The Bill is introduced to impose certain obligations on public sector employers, namely to apply terms and conditions of employment no less beneficial to employees than the award entitlements of Victorian public sector employees as they were prior to Schedule 1 to the Workplace
Relations Amendment (Work Choices) Act 2005 of the Commonwealth coming into operation. For this purpose, the Bill preserves public sector employees' award entitlements and establishes a fairness test for workplace agreement making in the Victorian public sector that provides a floor for fair bargaining for public sector employees and their unions. The Bill also amends the Workplace Rights Advocate Act 2005 and the Commonwealth
Powers (Industrial Relations) Act 1996 .
Clause 1 sets out the purposes of the Bill which are to—
 ensure that Victorian public sector employers continue to provide fair minimum employment conditions to public sector employees;
 establish a fairness test for workplace agreements made by public sector employers;
 amend the Workplace Rights Advocate Act 2005 provide for the delegation of additional functions; to
 amend the Commonwealth Powers (Industrial
Relations) Act 1996 to exclude certain matters from those referred by that Act to the Parliament of the
Commonwealth.
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BILL LA CIRCULATION 8/2/2006

Clause 2 provides for commencement arrangements.
Sub-clause (1) states that the Act will come into operation on a day to be proclaimed.
Sub-clause (2) states that if the Act does not come into operation before 1 December 2006 it comes into operation on that day.
This means that the Act will come into force on the earlier of the proclaimed day or 1 December 2006.
Clause 3 Sub-clause (1) contains definitions of terms used in the Bill.
The principal definitions are—
"Commonwealth Act" is defined to mean the Workplace
Relations Act 1996 of the Commonwealth as in force (that is, as amended) from time to time. This means that "Commonwealth
Act" includes the amendments introduced by the Workplace
Relations Amendment (Work Choices) Act 2005 of the
Commonwealth;
"designated preserved award" in relation to an employee to whom a workplace agreement will apply, is defined to mean a preserved award that the Workplace Rights Advocate has determined under clause 12 of the Bill to be appropriate for the purpose of deciding whether the agreement passes the fairness test. A designated preserved award is used for the purposes of the fairness test in circumstances where there is no relevant award in relation to the employee;
"employee" is defined to mean an 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 ;
"fairness test" has the meaning given by clause 13;
"Family Provisions standard" is defined to mean the standard set of terms and conditions of employment published by the
Minister for Industrial Relations under clause 7(1). Under that clause, the Family Provisions standard is to be based on the
Family Provisions Test Case decision of the Australian Industrial
Relations Commission;
"industrial instrument" is defined to include any of the following instruments made under the pre-amendment
Commonwealth Act: an award as in force at the preservation time, a certified agreement, an Australian workplace agreement, an exceptional matters order, an award made under section
170MX, or any order of the Australian Industrial Relations
Commission as in force at the preservation time.
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An "industrial instrument" also includes an agreement in relation to which an application for certification was made before the preservation time but not certified before that time and 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.
Such instruments may come into operation after the preservation time pursuant to the transitional arrangements in Part 8 of
Schedule 14 to the Workplace Relations Amendment (Work
Choices) Act 2005 of the Commonwealth.
This definition is used in determining employees' preserved entitlements under clause 9;
"preservation time" is defined to mean 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" is defined to mean the
Workplace Relations Act 1996 of the Commonwealth as in force at the preservation time. This means that the "pre-amendment
Commonwealth Act" does not include the principal amendments
(including changes to the content of awards) introduced by the
Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth;
"public sector employer" is defined to include—
 an entity responsible for employing a person in a public sector body within the meaning of the Public
Administration Act 2004 ;
 an entity responsible for employing a person in a
Department within the meaning of the Parliamentary
Administration Act 2005 . Employees in such
Departments work within the Victorian Parliament;
 the Chief Commissioner of Police in relation to a member of the force within the meaning of the Police
Regulation Act 1958 . Members of the force are officers and other members of the police force of
Victoria.
Under paragraph (c) of this definition, additional entities may be prescribed by regulations to be public sector employers for the purposes of the Act;
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"workplace agreement" has the same meaning as it has in the
Commonwealth Act. A workplace agreement is either a collective agreement (being an agreement between an employer and employees or a union, including a greenfields agreement) or an Australian workplace agreement.
Sub-clause (2) of clause 3 provides that 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.
This sub-clause is included for the avoidance of doubt.
Clause 4 defines an "award" .
Sub-clause (1) gives "award" the same meaning as it has in the pre-amendment Commonwealth Act.
Sub-clause (2) makes clear that "award" includes a term of an award operating as a common rule in Victoria.
Sub-clause (3) excludes from the definition of "award" in subclause (1) both exceptional matters orders and awards made under section 170MX of the pre-amendment Commonwealth
Act. This means that neither of these instruments is regarded as an award for the purposes of preserving award entitlements under clause 9 of the Bill or the fairness test in clause 13 of the Bill.
Clause 5 defines a "preserved award" .
Sub-clause (1) defines a "preserved award" to mean an award as in force at the preservation time. A "preserved award" is consequently an award as it was immediately prior to the changes to the content of awards introduced by the Workplace Relations
Amendment (Work Choices) Act 2005 of the Commonwealth.
Under sub-clause (2), a "preserved award" is deemed to include increases in relevant minimum pay rates after the preservation time that result from decisions or determinations of the
Australian Fair Pay Commission, or orders of the Australian
Industrial Relations Commission.
This means that the wage rates used for the purposes of determining employees' preserved entitlements under clause 9 of the Bill and the fairness test in clause 13 of the Bill are deemed to include any increases in minimum pay rates made from time to time by the relevant decision making body in the Commonwealth system. This would include, for example, increases in minimum pay rates resulting from an adjustment by the Australian Fair Pay
Commission of an applicable Australian Pay and Classification
Scale and increases resulting from the variation of an applicable
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Clause 6 Sub-clause (1) defines a "relevant award" in relation to an employee and his or her employer to mean a preserved award—
 that was binding on the employer at the preservation time; and
 to which the employee's employment was subject at the preservation time, or would have been subject had he or she been employed by the employer at the preservation time.
Section 149 of the pre-amendment Commonwealth Act sets out the means by which persons may be bound by awards, including as a result of a transmission of business or being bound by the award as a common rule. transitional award by the Australian Industrial Relations
Commission.
Sub-clause (2) makes clear that there may be more than one
"relevant award" in relation to an employee and his or her employer. For example, there might be one relevant award dealing with most award-regulated terms and conditions of employment and a separate relevant award dealing with a specific subject such as long service leave. It also follows from the definition that there may be no relevant award in relation to an employee and his or her employer.
Sub-clause (3) deals with the transmission of preserved awards in circumstances where there is a transmission of business, whether immediate or not, from one public sector employer
(the "old employer" ) to another public sector employer (the
"new employer" ) after the preservation time. The effect of sub-clause (3) is that in such circumstances, a preserved award binding upon the old employer at the preservation time is taken to be binding upon the new employer at the preservation time for the purpose of determining relevant awards in relation to an employee of the new employer under clause 6(1). It is intended that transmission of business for the purposes of this sub-clause will have the same meaning as it has in respect of section 149(1)(d) of the pre-amendment Commonwealth Act.
The term "relevant award" is used in the Bill for the purposes of determining employees' preserved entitlements under clause 9 and whether a proposed workplace agreement passes the fairness test in clause 13.
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Clause 7 Sub-clause (1) allows the Minister to publish in the Government
Gazette a standard set of terms and conditions of employment based upon the Family Provisions Test Case of the Australian
Industrial Relations Commission.
Such a standard published by the Minister is taken into account in determining whether a proposed workplace agreement passes the fairness test in clause 13, if no relevant award or designated preserved award being used for the purposes of the fairness test had been varied in response to the Family Provisions Test Case.
Sub-clause (2) provides that the power in sub-clause (1) may only be exercised once.
Clause 8 provides that the Act binds the Crown.
Clause 9 defines the "preserved entitlements" of an employee, as used in clause 10 of the Bill.
The employee's preserved entitlements are defined to be the terms and conditions of employment of the employee under a relevant award or relevant awards to the extent that they are not excluded or modified by an industrial instrument that is in force under the Commonwealth Act.
Where there is no industrial instrument (such as a certified agreement) applying to the employee in force under the
Commonwealth Act, the employee's "preserved entitlements" will be the employee's terms and conditions of employment under the relevant award (or relevant awards).
Where the employee's terms and conditions of employment under a relevant award are excluded or modified by an industrial instrument in force under the Commonwealth Act, the employee's preserved entitlements will be those award entitlements that are not excluded or modified by the industrial instrument.
This situation could arise, for example, where the employee's terms and conditions of employment as at the preservation time were regulated by both an award and a certified agreement, but by no other industrial instrument (and no applicable certified agreement or Australian workplace agreement had subsequently come into operation under the transitional arrangements in the
Commonwealth Act). For example, if at the preservation time the employee's entitlements in respect of a certain type of leave were regulated by the relevant award and the certified agreement did not deal with this type of leave (or otherwise
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exclude the award leave entitlement), the employee's preserved entitlements would include the employee's leave entitlements under the relevant award. The employee's preserved entitlements would not include entitlements under the certified agreement.
However, if the certified agreement subsequently ceased to be in force under the Commonwealth Act, the employee's preserved entitlements would include all entitlements under the relevant award. If the award on which the relevant award was based subsequently ceased to be in force under the Commonwealth Act, the employee would retain his or her preserved entitlements under the provisions of the Bill.
Since there may be more than one relevant award in relation to an employee, the employee's preserved entitlements could comprise entitlements derived from a number of different relevant awards.
Clause 10 Sub-clause (1) provides that 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. This means that public sector employers must continue to provide terms and conditions of employment at least as favourable as the preserved entitlements, even where entitlements under the award on which a relevant award is based are subsequently abolished or reduced as a consequence of the
Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth.
Sub-clause (2)(a) provides that sub-clause (1) does not apply where the public sector employer makes an applicable workplace agreement under the Commonwealth Act that passes the fairness test in clause 13 of the Bill. This means that there is no prohibition of an employer applying a particular term or condition of employment that is less favourable than a preserved entitlement, in circumstances where an applicable workplace agreement passing the fairness test has been made under the
Commonwealth Act after the preservation time. If such a workplace agreement were subsequently terminated under the
Commonwealth Act, the obligation to provide terms and conditions not less favourable than the preserved entitlements would again apply.
Sub-clause (2)(b) provides that sub-clause (1) does not apply to the extent that it is inconsistent with a workplace determination made under the Commonwealth Act.
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Clause 11 provides that for the purposes of Part 3 of the Bill, a reference to an "employee" includes a prospective employee.
Clause 12 sets out the procedure for determining a designated preserved award (or designated preserved awards) for the purposes of the fairness test in clause 13 of the Bill, where there is no relevant award for the purposes of that test.
Where a public sector employer or trade union proposes to make a workplace agreement under the Commonwealth Act and there is no relevant award in relation to some or all of the employees to whom the agreement will apply, sub-clause (1) requires the employer or trade union to apply to the Workplace Rights
Advocate for a determination under sub-clause (2).
Such a determination may be required, for example, where a new public sector employer established under the Public
Administration Act 2004 after the preservation time proposed to make a workplace agreement. Such a determination may also be required where a public sector employer that had not been bound by any award in respect of a particular group of employees before the preservation time was proposing to make a workplace agreement covering such employees.
Sub-clause (2) requires that, on application by the employer or trade union, the Workplace Rights Advocate must determine a preserved award or preserved awards appropriate for the purpose of deciding whether the proposed workplace agreement passes the fairness test. Such a preserved award is a "designated preserved award" for the purposes of the Bill. The Workplace
Rights Advocate must inform the applicant (and the employer, if the applicant is not the employer) in writing of the determination.
Sub-clause (3) requires that in making a determination under subclause (2), the Workplace Rights Advocate 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 under the proposed workplace agreement and any other matter that the Workplace Rights Advocate considers relevant.
It is intended that in determining designated preserved awards under sub-clause (2), the Workplace Rights Advocate will consider similar matters to those considered by the Australian
Industrial Relations Commission in designating awards for the purposes of determining whether a certified agreement passes the no-disadvantage test under section 170XF of the pre-amendment
Commonwealth Act. This might include, for example, the previous award coverage of the employees concerned or the
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previous award coverage of the kind of work to be performed under the proposed agreement.
Clause 13 sets out the fairness test for proposed workplace agreements.
Sub-clause (1) provides that, before offering a workplace agreement to an employee or trade union, a public sector employer must submit the proposed agreement to the Workplace
Rights Advocate for a determination as to whether it passes the fairness test.
Sub-clause (2) provides that a workplace agreement passes the fairness test if it does not disadvantage employees in relation to their terms and conditions of employment.
Sub-clause (3) provides that a workplace agreement disadvantages employees in relation to their terms and conditions of employment if its application would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under—
 relevant awards or designated preserved awards; and
 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
 any State or Commonwealth law that the Workplace
Rights Advocate considers relevant.
It is intended that the fairness test will operate in respect of workplace agreements in essentially the same manner as the no-disadvantage test in respect of certified agreements under section 170XA of the pre-amendment Commonwealth Act.
As preserved awards (and so relevant awards and designated preserved awards) are deemed under clause 5(2) of the Bill to include any increases in minimum pay rates made from time to time by the relevant decision making body in the Commonwealth system, such increases must also be taken into account in determining whether a proposed agreement satisfies the fairness test.
Pursuant to sub-clause (3)(b), if no relevant award or designated preserved award that is being used for the purposes of the fairness test had been varied in response to the Family Provisions
Test Case, employees' entitlements under the terms of the Family
Provisions standard (as published under clause 7 of the Bill) must be taken into account in determining whether the proposed workplace agreement passes the fairness test. It is intended that this will ensure that in making workplace agreements, public
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sector employers take account of the family-friendly conditions of employment awarded in the Family Provisions Test Case, even if the awards applying to them at the preservation time had not been varied to reflect the Test Case.
Relevant State laws for the purposes of sub-clause (3)(c) could include, for example, the Public Holidays Act 1993 and the
Long Service Leave Act 1992 .
Sub-clause (4) requires the Workplace Rights Advocate, as soon as possible after receiving a proposed workplace agreement under sub-clause (1), to determine whether it passes the fairness test and to inform the employer in writing of the determination.
Sub-clause (5) provides that for the purposes of Part 3 of the Bill, a workplace agreement is taken to pass the fairness test if the
Workplace Rights Advocate has made a determination to that effect under this clause.
Clause 14 sets out certain prohibitions that apply to public sector employers in respect of offering, accepting, making or lodging workplace agreements that do not pass the fairness test in clause 13.
Sub-clause (1) provides that a public sector employer must not offer, to an employee or trade union, a workplace agreement that does not pass the fairness test.
Sub-clause (2) provides that 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.
Sub-clause (3) provides that a public sector employer must not make a workplace agreement that does not pass the fairness test.
The Commonwealth Act defines when a workplace agreement is made.
Sub-clause (4) provides that a public sector employer must not lodge with the Employment Advocate a workplace agreement that does not pass the fairness test.
Clause 15 removes the legal capacity of public sector employers to offer, accept, make or lodge workplace agreements that do not pass the fairness test, and declares that the Act displaces provisions of the
Corporations legislation where there is an inconsistency between the two.
Sub-clause (1) provides that 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.
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Sub-clause (2) provides that 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.
Sub-clause (3) provides that a public sector employer has no legal capacity or power to make a workplace agreement that does not pass the fairness test.
An intended consequence of sub-clause (3) is that if a public sector employer purports to make a workplace agreement that does not pass the fairness test, the agreement would not be made by the employer and would not operate as a workplace agreement made by the employer under the Commonwealth Act.
Sub-clause (4) provides that 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.
Sub-clause (5) provides that the provisions of this clause are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the Corporations legislation.
Clause 16 provides that the Act applies despite anything to the contrary in any other Act, whether passed before or after the commencement of the Act (unless expressly excluded) and is intended to limit any provision in respect of the powers and functions of a public sector employer. This means, for example, that the Act will limit the employment powers exercisable by certain persons on behalf of the Crown under the Public Administration Act 2004 , the
Parliamentary Administration Act 2005 and the Police
Regulation Act 1958 .
Clause 17 provides that the functions of the Workplace Rights Advocate under this Act are not subject to the Minister's direction or control. This means that the functions of the Workplace Rights
Advocate in determining designated preserved awards under clause 12 and the fairness test in clause 13 are not subject to
Ministerial directions under section 10 of the Workplace Rights
Advocate Act 2005 .
Clause 18 allows the Governor in Council to make regulations for or with respect to any matter or thing required or permitted by the Act to be prescribed or necessary to be prescribed to give effect to the
Act.
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Clause 19 amends section 9 of the Workplace Rights Advocate Act 2005 .
This amendment allows the Workplace Rights Advocate to delegate to any person employed under Part 3 of the Public
Administration Act 2004 any power conferred on the
Workplace Rights Advocate under this Act, other than the power of delegation.
Clause 20 amends the Commonwealth Powers (Industrial Relations) Act
1996 by inserting into section 5 of that Act an additional exclusion from the matters that are referred to the
Commonwealth under section 4 of that Act. The additional exclusion is of matters that would allow or require a public sector employer to—
 provide a term or condition of employment in breach of clause 10 of the Bill; or
 offer, accept, make or lodge with the Employment
Advocate a workplace agreement that does not pass the fairness test within the meaning of clause 13 of the Bill.
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