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PUBLIC SECTOR EMPLOYMENT (AWARD ENTITLEMENTS) AMENDMENT BILL 2008

    Public Sector Employment (Award
    Entitlements) Amendment Bill 2008

                        Introduction Print

              EXPLANATORY MEMORANDUM


                                 General
The Bill repeals provisions of the Public Sector Employment (Award
Entitlements) Act 2006 relating to the Victorian public sector fairness test
for workplace agreement making, redundant provisions and spent provisions
that made consequential amendments to the Workplace Rights Advocate
Act 2005 and the Commonwealth Powers (Industrial Relations) Act 1996.

                              Clause Notes
Clause 1   sets out the main purposes of the Bill, which are to repeal Part 3
           of the Principal Act (which provides for a fairness test for
           Victorian public sector workplace agreements) and to repeal
           Part 5 (which contains amendments to other Acts that are now
           spent provisions). The Commonwealth Workplace Relations
           Amendment (Transition to Forward with Fairness) Act 2008 has
           amended the Workplace Relations Act 1996 to introduce a new
           no-disadvantage test, which applies to Victorian public sector
           workplace agreements from 28 March 2008.

Clause 2   provides for this Act to come into operation on the day after it
           receives Royal Assent.

Clause 3   specifies that the Principal Act is the Public Sector Employment
           (Award Entitlements) Act 2006.

Clause 4   provides that section 1(b) of the Principal Act is repealed.
           Section 1 sets out the purposes of the Principal Act and
           paragraph (b) provides that one of the purposes is to establish a
           fairness test for workplace agreements made by public sector
           employers.




561278                                1      BILL LA INTRODUCTION 16/4/2008

 


 

Clause 5 contains amendments to definitions and notes contained in section 3(1) of the Principal Act and establishes a new definition. The changes are-- · an amendment to the definition of designated preserved award, to refer to awards previously determined under the Principal Act before the repeals set out in this Act. A designated preserved award will remain relevant if it has already been determined by the Workplace Rights Advocate. Part 3A of the Principal Act requires that any "statutory industrial agreement" must not provide terms and conditions that are materially different from those that would otherwise apply to an employee under a collective agreement, relevant award or a designated preserved award; · a consequential amendment to the note at the foot of the definition of employee in recognition of the repeal of Part 3; · the deletion of the definition of fairness test, consequential upon the repeal of Part 3 of the Principal Act. A definition of federal no-disadvantage test is inserted into section 3(1) of the Principal Act and means the no-disadvantage test that has been established under the Commonwealth Workplace Relations Act 1996 through the amendments made by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. The definition is required for the purposes of Clause 6. Clause 6 amends section 10(2)(a) of the Principal Act to refer to the "federal no-disadvantage test" in addition to the fairness test (as in force before the repeal of section 13). Section 10 of the Principal Act 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 under a relevant award except where a binding workplace agreement is made that passes the fairness test. It is the intention that the exception in section 10 will now apply to agreements that are subject to the new federal no-disadvantage test as well as transitionally to agreements that have passed the repealed fairness test. 2

 


 

Clause 7 repeals Part 3 of the Principal Act. Part 3 requires-- · a public sector employer to submit its proposed workplace agreement to the Victorian Workplace Rights Advocate for a determination as to whether the agreement passes the fairness test before offering it to an employee(s) or union(s); · the Workplace Rights Advocate to determine whether the agreement passes the fairness test; · a public sector employer not to offer a proposed agreement to an employee(s) or union(s), or lodge it with the relevant federal authority unless it passes the fairness test; and · the Workplace Rights Advocate to determine a designated federal award for the purposes of the fairness test where no award otherwise applies to a public sector employer. Part 3 is no longer required because under the Commonwealth Workplace Relations Act 1996, the federal Workplace Authority now undertakes a no-disadvantage test for all workplace agreements and it designates a federal award for the purposes of the no-disadvantage test where no award otherwise applies to an employer. Clause 8 repeals section 17 of the Principal Act, which is redundant because the Workplace Rights Advocate will no longer perform any function under the Principal Act. Clause 9 repeals Part 5 of the Principal Act because it contains spent provisions relating to amendments to the Workplace Rights Advocate Act 2005 and the Commonwealth Powers (Industrial Relations) Act 1996. Clause 10 provides for the automatic repeal of this amending Act on the first anniversary of the day on which it receives Royal Assent. The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 3

 


 

 


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