Version No. 011
Public Sector Employment (Award
Entitlements) Act 2006
No. 15 of 2006
Version incorporating amendments as at
1 July 2014
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
3
4
5
6
7
8
1
Purposes
Commencement
Definitions
Awards
Preserved award
Relevant award
Family Provisions standard
Act binds the Crown
1
2
2
6
7
7
8
8
PART 2—PRESERVATION OF AWARD CONDITIONS
9
10
Preserved entitlements
Preservation of award conditions
PART 3A—RESTRICTION ON AGREEMENTS
15A Definitions
15B Restriction on public sector employer offering statutory
industrial agreement
15C Limitation on certain powers of public sector employers
15D Common law not excluded
15E Application
PART 4—GENERAL
16
18
9
9
9
11
11
12
12
13
13
14
Exclusion of other legislation
Regulations
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14
14
Section
Page
ENDNOTES
15
1. General Information
15
2. Table of Amendments
16
3. Explanatory Details
17
ii
Version No. 011
Public Sector Employment (Award
Entitlements) Act 2006
No. 15 of 2006
Version incorporating amendments as at
1 July 2014
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;
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(ba) assist in giving effect to Australia's
obligations under the following conventions
adopted by the International Labour
Organisation—
(i) the Freedom of Association and
Protection of the Right to Organise
Convention, 1948;
(ii) the Right to Organise and Collective
Bargaining Convention, 1949;
(c) amend the Workplace Rights Advocate Act
2005 to provide for the delegation of
additional functions;
1
S. 1(b)
repealed by
No. 27/2008
s. 4.
S. 1(ba)
inserted by
No. 80/2006
s. 21(1).
Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 1—Preliminary
s. 2
(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 subsection (2), this Act comes into
operation on a day to be proclaimed.
(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—
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;
S. 3(1) def. of
Commonwealth Act
amended by
Nos 24/2009
s. 14(b),
29/2011
s. 3(Sch. 1
item 76).
Commonwealth Act means the Workplace
Relations Act 1996 of the Commonwealth as
in force before the WR Act repeal day
(within the meaning of the Fair Work
Transition Act);
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 1—Preliminary
s. 3
Commonwealth Fair Work Act means the Fair
Work Act 2009 of the Commonwealth as in
force from time to time;
S. 3(1) def. of
Commonwealth Fair
Work Act
inserted by
No. 24/2009
s. 14(a).
designated preserved award, in relation to an
employee to whom a workplace agreement
will apply, means a preserved award in
respect of which WRA made a determination
under section 12 before its repeal;
S. 3(1) def. of
designated
preserved
award
substituted by
No. 27/2008
s. 5(a).
employee means employee of a public sector
employer including, in relation to the Chief
Commissioner of Police, a police officer,
protective services officer or police reservist;
S. 3(1) def. of
employee
amended by
Nos 80/2006
s. 21(2),
27/2008
s. 5(b),
37/2014
s. 10(Sch.
item
138.1(a)(ii)).
Note
See subsection (2). Also, section 15A gives employee
an extended meaning for the purposes of Part 3A.
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;
Fair Work Australia has the same meaning as it
has in the Commonwealth Fair Work Act;
S. 3(1) def. of
Fair Work
Australia
inserted by
No. 24/2009
s. 14(a).
Fair Work Transition Act means the Fair Work
(Transitional Provisions and Consequential
Amendments) Act 2009 of the
Commonwealth;
S. 3(1) def. of
Fair Work
Transition Act
inserted by
No. 24/2009
s. 14(a).
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 1—Preliminary
s. 3
S. 3(1) def. of
fairness test
repealed by
No. 27/2008
s. 5(c).
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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 8 August 2005
published in Print PR082005;
S. 3(1) def. of
federal nodisadvantage
test
inserted by
No. 27/2008
s. 5(d).
federal no-disadvantage test means the test
referred to in section 346D of the Workplace
Relations Act 1996 of the Commonwealth;
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;
(e) an exceptional matters order;
(f) an award made under section 170MX
of the pre-amendment Commonwealth
Act;
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Part 1—Preliminary
s. 3
(g) any order of the Australian Industrial
Relations Commission as in force at the
preservation time;
police officer has the same meaning as in the
Victoria Police Act 2013;
S. 3(1) def. of
police officer
inserted by
No. 37/2014
s. 10(Sch.
item
138.1(a)(i)).
police reservist has the same meaning as in the
Victoria Police Act 2013;
S. 3(1) def. of
police
reservist
inserted by
No. 37/2014
s. 10(Sch.
item
138.1(a)(i)).
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;
protective services officer has the same meaning
as in the Victoria Police Act 2013;
S. 3(1) def. of
protective
services
officer
inserted by
No. 37/2014
s. 10(Sch.
item
138.1(a)(i)).
public sector employer means—
S. 3(1) def. of
public sector
employer
amended by
No. 37/2014
s. 10(Sch.
item
138.1(a)(iii)).
(a) an entity responsible for employing a
person in—
(i) a public sector body within the
meaning of the Public
Administration Act 2004; or
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 1—Preliminary
s. 4
(ii) a Department within the meaning
of the Parliamentary
Administration Act 2005; or
(b) the Chief Commissioner of Police in
relation to a police officer, protective
services officer or police reservist; or
(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;
S. 3(1) def. of
workplace
agreement
amended by
No. 24/2009
s. 14(c).
workplace agreement has the same meaning as it
has in the Commonwealth Act and includes
any workplace agreement that is the subject
of a transitional arrangement under the Fair
Work Transition Act;
S. 3(1) def. of
workplace
determination
amended by
No. 24/2009
s. 14(d).
workplace determination has the same meaning
as it has in the Commonwealth Act and
includes any workplace determination that is
the subject of a transitional arrangement
under the Fair Work Transition Act;
S. 3(1) def. of
WRA
amended by
No. 21/2009
s. 7.
WRA means the Workplace Rights Advocate
under the Workplace Rights Advocate Act
2005 as in force before its repeal.
S. 3(2)
amended by
No. 37/2014
s. 10(Sch.
item 138.1(b)).
(2) To avoid doubt, police officers, protective
services officers and police reservists are treated
as employees of the Chief Commissioner of Police
for the purposes of this Act.
4 Awards
(1) Subject to subsections (2) and (3), for the
purposes of this Act, award has the same meaning
as it has in the pre-amendment Commonwealth
Act.
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 1—Preliminary
s. 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—
(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;
S. 5(2)(b)
amended by
No. 24/2009
s. 15(1).
(c) an order or determination of Fair Work
Australia made under the Commonwealth
Fair Work Act or the Fair Work Transition
Act.
S. 5(2)(c)
inserted by
No. 24/2009
s. 15(2).
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
preservation time; and
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No. 15 of 2006
Part 1—Preliminary
s. 7
(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
subsection (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
subsection (1) may only be exercised once.
8 Act binds the Crown
This Act binds the Crown.
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
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 not
excluded or modified by an industrial instrument
that is in force under the Commonwealth Act, or
continued in force under a transitional
arrangement under the Fair Work Transition Act.
S. 9
amended by
No. 24/2009
s. 16.
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) Subsection (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 (as in force before the repeal of
section 13) or is subject to the federal nodisadvantage test, for as long as that
workplace agreement is in operation; or
S. 10(2)(a)
amended by
No. 27/2008
s. 6.
(b) to the extent that it is inconsistent with a
workplace determination that is in operation;
or
S. 10(2)(b)
amended by
No. 24/2009
s. 17(1).
(c) if an enterprise agreement made under the
Commonwealth Fair Work Act applies to the
public sector employer and employee; or
S. 10(2)(c)
inserted by
No. 24/2009
s. 17(2).
(d) to the extent that it is inconsistent with a
workplace determination (within the
meaning of the Commonwealth Fair Work
Act); or
S. 10(2)(d)
inserted by
No. 24/2009
s. 17(2).
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 2—Preservation of Award Conditions
s. 10
(e) if the public sector employer and the
employee are covered by a modern award
within the meaning of the Commonwealth
Fair Work Act.
S. 10(2)(e)
inserted by
No. 24/2009
s. 17(2).
__________________
Pt 3 (Heading
and ss 11–15)
repealed by
No. 27/2008
s. 7.
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 3A—Restriction on Agreements
s. 15A
PART 3A—RESTRICTION ON AGREEMENTS
Pt 3A
(Heading and
ss 15A–15E)
inserted by
No. 80/2006
s. 22.
S. 15A
inserted by
No. 80/2006
s. 22.
15A Definitions
In this Part—
collective agreement means—
(a) any of the following agreements within
the meaning of the Commonwealth
Act—
S. 15A def. of
collective
agreement
amended by
No. 24/2009
s. 18(1).
(i) an employee collective agreement;
(ii) a union collective agreement;
(iii) a union greenfields agreement;
(iv) an employer greenfields
agreement;
(v) a multiple-business agreement;
(b) a certified agreement;
(c) an enterprise agreement made under the
Commonwealth Fair Work Act;
employee includes a prospective employee;
statutory industrial agreement means an
agreement made under a law of the
Commonwealth or the State that regulates all
or part of the terms and conditions of
employment of an employee, other than a
collective agreement or an individual
flexibility arrangement made under the
Commonwealth Fair Work Act.
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S. 15A def. of
statutory
industrial
agreement
amended by
No. 24/2009
s. 18(2).
Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 3A—Restriction on Agreements
s. 15B
S. 15B
inserted by
No. 80/2006
s. 22.
15B Restriction on public sector employer offering
statutory industrial agreement
(1) A public sector employer must not offer an
employee a statutory industrial agreement 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.
(2) A public sector employer must not accept an offer
from an employee of a statutory industrial
agreement 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.
S. 15C
inserted by
No. 80/2006
s. 22.
15C Limitation on certain powers of public sector
employers
(1) A public sector employer has no legal capacity or
power to offer an employee a statutory industrial
agreement 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.
(2) A public sector employer has no legal capacity or
power to accept an offer from an employee of a
statutory industrial agreement that provides any
terms or conditions of employment that are
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Part 3A—Restriction on Agreements
s. 15D
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.
(3) 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.
15D Common law not excluded
Nothing in this Part prevents a public sector
employer from providing in an employee's
contract of employment a term or condition of
employment that is more beneficial to the
employee than that to which he or she is entitled
under any collective agreement or that would
apply to the employee under the terms of a
relevant award or a designated preserved award.
15E Application
The regulations may provide that this Part or any
provision of this Part does not apply to a public
sector employer or class of public sector
employer.
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13
S. 15D
inserted by
No. 80/2006
s. 22.
S. 15E
inserted by
No. 80/2006
s. 22.
Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
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
respect of the legal capacity and powers of a
public sector employer.
S. 17
repealed by
No. 27/2008
s. 8.
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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.
__________________
Pt 5 (Heading
and ss 19, 20)
repealed by
No. 27/2008
s. 9.
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Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Endnotes
ENDNOTES
1. General Information
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 was
assented to on 11 April 2006 and came into operation on 3 July 2006:
Government Gazette 22 June 2006 page 1239.
15
Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Endnotes
2. Table of Amendments
This Version incorporates amendments made to the Public Sector
Employment (Award Entitlements) Act 2006 by Acts and subordinate
instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––
Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006,
No. 80/2006
Assent Date:
10.10.06
Commencement Date:
Ss 21, 22 on 11.10.06: s. 2(1)
Current State:
This information relates only to the provision/s
amending the Public Sector Employment (Award
Entitlements) Act 2006
Public Sector Employment (Award Entitlements) Amendment Act 2008,
No. 27/2008
Assent Date:
3.6.08
Commencement Date:
4.6.08: s. 2
Current State:
All of Act in operation
Workplace Rights Advocate (Repeal) Act 2009, No. 21/2009
Assent Date:
10.6.09
Commencement Date:
S. 7 on 1.10.10: Government Gazette 30.9.10 p. 2286
Current State:
This information relates only to the provision/s
amending the Public Sector Employment (Award
Entitlements) Act 2006
Fair Work (Commonwealth Powers) Act 2009, No. 24/2009
Assent Date:
17.6.09
Commencement Date:
Ss 14–18 on 1.7.09: Special Gazette (No. 227) 1.7.09
p. 1
Current State:
This information relates only to the provision/s
amending the Public Sector Employment (Award
Entitlements) Act 2006
Statute Law Revision Act 2011, No. 29/2011
Assent Date:
21.6.11
Commencement Date:
S. 3(Sch. 1 item 76) on 22.6.11: s. 2(1)
Current State:
This information relates only to the provision/s
amending the Public Sector Employment (Award
Entitlements) Act 2006
Victoria Police Amendment (Consequential and Other Matters) Act 2014,
No. 37/2014
Assent Date:
3.6.14
Commencement Date:
S. 10(Sch. item 138) on 1.7.14: Special Gazette
(No. 200) 24.6.14 p. 2
Current State:
This information relates only to the provision/s
amending the Public Sector Employment (Award
Entitlements) Act 2006
–––––––––––––––––––––––––––––––––––––––––––––––––––
16
Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Endnotes
3. Explanatory Details
No entries at date of publication.
17