Victoria launches Fair Jobs Code

On 10 August 2022, the Minister for Industry Support and Recovery launched the Victorian Fair Jobs Code (Code).

This Code was introduced to fulfill a 2018 Victorian Labor Party election promise to use its purchasing power to promote job security, support fair labour standards and ensure compliance with employment, workplace relations and industrial relations laws.

The Code will operate alongside existing Victorian Government supplier policies such as the Supplier Code of Conduct, Building Equality Policy and Local Jobs First policy.

The Code will apply to:

1. All suppliers tendering for procurement contracts with a Victorian Government agency worth $3 million or more (exclusive of GST) (threshold procurement contract);
2. All suppliers tendering for procurement contracts with a Victorian Government agency worth $20 million or more (exclusive of GST) (high value procurement contract);
3. Significant subcontractors who are to be engaged under a subcontract directly with a supplier for a high value procurement contract, where the subcontract is worth $10 million or more (exclusive of GST); and
4. Businesses applying for significant business expansion grants of $500,000 or more (exclusive of GST).

From 1 December 2022, all Victorian Government departments and agencies will apply this Code to its tender processes and grants.

The Code sets out five standards (Standards) that suppliers and businesses will be required to meet depending on the value of the contract. These include to:

1. Comply with all applicable employment, industrial relations and workplace health and safety obligations;
2. Promote secure employment and job security;
3. Foster cooperative and constructive relationships between employers, employees and their representatives;
4. Foster workplace equity and diversity; and
5. Promote supply chain compliance.

Pre-Assessment Certificate

To be considered for a threshold procurement contract, suppliers must hold a Pre-Assessment Certificate. This is issued by the Fair Jobs Code Unit within the Department of Jobs, Precincts and Regions after conducting an assessment on the supplier’s compliance with Standard 1 of the Code over the past three years.

To show compliance with Standard 1 of the Code, the supplier is required to demonstrate that it has complied with relevant employment, industrial relations and workplace health and safety laws, including:

• Fair Work Act 2009 (Cth)
• Occupational Health and Safety Act 2004 (Vic)
• Wage Theft Act 2020 (Vic)
• Long Service Benefits Portability Act 2018 (Vic)
• Labour Hire Licensing Act 2018 (Vic)
• Superannuation Guarantee (Administration) Act 1992 (Cth)
• Long Service Leave Act 2018 (Vic)
• Construction Industry Long Service Leave Act 1997 (Vic)
• Child Employment Act 2003 (Vic)
• Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
• All applicable State and Commonwealth anti-discrimination and equal opportunity laws.

If the supplier operates outside of Victoria, it must demonstrate that it has complied with the equivalent laws in their state or territory.

Suppliers and businesses can apply for a Pre-Assessment Certificate through the Buying for Victoria website. There are no fees charged for application and renewal of a Pre-Assessment Certificate. Once the certificate has been issued, it is valid for 2 years.

Fair Jobs Code Plan

For high value procurement contracts and significant business expansion grants, suppliers and businesses will be required to comply with Standards 1 to 5 of the Code.

Suppliers and businesses will be required to submit a Fair Jobs Code Plan in a prescribed template as part of the procurement or grant process which provides information on how they are complying with each of the five Standards.

This involves providing information about:

1. Standard 1 –
   1. Any policies and mechanisms in place to ensure compliance with applicable workplace laws.
   2. Any applicable industrial instruments.
2. Standard 2 –
   1. Details of the size and composition of the workforce and any known subcontractors’ workforce.
   2. The strategies the supplier/business have in place to give preference to ongoing permanent employment over casual, fixed term or labour hire arrangements.
   3. The rationale for using fixed term, casual and/or labour hire arrangements instead of permanent workers.
   4. The engagement of independent contractors and visa holders.
3. Standard 3 –
   1. Where the supplier has allowed workers to actively participate and be represented by an industrial organisation/association.
   2. How the supplier has facilitated workers to participate in enterprise agreement negotiations.
   3. Processes in place to facilitate consultation and communication with employees regarding major workplace changes and other work matters.
4. Standard 4 –
   1. What policies and procedures are in place to ensure compliance with anti-discrimination and equal opportunity laws.
   2. How the supplier demonstrates a commitment to equity and diversity when employing and managing staff.
5. Standard 5 –
   1. Details of subcontractors and their Pre-Assessment Certificate where the subcontract is valued at $10 million or more (exclusive of GST).
   2. How the supplier ensures compliance and monitors ongoing compliance by subcontractors of relevant workplace laws.

The Fair Jobs Code Unit has indicated that the application will generally take 30 business days to process. Any suppliers or businesses who may bid on a Victorian Government agency procurement contract worth $3 million or more, or may be engaged as a subcontractor directly with a supplier for a high value procurement contract where the subcontract is worth $10 million or more, should apply for a Pre-Assessment Certificate before 1 December 2022 to not risk being found ineligible to participate in a tender process.

Any suppliers or businesses who may bid on a Victorian Government agency procurement contract worth $20 million or more should take prompt steps to ensure that there are adequate policies and procedures in place to demonstrate compliance with the Standards, including policies and procedures relating to anti-discrimination, equal opportunity and compliance with workplace laws.

More information about the Code can be found on the Buying for Victoria website.

This article was prepared by MST Lawyers, who operate the free HRNet hotline support service for all HRIA and EWPA members. Members are encouraged to contact MST Lawyers through the HRNet hotline on 1800 474 247 or HRIA@mst.com.au if they have any queries about this article.

You can find out more about MST Lawyers on their website at https://www.mst.com.au/.