Victorian Parliament Considers Industrial Relations Amendment Bill 2021

The Industrial Relations Legislation Amendment Bill 2021 (Vic) ("the Bill") was introduced into the Victorian Parliament on 17 February 2021 by the Minister for Industrial Relations, Tim Pallas ("the Minister"). The Bill proposes a number of amendments to current Victorian industrial laws which fall into four general categories:

1. improving the operation of existing legislative schemes;
2. updating references in the specified Acts to other Acts of Parliament;
3. resulting from the passage of the Wage Theft Act 2020 (Vic) which acknowledges the new role of Wage Inspectorate Victoria as a statutory body; and
4. implementing recommendations of the Victorian Inquiry into Labour Hire and Insecure Work.

The Bill proposes to amend eight pieces of Victorian industrial legislation as follows: 

•  Child Employment Act 2003
•  Construction Industry Long Service Leave Act 1997
•  Equal Opportunity Act 2010
•  Inquiries Act 2014
•  Labour Hire Licensing Act 2018
•  Long Service Benefits Portability Act 2018
•  Long Service Leave Act 2018 
•  Owner Drivers and Forestry Contractors Act 2005

Overview - Substantial Amendments

The Bill proposes substantial amendments to the Equal Opportunity Act 2010 (Vic) for the purpose of making it clear that certain protections in the Act extend to contract workers as recommended by the Victorian Inquiry into Labour Hire and Insecure Work. The proposed amendments are:

• protection from discrimination on the basis of employment activity, such as making a reasonable request for information regarding employee entitlements;
• the requirement to make reasonable adjustments in the workplace for employees with a disability.

The Bill proposes amendments to the Inquiries Act 2014 (Vic) to:

• provide labour hire workers with the same protections against detrimental action as directly-engaged workers, if they participate in a Royal Commission, Formal Review, or Board of Inquiry (an amendment recommended by the report of the Victorian Inquiry into Labour Hire and Insecure Work).

Amendments are proposed by the Bill for the Labour Hire Act 2018 (Vic) to:

• insert the descriptions of the three tiers that determine the licence fee that are currently included in the Regulations supporting the Act. (Making it easier for users of the system to understand their obligations and allow for annual fees to be assessed against the most recent turnover of that business);
• allow the Labour Hire Licensing Authority to retain and deposit monies it receives from licence fees and investments. (At present these funds are held in a trust in Consolidated Revenue); and
• allow for the waiving of fees, in part or in whole, and the refund of fees, in special circumstances.

Substantial amendments are proposed by the Bill for the Long Service Benefits Portability Act 2018 (Vic) to:

• allow regulations to be made to empower the Portable Long Service Authority ("PLSA") to reimburse community services sector employers who pay an entitlement to an employee under the Long Service Leave Act 2018 (Vic), or a common law contract;
• make it clear that where there is an obligation on either the PLSA or an employer to record the number of days an employee has worked, this may be expressed as part days or hours;
• allow community services sector employees to apply to the PLSA to be credited for days worked where their employer has not provided the necessary information for the Authority to credit them with that service;
• amend the way appointments to the Governing Board are made, so that board sitting fees can be paid directly to the Board member’s employer nominating them; and
• make it clear who is an eligible person for the purposes of the contract cleaning and security schemes to achieve the intended outcome that work of certain categories is characterised under either the PLSA scheme of the construction scheme but not both.

The Bill proposes substantial amendments to the Long Service Leave Act 2018 (Vic) to:

• extend the prohibition on the use of common law contracts abrogating employer obligations under the Act to post-employment arrangements, such as deeds of settlement; and
• make it clear that certain offences are "continuing" offences. This means that the normal requirement that a prosecution for a summary offence must commence within 12 months of its committal does not apply. Under the Long Service Leave Act 2018 ( Vic) it was intended to ensure this was the case, but a subsequent Court of Appeal decision suggests that it may be open to a court to determine that it was not Parliament’s intention to make the offence a continuing one.

Finally, the Bill proposes amendments to the Owner Drivers and Forestry Contractors Act 2005 (Vic) to:

• make it clear that non-compliance with some requirements relating to the provision of information to drivers are offences, and attract penalties.

Overview - Consequential Amendments

The Bill also proposes consequential amendments in recognition of the establishment of the Wage Inspectorate Victoria as a statutory Authority from 1 July 2021. The Child Employment Act 2003 (Vic), the Long Service Leave Act 2018 (Vic), and the Owner Drivers and Forestry Contractors Act 2005 (Vic) all empower the Secretary to the respective Departments to exercise various powers, such as appointing authorised officers, and authorising compliance measures. The amendments proposed by the Bill to these Acts will transfer those powers to the Commissioner of the Wage Inspectorate. The amendments do not alter the powers of authorised officers; nor do they change the rules regarding prosecutions, other than who may authorise them.

Community services sector employers under the scheme will also have enhanced rights to seek reimbursement from the Authority if they pay the worker a long service leave entitlement under another instrument. This will require an amendment to the regulations, which the Minister indicated would be "facilitated as quickly as possible".

Protections for contract workers are also extended by the amendments proposed by the Bill so that protections that were previously only enjoyed by directly engaged workers  also apply to them. An example being a labour hire worker who gives evidence before a Royal Commission will now enjoy the same protections against detrimental action that are afforded to directly engaged employees.

The Bill passed through the Assembly on 18 March 2021 and was introduced into the Council on 18 March 2021. According to the Minister's second reading speech, the Bill is scheduled to commence on 1 July 2021 for all its provisions excluding clauses 57 and 62, which amend the Long Service Benefits Portability Act 2018 (Vic) and will commence on a later date as the regulations supporting the Act must also be amended to retain consistency between the two instruments.

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Industrial Relations Legislation Amendment Bill 2021 (Vic), explanatory material and second reading speeches available from the TimeBase LawOne Service

Inquiry into the Labour Hire Industry and Insecure Work (Department of Premier and Cabinet Web Page)

Final Report: Victorian Inquiry into the Labour Hire Industry and Insecure Work (Department of Economic Development, Jobs, Transport & Resources, 31 August 2016)