Public Sector Acts (Further Workplace Protection and Other Matters) Bill
Introduction Print
EXPLANATORY MEMORANDUM
551399
BILL LA INTRODUCTION 23/8/2006
General
The Public Administration Act 2004 (PAA) created a new, comprehensive framework to ensure good governance of the whole of the Victorian public sector, and also deals with the structure of the public service, the creation and abolition of Departments and the employment of public servants.
This Bill makes a number of amendments to the PAA to improve the operation of the Act, ensure continuing good governance in the public sector, and to clarify the role of the State Services Authority (SSA).
The bulk of the Bill is directed towards creating a new unfair dismissal jurisdiction which is to reside with the Public Sector Standards Commissioner (PSSC) within the SSA. The purpose of this jurisdiction is to restore, insofar as possible, any unfair dismissal rights which may have accrued to public sector employees which were removed by the Commonwealth's recent Work Choices legislation. This approach is consistent with the principle espoused in section 8(d) of the PAA which provides that public sector employees have a reasonable avenue of redress against unfair or unreasonable treatment.
Consistent with this approach, the Bill also inserts new objectives in the PAA and the Parliamentary Administration Act 2005 which state that further objectives are to preserve insofar as possible any unfair dismissal rights which may have accrued to public sector employees and Parliamentary officers which were removed by the Commonwealth's recent Work Choices legislation, and to assist in giving effect to Australia's international obligations under certain International Labour Organisation conventions.
Part 2 of the Bill provides for a new role for the SSA, enabling public sector employees employed by a public sector body with 100 employees or fewer to apply to the PSSC within the Authority for relief in respect of termination on the grounds that the termination was harsh, unjust or unreasonable. The role is to be performed by the PSSC independently who is provided with a range of powers including the ability to conciliate, arbitrate and order that an employee be reinstated or compensated.
The unfair dismissal provisions to be inserted in the PAA are also replicated and inserted into the Parliamentary Administration Act 2005 to give Parliamentary officers the same rights.
The Bill also amends the Public Sector Employment (Award Entitlements) Act 2006, and consequent on those amendments, the Commonwealth Powers (Industrial Relations) Act 1996. Theseamendments ensure that public sector employers do not have the legal capacity to offer, or accept an offer from an employee, to enter into a statutory industrial agreement which contains any terms and conditions which are materially different from the terms and conditions in the employee's collective agreement, relevant award or preserved award. Publicsector employers do not have the legal capacity to offer these types ofagreements, and are prohibited from doing so.
Another important element of the Bill are provisions which will subject the SSA to the application of the Freedom of Information Act 1982 (FOI) and Part 7A of the Financial Management Act 1994 (FMA).
The application of FOI is retrospective to the date of creation of the SSA, whilst the application of Part 7A will mean that the SSA and its staff must comply with Victorian Government Purchasing Board Supply Policies (see section 54L of the FMA). This provision only operates prospectively, and does not affect any contracts already entered into by the SSA.
The Bill also contains other provisions that—
· modify the definition of "public entity" in section 5 of the PAA;
· amend the application of the public sector values to further protect the independence of officers acting judicially or quasi-judicially; and
· improve the operation of the right of return in section 27 of the PAA.
The Bill also makes amendments to the Audit Act 1994 to—
· ensure that the Auditor-General's annual plan can be publicly released before the commencement of a financial year once it has been provided to the clerk of each House of Parliament by the Auditor-General; and
· require the Auditor-General to apply new auditing standards issued by the Auditing and Assurance Standards Board, rather than the CPA Australia and the Institute of Chartered Accountants in Australia as previously.
The Bill also amends the Commonwealth Games Arrangements Act 2001 (CGAA) to transfer various rights such as warranties and indemnities under agreements for the supply of goods and services to the State, before M2006 ceases.
The transfer of the rights and liabilities will be achieved in the same way that the assets and liabilities of the 2007 World Swimming Championships Corporation ("the WSC Corporation") will be transferred when it ceases to exist under the World Swimming Championships Act 2004.
The Act will also be amended to provide that M2006 ceases to exist on a datecontained in an Order made by the Governor in Council. If no Order ismade then the default date on which M2006 will cease to exist will be 31December 2006.
The Bill also contains an amendment to the Ombudsman Act 1973 to allow the Ombudsman to delegate any power granted under another Act.
Clause Notes
PART 1—PRELIMINARY
Clause 1 states the purposes of the Bill.
Clause 2 is the commencement provision. The Bill will commence operation on the day after Royal Assent, with the exception of section 11, which is deemed to have come into operation on 4April 2005.
PART 2—UNFAIR DISMISSAL AMENDMENTS
Clause 3 inserts a new Subdivision 5A in Division 2 of Part 4 of the Public Administration Act 2004 (PAA). That Subdivision is as follows:
A new section 70A is inserted which vests the SSA with a new Role 5. The main purpose of role 5 of the SSA is to enable certain public sector employees whose employment is terminated to apply for relief in respect of that termination on the grounds that it was harsh, unjust or unreasonable.
The Subdivision is intended to provide the relevant public sector employees and employers with a "fair go all round" in the consideration of applications relating to termination of employment. The concept of a "fair go all round" was referred to by Sheldon J in the case of Re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
New section 70B specifies that role 5 of the SSA is to be performed by the PSSC independently.
New section 70C contains definitions of terms used in Subdivision 5A. Section 70C (1) sets out the principal definitions:
"Commonwealth Act", which is defined to mean the Workplace Relations Act 1996.
"employer", which is defined to mean an entity that employs, or usually employs, a public sector employee in the capacity of public sector employee.
"operational reasons", which is defined to mean reasons of an economic, technological, structural or similar nature relating to an employer's undertaking, establishment, service or business, or to a part of an employer's undertaking, establishment, service or business.
"relevant public sector employee", which is defined to mean a person who, immediately before the termination of his or her employment, was a public sector employee and who—
· cannot apply under section 643 of the Commonwealth Act to the Australian Industrial Relations Commission (AIRC) on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include thatground, because his or her employer employed 100employees or fewer at the relevant time; and
· is not excluded from making an application by section70D.
Section 70C(2) gives any expression used in this Subdivision the same meaning as Division 4 of Part 12 of the Commonwealth Act, unless the contrary intention appears.
New section 70D deals with exclusions. Sub-section (1) excludes the following kinds of public sector employees from theoperation of this Subdivision—
· a public sector employee, who by force of section 638(1) of the Commonwealth Act, is excluded from the operation of Subdivision B of Division 4 of Part 12 of that Act. The kinds of public sector employees excluded by force of section 638(1) include an employee engaged under a contract for a specified period or task, an employee serving a probationary period, a casual employee in certain circumstances, a trainee, employees who are not employed under award-derived conditions and whose remuneration exceeds a specified limit, and an employee engaged on a seasonal basis.
· a public sector employee who is a member of a class ofpublic sector employee excluded from the operation of this Subdivision by regulations made under sub-section (2).
Sub-section (2) enables regulations to be made excluding a specified class of public sector employee from the operation of this Subdivision.
New section 70E sets out the prerequisites for an application to be lodged with the PSSC in relation to a termination.
Sub-section (1) enables a relevant public sector employee to apply to the PSSC for relief in respect of the termination of that employment on the ground that the termination was harsh, unjust or unreasonable, subject to sub-sections (2) and (4).
Sub-section (2) prohibits an employee from making an application unless they have completed a qualifying period of employment, as defined in sub-section (3).
Sub-section (3) defines the qualifying period under sub-section(2) as 6 months, unless a shorter or longer period is agreed in writing before the employment commences, in which case that period becomes the qualifying period.
Sub-section (4) prohibits the making of an application under sub-section (1) if the employee's employment was terminated for genuine operational reasons or reasons that include genuine operational reasons. "Operational reasons" is defined in section 70C(1).
Sub-section (5) requires an application under sub-section (1) to be lodged within 21 days after the day on which the termination took effect, or within such period as is allowed by the PSSC. ThePSSC can accept an application which is lodged after the 21day period if refusing the application would be unfair. It may be unfair to refuse an application, for example, if the employee had applied within time for a remedy under other legislation, but the application had been refused for want of jurisdiction.
Sub-section (6) allows an application to be discontinued by an applicant in accordance with the regulations. This may be done whether or not the public sector employer and relevant employee have agreed to settle the matter.
The new section 70F enables applications by employers to dismiss applications made under section 70E(1) based on a jurisdictional objection, other than objections relating to operational reasons, which are dealt with in section 70I.
Sub-section (1) allows an employer respondent to an application, in respect of a termination of employment to apply for the dismissal of an application based on a jurisdictional objection.
Sub-section (2) allows the employer to apply for dismissal of an application at any stage, including before proceedings have begun, based on a jurisdictional objection.
Sub-section (3) requires the PSSC, if satisfied that an application cannot be made because of a lack of jurisdiction based on either sections 70D or 70E(2), to make an order dismissing the application.
Sub-section (4) enables the PSSC to make an order under sub-section (3) because on the material before him or her an application made under section 70E(1) is outside his or her jurisdiction, even if an application in respect of want of jurisdiction has not been made by the respondent.
Sub-section (5) provides that where the PSSC is not satisfied in relation to an application made under sub-section (1) based on want of jurisdiction on the grounds in sub-section (3), the PSSC must make an order refusing the application for dismissal.
Sub-section (6) enables the PSSC to make an order under sub-section (3) or (5) without holding a hearing.
New section 70G sets out the steps to dismiss applications that are frivolous, vexatious or lacking in substance. The terms "frivolous, vexatious or lacking in substance" are not defined and should be attributed their ordinary meaning.
Sub-section (1) allows an employer respondent to apply for a dismissal of an application on the ground that it is frivolous, vexatious or lacking in substance.
Sub-section (2) provides that where the PSSC is satisfied that an application is frivolous, vexatious or lacking in substance, he or she must make an order dismissing the application.
Sub-section (3) provides that where the PSSC is not satisfied that an application made under 70E(1) is frivolous, vexatious or lacking in substance, the PSSC must make an order refusing the application under sub-section (1).
Sub-section (4) enables the PSSC to make an order under sub-section (2) or (3) without holding a hearing.
New section 70H provides that where an application is made pursuant to section 70E(5) for an application to be lodged after the period of 21 days, the PSSC is not necessarily required to hold a hearing to determine that application.
New section 70I provides for how the PSSC is to consider jurisdictional issues in an application alleging that a termination was harsh, unjust or unreasonable, which relates to a termination that was for genuine operational reasons or reasons that include genuine operational reasons.
Sub-section (1) provides that if an application is made under section 70E(1) and the respondent has applied for the dismissal of the application on the grounds that the termination was for genuine operational reasons or reasons that include genuine operational reasons, or it appears to the PSSC on the face of the material before him or her that the termination may have been for such reasons, the PSSC must hold a hearing to determine the issue.
Sub-section (2) provides that if, as a result of the hearing conducted under sub-section (1), the PSSC is satisfied that the employee's employment was terminated for genuine operational reasons, the PSSC must by order dismiss the application made under section 70E(1).
Sub-section (3) provides that a finding by the PSSC that he or she is not satisfied that the termination was for genuine operational reasons is final and binding between the parties in any proceedings before the PSSC.
Sub-section (4) provides that the PSSC is not required to hold a hearing in relation to an application that has already been dismissed under section 70F(3) or 70G(2).
New section 70J requires the PSSC to attempt to have all applications settled by conciliation between the parties in the first instance.