Document ID: chunk:federal_register_of_legislation:C2007C00183:clause:1_352b
Version: federal_register_of_legislation:C2007C00183
Segment Type: clause
Provision Reference: sch 1 cl 352B
Character Range: 776619–778951

352B  Court's powers in relation to unfair contracts with independent contractors

 (1) In this section and in section 352C:

contract means:
 (a) a contract for services that:
 (i) is binding on an independent contractor; and
 (ii) relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract; and
 (b) any condition or collateral arrangement relating to such a contract.

Note: The meaning of contract is limited by section 352D for constitutional reasons.

 (2) Application may be made to the Court to review a contract on either or both of the following grounds:
 (a) the contract is unfair;
 (b) the contract is harsh.

 (3) An application under subsection (2) may be made only by:
 (a) a party to the contract; or
 (b) an organisation of employees of which the independent contractor is (or has applied to become) a member, if it is acting with the written consent of the independent contractor; or
 (c) an organisation or association of employers of which the person contracting for the services is (or has applied to become) a member, if it is acting with the written consent of the person.

 (4) In reviewing the contract, the Court may have regard to:
 (a) the relative strength of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and
 (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and
 (c) whether the contract provides total remuneration that is, or is likely to be, less than that of an employee performing similar work; and
 (d) any other matter that the Court thinks relevant.

 (5) If the Court forms the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract, it must record its opinion, stating whether the opinion relates to the whole or a specified part of the contract.

 (6) The Court may form the opinion that a ground referred to in subsection (2) is established in relation to the whole or part of the contract even if the ground was not canvassed in the application.

 (7) The Court must exercise its powers under this section in a way that furthers the objects of this Act as far as practicable.