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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Public Sector Employment (Award Entitlements)
Act 2006
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 2
1. Purposes 2
2. Commencement 2
3. Definitions 2
4. Awards 6
5. Preserved award 6
6. Relevant award 7
7. Family Provisions standard 7
8. Act binds the Crown 7
PART 2--PRESERVATION OF AWARD CONDITIONS 8
9. Preserved entitlements 8
10. Preservation of award conditions 8
PART 3--FAIRNESS TEST 9
11. Employee includes prospective employee 9
12. Procedure for determining designated preserved award 9
13. Fairness test 10
14. Proposed workplace agreements must pass fairness test 11
15. Limitation on certain powers of public sector employers 11
PART 4--GENERAL 13
16. Exclusion of other legislation 13
17. WRA not subject to Ministerial direction 13
18. Regulations 13
i
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Clause Page
PART 5--AMENDMENT OF OTHER ACTS 14
19. Delegation power in Workplace Rights Advocate Act 2005 14
20. Amendment of Commonwealth Powers (Industrial Relations)
Act 1996 14
ENDNOTES 15
INDEX 16
ii
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
PARLIAMENT OF VICTORIA
A BILL
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.
Public Sector Employment (Award
Entitlements) Act 2006
The Parliament of Victoria enacts as follows:
1
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 1--Preliminary
s. 1
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are to--
(a) ensure that Victorian public sector employers
continue to provide fair minimum
5
employment conditions to public sector
employees;
(b) establish a fairness test for workplace
agreements made by public sector
employers;
10
(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
15
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.
20
(2) If this Act does not come into operation before
1 December 2006, it comes into operation on that
day.
3. Definitions
(1) In this Act--
25
"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
30
of the Commonwealth Act;
2
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 1--Preliminary
s. 3
"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
5
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;
10
"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
15
whether the agreement passes the fairness
test;
"employee" means employee of a public sector
employer including, in relation to the Chief
Commissioner of Police, a member of the
20
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
25 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;
30
"fairness test" has the meaning given by
section 13;
3
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 1--Preliminary
s. 3
"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
5
decision of the Full Bench of the Australian
Industrial Relations Commission on
8 August 2005 published in Print PR082005;
"industrial instrument" means--
(a) an award as in force at the preservation
10
time;
(b) a certified agreement;
(c) an agreement in relation to which an
application for certification was made
before the preservation time but not
15
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
20
Employment Advocate before that
time;
(e) an exceptional matters order;
(f) an award made under section 170MX
of the pre-amendment Commonwealth
25
Act;
(g) any order of the Australian Industrial
Relations Commission as in force at the
preservation time;
"preservation time" means the time immediately
30
before the commencement of Schedule 1 to
the Workplace Relations Amendment (Work
Choices) Act 2005 of the Commonwealth;
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551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 1--Preliminary
s. 3
"pre-amendment Commonwealth Act" means
the Workplace Relations Act 1996 of the
Commonwealth as in force at the
preservation time;
"public sector employer" means--
5
(a) an entity responsible for employing a
person in--
(i) a public sector body within the
meaning of the Public
Administration Act 2004; or
10
(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
15
the meaning of the Police Regulation
Act 1958; or
(c) an entity, or an entity of a specified
class, prescribed to be a public sector
employer for the purposes of this Act;
20
"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
25
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
30
meaning of the Police Regulation Act 1958 are
treated as employees of the Chief Commissioner
of Police for the purposes of this Act.
5
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 1--Preliminary
s. 4
4. Awards
(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.
5
(2) An award includes a term of an award that is a
common rule in Victoria under section 141, 142
or 493A of the pre-amendment Commonwealth
Act.
(3) An award does not include--
10
(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
15
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
20
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
25
Relations Commission.
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551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 1--Preliminary
s. 6
6. Relevant award
(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
5
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
10
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
15
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
20
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
25
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.
30
8. Act binds the Crown
This Act binds the Crown.
__________________
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551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 2--Preservation of Award Conditions
s. 9
PART 2--PRESERVATION OF AWARD CONDITIONS
9. Preserved entitlements
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
5
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
10
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
15
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
20
workplace determination that is in operation.
__________________
8
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 3--Fairness Test
s. 11
PART 3--FAIRNESS TEST
11. Employee includes prospective employee
For the purposes of this Part, "employee"
includes a prospective employee.
12. Procedure for determining designated preserved
award
5
(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
10
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).
15
(2) On an application under sub-section (1), the WRA
must determine that 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
20
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
25
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.
9
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 3--Fairness Test
s. 13
13. Fairness test
(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
5
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
10
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--
15
(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
20
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
25
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
30
WRA has made a determination to that effect
under this section.
10
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 3--Fairness Test
s. 14
14. Proposed workplace agreements must pass fairness
test
(1) A public sector employer must not offer, to an
employee or trade union, a workplace agreement
that does not pass the fairness test.
5
(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
10
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
15
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.
20
(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
25
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
30
fairness test.
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Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 3--Fairness Test
s. 15
(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.
__________________
12
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 4--General
s. 16
PART 4--GENERAL
16. Exclusion of other legislation
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
5
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.
10
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
15
Act.
__________________
13
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Part 5--Amendment of Other Acts
s. 19
PART 5--AMENDMENT OF OTHER ACTS
See: 19. Delegation power in Workplace Rights Advocate
Act No.
Act 2005
100/2005.
Statute Book:
In section 9 of the Workplace Rights Advocate
www.dms.
dpc.vic.
Act 2005, after "this Act" insert "or any other
gov.au
Act".
5
See: 20. Amendment of Commonwealth Powers (Industrial
Act No.
Relations) Act 1996
59/1996
and
After section 5(1)(m) of the Commonwealth
amending
Act No.
Powers (Industrial Relations) Act 1996 insert--
18/2003.
LawToday:
"(n) matters that would allow or require a public
10 www.dms.
sector employer within the meaning of the
dpc.vic.
gov.au
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,
15
make or lodge with the Employment
Advocate a workplace agreement that does
not pass the fairness test within the meaning
of that Act.".
14
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
15
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
Public Sector Employment (Award Entitlements) Act 2006
Act No.
INDEX
Subject Section
Act
amendments to other Acts 1920
application 16
commencement 2
Crown bound by 8
purposes 1
3, 5
Australian Fair Pay Commission
3, 5
Australian Industrial Relations Commission
Australian workplace agreements (def.) 3
Awards
definition 3, 4
designated preserved awards 3, 12
preserved awards 56, 12
preserved entitlements under 910
relevant awards 6, 9
Certified agreements (def.) 3
Commonwealth Act (def.) 3
15
Corporations legislation displacement provisions
36, 9, 11
Definitions
3, 12
Designated preserved awards
Employees (def.) 3, 11
Employment Advocate (def.) 3
Exceptional matters orders (def.) 3
Fairness test
definition 3
required for workplace agreements 10, 1215
3, 7
Family Provisions standard
Industrial instruments (def.) 3
7, 17
Minister
3
Police
Pre-amendment Commonwealth Act (def.) 3
Preservation time (def.) 3
56, 12
Preserved awards
910
Preserved entitlements
Public sector employers
definition 3
duty to preserve award conditions of employees 10
exclusion of other legislation regarding 16
relevant awards binding on 6
workplace agreements offered to or by 10, 1215
18
Regulations
6, 9
Relevant awards
3, 1215
Trade unions
Workplace agreements
definition 3
fairness test 10, 1215
3, 10
Workplace determinations
3, 1213, 17
WRA
16
551397B.I1-7/2/2006 BILL LA INTRODUCTION 7/2/2006
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