Div 3Recovery of unpaid remuneration

Division 3—Recovery of unpaid remuneration 99D—Outworker may initiate a claim against a responsible contractor (1) An outworker may initiate a claim for unpaid remuneration (an unpaid remuneration claim) against a person identified by the outworker as the person who the outworker believes on reasonable grounds to be a responsible contractor in relation to the outworker (the apparent responsible contractor). (2) The unpaid remuneration claim may be for all or any of the remuneration that is payable to the outworker on account of work performed by the outworker that was (or apparently was) initiated or distributed by the apparent responsible contractor (and it does not matter that there may be more than 1 responsible contractor). (3) The unpaid remuneration claim must be made within 6 months after the relevant work is completed by the outworker. (4) The unpaid remuneration claim is to be made by serving a written notice on the apparent responsible contractor that— (a) claims payment of the unpaid remuneration; and (b) sets out the following particulars: (i) the name of the outworker; and (ii) the address at which the outworker may be contacted; and (iii) a description of the work that has been performed; and (iv) the date or dates on which the work was performed; and (v) the amount of unpaid remuneration claimed in respect of the work. (5) The particulars set out in the unpaid remuneration claim must be verified by statutory declaration. (6) A claim under this section may only be made in respect of work performed after the commencement of this section. 99E—Liability of apparent responsible contractor on a claim (1) Except as provided by subsection (4), an apparent responsible contractor served with an unpaid remuneration claim is liable for the amount of unpaid remuneration claimed. (2) An apparent responsible contractor may, within 14 days after being served with an unpaid remuneration claim, refer the claim to another person the apparent responsible contractor knows or has reason to believe is the employer of the outworker under this Act (the designated employer). (3) An apparent responsible contractor refers an unpaid remuneration claim under subsection (2) by— (a) advising the outworker who has made the claim, in writing, of the name and address of the designated employer; and (b) serving a copy of the claim (a referred claim) on the actual employer. (4) The apparent responsible contractor is not liable for the whole or any part of an amount of an unpaid remuneration claim for which the designated employer served with a referred claim accepts liability in accordance with section 99F. 99F—Liability of actual employer to which a claim is referred (1) A designated employer served with a referred claim under section 99E may, within 14 days after being served, accept liability for the whole or any part of an amount of unpaid remuneration claimed by paying it to the outworker concerned. (2) A designated employer who accepts liability under subsection (1) must serve notice in writing on the apparent responsible contractor of that acceptance and of the amount paid. 99G—Recovery of amount of unpaid remuneration (1) An amount payable to an outworker by an apparent responsible contractor that is not paid in accordance with the requirements of this Division may be recovered by the outworker as a monetary claim under section 9. (3) In proceedings brought under this section, an order for the apparent responsible contractor to pay the amount claimed must be made unless the apparent responsible contractor satisfies the South Australian Employment Court that the work was not performed or that the amount of the claim for the work in the unpaid remuneration claim is not the correct amount in respect of the work. 99H—Ability of responsible contractor to claim contribution or to make deduction (1) If an apparent responsible contractor pays to the outworker concerned the whole or any part of the amount of any unpaid remuneration claim under this Division, the apparent responsible contractor may— (a) recover the amount paid from a related employer; or (b) deduct or set-off the amount paid from or against any amount that the apparent responsible contractor owes to a related employer (whether or not in respect of work that has been carried out by the outworker). (2) For the purposes of subsection (1), a related employer in relation to an apparent responsible contractor is— (a) the actual employer of the outworker concerned; or (b) another responsible contractor whose contractual relationship with the outworker concerned on account of the work performed by the outworker is, when all relevant contractual relationships are considered, closer than the contractual relationship between the apparent responsible contractor and the outworker. 99I—Offence provision (a) by intimidation or by any other act or omission, intentionally hinder or prevent a person from making an unpaid remuneration claim under section 99D; or (b) make a statement that the person knows to be false or misleading in a material particular in any referred claim under section 99E or any notice served for the purposes of section 99F; or (c) serve a referred claim on a person under section 99E that the person does not know, or have reasonable grounds to believe, is an actual employer. 99J—Non-derogation Nothing in this Division— (a) limits or excludes any other right of recovery of remuneration of an outworker, or any liability with respect to payment of remuneration to an outworker (whether arising under this Act or any other Act or law or whether arising by virtue of any award or other industrial instrument or by virtue of an agreement or otherwise); or (b) limits or excludes any right of recovery arising under any other law with respect to any amount of money owed by a responsible contractor to another person. Part 4—General principles affecting determination of working conditions 100—Adoption of principles affecting determination of remuneration and working conditions (1) SAET may, on its own initiative, or on the application of— (a) the Minister; or (b) the United Trades and Labor Council; or (c) the South Australian Employers' Chamber of Commerce and Industry Incorporated, make a declaration adopting in whole or in part, and with or without modification, principles, guidelines, conditions, practices or procedures enunciated or laid down in, or attached to, a decision or determination of the Fair Work Commission. (2) However, a declaration may only be made if the terms of the declaration are consistent with the objects of this Act. (3) A declaration under this section may be made on the basis that it is to apply in relation to (and prevail to the extent of any inconsistency with)— (a) awards generally; or (b) awards generally, other than a specified award or awards; or (c) a specified award or awards (and no other awards). (4) In addition, a party to an award that is affected by a declaration under this section may, within 28 days after the declaration is made, apply to SAET to have the award excluded from the declaration (or a part of the declaration), despite the operation of subsection (3). (5) SAET may grant an application under subsection (4) on such conditions as SAET thinks fit. 100A—State Wage Case (1) A Full Bench of SAET must conduct an annual review of— (a) the minimum standard of remuneration under section 69; and (b) minimum wage rates in awards; and (c) minimum work-related allowances and loadings in awards. (2) The review must commence within 3 months of the conclusion of the Annual Wage Review conducted by the Fair Work Commission. (3) Subject to subsection (5), in conducting the review, SAET may make a declaration under section 100(1) adopting the outcomes of the Annual Wage Review without receiving evidence or submissions, or conducting a hearing, if there is no objection from an interested party. (4) If SAET proposes to act in accordance with the above, SAET must— (a) take reasonable steps to ensure that all persons who are likely to have an interest in the review are given a reasonable opportunity to appear and be heard before SAET; and (b) at least 21 days before making the declaration, publish a notice in a manner prescribed by the rules— (i) setting out the terms of the proposed declaration; and (ii) advising that, in the absence of any objection from an interested party, SAET will make the declaration on its own initiative. (5) If there is an objection from an interested party, SAET must conduct the review by considering the matter de novo. (6) In this section— interested party means— (a) the Minister; or (b) an employer or group of employers; or (c) a registered employee association; or (d) the United Trades and Labor Council (trading as SA Unions). 101—State industrial authorities to apply principles (1) In arriving at a determination affecting remuneration or working conditions, a State industrial authority must have due regard to and may apply and give effect to principles, guidelines, conditions, practices or procedures adopted by SAET under this Part. (2) However, principles adopted under this Part are not applicable to enterprise agreements. (3) In this section— State industrial authority means— (b) the Remuneration Tribunal; or (c) the Commissioner for Public Sector Employment; or (d) another person or body declared by regulation to be a State industrial authority. Part 5—Enforcement of obligations arising from employment Division 1—Records to be kept by employers 102—Records to be kept (1) An employer must, subject to subsections (6) and (7), keep for all employees— (a) a record of the names and addresses of the employees; and (b) a record (a time book) in which are entered as far as practicable— (i) each employee's times of beginning and ending work on each day (including a note of time allowed for meals and other breaks); and (ii) the wages paid to each employee and the date of each payment of wages; and (c) a record of annual leave, sick leave, parental leave and long service leave granted to each employee; and (d) a record of the date of birth of employees under 21 years of age; and (e) other records prescribed by regulation. (2) The records must be kept in the English language. (2a) The records may be kept in writing or in electronic form. (2b) The information kept in the time book must be verified as follows: (a) if the time book is kept in writing, it must, if practicable, be verified by signature of the employee on, or as soon as possible after, each pay day and the signature constitutes evidence of the correctness of the entries; (b) if the time book is kept electronically, a printout of the relevant entries must, if practicable, be verified by signature of the employee on, or as soon as possible after, each pay day and the employer must keep the signed printouts as evidence of the correctness of the entries. (3) An employer must retain a record kept under this section for 7 years after the date of the last entry made in it. (4) An employer must— (a) at the reasonable request of an employee or former employee, produce a record relating to the employee or former employee kept under this section and permit the employee or former employee to make copies of, or take extracts from, the record; or (b) at the reasonable request of an inspector, produce a record relating to a specified employee or former employee kept under this section and permit the inspector to make copies of, or take extracts from, the record; or (c) at the reasonable request of an inspector, produce reasonable evidence of the payment of wages and details of how the amounts of the payments were calculated and details of any amounts that remained unpaid and how they are calculated. (5) When a business, or part of a business, is transferred or assigned, the transferor or assignor must transmit to the transferee or assignee all records referred to in this section relating to employees who become employees of the transferee or assignee. (5a) On the transmission of the records, the employer's obligations in relation to the records passes to the transferee or assignee. (6) An award or enterprise agreement may direct that, in relation to some or all of the persons bound by the award or agreement— (a) a time book need not be kept; or (b) specified information need not be included in the time book. (7) The requirement to keep a time book does not apply with respect to any employee who is not paid on an hourly basis, or on a basis under which the employee's remuneration varies according to the time worked. (8) When an employer makes a payment of wages, the employer must provide the employee with a pay slip showing— (a) the name of the employer; and (b) the amount of the payment; and (c) the period of employment to which the payment relates; and (d) if the employee is paid on an hourly basis, or on a basis on which the rate of pay varies according to the time worked— (i) the number of hours worked by the employee during the period to which the payment relates (distinguishing between ordinary time and overtime); and (ii) the rate or rates of pay on which the payment is based; and (e) if the employer has made a contribution to a superannuation fund for the benefit of the employee—the name of the fund to which the contribution was made and the amount of the contribution. 103—Employer to provide copy of award or enterprise agreement (1) An employer who is bound by an award or enterprise agreement must, at the request of an employee bound by the award or enterprise agreement, produce a copy of the award or enterprise agreement as soon as practicable after the request and allow the employee a reasonable opportunity to examine it. (2) If an employee bound by an award or enterprise agreement asks the employer for a copy of the award or agreement, the employer must give the employee a copy of the award or agreement within 14 days after the date of the request. (3) However, an employer is not obliged to comply with a request under subsection (2) if— (a) the employer has previously given the employee a copy of the award or agreement within the preceding 12 months; or (b) SAET has, on the application of the employer, relieved the employer from the obligation to comply with the request. (4) An employer must ensure that a copy of an award or enterprise agreement is exhibited at a place that is reasonably accessible to the employees bound by the award or agreement. (5) However, an enterprise agreement, or a part of an enterprise agreement, that SAET has suppressed from public disclosure under this Act1 need not be exhibited under subsection (4). 1 See section 80. Division 2—Civil penalty provisions 104—Obligation to pay entitlements (1) An employer must not contravene a provision of this Act, a workplace law or an industrial instrument which requires the employer to pay an amount to, or on behalf of, an employee in relation to the performance of work. Maximum civil penalty: $25 000. (2) For the purpose of subsection (1), unless otherwise provided by this Act, or the relevant workplace law or industrial instrument, the employer must pay an amount referred to in subsection (1)— (a) in full, subject to any deduction authorised by or under a law of the State or the Commonwealth or an order of a court; and (b) by cash, cheque, money order or payment into a specified account with a financial institution; and (c) at least monthly. (3) For the avoidance of doubt, amounts referred to in subsection (1) include the following: (a) wages; (b) loadings; (c) monetary allowances; (d) overtime or penalty rates; (e) leave payments; (f) incentive-based payments and bonuses; (g) superannuation contributions; (h) payments under the Work Health and Safety Act 2012 in relation to training and the performance of functions as a health and safety representative. (4) A civil penalty may only be imposed on an employer for a contravention of subsection (1) if— (a) the employer's conduct constituting the contravention was deliberate; and (b) the employer's conduct constituting the contravention was part of a systematic pattern of conduct relating to 1 or more employees. (5) For the purpose of subsection (4)(a), where the employer is the Crown or a body corporate, proof that the Crown or body corporate (as the case may be) expressly, tacitly, or impliedly authorised the conduct constituting the contravention will be taken to be proof that the employer's conduct constituting the contravention was deliberate. This does not limit sections 236 or 236B. (6) For the purpose of subsection (4)(b), in determining whether the employer's conduct constituting the contravention was part of a systematic pattern of conduct, a court may have regard to: (a) the number of contraventions committed by the employer; (b) the period over which the contraventions occurred; (c) the number of employees affected by the contraventions; (d) the employer's response, or failure to respond, to any complaints made about the contraventions; (e) whether the employer failed to make or keep, in accordance with this Act or a relevant industrial instrument or workplace law, an employee record relating to the conduct constituting the contraventions; (f) whether the employer failed to give, in accordance with this Act or a relevant industrial instrument or workplace law, a pay slip relating to the conduct constituting the contraventions. (7) Subsection (6) does not limit the matters that a court may have regard to. (8) Section 104A(4) does not apply for the purposes of determining whether an employer's conduct was part of a systematic pattern of conduct. 104A—Proceedings for contravention of civil penalty provision (1) A provision of this Act is a civil penalty provision if the words "Maximum civil penalty" and one or more amounts by way of monetary penalty are set out at the foot of the provision. (2) The South Australian Employment Court may, on application, order a person to pay a civil penalty that the Court considers is appropriate if the Court is satisfied, on the balance of probabilities, that the person has contravened a civil penalty provision. (3) The civil penalty imposed by the South Australian Employment Court must not exceed the amount specified by this Act as the maximum civil penalty in relation to that contravention. (4) Two or more contraventions of a civil penalty provision are taken to constitute a single contravention if the contraventions were committed by the same person and arose out of a course of conduct by the person. (5) Subsection (4) does not apply to a contravention of a civil penalty provision that is committed by a person after the South Australian Employment Court has imposed a civil penalty on the person for an earlier contravention of the provision. (6) An application under this section may be made by— (a) an employee affected by the contravention; or (b) a registered association that is entitled to represent the industrial interests of an employee affected by the contravention; or (c) an inspector. (7) The South Australian Employment Court may order that the civil penalty, or a part of the penalty, be paid to— (a) the State; or (b) a particular organisation; or (c) a particular person. (8) The civil penalty may be recovered as a debt due to the person to whom the penalty is payable. (9) Proceedings under this section may be commenced at any time within 6 years after the day on which the relevant contravention occurred. (10) For the avoidance of doubt, the Court may make a civil penalty order under this section in addition to 1 or more orders under section 9 or section 12 of this Act. 104B—Civil rules and procedure (1) The contravention of a civil penalty provision is not an offence. (2) The South Australian Employment Court must apply the rules of evidence and procedure for civil proceedings when hearing proceedings for a civil penalty order. The rules of evidence and procedure for civil proceedings in the South Australian Employment Court include the principles set out in section 32 of the South Australian Employment Tribunal Act 2014. (3) The South Australian Employment Court must not make an order against a person under this Division if an order has been made against the person under a civil penalty provision under an Act of the State or the Commonwealth in relation to conduct that is the same, or substantially the same, as the conduct constituting the contravention. 104C—Costs A party to proceedings for a civil penalty order may only be ordered to pay costs incurred by another party to the proceedings if— (a) the Court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the Court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs.