Workplace Rights Advocate Act 2005

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Workplace Rights Advocate Act 2005

    Workplace Rights Advocate Act 2005

    Act No. 100/2005


    1. Purpose 1 2. Commencement 1 3. Definitions 2 4. Appointment of Workplace Rights Advocate 2 5. Functions and powers of WRA 2 6. Terms and conditions of appointment 4 7. Acting WRA 5 8. Staff and other assistance 6 9. Delegation 7 10. Ministerial directions 7 11. Reporting 7 12. Victimisation 7 13. Regulations 8 14. Review of WRA 9 15. Victorian Civil and Administrative Tribunal Act 1998

    powers of WRA to intervene 10



    INDEX 12



    No. 100 of 2005

    Workplace Rights Advocate Act 2005

    [Assented to 7 December 2005]

    The Parliament of Victoria enacts as follows:

     1. Purpose

    The main purpose of this Act is to establish the

    Office of the Workplace Rights Advocate to

    provide information about, and promote and

    monitor the development of, fair industrial

    relations practices in Victoria.

     2. Commencement

     (1) Subject to sub-section (2), this Act comes into

    operation on a day or days to be proclaimed.


    Workplace Rights Advocate Act 2005

    s. 3 Act No. 100/2005

     (2) If a provision referred to in sub-section (1) does

    not come into operation before 1 March 2006, it

    comes into operation on that day.

     3. Definitions

    In this Act

    "employer" means a person who employs or

    engages a worker to perform work;

    "State Services Authority" means the State

    Services Authority established by section

    37(1) of the Public Administration Act


    "worker" means a person who performs work

    under a contract, whether a contract of

    service or a contract for services;

    "WRA" means Workplace Rights Advocate

    appointed under section 4.

     4. Appointment of Workplace Rights Advocate

     (1) There is to be appointed a Workplace Rights


     (2) The Governor in Council may appoint a person to

    be the Workplace Rights Advocate.

     5. Functions and powers of WRA

     (1) The WRA has the following functions

     (a) to inform, educate and consult with

    Victorian workers, employers and their

    representatives about rights and

    responsibilities in relation to work-related


     (b) to facilitate and encourage the fair industrial

    treatment of workers in Victoria;

     (c) to promote informed decision-making by

    Victorian workers and employers;


    Workplace Rights Advocate Act 2005

    s. 5 Act No. 100/2005

     (d) to investigate illegal, unfair or otherwise

    inappropriate industrial relations practices in


     (e) to make representations to an appropriate

    person or body in relation to work-related


     (f) to monitor and report to the Minister and

    Parliament on industrial relations practices in


     (g) to investigate and report to the Minister on

    the impact of any aspect of the industrial

    relations arrangements affecting Victorian

    workers or employers;

     (h) to advise the Minister generally about work-

    related matters;

     (i) to advise the Minister on the operation of

    this Act;

     (j) to request assistance or information from any

    public entity within the meaning of the

    Public Administration Act 2004 and

    provide information about work-related

    matters to any such entity at the request of

    the entity or when the WRA thinks


     (k) any other function conferred on him or her

    by or under this or any other Act.

     (2) The WRA may carry out his or her functions and

    exercise his or her powers at the request of the

    Minister or of any other person or body or on his

    or her own motion.

     (3) The WRA has power to do all things necessary or

    convenient to be done for or in connection with

    the performance of his or her functions.


    Workplace Rights Advocate Act 2005

    s. 6 Act No. 100/2005

     (4) Without limiting sub-section (3), the WRA may

    intervene in a proceeding in any court at any time,

    despite any provision to the contrary made by or

    under any Act.

     (5) The WRA is responsible to the Secretary to the

    Department of Innovation, Industry and Regional

    Development for the general conduct and

    management of the functions and activities of the

    WRA and must advise the Secretary in all matters

    relating to that conduct and management.

     6. Terms and conditions of appointment

     (1) The WRA holds office for a term, not exceeding

    3 years, specified in his or her instrument of

    appointment, and is eligible for reappointment for

    a term not exceeding 3 years.

     (2) The Governor in Council may specify the terms

    and conditions of appointment in the WRA's

    instrument of appointment.

     (3) The WRA is entitled to be paid the remuneration

    and allowances that are fixed from time to time by

    the Governor in Council.

     (4) The Public Administration Act 2004 (other than

    Part 5 or except in accordance with Part 7 of that

    Act) does not apply to the WRA in respect of the

    office of WRA.

     (5) The WRA ceases to hold office if he or she

     (a) becomes an insolvent under administration

    within the meaning of the Corporations Act;


     (b) is convicted of an indictable offence or an

    offence which, if committed in Victoria,

    would be an indictable offence.


    Workplace Rights Advocate Act 2005

    s. 7 Act No. 100/2005

     (6) The Governor in Council may remove the WRA

    from office if he or she has refused, neglected or

    failed to carry out his or her duties or has

    demonstrated inefficiency or misbehaviour in

    carrying out his or her duties.

     (7) The WRA may at any time resign by writing

    signed and delivered to the Governor.

     (8) An act or decision of the WRA is not invalid only

    because of a defect or irregularity in, or in

    connection with, his or her appointment.

     7. Acting WRA

     (1) The Minister may appoint an Acting WRA

     (a) during a vacancy in the office of the WRA;


     (b) during any period when the WRA is absent

    or, for any reason, is unable to perform the

    functions of the WRA.

     (2) The Minister may

     (a) appoint an Acting WRA for a period not

    exceeding 6 months;

     (b) determine the terms and conditions of

    appointment of the Acting WRA;

     (c) terminate the appointment of the Acting

    WRA at any time.

     (3) An Acting WRA is entitled to receive the

    remuneration and allowances that the WRA would

    have been entitled to for performing the duties of


     (4) While a person is acting in the office of the WRA

    in accordance with sub-section (1), the Acting

    WRA has all the functions and powers of the



    Workplace Rights Advocate Act 2005

    s. 8 Act No. 100/2005

     (5) If a person is acting in the office of the WRA in

    accordance with sub-section (1)(b) and the office

    becomes vacant while the person is so acting, that

    person may continue to so act for 6 months after

    the date on which the vacancy occurred unless

     (a) the Minister otherwise directs; or

     (b) the vacancy is filled before the end of that


     (6) The validity of anything done by or in relation to a

    person purporting to act in the office of the WRA

    under an appointment made under sub-section (1)

    shall not be called in question on the ground


    (a) the occasion for his or her appointment had

    not arisen; or

    (b) there is a defect or irregularity in or in

    connection with his or her appointment; or

    (c) the appointment had ceased to have effect; or

     (d) the occasion for him or her to act had not

    arisen or had ceased.

     8. Staff and other assistance

     (1) There may be employed under Part 3 of the

    Public Administration Act 2004 any employees

    that are necessary for the administration of this

    Act or to enable the WRA to perform his or her

    functions and exercise his or her powers.

     (2) The WRA may engage any person to assist him or

    her in the performance of his or her functions and

    the exercise of his or her powers.


    Workplace Rights Advocate Act 2005

    s. 9 Act No. 100/2005

     9. Delegation

    The WRA, by instrument in writing, may delegate

    to any person employed under Part 3 of the Public

    Administration Act 2004 any power under this

    Act, other than this power of delegation.

     10. Ministerial directions

    The Minister may give written directions to the

    WRA about the performance of the functions of

    the WRA except any functions under this or any

    other Act that are expressed to be not subject to

    the Minister's direction or control.

     11. Reporting

     (1) The WRA must, within 3 months after the end of

    a financial year, submit a report to the Minister

    relating to the operation and performance of the

    WRA as if it were an annual report of operations

    under Part 7 of the Financial Management Act


     (2) The Minister must cause the report to be laid

    before each House of the Parliament on or before

    31 October each year or, if a House is not then

    sitting, on the first sitting day of that House after

    31 October.

     12. Victimisation

     (1) In this section

    "employer" includes a prospective employer and

    a former employer;

    "worker" includes a prospective worker and a

    former worker.

     (2) An employer or other person must not victimise a

    worker or a person associated with a worker.

    Penalty: 20 penalty units.


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    s. 13 Act No. 100/2005

     (3) An employer or other person victimises a worker

    or a person associated with a worker if the

    employer or other person subjects or threatens to

    subject the worker or person associated with the

    worker to any detriment because the worker, or a

    person associated with the worker, has informed

    the WRA of any matter or exercised any other

    power or right that he or she is entitled to exercise

    under this Act.

     (4) For the purposes of this section, subjecting a

    worker or other person to a detriment includes

    doing any one or more of the following

     (a) terminating the contract under which the

    worker or other person performs work;

     (b) injuring the worker or other person in

    relation to the terms and conditions on which

    the worker or other person performs work;

     (c) altering the position of the worker or other

    person to his or her prejudice;

     (d) refusing to employ or engage the worker or

    other person to perform work;

     (e) discriminating against the worker or other

    person in the terms or conditions on which

    he or she is to be employed or engaged to

    perform work.

     13. Regulations

     (1) The Governor in Council may make regulations

    for or with respect to

     (a) the development and making by the WRA of

    codes of practice, whether mandatory or not,

    relating to recruiting workers or negotiating

    for, entering into or varying agreements

    dealing with matters pertaining to the

    relationship between an employer and



    Workplace Rights Advocate Act 2005

    s. 14 Act No. 100/2005

     (b) providing for a code referred to in

    paragraph (a) to apply, adopt or incorporate

    (with or without modification) a standard or

    other document prepared or published by a

    body specified in the code, as in force at a

    particular time or as in force from time to


     (c) requiring employers to give information to

    the WRA and prescribing the content and

    manner of giving that information;

     (d) prescribing any other matter or thing

    required or permitted by this Act to be

    prescribed or necessary to be prescribed to

    give effect to this Act.

     (2) The regulations

     (a) may be of general or limited application;

     (b) may differ according to differences in time,

    place or circumstances;

     (c) may impose a penalty, not exceeding

    20 penalty units, for a contravention of the


     (d) may confer a discretionary authority or

    impose a duty on a specified person or body

    or specified class of person or body.

     14. Review of WRA

     (1) The State Services Authority must conduct a

    review of the WRA to determine whether its

    functions and powers remain appropriate and for

    this purpose the State Services Authority has all

    the powers and duties that it would have if it were

    conducting a special review of the WRA under the

    Public Administration Act 2004 at the direction

    of the Premier.


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