Fair Jobs Code Pre-Assessment Certificate - Guidelines for supplier and businesses

1. Guidelines issued by the Minister

1.1 These guidelines are issued by the Minister for Industry and Innovation to assist suppliers and businesses who wish to apply for a Pre-Assessment Certificate.

1.2 These Guidelines may be updated from time to time to reflect any policy or legislative changes that may arise during the Fair Job Code’s implementation. To ensure that you are using the latest version of the Guidelines, go to Fair Jobs Code Pre-Assessment Certificates - Guidelines for suppliers and businesses.

1.3 These guidelines should be read in conjunction with the Fair Jobs Code.

2. Fair Jobs Code

2.1 The Fair Jobs Code (Code) is a clear demonstration of the Victorian Government’s commitment to ensuring that suppliers tendering for threshold procurement contracts, or high value procurement contracts, and businesses applying for significant business expansion grants, are recognised for their commitment to treating workers fairly.

1. A threshold procurement contract is a contract worth $3 million or more (exclusive of GST).
2. A high-value procurement contract is a contract worth $20 million or more (exclusive of GST).
3. A significant business expansion grant is a grant agreement with a Victorian Government Agency (Agency) worth $500,000 or more (exclusive of GST) and the grant’s terms require the business to deliver new jobs.

2.2 The Government’s aim in introducing the Code as an integral part of the procurement and grants framework in Victoria is to:

1. promote fair labour standards
2. encourage compliance with employment, industrial relations and workplace health and safety obligations
3. promote secure employment and job security
4. foster cooperative and constructive workplace relationships between employers, employees, and their representatives
5. promote workplace equity and diversity
6. encourage supply chain companies to comply with similar employment standards.

2.3 The Code supports existing requirements for government contracts and grants. Information on these is available at Fair Jobs Code.

3. Pre-Assessment Certificate

3.1 A Pre-Assessment Certificate is a certificate issued to a supplier or business by the Fair Jobs Code Unit (FJC Unit) of the Department of Jobs, Skills, Industry and Regions.

3.2 A Pre-Assessment Certificate verifies compliance by a supplier or business with industrial relations and occupational health and safety laws over the previous 3 years.

3.3 Holding a current and valid Certificate is a pre-condition to apply for:

1. a threshold procurement contract, or
2. a high-value procurement contract, or
3. a significant business expansion grant.

3.4 Holding a current and valid Certificate is a contractual requirement for the life of a threshold procurement contract, high-value procurement contract or significant business expansion grant.

4. Who needs to apply for a Certificate?

4.1 If you fall into one or more of the three categories described below, you should apply for a Certificate:

1. a supplier of goods, services or works, including a provider of construction works, who is intending to bid for threshold procurement contracts.
2. a business intending to apply for a government grant:
   • if the Victorian Government component of the grant is worth $500,000 or more, and
   • if one of the requirements of the grant is to create new jobs.
3. a sub-contractor, engaged by a supplier in relation to a high value procurement contract, where the value of the subcontract is worth $10 million or more.

4.2 If you plan to bid for threshold procurement contracts, high value procurement contracts or significant business expansion grants, you should allow for at least 30 business days to obtain a Certificate.

5. Exclusions and exceptions under the Fair Jobs Code

5.1 In certain circumstances, agencies may enter into contracts and grant agreements with suppliers and businesses that do not hold Certificates. Please note that suppliers and businesses are not able to apply directly for an exception.

5.2 For details on exception provisions see sections 4.3–4.5 of the Code and the Guidelines for Government Departments and Agencies – Procurement.

6. Commencement Date for the Fair Jobs Code

6.1 The Code comes into operation on 1 December 2022.

6.2 The FJC Unit will accept applications for Certificates from 10 August 2022. You may apply for a Certificate at any time from this date.

6.3 For Standing Offer Arrangements (including State Purchase Contracts and Sole Entity Purchase Contracts), the Code will apply from the date that the Standing Offer Arrangement commences, is updated, or reissued to refer to this Code following the operation date in 6.1 (Section 2.2 and 2.3 of the Code).

7. How to apply for a Certificate?

7.1 The FJC Unit is responsible for processing applications and issuing Certificates.

7.2 Certificates will only be issued to legal entities who propose to conduct their business operations within Victoria.

7.3 To apply for a Certificate, go to Apply for a Fair Jobs Code Pre-Assessment Certificate.

7.4 Once you have created an account, you will be issued with an application number and then be able to commence your application or return to a saved application.

7.5 There are no fees charged for applications for a Certificate, for the issue of a Certificate or for the renewal of a Certificate.

8. How long will it take to obtain a Certificate?

8.1 You will receive an email notification once your application is received. Applications will generally be assessed and processed within 30 business days from the date that it is lodged. If the FJC Unit requires more information or there are other exceptional circumstances, you will be informed of any variation to this timing.

8.2 If your application is incomplete, or if the FJC Unit requires further information to process your application, you will be notified and requested to provide additional information. This may delay the processing of your application. You can contact the FJC Unit if you wish to discuss the timing of your application.

9. What Information will I need to provide?

9.1 The application form will require you to provide information about your organisation, including:

1. your personal information and details of your authority to act for the business seeking the Certificate
2. business details
3. details of your business’ compliance with industrial relations and occupational health and safety law over the past three years, and
4. your agreement to the terms set out in the Declaration section of the Application Form.

9.2 Further details about the information you will need to provide are set out in 10 to 13 below and in Appendix 2.

10. Business Details

10.1 This section of the application form requires you to provide information about your business. This will enable the FJC Unit to identify the legal entity to whom the Certificate will be issued if the application is successful.

11. Compliance with Industrial Relations and Occupational Health and Safety Laws

11.1 The application form will require you to give details of your compliance with the:

1. Fair Work Act 2009 (Cth.)
2. Occupational Health and Safety Act 2004 (Vic)
3. Wage Theft Act 2020 (Vic)
4. Long Service Benefits Portability Act 2018 (Vic)
5. Labour Hire Licensing Act 2018 (Vic)
6. equivalent applicable laws and regulations in other States and Territories of Australia, as listed in Appendix 3.

11.2 Specifically, you must disclose whether your business has had any adverse rulings or enforceable undertakings issued against it in any Australian jurisdiction in the three years prior to the application.

11.3 Adverse rulings or enforceable undertakings must be disclosed if they relate to employment, industrial relations or workplace health and safety laws.

1. ‘Adverse ruling’ means a ruling by any court, tribunal, board, commission or other entity with jurisdiction or legal authority to determine the matter, that the supplier or business has breached an applicable employment, industrial relations or workplace health and safety law.
2. ‘Enforceable undertaking’ means an undertaking or agreement made by a supplier or business with a regulator, Court, or other body (including the Fair Work Ombudsman, WorkSafe Victoria and Wage Inspectorate Victoria) in respect of a breach or alleged breach of an applicable employment, industrial relations or workplace health and safety law.

11.4 The FJC Unit will verify the information you provide against regulatory databases and any other information available to it, including from the Fair Work Ombudsman, WorkSafe Victoria and other State, Territory and Commonwealth Government departments, agencies and regulators.

11.5 In the event you have had adverse rulings or enforceable undertakings issued against your business in the past three years, you will be asked to detail the actions you have taken to remedy the matters identified in the adverse rulings or enforceable undertakings.

12. Agreement to terms set out in the Declaration

12.1 You will be required to agree to the terms set out in the Declaration section of the application form.

12.2 It is important that you carefully read and understand the Declaration, which includes:

1. your consent for the FJC Unit to make enquiries about your business and to access information relating to your compliance with employment, industrial relations and workplace health and safety laws in Victoria and in other jurisdictions, and
2. your agreement to a continuing obligation, as a Certificate holder, to disclose to the FJC Unit, within 10 business days, any new adverse rulings or enforceable undertakings made against you and the corrective actions to be taken by you to prevent a reoccurrence.

12.3 Failure to disclose an adverse ruling or an enforceable undertaking, and to make the disclosure within 10 business days, may result in revocation of your Certificate.

12.4 You are required to notify the FJC Unit of an adverse ruling or enforceable undertaking made against your business. To do this:

1. access / login to the Fair Jobs Code Portal;
2. select “Report Compliance Issues”; and
3. enter details of the breach, ruling or notice.

12.5 For suppliers engaged under a Standing Offer Arrangement (including a State Purchase Contract or a Sole Entity Purchase Contract) which contain clauses referring to the Code, failure to meet continuous disclosure requirements may enable an agency to seek contractual remedies against the suppliers, may result in a suspension of purchase orders until the failure has been rectified and until the FJC Unit has determined whether the failure has had a material impact on the validity of the Certificate.

13. Audit and review

13.1 As a Certificate holder, you will be required to agree to cooperate with the FJC Unit and your contracting Agency, in supplying any information required by them in relation to compliance with the Code. This includes information for the purposes of an audit and/or review being conducted by them at any time you hold a current Certificate.

14. Assessment of your application for a Certificate

14.1 Applications for Certificates are assessed against the criteria outlined in Section 5.5 of the Code.

14.2 The FJC Unit will assess your current compliance with industrial relations and occupational health and safety laws and your compliance for the three years preceding the date of your application.

14.3 As part of its assessment, the FJC Unit will consider any adverse rulings or enforceable undertakings made against your business in the three years preceding the date of your application.

14.4 In conducting an assessment the FJC Unit will consider a range of criteria including the seriousness of the conduct reflected in any adverse rulings or enforceable undertakings, whether the conduct was isolated or systemic and how your business responded to rectify the conduct. For further information on the criteria considered in the assessment see Section 5.5 of the Code.

14.5 In assessing your application, the FJC Unit will consider the information provided in your application and may also consider other information available to it from regulators such as the Fair Work Ombudsman, the Fair Work Commission, WorkSafe Victoria and other relevant Victorian Government agencies.

14.6 If your application lacks sufficient information to complete an assessment, you will be asked to provide further information. Failure to respond will cause your application to lapse after 90 business days and the application for a Certificate will be declined.

15. Application outcomes

15.1 Following the assessment of your application by the FJC Unit, your application may result in:

1. A Certificate being issued. You will be notified via email and be issued with a digital Pre-Assessment Certificate. You will then be eligible to apply for threshold procurement contracts, high value procurement contracts or significant business expansion grants, for a period of two years from the date of issue, subject to ongoing disclosure requirements and adherence with the Code.
2. A request for further information. Where the information provided fails to adequately address the assessment criteria, you will be contacted by the FJC Unit and asked to provide further information by a specified date.
3. A decision to decline to issue Certificate. If your application does not meet the assessment criteria, you will be provided with an opportunity to make final submissions in support of your application. If the FJC Unit declines to issue a Certificate you will be provided with a copy of the decision. It is important to note that this outcome will not preclude you from re-applying in the future if circumstances have changed (contact the FJC Unit for further information).

16. Certificate Register

16.1 The FJC Unit will maintain a publicly accessible register of suppliers and businesses that have a current Certificate.

16.2 Businesses whose Certificates have been revoked, have lapsed, or have been surrendered by the Certificate holder will not be listed on the register.

17. Certificate renewal

17.1 Your Certificate will expire after two years.

17.2 An application for renewal of your Certificate can be lodged at Apply for a Fair Jobs Code Pre-Assessment Certificate.

17.3 You will receive a reminder to renew your Certificate 60, 30, and 15 business days before the expiry date, sent via the contact details registered with the FJC Unit. It is your responsibility to update these details if they change. It is your responsibility to seek timely renewal.

17.4 When your Certificate expires, you must notify any Victorian Government agency with whom you have an active contract or grant agreement within 10 business days of the expiry, irrespective of whether you are applying for a renewal.

18. Revocation of a Certificate

18.1 The FJC Unit may revoke your Certificate if it considers that you no longer meet the assessment criteria or if you no longer satisfy the requirements of Standard 1 of the Code. The details of a revoked Certificate will be removed from the publicly available Fair Jobs Code Pre-Assessment Certificate Register, which is maintained by the FJC Unit.

18.2 Prior to a decision to revoke your Certificate, you will be informed of the reasons for the proposed decision and given an opportunity to provide information in support of not revoking your Certificate.

18.3 If your Certificate is revoked, and you have an active contract or grant agreement with a Victorian Government agency, you must notify that agency within 10 business days of the revocation. The agency may determine whether to seek contractual remedies against you.

18.4 If your Certificate is revoked, it will not preclude you from re-applying for a new Certificate in the future. Each application is assessed on its merits at the time of application and against the requirements of Standard 1 of the Code.

19. Review of Decision by the FJC Unit

19.1 If the FJC Unit decides to decline to issue a Certificate or to revoke your Certificate, you may request a review of that decision. Your request must be submitted within 30 business days of being notified of the decision.

19.2 To request a review, log into the Fair Jobs Code Portal and click on the ‘Review Decision’ icon on the home page. Select the relevant application or revoked Certificate(s) and then click the continue button to submit a review decision form.

19.3 A senior officer of Department of Jobs, Skills, Industry and Regions will conduct an independent internal review of the decision. The officer will give you the opportunity to provide any information that may be relevant to the review.

19.4 The final decision will be communicated to you in writing.

20. General Complaints

20.1 General complaints about an action or service provided by the FJC Unit can be made at Department of Jobs, Precincts and Regions Complaint form.

20.2 Complaints will be managed in accordance with Department of Jobs, Skills, Industry and Regions policies and procedures (with any necessary modifications) and in line with the Victorian Ombudsman’s Complaint Good Practice Guide for Public Sector Agencies.

21. Complaints about a holder of a Certificate

21.1 A complaint can be made about a supplier or business that holds a Certificate if a complainant has reasonable grounds to believe that a supplier or business has failed to comply with the Code. See clause 11 of the Code for more details.

21.2 In the event that a complaint is made against you, you will be notified of any investigation and given an opportunity to provide a response.

21.3 Complaints will be managed in accordance with Department of Jobs, Skills, Industry and Regions policies and procedures (with any necessary modifications) and in line with the Victorian Ombudsman’s Complaint Good Practice Guide for Public Sector Agencies.

21.4 The FJC Unit will only use or disclose information provided by a complainant for the purpose of:

1. assessing and responding to the complaint
2. assessing the implications of the complaint for a supplier or business
3. reporting on the operation of the Code and the FJC Unit, to the extent practical, in a de-identified form
4. providing information to the Minister or the Local Jobs First Commissioner, including as to any systemic issues or trends identified, or
5. otherwise as required by law.

22. Relationship with the Code, Commonwealth and State Laws and Policies

22.1 In the event of a conflict between the Code (including these Guidelines) and any Commonwealth or State laws (including subordinate instruments made pursuant to those laws), those laws prevail.

22.2 The Code or the granting of a Certificate does not remove the requirements for suppliers or businesses to undergo assessments for other mandatory government pre‑qualification schemes and approved registers.

22.3 The FJC Unit will not duplicate the legislated responsibility of regulators, such as the Fair Work Ombudsman and WorkSafe Victoria, nor will they replace the function of Victorian Government agencies and their contract managers.

22.4 There are a number of other Victorian Government Codes and Polices that relate to industrial relations and occupational health and safety laws and standards. Examples of complementary Victorian Government policies include:

1. The Supplier Code of Conduct
2. The Local Jobs First Policy
3. The Social Procurement Framework
4. The Building Equality Policy
5. Victorian Government Call Centre Code

22.5 The Fair Jobs Code Unit is actively working with agencies and industry to review how policies complement each other, and how any duplication can be removed.

23. Governance

23.1 Fair Jobs Code Unit

1. The FJC Unit is responsible for implementation of the Code. This includes issuing Certificates and monitoring compliance with the Code by Certificate holders.
2. The FJC Unit is located within the Department of Jobs, Skills, Industry and Regions.
3. Contact the Fair Jobs Code Unit.
4. You may contact the FJC Unit:
   1. for guidance on applying for or renewing a Certificate
   2. to provide further information to support an application for a Certificate
   3. to self-report a breach of the Code
   4. for information, advice, and support on meeting the requirements of the Code, or
   5. to provide information to the FJC Unit when it is conducting an audit, investigation, re-view or making a request for information.
5. The FJC Unit may contact you to:
   1. provide information, advice, and support on meeting the requirements of the Code
   2. discuss an application for a Certificate, and communicate the outcome of an application
   3. notify you that your Certificate is due for renewal, or
   4. seek information, in the course of conducting an audit, investigation or review.

23.2 Victorian Government Agencies

1. Victorian Government agencies are responsible for:
   1. incorporating the requirements of the Code and any model clauses into relevant pro-curement and grant documentation and contracts
   2. notifying the FJC Unit of self-reported supplier and business non-compliance with the Code, and
   3. reviewing FJC Plans / FJC Plan Addendums and monitoring their delivery throughout the term of the contract.

23.3 Local Jobs First Commissioner

1. The Local Jobs First Commissioner’s role includes engaging with agencies and industry to educate and promote the Code.

24. Tools and Support

24.1 For more information about the Code, visit: Fair Jobs Code Tools and templates suppliers and businesses

24.2 Contact the Fair Jobs Unit.

Appendix 1 - Glossary

adverse ruling - a ruling by any court, tribunal, board, commission or other entity with jurisdiction or legal authority to determine the matter, that the supplier or business has breached an applicable employment, industrial relations or workplace health and safety law.

agency - a department or public body within the meaning of the Financial Management Act 1994.

agencies - the plural of ‘agency’.

assessment criteria - the criteria set out in clause 5.5 of the Fair Jobs Code for determining whether a business or supplier should obtain or retain a Pre-Assessment Certificate.

business - any entity that applies for a significant business expansion grant from a Victorian Government agency.

Certificate - Pre-Assessment Certificate.

Code - the Victorian Fair Jobs Code.

enforceable undertaking - a promise or agreement made by a supplier or business with a regulator, Court, or other body (including the Fair Work Ombudsman, WorkSafe Victoria and Wage Inspectorate Victoria) in respect of a breach or alleged / suspected breach of an applicable employment, industrial relations or workplace health and safety law.

FJC Plan - a business’ or supplier’s Fair Jobs Code Industrial Relations and Occupational Health and Safety Plan, which addresses industrial relations, occupational health and safety requirements and commitments and standards required by the Code.

FJC Plan Addendum - each bidder’s Industrial relations and occupational health and safety addendum as required by the FJC.

FJC Unit - the Fair Jobs Code Unit, an administrative group within the Department of Jobs, Skills, Industry and Regions with responsibilities in relation to the Code.

high value procurement contract - a contract between a supplier and a Victorian Government agency with a value of $20 million or more (exclusive of GST).

including - including but not limited to.

Minister - the Minister for Industry and Innovation.

Pre-Assessment Certificate - a certificate that must be obtained by suppliers prior to tendering for threshold procurement contracts or high value procurement contracts or by businesses prior to applying for significant business expansion grants.

significant business expansion grant - a grant from a Victorian Government agency with a value of $500,000 or more (exclusive of GST) and where the key milestones under the grant agreement specify that the business will deliver new jobs.

subcontractor - an entity engaged, or to be engaged by a supplier, under a subcontract.

State Purchase Contract - means a standing offer arrangement for the whole of the Victorian government for commonly used goods and services, which are established when value for money can best be achieved through aggregating demand.

subcontractor - an entity engaged, or to be engaged by a supplier, under a subcontract.

supplier - all types of entities that supply or propose to supply goods, services, or works, including construction works and services, to a Victorian Government agency, with the exception of public entities that provide goods, services or works for essential services related to the supply of electricity, natural gas, water, wastewater, or telecommunications.

threshold procurement contract - a contract between a supplier and a Victorian Government agency with a value of $3 million or more (exclusive of GST).

Appendix 2 - Information to be Provided in Application for a Pre-Assessment Certificate

1. Applicant Details

This section of the application form requires the personal details, job title, contact details and details of the individual’s capacity within the business to make the application.

2. Business Details

This section of the application form requests information about your business. This assists the FJC Unit to identify the legal entity that is applying for a Pre-Assessment Certificate. The details are necessary to confirm the identity of the legal entity and the status of that entity and will ensure that multiple applications are not received from the same legal entity.

3. Employer’s Compliance History with Workplace Laws

This section of the application asks you to disclose whether the business has had any adverse rulings or enforceable undertakings in the past three years, in any Australian jurisdiction.

You are required to only report on adverse rulings and enforceable undertakings that relate to any breaches of employment, industrial relations or workplace health and safety law.

Appendix 3 - Fair Jobs Code Standards

Suppliers seeking to enter into threshold procurement contracts must comply with Standard 1 of the Code.

Suppliers seeking to enter into high value procurement contracts and Businesses seeking to apply for significant business expansion grants must comply with all of the FJC Standards.

Where the Pre-Assessment Certificate Application focuses on compliance with FJC Standard 1, the FJC Plan / FJC Plan Addendum focuses on compliance with FJC Standards 2 to 5.

A FJC Plan / FJC Plan Addendum, is required to be submitted to the relevant Victorian Government Agency, and sets out how the Supplier or Business will address IR, OHS requirements and commitments and standards as required by the Code.

The FJC Standards apply only to the extent that they are not inconsistent with Commonwealth or State laws.

Standard 1 of the Code: Compliance with applicable employment, industrial relations and workplace health and safety obligations

As part of the Pre-Assessment Certificate application process, the FJC Unit will review information about the applicant’s compliance with all applicable employment, IR and OHS laws and the regulations made under any of those laws.

This requires a Supplier or Business to demonstrate in its application that it has complied with all applicable employment, IR and OHS laws.

For Suppliers and Businesses in Victoria, the applicable laws include:

• 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.

Suppliers and Businesses must also comply with any regulations or instruments made under any of the Acts listed above.

If the Supplier or Business operates outside of Victoria, it must demonstrate that it complies with the equivalent applicable laws and regulations in other States and Territories of Australia including but not limited to the following:

Standard 2: Promote secure employment and job security

Suppliers and Businesses can demonstrate compliance with Standard 2 of the Code by providing evidence in their FJC Plan / FJC Plan Addendum that they have:

• endeavoured to engage workers directly and on a permanent basis wherever possible;
• only entered into arrangements for the provision of labour hire services with a provider who is licensed under the Labour Hire Licensing Act 2018 (Vic);
• ensured employees’ terms and conditions of employment comply with legal obligations under Australian immigration and migration law and any conditions of the employee’s working visa;
• reflected secure employment arrangements in their organisational policies; and
• policies, procedures, plans and/or systems in place to ensure that they do not knowingly or recklessly misrepresent an employment relationship or a proposed employment arrangement as an independent contracting arrangement.

Standard 3: Foster cooperative and constructive relationships between employers, employees and their representatives

Suppliers and Businesses can demonstrate compliance with Standard 3 of the Code by providing evidence in their FJC Plan / FJC Plan Addendum that they have:

• allowed employees to actively participate in and be represented by the industrial organisation or association of the employees’ choice, subject to applicable laws;
• strived to make reasonable allowances for employees and bargaining representatives to participate in enterprise agreement negotiations;
• processes in place to consult with employees and employees’ representatives about major workplace changes that are likely to have a significant effect on the employees, subject to applicable laws;
• processes in place that allow all employees the opportunity to attend meetings with union, health and safety or employee representatives, and access to noticeboards, email or other communication facilities to facilitate communication between workers and/or employee representatives regarding work matters, subject to applicable laws; and
• recognised validly elected union workplace delegates or employee representatives and have processes in place that allow communication between employees and their representatives subject to requirements under applicable laws.

Standard 4: Foster workplace equity and diversity

Suppliers and Businesses can demonstrate compliance with Standard 4 of the Code by providing evidence in their FJC Plan / FJC Plan Addendum that they have:

• complied with anti-discrimination and equal opportunity laws; and
• demonstrated a commitment to equity and diversity in their organisational practices.

Standard 5: Promote supply chain compliance

Suppliers and Businesses can demonstrate compliance with Standard 5 of the Code by providing evidence in their FJC Plan / FJC Plan Addendum that they:

• have taken reasonable steps to ensure that direct subcontractors in relation to a high value procurement contract or significant business expansion grant, comply with all applicable employment, IR and OHS obligations; and
• in relation to a high value procurement contract, only enter into a subcontracting arrangement with subcontractors that also have a Pre-Assessment Certificate, unless the value of the subcontract is less than $10 million (exclusive of GST).