Application
This Policy applies to all departments and public sector bodies of the State of Victoria and their non-executive level employees, as defined under the Public Administration Act 2004 (Vic) (PA Act) and other Victorian legislation.
Overview
This Policy addresses and clarifies the application of the Fair Work Act 2009 (Cth), particularly in the context of broader constitutional and legislative limitations applying to Victorian Public Sector enterprise agreements and enterprise bargaining, as well as the legal and legislative context of these limitations. This Policy sets out Government’s expectations for Victorian Public Service Departments and public sector bodies in responding to and managing industrial matters where constitutional limitations apply, such that the FW Act may not automatically apply.
Constitutional Limitations
The High Court in Re: AEU; ex parte Victoria (1995) and Victoria v The Commonwealth (1996) identified an implied “States’ rights” constitutional limitation, finding that the Commonwealth could not make laws that would impair the States’ capacity to function as governments (implied limitations).
The matters that have been found by the High Court to have infringed the States’ Rights are under the following subject matters:
- number and identity of persons to be employed;
- qualifications and eligibility for employment;
- term of appointment of such persons; and
- number and identity of persons to be made redundant.
These limitations have also been reflected in exclusions from the Victorian Government’s referral of matters to the Commonwealth under the Victorian Government’s Fair Work (Commonwealth Powers) Act 2009 (Vic) (Referral Act).
In January 2015, the Full Court of the Federal Court in United Firefighters Union v Country Fire Authority (UFU decision) decided that the above limitations do not apply to enterprise agreements that cover State employers that are constitutional corporations where the parties voluntarily agreed to the terms to be included in an enterprise agreement.
Consequently, following the UFU decision, there was no legal impediment for public sector employers that are constitutional corporations to bargain over the previously excluded matters. Equally, this does not preclude an agency from arguing on merit why certain provisions should not be included in an enterprise agreement. Discussions regarding these matters are subject to good faith bargaining principles.
While the UFU decision clarified the interaction between the implied limitations and enterprise agreements for constitution corporations, the UFU decision did not apply to public sector employers that are not constitutional corporations.
On 7 May 2019, the Victorian Government passed the Fair Work (Commonwealth Powers) Amendment Act 2019 (Vic) (Amending Act). The Amending Act sought to align the effect of the Referral Act to non-constitutional corporations with the practical effect of the UFU decision for constitutional corporations, by making it permissible for certain public sector employees (not including law enforcement officers) of non-constitutional corporations to enter into enterprise bargaining agreements about matters pertaining to the number, identity or appointment (other than terms and conditions of appointment) of those employees. The Amending Act did not change existing restrictions on bargaining over other excluded matters pertaining to redundancy, executive and senior appointments and the appointment of ministerial officers.
Importantly, the Amending Act does not permit terms pertaining to number, identity or appointment of employees to be imposed on Government by way of a modern award, workplace determination (as ordered by the Fair Work Commission) or through transfer of business obligation.
Government’s current approach to excluded matters
The Government is committed to honouring all terms collectively bargained for within existing enterprise agreements. Departments and agencies must not seek to use legal constructs to avoid these obligations.
Prior to reaching agreement to include new terms in enterprise agreements covering excluded matters, departments and agencies are required to obtain Government approval for inclusion of these matters in enterprise agreement. During bargaining departments and agencies, like all other claims made by bargaining parties, must engage with any claims relating to excluded matters on their merits and within the confines of Wages Policy and the Enterprise Bargaining Framework.
Specific FW Act provisions
Sexual harassment in connection with work
The Victorian Government is committed to providing safe, flexible and respectful workplaces across the public sector that are free from all forms of sexual harassment. Sexual harassment is unlawful under both State and Commonwealth legislation, and departments and agencies are required to take proactive steps to eliminate sexual harassment in the workplace.
The Fair Work Commission (FWC) can deal with disputes about sexual harassment in connection with work under the FW Act. These provisions apply to all public sector employers and employees, meaning that if a public sector employee believes they have been sexually harassed in connection with work, they can apply to the FWC to:
- make a stop sexual harassment order to prevent future sexual harassment, and/or
- deal with a sexual harassment dispute to remedy past harm.
Where an employee makes an allegation of sexual harassment under the FW Act jurisdiction, employers must participate in that process in good faith.
Bullying at work
The Victorian Government has a duty to provide and maintain, so far as reasonably practicable, working environments across the public sector that are safe and without risk to health, safety and wellbeing. Bullying is a workplace behaviour that can cause significant harm, and public sector employers are expected to take steps to prevent, address and reduce the incidence of bullying and other negative workplace behaviours.
Due to constitutional limitations, the FW Act anti-bullying regime does not apply to all Victorian public sector employees and will only apply to public sector employers that are constitutional corporations and employees of constitutional corporations. As such, the FWC does not have the jurisdiction to deal with stop bullying applications from public sector employees that are not employed by public sector employers that are constitutional corporations.
Public sector employers that are not constitutional corporations must not use this as an excuse to avoid their obligations to respond to concerns or complaints regarding negative or bullying behaviours in the workplace. All public sector employers must have appropriate policies and procedures in place to ensure reasonable steps are taken to prevent and respond to negative workplace behaviours, including bullying.
Further Information
For further information and advice employees and public sector union representatives should contact the local Human Resources or People and Culture Unit (or equivalent) of the relevant entity for further assistance in the first instance.
People and Culture Representatives of Public Sector Entities should contact their Portfolio Department for further assistance in the first instance.
People and Culture Representatives of Portfolio Departments should contact their usual IRV portfolio contact for further assistance in the first instance.
Related Policies or Documents
- Enterprise Bargaining and Agreement Making
Updated