Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006

i Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 3 PART 2—UNFAIR DISMISSAL AMENDMENTS 4 3. New Subdivision 5A inserted in Division 2 of Part 4 of the Public Administration Act 2004 4 Subdivision 5A—Role 5 4 70A. Statement of role 5 4 70B. Role 5 to be performed by PSSC 4 70C. Definitions 4 70D. Exclusions 5 70E. Application to PSSC to deal with termination 6 70F. Dismissal of application for want of jurisdiction 8 70G. Applications that are frivolous, vexatious or lacking in substance 9 70H. Extension of time applications may be decided without a hearing 10 70I. Dismissal of application relating to termination for operational reasons 10 70J. Conciliation 12 70K. Applicant to elect whether or not to proceed to arbitration 13 70L. Arbitration 14 70M. Remedies on arbitration 16 70N. Orders made on arbitration are binding 21 70P. Public Sector Standards Commissioner may dismiss application if applicant fails to attend 21 70Q. Limitation on applications under section 70E(1) 22 70R. No second applications under section 70E(1) concerning same termination to be made 24 70S. Orders to be in writing 25 70T. When orders take effect 25 -- 1 of 99 -- Section Page ii 70U. Compliance with orders 25 70V. Variation and revocation of orders 25 70W. Public Sector Standards Commissioner may determine procedure 26 70X. Personal liability 26 70Y. Immunity of participants 26 70Z. Regulations 27 4. Consequential amendments 28 5. New Division 7 inserted in Part 3 of the Parliamentary Administration Act 2005 30 Division 7—Relief in Respect of Termination of Employment 30 29A. Definitions 30 29B. Exclusions 31 29C. Application to PSSC to deal with termination 31 29D. Dismissal of application for want of jurisdiction 33 29E. Applications that are frivolous, vexatious or lacking in substance 34 29F. Extension of time applications may be decided without a hearing 35 29G. Dismissal of application relating to termination for operational reasons 36 29H. Conciliation 37 29I. Applicant to elect whether or not to proceed to arbitration 38 29J. Arbitration 39 29K. Remedies on arbitration 41 29L. Orders made on arbitration are binding 46 29M. Public Sector Standards Commissioner may dismiss application if applicant fails to attend 46 29N. Limitation on applications under section 29C(1) 46 29P. No second applications under section 29C(1) concerning same termination to be made 49 29Q. Orders to be in writing 49 29R. When orders take effect 49 29S. Compliance with orders 49 29T. Variation and revocation of orders 50 29U. Public Sector Standards Commissioner may determine procedure 50 29V. Personal liability 50 29W. Immunity of participants 51 29X. Regulations 51 6. Consequential amendments 52 -- 2 of 99 -- Section Page iii PART 3—AMENDMENT OF PUBLIC ADMINISTRATION ACT 2004 54 7. What are public entities? 54 8. Public sector values 54 9. Right of return 55 10. Terms and conditions of appointment of members 55 11. New section 44A inserted 56 44A. Application of Freedom of Information Act 1982 56 12. New section 44B inserted 56 44B. Application of Part 7A of Financial Management Act 1994 56 13. Delegation 56 14. Transitional provision 57 13. Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 57 PART 4—AMENDMENT OF AUDIT ACT 1994 58 15. Auditor-General's annual plan 58 16. Standards 59 PART 5—AMENDMENT OF COMMONWEALTH GAMES ARRANGEMENTS ACT 2001 60 17. New sections 57C and 57D inserted 60 57C. Date of abolition of Corporation 60 57D. Corporation abolished and transfer of assets and liabilities 60 18. Expiry 60 19. New Schedule 6 inserted 61 SCHEDULE 6—Corporation Abolished and Transfer of Assets and Liabilities 61 PART 6—AMENDMENT OF OMBUDSMAN ACT 1973 64 20. Delegation 64 PART 7—AMENDMENT OF PUBLIC SECTOR EMPLOYMENT (AWARD ENTITLEMENTS) ACT 2006 65 21. Purposes and definitions 65 22. New Part 3A inserted 65 PART 3A—RESTRICTION ON AGREEMENTS 65 15A. Definitions 65 15B. Restriction on public sector employer offering statutory industrial agreement 66 -- 3 of 99 -- Section Page iv 15C. Limitation on certain powers of public sector employers 67 15D. Common law not excluded 68 15E. Application 68 23. Amendment of Commonwealth Powers (Industrial Relations) Act 1996 68 PART 8—MINOR AND CONSEQUENTIAL AMENDMENTS 70 24. Minor amendments to the Public Administration Act 2004 70 25. Minor amendment to the Parliamentary Administration Act 2005 70 26. Amendments to other Acts 70 __________________ SCHEDULE—Amendments 71 ═══════════════ ENDNOTES 95 -- 4 of 99 -- 1 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 † [Assented to 10 October 2006] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is— (a) to amend the Public Administration Act 2004 and the Parliamentary Administration Act 2005 to enable certain public sector employees and Parliamentary Victoria No. 80 of 2006 -- 5 of 99 -- Part 1—Preliminary Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 2 officers to apply to the Public Sector Standards Commissioner for relief in respect of termination of employment on the ground that the termination was harsh, unjust or unreasonable; (b) to amend the Public Administration Act 2004 in relation to— (i) the definition of "public entity"; (ii) the application of certain public sector values; (iii) the right of return of former executives; (iv) the application to the State Services Authority of the Freedom of Information Act 1982 and Part 7A of the Financial Management Act 1994; (v) the delegation powers of the State Services Authority; (c) to amend the Audit Act 1994 with respect to the transmission of the Auditor-General's annual plan to Parliament and to update references to standards; (d) to amend the Commonwealth Games Arrangements Act 2001 in relation to the abolition of the Melbourne 2006 Commonwealth Games Corporation; (e) to amend the Ombudsman Act 1973 to enable the delegation of the Ombudsman's powers and functions under other Acts; (f) to amend the Public Sector Employment (Award Entitlements) Act 2006 to assist in giving effect to Australia's obligations under certain International Labour Organisation conventions; s. 1 -- 6 of 99 -- Part 1—Preliminary Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 3 (g) to make minor and consequential amendments to certain other Acts. 2. Commencement (1) This Act, except section 11, comes into operation on the day after the day on which it receives the Royal Assent. (2) Section 11 is deemed to have come into operation on 4 April 2005. __________________ s. 2 -- 7 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 4 PART 2—UNFAIR DISMISSAL AMENDMENTS 3. New Subdivision 5A inserted in Division 2 of Part 4 of the Public Administration Act 2004 After Subdivision 5 of Division 2 of Part 4 of the Public Administration Act 2004 insert— 'Subdivision 5A—Role 5 70A. Statement of role 5 Role 5 of the Authority is to enable certain public sector employees and Parliamentary officers whose employment is terminated to apply for relief in respect of that termination on the ground that it was harsh, unjust or unreasonable. Note: This Subdivision deals with applications by relevant public sector employees. Division 7 of Part 3 of the Parliamentary Administration Act 2005 deals with applications by relevant Parliamentary officers. 70B. Role 5 to be performed by PSSC Role 5 of the Authority is to be performed by the Public Sector Standards Commissioner independently. 70C. Definitions (1) In this Subdivision— "Commonwealth Act" means the Workplace Relations Act 1996 of the Commonwealth; "employer" means an entity that employs, or usually employs, a public sector employee in the capacity of public sector employee; See: Act No. 108/2004. Amended by Act Nos 20/2005, 30/2005, 84/2005, 23/2006, 24/2006, 29/2006 and 43/2006. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 8 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 5 "operational reasons" means reasons of an economic, technological, structural or similar nature relating to an employer's undertaking, establishment, service or business, or to a part of an employer's undertaking, establishment, service or business; "relevant public sector employee" means a person who, immediately before the termination of his or her employment, was a public sector employee and who— (a) cannot apply under section 643 of the Commonwealth Act to the Australian Industrial Relations Commission on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, because his or her employer employed 100 employees or fewer at the relevant time; and (b) is not excluded by or under section 70D from the operation of this Subdivision. (2) An expression used in this Subdivision and in Division 4 of Part 12 of the Commonwealth Act has the same meaning in this Subdivision as it has in that Division, unless the contrary intention appears. 70D. Exclusions (1) The following kinds of public sector employees are excluded from the operation of this Subdivision— s. 3 -- 9 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 6 (a) a public sector employee who, by force of section 638(1) of the Commonwealth Act, is excluded from the operation of Subdivision B of Division 4 of Part 12 of that Act; (b) a public sector employee who is a member of a class of public sector employee excluded from the operation of this Subdivision by regulations made under sub-section (2). (2) The regulations may exclude from the operation of this Subdivision a specified class of public sector employee. 70E. Application to PSSC to deal with termination (1) Subject to sub-sections (2) and (4), a relevant public sector employee whose employment has been terminated by the employer may apply to the Public Sector Standards Commissioner for relief in respect of the termination of that employment on the ground that the termination was harsh, unjust or unreasonable. (2) An application must not be made under sub- section (1) unless the relevant public sector employee concerned had completed the qualifying period of employment with the employer at the earlier of the following times— (a) the time when the employer gave the employee the notice of termination; (b) the time when the employer terminated the employee’s employment. s. 3 -- 10 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 7 (3) For the purposes of sub-section (2), the qualifying period of employment is— (a) 6 months; or (b) a shorter period, or no period, determined by written agreement between the public sector employee and employer before the commencement of the employment; or (c) a longer period determined by written agreement between the public sector employee and employer before the commencement of the employment, being a reasonable period having regard to the nature and circumstances of the employment. (4) An application must not be made under sub- section (1) if the public sector employee's employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons. (5) An application under sub-section (1) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Public Sector Standards Commissioner allows on an application made during or after those 21 days. (6) An application under sub-section (1) may be discontinued by the applicant, whether or not the employer and the relevant public sector employee have agreed to settle the matter. Regulations may prescribe the manner in which an application may be discontinued and, if so, the application must be discontinued in accordance with the regulations. s. 3 -- 11 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 8 70F. Dismissal of application for want of jurisdiction (1) A respondent may apply to the Public Sector Standards Commissioner for the dismissal of an application under section 70E(1) on the ground that the application is outside the jurisdiction of the Public Sector Standards Commissioner. (2) An application may be made under sub- section (1) at any time, including a time before the Public Sector Standards Commissioner has begun dealing with the application. (3) If the Public Sector Standards Commissioner is satisfied that an application under section 70E(1) is outside his or her jurisdiction— (a) because the employee is excluded from the operation of this Subdivision by or under section 70D; or (b) because of the operation of section 70E(2) (which relates to qualifying periods)— the Public Sector Standards Commissioner must make an order dismissing the application. (4) The Public Sector Standards Commissioner may make an order under sub-section (3) even if no application has been made under sub-section (1) if it appears to him or her, on the face of all the materials before him or her, that the application under section 70E(1) is outside his or her jurisdiction for a reason mentioned in sub-section (3)(a) or (b). s. 3 -- 12 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 9 (5) If— (a) a respondent has applied under sub- section (1); and (b) the Public Sector Standards Commissioner is not satisfied as mentioned in sub-section (3)(a) or (b) in relation to the application— the Public Sector Standards Commissioner must make an order refusing the application for dismissal. (6) The Public Sector Standards Commissioner is not required to hold a hearing in relation to the making of an order under sub-section (3) or (5). 70G. Applications that are frivolous, vexatious or lacking in substance (1) A respondent may apply to the Public Sector Standards Commissioner for the dismissal of an application under section 70E(1) on the ground that the application is frivolous, vexatious or lacking in substance. (2) If the Public Sector Standards Commissioner is satisfied that an application under section 70E(1) is frivolous, vexatious or lacking in substance, he or she must make an order dismissing the application. (3) If— (a) a respondent has applied under sub- section (1); and s. 3 -- 13 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 10 (b) the Public Sector Standards Commissioner is not satisfied that the application under section 70E(1) is frivolous, vexatious or lacking in substance— the Public Sector Standards Commissioner must make an order refusing the application for dismissal. (4) The Public Sector Standards Commissioner is not required to hold a hearing in relation to the making of an order under sub-section (2) or (3). 70H. Extension of time applications may be decided without a hearing If a public sector employee whose employment has been terminated by an employer makes an application (the extension of time application) under section 70E(5) requesting the Public Sector Standards Commissioner to allow an application to be lodged under section 70E(1) after the period of 21 days after the termination took effect, the Public Sector Standards Commissioner is not required to hold a hearing in relation to the extension of time application. 70I. Dismissal of application relating to termination for operational reasons (1) If— (a) an application is made under section 70E(1); and (b) either— (i) the respondent has applied for the dismissal of the application on the ground that the application is s. 3 -- 14 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 11 outside the jurisdiction of the Public Sector Standards Commissioner because the public sector employee's employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons; or (ii) it appears to the Public Sector Standards Commissioner, on the face of all the materials before him or her, that the public sector employee's employment may have been terminated for genuine operational reasons or for reasons that include genuine operational reasons— the Public Sector Standards Commissioner must, subject to section 70F(6), 70G(4) or 70H (as the case requires), hold a hearing to deal with the operational reasons issue. (2) If, as a result of the hearing, the Public Sector Standards Commissioner is satisfied that the operational reasons relied on by the respondent were genuine, the Public Sector Standards Commissioner must make an order dismissing the application. (3) A finding by the Public Sector Standards Commissioner that he or she is not satisfied that the operational reasons relied on by the respondent were genuine is final and binding between the parties in any proceedings before the Public Sector Standards Commissioner. s. 3 -- 15 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 12 (4) To avoid doubt, this section does not require the Public Sector Standards Commissioner to hold a hearing in relation to an application that has been dismissed under section 70F(3) or 70G(2). 70J. Conciliation (1) When an application is lodged with the Public Sector Standards Commissioner, the Public Sector Standards Commissioner must attempt to settle the matter to which the application relates by conciliation. (2) If the Public Sector Standards Commissioner is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful, the Public Sector Standards Commissioner— (a) must issue a certificate in writing stating that he or she is so satisfied; and (b) must indicate to the parties the Public Sector Standards Commissioner's assessment of the merits of the application; and (c) if the Public Sector Standards Commissioner considers, having regard to all the materials before him or her, that the application has no reasonable prospect of success, he or she must advise the parties accordingly. (3) If the Public Sector Standards Commissioner has indicated that the application has no reasonable prospect of success, the Public Sector Standards Commissioner must invite the applicant to provide further information in support of the application within a period specified by the Public Sector Standards Commissioner. s. 3 -- 16 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 13 (4) If, in relation to an application to which sub- section (3) applies— (a) the applicant does not provide further information in support of the application; or (b) after consideration of the original application and the further material provided by the applicant in support— the Public Sector Standards Commissioner concludes that the application has no reasonable prospect of success at arbitration, he or she must issue a certificate to that effect. (5) If the Public Sector Standards Commissioner issues a certificate under sub-section (4) in respect of an application, the application is dismissed with effect from the date of issue of the certificate. 70K. Applicant to elect whether or not to proceed to arbitration (1) If the certificate given by the Public Sector Standards Commissioner under section 70J(2) certifies that conciliation is, or is likely to be, unsuccessful and the Public Sector Standards Commissioner has not issued a certificate under section 70J(4), the applicant must elect either to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable or not to proceed. s. 3 -- 17 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 14 (2) An election under sub-section (1) must— (a) be made in writing; and (b) be lodged with the Public Sector Standards Commissioner not later than 7 days after the day of issue of the certificate. (3) If an applicant fails to lodge with the Public Sector Standards Commissioner an election under sub-section (1) within the period required under sub-section (2), the application concerned is taken to have been discontinued by the applicant at the end of that period. (4) The Public Sector Standards Commissioner may accept an election under sub-section (1) that is lodged out of time if he or she considers that it would be unfair not to do so and, if he or she accepts such an election, the application concerned is taken not to have been discontinued despite sub-section (3). 70L. Arbitration (1) If— (a) the Public Sector Standards Commissioner has issued a certificate under section 70J(2) regarding conciliation of an application relating to a termination of employment; and (b) the applicant has made an election under section 70K(1) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable— the Public Sector Standards Commissioner may so proceed to arbitrate the matter. s. 3 -- 18 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 15 (2) Neither the making of an election under section 70K(1) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 70M. (3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Public Sector Standards Commissioner must have regard to— (a) whether there was a valid reason for the termination related to the public sector employee's capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the public sector employee was notified of that reason; and (c) whether the public sector employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the public sector employee, whether the employee had been warned about that unsatisfactory performance before the termination; and (e) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and s. 3 -- 19 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 16 (f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (g) any other matters that the Public Sector Standards Commissioner considers relevant. 70M. Remedies on arbitration (1) Subject to this section, the Public Sector Standards Commissioner may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in sub-section (3), (4) or (6) if he or she has determined that the termination was harsh, unjust or unreasonable. (2) The Public Sector Standards Commissioner must not make an order under sub-section (1) unless he or she is satisfied, having regard to all the circumstances of the case including— (a) the effect of the order on the viability of the employer's undertaking, establishment or service; and (b) the length of the public sector employee's service with the employer; and (c) the remuneration that the public sector employee would have received, or would have been likely to receive, if his or her employment had not been terminated; and s. 3 -- 20 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 17 (d) the efforts of the public sector employee (if any) to mitigate the loss suffered by him or her as a result of the termination; and (e) any other matter that the Public Sector Standards Commissioner considers relevant— that the remedy ordered is appropriate. (3) If the Public Sector Standards Commissioner considers it appropriate, he or she may make an order requiring the employer to reinstate the public sector employee by— (a) reappointing the public sector employee to the position in which he or she was employed immediately before the termination; or (b) appointing the public sector employee to another position on terms and conditions no less favourable than those on which he or she was employed immediately before the termination. (4) If the Public Sector Standards Commissioner makes an order under sub-section (3) and considers it appropriate to do so, he or she may also make— (a) any order that the Public Sector Standards Commissioner thinks appropriate to maintain the continuity of the public sector employee's employment; and (b) subject to sub-section (5), any order that the Public Sector Standards Commissioner thinks appropriate to cause the employer to pay to the public sector employee an amount in respect of the remuneration lost, or likely to s. 3 -- 21 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 18 have been lost, by the public sector employee because of the termination. (5) In determining an amount for the purposes of an order under sub-section (4)(b), the Public Sector Standards Commissioner must have regard to— (a) the amount of any income earned by the public sector employee from employment or other work during the period between the termination and the making of the order for reinstatement; and (b) the amount of any income reasonably likely to be so earned by the public sector employee during the period between the making of the order for reinstatement and the actual reinstatement. (6) If the Public Sector Standards Commissioner thinks that the reinstatement of the employee is inappropriate, he or she may, if he or she considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the public sector employee an amount ordered by the Public Sector Standards Commissioner in lieu of reinstatement. (7) Subject to sub-sections (8), (9), (10) and (11), in determining an amount for the purposes of an order under sub-section (6), the Public Sector Standards Commissioner must have regard to all the circumstances of the case including— (a) the effect of the order on the viability of the employer's undertaking, establishment or service; and s. 3 -- 22 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 19 (b) the length of the public sector employee's service with the employer; and (c) the remuneration that the public sector employee would have received, or would have been likely to receive, if his or her employment had not been terminated; and (d) the efforts of the public sector employee (if any) to mitigate the loss suffered by him or her as a result of the termination; and (e) any misconduct of the public sector employee that contributed to the employer's decision to terminate the public sector employee's employment; and (f) any other matter that the Public Sector Standards Commissioner considers relevant. (8) An amount ordered by the Public Sector Standards Commissioner under sub- section (4)(b) or (6) to be paid to an employee may not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the public sector employee by the manner of terminating his or her employment. (9) If the Public Sector Standards Commissioner is satisfied that misconduct of the public sector employee contributed to the employer's decision to terminate his or her employment, the Public Sector Standards Commissioner must reduce the amount he or she would otherwise fix under sub- s. 3 -- 23 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 20 section (6) by an appropriate amount on account of the misconduct. (10) In fixing an amount under sub-section (6) for an employee who was employed under award-derived conditions immediately before the termination, the Public Sector Standards Commissioner must not fix an amount that exceeds the total of the following amounts— (a) the total amount of remuneration— (i) received by the public sector employee; or (ii) to which the public sector employee was entitled— (whichever is higher) for any period of employment with the employer during the period of 6 months immediately before the termination (other than any period of leave without full pay); and (b) if the public sector employee was on leave without pay or without full pay while so employed during any part of that period, the amount of remuneration taken to have been received by him or her for the period of leave in accordance with regulations made for the purposes of section 654(11)(b) of the Commonwealth Act. (11) In fixing an amount under sub-section (6) for a public sector employee who was not employed under award-derived conditions immediately before the termination, the Public Sector Standards Commissioner must not fix an amount that exceeds— s. 3 -- 24 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 21 (a) the total of the amounts determined under sub-section (10) if the public sector employee were an employee covered by the sub-section; or (b) the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by regulations made for the purposes of section 654(12)(b) of the Commonwealth Act— whichever is the lower amount. (12) For the avoidance of doubt, an order by the Public Sector Standards Commissioner under sub-section (4)(b) or (6) may permit the employer concerned to pay the amount required in instalments specified in the order. 70N. Orders made on arbitration are binding An order made by the Public Sector Standards Commissioner under section 70M is final and binding between the parties. 70P. Public Sector Standards Commissioner may dismiss application if applicant fails to attend If an applicant in a proceeding relating to an application under section 70E(1) fails to attend the proceeding, the Public Sector Standards Commissioner, after giving the applicant reasonable notice and a reasonable opportunity to be heard, may dismiss the application under that section. s. 3 -- 25 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 22 70Q. Limitation on applications under section 70E(1) (1) An application under section 70E(1) must not be made if other termination proceedings have already been commenced in respect of the termination of employment, unless the other termination proceedings— (a) have been discontinued by the relevant public sector employee who commenced the proceedings; or (b) have failed for want of jurisdiction. (2) If at any time before an application made under section 70E(1) is determined under this Subdivision other termination proceedings are commenced by the relevant public sector employee under Division 4 of Part 12 of the Commonwealth Act (the Commonwealth Division) in respect of the termination of employment— (a) while the proceedings are before the Australian Industrial Relations Commission, the Public Sector Standards Commissioner is not required to attempt to settle the matter to which the application relates by conciliation or to arbitrate the matter, despite anything to the contrary in this Subdivision; and (b) the Public Sector Standards Commissioner must make an order dismissing the application under section 70E(1) if the relevant public sector employee begins proceedings in a court for an order under the Commonwealth Division in respect of an alleged contravention of that Division. s. 3 -- 26 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 23 (3) In this section "other termination proceedings" means proceedings in respect of a termination of the employment of a public sector employee— (a) for a remedy in respect of the termination— (i) under a provision of a law of the State (other than section 70E(1)); or (ii) under a provision of the Commonwealth Act; or (iii) under another law of the Commonwealth; and (b) that allege that the termination was unlawful for any reason (other than a failure by the employer to provide a benefit to which the employee was entitled on the termination). (4) Without limiting sub-section (3), "other termination proceedings" includes an inquiry in respect of a complaint (the equal opportunity complaint)— (a) made under the Equal Opportunity Act 1995 or the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth; and (b) that relates to the termination of employment of a public sector employee (whether or not as a result of an amendment of the complaint). (5) For the purposes of this section, a public sector employee commences other termination proceedings of a kind referred to in sub-section (4)— s. 3 -- 27 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 24 (a) unless paragraph (b) applies, when the employee makes the equal opportunity complaint; or (b) if the equal opportunity complaint constitutes, or would constitute, other termination proceedings only as a result of an amendment of the complaint, when the complaint is amended. (6) For the avoidance of doubt, a proceeding seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation— (a) to give adequate notice of the termination; or (b) to provide a severance payment as a result of the termination; or (c) to provide any other entitlement payable as a result of the termination— is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the employee was entitled on the termination. 70R. No second applications under section 70E(1) concerning same termination to be made An application must not be made under section 70E(1) in relation to a termination of employment of a relevant public sector employee where a previous application under that section was made in respect of the same termination unless the second application corrects an error in the previous application, or the Public Sector Standards Commissioner considers that it would be fair to accept the second application. s. 3 -- 28 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 25 70S. Orders to be in writing An order of the Public Sector Standards Commissioner under this Subdivision must be in writing. 70T. When orders take effect An order of the Public Sector Standards Commissioner under this Subdivision takes effect from the date of the order or a later date specified in the order. 70U. Compliance with orders (1) An order under this Subdivision is, unless the order provides otherwise, taken to bind the employer and relevant public sector employee covered by the order. (2) In addition to any other right that a relevant public sector employee covered by an order under this Subdivision may have, he or she may apply to a court of competent jurisdiction to enforce the order by injunction or otherwise as the court thinks fit. 70V. Variation and revocation of orders (1) The Public Sector Standards Commissioner may vary or revoke an order under this Subdivision on application by the employer or the relevant public sector employee covered by it. (2) This section does not apply to an order under section 70F(3) or 70G or to a decision on an extension of time application within the meaning of section 70H. s. 3 -- 29 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 26 70W. Public Sector Standards Commissioner may determine procedure Subject to this Subdivision and any regulations made for the purposes of this Subdivision, the Public Sector Standards Commissioner may determine the procedure to be followed with respect to any proceeding under this Subdivision. 70X. Personal liability (1) The Public Sector Standards Commissioner or any delegate of the Public Sector Standards Commissioner is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a function under this Subdivision; or (b) in the reasonable belief that the act or omission was in the exercise of a function under this Subdivision. (2) Any liability resulting from an act or omission that would, but for sub-section (1), attach to a person referred to in that sub- section attaches instead to the Authority. 70Y. Immunity of participants (1) An Australian legal practitioner within the meaning of the Legal Profession Act 2004 representing a party in a proceeding under this Subdivision has the same protection and immunity as such a person has in representing a party in proceedings in the Supreme Court. (2) A party to a proceeding under this Subdivision has the same protection and immunity as a party to proceedings in the Supreme Court. s. 3 -- 30 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 27 (3) A person appearing as a witness in a proceeding under this Subdivision has the same protection and immunity as a witness has in proceedings in the Supreme Court. 70Z. Regulations Without limiting section 112, regulations may be made for the purposes of this Subdivision for or with respect to— (a) excluding a specified class of public sector employee from the operation of this Subdivision; (b) the practice and procedure to be followed by the Public Sector Standards Commissioner under this Subdivision including— (i) the manner in which, and the time within which, applications, submissions and objections may be made to the Public Sector Standards Commissioner; and (ii) the manner in which applications, submissions and objections may be dealt with by the Public Sector Standards Commissioner; and (iii) steps to be taken before a decision is made in a matter in relation to which it is not proposed to hold a hearing; and (iv) prohibiting the Public Sector Standards Commissioner extending the period within which any specified thing is required to be done.'. s. 3 -- 31 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 28 4. Consequential amendments (1) In section 1 of the Public Administration Act 2004, for paragraphs (c) to (f) substitute— "(c) enable certain public sector employees to apply to the Public Sector Standards Commissioner for relief in respect of termination of employment on the ground that the termination was harsh, unjust or unreasonable; (d) give a role to the Public Sector Standards Commissioner to deal with applications by certain Parliamentary officers under the Parliamentary Administration Act 2005 for relief in respect of termination of employment on the ground that the termination was harsh, unjust or unreasonable.". (2) After section 3(d) of the Public Administration Act 2004 insert— "(da) so far as possible— (i) to ensure the preservation of any rights of public sector employees to seek relief in respect of termination of employment that may have been removed by amendments made to the Workplace Relations Act 1996 of the Commonwealth by the Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth; (ii) to assist in giving effect to Australia's international obligations in relation to labour standards including under the Termination of Employment Convention, 1982 (convention concerning termination of employment at the initiative of the employer);". s. 4 -- 32 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 29 (3) After section 35(2)(b) of the Public Administration Act 2004 insert— "(ba) order made by the Public Sector Standards Commissioner under Subdivision 5A of Division 2 of Part 4;". (4) In section 45(1) of the Public Administration Act 2004— (a) after paragraph (d) insert— "(da) to provide relief to certain public sector employees against a harsh, unjust or unreasonable termination of employment (role 5—see Subdivision 5A);"; (b) in paragraph (e) for "role 5" substitute "role 6". (5) In section 48(2) of the Public Administration Act 2004, after "role 2" (where twice occurring) insert "or role 5". (6) In the heading to Subdivision 6 of Division 2 of Part 4 of the Public Administration Act 2004, for "Role 5" substitute "Role 6". (7) In the heading to section 71 of the Public Administration Act 2004, for "5" substitute "6". (8) In section 71 of the Public Administration Act 2004, for "5" substitute "6". (9) In section 103(5) of the Public Administration Act 2004, for "A" substitute "Subject to Subdivision 5A of Division 2 of Part 4, a". s. 4 -- 33 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 30 5. New Division 7 inserted in Part 3 of the Parliamentary Administration Act 2005 After Division 6 of Part 3 of the Parliamentary Administration Act 2005 insert— 'Division 7—Relief in Respect of Termination of Employment 29A. Definitions (1) In this Division— "Commonwealth Act" means the Workplace Relations Act 1996 of the Commonwealth; "employer" means an entity that employs, or usually employs, a Parliamentary officer in the capacity of Parliamentary officer; "operational reasons" means reasons of an economic, technological, structural or similar nature relating to an employer's undertaking, establishment, service or business, or to a part of an employer's undertaking, establishment, service or business; "relevant Parliamentary officer" means a person who, immediately before the termination of his or her employment, was a Parliamentary officer and who— (a) cannot apply under section 643 of the Commonwealth Act to the Australian Industrial Relations Commission on the ground that the termination was harsh, unjust or unreasonable, or on grounds that include that ground, because his or her employer employed See: Act No. 20/2005. LawToday: www.dms. dpc.vic. gov.au s. 5 -- 34 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 31 100 employees or fewer at the relevant time; and (b) is not excluded by or under section 29B from the operation of this Division. (2) An expression used in this Division and in Division 4 of Part 12 of the Commonwealth Act has the same meaning in this Division as it has in that Division, unless the contrary intention appears. 29B. Exclusions (1) The following kinds of Parliamentary officers are excluded from the operation of this Division— (a) a Parliamentary officer who, by force of section 638(1) of the Commonwealth Act, is excluded from the operation of Subdivision B of Division 4 of Part 12 of that Act; (b) a Parliamentary officer who is a member of a class of Parliamentary officer excluded from the operation of this Division by regulations made under sub-section (2). (2) The regulations may exclude from the operation of this Division a specified class of Parliamentary officer. 29C. Application to PSSC to deal with termination (1) Subject to sub-sections (2) and (4), a relevant Parliamentary officer whose employment has been terminated by the employer may apply to the Public Sector Standards Commissioner for relief in respect of the termination of that employment on the ground that the s. 5 -- 35 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 32 termination was harsh, unjust or unreasonable. (2) An application must not be made under sub- section (1) unless the relevant Parliamentary officer concerned had completed the qualifying period of employment with the employer at the earlier of the following times— (a) the time when the employer gave the officer the notice of termination; (b) the time when the employer terminated the officer's employment. (3) For the purposes of sub-section (2), the qualifying period of employment is— (a) 6 months; or (b) a shorter period, or no period, determined by written agreement between the Parliamentary officer and employer before the commencement of the employment; or (c) a longer period determined by written agreement between the Parliamentary officer and employer before the commencement of the employment, being a reasonable period having regard to the nature and circumstances of the employment. (4) An application must not be made under sub- section (1) if the Parliamentary officer's employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons. s. 5 -- 36 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 33 (5) An application under sub-section (1) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Public Sector Standards Commissioner allows on an application made during or after those 21 days. (6) An application under sub-section (1) may be discontinued by the applicant, whether or not the employer and the relevant Parliamentary officer have agreed to settle the matter. Regulations may prescribe the manner in which an application may be discontinued and, if so, the application must be discontinued in accordance with the regulations. 29D. Dismissal of application for want of jurisdiction (1) A respondent may apply to the Public Sector Standards Commissioner for the dismissal of an application under section 29C(1) on the ground that the application is outside the jurisdiction of the Public Sector Standards Commissioner. (2) An application may be made under sub- section (1) at any time, including a time before the Public Sector Standards Commissioner has begun dealing with the application. (3) If the Public Sector Standards Commissioner is satisfied that an application under section 29C(1) is outside his or her jurisdiction— (a) because the Parliamentary officer is excluded from the operation of this Division by or under section 29B; or s. 5 -- 37 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 34 (b) because of the operation of section 29C(2) (which relates to qualifying periods)— the Public Sector Standards Commissioner must make an order dismissing the application. (4) The Public Sector Standards Commissioner may make an order under sub-section (3) even if no application has been made under sub-section (1) if it appears to him or her, on the face of all the materials before him or her, that the application under section 29C(1) is outside his or her jurisdiction for a reason mentioned in sub-section (3)(a) or (b). (5) If— (a) a respondent has applied under sub- section (1); and (b) the Public Sector Standards Commissioner is not satisfied as mentioned in sub-section (3)(a) or (b) in relation to the application— the Public Sector Standards Commissioner must make an order refusing the application for dismissal. (6) The Public Sector Standards Commissioner is not required to hold a hearing in relation to the making of an order under sub-section (3) or (5). 29E. Applications that are frivolous, vexatious or lacking in substance (1) A respondent may apply to the Public Sector Standards Commissioner for the dismissal of an application under section 29C(1) on the ground that the application is frivolous, vexatious or lacking in substance. s. 5 -- 38 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 35 (2) If the Public Sector Standards Commissioner is satisfied that an application under section 29C(1) is frivolous, vexatious or lacking in substance, he or she must make an order dismissing the application. (3) If— (a) a respondent has applied under sub- section (1); and (b) the Public Sector Standards Commissioner is not satisfied that the application under section 29C(1) is frivolous, vexatious or lacking in substance— the Public Sector Standards Commissioner must make an order refusing the application for dismissal. (4) The Public Sector Standards Commissioner is not required to hold a hearing in relation to the making of an order under sub-section (2) or (3). 29F. Extension of time applications may be decided without a hearing If a Parliamentary officer whose employment has been terminated by an employer makes an application (the extension of time application) under section 29C(5) requesting the Public Sector Standards Commissioner to allow an application to be lodged under section 29C(1) after the period of 21 days after the termination took effect, the Public Sector Standards Commissioner is not required to hold a hearing in relation to the extension of time application. s. 5 -- 39 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 36 29G. Dismissal of application relating to termination for operational reasons (1) If— (a) an application is made under section 29C(1); and (b) either— (i) the respondent has applied for the dismissal of the application on the ground that the application is outside the jurisdiction of the Public Sector Standards Commissioner because the Parliamentary officer's employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons; or (ii) it appears to the Public Sector Standards Commissioner, on the face of all the materials before him or her, that the Parliamentary officer's employment may have been terminated for genuine operational reasons or for reasons that include genuine operational reasons— the Public Sector Standards Commissioner must, subject to section 29D(6), 29E(4) or 29F (as the case requires), hold a hearing to deal with the operational reasons issue. (2) If, as a result of the hearing, the Public Sector Standards Commissioner is satisfied that the operational reasons relied on by the respondent were genuine, the Public Sector Standards Commissioner must make an order dismissing the application. s. 5 -- 40 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 37 (3) A finding by the Public Sector Standards Commissioner that he or she is not satisfied that the operational reasons relied on by the respondent were genuine is final and binding between the parties in any proceedings before the Public Sector Standards Commissioner. (4) To avoid doubt, this section does not require the Public Sector Standards Commissioner to hold a hearing in relation to an application that has been dismissed under section 29D(3) or 29E(2). 29H. Conciliation (1) When an application is lodged with the Public Sector Standards Commissioner, the Public Sector Standards Commissioner must attempt to settle the matter to which the application relates by conciliation. (2) If the Public Sector Standards Commissioner is satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful, the Public Sector Standards Commissioner— (a) must issue a certificate in writing stating that he or she is so satisfied; and (b) must indicate to the parties the Public Sector Standards Commissioner's assessment of the merits of the application; and (c) if the Public Sector Standards Commissioner considers, having regard to all the materials before him or her, that the application has no reasonable prospect of success, he or she must advise the parties accordingly. s. 5 -- 41 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 38 (3) If the Public Sector Standards Commissioner has indicated that the application has no reasonable prospect of success, the Public Sector Standards Commissioner must invite the applicant to provide further information in support of the application within a period specified by the Public Sector Standards Commissioner. (4) If, in relation to an application to which sub- section (3) applies— (a) the applicant does not provide further information in support of the application; or (b) after consideration of the original application and the further material provided by the applicant in support— the Public Sector Standards Commissioner concludes that the application has no reasonable prospect of success at arbitration, he or she must issue a certificate to that effect. (5) If the Public Sector Standards Commissioner issues a certificate under sub-section (4) in respect of an application, the application is dismissed with effect from the date of issue of the certificate. 29I. Applicant to elect whether or not to proceed to arbitration (1) If the certificate given by the Public Sector Standards Commissioner under section 29H(2) certifies that conciliation is, or is likely to be, unsuccessful and the Public Sector Standards Commissioner has not issued a certificate under section 29H(4), the applicant must elect either to proceed to arbitration to determine whether the s. 5 -- 42 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 39 termination was harsh, unjust or unreasonable or not to proceed. (2) An election under sub-section (1) must— (a) be made in writing; and (b) be lodged with the Public Sector Standards Commissioner not later than 7 days after the day of issue of the certificate. (3) If an applicant fails to lodge with the Public Sector Standards Commissioner an election under sub-section (1) within the period required under sub-section (2), the application concerned is taken to have been discontinued by the applicant at the end of that period. (4) The Public Sector Standards Commissioner may accept an election under sub-section (1) that is lodged out of time if he or she considers that it would be unfair not to do so and, if he or she accepts such an election, the application concerned is taken not to have been discontinued despite sub-section (3). 29J. Arbitration (1) If— (a) the Public Sector Standards Commissioner has issued a certificate under section 29H(2) regarding conciliation of an application relating to a termination of employment; and s. 5 -- 43 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 40 (b) the applicant has made an election under section 29I(1) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable— the Public Sector Standards Commissioner may so proceed to arbitrate the matter. (2) Neither the making of an election under section 29I(1) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 29K. (3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Public Sector Standards Commissioner must have regard to— (a) whether there was a valid reason for the termination related to the Parliamentary officer's capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the Parliamentary officer was notified of that reason; and (c) whether the Parliamentary officer was given an opportunity to respond to any reason related to the capacity or conduct of the officer; and (d) if the termination related to unsatisfactory performance by the Parliamentary officer, whether the officer had been warned about that unsatisfactory performance before the termination; and s. 5 -- 44 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 41 (e) any other matters that the Public Sector Standards Commissioner considers relevant. 29K. Remedies on arbitration (1) Subject to this section, the Public Sector Standards Commissioner may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in sub-section (3), (4) or (6) if he or she has determined that the termination was harsh, unjust or unreasonable. (2) The Public Sector Standards Commissioner must not make an order under sub-section (1) unless he or she is satisfied, having regard to all the circumstances of the case including— (a) the length of the Parliamentary officer’s service with the employer; and (b) the remuneration that the Parliamentary officer would have received, or would have been likely to receive, if his or her employment had not been terminated; and (c) the efforts of the Parliamentary officer (if any) to mitigate the loss suffered by him or her as a result of the termination; and (d) any other matter that the Public Sector Standards Commissioner considers relevant— that the remedy ordered is appropriate. (3) If the Public Sector Standards Commissioner considers it appropriate, he or she may make an order requiring the employer to reinstate the Parliamentary officer by— s. 5 -- 45 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 42 (a) reappointing the Parliamentary officer to the position in which he or she was employed immediately before the termination; or (b) appointing the Parliamentary officer to another position on terms and conditions no less favourable than those on which he or she was employed immediately before the termination. (4) If the Public Sector Standards Commissioner makes an order under sub-section (3) and considers it appropriate to do so, he or she may also make— (a) any order that the Public Sector Standards Commissioner thinks appropriate to maintain the continuity of the Parliamentary officer's employment; and (b) subject to sub-section (5), any order that the Public Sector Standards Commissioner thinks appropriate to cause the employer to pay to the Parliamentary officer an amount in respect of the remuneration lost, or likely to have been lost, by the Parliamentary officer because of the termination. (5) In determining an amount for the purposes of an order under sub-section (4)(b), the Public Sector Standards Commissioner must have regard to— (a) the amount of any income earned by the Parliamentary officer from employment or other work during the period between the termination and the s. 5 -- 46 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 43 making of the order for reinstatement; and (b) the amount of any income reasonably likely to be so earned by the Parliamentary officer during the period between the making of the order for reinstatement and the actual reinstatement. (6) If the Public Sector Standards Commissioner thinks that the reinstatement of the officer is inappropriate, he or she may, if he or she considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay the Parliamentary officer an amount ordered by the Public Sector Standards Commissioner in lieu of reinstatement. (7) Subject to sub-sections (8), (9), (10) and (11), in determining an amount for the purposes of an order under sub-section (6), the Public Sector Standards Commissioner must have regard to all the circumstances of the case including— (a) the effect of the order on the viability of the employer's undertaking, establishment or service; and (b) the length of the Parliamentary officer's service with the employer; and (c) the remuneration that the Parliamentary officer would have received, or would have been likely to receive, if his or her employment had not been terminated; and s. 5 -- 47 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 44 (d) the efforts of the Parliamentary officer (if any) to mitigate the loss suffered by him or her as a result of the termination; and (e) any misconduct of the Parliamentary officer that contributed to the employer's decision to terminate the Parliamentary officer's employment; and (f) any other matter that the Public Sector Standards Commissioner considers relevant. (8) An amount ordered by the Public Sector Standards Commissioner under sub- section (4)(b) or (6) to be paid to an officer may not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the Parliamentary officer by the manner of terminating his or her employment. (9) If the Public Sector Standards Commissioner is satisfied that misconduct of the Parliamentary officer contributed to the employer's decision to terminate his or her employment, the Public Sector Standards Commissioner must reduce the amount he or she would otherwise fix under sub- section (6) by an appropriate amount on account of the misconduct. (10) In fixing an amount under sub-section (6) for an officer who was employed under award-derived conditions immediately before the termination, the Public Sector Standards Commissioner must not fix an amount that exceeds the total of the following amounts— s. 5 -- 48 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 45 (a) the total amount of remuneration— (i) received by the Parliamentary officer; or (ii) to which the Parliamentary officer was entitled— (whichever is higher) for any period of employment with the employer during the period of 6 months immediately before the termination (other than any period of leave without full pay); and (b) if the Parliamentary officer was on leave without pay or without full pay while so employed during any part of that period, the amount of remuneration taken to have been received by him or her for the period of leave in accordance with regulations made for the purposes of section 654(11)(b) of the Commonwealth Act. (11) In fixing an amount under sub-section (6) for a Parliamentary officer who was not employed under award-derived conditions immediately before the termination, the Public Sector Standards Commissioner must not fix an amount that exceeds— (a) the total of the amounts determined under sub-section (10) if the Parliamentary officer were an officer covered by the sub-section; or (b) the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by regulations made for the purposes of section 654(12)(b) of the Commonwealth Act— whichever is the lower amount. s. 5 -- 49 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 46 (12) For the avoidance of doubt, an order by the Public Sector Standards Commissioner under sub-section (4)(b) or (6) may permit the employer concerned to pay the amount required in instalments specified in the order. 29L. Orders made on arbitration are binding An order made by the Public Sector Standards Commissioner under section 29K is final and binding between the parties. 29M. Public Sector Standards Commissioner may dismiss application if applicant fails to attend If an applicant in a proceeding relating to an application under section 29C(1) fails to attend the proceeding, the Public Sector Standards Commissioner, after giving the applicant reasonable notice and a reasonable opportunity to be heard, may dismiss the application under that section. 29N. Limitation on applications under section 29C(1) (1) An application under section 29C(1) must not be made if other termination proceedings have already been commenced in respect of the termination of employment, unless the other termination proceedings— (a) have been discontinued by the relevant Parliamentary officer who commenced the proceedings; or (b) have failed for want of jurisdiction. (2) If at any time before an application made under section 29C(1) is determined under this Division other termination proceedings are commenced by the relevant Parliamentary officer under Division 4 of s. 5 -- 50 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 47 Part 12 of the Commonwealth Act (the Commonwealth Division) in respect of the termination of employment— (a) while the proceedings are before the Australian Industrial Relations Commission, the Public Sector Standards Commissioner is not required to attempt to settle the matter to which the application relates by conciliation or to arbitrate the matter, despite anything to the contrary in this Division; and (b) the Public Sector Standards Commissioner must make an order dismissing the application under section 29C(1) if the relevant Parliamentary officer begins proceedings in a court for an order under the Commonwealth Division in respect of an alleged contravention of that Division. (3) In this section "other termination proceedings" means proceedings in respect of a termination of the employment of a Parliamentary officer— (a) for a remedy in respect of the termination— (i) under a provision of a law of the State (other than section 29C(1)); or (ii) under a provision of the Commonwealth Act; or (iii) under another law of the Commonwealth; and s. 5 -- 51 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 48 (b) that allege that the termination was unlawful for any reason (other than a failure by the employer to provide a benefit to which the officer was entitled on the termination). (4) Without limiting sub-section (3), "other termination proceedings" includes an inquiry in respect of a complaint (the equal opportunity complaint)— (a) made under the Equal Opportunity Act 1995 or the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth; and (b) that relates to the termination of employment of a Parliamentary officer (whether or not as a result of an amendment of the complaint). (5) For the purposes of this section, a Parliamentary officer commences other termination proceedings of a kind referred to in sub-section (4)— (a) unless paragraph (b) applies, when the officer makes the equal opportunity complaint; or (b) if the equal opportunity complaint constitutes, or would constitute, other termination proceedings only as a result of an amendment of the complaint, when the complaint is amended. (6) For the avoidance of doubt, a proceeding seeking compensation, or the imposition of a penalty, because an employer has failed, in relation to a termination of employment, to meet an obligation— (a) to give adequate notice of the termination; or s. 5 s. 5 -- 52 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 49 (b) to provide a severance payment as a result of the termination; or (c) to provide any other entitlement payable as a result of the termination— is taken to be a proceeding alleging that the termination was unlawful because of a failure to provide a benefit to which the officer was entitled on the termination. 29P. No second applications under section 29C(1) concerning same termination to be made An application must not be made under section 29C(1) in relation to a termination of employment of a relevant Parliamentary officer where a previous application under that section was made in respect of the same termination unless the second application corrects an error in the previous application, or the Public Sector Standards Commissioner considers that it would be fair to accept the second application. 29Q. Orders to be in writing An order of the Public Sector Standards Commissioner under this Division must be in writing. 29R. When orders take effect An order of the Public Sector Standards Commissioner under this Division takes effect from the date of the order or a later date specified in the order. 29S. Compliance with orders (1) An order under this Division is, unless the order provides otherwise, taken to bind the employer and relevant Parliamentary officer covered by the order. s. 5 -- 53 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 50 (2) In addition to any other right that a relevant Parliamentary officer covered by an order under this Division may have, he or she may apply to a court of competent jurisdiction to enforce the order by injunction or otherwise as the court thinks fit. 29T. Variation and revocation of orders (1) The Public Sector Standards Commissioner may vary or revoke an order under this Division on application by the employer or the relevant Parliamentary officer covered by it. (2) This section does not apply to an order under section 29D(3) or 29E or to a decision on an extension of time application within the meaning of section 29F. 29U. Public Sector Standards Commissioner may determine procedure Subject to this Division and any regulations made for the purposes of this Division, the Public Sector Standards Commissioner may determine the procedure to be followed with respect to any proceeding under this Division. 29V. Personal liability (1) The Public Sector Standards Commissioner or any delegate of the Public Sector Standards Commissioner is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a function under this Division; or (b) in the reasonable belief that the act or omission was in the exercise of a function under this Division. s. 5 s. 5 -- 54 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 51 (2) Any liability resulting from an act or omission that would, but for sub-section (1), attach to a person referred to in that sub- section attaches instead to the State Services Authority established under Part 4 of the Public Administration Act 2004. 29W. Immunity of participants (1) An Australian legal practitioner within the meaning of the Legal Profession Act 2004 representing a party in a proceeding under this Division has the same protection and immunity as such a person has in representing a party in proceedings in the Supreme Court. (2) A party to a proceeding under this Division has the same protection and immunity as a party to proceedings in the Supreme Court. (3) A person appearing as a witness in a proceeding under this Division has the same protection and immunity as a witness has in proceedings in the Supreme Court. 29X. Regulations Without limiting section 33, regulations may be made for the purposes of this Division for or with respect to— (a) excluding a specified class of Parliamentary officer from the operation of this Division; (b) the practice and procedure to be followed by the Public Sector Standards Commissioner under this Division including— (i) the manner in which, and the time within which, applications, submissions and objections may s. 5 -- 55 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 52 be made to the Public Sector Standards Commissioner; and (ii) the manner in which applications, submissions and objections may be dealt with by the Public Sector Standards Commissioner; and (iii) steps to be taken before a decision is made in a matter in relation to which it is not proposed to hold a hearing; and (iv) prohibiting the Public Sector Standards Commissioner extending the period within which any specified thing is required to be done.'. 6. Consequential amendments (1) In section 1 of the Parliamentary Administration Act 2005, for paragraphs (b) and (c) substitute— "(b) enable certain Parliamentary officers to apply to the Public Sector Standards Commissioner for relief in respect of termination of employment on the ground that the termination was harsh, unjust or unreasonable.". (2) After section 3(c) of the Parliamentary Administration Act 2005 insert— "(ca) so far as possible— (i) to ensure the preservation of any rights of Parliamentary officers to seek relief in respect of termination of employment that may have been removed by amendments made to the Workplace Relations Act 1996 of the Commonwealth by the Workplace s. 6 -- 56 of 99 -- Part 2—Unfair Dismissal Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 53 Relations Amendment (Work Choices) Act 2005 of the Commonwealth; (ii) to assist in giving effect to Australia's international obligations in relation to labour standards including under the Termination of Employment Convention, 1982 (convention concerning termination of employment at the initiative of the employer);". __________________ s. 6 -- 57 of 99 -- Part 3—Amendment of Public Administration Act 2004 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 54 PART 3—AMENDMENT OF PUBLIC ADMINISTRATION ACT 2004 7. What are public entities? (1) In section 5(1)(b) of the Public Administration Act 2004— (a) for "a majority" substitute "at least one half"; (b) after "Minister" insert "or could have been so vested in the case of a body corporate established by an Order made by the Governor in Council or a Minister under the power given by the Act under which the Order is made". (2) In section 5(1) of the Public Administration Act 2004, after "but does not include—" insert— "(da) a Department or an Administrative Office; or". 8. Public sector values (1) In section 7(2) of the Public Administration Act 2004, for "sub-section (3)" substitute "sub- sections (3) and (3A)". (2) After section 7(3) of the Public Administration Act 2004 insert— "(3A) Sub-section (2), in its application to a public entity that exercises functions that are of a quasi-judicial nature or with respect to a director of such a public entity in the exercise of such functions, does not extend to the public sector values referred to in sub- sections (1)(a)(i) and (1)(c)(iii).". s. 7 -- 58 of 99 -- Part 3—Amendment of Public Administration Act 2004 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 55 9. Right of return (1) In section 27(2)(b) of the Public Administration Act 2004, after "higher" insert "total". (2) After section 27(2) of the Public Administration Act 2004 insert— "(3) The regulations may specify how the total remuneration level at which a former executive was last employed as an executive is to be determined for the purposes of this section. (4) A former executive may, whether in consideration of the making of any payment to him or her or otherwise, waive in writing his or her entitlement under this section to employment in a public service body. (5) A former executive who elects to exercise his or her entitlement under this section to employment in a public service body is not entitled to any payment in lieu of notice on the termination of his or her contract of employment as an executive, despite anything to the contrary in that contract.". 10. Terms and conditions of appointment of members For section 38(4) of the Public Administration Act 2004 substitute— "(4) This Act (other than Part 3) applies to a member of the Authority in respect of the office of member.". s. 9 -- 59 of 99 -- Part 3—Amendment of Public Administration Act 2004 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 56 11. New section 44A inserted After section 44 of the Public Administration Act 2004 insert— "44A. Application of Freedom of Information Act 1982 The Freedom of Information Act 1982 applies to, and in respect of, the Authority as if it were a department within the meaning of that Act and as if the chief executive officer of the Authority were the principal officer of the Authority for the purposes of that Act.". 12. New section 44B inserted At the end of Division 1 of Part 4 of the Public Administration Act 2004 insert— "44B. Application of Part 7A of Financial Management Act 1994 Part 7A of the Financial Management Act 1994 applies to, and in respect of, the Authority as if it were a department within the meaning of that Act and as if the chief executive officer of the Authority were the accountable officer of the Authority for the purposes of that Part.". 13. Delegation In section 48(1) of the Public Administration Act 2004— (a) after "Part 3" insert "or to any other person whatsoever"; (b) after "this Act" insert "or the Parliamentary Administration Act 2005". s. 11 -- 60 of 99 -- Part 3—Amendment of Public Administration Act 2004 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 57 14. Transitional provision After clause 12 of Schedule 2 to the Public Administration Act 2004 insert— "13. Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 The amendment of this Act made by section 12 of the Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 does not affect any contract or arrangement for the supply of goods or services, or for the management or disposal of goods, entered into by the Authority before the commencement of that section.". __________________ s. 14 -- 61 of 99 -- Part 4—Amendment of Audit Act 1994 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 58 PART 4—AMENDMENT OF AUDIT ACT 1994 15. Auditor-General's annual plan (1) For section 7A(6)(b) of the Audit Act 1994 substitute— "(b) cause the annual plan to be transmitted to each House of the Parliament.". (2) For section 7A(8) of the Audit Act 1994 substitute— "(8) If the Auditor-General proposes to transmit an annual plan to the Parliament at a time when a House of the Parliament is not likely to sit between then and the beginning of the financial year to which the annual plan relates, the Auditor-General must— (a) give one business day's notice of his or her intention to do so to the clerk of the House of the Parliament; and (b) give the annual plan to the clerk of the House on the day indicated in the notice; and (c) publish the annual plan on the Auditor- General's Internet website on the day after giving it to the clerk. (9) The clerk of a House must— (a) notify each member of the House of the receipt of a notice under sub-section (8)(a) on the same day that the clerk receives that notice; and (b) give a copy of the annual plan to each member of the House as soon as practicable after the annual plan is received under sub-section (8)(b); and See: Act No. 2/1994. Reprint No. 4 as at 1 July 2003 and amending Act Nos 110/2003, 114/2003, 43/2004 and 108/2004. LawToday: www.dms. dpc.vic. gov.au s. 15 -- 62 of 99 -- Part 4—Amendment of Audit Act 1994 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 59 (c) cause the annual plan to be laid before the House on the next sitting day of the House. (10) An annual plan that is given to the clerk of a House under sub-section (8)(b) is taken to have been published by order, or under the authority, of the House. (11) The publication of an annual plan by the Auditor-General under sub-section (8)(c) is absolutely privileged and the provisions of sections 73 and 74 of the Constitution Act 1975 and any other enactment or rule of law relating to the publication of the proceedings of the Parliament apply to and in relation to the publication of the annual plan as if it were a report to which those sections applied and had been published by the Government Printer under the authority of the Parliament.". 16. Standards (1) For section 13(1) and (2) of the Audit Act 1994 substitute— "(1) Standards made by the Auditing and Assurance Standards Board under section 336 of the Corporations Act or formulated by that Board under section 227B of the ASIC Act, as in force from time to time, must be applied, as appropriate, in the performance of functions and exercise of powers in relation to audits or performance audits under this Act.". (2) In section 13(3) of the Audit Act 1994 omit "or (2)". __________________ s. 16 -- 63 of 99 -- Part 5—Amendment of Commonwealth Games Arrangements Act 2001 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 60 PART 5—AMENDMENT OF COMMONWEALTH GAMES ARRANGEMENTS ACT 2001 17. New sections 57C and 57D inserted After section 57B of the Commonwealth Games Arrangements Act 2001 insert— "57C. Date of abolition of Corporation (1) The Governor in Council, on the recommendation of the Minister, by Order published in the Government Gazette, may fix a date (being a date before 31 December 2006) as the date on which the Corporation is to be abolished. (2) Before the Minister makes a recommendation to the Governor in Council to make an Order under sub-section (1), the Minister must consult with CGF and ACGA. 57D. Corporation abolished and transfer of assets and liabilities Schedule 6 has effect.". 18. Expiry (1) After section 58(1) of the Commonwealth Games Arrangements Act 2001 insert— "(1AA) Parts 1A and 1B of this Act and Schedule 2 to this Act expire on— (a) the date fixed by an Order made under section 57C(1); or (b) 31 December 2006— whichever is the earlier date.". See: Act No. 57/2001. Reprint No. 2 as at 1 March 2006 and amending Act No. 29/2006. LawToday: www.dms. dpc.vic. gov.au s. 17 -- 64 of 99 -- Part 5—Amendment of Commonwealth Games Arrangements Act 2001 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 61 (2) In section 58(1A) of the Commonwealth Games Arrangements Act 2001— (a) omit "1A, 1B,"; (b) omit "2,". 19. New Schedule 6 inserted After Schedule 5 to the Commonwealth Games Arrangements Act 2001 insert— 'SCHEDULE 6 Section 57D CORPORATION ABOLISHED AND TRANSFER OF ASSETS AND LIABILITIES 1. Definition In this Schedule, "abolition date" means the date that Part 1A of this Act expires. 2. Abolition of Corporation On the abolition date, the Corporation is abolished. 3. Members of Board go out of office A person holding office as a member of the Board immediately before the abolition date ceases to hold that office on that date. 4. Abolition of committees On the abolition date— (a) any committee established by the Corporation under section 4R is abolished; and (b) a person holding office as a member of a committee referred to in paragraph (a) immediately before the abolition date ceases to hold that office. s. 19 -- 65 of 99 -- Part 5—Amendment of Commonwealth Games Arrangements Act 2001 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 62 5. Transfer of assets and liabilities (1) On the abolition date, all assets, property (including intellectual property) and rights vested in or held by the Corporation immediately before the abolition date vest, by force of this sub-clause, in the State. (2) On the abolition date, all liabilities of the Corporation existing immediately before the abolition date become, by force of this sub-clause, liabilities of the State. (3) On the abolition date, the State is, by force of this sub-clause, substituted as a party to— (a) subject to sub-clause (5), any current agreement, contract, lease or other arrangement; and (b) any proceedings pending in any court or tribunal— to which the Corporation or the Board was a party immediately before the abolition date. (4) The operation of sub-clause (3) does not confer on a party (other than the State) to an agreement, contract, lease or other arrangement any right or benefit not existing before the abolition date. (5) Nothing in this clause operates to transfer to the State any current agreement, contract or other arrangement relating to terms or conditions of employment of persons employed under section 4G, 4T or 4U. 6. Validity of things done under this Schedule Nothing effected or to be effected by this Schedule or done or suffered under this Schedule— (a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or (b) is to be regarded as placing any person in breach of, or as constituting a default under, any Act or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, s. 19 -- 66 of 99 -- Part 5—Amendment of Commonwealth Games Arrangements Act 2001 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 63 restricting or regulating the assignment, transfer, sale or disposal of any property or the disclosure of any information; or (c) is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or (d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any asset, right or liability; or (e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or (f) is to be regarded as frustrating any contract; or (g) releases any surety or other obligor wholly or in part from any obligation.'. __________________ s. 19 -- 67 of 99 -- Part 6—Amendment of Ombudsman Act 1973 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 64 PART 6—AMENDMENT OF OMBUDSMAN ACT 1973 20. Delegation In section 11(1) of the Ombudsman Act 1973, for "this Act" substitute "this or any other Act". __________________ See: Act No. 8414. Reprint No. 7 as at 16 February 2006 and amending Act Nos 23/2006 and 29/2006. LawToday: www.dms. dpc.vic. gov.au s. 20 -- 68 of 99 -- Part 7—Amendment of Public Sector Employment (Award Entitlements) Act 2006 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 65 PART 7—AMENDMENT OF PUBLIC SECTOR EMPLOYMENT (AWARD ENTITLEMENTS) ACT 2006 21. Purposes and definitions (1) After section 1(b) of the Public Sector Employment (Award Entitlements) Act 2006 insert— "(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;". (2) In section 3(1) of the Public Sector Employment (Award Entitlements) Act 2006, in the note at the foot of the definition of "employee", for 'section 11 gives "employee" an extended meaning for the purposes of Part 3' substitute 'sections 11 and 15A respectively give "employee" an extended meaning for the purposes of Parts 3 and 3A'. 22. New Part 3A inserted After Part 3 of the Public Sector Employment (Award Entitlements) Act 2006 insert— 'PART 3A—RESTRICTION ON AGREEMENTS 15A. Definitions In this Part— "collective agreement" means— See: Act No. 15/2006. LawToday: www.dms. dpc.vic. gov.au s. 21 -- 69 of 99 -- Part 7—Amendment of Public Sector Employment (Award Entitlements) Act 2006 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 66 (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; "employee" includes a prospective employee; "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. 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. s. 22 -- 70 of 99 -- Part 7—Amendment of Public Sector Employment (Award Entitlements) Act 2006 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 67 (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. 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. s. 22 -- 71 of 99 -- Part 7—Amendment of Public Sector Employment (Award Entitlements) Act 2006 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 68 (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. 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. 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.'. 23. Amendment of Commonwealth Powers (Industrial Relations) Act 1996 In section 5(1) of the Commonwealth Powers (Industrial Relations) Act 1996— (a) in paragraph (n), for "that Act." substitute "that Act;"; s. 23 -- 72 of 99 -- Part 7—Amendment of Public Sector Employment (Award Entitlements) Act 2006 Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 69 (b) after paragraph (n) insert— "(o) matters that would allow or require a public sector employer within the meaning of the Public Sector Employment (Award Entitlements) Act 2006 to offer an employee within the meaning of that Act, or to accept an offer from an employee of, a statutory industrial agreement within the meaning of that Act 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. 23 -- 73 of 99 -- Part 8—Minor and Consequential Amendments Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 70 PART 8—MINOR AND CONSEQUENTIAL AMENDMENTS 24. Minor amendments to the Public Administration Act 2004 (1) In section 7(2) of the Public Administration Act 2004 omit "by or". (2) In section 52(2) of the Public Administration Act 2004 for the expression commencing "is—" and ending at the end of the sub-section substitute "is not subject to this Act or to any part of this Act.". (3) In section 56(2) of the Public Administration Act 2004 for the expression commencing "is—" and ending at the end of the sub-section substitute "is not subject to this Act or to any part of this Act.". (4) Sections 113, 114 and 117 of the Public Administration Act 2004 are repealed. (5) Part 9 of the Public Administration Act 2004 is repealed. (6) Schedule 3 to the Public Administration Act 2004 is repealed. 25. Minor amendment to the Parliamentary Administration Act 2005 Part 6 of the Parliamentary Administration Act 2005 is repealed. 26. Amendments to other Acts On the coming into operation of an item in the Schedule, the Act referred to in the heading to that item is amended as set out in that item. __________________ s. 24 -- 74 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 71 SCHEDULE AMENDMENTS 1. Accident Compensation Act 1985 1.1 For section 29(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a Director in respect of the office of Director.". 1.2 For section 63(8) substitute— "(8) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 2. Agricultural Industry Development Act 1990 For section 23(3) substitute— "(3) If the members of a Committee are appointed by the Governor in Council, they are subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 3. Alpine Resorts (Management) Act 1997 3.1 For section 21(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 3.2 For section 42(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 4. Appeal Costs Act 1998 For section 22(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 75 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 72 5. Australian Grands Prix Act 1994 For section 10(5) substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Corporation in respect of the office of member.". 6. Building Act 1993 For clause 4 of Schedule 3 substitute— "4. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a Board in respect of the office of member.". 7. Business Licensing Authority Act 1998 For clause 1(3) of the Schedule substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 8. Catchment and Land Protection Act 1994 8.1 For section 9B(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 8.2 For clause 6 of Schedule 1 substitute— "6. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a body in respect of the office of member.". 9. Cemeteries and Crematoria Act 2003 For clause 1(4) of Schedule 1 substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 10. Child Wellbeing and Safety Act 2005 For section 9(4)(e) substitute— "(e) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". Sch. -- 76 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 73 11. Children and Young Persons Act 1989 11.1 For section 205(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 11.2 For section 216(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 12. Children, Youth and Families Act 2005 12.1 For section 100(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Suitability Panel in respect of the office of member.". 12.2 For section 432(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 12.3 For section 443(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 13. Chinatown Historic Precinct Act 1984 For section 6(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Committee in respect of the office of member.". 14. Chinese Medicine Registration Act 2000 For section 70(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 77 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 74 15. Chiropractors Registration Act 1996 For section 64(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 16. Coastal Management Act 1995 For clause 5 of the Schedule substitute— "5. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a body in respect of the office of member.". 17. Commissioner for Environmental Sustainability Act 2003 For section 6(6) substitute— "(6) The Public Administration Act 2004 (other than Part 3, except as provided by section 16, of that Act) applies to the Commissioner in respect of the office of Commissioner.". 18. Commonwealth Games Arrangements Act 2001 18.1 For section 8(5) substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of an Advisory Committee in respect of the office of member.". 18.2 For clause 1(4) of Schedule 2 substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director of the Board in respect of the office of director.". 19. Conservation, Forests and Lands Act 1987 For section 12(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a council or committee in respect of the office of member.". 20. Corrections Act 1986 20.1 For section 63(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 78 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 75 20.2 For section 84K(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Committee in respect of the office of member.". 21. Country Fire Authority Act 1958 21.1 For section 9A(1) substitute— "(1) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a person appointed as chairman of the Authority in respect of the office of chairman.". 21.2 For section 9B(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a person appointed as deputy chairman of the Authority in respect of the office of deputy chairman.". 21.3 For section 74F substitute— "74F. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a Commissioner in respect of the office of Commissioner.". 22. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 For clause 2(1)(e) of Schedule 1 substitute— "(e) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 23. Dairy Act 2000 For section 12(6) substitute— "(6) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 24. Dandenong Development Board Act 2003 For section 11(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 79 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 76 25. Dental Practice Act 1999 For section 71(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 26. Disability Act 2006 For section 13(1)(g) substitute— "(g) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 27. Docklands Act 1991 For section 42(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of an advisory committee in respect of the office of member.". 28. Domestic (Feral and Nuisance) Animals Act 1994 For section 98G(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to any member of the pool or a panel in respect of the office of member.". 29. Drugs, Poisons and Controlled Substances Act 1981 For section 15A(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Committee in respect of the office of member.". 30. Education and Training Reform Act 2006 30.1 For section 2.4.74(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a pool or a member of a Disciplinary Appeals Board in respect of the office of member.". 30.2 For section 2.6.71(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 80 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 77 30.3 For section 3.1.7(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 31. Emergency Services Telecommunications Authority Act 2004 For section 9(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 32. Energy Safe Victoria Act 2005 For section 12(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the Director in respect of the office of Director.". 33. Environment Protection Act 1970 33.1 For section 7(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the person appointed as Chairman or as Deputy Chairman in respect of those offices.". 33.2 For section 10(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 34. Equal Opportunity Act 1995 34.1 For section 164(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to an appointed member of the Commission in respect of the appointment.". 34.2 For section 174(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the Chief Conciliator in respect of the appointment.". Sch. -- 81 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 78 35. Essential Services Commission Act 2001 35.1 For section 18(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the Chairperson in respect of his or her office as a Commissioner.". 35.2 For section 21(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to an additional Commissioner in respect of his or her office as a Commissioner.". 36. Estate Agents Act 1980 For section 6(4)(c) substitute— "(c) is subject to the Public Administration Act 2004 (other than Part 3 of that Act) in respect of the office of the member.". 37. Film Act 2001 For clause 2(7) of the Schedule substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 38. Financial Management Act 1994 For section 54D(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 39. Firearms Act 1996 For section 156(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 40. Fisheries Act 1995 40.1 For section 132(8) substitute— "(8) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 82 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 79 40.2 For section 135(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 40.3 For section 184(8) substitute— "(8) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 40.4 For section 185(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a deputy in respect of the office of deputy.". 40.5 For section 190(8) substitute— "(8) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 40.6 For section 191(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a deputy in respect of the office of deputy.". 40.7 For clause 5 of Schedule 1 substitute— "5. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a body in respect of the office of member.". 41. Flora and Fauna Guarantee Act 1988 For section 8(9) substitute— "(9) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Committee in respect of the office of member.". 42. Food Act 1984 For section 60D(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 83 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 80 43. Fuel Prices Regulation Act 1981 For section 3(4)(a) substitute— "(a) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a person so appointed in respect of his or her office, but if any such person is at the time of his appointment an employee in the public service he shall, subject to that Act, continue to be an officer of the public service;". 44. Gambling Regulation Act 2003 For section 10.1.6(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a commissioner in respect of the office of commissioner.". 45. Gas Industry Act 2001 For section 167(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director of VENCorp in respect of the office of director.". 46. Health Act 1958 46.1 In section 8A(1)(c) for "public authority" (wherever occurring) substitute "public entity". 46.2 For section 162C(3)(d) substitute— "(d) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 47. Health Professions Registration Act 2005 47.1 For section 121(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 47.2 For item 5.1 of Schedule 2 substitute— "5.1 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a committee or panel established under this Schedule in respect of the office of member.". Sch. -- 84 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 81 48. Health Services Act 1988 48.1 For section 33(11) substitute— "(11) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a board in respect of the office of member.". 48.2 For section 40C(6)(d) substitute— "(d) is in respect of the office of delegate subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 48.3 For section 65T(5) substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director of a board of a public health service in respect of the office of director.". 48.4 For section 65ZAA(6)(d) substitute— "(d) is in respect of the office of delegate subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 48.5 For section 115E(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a board in respect of the office of member.". 48.6 For section 134D(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 49. Health Services (Conciliation and Review) Act 1987 Section 7A is repealed. 50. Heritage Act 1995 For clause 2(4) of Schedule 1 substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 85 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 82 51. Housing Act 1983 51.1 For section 8(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of an advisory committee in respect of the office of member.". 51.2 For section 9(1)(a)(ii) substitute— "(ii) is in respect of that office subject to the Public Administration Act 2004 (other than Part 3 of that Act);". 51.3 For section 75(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the Registrar of Housing Agencies in respect of that office.". 52. Human Services (Complex Needs) Act 2003 For section 8(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to an appointed member or an alternate Chairperson in respect of the office of member.". 53. Infertility Treatment Act 1995 For section 124(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 54. Intellectually Disabled Persons' Services Act 1986 54.1 For section 13(4)(d) substitute— "(d) are in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 54.2 For clause 1(e) of Schedule 1 substitute— "(e) is in respect of the office of President subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 54.3 For clause 2(1)(e) of Schedule 1 substitute— "(e) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". Sch. -- 86 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 83 55. Judicial College of Victoria Act 2001 For section 9(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director in respect of the office of director.". 56. Judicial Remuneration Tribunal Act 1995 For section 6(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 57. Kew and Heidelberg Lands Act 1933 For section 6A(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a trustee in respect of the office of trustee.". 58. Legal Aid Act 1978 58.1 For sections 12B(2) and (3) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director of VLA and the managing director in respect of the office of director and the office of managing director.". 58.2 For section 12F(5) substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the acting managing director in respect of the office of acting managing director.". 58.3 For section 18(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a panel member in respect of the office of panel member.". 59. Legal Profession Act 2004 59.1 In section 6.2.2, for "public authority" substitute "public entity". 59.2 For section 6.2.5(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Board in respect of the office of member.". Sch. -- 87 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 84 60. Libraries Act 1988 For section 23(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Board in respect of the office of member.". 61. Liquor Control Reform Act 1998 61.1 For section 150(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the Director in respect of the office of Director.". 61.2 For section 158(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Panel in respect of the office of member.". 62. Livestock Disease Control Act 1994 For clause 5 of Schedule 1 substitute— "5. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a Committee in respect of the office of member.". 63. Meat Industry Act 1993 63.1 For section 49(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Authority in respect of the office of member.". 63.2 In section 55(2) and (3) for "public authority" (wherever occurring) substitute "public entity". 64. Medical Practice Act 1994 For section 68(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 88 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 85 65. Melbourne and Olympic Parks Act 1985 For section 10(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 66. Melbourne Convention and Exhibition Trust Act 1996 For section 9(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 67. Melbourne Market Authority Act 1977 For section 10(6) substitute— "(6) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 68. Melbourne Water Corporation Act 1992 For section 16(2)(b) substitute— "(b) the Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member;". 69. Mental Health Act 1986 69.1 For section 117F(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 69.2 For clause 1(e) of Schedule 1 substitute— "(e) is in respect of the office of President subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 69.3 For clause 2(1)(e) of Schedule 1 substitute— "(e) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". Sch. -- 89 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 86 69.4 For clause 4(1)(d) of Schedule 3 substitute— "(d) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 69.5 For clause 4(3)(c) of Schedule 3 substitute— "(c) is in respect of the office of alternate member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 70. Metropolitan Fire Brigades Act 1958 70.1 For section 12 substitute— "12. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Board in respect of the office of member.". 70.2 For section 79E substitute— "79E. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a Commissioner in respect of the office of Commissioner.". 71. Mineral Resources Development Act 1990 71.1 For section 51(6) substitute— "(6) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 71.2 For section 96(5) substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a mining warden in respect of the office of mining warden.". 72. Motor Car Traders Act 1986 For section 58(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Committee in respect of the office of member.". Sch. -- 90 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 87 73. Multicultural Victoria Act 2004 For section 11(5)(a) substitute— "(a) is, in respect of his or her office as a member, subject to the Public Administration Act 2004 (other than Part 3 of that Act); and". 74. Museums Act 1983 For section 11(11) substitute— "(11) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Board in respect of the office of member.". 75. National Gallery of Victoria Act 1966 For section 6(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Council in respect of the office of member.". 76. Nurses Act 1993 For section 68(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Board in respect of the office of member.". 77. Optometrists Registration Act 1996 For section 68(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 78. Osteopaths Registration Act 1996 For section 64(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 79. Outworkers (Improved Protection) Act 2003 For clause 5(1) of the Schedule substitute— "(1) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 91 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 88 80. Pharmacy Practice Act 2004 For section 85(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 81. Physiotherapists Registration Act 1998 For section 63(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 82. Planning and Environment Act 1987 For section 151(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a committee in respect of the office of member.". 83. Podiatrists Registration Act 1997 For section 64(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 84. Police Regulation Act 1958 For section 89(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 85. Port Services Act 1995 For clause 3(2) of Schedule 1 substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director of a port corporation in respect of the office of director.". 86. Professional Standards Act 2003 For clause 7(1) of Schedule 2 substitute— "(1) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 92 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 89 87. Prostitution Control Act 1994 For section 67(10) substitute— "(10) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 88. Psychologists Registration Act 2000 For section 70(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 89. Queen Victoria Women's Centre Act 1994 For section 8(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Trust in respect of the office of member.". 90. Racing Act 1958 90.1 For section 83H(1)(f) substitute— "(f) shall in respect of that office be subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 90.2 For section 83I(2)(f) substitute— "(f) shall in respect of that office be subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 91. Radiation Act 2005 For section 104(7) substitute— "(7) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 92. Rail Corporations Act 1996 For clause 3(2) of Schedule 1 substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director of a rail corporation in respect of the office of director.". Sch. -- 93 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 90 93. Royal Botanic Gardens Act 1991 For clause 8 of Schedule 2 substitute— "8. Member subject to Public Administration Act 2004 The Chairperson, the Deputy Chairperson, or a member of the Board is, in respect of that office, subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 94. Rural Finance Act 1988 For section 17(1) substitute— "(1) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Board in respect of the office of member.". 95. Sentencing Act 1991 For section 108H(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director in respect of the office of director.". 96. Southern and Eastern Integrated Transport Authority Act 2003 For section 9(5) substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 97. State Sport Centres Act 1994 For section 11(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Trust in respect of the office of member.". 98. Surveying Act 2004 For section 48(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". Sch. -- 94 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 91 99. Sustainability Victoria Act 2005 99.1 In section 10(1)(e), for "Minister." substitute "Minister;". 99.2 After section 10(1)(e) insert— "(f) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 100. Teaching Service Act 1981 100.1 For section 31 substitute— "31. Public Administration Act 2004 to apply The Public Administration Act 2004 (other than Part 3 of that Act) applies to an office in the Principal Class declared under this Act and to a member of the Principal Class.". 100.2 For section 75E(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a pool or a member of a Disciplinary Appeals Board in respect of the office of member.". 101. Tobacco Act 1987 For section 21(3)(b) substitute— "(b) are, in respect of the office of member, subject to the Public Administration Act 2004 (other than Part 3 of that Act).". 102. Tourism Victoria Act 1992 For section 12 substitute— "12. Members subject to the Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Commission in respect of the office of member.". 103. Transport Act 1983 103.1 Insert the following heading to section 7— "Minister may make use of services of officers etc. of public service or public entities". 103.2 In section 7, for "public authority" substitute "public entity". Sch. -- 95 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 92 104. Transport Accident Act 1986 For section 16(5) substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a Director in respect of the office of Director.". 105. Treasury Corporation of Victoria Act 1992 For section 12(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director of the Corporation in respect of the office of director.". 106. Veterans Act 2005 For section 10(a) substitute— "(a) is, in respect of his or her office as a member, subject to the Public Administration Act 2004 (other than Part 3 of that Act);". 107. Veterinary Practice Act 1997 For section 64(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 108. Victoria State Emergency Service Act 2005 For section 13 substitute— "13. Application of Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a Director in respect of the office of Director.". 109. Victorian Environmental Assessment Council Act 2001 For section 9(5) substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 110. Victorian Funds Management Corporation Act 1994 For section 13(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director in respect of the office of director.". Sch. -- 96 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 93 111. Victorian Institute of Teaching Act 2001 For section 75(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 112. Victorian Law Reform Commission Act 2000 For section 8(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 113. Victorian Managed Insurance Authority Act 1996 For section 11(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director in respect of the office of director.". 114. Victorian Urban Development Authority Act 2003 For section 19(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a director of the Authority in respect of the office of director.". 115. Vocational Education and Training Act 1990 For section 13(2) substitute— "(2) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 116. Water Act 1989 116.1 For section 108(2)(b) substitute— "(b) a member of a committee is, in respect of the office of member, subject to the Public Administration Act 2004 (other than Part 3 of that Act);". 116.2 For section 305FF(6) substitute— "(6) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Council in respect of the office of member.". Sch. -- 97 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 94 116.3 For section 318(3) substitute— "(3) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of a committee in respect of the office of member.". 116.4 For clause 2 of Schedule 1 substitute— "2. Members subject to Public Administration Act 2004 The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". 117. Workplace Rights Advocate Act 2005 For section 6(4) substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to the WRA in respect of the office of WRA.". 118. World Swimming Championships Act 2004 118.1 For clause 1(4) of Schedule 1 substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of the Board in respect of the office of member.". 118.2 For clause 1(5) of Schedule 2 substitute— "(5) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member of an Advisory Committee in respect of the office of member.". 119. Zoological Parks and Gardens Act 1995 For clause 1(4) of Schedule 2 substitute— "(4) The Public Administration Act 2004 (other than Part 3 of that Act) applies to a member in respect of the office of member.". ═══════════════ Sch. -- 98 of 99 -- Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006 Act No. 80/2006 95 ENDNOTES † Minister's second reading speech— Legislative Assembly: 24 August 2006 Legislative Council: 4 October 2006 The long title for the Bill for this Act was "to amend the Public Administration Act 2004 and certain other Acts consequentially on that Act, to amend the Audit Act 1994, the Commonwealth Games Arrangements Act 2001, the Commonwealth Powers (Industrial Relations) Act 1996, the Ombudsman Act 1973, the Parliamentary Administration Act 2005 and the Public Sector Employment (Award Entitlements) Act 2006 and for other purposes." Endnotes -- 99 of 99 --