Version No. 001
Public Sector Employment (Award Entitlements) Act 2006
Act No. 15/2006
Version as at 3 July 2006
table of provisions
SectionPage
1
SectionPage
Part 1—Preliminary
1.Purposes
2.Commencement
3.Definitions
4.Awards
5.Preserved award
6.Relevant award
7.Family Provisions standard
8.Act binds the Crown
Part 2—Preservation of Award Conditions
9.Preserved entitlements
10.Preservation of award conditions
Part 3—Fairness Test
11.Employee includes prospective employee
12.Procedure for determining designated preserved award
13.Fairness test
14.Proposed workplace agreements must pass fairness test
15.Limitation on certain powers of public sector employers
Part 4—General
16.Exclusion of other legislation
17.WRA not subject to Ministerial direction
18.Regulations
Part 5—Amendment of Other Acts
19.Delegation power in Workplace Rights Advocate Act 2005
20.Amendment of Commonwealth Powers (Industrial
Relations) Act1996
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
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Version No. 001
Public Sector Employment (Award Entitlements) Act 2006
Act No. 15/2006
Version as at 3 July 2006
1
Public Sector Employment (Award Entitlements) Act 2006
Act No. 15/2006
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purposes
The purposes of this Act are to—
(a)ensure that Victorian public sector employers continue to provide fair minimum employment conditions to public sector employees;
(b)establish a fairness test for workplace agreements made by public sector employers;
(c) amend the Workplace Rights Advocate Act 2005 to provide for the delegation of additional functions;
(d) amend the Commonwealth Powers (Industrial Relations) Act 1996 to exclude certain matters from those referred by that Act to the Parliament of the Commonwealth.
2.Commencement
(1)Subject to sub-section (2), this Act comes into operation on a day to be proclaimed.
(2)If this Act does not come into operation before 1December 2006, it comes into operation on that day.
3.Definitions
(1)In this Act—
"Australian Fair Pay Commission" means the Australian Fair Pay Commission established under the Commonwealth Act;
"Australian Industrial Relations Commission" means the Commission within the meaning of the Commonwealth Act;
"Australian workplace agreement" has the same meaning as it has in the pre-amendment Commonwealth Act;
"award" has the meaning given by section 4;
"certified agreement" has the same meaning as it has in the pre-amendment Commonwealth Act;
"Commonwealth Act" means the Workplace Relations Act 1996 of the Commonwealth as in force from time to time;
"designated preserved award",in relation to an employee to whom a workplace agreement will apply, means a preserved award that the WRA under section 12 has determined to be appropriate for the purpose of deciding whether the agreement passes the fairness test;
s. 3
"employee" means employee of a public sector employer including, in relation to the Chief Commissioner of Police, a member of the force within the meaning of the Police Regulation Act 1958;
Note:See sub-section (2). Also, section 11 gives "employee" an extended meaning for the purposes of Part 3.
"Employment Advocate" has the same meaning as it has in the Commonwealth Act;
"exceptional matters order" has the same meaning as it has in the pre-amendment Commonwealth Act;
"fairness test" has the meaning given by section13;
"Family Provisions standard" means the standard set of terms and conditions of employment published by the Minister under section 7(1);
"Family Provisions Test Case" means the decision of the Full Bench of the Australian Industrial Relations Commission on 8August 2005 published in Print PR082005;
"industrial instrument" means—
(a)an award as in force at the preservation time;
(b) a certified agreement;
(c)an agreement in relation to which an application for certification was made before the preservation time but not certified before that time;
(d) an Australian workplace agreement filed with the Employment Advocate before the preservation time, whether or not approved or receipted by the Employment Advocate before that time;
s. 3
(e)an exceptional matters order;
(f)an award made under section 170MX of the pre-amendment Commonwealth Act;
(g)any order of the Australian Industrial Relations Commission as in force at the preservation time;
"preservation time" means the time immediately before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth;
"pre-amendment Commonwealth Act" means the Workplace Relations Act 1996 of the Commonwealth as in force at the preservation time;
"public sector employer" means—
(a)an entity responsible for employing a person in—
(i)a public sector body within the meaning of the Public Administration Act 2004; or
(ii)a Department within the meaning of the Parliamentary Administration Act 2005; or
(b)the Chief Commissioner of Police in relation to a member of the force within the meaning of the PoliceRegulation Act 1958; or
s. 3
(c)an entity, or an entity of a specified class, prescribed to be a public sector employer for the purposes of this Act;
"trade union" has the same meaning as it has in the Commonwealth Act;
"workplace agreement" has the same meaning as it has in the Commonwealth Act;
"workplace determination" has the same meaning as it has in the Commonwealth Act;
"WRA" means the Workplace Rights Advocate under the Workplace Rights Advocate Act 2005.
(2)To avoid doubt, members of the force within the meaning of the Police Regulation Act 1958 are treated as employees of the Chief Commissioner of Police for the purposes of this Act.
4.Awards
s. 4
(1)Subject to sub-sections (2) and (3), for the purposes of this Act, "award" has the same meaning as it has in the pre-amendment Commonwealth Act.
(2)An award includes a term of an award that is a common rule in Victoria under section 141, 142 or493A of the pre-amendment Commonwealth Act.
(3)An award does not include—
(a)an exceptional matters order;
(b)an award made under section 170MX of the pre-amendment Commonwealth Act.
5.Preserved award
(1)For the purposes of this Act, a "preserved award" means an award as in force at the preservation time.
(2)For the purposes of this Act, in addition to the terms and conditions of employment contained in a preserved award, the preserved award is deemed to include any increase in minimum pay rates after the preservation time as a result of—
(a)a decision or determination of the Australian Fair Pay Commission;
(b)an order of the Australian Industrial Relations Commission.
6.Relevant award
s. 6
(1)For the purposes of this Act, a "relevant award", in relation to an employee and his or her employer, means a preserved award—
(a)that was binding on the employer at the preservation time; and
(b)to which the employee's employment was subject at the preservation time or would have been subject had the employee been employed by the employer at the preservation time.
(2)For the purposes of this Act, more than one preserved award may be a relevant award.
(3)If, after the preservation time, a public sector employer (the "new employer") becomes the successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of another public sector employer (the "old employer"), a preserved award binding on the old employer at the preservation time is taken to be binding on the new employer at the preservation time for the purposes of sub-section(1).
7.Family Provisions standard
(1)The Minister may, by notice published in the Government Gazette, specify a standard set of terms and conditions of employment based on the Family Provisions Test Case.
(2)The power conferred on the Minister by sub-section (1) may only be exercised once.
8.Act binds the Crown
This Act binds the Crown.
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Part 2—Preservation of Award Conditions
9.Preserved entitlements
s. 9
For the purposes of this Part, the "preserved entitlements" of an employee means the terms and conditions of employment of the employee under a relevant award to the extent that they are not excluded or modified by an industrial instrument that is in force under the Commonwealth Act.
10.Preservation of award conditions
(1)A public sector employer must not provide a term or condition of employment to an employee that is less favourable to the employee than the employee's preserved entitlements.
(2)Sub-section (1) does not apply—
(a)if the public sector employer makes a workplace agreement binding on the employer and the employee that passes the fairness test, for as long as that workplace agreement is in operation; or
(b)to the extent that it is inconsistent with a workplace determination that is in operation.
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Part 3—Fairness Test
11.Employee includes prospective employee
s. 11
For the purposes of this Part, "employee" includes a prospective employee.
12.Procedure for determining designated preserved award
(1)For the purposes of this Part, if—
(a)a public sector employer or a trade union proposes to make a workplace agreement; and
(b) there is no relevant award in relation to some or all of the employees to whom the agreement will apply—
the employer or trade union must apply in writing to the WRA for a determination under sub-section(2).
(2) On an application under sub-section (1), the WRA must determinethat a preserved award or preserved awards are appropriate for the purpose of deciding whether the agreement passes the fairness test and inform the applicant and the public sector employer (if the applicant is not the employer) in writing of the determination .
(3)For the purposes of sub-section (2), the WRA must determine a preserved award that is, or preserved awards that are, appropriate having regard to the kind of work performed or to be performed by employees under the proposed workplace agreement and any other matter that the WRA considers relevant.
13.Fairness test
s. 13
(1)Before offering a workplace agreement to an employee or a trade union, a public sector employer must submit the proposed workplace agreement to the WRA for determination as to whether it passes the fairness test.
(2)A workplace agreement passes the fairness test if it does not disadvantage employees in relation to their terms and conditions of employment.
(3)A workplace agreement disadvantages employees in relation to their terms and conditions of employment if its operation would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under—
(a)relevant awards or designated preserved awards; and
(b)the Family Provisions standard if a relevant award or designated preserved award has not been varied in response to the Family Provisions Test Case; and
(c)any State or Commonwealth law that the WRA considers relevant.
(4)The WRA must, as soon as possible after receiving a proposed workplace agreement under sub-section (1), determine whether it passes the fairness test and inform the public sector employer in writing of the determination.
(5)For the purposes of this Part, a workplace agreement is taken to pass the fairness test if the WRA has made a determination to that effect under this section.
14.Proposed workplace agreements must pass fairness test
s. 14
(1)A public sector employer must not offer, to an employee or trade union, a workplace agreement that does not pass the fairness test.
(2)A public sector employer must not accept an offer, from an employee or trade union, of a workplace agreement that does not pass the fairness test.
(3)A public sector employer must not make a workplace agreement that does not pass the fairness test.
(4)A public sector employer must not lodge with the Employment Advocate a workplace agreement that does not pass the fairness test.
15.Limitation on certain powers of public sector employers
(1)A public sector employer has no legal capacity or power to offer, to an employee or trade union, a workplace agreement that does not pass the fairness test.
(2)A public sector employer has no legal capacity or power to accept an offer, from an employee or trade union, of a workplace agreement that does not pass the fairness test.
(3)A public sector employer has no legal capacity or power to make a workplace agreement that does not pass the fairness test.
(4)A public sector employer has no legal capacity or power to lodge with the Employment Advocate a workplace agreement that does not pass the fairness test.
(5)The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the Corporations legislation.
Note:Section 5G of the Corporations Act provides that if a State law declares a provision of State law to be a Corporations legislation displacement provision for the purposes of that section, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not operate to the extent necessary to avoid the inconsistency.
s. 15
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Part 4—General
16.Exclusion of other legislation
s. 16
This Act applies despite anything to the contrary in any other Act, whether passed before or after the commencement of this Act (unless expressly excluded) and is intended to limit any provision in respect of the legal capacity and powers of a public sector employer.
17.WRA not subject to Ministerial direction
The functions of the WRA under this Act are not subject to the Minister's direction or control.
18.Regulations
The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.
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Part 5—Amendment of Other Acts
See:
Act No.
100/2005.
Statute Book:
dpc.vic.
gov.au
19.Delegation power in Workplace Rights Advocate Act 2005
s. 19
In section 9 of the Workplace Rights Advocate Act 2005, after "this Act" insert "or any other Act".
See:
Act No.
59/1996
and amending
Act No.
18/2003.
LawToday:
dpc.vic.
gov.au
20.Amendment of Commonwealth Powers (Industrial Relations) Act1996
After section 5(1)(m) of the Commonwealth Powers (Industrial Relations) Act 1996insert—
"(n) matters that would allow or require a public sector employer within the meaning of the Public Sector Employment (Award Entitlements) Act 2006 to provide a term or condition of employment in breach of section 10 of that Act or to offer, accept, make or lodge with the Employment Advocate a workplace agreement that does not pass the fairness test within the meaning of that Act.".
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ENDNOTES
1.General Information
Endnotes
Minister's second reading speech—
Legislative Assembly: 8 February 2006
Legislative Council: 4 April 2006
The long title for the Bill for this Act was "to protect employment entitlements of certain public sector employees, to amend the Workplace Rights Advocate Act 2005 and the Commonwealth Powers (Industrial Relations) Act 1996 and for other purposes."
The Public Sector Employment (Award Entitlements) Act 2006, No. 15 was assented to on 11 April 2006 and came into operation on 3July 2006: Government Gazette 22 June 2006 page 1239.
2.Table of Amendments
Endnotes
There are no amendments made to the Public Sector Employment (Award Entitlements) Act 2006 by Acts and subordinate instruments.
3.Explanatory Details
Endnotes
No entries at date of publication.
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