A new enterprise agreement for public servants in Victoria

The Victorian Public Service Enterprise Agreement 2024 (Agreement) came into operation on 19 August 2024, bringing a number of key changes for public sector employers and Victorian public sector agencies.

Annual salary increases of 3% (clause 32)

Employees will receive annual salary increases of 3% effective from 1 May each year (up from 1% to 1.5% under the previous agreement).

Right to disconnect (clause 44)

A new "Right to Disconnect" has been introduced, reflecting recent changes to the Fair Work Act 2009 (FW Act) that were adopted by the Fair Work Commission (Commission) when it varied 155 modern awards to include a right to disconnect term.

In applying the "better off overall test", the Commission must now assess any right to disconnect clause in an enterprise agreement against the equivalent provision in the underlying modern award.

The right in the Agreement contains four elements:

1. Employers must respect employee periods of leave.
2. An employee must not be expected to routinely perform work outside of the employee’s working hours, other than in an emergency, incident response situation or in relation to genuine welfare matters.
3. An employee will not be penalised or otherwise disadvantaged for refusing to attend to work matters outside of the employee’s working hours or their agreed ordinary hours under a flexible arrangement, unless their refusal is unreasonable in the circumstances.
4. Subject to items 2 and 3 above, an employee is not required to monitor, read or respond to emails, messages or phone calls outside of their working hours unless the employee is required by the employer to be on standby or has been directed by the employer to perform overtime.

Fixed term employment (clause 18) and casual employment (clause 19)

The Agreement has also been updated to reflect recent changes to the FW Act which limit the use of casual and fixed term employment.

The FW Act prevents an employer from contracting with an employee for more than two years, or more than one contract extension, unless an exception applies. The Agreement takes this prohibition further by prohibiting fixed term employment of any duration, subject to certain exceptions as incorporated at clause 18.3. The exceptions at clause 18.3 are broadly aligned to the exceptions in the FW Act (and include where the contract is for a distinct task involving specialised skills, or to replace an employee during a temporary absence).

Under clause 18.4, where a relevant exception applies under clause 18.3, a fixed term appointment must still not exceed a maximum of three years unless it fits into a further category of exemption under clause 18.4. Additionally, clauses 18.5 and 18.6 of the Agreement now include a process whereby an employer must make an offer of ongoing employment to the employee unless there are reasonable business grounds not to do so, or in exceptional and unforeseen circumstances.

In respect of casual employment, the Agreement includes new provisions relating to casual conversion. Relevantly, an employer must make an offer of ongoing employment (unless there are reasonable business grounds to not make an offer) if:

• the employee has 12 months' continuous service and has been employed on a regular and systematic basis for at least the last six months; and
• the employee could continue to work as a full-time or part-time employee without significant adjustment.

These clauses are augmented by a "Secure Employment" provision at clause 17 which provides that an employer will give preference to ongoing employment over casual and fixed term arrangements where possible.

Disputes relating to allegations of misconduct (clause 27.14(b)(i))

An employee subject to a misconduct investigation may now bring a dispute when an allegation of misconduct has not been made within eight weeks of the employer having formally advised the employee that it is taking steps in accordance with clause 27.7(a) except where the delay is beyond the employer’s control. The change encourages employers to act and ensure no delay between advising an employee that a misconduct process is being commenced and putting allegations to the employee.

Bonus for employees who meet progression criteria (clause 31.3)

Employees at the top of their grade range and assessed at the end of the performance cycle as having met their progression criteria will be eligible for a further pay increase of 1.5% (up from 1% under the previous agreement) in lieu of a progression.

Qualifying period for paid parental leave (clause 62.3)

Eligible employees are now entitled to 16 weeks of paid parental leave without having to have completed three months' continuous service.

Personal and carer's leave evidence requirements relaxed (clause 56.9)

Employees taking personal leave no longer have to provide a medical certificate or evidence of attendance at a medical appointment from a registered practitioner to be paid personal leave, but must provide evidence that would satisfy a "reasonable person" of their entitlement. Similarly, in order to take carer's leave, an employee must provide evidence that would satisfy a "reasonable person" of their entitlement (previously an employee had to provide documentary evidence).

Cashing out annual leave (clause 51)

Employees may now cash out their annual leave more than once during the lifetime of the Agreement (under the old agreement annual leave could be cashed out once).

Short breaks in service

An employee's period of probation is reduced by any period of continuous employment in the Victorian public sector, immediately preceding the commencement of employment, including any fixed term employment but not including casual employment.

The new Agreement provides that in determining whether there has been a break in service, the employer will reasonably consider short breaks between periods of service. A short break in service, including one caused by a pattern of work, will be treated as if there had been no break in service, provided the employee advises the previous and new employers prior to ceasing employment, where practicable.

Changes to leave entitlements

Employees may now substitute Australia Day for another day of leave (clause 55.5(b))

Casual employees are now entitled to 10 days' paid family violence leave and 10 days of unpaid family violence leave (clause 59.6).

Eligible employees may take up to five days of paid leave per year if they cannot work due to reproductive health issues (including endometriosis, polycystic ovary syndrome, complications with pregnancy, menopause and menstruation) (clause 58).

Superannuation contributions for primary caregiver parental leave (Clause 41.5)

The 52-week cap on superannuation contributions has been removed. An employee who returns to work at the conclusion of a period of primary caregiver parental leave is now entitled to have superannuation contributions made in respect of their leave, where this leave occurs within 104 weeks of the commencement of their initial period of primary caregiver parental leave.

For more information, get in touch with Lander & Rogers' Workplace Relations & Safety team.