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Victorian Industry Participation Policy
(Local Jobs First) Amendment Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
General
The Government has committed to strengthening Victoria's industry
development legislation. On 28 November 2017, the Premier announced that
a Victorian Local Jobs First Bill would be established to enhance current
industry development policies by mandating local content, apprentices and
employment commitments on the Victorian Government's most significant
public projects.
Clause Notes
Part 1--Preliminary
Clause 1 outlines the purposes of the Bill.
The purposes of the Bill are to change the title of the Victorian
Industry Participation Policy Act 2003 to the Local Jobs First
Act 2003; to provide for the establishment of the office of the
Local Jobs First Commissioner; to provide for the development
and implementation of a Local Jobs First Policy; to provide for
compliance with and enforcement of the Local Jobs First Policy;
and to require reporting to the Parliament on the implementation
of and compliance with the Local Jobs First Policy.
Clause 2 sets out the commencement provision that provides that the Bill
will come into operation on the day after the day on which the
Bill receives the Royal Assent.
Clause 3 defines the Victorian Industry Participation Policy Act 2003
as the Principal Act for the purposes of the Bill.
581495 1 BILL LA INTRODUCTION 19/6/2018
Part 2--Amendment of the Victorian Industry
Participation Policy Act 2003
Clause 4 renames the Act by substituting the words "Victorian Industry
Participation Policy" with "Local Jobs First".
Clause 5 inserts a new Part heading into the Act before section 1 being,
"Part 1--Preliminary".
Clause 6 amends the purposes of the Act to substitute the reference to
the "Victorian Industry Participation Policy" with "Local Jobs
First Policy" and to include additional purposes reflecting the
amendments being made by the Bill.
Clause 7 defines various words and expressions used in the Bill. Some of
the key definitions are explained below.
Adverse Publicity Notice is defined as a notice issued under new
section 28(3)(a) of the Act (as inserted by clause 18 of the Bill);
Commissioner is defined to be the Local Jobs First
Commissioner appointed under new section 12 of the Act
(as inserted by clause 18 of the Bill);
Local content means--
• goods that are produced by local industry; or
• services that are supplied by local industry; or
• construction activities carried out by local industry;
Local industry is defined in the Act to mean industry and other
businesses based in Australia or New Zealand;
Local Industry Development Plan is defined to mean a plan
submitted under new 7D of the Act (as inserted by clause 14
of the Bill);
Standard project and strategic project are separately defined.
A standard project is based on the project's budget and whether
the project is for the benefit of an area wholly within or wholly
outside rural and regional Victoria, or an area that includes rural
and regional Victoria and an area outside rural and regional
Victoria. A strategic project is a project with a budget of
$50 million or more. The definitions also include respectively,
projects which the Minister has declared to be a standard or
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strategic project under new section 7A of the Act (as inserted
by clause 14 of the Bill).
Clause 8 inserts a new Part heading into the Act after section 3 being,
"Part 2--The Local Jobs First Policy".
Clause 9 amends section 4 of the Act to rename the policy required under
section 4(1) of the Principal Act as the "Local Jobs First Policy"
and provides for the matters that the Local Jobs First Policy is to
be comprised of, which are--
• the Victorian Industry Participation Policy, a policy
designed to ensure that small to medium-sized
enterprises are given full and fair opportunity to
compete for Victorian government contracts; and
• the Major Projects Skills Guarantee, a policy that
provides job opportunities for apprentices, trainees
and cadets on high value construction projects.
Clause 10 inserts a new section 4A into the Act. Subsection (1) requires
persons to which the Local Jobs First Policy applies to comply
with that policy.
Subsection (2) requires agencies to ensure that contracts for
standard projects and strategic projects require a person
providing goods, services and construction activities under
a contract to comply with the requirements of the Local Jobs
First Policy.
Subsection (3) allows the Minister to exempt an agency from
the requirements of the Local Jobs First Policy if the Minister
is satisfied that exceptional circumstances apply.
Clause 11 substitutes references to "VIPP" in section 5 of the Act with
"Local Jobs First Policy". Section 5 sets out the objectives that
must be considered when developing the Local Jobs First Policy.
Clause 12 substitutes references to "VIPP" in section 6 of the Act with
"Local Jobs First Policy". Section 6 sets out the principles of
the Local Jobs First Policy.
Clause 13 substitutes references to "VIPP" in section 7 of the Principal
Act with "Local Jobs First Policy". Section 7 sets out other
requirements that the Local Jobs First Policy must be consistent
with.
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Clause 14 inserts new sections 7A, 7B, 7C, 7D and 7E into the Act.
New section 7A provides for the Minister to declare a project
with a budget of less than $3 million to be a standard project and
to declare a project with a project budget of less than $50 million
to be a strategic project.
New section 7B(1) provides that the Minister must determine the
local content requirements for strategic projects.
Subsection (2) provides that in determining the local content
requirements for strategic projects the Minister must determine
the minimum percentage of value of the total content of strategic
projects that must be local content.
Subsection (3) provides that the minimum percentages that the
Minister must set under subsection (2) cannot be less than--
• 90% local content for a strategic project that is a
construction project;
• 80% local content for a strategic project that is a
services or maintenance contract;
• 80% local content for the maintenance or operations
phase of a strategic project.
The Local Jobs First Policy developed under the Bill may further
outline how the minimum percentages will apply, including
examples.
Subsection (4) provides that the Minister may determine other
matters relating to strategic projects, including but not limited
to--
• requirements to maximise the use of steel products
produced by local industry;
• requirements to use a specified amount of steel
products produced by local industry;
• requirements to maximise the use of uniform and
personal protective equipment produced by local
industry;
• any other requirements or conditions.
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Subsection (5) provides that the Minister may determine local
content for standard projects.
Subsection (6) provides that the Minister may determine other
matters relating to standard projects including but not limited to
requirements and conditions.
New section 7C provides that the Major Projects Skills Guarantee
applies to standard projects that are construction projects with a
budget of $20 million or more and strategic projects that are
construction projects. The Major Projects Skills Guarantee
requires that apprentices, trainees or cadets be engaged for a
minimum of 10% of the total number of estimated hours of work
on the project.
The Local Jobs First Policy developed under the Bill may further
outline how the number of hours is to be calculated.
New section 7D requires a person tendering for a standard project
or a strategic project to submit a Local Industry Development
Plan to the agency responsible for the project and to the
Department of Economic Development, Jobs, Transport and
Resources.
Subsection (2) provides that a Local Industry Development Plan
must specify how the requirements of the Local Jobs First Policy
will be met, identify total content and local content for the
project, and include any other matters required to be included
under the Local Jobs First Policy.
Subsection (3) provides that an agency must not accept a tender
that does not include a Local Industry Development Plan.
Subsection (4) provides that if a tender is accepted, the person
must comply with the Local Industry Development Plan.
New section 7E provides that a weighting of 10% must be
given to industry development, including commitments made
in relation to the Victorian Industry Participation Policy, and
weighting of 10% must be given for job outcomes, including
job outcomes provided by the Major Projects Skills Guarantee,
if applicable.
Clause 15 substitutes references to "VIPP" in section 8 of the Act with
references to the "Local Jobs First Policy". Section 8 requires
the Local Jobs First Policy, including any guidelines referred to
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in section 4(3), to be made available for public inspection and
published on an Internet site.
Clause 16 substitutes references to "VIPP" in section 9 of the Act with
references to the "Local Jobs First Policy" and inserts a
new subsection (3) that requires that agencies to provide
the information included in their report under the Financial
Management Act 1994 relating to compliance with the Local
Jobs First Policy, to the Department of Economic Development,
Jobs, Transport and Resources no later than 6 weeks after the
end of the financial year to which the report relates.
Clause 17 substitutes references to "VIPP" in section 10 of the Act with
references to the "Local Jobs First Policy" and inserts a new
subsection (2A) that requires the Minister to include in the
Minister's report to the Parliament under subsection (1), any
recommendation received from the Commissioner under new
section 28(3)(a).
Clause 18 inserts new Parts 3, 4, 5, 6 and 7 into the Act.
Part 3--Local Jobs First Commissioner
Part 3 relates to the appointment of the Local Jobs First
Commissioner.
Division 1--Appointment of Local Jobs First Commissioner
New section 12 provides that the Minister may appoint a person
as the Local Jobs First Commissioner.
New section 13 outlines the terms and conditions of appointment
of the Commissioner. Examples of such matters is that the
Commissioner holds office for a term, not exceeding 5 years,
that is specified in the instrument of appointment and that the
Public Administration Act 2004 (other than Part 3 of that Act)
applies to the Commissioner in respect of the office of the
Commissioner.
New section 14 provides for the appointment of an acting
Commissioner during a vacancy or for a period (not exceeding
12 months) if the Commissioner is absent or unable to perform
the duties of the Commissioner. New section 14 also sets out
other matters related to an acting appointment, including the
terms and conditions of appointment, the powers and functions
of the person and the ability to revoke an appointment.
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New section 15 outlines the circumstances in which the
Commissioner will cease to hold office. These include
circumstances relating to resignation, insolvency, conviction
of an indictable offence, nomination for or election to specified
bodies or removal from office under new section 16.
New section 16 provides that Minister may remove the
Commissioner from office on any of the specified grounds.
The specified grounds relate to matters involving neglect
of duties, misconduct or an inability of the Commissioner
in the performance of duties, a conflict of interest and the
Commissioner engaging in paid employment outside of the
duties of the office without the consent of the Minister.
Division 2--Powers and functions of Local Jobs First
Commissioner
New section 17 provides that the Commissioner has the power
to do all things necessary or convenient to be done for or in
connection with the functions of the Commissioner under the
Principal Act or any other Act.
New section 18 sets out the functions of the Commissioner.
New section 19 provides that the exercise of powers and the
performance of duties by the Commissioner are subject to any
written directions given by the Minister.
New section 20 allows the Commissioner to delegate any power
under the Act or any other Act, to any person employed under the
Public Administration Act 2004 who has the necessary skill to
perform that power.
New section 21 empowers the Commissioner to make a request
in writing to the Department of Economic Development, Jobs,
Transport and Resources for assistance in connection with the
reasonable performance of the Commissioner's functions.
The provision also requires the Department Head of the
Department of Economic Development, Jobs, Transport and
Resources to ensure that the Commissioner is provided with
any assistance that the Commissioner reasonably requires.
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Part 4--Requests for information from agencies
New section 22 empowers the Commissioner to request
information or a document from an agency if the Commissioner
believes on reasonable grounds that the agency has information
or documents relevant to the performance of the functions of
the Commissioner. Subsection (2) provides that an agency that
receives such a request may provide the information or document
to the Commissioner.
New section 23 provides that the Commissioner may request an
agency to conduct an audit in relation to compliance with the
Local Jobs First Policy or a Local Industry Development Plan
and to provide the Commissioner with a report of that audit.
The Commissioner may impose terms and conditions or other
requirements in relation to the audit.
Part 5--Enforcement of Local Jobs First Policy and other
matters
Division 1--Information gathering and compliance powers
New section 24 provides the Commissioner with the power to
issue a notice in writing (an information notice) to a person,
if the Commissioner believes on reasonable grounds that the
person has information or a document that is relevant to the
operation of the Local Jobs First Policy or a Local Industry
Development Plan. The information notice may require that
person to give the Commissioner specified information, produce
to the Commissioner any document specified in the information
notice or to make copies of a document and produce the copies
to the Commissioner, respectively within the period specified
in the notice and in the form or manner specified.
Subsection (3) provides that the period specified must not be
less than 14 days.
Subsection (4) requires a person issued with an information
notice to comply with the notice to the extent the person is
capable of doing so.
New section 25 provides that the Commissioner is not required
to pay a fee for the request for information or a document made
respectively to an agency or person under new sections 22
and 24.
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New section 26 provides for the Commissioner to issue a notice
(a compliance notice) to a person requiring compliance with
an information notice issued to that person, the Local Jobs First
Policy or a Local Industry Development Plan. The notice must
be in writing to the person, provide a minimum period of 14 days
for compliance and can only be issued if the Commissioner
reasonably believes that the person has failed to comply with the
information notice, Local Jobs First Policy or Local Industry
Development Plan (as applicable).
New section 27 provides for persons who disagree with
a compliance notice issued to them to respond to the
Commissioner within 14 days, outlining the person's reasons
for disagreeing with the notice. After considering the response
the Commissioner may, by notice in writing, withdraw or
confirm the compliance notice. If the compliance notice is
confirmed the written notice must specify the time within
which the compliance notice must be complied with and the
person must comply within that period.
New section 28 provides for the Commissioner to make a
determination that a person has failed to comply with an
information notice, the Local Jobs First Policy or a Local
Industry Development Plan (as applicable) in the event that
the person has not provided a response to a compliance notice
within 14 days or the person did provide a response but the
compliance notice was confirmed and the person failed to
comply with the notice within the required time.
Subsection (3) provides that if the Commissioner makes a
determination, the Commissioner may recommend to the
Minister that the Minister issue an Adverse Publicity Notice
(in accordance with new section 29) and advise the person
and the appropriate agency of the determination and the
recommendation.
Subsection (4) gives the person 7 days to respond to the
Commissioner in relation to the recommendation that the
Minister issue the Adverse Publicity Notice.
New section 29 provides that the Minister may issue an Adverse
Publicity Notice if recommended by the Commissioner or if
satisfied there has been a contravention of the Local Jobs First
Policy or Local Industry Development Plan. It also sets out the
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requirements for an Adverse Publicity Notice including that the
notice be published in the prescribed manner.
Division 2--Injunctions or other enforcement action
New section 30 provides that the Commissioner may recommend
to the appropriate agency that the agency seek an injunction
or take other enforcement action available under an applicable
contract if a person is failing to comply with the Local Jobs First
Policy or a Local Industry Development Plan.
Part 6--General
New section 31 requires the Commissioner to submit a report to
the Minister on the performance of the Commissioner's functions,
and the exercise of the Commissioner's powers, in respect of each
financial year by no later than 30 August after the end of the
financial year to which the report relates.
New section 32 provides that the Commissioner or any person
assisting the Commissioner under new section 21 is not
personally liable for anything done or omitted to be done in
good faith in the exercise of a power or the discharge of a duty
under the Act or the regulations or in the reasonable belief
that the act or omission was in the exercise of a power or the
discharge of a duty under the Act or the regulations. Liability
that would otherwise result attaches to the State instead.
Part 7--Transitional provisions
New section 33 is a transitional provision that ensures that on
the commencement of the amending Act, a reference in any
Act, subordinate instrument or other document to the Victorian
Industry Participation Policy Act 2003 is to be construed as a
reference to the Local Jobs First Act 2003.
New section 34 is a transitional provision which provides that a
report required to be provided by an agency under the Financial
Management Act 1994 for the financial year commencing on
1 July 2018 must also include reporting on the Victorian Industry
Participation Policy ("VIPP") for the period from 1 July 2018
to the commencement of the amending Act. This will ensure the
report for the 2018-19 financial year is inclusive of the VIPP and
the Local Jobs First Policy.
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New section 35 is a transitional provision which provides that a
report required to be provided by the Minister to the Parliament
for the financial year commencing on 1 July 2018 must also
include reporting on the VIPP for the period from 1 July 2018
to the commencement of the amending Act. This will ensure the
report for the 2018-19 financial year is inclusive of the VIPP
and the Local Jobs First Policy.
Part 3--Repeal of amending Act
Clause 19 provides for the repeal of the amending Act on the first
anniversary of its commencement. The repeal of the Act does
not affect the continuing operation of the amendments made
by it (see section 15(1) of the Interpretation of Legislation
Act 1984).
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