31Unconscionable conduct by hirers

31 Unconscionable conduct by hirers

(1) A hirer must not engage in unconscionable conduct with respect to a contractor.

(2) Without in any way limiting the matters to which the Tribunal may have regard for the purpose of determining whether a hirer has contravened subsection (1), the Tribunal may have regard to any one or more of the following—

(a) the relative strengths of the bargaining positions of the hirer and the contractor;

(b) whether, as a result of conduct engaged in by the hirer, the contractor was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the hirer;

(c) whether the contractor was able to understand any documents relating to the acquisition or possible acquisition by the hirer of services from the contractor;

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the contractor or a person acting on behalf of the contractor by the hirer or a person acting on behalf of the hirer in relation to the acquisition or possible acquisition of the services from the contractor;

(e) the amount for which, and the circumstances in which, the contractor could have supplied identical or equivalent services to a person other than the hirer, including as an employee;

(f) the extent to which the hirer's conduct towards the contractor was consistent with the hirer's conduct in similar transactions between the hirer and other like contractors;

(g) the requirements of any applicable code of practice;

(h) the extent to which the hirer unreasonably failed to disclose to the contractor—

(i) any intended conduct of the hirer that might affect the interests of the contractor;

(ii) any risks to the contractor arising from the hirer's intended conduct being risks that the hirer should have foreseen would not be apparent to the contractor;

(i) the extent to which the hirer was willing to negotiate the terms and conditions of any contract for the acquisition or possible acquisition of services from the contractor;

(j) the extent to which the hirer and the contractor acted in good faith;

(k) whether or not the regulated contract allows for the payment of any increases in fixed and variable overhead costs on a regular and systematic basis.