Fair Work (Clothing Outworker Code of Practice) Regulations 2022

The Code is built around a small set of definitional and operational concepts that determine scope, responsibilities and enforcement. Key definitions (Schedule 1, cl 5) and interpretative rules (cl 6) shape how the Code applies.

Principal definitional concepts:

• Agreement and giving out of work: "agreement" is drafted very broadly to include formal or informal, written or oral arrangements between a retailer and supplier for supply of clothing products for retail sale within the State (cl 5, definition of agreement). "Giving out of work" is similarly expansive (cl 5, "giving out of work"), expressly including arrangements where work is performed outside the party’s commercial premises and where the arrangement may not have legal force within the State.
• Outworker and lawful entitlements: the Code relies on the term "outworker" as defined under the Fair Work Act (cl 5, "outworker"), and anchors substantive entitlements to the Award and other "relevant industrial instruments" (cl 2; cl 5, definitions of Award, relevant award, applicable industrial standard).
• Retailer, supplier, contractor, continuing entity and transferee: these supply‑chain roles are separately defined and carry different duties. A supplier's "continuing entity" is defined broadly to capture relatives, bodies corporate in which the supplier is an officer or can control, related bodies corporate, trusts where the supplier is trustee or can control trustee decision‑making, partnerships where the supplier is a partner or has capacity to control, and combinations of those (cl 5, continuing entity). "Retailer" is also broad and includes persons domiciled outside the State who sell by retail within South Australia or are associates having a commercial relationship in relation to retail sale (cl 5, retailer).
• Scope and territorial connection: a number of tests deem an agreement to be for supply within the State, including if the retailer has outlets in SA, the agreement is made under SA law, delivery is to an address in SA, manufacture occurs in SA, or outworkers domiciled in SA are engaged (cl 6(5)). These deeming rules are displaceable only if the retailer establishes a contrary intention.

Operational and structural concepts:

• Mandatory standards and offences: the Code expressly declares its provisions mandatory (cl 7(1)) and provides an offence for failing without reasonable excuse to adopt a standard set out in the Code (cl 7(2) , maximum penalty $2,500). It also states (cl 7(3)) that contravention of a Code provision is deemed a failure to adopt the standard specified.
• Information flows and forms: the Code centralises information through standardised forms (Form 1-Form 6 are referenced throughout) and specific obligations to provide and retain Parts A and B of Form 2 and other specified forms (cls 12-16, 18). Forms are subject to formatting and paper requirements (cl 27).
• Record retention and locational rules: records required by the Code must be kept within the State at a registered office, principal place of business, or nominated agent for seven years (cl 26(1)). Records may be stored electronically provided a written reproduction is available for inspection (cl 26(2)).
• Regulatory actors and powers: "authorised person" includes inspectors appointed under the Act and officers or employees of the Manufacturing Division of the CFMMEU authorised under s 140 of the Act (cl 5, "authorised person"). These authorised persons can require production of records (cl 20) and, subject to the Fair Work Act processes (cl 8(3) and note to cl 20(8)), institute proceedings for contraventions (cl 8(3)).
• Interaction with industrial instruments: the Code must be read in conjunction with the Fair Work Act and the Award; in the event of inconsistency the relevant industrial instrument prevails to the extent of inconsistency (cl 4(2), cl 6(4)). Clause 28 makes parts of the Award directly applicable to constitutional corporations involved in the giving out of work, subject to equivalence tests.

Interpretation guidance:

• The Code explicitly instructs that constructions promoting its objectives are to be preferred (cl 6(1)). References to persons include employees, agents and officers of the person, and extend to external administrators (cl 6(2)-(3)). The Code contains express safeguards about the operation of forms and records (cl 20(5)-(6)) and sets out exceptions to enforcement in the event a person is accredited under Ethical Clothing Australia's Code of Practice (cl 8(1)(e)-(2)).

Economically relevant concepts embedded in the text:

• Deeming and territorial hooks broaden application to foreign‑domiciled suppliers and retailers where a nexus with SA is made (cl 6(5)); this pulls extra‑jurisdictional actors into SA documentary regimes.
• The continuing entity and transfer declarations (cl 18) are designed to reduce evasion by changes in corporate structure, and to preserve a chain of responsibility for outworker entitlements.
• The requirement that the Award protections extend to constitutional corporations (cl 28) creates a back‑stop to ensure federal contractual actors cannot avoid state oversight of outworkers by contracting through constitutional corporations.

These definitions and structural devices thus translate into a regime focused on information, traceability and chain of responsibility, enforced by making documentary non‑compliance an offence under the Code and enabling action by both state officials and authorised union officers.

The Code applies to an array of persons in the clothing supply chain. The text identifies who is in scope and who is not, and it specifies obligations relative to those roles.

Primary obligations fall on:

• Retailers: any person who sells clothing products by retail within South Australia or an associate with a commercial relationship to such a person (cl 5, retailer). Retailers must take pre‑contractual steps (cl 10), keep detailed records when entering agreements (cl 12), provide forms to suppliers (cl 13), submit extracts of records periodically to the Director‑General and the CFMMEU (cl 12(3)), and report awareness of less favourable engagement of outworkers (cl 11).
• Suppliers and contractors (and subcontractors): any person who enters an agreement with a retailer for supply of clothing products within the State is a "supplier" (cl 5). Suppliers must provide information to retailers to enable retailers to comply with their duties (cl 14), indicate whether items are manufactured in Australia and record that on invoices (cl 15), pass Form 2 particulars down the contractor chain (cl 16), and keep copies for seven years (cl 16(1)(b), 16(2)(b)). Contractors must provide the same identification documents to subcontractors (cl 16(2)).
• Continuing entities and transferees: suppliers’ continuing entities (a broad class including relatives, bodies corporate that the supplier can influence or control, trusts in which the supplier is trustee or beneficiary with control, partnerships etc) have a duty to notify retailers where they assume or transfer rights or obligations (cl 18). Transferees are persons to whom obligations or rights have been transferred by bona fide commercial arrangement (cl 5).
• Outworkers: the Code's purpose is to protect outworkers as defined under the Fair Work Act; clauses throughout reference the need to ensure outworkers receive lawful entitlements under the Award and other industrial instruments (cl 2-3, cl 28).

Regulatory actors with operational interests:

• Authorised persons: inspectors appointed under s 219A of the Act and specified officers or employees of the Manufacturing Division of the CFMMEU authorised under s 140 of the Act are empowered to demand records and institute proceedings in some circumstances (cl 5, definition of authorised person; cl 20; cl 8(3); cl 20(8) note referencing s 235 of the Act).
• Director‑General: defined as the Executive Director of SafeWork SA (cl 5); retailers must provide record extracts to the Director‑General (cl 12(3)) and may report suspected contraventions to the Director‑General (cl 11(1)).

Who is excluded or treated differently:

• Charitable organisations: the mandatory application clause excludes charitable organisations from the persons to whom the Code is directed (cl 7(1) , “other than charitable organisations”).
• Parties with accreditation under Ethical Clothing Australia: cl 8(1)(e) provides that a failure to comply can be a reasonable excuse if the person is accredited under Ethical Clothing Australia's Code of Practice, incorporating Homeworkers, and is acting in compliance with that code. Clause 8(2) sets out the parties to that agreement for manufacturers and retailers.

Geographic and extra‑jurisdictional reach:

• The Code reaches domestic and foreign domiciled persons where the connection to South Australia is established by the tests in cl 6(5) (retailer outlets in SA, SA law, delivery within SA, manufacture within SA, outworkers domiciled in SA). Clause 19 imposes obligations on suppliers who carry on business outside the State to assist retailers maintain accurate records and not to cause retailers to keep incomplete, false, or misleading forms within the State. Clause 24(2) also treats conduct performed outside the State as contravening the Code if it negates or restricts the Code’s operation within the State.

Practical implications for commercial actors:

• Retailers across Australia, and overseas retailers that sell into South Australia, are drawn in where their retail activity has a sufficient SA nexus under cl 6(5). Suppliers and contractors operating interstate or overseas remain within the Code's documentary regime where they supply to retailers selling in SA. Continuing entities and parties that undertake transfers of rights or obligations are subject to time‑bound notification duties (cl 18(3)). The Code therefore affects procurement processes, supplier selection, contractual drafting and record management across the supply chain.

In short, the Code reaches a wide cross‑section of economic actors in the clothing sector whenever there is a relevant SA retail connection, creates affirmative duties for retailers and suppliers, and gives authorised officers powers to inspect, retain and use records for enforcement.

The Code assembles a set of affirmative duties for retailers, suppliers, contractors, continuing entities and others. It also specifies certain process rights (to inspect records, to receive notices, to rely on reasonable excuses) and cross‑referenced enforcement rights for authorised persons.

Key duties imposed on retailers

• Pre‑contract diligence: obtain from supplier whether outworkers will be engaged and request the information specified in Form 2 Part B before entering into an agreement (cl 10(1)(a)-(b)). If outworkers are to be engaged, obtain the supplier’s undertaking that engagement will be on no less favourable conditions than the relevant industrial instrument and require disclosure of addresses where work is performed (cl 10(2)(a)(i)-(ii)).
• Contractual bar: a retailer must not enter an agreement in contravention of cl 10 (cl 10(3)); however, cl 10(4) states a breach does not affect the validity of the agreement.
• Record keeping: collect and retain specified particulars when entering an agreement: supplier identification, contractor details, addresses of work, dates, descriptions, quantities and wholesale prices (cl 12(1)(a)-(l)). The retailer must retain copies of Forms A and B and relevant invoices and must keep the records for seven years (cl 12(2); cl 15(4); cl 13(2)).
• Reporting duty: report in writing to the Manufacturing Division of the CFMMEU or the Director‑General if the retailer becomes aware that an outworker is or will be engaged on less favourable terms than the applicable award or industrial instrument (cl 11(1)). The retailer is deemed to be aware if it has information supplied under the Code, knowledge from prior dealings, or information from site inspections that would lead a reasonable person to be aware (cl 11(2)).
• Disclosure to regulators: provide extracts of records to the Director‑General and CFMMEU on the quarterly or six‑monthly timetable set out in cl 12(3)-(4), within 28 days of the reporting dates.

Duties imposed on suppliers, contractors and continuing entities

• Information flow: suppliers must provide sufficient information to enable retailers to comply with cl 10, cl 12 and cl 13 (cl 14). Suppliers must indicate at sample stage and on invoices whether items are manufactured in Australia (cl 15(1)-(2)) and include Part B with invoices (cl 15(3)).
• Passing documentation: suppliers must provide the Form 2 particulars to contractors on engagement and keep copies for seven years (cl 16(1)). Contractors must provide the documents to subcontractors in the same way (cl 16(2)).
• Notification of changes: relevant persons must inform retailers in writing of any false or misleading information or changes to particulars provided within 14 days of becoming aware (cl 17).
• Continuing entity declarations: a continuing entity must notify the retailer within the circumstances where it assumes or transfers rights/obligations and must provide details of arrangements for payment of outworker entitlements where outworkers are engaged under the Award; particular forms (Forms 3-5) are specified for these notifications and must be lodged within 14 days (cl 18(1)-(3)).
• Assisting retailers where supplier carries on business outside SA: suppliers who carry on business outside the State must assist retailers to keep accurate records and not cause retailers to retain incomplete or false Part B documents (cl 19).

Behavioural prohibitions

• Misleading or deceptive conduct: a retailer or relevant person must not knowingly engage in conduct misleading or deceptive to an outworker regarding entitlements or civil liability (cl 23(a)), and must not falsify records (cl 23(b)).
• Aiding evasion: a retailer or relevant person must not aid or facilitate evasion of the Code or payment of outworker entitlements. Conduct outside the State that has the effect of negating or restricting the Code’s operation is treated as contravening the Code (cl 24(1)-(2)). Intimidation, duress or undue influence used to bring about non‑compliance is also prohibited (cl 24(3)).
• Registration requirement: a retailer must not knowingly enter an agreement that involves giving out to an unregistered supplier or contractor (cl 21(a)) and must not accept goods where work was performed by an outworker unless the relevant person is registered to give work out (cl 21(b)).

Rights and process protections

• Reasonable excuse defences: cl 8(1) lists six circumstances that will be deemed a reasonable excuse for non‑compliance, including reasonable mistake (not based on lack of knowledge), reasonable reliance on another, an act of another or force majeure, duress or undue influence, and being a party to and acting in compliance with Ethical Clothing Australia’s Code (cl 8(1)(a)-(e)). Clause 8(2) specifies the parties to Ethical Clothing Australia’s agreement for the purposes of this excuse.
• Inspection and confidentiality safeguards: where an authorised person requires records, the authorised person must provide a receipt with particulars (cl 20(4)) and keep produced records confidential (cl 20(5)), subject to limited exceptions for disclosure related to administration and enforcement, Ministerial permission or court order (cl 20(6)).
• Procedural limits on production notices: production notices are to be in specified form (Form 6), may be served in specified manners, set the date/time/place (not the retailer’s registered office or principal place), and allow retention only for the reasonable period necessary to take copies or extracts (cl 20(1)-(3)).
• Deemed authority for declarations: a person is taken to have authorised a declaration made under the Code if it is made by a person with capacity to control, a person held out as having authority, an officer of a body corporate, or a person who received a benefit from the declarant (cl 22(1)), subject to a defence if the declarant can show lack of authority and unreasonableness to hold them liable (cl 22(2)).

Interaction with the Award and other industrial instruments

• Prevalence of industrial instruments: the Code is to be read with the Act, the Award and other relevant instruments (cl 4(2)); in event of inconsistency the relevant industrial instrument applicable to outworkers prevails (cl 6(4)).
• Extension to constitutional corporations: the Award’s outworker provisions have direct effect against constitutional corporations involved in giving out work, subject to an equivalence test if another applicable industrial standard imposes equivalent or more generous rights (cl 28(1)-(6)).

Enforcement rights

• Proceedings for contraventions may be instituted by an inspector or, where specified, an authorised CFMMEU officer or employee, subject to s 235 of the Act (cl 8(3) and note to cl 20(8)). The Code also establishes an offence for failing without reasonable excuse to adopt required standards (cl 7(2)). Other penalties or remedies under the Act and Award remain available through the prescribed enforcement mechanisms of the Fair Work Act and relevant industrial instruments.

Together, these duties and rights create an information‑centric compliance regime that makes retailers gatekeepers for traceability and imposes downstream documentation and notification obligations on suppliers and their commercial relatives.

The Code combines an internal offence with a framework for administrative inspection and reference to Fair Work Act enforcement processes. The text sets out criminal or quasi‑criminal exposure under the Code itself and preserves recourse to statutory enforcement under the Fair Work Act and the Award.

Penalties specified in the Code

• Specific monetary penalty: cl 7(2) creates an offence if a person specified in cl 7(1) (broadly, retailers, suppliers, contractors, continuing entities and transferees, excluding charitable organisations) fails, without reasonable excuse, to adopt any standard of conduct or practice set out in the Code. The maximum penalty specified for that offence is $2,500. The Code does not specify additional monetary penalties for other discrete offences within the instrument; instead, it relies on cross‑reference to the Act for broader enforcement avenues.

Provisions enabling enforcement

• Production notices and inspection powers: cl 20 authorises an "authorised person" (an inspector or authorised CFMMEU officer) to serve written notices requiring retailers to produce records for examination, at a specified time and place other than the retailer’s registered office or principal place of business. The authorised person may retain the records for a reasonable period to take copies or extracts (cl 20(1)-(2)). Notices must be in the form or to the effect of Form 6 (cl 20(3)(a)), and the authorised person must provide a receipt upon production (cl 20(4)). Produced records are to be kept confidential (cl 20(5)), with limited exceptions for enforcement, Ministerial permission or court order (cl 20(6)).
• Who may initiate proceedings: cl 8(3) furnishes that, subject to s 235 of the Fair Work Act, proceedings for contraventions may be instituted by an inspector or, if specified in the Code, an authorised CFMMEU officer or employee. Clause 20(8) repeats that enforcement by the CFMMEU is subject to compliance with s 235 of the Fair Work Act. The Code therefore operates within the Fair Work Act’s enforcement architecture.
• Deemed contraventions and evidentiary rules: cl 7(3) deems a contravention of a provision of the Code to be a failure to adopt the standard specified. Clauses such as cl 11(2) and cl 24(2) create evidentiary presumptions for awareness and for conduct occurring outside SA having effect in SA. Clause 22(1) creates a statutory fiction that a declaration or provision of information is authorised where submitted by persons with capacity to control or held out as having authority; that fiction is rebuttable per cl 22(2).

Behavioural mandatory duties that carry enforcement risk

• Reporting requirement: cl 11(1) obliges retailers to report awareness of less favourable conditions to the CFMMEU or Director‑General. Clause 11(2) defines circumstances where a retailer will be taken to be aware, which widens the set of facts that can ground failure to report.
• Registration requirement: cl 21 prohibits retailers from knowingly entering into agreements involving the giving out of work unless the supplier and contractors are registered under a relevant industrial instrument; acceptance of goods where outworkers have performed work is similarly restricted. Knowing breaches may expose retailers to enforcement action.
• Misleading conduct and aiding evasion: cl 23 and cl 24 create standalone prohibitions on misleading or deceptive conduct and on aiding or facilitating evasion of the Code or outworker entitlements. Those provisions create a basis for enforcement action and are structured to capture both domestic and extra‑territorial conduct that has the effect of undermining the Code.

Interplay with Fair Work Act enforcement

• Cross‑references to Fair Work Act: the Code is made under s 99C of the Fair Work Act (r 4) and is to be read with that Act and the Award (cl 4(2)). Clauses 8(3) and 20(8) explicitly provide that proceedings and CFMMEU enforcement actions are subject to s 235 of the Fair Work Act. Thus, enforcement by authorised CFMMEU officers or inspectors will generally follow Fair Work Act processes, which may include civil penalty proceedings, injunctions, orders for back‑payment, and other remedies available under the Act or the Award.

Process protections and limited defences

• Reasonable excuse: cl 8(1) enumerates circumstances that will be treated as reasonable excuses for non‑compliance, providing limited defences against enforcement (e.g. reasonable mistake not based on lack of knowledge; reasonable reliance; act of another beyond control; duress; accreditation under Ethical Clothing Australia).
• Confidentiality and limited disclosure: cl 20(5) provides confidentiality for produced records, but cl 20(6) lists circumstances where disclosure is permitted; this structure delineates how enforcement agencies may use produced materials.

Practical enforcement architecture and capacity risk

• The Code delegates primary investigative and sanctioning functions to inspectors and authorised CFMMEU officers. The CFMMEU is explicitly named as an enforcement actor (cl 5, definition of authorised person; cl 8(3) and cl 20(8)). The text therefore creates institutional access for union representatives, subject to statutory limitations in the Fair Work Act.
• The monetary cap for the internal Code offence ($2,500) is modest; more substantial remedies and penalties would be sought under the Fair Work Act and the Award where obligations under those instruments are contravened. The Code’s documentary and information rules create evidentiary pathways that can support larger enforcement actions under the Act or Award.

In sum, enforcement is a mix of:

• A Code‑specific offence with a fixed monetary maximum (cl 7(2));
• Statutory powers for inspection and document production vested in authorised officers (cl 20);
• An avenue for authorised CFMMEU officers and inspectors to institute proceedings under the Fair Work Act framework (cl 8(3), note to cl 20(8)); and
• Prohibitions on misleading conduct and assisting evasion (cls 23-24) that underpin both Code and Act/Award enforcement.

The Code is expressly framed to operate alongside, and in support of, the Fair Work Act, the Textile, Clothing, Footwear and Associated Industries Award 2020, and other federal or interstate industrial instruments. It contains direct cross‑references and conflict resolution rules that determine the legal relationships between the Code and other laws.

Primary legislative relationship

• Enabling provision: the Code is established under s 99C of the Fair Work Act 1994 (r 4 and Schedule 1, cl 4(1)), so it is a statutory instrument subordinate to the Fair Work Act. The Code directs that it is to be read together with the Act, the Award and any other relevant industrial instrument (cl 4(2)).
• Conflict resolution: if there is an inconsistency between the Code and a relevant industrial instrument, the relevant industrial instrument applies to outworkers to the extent of the inconsistency (cl 6(4)). That means the Code cannot displace substantive entitlements under the Award or applicable federal industrial instruments but is designed to complement and facilitate enforcement.

Extension of Award protections and interplay with federal industrial law

• Clause 28 gives effect to the Award’s outworker provisions against constitutional corporations involved in the giving out of work, so that constitutional corporations are required to comply with the Award provisions as if they were an employer bound by the Award (cl 28(1), (3)). That extension is subject to an equivalence exception: if an applicable industrial standard imposes obligations and confers entitlements that are equivalent or more generous, and if entry/inspection powers for employee representatives are equivalent, the constitutional corporation may comply with that other standard instead of the Award provision (cl 28(4)).
• Clause 28(6) allows constitutional corporations who have already paid entitlements under an applicable industrial standard to deduct amounts paid from amounts owed under the Award provision given effect by the Code, which is an explicit set‑off mechanism in respect of overlapping obligations.

Fair Work Act enforcement and procedural cross‑reference

• Proceedings under the Code may be instituted by an inspector or an authorised CFMMEU officer subject to s 235 of the Fair Work Act (cl 8(3); note to cl 20(8)). S 235 of the Fair Work Act sets out restrictions relating to the right of employee associations to take certain actions; the Code preserves these procedural constraints by cross‑reference.
• The Code defines "authorised person" to include inspectors appointed under s 219A of the Fair Work Act and CFMMEU Manufacturing Division officers authorised under s 140 (cl 5). Those statutory appointments and the powers that flow from them under the Fair Work Act constrain the investigative and enforcement functions that the Code deploys.

Interaction with industrial instruments outside the State and extra‑territorial conduct

• The Code’s definitions of "applicable industrial standard" and "relevant industrial instrument" are broad, and the Code expressly contemplates overlapping federal, interstate and state instruments (cl 5). Clauses such as cl 19 and cl 24(2) expressly address conduct and records located outside the State that affect compliance within the State.
• Clause 6(5) contains multiple tests that will deem an agreement to be for supply within the State, thereby importing interstate and foreign suppliers into the Code’s reach where certain territorial or nexus facts are present (cl 6(5)(a)-(f)).

Other regulatory statutes and administrative law

• Records and workplace premises references: the Code refers to occupational health and safety regulation registration numbers for clothing factories in cl 12(1)(f)(i) and (ii), indicating interaction with workplace safety legislation and administrative records.
• Director‑General and SafeWork SA: the Director‑General is defined as the Executive Director of SafeWork SA (cl 5), linking the Code’s reporting and record obligations to South Australia’s workplace safety and regulatory administrative apparatus.

Privative or supremacy issues

• The Code does not purport to oust federal law or the Award; rather, it is to be read and applied in conjunction with those instruments, and in any inconsistency the industrial instrument prevails (cl 6(4)). Clause 28 equally preserves situations where an applicable industrial standard is equivalent or more generous.

Evidentiary and procedural consequences

• The Code’s documentary requirements and inspection powers (cl 12; cl 20) create admissible evidence trails that can be used in proceedings under the Fair Work Act or Award. The confidentiality provisions limit disclosure but expressly permit use of produced records for enforcement (cl 20(6)(a)).

In effect, the Code operates as a state statutory layer of documentary and reporting obligations designed to make enforcement of federal and state outworker entitlements operationally feasible. It does not, on its face, displace the substantive entitlements in federal awards and instruments; instead it configures who must document and report and provides statutory presumptions, production powers and narrow Code offences to encourage compliance and provide evidence to regulators and enforcing bodies.

The instrument provided is the Fair Work (Clothing Outworker Code of Practice) Regulations 2022, Gazetted as No 61 in 2022 with commencement on 1 September 2022 (r 2; Legislative history notes). The Regulations establish the South Australian Clothing Outworker Code of Practice (Schedule 1) and repeal the earlier Fair Work (Clothing Outworker Code of Practice) Regulations 2007 (Schedule 2).

Concrete elements of amendment and replacement:

• Repeal of 2007 Regulations: Schedule 2 expressly repeals the Fair Work (Clothing Outworker Code of Practice) Regulations 2007. The text does not provide the 2007 Regulations’ text or the differences, but the 2022 instrument functions as the principal code regulation from the commencement date (Schedule 2).
• Commencement: r 2 sets the commencement date at 1 September 2022. The gazettal reference is Gazette 11.8.2022 p2503 with commencement note r 2 indicating 1.9.2022: r 2.
• Enabling and structure: r 4 notes that the Code in Schedule 1 is established under s 99C of the Fair Work Act 1994. The legislative history appendix in the instrument summarises that this instrument is the principal regulation in force from the commencement date.

What the legislative history section records:

• The “Legislative history” in the instrument contains a reference to the Principal regulations table giving year, number, Gazette reference and commencement date. It records 2022 No 61 with the Gazette and commencement details already noted. No further amendments, variations or historical amendments beyond the repeal of the 2007 regulations are recorded in the instrument as supplied.

Absence of other amendment entries in the supplied text:

• There are no additional schedules, amending instruments or subsequent variations recorded in the included legislative history. The instrument does not record any transitional provisions beyond the immediate repeal in Schedule 2 or any savings provisions; the lack of express transitional mechanics indicates that the 2007 Regulations were repealed and replaced by the 2022 Regulations on the stated commencement date.

Forms and future modification

• The Code references Forms 1-6 within Schedule 1. The instrument does not publish the body of those forms in the text supplied, but their usage is mandated through various clauses (for record submissions, production notices, declarations and notices of transfer/assumption). Any subsequent amendment that alters the forms or frequencies would likely be enacted through amending regulations or instrument update, but the supplied legislative history records only the principal 2022 instrument and repeal of 2007 regulations.

For practitioners tracking changes:

• The key change recorded in this instrument is the 2022 replacement of the 2007 Regulations and the imposition of the provisions in Schedule 1 from 1 September 2022. Legal users should verify currentness by consulting the Index of South Australian Statutes or the official legislation website referenced in the instrument notes, since no further amendments are recorded in the supplied text.

The provided legislative instrument contains no citations to judicial decisions and the Legislative history section does not record any litigation or interpretative cases arising from the Code. The instrument itself does not enumerate prior case law and, within the text supplied, no judicial proceedings, determinations or statutory interpretations are recorded.

What the absence in the instrument means for practitioners:

• There are no cases named in the instrument and no judicial gloss included in the statutory text or legislative history supplied. Practitioners seeking litigation history or judicial interpretation of the Code should therefore check external sources: court databases, tribunal records, Fair Work Commission determinations, and reports of proceedings under the Fair Work Act and the Award for matters concerning outworkers or Code compliance, particularly after the commencement date 1 September 2022.
• Because the Code cross‑references the Fair Work Act and the Award and contemplates proceedings by inspectors and authorised CFMMEU officers (cl 8(3), cl 20(8)), litigation relevant to the Code may be brought under the Fair Work Act or relevant industrial instruments. Any enforcement disputes, challenges to jurisdiction, or judicial interpretation of forms, deeming provisions (cl 6(5)), continuing entity definitions (cl 5), or interaction with constitutional corporations (cl 28) would be resolved in courts or tribunals applying the Fair Work Act and related industrial law. Those decisions are not included in the instrument text.

Recommended actions for research:

• Search state and federal courts, Fair Work Commission decisions, and tribunal determinations for post‑commencement litigation invoking the 2022 Code, including challenges to inspection or production notices (cl 20), disputes over the reach of the Code (e.g. cl 6(5) territorial deeming), or enforcement litigation arising from cl 7(2), cl 11, cl 21, cl 23 or cl 24.
• Review any enforcement actions pursued by the Manufacturing Division of the CFMMEU or by SafeWork SA (Director‑General) after 1 September 2022, since authorised CFMMEU officers and inspectors are named enforcement actors in the Code (cl 5; cl 8(3); cl 20(8)).

In short, the instrument itself contains no litigation history. For actual cases and interpretations practitioners must consult external judicial and administrative records post‑dating the Code’s commencement.

The Code contains several provisions and drafting features that operate as practical pitfalls for commercial actors and regulators. The following points identify provisions that are easy to overlook or which create friction or enforcement risk.

1. Broad definitions and extra‑territorial hooks (cl 5; cl 6(5))

• The definitions of "agreement", "giving out of work", "retailer" and "supplier" are deliberately expansive. An "agreement" can be informal or oral and need not have legal force in South Australia (cl 5, definition of agreement). Clause 6(5) contains multiple deeming tests that make an agreement "for supply within the State" based on retailer outlets, governing law, stated delivery addresses, manufacture within SA, or the engagement of SA‑domiciled outworkers. A party domiciled outside SA that sells into SA may therefore be captured unexpectedly. Practitioners should map these nexus tests against supply chains and contract terms.

2. Documentary and format minutiae (cl 12, cl 13, cl 27)

• The Code prescribes precise fields to be recorded (cl 12(1)(a)-(l)), retention for seven years (cl 12(2), cl 13(2), cl 15(4), cl 16), and even the physical attributes of documents (cl 27 requires A4 white or light pastel paper, medium weight, non‑carbon copies, black or dark blue ink, etc.). Non‑compliance with form requirements may be a technical breach. Electronic storage is permitted if a written reproduction is available (cl 26(2)), but the Code’s paper quality and colour rules remain.

3. Timing and frequency obligations for record extracts (cl 12(3)-(4))

• Retailers must submit extracts of records for defined reporting windows ending on fixed dates (4 Feb; 28 Apr; 21 Jul; 11 Nov) or opt into alternate six‑month reporting windows (cl 12(3)). Extracts must be submitted within 28 days of those dates (cl 12(4)). Failure to calendar these deadlines can create compliance exposure.

4. Reporting duty and constructive knowledge (cl 11)

• Retailers must report when they become aware an outworker is or will be engaged on less favourable terms (cl 11(1)). Clause 11(2) expands what counts as "aware" to include information provided under the Code, prior commercial dealings, or information from site inspections. That means passive receipt of documents or prior knowledge from dealings can be imputed to a retailer. This creates potential exposure for retailers who retain but do not scrutinise supplier documents.

5. Deemed authority for declarations (cl 22)

• A person is taken to have authorised declarations if the declaration is made by someone with capacity to control, an officer of a body corporate, or a person held out as having authority (cl 22(1)). That deemed authority is rebuttable only by showing lack of actual authority and unreasonableness to hold them liable (cl 22(2)). This can make declarations submitted by intermediaries binding on principals unless the principal can successfully displace the statutory deeming.

6. Narrow monetary penalty in-code but larger remedies elsewhere (cl 7(2); cl 8(3))

• The Code’s internal maximum penalty for failing to adopt a standard is $2,500 (cl 7(2)), which is modest. However, the Code’s true enforcement teeth lie in its enabling of Fair Work Act and Award remedies (cl 8(3) and cl 20(8) note referencing s 235). Parties should not assume the $2,500 cap is the ceiling for all consequences; non‑compliance can bolster claims and enforcement under federal industrial law.

7. Continuing entity and transfer notification windows (cl 18)

• A continuing entity must notify the retailer within prescribed circumstances and lodge Forms 3-5 within 14 days (cl 18(1)-(3)). These short deadlines can be overlooked in complex corporate restructures or asset transfers. Clause 18(4) also prevents continuing entities from causing a retailer to keep records that omit prescribed matters in respect of agreements made outside the State.

8. Registration requirement risk (cl 21)

• Clause 21 requires retailers not to knowingly contract with suppliers or contractors who are unregistered under a relevant industrial instrument to give work out. "Knowingly" does not eliminate liability for careless procurement processes. Retailers must verify registration status; failure to do so can raise enforcement or reputational issues.

9. Extra‑State conduct that negates obligations treated as contravention (cl 24(2))

• The Code treats conduct performed outside South Australia that has the effect of negating, restricting or preventing the Code’s operation or enforcement within the State as a contravention of the Code. This provision reaches cross‑border structuring and contractual clauses intended to frustrate SA oversight.

10. The "reasonable excuse" door is narrow and fact‑sensitive (cl 8(1))

• The list of reasonable excuses includes reasonable mistakes provided they are not "based on a lack of knowledge of the provisions of this code" and reasonable reliance on another person. These defences are fact‑specific and subject to scrutiny in enforcement action.

11. Reliance on Ethical Clothing Australia accreditation (cl 8(1)(e)-(2))

• Accreditation under Ethical Clothing Australia’s Code of Practice is listed as a potential defence to non‑compliance, but only to the extent of acting in compliance with that code. Clause 8(2) specifies parties to the Ethical Clothing Australia agreement; accreditation will not be an automatic safe harbour.

12. Interaction with constitutional corporation rules and equivalence tests (cl 28)

• Clause 28 extends Award protections directly to constitutional corporations involved in giving out work, but provides an equivalence carve‑out where another applicable industrial standard is equivalent or more generous (cl 28(4)-(6)). Determining equivalence will require legal assessment and possibly adjudication, creating uncertainty for constitutional corporations and their suppliers.

These "gotchas" translate into concrete operational risks: procurement teams must update supplier onboarding and contract templates, compliance teams must set up document capture and retention systems meeting the Code’s form and locational requirements, and finance and legal teams must be ready to respond to notices and to produce seven years of records in specified formats. Failure to address these practical points can create exposure to both state Code offences and federal Award enforcement.

The Code is prescriptive about information flows, documentation and timings. Compliance therefore requires integrating the Code’s requirements into procurement, record‑keeping, supplier onboarding and dispute escalation processes. Below is a practical compliance checklist, grounded in the Code’s clauses, suitable for retailers, suppliers and contractors.

For retailers (primary gatekeepers)

1. Pre‑contract steps (cl 10)

• Before entering an agreement obtain from the supplier whether outworkers will be engaged (cl 10(1)(a)).
• Request and retain the supplier information specified in Form 2 Part B (cl 10(1)(b)).
• If outworkers will be engaged, obtain an undertaking in the terms of Form 2 Part B that engagement will be on conditions no less favourable than the relevant industrial instrument and that addresses where work will be performed will be disclosed (cl 10(2)(a)(i)-(ii)).
• Inform the supplier that breach of the undertaking will be treated as breach of an essential term and grounds for termination (cl 10(2)(b)).

2. Documentation and retention (cl 12, cl 13, cl 26, cl 27)

• Adopt a standard intake form and ensure Part A and Part B of Form 2 are completed before entering into agreements. Keep a copy for 7 years (cl 13(1)-(2)).
• Maintain records with the specific fields listed in cl 12(1)(a)-(l): supplier name and identifiers, contractor details, addresses where work will be performed, dates, product descriptions, quantities and wholesale prices.
• Store records within South Australia at the registered office, principal place of business, or nominated agent for at least 7 years (cl 26(1)). Electronic storage is acceptable provided a written reproduction is available (cl 26(2)).
• Ensure documents conform to formatting requirements in cl 27 (A4, white/light pastel, medium weight, dark ink and not carbon copies).

3. Reporting and periodic submission (cl 11, cl 12(3)-(4))

• Establish a process to report in writing to the Manufacturing Division of the CFMMEU or the Director‑General when becoming aware that outworkers have been or will be engaged on less favourable terms (cl 11(1)). Train procurement and store inspection staff on what constitutes "awareness" under cl 11(2).
• Prepare and submit extracts of particulars in or to the effect of Form 1 for the reporting windows specified in cl 12(3) within 28 days (cl 12(4)). Decide whether to adopt the quarterly default reporting windows or elect into the six‑month windows in cl 12(3)(b) and notify the Director‑General if electing the latter.

4. Verification of registration (cl 21)

• Before contracting, verify that the supplier and any contractors are registered under a relevant industrial instrument to give work out to be performed outside their premises. Implement supplier onboarding checks and retain evidence of verification.

5. Cooperation with inspections (cl 20)

• Create a process for responding to production notices in the form of Form 6. Ensure records required under the Code are retrievable during normal business hours and understand that production must be to a specified place other than the retailer’s registered office or principal place of business (cl 20(1)-(3)).
• On production, request and preserve the receipt provided by the authorised person that notes the time, date, place and nature of documents produced (cl 20(4)).
• Protect the confidentiality of produced documents, but acknowledge permitted disclosures in cl 20(6).

For suppliers and contractors

1. Provide required information to retailers (cl 14-15)

• When showing samples or offering ready‑made items, indicate whether items have been, or will be, manufactured in Australia (cl 15(1)).
• Mark invoices to retailers to indicate which clothing products have been manufactured in Australia and include a completed copy of Part B provided by the retailer under cl 13 (cl 15(2)-(3)).
• Keep copies of invoices and provided Part B for 7 years (cl 15(4)).

2. Pass forms along the supply chain (cl 16)

• At engagement, provide contractors and subcontractors with the copy of Form 2 (Parts A and B) provided by the retailer and keep copies for 7 years (cl 16(1)-(2)).

3. Notify changes and false or misleading information (cl 17)

• Inform the retailer in writing within 14 days of becoming aware of any false or misleading information or changes to particulars previously provided (cl 17(2)).

4. If carrying on business outside SA (cl 19)

• Assist the retailer to maintain accurate records within SA and do not cause the retailer to keep incomplete, false or misleading Part B forms in the State (cl 19(1)-(2)).
• Consider making local arrangements (a nominated agent, point of contact) to ensure SA records are accurate and accessible.

For suppliers’ continuing entities and transferees

1. Notify assumption or transfer of rights/obligations (cl 18)

• If a continuing entity intends to assume or transfer rights/obligations under an agreement made within the State, lodge the appropriate Form 3 or Form 4 within 14 days (cl 18(1), (3)(a)(i)-(ii)).
• On assumption, provide details of arrangements for payment of outworker entitlements if outworkers are engaged under the Award, and lodge Form 5 within 14 days (cl 18(2)-(3)(b)).

2. Inspect retailer records where permitted (cl 18(5))

• A continuing entity may inspect records kept by the retailer relating to the assumption or transfer (cl 18(5)); establish processes for access requests.

Cross‑cutting compliance risks and mitigations

1. Training and policies

• Implement targeted training for procurement, legal, compliance, finance and store operations teams on the Code’s requirements, particularly the definitions of “giving out of work”, “outworker”, and the scope tests in cl 6(5).
• Update supplier contracts and standard terms to require completion of Form 2, to include supplier undertakings consistent with cl 10(2), and to preserve rights to terminate for breach of undertaking.

2. Record systems and audit trails

• Configure ERP or procurement systems to capture the fields listed in cl 12(1). Establish retention policies that preserve records in SA and maintain written reproductions for electronic storage (cl 26(2)).
• Schedule calendar reminders for the quarterly or six‑monthly extracts to be prepared and submitted within 28 days as required by cl 12(3)-(4).

3. Verification and due diligence

• Introduce supplier registration checks against relevant industrial instruments and maintain evidence of verification to show the retailer did not “knowingly” contract with unregistered suppliers (cl 21).
• Conduct periodic audits and site inspections where feasible to verify addresses where work is performed and that outworkers are engaged on lawful entitlements.

4. Handling production notices and investigations

• Develop a response protocol for Form 6 notices (cl 20), including legal review, document collections, and ensuring the authorised person’s receipt is obtained.
• Avoid producing false or misleading documents. Clause 20(7) exposes a person who produces inaccurate or false records with intent to mislead, evade the Code, avoid industrial obligations, or facilitate evasion to contraventions.

5. Use of Ethical Clothing Australia accreditation

• If relying on the reasonable excuse in cl 8(1)(e), ensure active accreditation and demonstrable compliance with Ethical Clothing Australia’s Code of Practice, and retain evidence of such compliance in case the excuse is asserted in enforcement proceedings.

6. Contractual drafting

• Insert clear representations and warranties from suppliers about manufacture location, compliance with Award entitlements where outworkers are engaged, and about accuracy of information in Form 2 Part B and invoices.
• Insert audit rights allowing retailers to verify supplier records and express termination rights for breaches of undertakings obtained under cl 10.

7. Legal review where constitutional corporation issues arise (cl 28)

• If contracting with constitutional corporations involved in giving out of work, assess applicability of cl 28 and potential equivalence of other industrial instruments. Get legal advice where overlapping federal and state standards could create uncertainty.

By translating the Code’s provisions into procurement templates, data capture fields, supplier onboarding checks, and calendarised submission and inspection processes, retailers, suppliers and continuing entities can operationalise compliance. The Code’s emphasis on documentary proof, short notification windows and prescribed formality means that compliance is largely administrative in nature: accurate capture, timely transmission, secure storage and demonstrable good‑faith actions will be the most effective mitigants.