Union participation in the workplace
The Government acknowledges the important role that unions play in the workplace and in representing employees. A key principle underpinning these policies is consultation and cooperation between employers, employees and unions. A constructive relationship between employers and unions is central to ensuring that this principle is met. Workplaces that have constructive relationships between employers and unions are more productive and harmonious. To that end, employees have the right to belong to a union and have access to effective union representation. Employees have the right to engage in protected industrial action and unions have rights to lawfully enter workplaces and organise employees.
Enterprise agreements and/or workplace practices should reflect these general commitments and also ensure that employee representatives have access to facilities to undertake their roles.
At the point of engagement or during induction, union representatives will have the opportunity to provide a document to encourage new employees to join a union or employee association that has the right to represent them and their industrial interests.
The Government recognises the importance of secure employment for strengthening Victoria’s economy as well as enabling public sector employees and their families to fully participate in the community.
Enterprise agreements should limit the use of fixed term and casual labour. Resort to agency or labour hire employees should not be used to undermine the job security of direct employees and should only be relied on in limited circumstances.
Parties should consider the inclusion in agreements of a commitment to secure employment. An example of such a provision is provided below:
The Employer acknowledges the positive impact that secure employment has on employees and the provision of quality services to the Victorian community.
The Employer will give preference to ongoing forms of employment over casual and fixed term arrangements wherever possible.
Whether as part of bargaining or otherwise, employers and unions should work together to identify methods to reduce the use of casual or fixed term engagements where concerns are raised. Employers, in consultation with unions should consider processes to convert casual and fixed term employees to more secure forms of employment where there are ongoing vacancies and taking into consideration merit selection requirements.
In 2016, the Government is conducting a general review of Labour Hire and Insecure Work. Further initiatives may arise out of the review to promote secure employment, and the Government commits to discussing these with employers, employees and unions at the appropriate time.
Maintenance of public sector employment
The Government’s preference is that the public sector work continues to be performed by the public sector. Situations where the private sector takes over functions currently performed by public sector employees are unlikely to be a common occurrence. However, from time to time the Victorian Government, through its departments and agencies, may determine to transfer responsibility for the delivery of existing ancillary services to a private provider. Details of the requirements for when this occurs are contained in the Redundancy and Other Matters chapter under "Employee entitlements on transfer".
Workplace environments that are safe, inclusive of women, and receptive to the burden and hardship of family violence are critical to reinforcing the social norms of respect, non-violence and equity.
The Victorian Government is committed to creating a culture that supports respectful relationships, practices positive attitudes and behaviours, and promotes a culture of non-violence in all workplaces, including the Victorian public sector. The Government is also committed to support all public sector employers to develop and maintain workplaces that support victims of family violence.
The Government supports all recommendations of the Royal Commission into Family Violence including Recommendations 190 and 192. As part of the Government’s broader policy response, the Government has developed a family violence standard for use by departments and agencies. The introduction of these provisions in public sector enterprise agreements will give further recognition to family violence as a critical issue with a significant impact on the economy.
It will also recognise that both Government and workplaces have a role in, and responsibility for, responding to family violence.
The standard provides for confidential and meaningful support at work and encourages affected employees to stay in employment by providing 20 days paid leave for affected employees to assist them to deal with the consequences of family violence.
The family violence standard can be found at Attachment 3 and must be incorporated into all enterprise agreements.
Departments and agencies are also required to provide access to suitable support services and referrals, as well as adequate planning, training and resources to equip managers and human resources staff to communicate and implement the family violence leave entitlement.
Departments and agencies are also required to implement the best practice workplace programs developed and set out in “Our Watch’s Workplace Equality and Respect Project” final report, soon to be released. These programs will contribute to building respectful and gender equitable cultures, suitable policies for family violence victims, and training resources for use in the workplace.
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Departments and agencies and their bargaining representatives must continue to negotiate in a manner that accords with the public sector good faith bargaining principles outlined below.
Departments and agencies and their bargaining representatives must negotiate collaboratively with relevant unions and/or employees in an open and accountable way.
Negotiations should be:
- approached in a cooperative and problem-solving manner
- focused as far as possible on common interests, objectives and long-term gain for all parties as well as improved service delivery for the Victorian community
- based on integrity, honesty, courtesy and information sharing
Departments and agencies and their bargaining representatives should endeavour to resolve issues locally. However, whilst parties may request assistance from the Fair Work Commission (FWC) as appropriate to resolve deadlocks, the Government will not seek to have a dispute arbitrated except by consent between the parties.
To facilitate productive negotiations unions are to be given access to department and agency employees and allow union officials to communicate with their members using employees’ work email addresses. Union delegates and officials should be provided access to facilities such as telephones, notice boards and meeting rooms in a manner that does not adversely affect service delivery and work requirements and does not breach confidentiality.
When enterprise agreements are being considered and voted on by employees, departments and agencies must ensure that the integrity of the voting process is maintained at all times.
Although the Government seeks to avoid industrial disputation wherever possible the Government respects the right of unions and employees to engage in, and to take, protected industrial action.
Consultation and dispute resolution
Consultation is required where departments and agencies are proposing to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees, including changes to ordinary hours of work and changes to regular rosters. Employers are required to notify the employees and their unions of the proposed changes. The likely effects on the employees’ responsibilities and working conditions are to be advised.
Employers are required to regularly consult with affected employees and their unions within timelines set in enterprise agreements. Employers are also required to give prompt consideration to matters raised by unions and employees and respond to those matters in a timely manner.
The above requirements must be reflected in the consultation clause that has to be included in enterprise agreements. Where there is a formal dispute in relation to the introduction of change it is common practice that the proposed change not to be introduced whilst the matter is being dealt with in accordance with the dispute resolution procedure. However, this provision does not prevent the Victorian Government implementing changes as part of the machinery of government (MoG) process.
The Government supports the role of the FWC as an independent industrial tribunal which includes effective processes for resolving workplace disputes.
The Fair Work Act 2009 (FW Act) requires the inclusion of a dispute resolution procedure in an agreement. The dispute resolution procedure should allow for the FWC to arbitrate matters at the request of either party when the matter is unable to be otherwise resolved. A union who is covered by an enterprise agreement is a party to an industrial dispute when a dispute is formally notified with the employer. Although the FW Act provides a model dispute resolution procedure, the Government does not require the procedure to be adopted in enterprise agreements but it may provide some guidance to departments and agencies. For further information in relation to this requirement see the chapter called Fair Work Act Requirements: Content of Agreements under "Dispute resolution".
The dispute resolution procedure should not be a mechanism to deal with termination of employment. If an employee seeks to contest their termination of employment then unfair dismissal or other relevant avenues of redress would need to be considered.
Work and family
The Government is committed to promoting and implementing family-friendly work practices to achieve the benefits of assisting employees balance the responsibilities and demands of work and family. Getting the right balance between work and family commitments, and accommodating the needs of business and the wider Victorian economy, can be achieved through cooperation between the Government, employers, unions and employees.
Departments and agencies are encouraged to adopt family-friendly work practices and to recognise their benefits. These include:
- increased productivity and stronger economic growth
- availability of a wider pool of skilled labour, particularly among women and older workers
- greater capacity to address labour and skill shortages and attract and retain skilled workers
- achieving substantive equality between women and men
- greater scope to develop and realise the full potential of the workforce, new technologies and innovative work practices
- less stress and better health
- more cohesive and caring communities which support families
Paid parental leave
The Government supports departments and agencies to negotiate and include in enterprise agreements paid parental leave provisions. For this reason the model parental leave clause includes a minimum of eight weeks of paid parental leave that must be provided in all enterprise agreements. Public sector employers must not reduce or trade off existing paid parental leave entitlements of employees upon the expiration of a current agreement.
Public sector employers must not also absorb the Commonwealth Paid Parental Leave Scheme to offset the cost of the existing enterprise agreement entitlements.
The Government supports the introduction of gender-neutral parental leave provisions noting that there are many different types of family situations. The model clause is written in way that does not differentiate between different types of family environments.
There are a number of additional elements to parental leave and departments and agencies will need to ensure that their parental leave provision complies with the NES.
In addition to the entitlements under the parental leave NES, employees may be eligible for parental leave payments under the Commonwealth Paid Parental Leave Scheme. Further information on the Commonwealth Paid Parental Leave Scheme can be found on the Commonwealth’s Department of Human Services website at:
Enterprise agreement leave entitlements and the National Employment Standards
The Government recognises that most enterprise agreements contain leave entitlements that are superior to the entitlements provided under the NES.
The Government’s expectation is that these entitlements are maintained and not reduced during bargaining for new enterprise agreements.
Right of entry
The Government promotes a cooperative approach to workplace relations, valuing collective bargaining and the rights of employees to have their interests supported through effective union representation. Unions have rights to lawfully enter workplaces. The FW Act and the Occupational Health and Safety Act 2004 (OH&S Act) provide the legal rights under federal and state legislation (see the chapter called Right of Entry). The Government in promoting cooperative workplace relations considers that unions’ legitimate interests in the workplace can be promoted by arrangements whereby they have access to the workplace by providing requisite notice and without hindering normal operations.
Individual flexibility term
Division 5 of Part 2 – 4 of the FW Act requires all enterprise agreements to include an individual flexibility term. Flexibility terms are intended to facilitate more flexible working arrangements that meet the genuine needs of the employer and an employee. The Government’s position is that matters contained within an individual flexibility arrangement (IFA) should not be used to undermine the integrity of enterprise agreements. The government does not have a preference for the model flexibility term as provided in the FW Regulations as the subject matter contained within an individual flexibility term is a matter for the bargaining parties. For further information in relation to the FW Act requirements please see the chapter on Fair Work Requirements: Content of Enterprise Agreements.