Victorian Industry Participation Policy (Local Jobs First) Amendment Act 2018 (Vic)
Victorian Industry Participation Policy (Local Jobs First) Amendment Act 2018
No. 35 of 2018
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Principal Act
Part 2—Amendment of the Victorian Industry Participation Policy Act 2003
4Change to title of Principal Act
5New Part heading inserted
6Purposes
7Definitions
8New Part heading inserted
9The Local Jobs First Policy
10New section 4A inserted
11Local Jobs First Policy objectives
12Local Jobs First Policy principles
13Local Jobs First Policy to be consistent with other requirements
14New sections 7A, 7B, 7C, 7D and 7E inserted
15Publication of Local Jobs First Policy
16Agencies to report on compliance with Local Jobs First Policy
17Minister to report on implementation of Local Jobs First Policy
18New Parts 3, 4, 5, 6 and 7 inserted
Part 3—Repeal of amending Act
19Repeal of amending Act
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Endnotes
1 General information
Victorian Industry Participation Policy (Local Jobs First) Amendment Act 2018
No. 35 of 2018
[Assented to 14 August 2018]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are to amend the Victorian Industry Participation Policy Act 2003—
(a)to change the title of the Victorian Industry Participation Policy Act 2003 to the Local Jobs First Act 2003; and
(b)to provide for the establishment of the office of a Local Jobs First Commissioner; and
(c)to provide for the development and implementation of a Local Jobs First Policy; and
(d)to provide for compliance with and enforcement of the Local Jobs First Policy; and
(e)to require reports to Parliament on the implementation of, and compliance with, the Local Jobs First Policy.
2Commencement
This Act comes into operation on the day after the day on which this Act receives the Royal Assent.
3Principal Act
In this Act, the Victorian Industry Participation Policy Act 2003 is called the Principal Act.
Part 2—Amendment of the Victorian Industry Participation Policy Act 2003
4Change to title of Principal Act
In the title to the Principal Act, for "Victorian Industry Participation Policy" substitute "Local Jobs First".
5New Part heading inserted
Before section 1 of the Principal Act insert the following Part heading—
"Part 1—Preliminary".
6Purposes
(1)In section 1(a) of the Principal Act, for "Victorian Industry Participation Policy" substitute "Local Jobs First Policy".
(2)In section 1(b) of the Principal Act, for "it." substitute "it; and".
(3)After section 1(b) of the Principal Act insert—
"(c)to establish the office of the Local Jobs First Commissioner; and
(d)to confer functions on the Local Jobs First Commissioner under this Act; and
(e)to provide for compliance with and enforcement of the Local Jobs First Policy and Local Industry Development Plans.".
7Definitions
(1)In section 3(1) of the Principal Act—
(a)insert the following definitions—
"Adverse Publicity Notice means a notice issued under section 29(1);
Commissioner means the Local Jobs First Commissioner appointed under section 12;
compliance notice means a notice issued under section 26(1);
Department Head has the same meaning as in section 4(1) of the Public Administration Act 2004;
information notice means a notice issued under section 24(2);
local content means—
(a)goods that are produced by local industry; or
(b)services that are supplied by local industry; or
(c)construction activities carried out by local industry;
Local Industry Development Plan means a plan submitted under section 7D;
Local Jobs First Policy means the Local Jobs First Policy referred to in section 4;
Major Projects Skills Guarantee means the policy referred in section 4(6);
rural and regional Victoria has the same meaning as in the Regional Development Victoria Act 2002;
standard project means the following—
(a)a project with a budget of $1 million or more that is for the benefit of an area that is wholly in rural and regional Victoria;
(b)a project with a budget of $3 million or more that is for the benefit of an area that is wholly outside rural and regional Victoria;
(c)a project with a budget of $3 million or more that is for the benefit of an area that includes rural and regional Victoria and an area outside rural and regional Victoria;
(d)any other project with a budget of less than $3 million declared by the Minister to be a standard project under section 7A(1);
strategic project means—
(a)a project with a budget of $50 million or more; or
(b)any other project with a budget of less than $50 million declared by the Minister to be a strategic project under section 7A(2);
total content means goods, services or construction activities for a standard project or a strategic project;
Victorian Industry Participation Policy means the policy referred to in section 4(5).";
(b)for the definition of Department substitute—
"Department means the Department of Economic Development, Jobs, Transport and Resources;";
(c)the definition of VIPP is repealed.
(2)In section 3(2) of the Principal Act, for "Department of State Development, Business and Innovation" substitute "Department of Economic Development, Jobs, Transport and Resources".
8New Part heading inserted
After section 3 of the Principal Act insert the following Part heading—
"Part 2—The Local Jobs First Policy".
9The Local Jobs First Policy
(1)For the heading to section 4 of the Principal Act substitute—
"The Local Jobs First Policy".
(2)In section 4(2) of the Principal Act, for "Victorian Industry Participation Policy" substitute "Local Jobs First Policy".
(3)After section 4(3) of the Principal Act insert—
"(4)The Local Jobs First Policy is comprised of—
(a)the Victorian Industry Participation Policy; and
(b)the Major Projects Skills Guarantee.
(5)The Victorian Industry Participation Policy is an industry development policy designed to ensure small and medium-sized enterprises are given full and fair opportunity to compete for Victorian government contracts.
(6)The Major Projects Skills Guarantee is a policy that provides job opportunities for apprentices, trainees and cadets on high value construction projects.".
10New section 4A inserted
After section 4 of the Principal Act insert—
"4A Compliance with Local Jobs First Policy
(1)A person or agency to which the Local Jobs First Policy applies must comply with the Local Jobs First Policy.
(2)An agency must ensure that a contract for a standard project or a strategic project requires a person providing goods, services or construction activities under the contract to comply with the Local Jobs First Policy.
(3)Despite subsections (1) and (2), the Minister may exempt an agency from the requirements of the Local Jobs First Policy in respect of a standard project or a strategic project if the Minister is satisfied that exceptional circumstances apply.".
11Local Jobs First Policy objectives
(1)In the heading to section 5 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
(2)In section 5 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
12Local Jobs First Policy principles
(1)In the heading to section 6 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
(2)In section 6 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
13Local Jobs First Policy to be consistent with other requirements
(1)In the heading to section 7 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
(2)In section 7 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
14New sections 7A, 7B, 7C, 7D and 7E inserted
After section 7 of the Principal Act insert—
"7A Power to declare a project a standard project or a strategic project
(1)The Minister may declare a project with a budget of less than $3 million to be a standard project.
(2)The Minister may declare a project with a budget of less than $50 million to be a strategic project.
7BDetermination of requirements for strategic projects and standard projects
(1)The Minister must determine local content requirements for strategic projects.
(2)For the purposes of subsection (1), the Minister must determine the minimum percentage of value of the total content of strategic projects that must be local content.
(3)The minimum percentage determined by the Minister under subsection (2) must be no less than—
(a)90% for a strategic project that is a construction project; or
(b)80% for a strategic project that is a services project or a maintenance project; or
(c)80% for the maintenance or operations phase of a strategic project.
(4)The Minister may determine other matters relating to strategic projects, including but not limited to—
(a)requirements to maximise the use of steel products produced by local industry; or
(b)requirements to use a specified amount of steel products produced by local industry; or
(c)requirements to maximise the use of uniform and personal protective equipment produced by local industry; or
(d)any other requirements or conditions.
(5)The Minister may determine local content requirements for standard projects.
(6)The Minister may determine other matters relating to standard projects, including but not limited to requirements and conditions.
7CMajor Projects Skills Guarantee requirements
(1)The Major Projects Skills Guarantee applies to—
(a)standard projects that are construction projects with a budget of $20 million or more; and
(b)strategic projects that are construction projects.
(2)The Major Projects Skills Guarantee—
(a)requires apprentices, trainees or cadets to be engaged for a minimum of 10% of the total number of estimated hours of work on the project; and
(b)may include other requirements or conditions determined by the Minister.
7DLocal Industry Development Plan
(1)A person tendering for a contract for a standard project or a strategic project must submit a plan (a Local Industry Development Plan) that complies with subsection (2)—
(a)to the agency responsible for the project; and
(b)to the Department.
(2)A Local Industry Development Plan submitted under subsection (1) must—
(a)specify how the requirements of the Local Jobs First Policy will be met; and
(b)identify total content and local content for the project; and
(c)include any other matter required to be included in the Plan by the Local Jobs First Policy.
(3)An agency must not accept a tender that does not include a Local Industry Development Plan.
(4)If a person's tender is accepted, the person must comply with the Local Industry Development Plan.
7EWeighting of commitments to Local Jobs First Policy
In evaluating a tender for a contract for a standard project or a strategic project, an agency must give weighting to the following parts in the specified amounts—
(a)10% for industry development, including commitments made in relation to the Victorian Industry Participation Policy;
(b)10% for job outcomes, including, if applicable, job outcomes provided by the Major Projects Skills Guarantee.".
15Publication of Local Jobs First Policy
(1)In the heading to section 8 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
(2)In section 8 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
16Agencies to report on compliance with Local Jobs First Policy
(1)In the heading to section 9 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
(2)In section 9(1) of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
(3)After section 9(2) of the Principal Act insert—
"(3)Each agency must provide the information included in a report under subsection (1) to the Department no later than 6 weeks after the end of the financial year to which the report relates.".
17Minister to report on implementation of Local Jobs First Policy
(1)In the heading to section 10 of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
(2)In section 10(1) of the Principal Act, for "VIPP" substitute "Local Jobs First Policy".
(3)After section 10(2) of the Principal Act insert—
"(2A)The Minister must include in the report any recommendations made by the Commissioner under section 28(3)(a).".
18New Parts 3, 4, 5, 6 and 7 inserted
After section 11 of the Principal Act insert—
"Part 3—Local Jobs First Commissioner
Division 1—Appointment of Local Jobs First Commissioner
12Local Jobs First Commissioner
The Minister may appoint, by instrument, a person as the Local Jobs First Commissioner (the Commissioner).
13Terms and conditions of appointment
(1)The appointment of the Commissioner is to be for the period, not exceeding 5 years, set out in the instrument of appointment.
(2)The appointment of the Commissioner is to be on the terms and conditions set out in the instrument of appointment.
(3)The Commissioner is entitled to be paid remuneration and allowances determined by the Minister.
(4)The Commissioner may hold office on a full‑time or part-time basis.
(5)The Commissioner may be reappointed.
(6)The Public Administration Act 2004 (other than Part 3 of that Act) applies to the Commissioner in respect of the office of the Commissioner.
14Acting Commissioner
(1)The Minister may appoint a person to act as the Commissioner—
(a)during a vacancy in the office of the Commissioner; or
(b)during any period, not exceeding 12 months, when the Commissioner is absent from duty or, for any other reason, unable to perform the duties of that office.
(2)The appointment is to be on the terms and conditions set out in the instrument of appointment.
(3)A person acting as the Commissioner has all the powers and may perform all the functions and duties conferred by this Act or any other Act on the Commissioner.
(4)The Minister may revoke the appointment of a person acting as the Commissioner at any time.
15Vacancy and resignation
The Commissioner ceases to hold office if the Commissioner—
(a)resigns by notice in writing signed and delivered to the Minister; or
(b)becomes insolvent under administration; or
(c)is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or
(d)nominates for election for or is elected to—
(i)the Parliament of Victoria or of the Commonwealth or of another State or a Territory; or
(ii)a Council, within the meaning of the Local Government Act 1989; or
(e)is removed from office under section 16.
16Removal from office
The Minister may remove the Commissioner from office on any of the following grounds—
(a)any neglect of the Commissioner in carrying out the duties of office;
(b)any misconduct by the Commissioner in carrying out the duties of office;
(c)an inability of the Commissioner to perform the duties of office;
(d)a conflict of interest of the Commissioner when carrying out the duties of office;
(e)the Commissioner engaging in paid employment outside the duties of office without the Minister's consent.
Division 2—Powers and functions of Local Jobs First Commissioner
17Power of Commissioner
Subject to this Act, 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 this Act or any other Act.
18Functions of Commissioner
The Commissioner has the following functions—
(a)to promote the Local Jobs First Policy across agencies and local industry;
(b)to collaborate with agencies and external service providers to assist businesses in targeting companies and workers in specific sectors and regions;
(c)to work with agencies to improve Victorian industry access to current and future government procurement opportunities;
(d)to advocate for the private sector and local government to procure goods and services from Victorian industry, employ local workers and enhance the skills of local workers;
(e)to work with Victorian industry and employee organisations to facilitate collaborations between contractors and the training sector to build skills development in relation to project delivery;
(f)to provide strategic advice on issues related to the Local Jobs First Policy, particularly on actions to grow participation by local industry in government activities in the short-term, medium-term and long-term;
(g)to support the development of and provide advice on government procurement policies and initiatives;
(h)to monitor and report on compliance with the Local Jobs First Policy and Local Industry Development Plans;
(i)to take enforcement action in relation to breaches of the Local Jobs First Policy, Local Industry Development Plans and this Act;
(j)any other functions conferred on the Commissioner.
19Commissioner subject to Ministerial direction
The Commissioner must exercise the powers and perform the functions of the Commissioner under this Act or any other Act subject to any written directions given by the Minister.
20Delegation
The Commissioner may delegate, by instrument, any power of the Commissioner under this Act or any other Act, other than this power of delegation, to any person who is employed under the Public Administration Act 2004 and has the necessary skills to exercise that power.
21Assistance to be provided
(1)The Commissioner may make a request in writing to the Department Head for assistance in connection with the reasonable performance of the Commissioner's functions.
(2)The Department Head must ensure that the Commissioner is provided with any assistance that the Commissioner reasonably requires.
Part 4—Requests for information from agencies
22Requests for information from agencies
(1)If the Commissioner believes on reasonable grounds that an agency has information or a document that is relevant to the performance of the functions of the Commissioner, the Commissioner may request in writing that the agency provide the specified information or specified document to the Commissioner.
(2)An agency that receives a written request for information or a document under subsection (1) may provide the specified information or specified document to the Commissioner.
23Audits by agencies
(1)The Commissioner may request an agency—
(a)to conduct an audit in relation to—
(i)compliance by a person or agency with the Local Jobs First Policy; or
(ii)compliance by a person with a Local Industry Development Plan; and
(b)to provide to the Commissioner a report on the audit.
(2)The Commissioner may impose terms of reference or other requirements in relation to an audit conducted by an agency under subsection (1).
Part 5—Enforcement of Local Jobs First Policy and other matters
Division 1—Information gathering and compliance powers
24Power to request information or documents from persons
(1)This section applies if the Commissioner believes on reasonable grounds that a person has information or a document that is relevant—
(a)to the operation of the Local Jobs First Policy; or
(b)to a Local Industry Development Plan.
(2)The Commissioner may issue a notice (an information notice), in writing, to the person requiring the person to do any of the following—
(a)give to the Commissioner specified information, within the period and in the manner and form specified in the information notice;
(b)produce to the Commissioner any document specified in the information notice, within the period and in the manner specified in the information notice;
(c)make copies of any specified document and produce the copies to the Commissioner, within the period and in the manner specified in the information notice.
(3)A period specified in subsection (2)(a), (b) or (c) must be no less than 14 days from when the information notice is issued.
(4)A person must comply with an information notice to the extent the person is capable of doing so.
25No requirement to pay fees
For the purposes of exercising a power under section 22 or 24, the Commissioner is not required to pay any fees.
26Power to issue a compliance notice
(1)The Commissioner may issue a notice (a compliance notice), in writing, to a person if the Commissioner reasonably believes that the person has—
(a)failed to comply with an information notice; or
(b)failed to comply with the Local Jobs First Policy; or
(c)failed to comply with a Local Industry Development Plan.
(2)A compliance notice may—
(a)require the person to comply with an information notice within a specified period; or
(b)require the person to—
(i)comply with the Local Jobs First Policy within a specified period; or
(ii)take specified steps within a specified period to comply with the Local Jobs First Policy; or
(c)require the person to—
(i)comply with the Local Industry Development Plan within a specified period; or
(ii)take specified steps within a specified period to comply with the Local Industry Development Plan.
(3)A period specified in subsection (2)(a), (b) or (c) must be no less than 14 days from when the compliance notice is issued.
27Responding to a compliance notice
(1)If a person receives a compliance notice and disagrees with the compliance notice, the person has 14 days from the date of the receipt of the compliance notice to provide a written response to the Commissioner outlining the person's reasons for disagreeing with the compliance notice.
(2)After considering a response under subsection (1), the Commissioner may, by notice in writing—
(a)withdraw the compliance notice; or
(b)confirm the compliance notice.
(3)If the compliance notice is confirmed—
(a)the notice must specify a period within which the person must comply; and
(b)the person must comply within that period.
28Commissioner may make determination
(1)This section applies if the Commissioner has issued a compliance notice to a person under section 26(1) and—
(a)the Commissioner has not received a response from the person under section 27(1) within 14 days; or
(b)the Commissioner has received a response under section 27(1) within 14 days and—
(i)the Commissioner has confirmed the compliance notice under section 27(2)(b); and
(ii)the person has failed to comply with the notice within the period specified in the notice.
(2)The Commissioner may determine that—
(a)the person has failed to comply with an information notice; or
(b)the person has failed to comply with the Local Jobs First Policy; or
(c)the person has failed to comply with a Local Industry Development Plan.
(3)If the Commissioner makes a determination under subsection (2), the Commissioner may—
(a)recommend to the Minister that the Minister issue an Adverse Publicity Notice in accordance with section 29; and
(b)advise the person and the appropriate agency of—
(i)the determination; and
(ii)the recommendation that the Minister issue an Adverse Publicity Notice.
Note
Section 10(2A) requires the Minister to include in a report to Parliament recommendations made under section 28(3)(a).
(4)The person may, within 7 days after the Commissioner has advised the person of the determination and recommendation, respond to the Commissioner, in respect of the recommendation that an Adverse Publicity Notice be issued by the Minister.
29Adverse Publicity Notices
(1)The Minister may issue an Adverse Publicity Notice in relation to a person—
(a)after receiving a recommendation under section 28(3)(a) in respect of the person; or
(b)if the Minister is satisfied that the person has—
(i)failed to comply with the Local Jobs First Policy; or
(ii)failed to comply with a Local Industry Development Plan.
(2)An Adverse Publicity Notice must—
(a)name the person to whom the Adverse Publicity Notice relates; and
(b)set out the details of the conduct; and
(c)be published in the prescribed manner.
Division 2—Injunctions or other enforcement action
30Commissioner may recommend an agency seeks an injunction or other enforcement action
If a person is failing to comply or has failed to comply with the Local Jobs First Policy or a Local Industry Development Plan, the Commissioner may make a recommendation to the appropriate agency that the agency seeks compliance with the Local Jobs First Policy or the Local Industry Development Plan by—
(a)applying to a court of competent jurisdiction for an injunction; or
(b)taking enforcement action available under an applicable contract.
Part 6—General
31Annual report to Minister
(1)The Commissioner must submit a report to the Minister on the performance of functions and the exercise of powers by the Commissioner under this Act in respect of each financial year.
(2)The report must be submitted to the Minister by no later than 30 August after the end of each financial year.
32Immunity
(1)The Commissioner or a person assisting the Commissioner under section 21 is not personally liable for anything done or omitted to be done in good faith—
(a)in the exercise of a power or the discharge of a duty under this Act or the regulations; or
(b)in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Act or the regulations.
(2)Any liability resulting from an act or omission that would but for subsection (1) attach to the Commissioner or a person assisting the Commissioner under section 21 attaches to the State instead.
Part 7—Transitional provisions
33Transitional provision—title to Act
On and from the commencement of the Victorian Industry Participation Policy (Local Jobs First) Amendment Act 2018, in any Act, subordinate instrument or other document, unless the context otherwise requires, a reference to the Victorian Industry Participation Policy Act 2003 is to be construed as a reference to the Local Jobs First Act 2003.
34Transitional provision—report under section 9
(1)This section applies to an agency's report under section 9 in respect of the financial year commencing on 1 July 2018.
(2)Despite section 16 of the Victorian Industry Participation Policy (Local Jobs First) Amendment Act 2018, the report must also include the information required by section 9 (as in force immediately before its amendment) for the period commencing on 1 July 2018 and ending on the commencement of section 16 of the Victorian Industry Participation Policy (Local Jobs First) Amendment Act 2018.
35Transitional provision—report under section 10
(1)This section applies to a report of the Minister under section 10 in respect of the financial year commencing on 1 July 2018.
(2)Despite section 17 of the Victorian Industry Participation Policy (Local Jobs First) Amendment Act 2018, the report must also include the information required by section 10 (as in force immediately before its amendment) for the period commencing on 1 July 2018 and ending on the commencement of section 17 of the Victorian Industry Participation Policy (Local Jobs First) Amendment Act 2018.".
Part 3—Repeal of amending Act
19Repeal of amending Act
This Act is repealed on the first anniversary of its commencement.
Note
The repeal of this 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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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 20 June 2018
Legislative Council: 26 July 2018
The long title for the Bill for this Act was "A Bill for an Act to amend the Victorian Industry Participation Policy Act 2003 and for other purposes."
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