Division 34—Non-compulsory uniforms
Table of Subdivisions
Guide to Division 34
34-A Application of Division 34
34-B Deduction for your non-compulsory uniform
34-C Registering the design of a non-compulsory uniform
34-D Appeals from Industry Secretary’s decision
34-E The Register of Approved Occupational Clothing
34-F Approved occupational clothing guidelines
34-G The Industry Secretary
Guide to Division 34
34-1 What this Division is about
This Division is about deductions for the costs of non-compulsory uniforms.
Table of sections
34-3 What you need to read
Employees
(1) If you incur expenditure for your non-compulsory uniform, you need to read Subdivision 34-B (which is about deductions for your non-compulsory uniform), starting at section 34-10.
Employers
(2) If you have people working for you who want to deduct expenditure of that kind, you need to read:
· Subdivision 34-C (which is about registering the design of a non-compulsory uniform), starting at section 34-25; and
· Subdivision 34-D (which is about appeals from Industry Secretary’s decision), starting at section 34-40.
Subdivision 34-A—Application of Division 34
Table of sections
34-5 This Division applies to employees, PAYE earners and others
34-7 This Division applies to employers and others
34-5 This Division applies to employees, PAYE earners and others
(1) This Division applies not only to an individual who is an employee. It also applies to an individual who is not an employee, but who:
(a) is a *PAYE earner; or
(b) is not a *PAYE earner, but would be a *PAYE earner apart from paragraph (q) of the definition of salary or wages in subsection 221A(1) of the Income Tax Assessment Act 1936 (which excludes recipients of prescribed payments within the meaning of Division 3A of Part VI of that Act).
(2) If an individual is not an employee, but is covered by paragraph (1)(a) or (b), this Division applies to him or her as if:
(a) he or she were an employee; and
(b) the entity (the notional employer) who pays (or is liable to pay) *PAYE earnings because of which he or she is (or would be) a *PAYE earner were his or her employer; and
(c) any other individual who receives (or is entitled to receive) *PAYE earnings:
(i) because of which the other individual is (or would be) a *PAYE earner; and
(ii) that the notional employer pays (or is liable to pay) to the other individual;
were the employee of the notional employer.
34-7 This Division applies to employers and others
If an entity is not an employer, but pays (or is liable to pay) *PAYE earnings, this Division applies to the entity as if:
(a) it were an employer; and
(b) an individual to whom the entity pays (or is liable to pay) *PAYE earnings were the entity’s employee.
Subdivision 34-B—Deduction for your non-compulsory uniform
Table of sections
34-10 What you can deduct
34-15 What is a non-compulsory uniform?
34-20 What are occupation specific clothing and protective clothing?
(1) If you are an employee, you can deduct expenditure you incur in respect of your *non-compulsory uniform if:
(a) you can deduct the expenditure under another provision of this Act; and
(b) the *design of the uniform is registered under this Division when you incur the expenditure.
Note 1: This Division also applies to PAYE earners and other individuals who are not employees: see Subdivision 34-A.
Note 2: Employers apply to register designs of uniforms: see
Subdivision 34-C.
(2) You cannot deduct the expenditure under this Act if the *design is not registered at the time you incur the expenditure.
(3) However, this Division does not stop you deducting expenditure you incur in respect of your *occupation specific clothing or *protective clothing.
34-15 What is a non-compulsory uniform?
What is a uniform?
(1) A uniform is one or more items of clothing (including accessories) which, when considered as a set, distinctively identify you as a person associated (directly or indirectly) with:
(a) your employer; or
(b) a group consisting of your employer and one or more of your employer’s *associates.
When is a uniform non-compulsory?
(2) Your uniform is non-compulsory unless your employer consistently enforces a policy that requires you and the other employees (except temporary or relief employees) who do the same type of work as you:
(a) to wear the uniform when working for your employer; and
(b) not to substitute an item of clothing not included in the uniform for an item of clothing included in the uniform when working for your employer;
except in special circumstances.
34-20 What are occupation specific clothing and protective clothing?
(1) Occupation specific clothing is clothing that distinctively identifies you as belonging to a particular profession, trade, vocation, occupation or calling. To determine this, disregard any feature of the clothing that distinctively identifies you as a person associated (directly or indirectly) with:
(a) your employer; or
(b) a group consisting of your employer and one or more of your employer’s *associates.
Example: Occupation specific clothing includes a nurse’s uniform, a chef’s checked pants and a religious cleric’s ceremonial robes.
(2) Protective clothing is clothing of a kind that you mainly use to protect yourself, or someone else, from risk of:
(a) death; or
(b) *disease (including the contraction, aggravation, acceleration or recurrence of a disease); or
(c) injury (including the aggravation, acceleration or recurrence of an injury); or
(d) damage to clothing; or
(e) damage to an artificial limb or other artificial substitute, or to a medical, surgical or other similar aid or appliance.
Example: Protective clothing includes overalls, aprons, goggles, hard hats and safety boots, when worn to protect the wearer.
Meaning of disease
(3) Disease includes any mental or physical ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin.
Subdivision 34-C—Registering the design of a non-compulsory uniform
Table of sections
34-25 Application to register the design
34-30 Industry Secretary’s decision on application
34-33 Written notice of decision
34-35 When uniform becomes registered
34-25 Application to register the design
(1) The employer of an employee who has, or will have, a *non-compulsory uniform can apply to the Secretary to the Department of Industry, Science and Tourism (the Industry Secretary) for the *design of the uniform to be registered.
Note: This Division also applies to entities that are not employers: see Subdivision 34-A.
Meaning of design of a uniform
(2) The design of a *uniform includes features such as its colouring, construction, durability, ornamentation, pattern and shape.
Form of application
(3) The application must be:
(a) in writing; and
(b) in a form approved in writing by the *Industry Secretary; and
(c) accompanied by such information as the Industry Secretary requires.
34-30 Industry Secretary’s decision on application
Industry Secretary must decide to grant or refuse application
(1) After considering the application, the *Industry Secretary must decide to either grant or refuse the application.
Criteria for grant of application
(2) The *Industry Secretary must not decide to grant an application unless he or she is satisfied that the design meets the criteria set out in the *approved occupational clothing guidelines.
Note: The approved occupational clothing guidelines are created under section 34-55.
When Industry Secretary taken to have refused application
(3) The *Industry Secretary is taken to have refused an application if he or she does not make a decision by the later of the following times (the deadline):
(a) the end of 90 days (the 90-day period) after the day the Industry Secretary receives the application;
(b) if the Industry Secretary, by written notice given to the applicant within the 90-day period, requests the applicant to give further information about the application—the end of
90 days after the Industry Secretary receives the further information.
34-33 Written notice of decision
(1) If the *Industry Secretary makes a decision to grant or refuse an application under subsection 34-30(1) before the *deadline, the Industry Secretary must give the applicant written notice of the decision.
Reasons for refusal
(2) If the notice is a notice of a decision to refuse the application, it must also set out the reasons for the refusal.
Statements to accompany notice of decision
(3) The notice of the decision is to include the statements set out in subsections (4) and (5).
(4) There must be a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the *AAT, by (or on behalf of) any entity whose interests are affected by the decision, for review of the decision.
(5) There must also be a statement to the effect that a request may be made under section 28 of that Act by (or on behalf of) such an entity for a statement:
(a) setting out the findings on material questions of fact; and
(b) referring to the evidence or other material on which those findings were based; and
(c) giving the reasons for the decision;
except where subsection 28(4) of that Act applies.
Failure does not affect validity
(6) If the *Industry Secretary fails to comply with subsection (4) or (5), that failure does not affect the validity of his or her decision.
34-35 When uniform becomes registered
If the *Industry Secretary decides to grant the application, the *design of the *uniform becomes registered on:
(a) the day the decision is made; or
(b) if the applicant requests—such earlier day as the Industry Secretary specifies.
Note: When the design becomes registered, an entry for the design is made on the Register of Approved Occupational Clothing.
Subdivision 34-E is about the Register.
Subdivision 34-D—Appeals from Industry Secretary’s decision
Table of sections
34-40 Review of decisions by the Administrative Appeals Tribunal
34-40 Review of decisions by the Administrative Appeals Tribunal
Applications may be made to the *AAT for review of a decision made by the *Industry Secretary under subsection 34-30(1).
Subdivision 34-E—The Register of Approved Occupational Clothing
Table of sections
34-45 Keeping of the Register
34-50 Changes to the Register
(1) The *Industry Secretary must keep the Register of Approved Occupational Clothing, listing the designs that are required to be entered on the Register because of this Division.
Register to be open for inspection
(2) The *Industry Secretary must arrange for the Register to be available for inspection at any reasonable time by any person on request.
Removal of registration
(1) The *Industry Secretary must remove an entry for a *design from the Register of Approved Occupational Clothing if requested to do so by the employer who applied for the design to be registered.
Correcting errors and mistakes
(2) The *Industry Secretary may correct a clerical error or an obvious mistake in an entry for a design in the Register and, if the Industry Secretary does so, the correction takes effect on the day on which the design to which the entry relates was registered.
Subdivision 34-F—Approved occupational clothing guidelines
Table of sections
34-55 Approved occupational clothing guidelines
34-55 Approved occupational clothing guidelines
(1) The Treasurer must formulate written guidelines (the approved occupational clothing guidelines) setting out criteria that *designs of uniforms must meet if the designs are to be registered.
Matters to be taken into account in making guidelines
(2) In making *approved occupational clothing guidelines, the matters to which the Treasurer is to have regard include:
(a) how distinctively a *uniform’s *design identifies the wearer as a person associated (directly or indirectly) with:
(i) the applicant for registering the uniform’s design; or
(ii) a group consisting of the applicant and one or more of the applicant’s *associates; and
(b) the nature of the *business or activities the applicant carries on.
Guidelines to be published
(3) The Treasurer must arrange for the *approved occupational clothing guidelines to be:
(a) published in the Gazette; and
(b) made available, without charge, to any interested entity.
Subdivision 34-G—The Industry Secretary
Table of sections
34-60 Industry Secretary to give Commissioner information about entries
34-65 Delegation of powers by Industry Secretary
34-60 Industry Secretary to give Commissioner information about entries
The *Industry Secretary must give the Commissioner information about entries of *designs on the Register of Approved Occupational Clothing if the Commissioner requests him or her to do so.
34-65 Delegation of powers by Industry Secretary
The *Industry Secretary may, by writing, delegate any or all of his or her functions and powers under this Division to an individual who holds or performs the duties of:
(a) a *Senior Executive Service office; or
(b) an office of Senior Officer Grade A, B or C;
in the Department of Industry, Science and Tourism.
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