Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 789CA

Outworker not paid for TCF work in certain circumstances

  (1)   This Division applies if:

  (a)   a TCF outworker performs TCF work for a person (the responsible person ):

  (i)   as an employee of the responsible person; or

  (ii)   under a contract for the provision of services to the responsible person; and

  (b)   the responsible person does not pay an amount (the unpaid amount ) that is payable, in relation to the TCF work, by the responsible person:

  (i)   to the outworker; or

  (ii)   to another person, for the benefit of the outworker;

    on or before the day when the amount is due for payment; and

  (c)   the unpaid amount is payable under:

  (i)   a contract; or

  (ii)   this Act, or an instrument made under or in accordance with this Act; or

  (iii)   another law of the Commonwealth; or

  (iv)   a transitional instrument as continued in existence by Schedule   3 to the Transitional Act; or

  (v)   a State or Territory industrial law, or a State industrial instrument.

Note:   For the purpose of this Division, the effect of Division   2 must be taken into account in determining whether a TCF outworker performs work as a national system employee of a national system employer.

  (2)   Without limiting paragraph   (1)(b), the unpaid amount may (subject to paragraph   (1)(c)) be an amount of any of the following kinds that relates to (or is attributable to) the TCF work:

  (a)   an amount payable by way of remuneration or commission;

  (b)   an amount payable in respect of leave;

  (c)   an amount payable by way of contributions to a superannuation fund;

  (d)   an amount payable by way of reimbursement for expenses incurred.

Meaning of indirectly responsible entity

  (3)   Subject to subsections   (4) and (5), a person is an indirectly responsible entity in relation to the TCF work if:

  (a)   the person is a Commonwealth outworker entity; and

  (b)   the TCF work was performed indirectly:

  (i)   for the entity; and

  (ii)   if the entity is a constitutional corporation--for the purposes of a business undertaking of the corporation.

Note:   See section   17A for when TCF work is performed indirectly for a person.

Extent of liability of indirectly responsible entity

  (4)   If subsection   (3) is satisfied in relation to a Commonwealth outworker entity and part only of the TCF work:

  (a)   the entity is an indirectly responsible entity in relation to that part of the TCF work; and

  (b)   for the purposes of applying this Division in relation to the entity and that part of the TCF work, the unpaid amount is so much only of the amount referred to in paragraph   (1)(b) as is attributable to that part of the TCF work.

Retailer of goods not an indirectly responsible entity in certain circumstances

  (5)   If:

  (a)   a Commonwealth outworker entity, as a retailer, sells goods produced by the TCF work; and

  (b)   the entity does not have any right to supervise or otherwise control the performance of the work before the goods are delivered to the entity;

the entity is not an indirectly responsible entity in relation to the TCF work.