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
The Government is committed to public sector industrial relations based on consultation and cooperation. Public sector employers must:
- ensure consultation and dispute resolution processes with employees and public sector unions are meaningful, timely and cooperative
- take a constructive problem-solving approach to consultation and engagement with employees and unions including establishing consultative committees where appropriate
- recognise the rights of unions to represent their members in disputes and consultation, and the rights of members to representation under enterprise agreements
- recognise that unions have a role to play in decisions that affect their members
- comply with all relevant consultation and dispute resolution obligations outlined in their enterprise agreement, the Fair Work Act 2009 (Cth) (FW Act) or the Occupational Health and Safety Act 2004 (Vic) (OHS Act)
- respect the right of public sector unions to represent their members during consultation and dispute resolution processes
- ensure enterprise agreements include consultation and dispute resolution provisions that are consistent with the requirements outlined in these Public Sector IR Policies
- have processes in place which seek to resolve disputes at the workplace level, wherever possible
- give prompt consideration and responses to matters raised by unions and employees during consultation and dispute resolution processes
- ensure dispute resolution procedures in enterprise agreement enable the Fair Work Commission (FWC) to resolve disputes, including by arbitration where the matter cannot be resolved through conciliation.
Consistent with efforts to promote consultative cooperative workplaces, public sector employers are also encouraged to enter into early engagement with employees and unions with respect of matters that may not enliven formal consultation obligations but where stakeholder engagement will otherwise be generally beneficial.
Formal requirements to consult
Under the FW Act the obligation to consult with employees or their representatives arises in the following situations (but is not limited to):
- when considering a major workplace change that will have a significant effect on employees
- in connection with termination of employment
- when bargaining in good faith in the negotiation of the terms of an enterprise agreement
- where an employee is entitled to request a flexible working arrangement and makes such a request
- when negotiating an individual flexibility arrangement with an employee under an award or enterprise agreement
- when an employee is on parental leave, and the employer makes a decision that will have a significant effect on the employee’s pre parental leave position and
- when an employee requests extending their parental leave after the initial 12 months.
Formal consultation requirements also arise under the OHS Act. For further information contact WorkSafe Victoria.
All public sector employers must ensure as a minimum they have appropriate consultation arrangements in place with respect to all these scenarios.
Requirements for public sector enterprise agreements to include a consultation term
Consistent with section 205 of the FW Act, all public sector enterprise agreements must include a consultation clause requiring the employer to consult with employees about:
- major workplace changes that are likely to have a significant impact on employees; and
- changes to employees’ regular roster or ordinary hours of work.
The provision must:
- provide information to the employees and the union/s about the change;
- invite the employees and the union/s to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
- consider any views given by the employees and the union/s about the impact of the change.
The consultation clause must also allow the employees to be represented during consultation about a major workplace change or a change to the employees' regular roster or ordinary hours of work. A failure to consult can result in substantial civil penalties being imposed.
At a minimum, to ensure compliance with these obligations public sector employers may wish to use the model consultation term set out in the Fair Work Act Regulations 2009.
Where a formal dispute arises with respect to the consultation obligations outlined in an enterprise agreement, the implementation of the proposed change will be put on hold and work will continue in accordance with usual practice, until the dispute has been resolved in accordance with the formal dispute resolution procedure outlined in the applicable enterprise agreement.
Requirement for public sector enterprise agreements to include a dispute resolution term
Consistent with section 186 of the FW Act, all public sector enterprise agreements must contain a term that provides a procedure for settling disputes about matters arising under the enterprise agreement and in relation to the National Employment Standards (NES). This provision must:
- require the parties to genuinely attempt to resolve the dispute at the workplace level and throughout the dispute resolution process
- ensure dispute resolution processes are carried out expeditiously and without unnecessary delay
- allow for internal dispute resolution mechanisms at the workplace level prior to referral to the FWC
- allow for the FWC to conciliate and make recommendations to the parties
- allow for the FWC to arbitrate matters at the request of either party when the matter is unable to be resolved at the workplace level or by conciliation
- provide for the continuation of work in accordance with usual practice, while dispute resolution processes are being followed (unless an employee has a reasonable concern about an imminent risk to their health and safety, in which case the employee must not fail to comply with reasonable directions of their employer to perform other available work that is safe and appropriate), and
- not be a mechanism to deal with a dispute over the termination of employment.
To ensure compliance with these obligations, public sector employers may wish to use the model dispute resolution term provided in this policy.
Disputes with wide-ranging implications
If a particular dispute could have broader implications across the public service or sector (for example, a dispute about the interpretation of the Victorian Public Service Enterprise Agreement 2024 or its successor) portfolio entities must contact their portfolio department as soon as possible and prior to the matter proceeding to FWC for resolution.
Where a portfolio department agrees a dispute may have broader implications across the public service or sector, they must advise Industrial Relations Victoria (IRV) as soon as possible and prior to the matter proceeding to the FWC for resolution.
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
- Role of Public Sector Unions
- Public Sector IR Principles
Attachment A
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