Commonwealth Consolidated Acts

INDEPENDENT CONTRACTORS ACT 2006 - SECT 35

Services contracts to which this section applies

  (1)   This section applies to a services contract (the relevant contract ) if:

  (a)   the relevant contract:

  (i)   is a pre - reform commencement contract; or

  (ii)   is a continuation contract in relation to a pre - reform commencement contract; and

  (b)   some or all of the contract period of the relevant contract occurs after the reform commencement; and

  (c)   the contractor law test is satisfied in relation to the relevant contract (see subsection   (2)).

  (2)   The contractor law test is satisfied in relation to the relevant contract if one of the following paragraphs applies to the contract that, as between the relevant contract and its related continuation contracts (if any), is the contract (the test contract ) that was entered into both before the reform commencement and closest to the reform commencement:

  (a)   if the contract period of the test contract did not start before the reform commencement--one or more of the State or Territory contractor laws would have applied before the reform commencement in relation to the test contract if its contract period had started when it was entered into;

  (b)   if the contract period of the test contract started before the reform commencement--one or more of the State or Territory contractor laws applied before the reform commencement in relation to the test contract.

  (3)   For the purpose of subsection   (2), a reference to the State or Territory contractor laws, in relation to a time before the reform commencement, is a reference to laws that would have been State or Territory contractor laws if:

  (a)   this Division   had been in force at that time; and

  (b)   the reform commencement had occurred before that time.

Exclusion provisions do not apply

  (4)   Subject to subsection   (5), the exclusion provisions do not apply in relation to the State or Territory contractor laws in relation to so much of the contract period of the relevant contract as occurs after the reform commencement and before the first of the following days (the transition day ):

  (a)   the date of effect of a reform opt - in agreement (if any) that covers the contract;

  (b)   the first day after the end of the period of 3 years that started on the reform commencement.

Note:   If the exclusion provisions do not apply, the State or Territory contractor laws will continue to apply.

  (5)   The regulations may provide that subsection   (4) does not affect the application of the exclusion provisions in relation to a specified State or Territory contractor law, either:

  (a)   generally; or

  (b)   as specified in the regulations.

What if the contract period ends before the transition day?

  (6)   If:

  (a)   the contract period of the relevant contract ends before the transition day; and

  (b)   there is no further contract between the parties that (disregarding subsection   (7)) is a related continuation contract in relation to the relevant contract;

the consequences that result from the contract period ending (including consequences relating to the fact that there is no further contract as mentioned in paragraph   (b)) are as provided by or under the relevant terms of any contract between the parties, the State or Territory contractor laws and any other relevant laws.

Note:   The independent contractor may (for example) have an entitlement under the State or Territory contractor laws to recover an amount on account of accrued entitlements (such as leave), an entitlement to a reinstatement or re - engagement remedy, or an entitlement to a redundancy payment.

  (7)   If:

  (a)   in a situation to which subsection   (6) applies, the independent contractor obtains a remedy that results in his or her reinstatement or re - engagement, with effect from a time before the transition day; and

  (b)   the services contract (the remedy contract ) under which he or she is reinstated or re - engaged would not otherwise be a continuation contract in relation to:

  (i)   if subparagraph   (1)(a)(i) applies--the relevant contract; or

  (ii)   if subparagraph   (1)(a)(ii) applies--the pre - reform commencement contract referred to in that subparagraph;

the remedy contract is taken to be such a continuation contract.

What if the contract period does not end before the transition day?

  (8)   If the contract period of the relevant contract does not end before the transition day, the contract is to be treated, for the purposes of the State or Territory contractor laws, as if, on the transition day, it had been brought to an end by agreement of the parties (rather than by the unilateral act of one party).

Note:   Because of this subsection, the occurrence of the transition day may trigger an entitlement under a State or Territory contractor law to recover an amount on account of accrued entitlements (such as leave). But the occurrence of the transition day should not trigger an entitlement under such a law to a reinstatement or re - engagement remedy, or to a redundancy payment, as such remedies are generally not available for the ending of contracts by agreement.