Workplace Relations Amendment Regulations 2004 (No 2) (Cth)

Workplace Relations Amendment Regulations 2004 (No. 2)1

Statutory Rules 2004 No. 2632

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Workplace Relations Act 1996.

Dated 19 August 2004

P. M. JEFFERY

Governor-General

By His Excellency’s Command

KEVIN ANDREWS

Minister for Employment and Workplace Relations

1Name of Regulations

These Regulations are the Workplace Relations Amendment Regulations 2004 (No. 2).

2Commencement

These Regulations commence on the date of their notification in the Gazette.

3Amendment of Workplace Relations Regulations 1996

Schedule 1 amends the Workplace Relations Regulations 1996.

Schedule 1Amendments

(regulation 3)

[1]After regulation 32A

insert in Part 6A

32ABRecovery of pay by contract outworkers in Victoria in textile, clothing and footwear industry — small claims procedure

1. (1)

   For subsection 547 (1) of the Act, the manner in which a person indicates that he or she wants a small claims procedure to apply to an action that the person starts in a magistrates court is:

   1. (a)

      by:

      1. (i)

         endorsing the papers initiating the action with a statement that the person wants a small claims procedure to apply to the action; or

      2. (ii)

         lodging with the court a paper that identifies the action and states that the person wants a small claims procedure to apply to the action; and

   2. (b)

      by giving a copy of the papers initiating the action, together with a copy of the paper (if any) mentioned in subparagraph (a) (ii), to every other party to the action.

2. (2)

   Subregulation (1) does not apply to an action that a person starts in a magistrates court if rules of court relating to that court prescribe the manner in which the person indicates that he or she wants a small claims procedure to apply to the action.

32ACRecovery of small claims by contract outworkers in Victoria in textile, clothing and footwear industry — maximum amount

For paragraph 547 (2) (a) of the Act, the prescribed amount is $10 000.

[2]Subregulations 131A (1) and (1AA)

omit

Part.

insert

Division.

[3]After regulation 131K

insert

131KAFalse or misleading entry

1. (1)

   A person commits an offence if:

   1. (a)

      the person makes, or makes use of, an entry in any record required to be kept under this Division; and

   2. (b)

      the person does so knowing that the entry is false or misleading.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that the record is required to be kept under this Division.

Note For strict liability, see section 6.1 of the Criminal Code.

[4]Regulation 131R

substitute

131ROffences

1. (1)

   Nothing in this Division makes the Crown in right of the Commonwealth, a State or a Territory liable to prosecution.

2. (2)

   An act or omission that occurs on or before 30 June 1993 is not an offence under this Division.

[5]Regulation 131U

substitute

131TAForm of record

1. (1)

   A record relating to an employee to which this Division applies must be in a condition that enables an inspector to determine whether the employee’s conditions of employment are being complied with.

2. (2)

   The record must be:

   1. (a)

      in a legible form in the English language; or

   2. (b)

      in a form that is readily accessible, and is convertible into a legible form in the English language.

131TBAlteration and correction of records

1. (1)

   Subject to subregulation (2) or (3), an employer must not:

   1. (a)

      alter a record mentioned in regulation 131T; or

   2. (b)

      allow a record mentioned in regulation 131T to be altered.

Penalty: 10 penalty units.

1. (2)

   An employer must correct any error in a record as soon as practicable.

Penalty: 10 penalty units.

1. (3)

   An employer who corrects an error in a record must record the nature of the error with the correction.

Penalty: 10 penalty units.

131TCInspection and copying of records

1. (1)

   An employer must make a copy of a record available, in accordance with subregulations (2) and (3), on request by:

   1. (a)

      the employee, or the former employee, to whom the record relates; or

   2. (b)

      an inspector.

Penalty: 10 penalty units.

1. (2)

   The employer must make the copy available in a legible form in the English language to the person making the request, for inspection and copying.

2. (3)

   The employer must make the copy available:

   1. (a)

      if the record is kept at the premises where the employee works or, in the case of a former employee, where the former employee last worked for the employer — at once at those premises; or

   2. (b)

      in any other case — within 14 days:

      1. (i)

         at those premises; or

      2. (ii)

         at other premises within 25 kilometres of those premises; or

      3. (iii)

         at premises agreed between the employer and the person making the request.

131TDInformation concerning records

1. (1)

   An employer to whom a request is made by a person under subregulation 131TC (1) must tell the person, on request, where records relating to an employee, or a class of employees, are kept.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that subregulation 131TC (1) applies to the request.

Note For strict liability, see section 6.1 of the Criminal Code.

1. (3)

   The person may interview the employer, or a representative of the employer, at any time during ordinary working hours, about a record made or to be made by the employer.

2. (4)

   The employer must give reasonable assistance to the person in the conduct of the interview.

Penalty: 10 penalty units.

131UFalse or misleading entry

1. (1)

   A person commits an offence if:

   1. (a)

      the person makes, or makes use of, an entry in any record required to be kept under this Division; and

   2. (b)

      the person does so knowing that the entry is false or misleading.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that the record is required to be kept under this Division.

Note For strict liability, see section 6.1 of the Criminal Code.

131UAOffences

Nothing in this Division makes the Crown in right of the Commonwealth, a State or a Territory liable to prosecution.

[6]Part 9A, after Division 2

insert

Division 3Employees in Victoria not employed under award, certified agreement, AWA, employment agreement or old IR agreement (Part XV of Act)

131VApplication of Division 3

For section 514 of the Act, this Division applies to the employer of an employee in Victoria who is employed otherwise than under the following:

1. (a)

   an award;

2. (b)

   a certified agreement;

3. (c)

   an AWA;

4. (d)

   an employment agreement;

5. (e)

   an old IR agreement.

131VARecords relating to employees — section 514 of the Act

1. (1)

   For subsection 514 (2) of the Act, the employer of an employee must make a record in relation to the employee in accordance with this Division.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that the record is in accordance with this Division.

Note For strict liability, see section 6.1 of the Criminal Code.

1. (3)

   Subject to regulation 131VN, an employer must keep an entry in a record:

   1. (a)

      in the case of a particular of a kind mentioned in regulation 131VC or paragraph 131VG (1) (e) — for a continuous period of 7 years starting on the earlier of:

      1. (i)

         the date on which entry is changed; or

      2. (ii)

         the date on which employee’s employment with the employer is terminated; or

   2. (b)

      in any other case — for a continuous period of 7 years after the date on which the entry is made.

Penalty: 10 penalty units.

1. (4)

   Strict liability applies in paragraph (3) (a) to the fact that the particular is of a kind mentioned in regulation 131VC or paragraph 131VG (1) (e).

Note For strict liability, see section 6.1 of the Criminal Code.

131VBForm of record

1. (1)

   A record relating to an employee to which this Division applies must be in a condition that enables an inspector to determine whether the employee’s conditions of employment are being complied with.

2. (2)

   The record must be:

   1. (a)

      in a legible form in the English language; or

   2. (b)

      in a form that is readily accessible, and is convertible into a legible form in the English language.

131VCContents of record — general

The record must state the following particulars:

1. (a)

   the employer’s name;

2. (b)

   the employee’s name;

3. (c)

   the employee’s date of birth as provided by the employee;

4. (d)

   the employee’s work classification and declared industry sector (if any);

Note The terms declared industry sector and work classification are defined in section 489 of the Act.

1. (e)

   whether the employee’s employment is:

   1. (i)

      full-time; or

   2. (ii)

      part-time;

2. (f)

   whether the employee’s employment is:

   1. (i)

      permanent; or

   2. (ii)

      temporary; or

   3. (iii)

      casual;

3. (g)

   the date on which the employee’s employment began.

131VDContents of record — overtime

If overtime may be paid to the employee, the record must state:

1. (a)

   the number of hours worked by the employee during each day; and

2. (b)

   when the employee started and ceased work.

131VEContents of record — remuneration

The record must state the rate of remuneration at which the employee is paid, including the gross and net amounts paid, and the deductions made from that remuneration.

131VFContents of record — leave

If the employee is entitled to leave of any kind, the record must include details of:

1. (a)

   the leave taken by the employee; and

2. (b)

   the employee’s entitlement from time to time to that leave; and

3. (c)

   accrual of leave.

131VGContents of record — superannuation contributions

1. (1)

   If the employer makes superannuation contributions for the employee’s benefit, the record must state:

   1. (a)

      the amount of the contributions made; and

   2. (b)

      the period for which the contributions were made; and

   3. (c)

      when the contributions were made; and

   4. (d)

      the name of each fund to which the contributions were made; and

   5. (e)

      the basis on which the employer became liable to make the contributions, including:

      1. (i)

         whether any election was made as to the fund to which contributions are to be made; and

      2. (ii)

         the date of any relevant election; and

      3. (iii)

         the name of the person who made each relevant election.

2. (2)

   If a record states that an election was made, the record must include a copy, or details of the election.

3. (3)

   In paragraphs (1) (a), (b) and (c):

contributions does not include contributions to a defined benefit superannuation fund within the meaning of the Occupational Superannuation Standards Regulations.

131VHContents of record — termination of employment

If the employee’s employment is terminated, the record must state:

1. (a)

   whether the employment was terminated:

   1. (i)

      by consent; or

   2. (ii)

      by notice; or

   3. (iii)

      summarily; or

   4. (iv)

      in another manner, specifying the manner; and

2. (b)

   the name of the person who acted to terminate the employment.

131VJAlteration and correction of records

1. (1)

   Subject to subregulation (2) or (3), an employer must not alter a record, or allow a record to be altered.

Penalty: 10 penalty units.

1. (2)

   An employer must correct any error in a record as soon as the employer becomes aware of the error.

Penalty: 10 penalty units.

1. (3)

   An employer who corrects an error in a record must record the nature of the error with the correction.

Penalty: 10 penalty units.

131VKFalse or misleading entry

1. (1)

   A person commits an offence if:

   1. (a)

      the person makes, or makes use of, an entry in a record required to be kept under this Division; and

   2. (b)

      the person does so knowing that the entry is false or misleading.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that the record is required to be kept under this Division.

Note For strict liability, see section 6.1 of the Criminal Code.

131VLInspection and copying of records

1. (1)

   An employer must make a copy of a record available, in accordance with subregulations (2) and (3), on request by:

   1. (a)

      the employee, or the former employee, to whom the record relates; or

   2. (b)

      an inspector.

Penalty: 10 penalty units.

Note The powers that an inspector may exercise under this regulation are set out in section 86 of the Act.

1. (2)

   The employer must make the copy available in a legible form in the English language to the person making the request, for inspection and copying.

2. (3)

   The employer must make the copy available:

   1. (a)

      if the record is kept at the premises where the employee works or, in the case of a former employee, where the former employee last worked for the employer — at once at those premises; or

   2. (b)

      in any other case — within 14 days:

      1. (i)

         at those premises; or

      2. (ii)

         at other premises within 25 kilometres of those premises; or

      3. (iii)

         at premises agreed between the employer and the person making the request.

131VMInformation concerning records

1. (1)

   An employer to whom a request is made by a person under subregulation 131VL (1) must tell the person, on request, where records relating to an employee, or a class of employees, are kept.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that subregulation 131VL (1) applies to the request.

Note For strict liability, see section 6.1 of the Criminal Code.

1. (3)

   The person may interview the employer, or a representative of the employer, at any time during ordinary working hours, about a record made or to be made by the employer.

2. (4)

   The employer must give reasonable assistance to the person in the conduct of the interview.

Penalty: 10 penalty units.

131VNTransfer and assignment of business

1. (1)

   This regulation applies if an employer (the former employer) transfers or assigns the business or a part of the business in which the employee is employed and the employee becomes an employee of the transferee or assignee (the new employer).

2. (2)

   Subject to subregulation (4), the former employer must transfer to the new employer all records concerning the employee that, at the date of transfer or assignment, the former employer is required to keep under regulation 131VA.

Penalty: 10 penalty units.

1. (3)

   Strict liability applies in subregulation (2) to the fact that the records are required to be kept under regulation 131VA.

Note For strict liability, see section 6.1 of the Criminal Code.

1. (4)

   If the former employer is a Commonwealth authority, the former employer must transfer to the new employer a copy of all records concerning the employee that, at the date of transfer or assignment, the former employer is required to keep under regulation 131VA.

2. (5)

   The new employer who receives transferred records must keep the transferred records as if they had been made by the new employer at the time they were made by the former employer.

Penalty: 10 penalty units.

1. (6)

   The new employer is not required to make records of anything occurring in the course of an employee’s employment with the former employer.

131VOOffences

1. (1)

   Nothing in this Division makes the Crown in right of the Commonwealth, a State or a Territory liable to prosecution.

2. (2)

   An act or omission that occurs on or before 31 December 2004 is not an offence under this Division.

   Division 4Contract outworkers in Victoria in the textile, clothing and footwear industry

131WApplication of Division 4

For section 549 of the Act, this Division applies to a person (a record keeper) who:

1. (a)

   is a party to a contract for services referred to in subsection 541 (1) of the Act; and

2. (b)

   is obliged to pay for work to which that subsection applies (contract work).

131WAOutworker records relating to contract work

1. (1)

   A record keeper must make an outworker record in relation to contract work in accordance with this Division.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that the outworker record is in accordance with this Division.

Note For strict liability, see section 6.1 of the Criminal Code.

1. (3)

   Subject to regulation 131WJ, a record keeper must keep an entry in a record for a continuous period of 7 years after the latest of the following dates:

   1. (a)

      the date on which the entry is made;

   2. (b)

      the date on which the entry is changed;

   3. (c)

      the date on which payment is made to the outworker for the contract work.

Penalty: 10 penalty units.

131WBForm of outworker record

1. (1)

   An outworker record relating to contract work to which this Division applies must be in a condition that enables an inspector to determine whether payment to the outworker complies with the Act.

2. (2)

   The outworker record must be:

   1. (a)

      in a legible form in the English language; or

   2. (b)

      in a form that is readily accessible, and is convertible into a legible form in the English language.

131WCContents of outworker record — general

An outworker record must contain the following particulars:

1. (a)

   the name of the record keeper;

2. (b)

   the name of the contract outworker;

3. (c)

   if any of the contract work is performed by an individual who is not party to the contract — the name of that individual;

4. (d)

   details of the contract work to be performed;

5. (e)

   details of the contract work completed, including the date of completion;

6. (f)

   the date on which the contract started.

131WDContents of outworker record — remuneration

The outworker record relating to the contract work must state:

1. (a)

   the contract price for the work; and

2. (b)

   the rate or basis at which the price for the work is determined; and

3. (c)

   if the record keeper knows the hours worked in relation to the work — the hours worked; and

4. (d)

   payments made for the work.

131WEAlteration and correction of outworker records

1. (1)

   Subject to subregulation (2) or (3), a record keeper must not alter an outworker record, or allow an outworker record to be altered.

Penalty: 10 penalty units.

1. (2)

   A record keeper must correct any error in an outworker record as soon as the record keeper becomes aware of the error.

Penalty: 10 penalty units.

1. (3)

   A record keeper who corrects an error in an outworker record must record the nature of the error with the correction.

Penalty: 10 penalty units.

131WFFalse or misleading entry

1. (1)

   A person commits an offence if:

   1. (a)

      the person makes, or makes use of, an entry in any outworker record required to be kept under this Division; and

   2. (b)

      the person does so knowing that the entry is false or misleading.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that the outworker record is required to be kept under this Division.

Note For strict liability, see section 6.1 of the Criminal Code.

131WGInspection and copying of outworker records

1. (1)

   A record keeper must make a copy of an outworker record available, in accordance with subregulations (2) and (3), on request by:

   1. (a)

      the contract outworker to whom the outworker record relates; or

   2. (b)

      an inspector.

Penalty: 10 penalty units.

Note The powers that an inspector may exercise under this regulation are set out in section 542 of the Act.

1. (2)

   The record keeper must make the copy available in a legible form in the English language to the person making the request, for inspection and copying.

2. (3)

   The record keeper must make the copy available:

   1. (a)

      if the outworker record is kept at the premises occupied by the record keeper at the time the contract work was done — at once at those premises; or

   2. (b)

      in any other case — within 14 days:

      1. (i)

         at those premises; or

      2. (ii)

         at other premises within 25 kilometres of those premises; or

      3. (iii)

         at premises agreed between the record keeper and the person making the request.

131WHInformation concerning outworker records

1. (1)

   A record keeper to whom a request is made by a person under subregulation 131WG (1) must tell the person, on request, where outworker records relating to the contract work are kept.

Penalty: 10 penalty units.

1. (2)

   Strict liability applies in subregulation (1) to the fact that subregulation 131WG (1) applies to the request.

Note For strict liability, see section 6.1 of the Criminal Code.

1. (3)

   The person may interview the record keeper, or a representative of the record keeper, at any time during ordinary working hours, about an outworker record made or to be made by the record keeper.

2. (4)

   The record keeper must give reasonable assistance to the person in the conduct of the interview.

Penalty: 10 penalty units.

131WJTransfer and assignment of business

1. (1)

   This regulation applies if:

   1. (a)

      a record keeper (the former record keeper) transfers or assigns the business or a part of the business for which contract work was done; and

   2. (b)

      after the transfer or assignment, the contract outworker who performed the work performs contract work for the transferee or assignee (the new record keeper).

2. (2)

   Subject to subregulation (3), the former record keeper must transfer to the new record keeper all outworker records concerning the contract outworker mentioned in subregulation (1).

Penalty: 10 penalty units.

1. (3)

   If the former record keeper is a Commonwealth authority, the former record keeper must transfer to the new record keeper a copy of all outworker records concerning the contract outworker mentioned in subregulation (1).

2. (4)

   The new record keeper who receives transferred outworker records must keep the transferred outworker records as if they had been made by the new record keeper at the time they were made by the former record keeper.

Penalty: 10 penalty units.

1. (5)

   The new record keeper is not required to make outworker records of contract work performed for the former record keeper.

131WKOffences

1. (1)

   Nothing in this Division makes the Crown in right of the Commonwealth, a State or a Territory liable to prosecution.

2. (2)

   An act or omission that occurs on or before 31 December 2004 is not an offence under this Division.

Notes

1. These Regulations amend Statutory Rules 1989 No. 12, as amended by 1989 Nos. 107 and 288; 1990 Nos. 328 and 461; 1991 Nos. 9, 11, 73, 137 and 366; 1992 Nos. 81, 139, 158, 232, 274, 339, 351, 357, 435 and 436; 1993 Nos. 22, 23, 41, 61, 128 and 330; 1994 Nos. 68, 79, 185, 244, 287 and 386; 1995 Nos. 376 and 434; 1996 Nos. 80, 168, 269, 307, 328, 329 and 351; 1997 Nos. 48, 56, 101 (regulation 4 was disallowed by the Senate on 26 June 1997), 246, 281, 313, 314 (disallowed by the Senate on 25 March 1998) and 424; 1998 Nos. 187, 338 (disallowed by the Senate on 16 February 1999), 353 (disallowed by the Senate on 16 February 1999) and 354; 1999 Nos. 42, 43, 67, 195, 205, 244, 297, 336 and 337; 2000 Nos. 121 (disallowed by the Senate on 17 August 2000), 258 and 328 (disallowed by the Senate on 27 June 2001); 2001 Nos. 225, 323 and 326; 2002 Nos. 71, 208 and 337; 2003 Nos. 81 and 212; Act No. 104, 2003; Statutory Rules 2003 Nos. 349 and 350; 2004 No. 3.

2. Notified in the Commonwealth of Australia Gazette