Victorian Public Service Enterprise Agreement 2020

The annus horribilis of 2020 saw a number of important cases handed down which involve and have implications for various parts of the Victorian public sector.

This article is part of a series on Victorian Public Sector Employment: Approaching 2021 with 2020 vision.

Also in this series:

• Limitations and learnings from litigation
• Industrial implications arising from the amalgamation of Victoria's fire services
• Occupational health and safety update

The new Victorian Public Service Enterprise Agreement (VPS EA) was approved by the Fair Work Commission on 2 October 2020 after a round of bargaining which took place against the backdrop of the COVID-19 pandemic and significant government intervention at state and federal level – both in terms of stimulus measures and public health restrictions.

This context is reflected in the outcome of negotiations, especially in relation to the "mobility principles" and "mobility payment" in clauses 15 to 16 of the VPS EA. Together, these provisions are aimed at promoting workforce mobility and ensuring VPS employees can be responsively deployed to support changing government priorities.

It will be very interesting to see how the mobility provisions play out this year and for the life of the VPS EA. For example, many VPS employees have been seconded to other agencies as part of the government's short-term response to COVID-19, e.g. to assist with contact tracing efforts.

Wages

In contrast to some of the bargaining outcomes (and wage freezes) in other jurisdictions, the new VPS EA provides for an 8% increase in base salary over the life of the agreement. Further, depending on an employee's classification level, the four lump sum mobility payments will result in most employees receiving an additional 5% increase to their overall remuneration.

This is perhaps a generous outcome given the government's competing priorities and the general level of uncertainty employers are facing. However, the quid pro quo is a reduction in operational and mobility barriers between public service agencies and the development and implementation of a capability framework to facilitate better matching of employee capabilities and agencies' operational needs.

Other content

The VPS EA is much longer than the VPS Agreement 2016 (470 pages compared to 360 pages). Some of the extra length comes from the insertion of a new Part dedicated to flexible working arrangements and other flexibility mechanisms scattered throughout the agreement. Again, it will be very interesting to see how these provisions are utilised in practice and how they interact with provisions regarding consultation, secure employment, usual place of work, and so on.

Other key changes in terms of VPS EA content include enhanced paid parental leave entitlements for both primary and secondary carers (clause 55), and the introduction of "gender pay equity principles" (clause 28) to reinforce the reporting requirements under the Gender Equality Act 2020 (Vic).

Amongst other things, the gender equality clause requires agencies to identify and implement strategies to eradicate ongoing pay gaps in terms of base salary, bonuses, access to overtime, allowances and superannuation. Further, individual employees and unions can raise disputes relating to systemic gender equality issues, which led to the dispute resolution procedure applicable to disputes of a collective character.

Technical issues

The approval decision of Gostencnik DP includes some interesting technical points about the operation of the slip rule under s 602 of the FW Act in relation to errors identified during the ballot period, and the scope of the tribunal's discretion to waive minor procedural or technical errors under s 188(2)(a): see [2020] FWCA 5215.

Another technical issue that may arise over the coming months is the status of the distinctive consultation arrangements under clause 11 of the VPS EA. The recent decision of a Full Court of the Federal Court in Teekay Shipping v Auld¹ casts doubt over the enforceability of the bespoke consultation procedure in this regard.

Implications for other jurisdictions

Over the past 12 months, many Australian Public Service agencies have opted to make a Determination under the Public Service Act 1999 (Cth) rather than commence negotiations for a new agreement. The positive bargaining outcome in Victoria may see renewed pressure on federal government agencies to return to the bargaining table in 2021.

The latest iteration of the VPS EA is notable for breaking new ground and establishing new standards in relation to paid parental leave for secondary carers, remote working arrangements, gender pay equity issues and entrenching workforce mobility. These aspects of the deal will likely feature in COVID-normal negotiations.

Predictions and recommendations

• The Victorian Public Sector Commission and Industrial Relations Victoria are working on updating "common HR policies" with a view to publishing priority policies in the first half of 2021.
• Agencies may face challenges responding to requests for flexible work arrangements in a systematic, efficient and consistent way.
• The status and effect of aspirational clauses (e.g. clause 7.5) may be contentious, especially in the context of mobility and (re)training requirements.
• The renegotiation period for the Disability Services Enterprise Agreement Victoria 2018-22 will kick off in or about September 2021, marking the next phase of the partnership model between the Victorian Government and the Health Services Union. Negotiations will be carried out under the auspices of the Department of Families, Fairness and Housing, following the recent split of the Department of Health and Human Services.

Read next:

• Limitations and learnings from litigation
• Industrial implications arising from the amalgamation of Victoria's fire services
• Occupational health and safety update

¹ [2020] FCAFC 206.