(b) as amended by the amending Act.
(5)In this section—
amending Act means the Industrial Relations Legislation Amendment Act 2021.".
Division 2—Other amendments
87Information booklet not required for short term engagements
(1)For section 11(2) of the Owner Drivers and Forestry Contractors Act 2005 substitute—
"(2)If a contractor is engaged by the same hirer or through the same freight broker for a total of at least 30 days in any 3 month period, the hirer or freight broker must give the contractor an information booklet that complies with section 13(1) on or before the 30th day on which the contractor is engaged during that period.
Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.".
(2)At the foot of section 11 of the Owner Drivers and Forestry Contractors Act 2005 insert—
"Notes
1 See section 26A for the manner of giving an information booklet to a contractor.
2 Section 60P applies to an offence against subsection (2).
3 A failure to comply with this section may also result in the Tribunal making an order under section 45 regarding payment to the contractor.".
88Provision of applicable schedule to contractor before engagement
(1)For section 16(4) of the Owner Drivers and Forestry Contractors Act 2005 substitute—
"(4)If a contractor is engaged by the same hirer or through the same freight broker for a total of at least 30 days in any 3 month period, the hirer or freight broker must give the contractor the most recently published applicable schedule on or before the 30th day on which the contractor is engaged during that period.
Penalty:25 penalty units in the case of a body corporate;
5 penalty units in any other case.".
(2)In note 2 at the foot of section 16 of the Owner Drivers and Forestry Contractors Act 2005, for "or (2)" substitute ", (2) or (4)".
89Membership of Forestry Industry Council
In section 59(1)(b) of the Owner Drivers and Forestry Contractors Act 2005, for "Transport" substitute "Jobs, Precincts and Regions".
90Criminal liability of officers of bodies corporate—accessorial liability
In section 60P(2) of the Owner Drivers and Forestry Contractors Act 2005—
(a)after paragraph (b) insert—
"(ba)section 11(2);";
(b)after paragraph (g) insert—
"(ga)section 16(4);".
Part 10—Repeal of this Act
91Repeal of this Act
This Act is repealed on 1 January 2023.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 18 February 2021
Legislative Council: 18 March 2021
The long title for the Bill for this Act was "A Bill for an Act to amend the Child Employment Act 2003, the Construction Industry Long Service Leave Act 1997, the Equal Opportunity Act 2010, the Inquiries Act 2014, the Labour Hire Licensing Act 2018, the Long Service Benefits Portability Act 2018, the Long Service Leave Act 2018 and the Owner Drivers and Forestry Contractors Act 2005 and for other purposes."
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