Supplementary Order Paper No 4

No 4

House of Representatives

Supplementary Order Paper

Tuesday, 3 March 2009

Minimum Wage and Remuneration Amendment Bill


Proposed amendments

Darien Fenton, in Committee, to move the following amendments:

Clause 1

To insert the before Minimum (line 3 on page 2).

Part 1 heading

To omit this heading (lines 5 and 6 on page 2).

To insert the following heading after clause 2 (after line 9 on page 2):

Part 1
Preliminary provisions

Clause 2

To omit the day after the date on which it receives the Royal assent (lines 8 and 9 on page 2) and substitute 1 April 2009.

Clause 3

To insert the Act that was previously called after amends (line 11 on page 2).

Clause 4

To omit this clause (lines 12 to 16 on page 2) and substitute the following clause:

4 Purpose
  • The purpose of this Act is to—

    • (a) rename the principal Act; and

    • (b) insert new provisions into the principal Act that apply to remuneration received by specified persons for providing certain services under a contract for service.

New clause 5AA

To insert the following clause after the heading to Part 2 (after line 18 on page 2):

5AA Long Title repealed
  • The Long Title is repealed.

Clause 5

To omit subclauses (1) and (2) (lines 20 to 23 on page 2) and substitute the following subclauses:

  • (1) As from the commencement of this section,—

    • (a) the Minimum Wage Act 1983 is called the Minimum Wage and Remuneration Act 1983:

    • (b) every reference in any enactment and in any document to the Minimum Wage Act 1983 must, unless the context otherwise requires, be read as a reference to the Minimum Wage and Remuneration Act 1983.

  • (2) The heading to section 1 is consequentially amended by omitting Short.

  • (3) Section 1(1) is consequentially amended by inserting and Remuneration after Wage.

Clause 6

To omit this clause (lines 24 to 28 on page 2) and substitute the following clause:

6 Interpretation
  • Section 2 is amended by inserting the following definitions in their appropriate alphabetical order:

    principal, in relation to a specified person, means a person who—

    • (a) engages the specified person under a contract for service to provide a service listed in Schedule 2; and

    • (b) does not acquire the service for the person's personal, domestic, or household use or consumption

    remuneration means the payment by a principal to a specified person who provides services to the principal under a contract for service for that part of the service that relates to the provision of labour by the specified person

    specified person means—

    • (a) an individual who is 16 years of age or older and provides a service listed in Schedule 2 under a contract for service; or

    • (b) a company that provides a service listed in Schedule 2 under a contract for service if—

      • (i) the company has only 1 shareholder and 1 director; and

      • (ii) the shareholder and director are the same person; and

      • (iii) the person who is the shareholder and director personally provides the service.

Clause 7

To omit this clause (lines 1 to 13 on page 3) and substitute the following clause:

7 New sections 4A and 4B inserted
  • The following sections are inserted after section 4:

    4A Prescription of minimum remuneration
    • The Governor-General may by Order in Council prescribe the minimum rate of remuneration payable to specified persons for providing 1 or more of the services listed in Schedule 2.

    4B Establishing actual rate of remuneration
    • The following matters must be satisfied in establishing the actual rate of remuneration of a specified person for providing a service listed in Schedule 2:

      • (a) the terms of the contract; and

      • (b) whether the principal and specified person have agreed on what is a reasonable amount of time for the specified person to provide the service; and

      • (c) the information in the remuneration record required to be kept under section 8B; and

      • (d) the rate of remuneration must be no less than the minimum wage as provided for under this Act; and

      • (e) where the minimum wage is higher than that prescribed in section 4A, the minimum rate of remuneration shall be the greater of the rate set out in paragraph (d) or the following:

        • (i) $13.00 per hour of paid work effective 1 July 2009:

        • (ii) $14.00 per hour of paid work effective 1 July 2010:

        • (iii) $15.00 per hour of paid work effective 1 July 2011.

New clauses 7A, 7B, and 7C

To insert the following clauses after clause 7 (after line 13 on page 3):

7A Annual review of minimum wages
  • (1) The heading to section 5 is amended by adding and remuneration.

    (2) Section 5(1) is amended by omitting pursuant to section 4 of this Act and substituting under sections 4, 4A and 4B.

    (3) Section 5 is amended by adding the following new subsections:

    • (1A) A review under section 5(1) must indicate how increases above the prescribed minimum rate can be matched to an increase to the minimum wage.

    • (1B) As soon as practicable after the review is completed, the Minister must present a copy of it to the House of Representatives.

7B New section 5A inserted
  • The following section is inserted after section 5:

    5A Comprehensive review of minimum rate of remuneration
    • (1) After 3 years’ implementation of the rates prescribed in section 4B(e), the Minister must—

      • (a) review the operation of the prescribed rates as set out in section 4B(e); and

      • (b) identify rates of increase that are not to be less than those already prescribed in section 4B(e).

      (2) The Minister must present a copy of the comprehensive review to the House of Representatives no later than 6 months after the date of implementation of the rate prescribed in section 4B(e)(iii).

7C Payment of minimum wages
  • Section 6 is amended by omitting under this Act, shall be entitled and substituting under section 4 is entitled.

Clause 8: new section 6A

To omit lines 17 to 21 on page 3 and substitute the following:

  • Despite anything to the contrary in any enactment, agreement, or contract for services, if the minimum rate of remuneration is prescribed under section 4A, every specified person providing a service listed in Schedule 2 to a principal is entitled to receive payment for providing the service at not less than the minimum rate.

New clause 8A

To insert the following clause after clause 8 (after line 21 on page 3):

8A New sections 8B and 8C inserted
  • The following sections are inserted after section 8A:

    8B Remuneration record to be kept
    • (1) This section applies if—

      • (a) a specified person provides to a principal a service listed in Schedule 2; and

      • (b) the minimum rate of remuneration has been prescribed under section 4A.

      (2) The principal must keep a remuneration record that contains the following information in respect of the specified person:

      • (a) the name of the specified person:

      • (b) the specified person’s postal address:

      • (c) the kind of service that the specified person is engaged to provide:

      • (d) if the agreement does not state the amount of time that the specified person will take to provide the service,—

        • (i) the hours during which the specified person provides the service; and

        • (ii) if the remuneration is payable at intervals, the hours during which the specified person provides the service in relation to each interval:

      • (e) the remuneration paid to the specified person for the service and the method of calculation:

      • (f) any other particulars that are prescribed.

      (3) Information entered in the remuneration record must be kept for not less than 6 years after the date on which the information is entered.

    8C Specified person and Labour Inspector may request access to remuneration record
    • (1) A specified person or a Labour Inspector may request that a principal provide access to, or a copy of, or a certified extract from, information in the remuneration record relating to a specified person.

      (2) A principal who receives a request under subsection (1) must comply as soon as practicable with the request by—

      • (a) allowing the specified person or Labour Inspector to view the record; or

      • (b) providing a copy or certified extract of the information concerned.

Clause 9

To omit subclause (2) (lines 25 to 30 on page 3).

New clause 9A

To insert the following clause after clause 9 (after line 30 on page 3):

9A New sections 11AB and 11AC inserted
  • The following sections are inserted after section 11A:

    11AB Recovery of minimum remuneration
    • (1) This section applies to the recovery of minimum remuneration prescribed under section 4A and payable by a principal to a specified person.

      (2) The specified person, or a Labour Inspector, may commence an action in the Employment Relations Authority in the same manner as an action under section 131 of the Employment Relations Act 2000 for the recovery of the whole or any part of minimum remuneration, if—

      • (a) there has been a default in payment of the minimum remuneration to the specified person; or

      • (b) the payment of remuneration to the specified person has been made at a rate lower than that prescribed under section 4A.

      (3) Subsection (2)

      • (a) does not affect any other remedies for the recovery of minimum remuneration prescribed under section 4A and payable by a principal to a specified person; and

      • (b) applies despite—

        • (i) the acceptance by the specified person of any payment at a lower rate; or

        • (ii) any express or implied agreement to the contrary.

      (4) No action to recover minimum remuneration may be commenced under this section more than 6 years after the date on which the cause of action arose.

    11AC Specified person may not recover minimum remuneration for time that exceeds agreed reasonable time to provide service
    • (1) This section applies if—

      • (a) a principal and the specified person have agreed on the amount of time that the specified person will take to provide a service under a contract for service; and

      • (b) the amount of time agreed is reasonable; and

      • (c) the actual time taken by the specified person to provide the service exceeds the reasonable amount agreed.

      (2) Despite section 11AB(3)(b)(ii), the specified person may not recover any minimum remuneration that relates to the actual time taken to provide the service that exceeds the reasonable amount agreed.

Heading above clause 10

To omit this heading (line 31 on page 3).

Clause 10

To omit this clause (line 32 on page 3 to line 4 on page 4).

New clause 11

To insert the following clause after clause 10 (after line 4 on page 4):

11 New Schedule 2 added
  • (1) The Schedule 2 set out in the Schedule of this Act is added as Schedule 2.

    (2) The Schedule is consequentially renumbered as Schedule 1.

    (3) Section 14 is consequentially amended by omitting the Schedule to this Act and substituting Schedule 1.

Schedule

To omit the Schedule (on page 5) and substitute the following Schedule:

Schedule
New Schedule 2 added to principal Act

s 11

Schedule 2
Services for purposes of section 4A

ss 2, 4A, 4B, 6A, 8B

The following services provided under a contract for service:

  • (a) building and construction services:

  • (b) cleaning services:

  • (c) courier services:

  • (d) food catering services:

  • (e) fast-food delivery services:

  • (f) newspaper or pamphlet delivery services to letterboxes:

  • (g) personal home-care support to an individual in the individual’s dwellinghouse:

  • (h) public entertainment services as an actor, musician, or singer:

  • (i) the manufacture of clothing, footwear, or textiles:

  • (j) telemarketing services:

  • (k) market research services:

  • (l) licensed security guard services under the Private Investigators and Security Guards Act 1974:

  • (m) services in the forestry industry related to planting, pruning, or felling:

  • (n) truck-driving services delivering goods.


Explanatory note

This Supplementary Order Paper replaces SOPs No 212 and 207 and amends the Minimum Wage and Remuneration Amendment Bill. Further changes to the original SOP provide for the re-location of the Part 1 heading to appear after the commencement clause and provisions to ensure that minimum rates of remuneration can not be less than the minimum wage.