EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 23

 

(Issued by the authority of the Minister for Employment and Workplace Relations)

 

Independent Contractors Act 2006

 

Independent Contractors Regulations 2007

 

 

The Independent Contractors Act 2006 (the Act) protects the freedom of independent contractors to enter into contracting arrangements and recognises that these arrangements should be regulated primarily by commercial, and not workplace relations, law.

 

Section 43 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out, or giving effect to, the Act.

 

Subsection 7(1) of the Act excludes State and Territory laws that require independent contractors to be treated as employees, or requires them to be afforded employee-like entitlements. However, State and Territory laws that would otherwise be excluded can be saved by regulations made under paragraph 7(2)(c). Regulation 4 specifies existing State and Territory laws for the purposes of paragraph 7(2)(c). The regulation clarifies the operation of section 7 of the Act.

 

The Act establishes a new national unfair contracts jurisdiction as far as is constitutionally possible. Sections 13 and 14 of the Act allow regulations to be made to limit the type of circumstances in which unfair contracts proceedings can be brought. Regulation 5 sets a time limit within which a review application of a services contract may be brought. Regulation 6 prescribes sections of the Commonwealth, State and Territory laws for the purposes of section 14 of the Act. The effect of the regulation is that a person may not bring an unfair contracts application under the Act if the person has already brought proceedings under one of the laws prescribed in the regulation.

 

Details of the Regulations are in the Attachment.

 

The Regulations commence on 1 March 2007.

 

Details of the Independent Contractors Regulations 2007

 

Regulation 1 - Name of the Regulations

 

This regulation provides that the title of the Regulations is the Independent Contractors Regulations 2007.

 

Regulation 2 - Commencement

 

This regulation provides that these Regulations will commence on

1 March 2007.

 

Regulation 3 - Interpretation

 

This regulation defines ‘Act’ as meaning the ‘Independent Contractors Act 2006’.

 

Regulation 4 – Saving of various State and Territory laws

 

Regulation 4 specifies laws that are not excluded under subsection 7(1) of the Independent Contractors Act 2006 (the Act) to the extent they are specified.

 

Subsection 7(1) of the Act excludes the operation of State and Territory laws to the extent that those laws affect, or would affect, the rights, entitlements, obligations or liabilities of a person who is a party to services contract (as defined in section 5). The Act excludes State and Territory laws that:

·               deem common law independent contractors to be employees in respect of a workplace relations matter (as defined in section 8);

·               provide employment-like rights to independent contractors in respect of a workplace relations matter; and

·               expressly allow a court, commission or tribunal to rewrite or render unenforceable the terms of a contract with an independent contractor on an unfairness ground.

 

Paragraph 7(2)(c) of the Act provides that subsection 7(1) does not apply to a law of a State or Territory that is specified in regulations made for the purposes of the paragraph to the extent that the law is so specified.

 

Regulation 4 specifies that the following State and Territory laws are not excluded by the Act:

·               Building and Construction Industry Security of Payment Act 1999 (NSW);

·               parts of the Health Services Act 1997 (NSW);

·               Building and Construction Industry Security of Payment Act 2002 (Vic);

·               Building and Construction Industry Payments Act 2004 (Qld);

·               Queensland Building Services Authority Act 1991 (Qld);

·               Construction Contracts Act 2004 (WA); and

·               Construction Contracts (Security of Payments) Act (NT).

 

The effect of the regulation is to provide that existing building and construction industry security of payment legislation in New South Wales, Victoria, Queensland, Western Australia and the Northern Territory is not excluded. This legislation is designed to ensure the prompt and regular payment of building workers. These laws are saved in their entirety.

 

The regulation also prescribes Parts 1, 3 and 4 of Chapter 8 and the Dictionary of the New South Wales Health Services Act 1997. These parts of the Health Services Act 1997 require visiting medical officers to report to the chief executive of the public health organisation they work in, if:

·               they are charged or convicted of a serious sex or violence offence (which is defined in the Dictionary to the Act); or

·               there has been any finding against the visiting practitioner of unsatisfactory professional conduct or professional misconduct.

 

The preserved provisions of the Health Services Act 1997 also allow the termination of appointments of visiting medical officers if they have been convicted of serious sex or violence offences and machinery provisions for appeals concerning appointment decisions about visiting practitioners.

 

The regulation ensures that existing security of payment laws and parts of the Health Services Act 1997 are exempted from the exclusion provisions in subsection 7(1) of the Independent Contractors Act 2006.

 

Regulation 5 – Time limit on applications for review of services contracts – prescribed circumstances (time limit for applications)

 

Regulation 5 sets a time limit in which an unfair contract application must be brought by an applicant under section 12 of the Act. An unfair contract application can be made either in the Federal Court or the Federal Magistrates Court.

 

The regulation is made under section 13 of the Act which allows regulations to be made to prescribe circumstances in which an application cannot be made under subsection 12(1).

 

Regulation 5 provides that a person can only make an application for review of a services contract within 12 months after the date on which the services contract ends. However, this time period would not apply if the person can satisfy a court that there are exceptional circumstances that justify the application being made outside this time.

 

In this regulation, the reference to the end of the services contract includes a contract that has ended because it has been unilaterally terminated as well as a contract where the contract period has expired.

 

Regulation 6 – Limitation on applications for review of services contracts – other proceedings in progress

 

Regulation 6 prevents a person making an unfair contracts application under
section 12 of the Act where they have sought a similar remedy under legislation prescribed in this regulation.

 

Section 14 of the Act provides that an unfair contracts application cannot be made if other review proceedings have been brought in respect of the contract, unless those other proceedings have been discontinued or failed for want of jurisdiction.

This regulation is made under paragraph 14(3)(b) of the Act which enables the making of regulations to prescribe Commonwealth, State or Territory laws as ‘other review proceedings’.

 

Regulation 6 prescribes for the purposes of ‘other review proceedings’ a range of legislation that allows a party to seek a remedy for unconscionable conduct. The effect of the regulation is that a person cannot make an application for review of a services contract under the unfair contracts jurisdiction if they have brought a review application under the relevant sections of the prescribed Commonwealth, State or Territory laws. This regulation prevents a person seeking multiple unfair contract-like remedies in respect of a services contract.

 

The following sections of Commonwealth, State and Territory laws are prescribed:

 

·               Sections 51AA, 51AB and 51AC of the Trade Practices Act 1974 (Cth).

·               Section 43 of the Fair Trading Act 1987 (NSW).

·               Sections 7, 8, 8A and 8B of the Fair Trading Act 1999 (Vic)

·               Section 39 of the Fair Trading Act 1989 (Qld).

·               Section 11 of the Fair Trading Act 1987 (WA).

·               Section 57 of the Fair Trading Act 1987 (SA).

·               Sections 15 and 15A of the Fair Trading Act 1990 (Tas).

·               Section 13 of the Fair Trading Act 1992 (ACT).

·               Section 43 of the Consumer Affairs and Fair Trading Act (NT).