Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Version incorporating amendments as at
30 March 2022
table of provisions
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 2
3 Definitions 2
4 Awards 7
5 Preserved award 7
6 Relevant award 8
7 Family Provisions standard 9
8 Act binds the Crown 9
Part 2—Preservation of award conditions 10
9 Preserved entitlements 10
10 Preservation of award conditions 10
Part 3A—Restriction on agreements 12
15A Definitions 12
15B Restriction on public sector employer offering statutory industrial agreement 13
15C Limitation on certain powers of public sector employers 13
15D Common law not excluded 14
15E Application 14
Part 4—General 15
16 Exclusion of other legislation 15
18 Regulations 15
Endnotes 16
1 General information 16
2 Table of Amendments 18
3 Explanatory details 20
Version No.012
Public Sector Employment (Award Entitlements) Act 2006
No. 15 of 2006
Version incorporating amendments as at
30 March 2022
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;
S. 1(b) repealed by No. 27/2008 s. 4.
S. 1(ba) inserted by No. 80/2006 s. 21(1).
(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;
Section 1 - Public Sector Employment (Award Entitlements) Act 2006 - Public Sector Employment (Award Entitlements) Act 2006 | Zoe
(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 Common-wealth 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);
S. 3(1) def. of Common-wealth Fair Work Act inserted by No. 24/2009 s. 14(a).
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 designated preserved award substituted by No. 27/2008 s. 5(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 employee amended by Nos 80/2006 s. 21(2), 27/2008 s. 5(b), 37/2014 s. 10(Sch. item 138.1(a)(ii)).
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;
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;
S. 3(1) def. of Fair Work Australia inserted by No. 24/2009 s. 14(a).
Fair Work Australia has the same meaning as it has in the Commonwealth Fair Work Act;
S. 3(1) def. of Fair Work Commission inserted by No. 13/2022 s. 76(1).
Fair Work Commission means the Fair Work Commission established under the Commonwealth Fair Work Act;
S. 3(1) def. of Fair Work Transition Act 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 fairness test repealed by No. 27/2008 s. 5(c).
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 no-disadvantage test inserted by No. 27/2008 s. 5(d).
federalno-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;
(g) any order of the Australian Industrial Relations Commission as in force at the preservation time;
S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 138.1(a)(i)).
police officer 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)).
police reservist has the same meaning as in the Victoria Police Act 2013;
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;
S. 3(1) def. of protective services officer inserted by No. 37/2014 s. 10(Sch. item 138.1(a)(i)).
protective services officer has the same meaning as in the Victoria Police Act 2013;
S. 3(1) def. of public sector employer amended by No. 37/2014 s. 10(Sch. item 138.1(a)(iii)).
public sector employer means—
(a) an entity responsible for employing a person in—
(i) a public sector body within the meaning of the Public Administration Act 2004; or
(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.
(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;
S. 5(2)(b) amended by No. 24/2009 s. 15(1).
(b) an order of the Australian Industrial Relations Commission;
S. 5(2)(c) inserted by No. 24/2009 s. 15(2), amended by No. 13/2022 s. 76(2)(a).
(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)(d) inserted by No. 13/2022 s. 76(2)(b).
(d) an order or determination of the Fair Work Commission made under the Commonwealth Fair Work Act.
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
(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.
Part 2—Preservation of award conditions
S. 9 amended by No. 24/2009 s. 16.
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.
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—
S. 10(2)(a) amended by No. 27/2008 s. 6.
(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 no-disadvantage test, for as long as that workplace agreement is in operation; or
S. 10(2)(b) amended by No. 24/2009 s. 17(1).
(b) to the extent that it is inconsistent with a workplace determination that is in operation; or
S. 10(2)(c) inserted by No. 24/2009 s. 17(2).
(c) if an enterprise agreement made under the Commonwealth Fair Work Act applies to the public sector employer and employee; or
S. 10(2)(d) 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)(e) inserted by No. 24/2009 s. 17(2).
(e) if the public sector employer and the employee are covered by a modern award within the meaning of the Commonwealth Fair Work Act.
Pt 3 (Heading and ss 11–15) repealed by No. 27/2008 s. 7.
Pt 3A (Heading and ss 15A–15E) inserted by No. 80/2006 s. 22.
Part 3A—Restriction on agreements
S. 15A inserted by No. 80/2006 s. 22.
15A Definitions
In this Part—
S. 15A def. of collective agreement amended by No. 24/2009 s. 18(1).
collective agreement means—
(a) any of the following agreements within the meaning of the Commonwealth Act—
(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;
S. 15A def. of statutory industrial agreement amended by No. 24/2009 s. 18(2).
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.
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 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.
S. 15D inserted by No. 80/2006 s. 22.
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.
S. 15E inserted by No. 80/2006 s. 22.
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.
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.
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.
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative 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.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Public Sector Employment (Award Entitlements) Act 2006 by Acts and subordinate instruments.