Victorian Consolidated Legislation

Fair Work (Commonwealth Powers) Act 2009 - SECT 5

Matters excluded from a reference

5. Matters excluded from a reference



(1) A matter referred by section 4(1) does not include-

   (a)  matters pertaining to the number, identity or appointment (other than
        terms and conditions of appointment) of employees in the public sector
        who are not law enforcement officers;





   (b)  matters pertaining to the number or identity of employees in the
        public sector dismissed or to be dismissed on grounds of redundancy;

   (c)  matters pertaining to Ministers, members of the Parliament, judicial
        officers or members of administrative tribunals;

   (d)  matters pertaining to persons holding office in the public sector to
        which the right to appoint is vested in the Governor in Council or a
        Minister (including the Premier);

   (e)  matters pertaining to persons employed as executives within the
        meaning of the Public Administration Act 2004 or persons employed at
        higher managerial levels in the public sector;

   (f)  matters pertaining to persons employed as Ministerial officers under
        Part 6 of the Public Administration Act 2004;

   (g)  matters pertaining to persons holding office as Parliamentary officers
        (but not persons employed as Parliamentary officers under Division 3
        of Part 3 of the Parliamentary Administration Act 2005) or persons
        employed as Department Heads within the meaning of the
        Parliamentary Administration Act 2005, including the Secretary of the
        Department of Parliamentary Services;

   (h)  matters pertaining to-

   (i)  the transfer of employees between public sector bodies; or

   (ii) the redundancy of employees of a public sector body- as a result of a
        restructure by or under an Act;

        (i)    the following matters relating to provision of essential
               services or to a state of emergency-

   (i)  directions to employees of a public sector body to perform work
        (including to perform work at a particular time or place, or in a
        particular way), being directions that are given under the Act under
        which the relevant proclamation or declaration is made;

   (ii) directions to employees of a public sector body not to perform work
        (including not to perform work at a particular time or place, or in a
        particular way), being directions that are given under the Act under
        which the relevant proclamation or declaration is made;

   (j)  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;

   (k)  matters that would allow or require a public sector employer within
        the meaning of the
        Public Sector Employment (Award Entitlements) Act 2006 to offer an
        employee within the meaning of that Act, or to accept an offer from an
        employee of, a statutory industrial agreement within the meaning of
        that Act that provides any terms or conditions of employment that are
        materially different from the terms and conditions of employment that
        would otherwise apply to the employee in employment with the employer
        under a collective agreement or that would apply to the employee under
        the terms of a relevant award or a designated preserved award within
        the meaning of that Act.

(2) In addition to the matters set out in subsection (1), a matter referred by
section 4(1) does not include-

   (a)  matters pertaining to the number, identity or appointment (including
        terms and conditions of appointment, to the extent provided for in
        paragraph (b)) of law enforcement officers;

   (b)  matters pertaining to probation, promotion, transfer from place to
        place or position to position, physical or mental fitness, uniform,
        equipment, discipline or termination of employment of law enforcement
        officers except-

   (i)  matters pertaining to the payment of allowances and reimbursement of
        expenses and pertaining to notice of termination of employment and
        payment in lieu of notice of termination of employment; and

   (ii) to the extent that Divisions 1 and 2 of Part 6-4 of the Commonwealth
        Fair Work Act, as originally enacted, deal with the matters.