An outworker in clothing trades is a person who directly or indirectly performs any work outside of a factory in the clothing trades or manufacture of clothes, for the occupier of a factory or trader who sells clothing by wholesale or retail. 
Under the Industrial Relations Act 1996 (NSW) (IR Act), an outworker can apply to the Industrial Relations Commission of New South Wales in Court Session (Industrial Court) to:
make a claim for unpaid remuneration;1 or
apply for a civil penalty for the breach of any conditions of employment under the Clothing Trades (State) Award (Award).2
An outworker can therefore make a claim for unpaid remuneration from the person in the supply chain who controls their work, regardless of whether the outworker is a party to a contract with that person.
An outworker may make a claim against the person they believe is their employer (apparent employer) under Chapter 2, Part 11, Division 3 of the Industrial Relations Act 1996 (NSW) (IR Act) if they have not been paid for all or any part of the work performed for the employer. The claim must be made within six months after the work is completed.3
The outworker must serve a notice, verified by statutory declaration, with particulars of the unpaid remuneration claim4 on the apparent employer.5 The following details must be included in the statutory declaration:
the claim of the unpaid remuneration;
the name of the outworker;
the address at which the outworker may be contacted;
a description of the work performed;
the date on which the work was performed; and
the amount of unpaid remuneration claimed in respect of the work.6
The apparent employer has 14 days from the day the statutory declaration is served to accept liability for the unpaid remuneration, or to refer the claim to another person the apparent employer knows or has reasonable grounds to believe is the person for whom work is done.7
If the employer fails or refuses to make the payment, the outworker can complete Application for recovery of money or civil penalties and file the application with the Commission’s Registry. See Recovery of Remuneration to understand the process.
The outworker can file Application for recovery of money or civil penalties, either to make a claim for unpaid remuneration or to apply for a civil penalty for breach of conditions of employment under the Award, through the NSW Online Registry.
Alternatively, the application can be sent by email, post or in-person.
If the outworker has made a claim for unpaid remuneration, the Industrial Court will attempt conciliation and use its best endeavours to assist the parties in reaching an acceptable settlement.8 If a settlement can be reached, the Industrial Court will issue an order to give effect to the terms of the settlement.9 If a settlement cannot be reached, the Industrial court may make any order it considers just in the circumstances, including an order for the outworker to be paid. If the claim for unpaid remuneration is less than $100,000, the outworker can request that the application be dealt with as a small claims application.
If the outworker has applied for a civil penalty for the breach of any conditions of employment under the Award, the Industrial Court has the power to order a maximum $10,000 civil penalty for a proven breach of a condition.10
The decision can be appealed to the Full Bench of the Industrial Court.
1 Industrial Relations Act 1996 (NSW), Part 11, Division 3.; 2 Industrial Relations Act 1996 (NSW), Part 11, Division 2.; 3 Industrial Relations Act 1996 (NSW), s 129D(2).; 4 Industrial Relations Act 1996 (NSW), s 129D(4).; 5 Industrial Relations Act 1996 (NSW), s 129D (3).; 6 Industrial Relations Act 1996 (NSW), s 129D(3).; 7 Industrial Relations Act 1996 (NSW), s 129F(1).
Last updated: