The new VPS Agreement introduces several significant changes. Over the next four years as its provisions are implemented and tested, the full impact of these changes will become clear. Victorian Government agencies covered by the VPS Agreement should familiarise themselves with these key changes to ensure compliance and effective implementation. We have highlighted the key changes below, including those that are likely to have the biggest impact on day-to-day operations for departments and agencies.
Key operational changes
Right to disconnect
To reflect recent amendments to the Fair Work Act 2009 (Cth) (FW Act) that will shortly commence operation, clause 44 of the VPS Agreement recognises an employee’s right to disengage from work and refrain from engaging in work-related communications and activities outside of their working hours and during periods of leave or rostered days off.
Employees may still be contacted outside of their working hours where it is reasonable to do so (eg., emergency situations, genuine welfare matters, etc).
Where out-of-hours work is anticipated to be a feature of an employee’s role, we recommend noting this in the employee’s contract or position description to ensure the expectation is well understood.
Management of misconduct
The VPS Agreement retains the existing arrangements from the 2020 Agreement, with a notable addition concerning access to dispute resolution during misconduct processes (outlined in clause 27).
If an employee is notified of a misconduct investigation against them, they are entitled to access dispute resolution within eight weeks of being formally informed of the investigation (except where the delay is beyond the employer’s control).
This change increases the pressure on employers to advance investigations more swiftly and may necessitate careful consideration of when to start an investigation.
Flexible work
The Victorian Public Service Commission (VPSC) has introduced a Flexible Work Policy that applies to all VPS employees, including executives. While the Policy does not form part of the VPS Agreement, it underscores a strong commitment to the provision of flexibility for every employee, regardless of whether the employee is entitled to a Flexible Work Arrangement under the FW Act.
Where an employee requests a change to their usual working arrangement in accordance with the Flexible Work Policy, clause 8 of the VPS Agreement now provides that the employer must give the request genuine consideration and provide a response within a reasonable timeframe. Where the request cannot be accommodated, the employer should provide reasons and explore whether alternative forms of flexibility may be able to be accommodated.
If, during the life of the VPS Agreement, it is proposed that the Flexible Work Policy be amended, clause 8 also requires that the Community and Public Sector Union (CPSU) – a bargaining representative for the VPS Agreement and an organisation covered by it – will be consulted prior to amendments being implemented.
Union encouragement
Clause 85 of the new VPS Agreement establishes arrangements for employees to be made aware of their right to join a union. This right is already enshrined in the 2020 Agreement.
Under the new VPS Agreement, employees are to be made aware of this upon commencement of employment through the induction process.
Use of fixed term employment
Clause 18 of the VPS Agreement has been updated to align with recent amendments to the FW Act. Under the new VPS Agreement, the use of fixed-term employment is effectively limited to emergency situations, specialist roles, surge workforces, and filling temporary vacancies.
Fixed term engagements in the same or substantially similar position which exceed three years will trigger new conversion rights to ongoing forms of employment under the VPS Agreement (subject to limited exemptions).
It is likely that the biggest impact will be felt by delivery agencies who engage employees in project-based roles on a fixed-term basis (relying upon clause 17.3(b)(iii) of the 2020 Agreement, which allowed for the use of fixed-term employment to undertake a specified task which is funded for a specified period). Under the new VPS Agreement, an arrangement of this nature may only arise where the employee is engaged to undertake “a distinct and identifiable task involving specialised skills” (per clause 18.3(d)).
Use of casual employment
Clause 19 of the VPS Agreement now includes casual conversion rights which are consistent with recent amendments to the FW Act. A casual conversion right may be enlivened where:
- a casual employee has been employed continuously for 12 months, the last 6 of which have been on a regular and systematic basis; and
- the employee could continue to work as a full or part time employee (as the case may be) without significant adjustment.
A request for casual conversion may be refused on reasonable business grounds.
Separately, casual entitlements to overtime and shift penalties have been clarified to ensure consistent application (clause 46).
Gender equality
Reproductive health and wellbeing leave
Clause 58 of the VPS Agreement creates a new leave entitlement: reproductive health and wellbeing leave. This is accessible for employees who are unable to work because they are suffering from one or more of a prescribed list of reproductive health and wellbeing conditions, including:
- endometriosis;
- polycystic ovary syndrome;
- menopause; and
- menstruation.
Employers may request the employee on each occasion to provide evidence that would satisfy a reasonable person of the employee’s entitlement to take reproductive health and wellbeing leave.
The entitlement allows for up to five days’ paid leave per annum where their balance of accrued personal/carer’s leave has reduced to fifteen days or fewer. This leave is non-cumulative from year-to-year, pro-rata for part-time employees, and not paid out upon cessation of employment.
Gender affirmation leave
The 2020 Agreement stipulated that any available gender affirmation leave had to be used within a 52-week period. The new VPS Agreement, as outlined in clause 65, has removed this time restriction.
Superannuation and parental leave
Clause 41 of the VPS Agreement now requires employers to make superannuation contributions for up to 104 weeks during paid and unpaid primary caregiver parental leave, up from the previous 52 weeks. This extension also covers other accrued leave and flexible work periods.
Shift workers and parental leave
Clause 43.5 ensures that shift workers on paid primary caregiver parental leave receive the same shift allowances they would have earned if they were working. This also applies to those on additional paid secondary caregiver parental leave.
Changes to leave arrangements
Qualifying period for paid parental leave
The new VPS Agreement, under Clause 62, removes the previous 3-month qualifying period for paid parental leave that was in the 2020 Agreement.
Eligible Employees are now entitled to parental leave immediately on commencement of employment.
Cashing out annual leave
Under clause 51, employees can now elect to cash out annual leave more than once during the life of the VPS Agreement, removing the restriction from the 2020 Agreement.
However, the existing limitations on the eligibility to cash out annual leave remain unamended.
Personal/carer’s leave
Clause 56 of the VPS Agreement now aligns with the FW Act’s “reasonable person” test for evidence of personal/carer’s leave. It also offers more flexibility for employees with chronic illnesses, who no longer need to provide evidence for every absence related to their condition.
Long service leave
Employers may now consider short breaks in service as part of continuous service for the purpose of transferring accrued leave and other entitlements between VPS employers (clause 20).
Remuneration and progression
Salary and allowance increases
Clause 32 of the VPS Agreement provides for four annual wage increases of 3%, effective from 1 May of each year. Monetary-based allowances will be increased by the same amount and at the same time.
The first salary and allowance increases will be back paid from 1 May 2024, and will be made as soon as reasonably practicable after the VPS Agreement commences operation.
Employees covered by the VPS Agreement and employed by their employer on 28 June 2024 are entitled to a one-off lump sum payment of $5,600, regardless of length of service (clause 33). This entitlement:
- extends to Regular Casual Employees, but not other Casual Employees;
- is prorated for part-time employees, Regular Casual Employees, and employees on unpaid leave; and
- is superannuable and taxed at the applicable income rates.
Shift workers
Employees covered by the VPS Agreement, employed as a shift worker, and employed by their employer on 1 October 2024 will be entitled to a further one-off lump sum payment of $1,000, regardless of length of service (clause 34). This entitlement:
- extends to Regular Casual Employees, but not other Casual Employees;
- is prorated for part-time employees, Regular Casual Employees, and employees on unpaid leave; and
- is superable and taxed at the applicable income rates.
Performance development and progression
The existing performance development and progression arrangements from the 2020 Agreement are maintained, with one minor change to clause 31 of the Agreement.
The top of grade or value range payment paid to those employees assessed as having met their progression criteria and who are already at the top of their grade or value range will be increased from 1% to 1.5%.
Other notable amendments
- There is now a standalone clause for managing an employer’s genuine concerns about an employee’s capacity to undertake their duties. This was previously located in the personal/carer’s leave clause. (clause 57).
- Clarified arrangements for reimbursing reasonable relocation expenses when an employee permanently changes their usual work area (clause 21).
- Updated procedures for recovering overpayments to ensure compliance with the Financial Management Act 1994 (Vic) (clause 37).
- A review of the emergency management provisions from the 2020 Agreement will continue, aiming to be completed within 12 months of the new VPS Agreement's commencement date (clause 78).
- The Fair Work Commission has confirmed that the workplace delegates’ rights clause contained within the Victorian Public Service Award 2016 is taken to be part of the VPS Agreement. Clause 84 of the Agreement therefore has no effect.
Agency-specific arrangements
A range of changes to terms applying to specific workforce cohorts have been made. These can be found in agency-specific appendices to the VPS Agreement. VPS employers should check whether an appendix applies to it and ensure it complies with any additional requirements.
Best practice employment commitment
The Victorian Government and the CPSU have agreed to a Best Practice Employment Commitment (BPEC), which does not form part of the VPS Agreement but outlines a number of important measures with regard to the operationalisation of the VPS Agreement, including:
- A commitment to undertake a feasibility study to jointly explore whether new or alternate ways of working or arranging ordinary working hours could be implemented for some or all of the workforces covered by the VPS Agreement;
- Guidelines in respect of reasonable additional hours and the circumstances when an employer should grant time in lieu to employees classified at VPS grade 5 or above; and
- An agreed process for resolving issues of compliance with the common policies which underpin the operation of the key provisions of the VPS Agreement.
The BPEC will commence operation alongside the new VPS Agreement.