Public Sector Industrial Relations Policy Manual 2010 by ayk16691

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									Public Sector Industrial Relations

         Policy Manual




              2010




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                                                                                                                                          Index:

Industrial Relations Environment:

Preamble ................................................................................................................................................... 4
Introduction .............................................................................................................................................. 6
Role of agencies, departments and committees ........................................................................................ 8



Agreement Making:

Good Faith Bargaining ........................................................................................................................... 11
Policy Principles underpinning agreement making ................................................................................ 13
Agreement making: budget funded agencies .......................................................................................... 19
      Funding policy underpinning enterprise bargaining in the budget sector ........................................ 19
      Departmental funding model ........................................................................................................... 20
      Process requirements ....................................................................................................................... 20
Agreement making: non- budget funded agencies.................................................................................. 23
      Principles re cost beneficiality......................................................................................................... 23
      Process requirements ....................................................................................................................... 24
Salary sacrifice of member contributions to public sector defined benefit superannuation schemes ..... 26
Constitutional limitations ....................................................................................................................... 28
Dispute resolution................................................................................................................................... 29
Work and family ..................................................................................................................................... 31
Public Holidays…………………………………………………………………………………………33



Building relationships:

Public Sector Industrial Relations Committee ........................................................................................ 35
Right of entry / deduction of union fees ................................................................................................. 37
Legal advice and assistance .................................................................................................................... 39


Managing Disputation:

Public sector industrial action................................................................................................................. 41


Redundancy and other matters:

Redundancy, redeployment and retrenchment........................................................................................ 45



                                                                                                                                                           2
Termination of employment ................................................................................................................... 51
      Operational Reasons ........................................................................................................................ 52
Employee entitlements on transfer ......................................................................................................... 54


Attachments:

Attachment 1: Victorian Public Sector Industrial Relations Framework Agreement ............................ 58
Attachment 2: Options for managing individual arrangements ............................................................. 64
Attachment 3: Declaration confirming date in-principle agreement reached ........................................ 68
Attachment 4: Non Budget Funded Agencies enterprise bargaining pro forma submission ................. 69
Attachment 5: Model Enterprise Agreement Dispute Resolution Clause.............................................. 72
Attachment 6: Victorian Public Sector Family Provisions Standard………………………………..…76
Attachment 7: VPS Redeployment Policy ............................................................................................. 88




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                                         Industrial Relations Environment:

Preamble

Workforce Victoria, in the Department of Innovation, Industry and Regional Development, is
responsible for coordinating public sector industrial relations for the Victorian Government.

The Public Sector Branch, located within Workforce Victoria, supports the development of
high performing, cooperative and fair workplaces throughout the Victorian public sector. To
achieve this it works closely with the Department of Premier and Cabinet, the State Services
Authority and the Department of Treasury and Finance as well as departments and agencies
and public sector unions. Responsibilities include:


       providing advice to the Minister for Industrial Relations on industrial relations issues;

       monitoring and advising on major cases before various industrial courts and tribunals;

       examining, advising and facilitating Government approval of public sector enterprise
        agreements;

       providing advice and assistance to public sector agencies; and

       representing the government as employer in the public service.


Through the coordinating process Workforce Victoria aims to support public sector
departments and agencies in their efforts to improve flexibility and efficiency in workplaces.
This is to ensure department and agency personnel are familiar with and operate within the
parameters of government industrial relations policy.

Since 2005, the Victorian Government‟s policy in relation to public sector industrial relations
has been articulated in this manual. Policy statements have been amended over time to reflect
changes in the national industrial relations system. The policy statements contained in this
edition have been updated to reflect the new requirements of the Fair Work Act 2009 (the FW
Act).

A significant change introduced by the FW Act is the removal of the prohibited content
restrictions in enterprise agreements and the introduction of the concept of permitted matters.
This means that enterprise agreements can contain matters pertaining to the relationship
between (a) the employer and the employees and (b) the employer and any union to be




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covered by the agreement. Permitted matters may include clauses in relation to deduction of
union dues, trade union training and workplace representation.

This manual and the policy statements contained within should be made available to all
appropriate personnel within departments and agencies. It is the responsibility of departments
and agencies to ensure that their industrial relations strategies and actions reflect Victorian
Government industrial relations policy. Any concerns or queries in relation to the application
of this policy manual should be referred to Workforce Victoria.

 Contact details               Street address                    Postal address
 Tel:    03 9651 9200          Workforce Victoria                Workforce Victoria
 Fax:    03 9651 9043          Level 33                          Public Sector Branch
                               121 Exhibition Street             GPO 4509
                               Melbourne        3000             Melbourne      3001




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                                           Industrial Relations Environment:

Introduction

The Government is committed to workplace relations based on consultation and cooperation.
It supports a system that provides a fair approach to bargaining as well as a safety net based
on fair minimum employment conditions.

Cabinet, mainly through the Expenditure Review Committee, is responsible for formulating
the policy framework under which industrial relations matters are to be addressed within the
public sector. It considers it important that a consistent approach to public sector industrial
relations be adopted by departments and agencies.

For the purposes of this policy manual, the term „departments and agencies‟ means all
departments and public sector bodies under the Public Administration Act 2004, other
Victorian legislation, public health services, schools and TAFE Institutes. Universities and
Institutes of Technology are specifically excluded, except for the TAFE divisions of the four
dual sector universities1.

The key principles underpinning the Government‟s approach to industrial relations are as
follows:

        promoting workplace relations based on consultation and cooperation between
         employers, employees and their unions;

        freedom for employees to join or not join a union and to be properly represented in the
         workplace;

        support and recognition of the role of Fair Work Australia as the primary independent
         umpire;

        support for the provision of modern awards as the effective safety net for all public
         sector employees;

        promoting collective bargaining with employees and their union representatives rather
         than individual bargaining;

        setting of wages and conditions through comprehensive collective agreements;
1
    A specific exemption applies to TAFE funded general staff.




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     non-executive employees to be covered by collective agreements;

     providing fair and comprehensive employment conditions in awards and agreements;

     ensuring the National Employment Standards provided for under the Fair Work Act
      2009 are applied in public sector workplaces, particularly where these standards are not
      met in existing agreements ; and

     supporting policies which enable employees to balance work and life


It is the responsibility of departments and agencies to ensure these key principles underpin
their industrial relations strategies and actions.




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                                        Industrial Relations Environment:

Role of agencies, departments and committees

This statement identifies the roles and responsibilities of departments and agencies in relation
to enterprise bargaining and other industrial relations matters in the Victorian public sector, as
well as the committee structures endorsed by Government, to facilitate and support the
making of agreements.

The roles and responsibilities and administrative arrangements outlined below have been put
in place by Government to ensure a consistent approach to public sector industrial relations
by departments and agencies.

Roles of departments and agencies
The roles and responsibilities of departments, agencies and central agencies in the negotiation
of enterprise agreements and other industrial relations matters are summarised as follows:

a)      Departments and agencies
           Departmental Secretaries are responsible for the overall management of industrial
            relations issues within their department and portfolio agencies (and associated
            projects). While Ministers will maintain constructive relationships with unions
            and employees to facilitate successful industrial relations outcomes they remain
            removed from formal negotiations.
           Portfolio agencies are responsible for operational matters.
           Departments and agencies are responsible for the development of management
            logs, funding options and the conduct of negotiations with relevant unions.
           Departments and agencies are expected to report to Cabinet on any industrial
            matter which may impact on Government policy, or have budgetary
            considerations, in order to obtain authority to conclude negotiations. Departments
            and agencies are to liaise with Workforce Victoria, the Department of Treasury
            and Finance („DTF‟) and the Department of Premier and Cabinet („DPC‟).


b)      Central agencies
           Workforce Victoria is responsible for ensuring that industrial relations risks are
            reduced and the Government‟s industrial relations policies are complied with by
            all departments and agencies.




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           DTF is responsible for the assessment of productivity/financial aspects of
            enterprise agreements and to ensure that they are managed.

           DPC considers whole-of-government implications arising from industrial
            settlements.


Roles of committees
The role and composition of the various committees responsible for the coordination and
approval of public sector enterprise agreements are:


a)      Expenditure Review Committee / Public Sector Industrial Relations Cabinet
        Committee
        The Expenditure Review Committee oversees all funding decisions and determines
        the allocation of state money. It is made up of senior Cabinet members including the
        Treasurer and is chaired by the Premier.

        From time to time, matters will be considered by the Public Sector Industrial
        Relations Cabinet Committee (PSIRC).


b)      Standing Committee
        The Standing Committee consists of DPC, DTF and Workforce Victoria Deputy
        Secretaries. The Standing Committee considers and endorses proposed management
        logs in the budget funded sector and final enterprise agreements in the budget and
        non-budget funded sectors. DPC endorsement is required only in respect of enterprise
        agreements from agencies with more than 200 employees, except in cases where
        agreements are referred to DPC by Workforce Victoria and/or DTF due to specific
        whole-of-government issues which require special consideration.

        Where the Standing Committee cannot reach agreement matters may be referred to
        the Expenditure Review Committee.


c)      Enterprise Agreement Coordination Committee
        The Enterprise Agreement Coordination Committee (Coordination Committee)
        supports the Standing Committee. The Coordination Committee consists of
        representatives of DPC, DTF and Workforce Victoria. The Coordination Committee
        meets weekly to consider and monitor management logs, negotiations, proposed
        agreements, costing and compliance with Government policies. The relevant
        department representatives will recommend approval or otherwise of management
        logs or enterprise agreements to the Standing Committee.



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d)   Departmental leadership groups
     Departmental Leadership groups may be convened to provide input and oversight of
     the negotiation of key enterprise agreements in the budget funded sector.
     Departmental leadership groups comprise representatives from Workforce Victoria,
     DTF and DPC, departmental representatives responsible for the enterprise agreement
     under consideration, as well as representatives from other departments where
     necessary.




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                                                             Agreement Making:

Good faith bargaining

The Government's industrial relations framework promotes workplace relations based on
consultation, cooperation and collective bargaining. It recognises the legitimate role of unions
in the workplace and the right of employees to have their interests considered.

Departments and agencies and their bargaining representatives must comply with section
228(1) of the FW Act which sets out six good faith bargaining requirements that all
bargaining representatives must follow:


     attending and participating in meetings at reasonable times;

     disclosing relevant information (other than confidential or commercially sensitive
      information) in a timely manner;

     responding to proposals made by other bargaining representatives in a timely manner;

     giving genuine consideration to the proposals of other bargaining representatives and
      reasons for any responses;

     refraining from capricious or unfair conduct that undermines freedom of association or
      collective bargaining; and

     recognising and bargaining with the other bargaining representatives for the agreement.


Intrinsic to the good faith bargaining provisions of the FW Act is the requirement to
„recognise‟ other bargaining representatives. Bargaining representatives are defined in section
176 of the FW Act to include employers, employer associations, unions entitled to represent
the industrial interests of an employee who is member in the workplace to be covered by the
agreement as well as any other person appointed as a bargaining representative of an
employee who will be covered by the agreement.

Good faith bargaining under the FW Act does not require bargaining representatives to make
concessions during bargaining or reach agreement on the terms that are to be included in the
agreement.

Departments and agencies and their bargaining representatives should familiarise themselves
with the full requirements relating to good faith bargaining in Part 2 – 4 of the FW Act.



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In addition to the good faith bargaining requirements of the FW Act, departments and
agencies and their bargaining representatives must continue to negotiate in a manner that
accords with the public sector good faith bargaining principles outlined below.


Principles
1.    Departments and agencies and their bargaining representatives should negotiate
      collaboratively with relevant unions and/or employees in an open and accountable way.

2.    Negotiations should be:


            approached in a cooperative and problem solving manner;

            focused as far as possible on common interests, objectives and long term gain for
             both parties; and

            based on integrity, honesty, courtesy and information sharing.


3.    Departments and agencies and their bargaining representatives should use mediation
      and conciliation as appropriate to resolve deadlocks.

4.    To facilitate productive negotiations unions should be given access to department and
      agency employees. Union delegates and officials should be provided access to facilities
      such as telephones, computers, e-mail, notice boards and meeting rooms in a manner
      that does not adversely affect service delivery and work requirements.

5.    When collective agreements are being considered and voted on by employees,
      departments and agencies must ensure that the integrity of the voting process is
      maintained at all times.

These principles have been amplified in the Public Sector Industrial Relations Framework
Agreement (see Attachment 1: Victorian Public Sector Industrial Relations Framework
Agreement).




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                                                             Agreement Making:

Policy principles underpinning agreement making

Government policy requires departments and agencies to negotiate collective enterprise
agreements with non-executive level employees and their unions. Departments and agencies
(including non-budget funded agencies) must not offer individual agreements to non-
executive employees. When negotiating enterprise agreements departments and agencies must
adhere to the industrial relations policy principles outlined below.

Policy Principles
Key elements of industrial relations policy in relation to agreement making are:

        Agreements must cover all non-executive level employees. Non-executive employees
         are those employees who do not fulfil the Government Sector Executive Remuneration
         Panel (GSERP) definition of executive and who receive a Total Remuneration Package
         (TRP) of less than $130,914* per annum, as adjusted from time to time. Agreements
         may provide, by agreement, options for employees with senior management or
         technical specialist responsibilities in receipt of a TRP of less than $130,914* per
         annum. These options are addressed in the policy statement Individual Flexibility
         Arrangements.

        Agreements should be comprehensive. It is recommended that where agreements seek
         to incorporate terms from other instruments, those terms are set out in full in the
         agreement, rather than incorporated by reference.

        Agreements must not contain subject matter that offends the constitutional limitations
         expressed in Re: AEU and Victoria v The Commonwealth. These limitations are
         outlined in the policy statement Constitutional Limitations.

        Departments and agencies are required to consider union/s requests for the making of a
         single-enterprise agreement (i.e. an agreement with two or more employers that are
         single interest employers) as provided for in Division 2, Part 2-4 of the FW Act. Prior
         to responding to the request, departments and agencies are to forward these requests
         and their proposed response to the Minister for Industrial Relations (through Workforce
         Victoria) and the relevant portfolio Minister for their consideration. In any submission
*
    Correct at July 2009




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     seeking the relevant approval, departments and agencies would be expected as a
     minimum to specify the following:

     -   the employers who will be covered by the agreement;
     -   the employees who will covered by the agreement;
     -   the person (if any) nominated by the employers to make applications under the FW
         Act if the request for a single enterprise agreement is approved.
    The first pay increase in an agreement must operate prospectively and should not, other
     than in exceptional circumstances, predate the nominal expiry date of the previous
     agreement.

    Departments and agencies are required to submit a separate application to Workforce
     Victoria to lock in the operative date for the first pay increase. The operative date for
     pay increases can be no earlier than the date in principle agreement is reached between
     the negotiating parties. A template application is contained in Attachment 3:
     Declaration by agency head confirming date in-principle agreement reached.

    Agreements must accord with Government industrial relations policy on issues such as
     dispute resolution procedures, consultation, redundancy, agreement making and family
     provisions. Please refer to other policy statements in this manual for more detail.

    The FW Act provides that if an enterprise agreement does not include a flexibility term
     (section 202) or a consultation term (section 205) then the model terms provided in the
     regulations are to be taken to be a term/s of the agreement. Departments and agencies
     are advised to refer to other policy papers in this manual in relation to flexibility and
     consultation clauses.

    Agreements must not result in reductions in services or increases in charges.

    Departments and agencies must be sensitive to pay increases and other agreement
     provisions which could create flow pressures for other public sector agencies.

    Processes must be established to regularly monitor implementation of agreements to
     ensure that stated objectives are being achieved by the parties.

    Departments and agencies should discuss enterprise agreement proposals, written or
     otherwise, with Workforce Victoria before commencing negotiations with employees
     and their unions. Workforce Victoria should be provided with regular advice and
     updates on the progress of negotiations.

Any exemptions from the above policy principles require Government approval and must be
based on exceptional circumstances.




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Departments and agencies (including non-budget funded agencies) must also adhere to the
relevant funding policies and agreement approval processes outlined in the policy statements,
Agreement making: budget funded agencies and Agreement making: non-budget funded
agencies.




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                                                         Agreement Making:

Managing individual flexibility arrangements

The Government's industrial relations framework supports the primacy of collective
bargaining for non-executive employees and their bargaining representatives.

The Government, however, recognises the need for public sector employers to achieve
flexibility in the terms and conditions of employment of senior managers, technical
specialists, members of the executive management team and non-executive employees with
work/life balance needs.

The FW Act introduces new provisions requiring that all new enterprise agreements include a
flexibility term.


Overview of flexibility requirements under the Fair Work Act 2009

Division 5 of Part 2 – 4 of the FW Act deals with the mandatory terms of enterprise
agreements relating to individual flexibility arrangements. Flexibility terms are intended to
facilitate the tailoring of work arrangements that address the genuine work/life balance needs
of employees.

The model flexibility term is provided in Schedule 2.2 of the Fair Work Regulations which
allows an employer and employee to come to an “individual flexibility arrangement” (IFA) to
vary the effect of terms of an agreement dealing with arrangements about when work is
performed, overtime rates, penalty rates, allowances or leave loading.

Flexibility arrangements must be genuinely agreed to by the employee and employer.

Section 202 of the FW Act provides that if an enterprise agreement does not include a
flexibility term, the model flexibility term in the regulations is taken to be a term of the
agreement.

Workforce Victoria has developed a model flexibility clause (see Attachment 2: Individual
flexibility arrangements model clause). This clause may be used by departments and agencies
to address the requirements of the FW Act. Flexibility arrangements for senior managers or
technical specialist employees, discussed below, are also provided in the attachment.


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Flexibility arrangements           for   senior    managers       or   technical    specialist
employees

The Government Sector Executive Remuneration Panel (GSERP) defines executives as Chief
Executive Officers (irrespective of remuneration) and senior managers who have significant
responsibility and a Total Remuneration Package (TRP) of $130,914* per annum or more, as
adjusted from time to time. A TRP comprises a salary component including employer
superannuation contributions and non cash items such as the value of private use of a vehicle,
computer, mobile phone, etc.

Chief Executive Officers and senior managers receiving a TRP of $130,914* per annum or
more are to be employed on GSERP sanctioned employment arrangements, except as
indicated below. Similarly, those employees who are technical specialists and who are in
receipt of a TRP of $130,914* per annum or more should also be party to arrangements
similar to GSERP contract terms, except as indicated below.

In some sectors, such as health and emergency services, executive management and technical
specialists in receipt of a TRP of $130,914* per annum or more may continue to be covered
by modern awards or enterprise agreements.

All other employees must be covered by an award or enterprise agreement. However, an
agreement may provide the following options for employees with executive management or
technical specialist responsibilities in receipt of a TRP of less than $130,914* per annum:

a)         An enterprise agreement with an addendum covering executive or specialist technical
           employees with customised terms and conditions;

b)         A separate enterprise agreement for these employees; or

c)         A flexibility term as per the model developed by Workforce Victoria (see Attachment
           2: Individual flexibility arrangements) within an enterprise agreement. This allows
           certain individual arrangements for executive managers and technical specialists to
           operate to the exclusion of specified terms of the agreement. Such arrangements must
           result in the employee being better off overall compared with the standard agreement


*
    Correct at July 2009




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        or award entitlements. Any dispute in this regard will be dealt with through agreed
        dispute resolution procedures and may ultimately be referred to Fair Work Australia
        for determination.

Contact Workforce Victoria for clarification of the use of individual flexibility terms.




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                                                             Agreement Making:

Agreement making: budget funded agencies

When negotiating enterprise agreements, budget funded agencies must adhere to the funding
policy and agreement approval processes outlined below.


Funding policy underpinning enterprise bargaining in the budget funded sector

The wages funding policy endorsed by Government is based on the following principles:

a)   Agreements must achieve quantifiable and sustainable productivity/efficiency to fund
     agreement outcomes, including on-costs that exceed the annual adjustments to
     departmental budgets under the departmental funding model.
b)   Details of any negotiated, quantifiable, savings initiatives should ideally be identified in
     the agreement.
c)   There is no ceiling on outcomes, although an overall average annual increase of 2.5 per
     cent per annum (before on-costs) funded through the departmental funding model to
     maintain agreement outcomes in line with projected CPI increases should be used as a
     guide. Any further increases above 2.5 per cent must be directly funded by real,
     bankable, productivity cost offsets.
d)   Funding can be sourced from productivity savings and/or savings from the
     implementation of good management practices. The capacity of a department to fund
     wage increases above the 2.5 per cent provided under the departmental funding model
     must be demonstrated to Government at the time of seeking funding strategy approval
     (see Process Requirements below).
e)   Government approval needs to be sought for measures that result in a reduction in
     service delivery or price increase(s).
f)   In exceptional circumstances, if a department or agency expects that it will not be able
     to fund sustainably a proposed agreement, the relevant Minister must submit a business
     case to the Expenditure Review Committee 12 months before the start of negotiations
     for a new agreement. The submission would:

          request a price review be undertaken by the Departments of Treasury and Finance
           (DTF);

          outline a business case which supports the request;




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           demonstrate prima facie that cost increases flowing from the proposed agreement
            outcome cannot be managed within the entity‟s total budget without adverse
            impact on service delivery; and

           guarantee that any additional revenue provided arising from a price review will
            not be available until the relevant agreement is lodged with Fair Work Australia.



Departmental funding model

The wages funding policy is consistent with the principles of the departmental funding model.
Under the model the Government determines the level and total price of services.
Departments and agencies are responsible for ensuring delivery of agreed services within the
Government‟s desired parameters and managing the associated costs. The price will be
increased over time by an approved escalation factor to maintain alignment with estimated
movements in the rate of inflation.

The model allows departments to take account of individual circumstances in realising
productivity. Overall, the model enables greater funding certainty for departments over the
forward estimates period and provides incentives for better risk and productivity management
across Government. This includes the management and funding of enterprise agreement
outcomes and the retention by departments of any realised productivity gains.

Given there is no longer a wages contingency under the model, it is important that budget
funded departments and agencies position themselves to fully fund enterprise agreement
outcomes covered by this policy.

Process requirements

The following policy applies to budget funded sector enterprise agreements other than those
covering the public service, nurses, teachers and police.


a)    Six months before the start of negotiations

           Departments and agencies are required to obtain the approval of the Standing
            Committee for a management log six months in advance of the nominal expiry
            date of any existing enterprise agreement.

           Departments and agencies are to use the Expenditure Review Committee
            submission format when submitting management logs for approval.




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         Submissions should be signed at the level of Deputy Secretary. Three signed
          submissions should be provided to Workforce Victoria in the first instance for
          distribution to DTF and the Department of Premier and Cabinet (DPC).

         DPC endorsement is required only in respect of enterprise agreements from
          agencies with more than 200 employees, except in cases where agreements are
          referred to DPC by Workforce Victoria and/or DTF due to specific whole-of-
          Government issues which require special consideration.

         Disputes about the approval of a management log can be brought by the
          sponsoring portfolio Minister to the Expenditure Review Committee for
          resolution.

b)   The negotiation process

         Negotiations are to be conducted by the department or agency in consultation
          with Workforce Victoria, with DTF where necessary, providing financial advice.

         Departmental leadership groups may be convened if necessary.

c)   Once in-principle agreement is reached

         Departments and agencies are required to obtain the approval of the Standing
          Committee. Departments and agencies must not proceed to an employee ballot
          until the agreement has received final Government approval.

         Final agreement submissions should be based on an ERC submission format.

         Submissions should be signed at the level of Deputy Secretary. All signed
          submissions (three copies) should be provided to Workforce Victoria in the first
          instance for distribution to DTF and DPC.

         Departments and agencies are also required to submit a separate application to
          Workforce Victoria to lock in the operative date for the first pay increase. The
          operative date for pay increases can be no earlier than the date in principle
          agreement is reached between the negotiating parties. A template application is
          contained in Attachment 3: Declaration by agency head confirming date in-
          principle agreement reached.

         The Standing Committee will recommend final agreements for approval to the
          Premier, Treasurer and the Minister for Industrial Relations, with the exception of
          those covering key occupational groups such as public servants, police, teachers
          and nurses, which will need ERC approval.




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        Actual pay increases cannot be made until the agreement is approved by
         Government and Fair Work Australia.

        Any agreement outcomes that do not comply with Government policy (such as
         retrospectivity, supplementary funding etc – please refer to the policy statement
         Policy principles underpinning agreement making) will need to considered and
         approved by the ERC.

Table 1 below summarises the main points of the governance arrangements:

Table 1: Governance arrangements

    Stages               Budget-funded agreements

    6 months prior to
                         Deputy Secretary Standing Committee, on advice from Enterprise
    the start of
                         Agreement Coordination Committee, approves management log.
    negotiations

    Negotiations
                         Conducted by Department/Agency in consultation with Workforce
                         Victoria and DTF. (Departmental leadership groups convened if
                         necessary.)

    Agreement
                         The Premier, Treasurer and Minister for IR approve agreement on
    Reached
                         recommendation of the Standing Committee of DPC, DTF and
                         Workforce Victoria Deputy Secretaries – following consideration by
                         the Enterprise Agreement Coordination Committee
      ERC considers management logs which are outside established policy and those relating to
      the major occupational groups i.e. public service, teachers, nurses and police.




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                                                              Agreement Making:

Agreement making: non-budget funded agencies

When negotiating enterprise agreements, non-budget funded agencies must adhere to the
financial policy and agreement approval processes outlined below.

Principles about cost beneficial agreements
Agreements must be cost beneficial over the life of the agreement, i.e. all salary increases and
other costs must be fully offset by quantifiable savings. Agencies will be required to
demonstrate that the funding of costs associated with their agreements accords with sound and
sustainable financial practices. The funding of agreement costs should include quantifiable
savings sourced from good management practices, improved productivity/efficiency, and/or
improved work practices. Details of any negotiated quantifiable savings initiatives should
ideally be identified in the actual agreement.

In complying with Government‟s policy requirement concerning cost savings, agencies may
also consider the benefit of cultural change and organisational renewal fostered by
cooperative and partnership approaches with employees and their unions.

In exceptional circumstances, this broader, long term approach may be appropriate where an
agency considers it is not possible to achieve an agreement which is directly cost beneficial in
the short term using the „ledger‟ approach or in the case where traditional industrial trade-offs
have largely been covered in earlier agreements. It may also be appropriate for a „green
fields‟ type agreement.


In seeking approval of agreements which are not fully cost beneficial agencies are required to:
     articulate the features of the agreement;

     show how initiatives will lead to improved service delivery or business performance;

     articulate the reasons why the savings emanating from the agreement may not meet all
      the costs.

Agencies need to complete an overall analysis linked to their business plan in order to:
     indicate the value added to the organisation resulting from the agreement;
     demonstrate how the business plan will be achieved;




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     provide details of previous measures undertaken to ensure cost benefits and their impact
      and why further opportunities to achieve cost savings are not available or are limited;
     indicate to the responsible portfolio department and the Department of Treasury and
      Finance (DTF) how the cost impact of the agreement will be addressed.

The other existing requirements for any non-budget funded agency enterprise agreement still
need to be met. That is:
     consistency with Government policy (i.e. broad wage outcomes, no retrospectivity,
      relationship with unions, etc);
     consistency with any pricing policy Government has established for the sector; and
     the agreement must not impair the sustainability of the agency (including the ability to
      pay an appropriate return to Government on assets, i.e. no decrease in dividend paid).

Process requirements

The following process aims to achieve a seamless transition between old and new enterprise
agreements as well as minimise the pressure for claims for retrospective payments.
     At least nine months before the expiry date of enterprise agreements, agencies are to
      contact Workforce Victoria to discuss the need to conduct any preliminary or
      preparatory activities before formal discussions with employees and unions commence.
      Existing agreement may specify earlier timeframes.
     Agencies are to liaise with Workforce Victoria regularly during negotiations towards a
      new agreement. Workforce Victoria will monitor progress leading up to an agreement
      and offer assistance where necessary.
     Once in-principle agreement is reached a submission by the responsible department (in
      the form of Attachment 4: Non budget funded agencies enterprise funded agencies
      enterprise bargaining pro forma submission) is required for assessment by Workforce
      Victoria, DTF and DPC.
     DPC endorsement is required only in respect of enterprise agreements from agencies
      with more than 200 employees, except in cases where agreements are referred to DPC
      by Workforce Victoria and/or DTF due to specific whole-of-government issues which
      require special consideration.
     In addition, agencies are required to submit a separate application to Workforce
      Victoria to lock in the operative date for the first pay increase. The operative date for
      pay increases can be no earlier than the date in principle agreement is reached between
      the negotiating parties. A template application is contained in Attachment 3:
      Declaration by agency head confirming date in-principle agreement reached.




                                                                                                24
     If the in-principle agreement complies with the policy requirements concerning
      workplace bargaining outlined previously and the Standing Committee subsequently
      supports it, the submission will be submitted to the Minister for Industrial Relations for
      approval.
     Where the Standing Committee does not support a submission or part of a submission,
      the responsible portfolio Minister may decide to submit the matter to the Expenditure
      Review Committee for consideration. It is therefore important that a submission
      comprehensively addresses the policy requirements.
     Departments and agencies must not proceed to an employee ballot until the in-principle
      agreement has received final Government approval.
     Actual pay increases cannot be made until the agreement is approved by both
      Government and FWA.

If an agency is unsure whether it is categorised as non-budget funded agency (it may, for
example, receive a level of direct or indirect funding) or if an agency would like clarification
of this or any other matter, it should contact Workforce Victoria for advice.




                                                                                             25
                                                           Agreement Making:

Salary sacrifice of member contributions to public sector defined
benefit superannuation schemes

Departments and agencies in enterprise bargaining negotiations may offer defined benefit
fund salary sacrifice into State Superannuation Fund (SSF) and the Emergency Services and
State Super fund (ESSS) defined benefit funds.

If a budget funded sector department or agency proposes to make such an offer it must
include in its management log to be submitted to the Standing Committee, a business case
that demonstrates the potential for a “value for money” trade off for the salary sacrifice
benefit.

The business case should include the following information:

     proportion of the workforce in a public sector benefit superannuation scheme and at
      each member contribution rate;

     estimated financial benefit to members at each contribution rate;

     estimated costs associated with the introduction of salary sacrifice; and

     stage at which salary sacrifice will be offered to fund of member during negotiations.


If fund members use salary sacrifice to increase their level of contributions,
department/agency superannuation expenses will be higher. This is because the higher
member contributions purchase an increased benefit. However that increases is only partly
funded by the member‟s own increased contributions.

The Superannuation Policy Unit at the Department of Treasury and Finance (contact number
below) may be able to assist in compiling the information required for the business case.

Budget sector funded departments and agencies will be required to satisfactorily demonstrate
a “value for money” outcome when the Premier, Treasurer and Minister for Industrial
Relations consider the in-principle agreement.

Non-budget funded agencies will need to submit the above business case when they seek
Government approval of their in-principle agreement.




                                                                                               26
The clause in the enterprise agreement that provides for defined benefit fund salary sacrifice
must state that the benefit will only be available following a declaration by the Minister for
Finance under the relevant Victorian superannuation legislation.

Upon approval of the agreement by Fair Work Australia, departments and agencies will need
to write to the Minister for Finance seeking the required Ministerial Declaration.

Other defined benefit funds

This policy only addresses salary sacrificing into the SSF and the ESSS. These funds are
exempt public sector superannuation schemes which are governed by State legislation. Some
departments and agencies may have employees in other defined benefit funds (e.g.
Healthsuper, VisionSuper) which may, or may not, accept salary sacrifice contributions.
Employers contemplating offering salary sacrifice to defined benefit funds other than the SSF
and ESSS should check with the relevant fund to see whether it accepts salary sacrifice
contributions. If so, the employer should then discuss the matter with the Department of
Treasury and Finance Superannuation Policy Unit (9651 5776 or 9651 2218).




                                                                                           27
                                                           Agreement Making:

Constitutional limitations

The Government is committed to co-operative workplace relations, including consultation
with employees and their unions on matters affecting their employment. Departments and
agencies should regularly consult with affected employees and their unions and give prompt
consideration to matters raised.

Certain constitutional limitations recognised by the High Court may become relevant in this
context, including Re:AEU and Victoria v The Commonwealth. In these decisions, the High
Court identified an implied “States‟ rights” constitutional limitation, confirming that the
Commonwealth could not make laws that would impair the States‟ capacity to function as
governments.

The High Court has determined that federal awards or agreements cannot apply to persons
engaged in higher levels of Government such as Ministers, ministerial assistants and advisers,
heads of departments, high level statutory office holders, parliamentary officers and judges.
Federal awards or agreements may apply to other public sector employees subject to the
limitations outlined below.

The implied limitation prevents FWA from making public sector awards or agreements which
bind the public sector with regard to matters including:

     number and identity of persons to be employed;

     qualifications and eligibility for employment;

     term of appointment of such persons; and

     number and identity of persons to be made redundant.


Departments and agencies must continue to observe these constitutional limitations when
formalising awards and agreements. Departments and agencies should also familiarise
themselves with the constitutional limitations relating to genuine redundancies in the
Termination of Employment policy statement. Contact Workforce Victoria for any
clarification needed of the relationship between these limitations and consultation clauses.




                                                                                               28
                                                            Agreement Making:

Dispute resolution

The Government supports the role of FWA as an independent industrial tribunal and
comprehensive collective agreements which include detailed processes for resolving
workplace disputes.

While the Government promotes the resolution of workplace disputes at the workplace level it
acknowledges that not all disputes can be resolved without some external assistance.
Accordingly, departments and agencies should provide for dispute resolution procedures
which enable FWA to resolve disputes.

Overview of dispute resolution requirements under the Fair Work Act 2009

While the FW Act requires all enterprise agreements to include procedures for settling
disputes about matters arising under an agreement and in relation to the National Employment
Standards, these procedures (as distinct from the policy position set out below) do not need to
include the involvement of FWA.

In order to access conciliation and arbitration by FWA, the parties to an agreement must
confer these powers on FWA by making specific provision for this in the dispute resolution
clause of their enterprise agreements.


Action required of departments and agencies

Departments and agencies must include in their enterprise agreements dispute resolution
processes that are fair and transparent and which confer powers of conciliation and arbitration
on FWA in the event that a dispute (including a dispute relating to the National Employment
Standards) cannot be resolved at the workplace level. Dispute resolution clauses in public
sector agreements must provide for an external process of conciliation and arbitration by
FWA.

A model dispute resolution clause incorporating the key aspects of the Government‟s policy
can be found in Attachment 5: Model Enterprise Agreement Dispute Resolution Clause.

Departments and agencies are free to tailor their dispute resolution clause to suit their own
requirements; however, the clause must clearly specify the internal and external processes




                                                                                            29
including the role of FWA. The following principles must be reflected in dispute resolution
processes in enterprise agreements:

     the process must be clear and concise;

     the parties must genuinely attempt to resolve the dispute at the workplace level;

     if a dispute cannot be resolved at the workplace level the parties must genuinely attempt
      to resolve it at each further stage of the dispute resolution process;

     the parties must cooperate to ensure that dispute resolution processes are carried out
      expeditiously;

     work should continue in accordance with usual practice while the dispute resolution
      processes are being followed. If an employee has a reasonable concern about an
      imminent risk to his or her health or safety, the employee must advise the employer and
      not unreasonably fail to comply with a direction by his or her employer to perform
      other available work that is safe and appropriate; and

     no party is to be prejudiced in the final settlement of the dispute by the continuance of
      work in accordance with usual practice.


In order to be effective the clause must clearly specify the role of FWA during conciliation
and arbitration and provide that:

     during the conciliation stage FWA has discretion on how the conciliation will be
      conducted and has authority to make recommendations to the parties;

     if the dispute cannot be resolved through conciliation the matter can be arbitrated,
      unless it is a matter covered by the Re: AEU constitutional limitations; and

     during arbitration FWA has discretion as to how it conducts the arbitration, as well as
      authority to make determinations that the parties are committed to accepting.


Contact Workforce Victoria for any clarification needed in relation to dispute resolution
clauses.




                                                                                            30
                                                             Agreement Making:


Work and family

The Government is committed to promoting and implementing family friendly work practices
to achieve the benefits of assisting employees balance the responsibilities and demands of
work and family.

Departments and agencies are encouraged to adopt family friendly work practices and to
recognise their benefits. These include:

     increased productivity and stronger economic growth;

     availability of a wider pool of skilled labour, particularly among women and older
      workers;

     greater capacity to address labour and skill shortages and attract and retain skilled
      workers;

     greater scope to develop and realise the full potential of the workforce, new
      technologies and innovative work practices;

     less stress and better health; and

     more cohesive and caring communities which support families.


Given the potential for financial and productivity outcomes arising from the introduction of
work and family initiatives at the workplace level, departments and agencies are encouraged
to analyse and measure the productivity benefits of these clauses in enterprise agreements and
include and highlight these benefits in the submission seeking Government approval of an in-
principle agreement.

The Government's commitment to work and family balance is detailed in the Action Agenda
for Work and Family Balance. Details of this agenda and other developments, initiatives and
information can be found in the „ways2work‟ section of the Business Victoria website on
www.ways2work.business.vic.gov.au/employers




                                                                                           31
Victorian public sector family provisions standard

A Family Provisions Standard is provided as part of the Public Sector Employment (Award
Entitlements) Act 2006. The standard is based on the Family Provisions Test Case decision
handed down in August 2005.

Departments and agencies must abide by the parental leave, carer‟s leave and compassionate
leave provisions provided for as part of the National Employment Standards under the FW
Act.

Workforce Victoria has developed a parental leave, a persona/carer‟s leave and a
compassionate leave model clause for use by departments and agencies (see Attachment 6:
Work/Family model clauses) in new agreements.

The model clauses provide guidance as to what is required in a public sector enterprise
agreement, with reference to the Family Provisions Standard as provided for in the Public
Sector Employment (Award Entitlements) Act 2006 and the requirements of the FW Act.


Paid Parental Leave

The Family Provisions Standard and the National Employment Standards deal with unpaid
parental leave. The model parental leave clause developed by Workforce Victoria includes an
optional paid leave sub-clause for departments and agencies that have negotiated a paid
parental leave component.




                                                                                        32
                                                           Agreement Making:

Public Holidays

The Public Holidays Act 1993 (Vic) („the Public Holidays Act’) sets out the public holiday
entitlements of Victorian employees. In addition, the FW Act provides for minimum
standards relating to public holidays as part of the National Employment Standards. Public
sector employers are required to comply with both Acts as well as any applicable public
holiday provisions in modern awards or enterprise agreements that cover their employees.

Outlined below are the key elements of the FW Act and the Public Holidays Act.

Days observed as public holidays in Victoria

Under the FW Act and Public Holidays Act, Victorian employees are entitled to the following
public holidays:

   New Year‟s Day, 1 January                        Queen‟s Birthday
   Australia Day, 26 January                        Melbourne Cup Day, the first Tuesday in
   Labour Day, the second Monday in                  November
    March                                            Christmas Day, 25 December
   Good Friday                                      Boxing Day, 26 December
   Easter Saturday
   Easter Monday
   Anzac Day, 25 April

Victorian employees are also entitled to the following additional or substitute days:

     When Christmas Day is a Saturday or a Sunday, a holiday in lieu shall be observed on
      27 December.

     When Boxing Day is a Saturday or a Sunday, an additional holiday shall be observed
      on 28 December.

     When New Year‟s Day is a Saturday or a Sunday, an additional holiday shall be
      observed on the next Monday.

     When Australia Day is a Saturday or a Sunday, a holiday in lieu shall be observed on
      the next Monday.




                                                                                           33
     When Anzac Day falls on a Sunday in 2010, a holiday in lieu shall be observed on
      Monday 26 April.

     When Anzac Day falls on Easter Monday in 2011, a holiday in lieu shall be observed
      on Tuesday 26 April.


While all public sector employees are generally entitled to the public holidays listed above,
the FW Act provides that modern awards or enterprise agreements may include terms
allowing for the substitution of the above listed public holidays for a day or part day agreed to
by the employer and employees. In addition, further substitute or additional days may be
declared or prescribed from time to time by order of the Victorian Government and published
in the Government Gazette as provided under the Public Holidays Act.

Request to work on public holidays

The FW Act provides that an employer may ask an employee to work on a public holiday if
the request is reasonable. However, an employee may refuse the employer‟s request to work
if the request is not reasonable or the refusal is reasonable. Section 114 lists those matters that
must be taken into account in determining whether such a request to work, on a public holiday
is reasonable.

Public holidays may be subject to change. Contact Workforce Victoria or refer to the Public
Holidays Act on the Business Victoria website for further information.




                                                                                                34
                                                           Building relationships:

Public Sector Industrial Relations Committee

The Government has endorsed a Victorian Public Sector Industrial Relations Framework
Agreement („the Framework Agreement‟) with public sector unions, a full copy of which is
provided in Attachment 1: Victorian Public Sector Industrial Relations Framework
Agreement.

The Framework Agreement reflects a commitment by the Government and unions to
cooperation and more systematic and meaningful forms of engagement.

A central element of the Framework Agreement is the establishment and operation of an on-
going Public Sector Industrial Relations Committee („the Committee‟) to facilitate peak level
consultation, dialogue and information exchange.

The Committee, which meets on a monthly basis, is an important mechanism through which
Government and unions share relevant information and consider Government and union
policies and priorities at the broadest level.

The scope of discussion includes:

     the economic outlook for Victoria;

     policy objectives and service delivery priorities;

     processes for making and reviewing industrial agreements and decision-making and
      management of disputation;

     generic public sector workforce development issues and workforce needs;

     processes and protocols for the provision and validation of information in negotiations;

     identifying and enhancing capacity to negotiate industrial agreements and manage
      industrial issues;

     a joint commitment to expedite the processing of agreements; and

     other related issues.


The Committee has an agreed Chair appointed by the Minister for Industrial Relations and
consists of representatives from the Department of Premier and Cabinet, the Department of


                                                                                            35
Treasury and Finance, Workforce Victoria, Victorian Trades Hall Council and all public
sector unions.

The Committee reports to the Minister for Industrial Relations.




                                                                                   36
                                                         Building relationships:

Right of entry / deduction of union fees

The Government's industrial relations framework promotes workplace relations based on
consultation, cooperation and collective bargaining. It recognises the legitimate role of unions
in the workplace and consistent with this the right of employees to have their interests
considered.

Right of entry

Right of Entry is a workplace right under the FW Act. As a minimum requirement
departments and agencies are to comply with the right of entry provisions of the FW Act. The
provisions of the FW Act in relation to right of entry are based on a system of permits issued
by FWA.

Part 3 – 4 of the FW Act deals with right of entry. This Part provides for Fair Work Australia
to issue a union official, on application, a permit allowing the official to enter a workplace.
Such permits are of a general nature and do not differentiate between employers, work sites or
awards. Once granted and unless revoked they have a life of up to three years or until the
individual to whom it was issued ceases his or her employment with the union concerned.

In addition, Part 8 of the Victorian Occupational Health and Safety Act 2004 gives authorised
representatives of unions a right to enter Victorian workplaces to enquire into suspected
breaches of the OHS Act 2004, or the regulations made under that Act.

Departments and agencies must permit duly accredited representatives of a union access to
the workplace for the purposes of investigating suspected breaches, for OH&S purposes or to
hold discussions with any employee who wishes to participate in those discussions, in
accordance with the above Acts.

Deduction of union fees

This policy concerns the payroll deduction of union membership fees by public sector
employers who have been approached by unions with requests to introduce such a facility.

The Public Sector (Union Fees) Act 1992 requires that departments and agencies must obtain
the approval of the Premier as the responsible Minister before implementing such an
arrangement.



                                                                                             37
Accordingly, departments and agencies seeking approval to implement payroll deductions
should present their requests in writing to the Secretary, Department of Premier and Cabinet,
who will arrange for their submission to the Premier.

Subject to the above approval, public sector employers may enter into arrangements for
payroll deduction of union membership fees where a formal Memorandum of Understanding
is signed by the employer and the union(s) detailing the terms of the arrangements or where a
suitable clause permitting the deduction is inserted into an enterprise agreement.

Where there is multiple union coverage of staff for which the payroll deduction arrangements
are to be made or where multiple unions are covered by a common enterprise agreement, all
unions must agree to the payroll deduction arrangements for the particular union seeking it
and sign a Memorandum of Understanding covering this or agree to the insertion of the
arrangements in an enterprise agreement.

Department and agency heads should also ensure that there is no breach of the freedom of
association provision of the FW Act.

Each employee must provide written authority to the employer to make the deductions
specifying the initial amount to be deducted. Any change to the initial specified amount to be
deducted must be notified to the employee by the employer or the union.

There must be agreement reached between the employer and the union as to who will notify
employees of any changes to the specified amount before the payroll deduction authority is
granted. These details should be stated in a Memorandum of Understanding or an enterprise
agreement.




                                                                                           38
                                                        Building relationships:

Legal advice and assistance

Government industrial relations policy requires the development of cooperative relations
between employers and employees and their unions. It recognises the legitimate role of
unions in the workplace and the right of employees to have their interests considered.

Departments and agencies should approach negotiations and other interaction with employees
and unions in a manner that respects this fundamental approach. The principles underpinning
this approach are outlined in the Good faith bargaining policy statement. According to this
policy, negotiations should:

     be approached in a cooperative and problem solving manner;

     focus as far as possible on common interests, objectives and long term gain for both
      parties;

     be based on integrity, honesty, courtesy and a sharing of information; and

     should use mediation and conciliation as appropriate to resolve deadlocks.


This approach is not limited to enterprise agreement negotiations. It should underpin all forms
of negotiations with employees and their unions.

Consistent with the development of cooperative relationships, departments and agencies are
requested to consider the appropriateness of limiting the use of lawyers to major or legally
complex issues.

As a general premise Workforce Victoria would expect that the use of lawyers by
departments and agencies would not be necessary in dealing with individual grievances or
disciplinary hearings. As far as practicable, individual grievances or internal disciplinary
hearings should be dealt with through established grievance and dispute settling procedures
by the relevant public sector department or agency.

Exceptions

It is acknowledged that there may be situations where departments and agencies consider it
appropriate to engage lawyers. Where lawyers do need to be engaged, as a general principle,
departments and agencies should not use costs as part of the negotiations for a settlement or



                                                                                            39
seek costs from either the employee or the union or in the case of unfair dismissals, (please
refer to the Termination of Employment policy statement) directly against a party to the
proceeding, unless the action is deemed to be vexatious by FWA or another tribunal or court.

Any inquiries regarding this matter should be directed to the relevant portfolio officer at
Workforce Victoria.




                                                                                          40
                                                         Managing Disputation:

Public sector industrial action

Departments and agencies are expected to respond quickly to industrial action and threatened
industrial action. Departments and agencies should also ensure that responses to industrial
action are appropriate and proportional to the action involved.

When determining a strategy to respond to industrial action, departments and agencies must
follow the policy outlined below as well as ensuring that Workforce Victoria is advised of the
details of the dispute and the proposed strategy for dealing with it.

Overview of industrial action provisions in the Fair Work Act 2009

Industrial action must not be organised or engaged in before the nominal expiry date of an
enterprise agreement. Further, industrial action by employees will only be protected if it is
endorsed in a secret ballot of employees held in accordance with a protected action ballot
order of FWA. Industrial action cannot lawfully be taken in support of pattern bargaining.

Division 9 of Part 3-3 of the FW Act makes it unlawful to make payments to employees in
relation to a period during which they engage in a stoppage of work. Industrial action may
include any stoppage of work and unauthorised absences from the workplace. Different
restrictions on payment apply for partial work bans and unprotected action.

The FW Act extends the operation of the common law „no work as directed/no pay‟ principle
by prohibiting an employer making, an employee accepting, or a union claiming, payments
for a period during which employees engage in a stoppage of work.

An employer cannot dismiss an employee, injure an employee in his/her employment or alter
the position of an employee to the employee‟s prejudice because the employee is proposing to
engage in, is engaging in, or has engaged in protected industrial action.

Industrial action under the FW Act does not include action sanctioned by the employer or
action by an employee based on a reasonable concern about an imminent risk to his/her health
and safety, provided that the employee does not refuse to perform other safe and appropriate
work. Employees in this category are entitled to continue to receive payments.




                                                                                             41
Action required of departments and agencies
a) Protected industrial action:
     i. Protected action ballot orders
         Departments and agencies are requested to promptly send to Workforce Victoria
         copies of any application to FWA by a union or employees for an order for a secret
         ballot to take industrial action and the result of the application.

         Where departments and agencies consider the circumstances justify challenging the
         granting of a secret ballot order, they are required to consult with Workforce
         Victoria and seek the approval of the relevant portfolio Minister and the Minister
         for Industrial Relations (though Workforce Victoria) before challenging the
         application.

     ii. Total stoppage of work
         Where there is a total stoppage of work during a period of protected action section
         470 of the FW Act requires departments and agencies not to pay those employees
         who have participated in the stoppage but only in relation to the actual period not
         worked. Departments and agencies must advise the relevant portfolio Minister and
         Workforce Victoria where such deduction occurs.

     iii. Partial work bans
         Where protected industrial action does not involve a complete withdrawal of labour
         but involves action such as bans and limitations, departments and agencies will
         need to make an evaluation as to whether the action being taken by employees is of
         such a nature as to constitute industrial action for the purposes of section 471 of the
         FW Act.

         If the department or agency believes the action does warrant application of section
         471, the prior approval of the relevant portfolio Minister and the Minister for
         Industrial Relations (through Workforce Victoria) is required before implementing
         procedures under that section, including the issuing of written notices to employees
         of intended reduction of payments. In any submission seeking approval,
         departments and agencies are expected to outline:

              why the action taken by employees warrants the application of section 471;

              what proportion of the employee‟s pay is intended to be deducted; and

              the method by which the proportion was determined.




                                                                                             42
         Workforce Victoria holds a detailed policy and procedural statement on these
         matters, including a guide for distribution to departmental and agency managers
         and supervisors. Please contact Workforce Victoria for advice.

     iv. Employer response action
         Where a department or agency intends to engage in „employer response action‟ as
         defined in section 411 of the FW Act, the prior approval of the relevant portfolio
         Minister and the Minister for Industrial Relations (through Workforce Victoria) is
         required.

     v. FWA orders suspending or terminating protected industrial action
         Where a department or agency intends to apply to FWA for orders to suspend or
         terminate protected industrial action the relevant portfolio Minister and Workforce
         Victoria must be advised.

b)   Unprotected industrial action:
     Under the FW Act unprotected action includes any industrial action before the nominal
     expiry date of an applicable enterprise agreement. Other forms of industrial action that
     are not protected action for the purposes of the FW Act are listed in section 409 and
     include any action in support of unlawful terms, pattern bargaining or demarcation
     disputes.

     Section 474 of the FW Act requires departments and agencies not to pay employees
     who have participated in unprotected industrial action. The minimum deduction is four
     hours pay even if the industrial action is for less than four hours. Separate provisions
     apply to overtime bans. Departments and agencies must advise the relevant portfolio
     Minister and Workforce Victoria prior to making such deductions.

c)   FWA orders stopping or preventing unprotected industrial action
     Where a department or agency intends to apply to FWA for orders to stop or prevent
     unprotected industrial action the relevant portfolio Minister and Workforce Victoria
     must be advised.

d)   Court action for injunction / enforcement orders / industrial torts
     Where a department or agency intends to apply to the courts to seek or enforce any
     order in relation to unprotected industrial action or for claims in the courts for industrial
     torts, the prior approval of the relevant portfolio Minister and the Minister for Industrial
     Relations (through Workforce Victoria) is required. A copy of the intended application
     must be forwarded to Workforce Victoria accompanying the approval request.



                                                                                               43
e)   Civil remedies in response to claims for payment
     The prior approval of the relevant portfolio Minister and the Minister for Industrial
     Relations (through Workforce Victoria) is also needed if a department or agency wishes
     to apply for a civil remedy in respect of any claim for payment during any period of
     industrial action.

f)   Pattern Bargaining
     While the FW Act does not actually ban pattern bargaining it does provide public sector
     departments and agencies with additional powers to take action against another
     negotiating party in situations of unprotected industrial action in support of pattern
     bargaining.

     If a department or agency is proposing to seek a court injunction in relation to pattern
     bargaining, the department or agency must first obtain approval from the relevant
     portfolio Minister and the Minister for Industrial Relations (through Workforce
     Victoria) before taking the action.




                                                                                          44
                                                Redundancy and other matters:

Redundancy, redeployment and retrenchment

Overview
The redundancy, redeployment and retrenchment policy seeks to assist in a fair and equitable
manner those employees in the public sector whose roles are declared surplus to needs. This
policy provides advice on two areas:


a) a policy statement of rights and principles relating to redundancy, redeployment and
      retrenchment; and

b) implementation guidelines for the policy including separation package details.


Eligibility
The provisions in this policy apply to the redundancy/termination process in Victorian public
sector agencies. The term „Victorian public sector agency‟ means all departments and public
sector bodies under the Public Administration Act 2004, public sector bodies under other
Victorian legislation, public health services, schools and TAFE Institutes. Universities and
Institutes of Technology are specifically excluded, except for the TAFE division of the four
dual sector universities2.

Continuous service includes all periods of service in any approved public sector agency,
provided there are no breaks between or within each period other than breaks caused by
approved leave and provided that no special separation payments have been made with
respect to any of these periods.

Continuous service for Voluntary Departure Package purposes refers to Victorian public
sector agency employment only. Employment with the Commonwealth, other States or local
government is not included.


Rights and principles

        The employee has a right to be consulted, to fair treatment and to have objective and
         non-discriminatory criteria applied consistently. Employers must ensure adequate
         policies and employment processes are in place to protect these rights.

2
    A specific exemption applies to TAFE funded general staff.


                                                                                           45
   Employees should be advised as early as possible of organisational changes, including
    the variety of management initiated outcomes that may ensue. If the changes are likely
    to result in surplus roles, the employer must ensure that employees are aware that they
    may end in retrenchments.

   An employee whose role has been declared surplus to needs is entitled to be considered
    for redeployment as a first step. Redeployment is a preferred outcome having regard to
    an employee‟s training, knowledge and background. To avoid any confusion an
    employee must be advised in writing of the actual date their role is declared surplus to
    needs, details of the redeployment process, and their rights and obligations. Pre-existing
    redeployment and salary maintenance arrangements continue.

   The redeployment approach for employees covered by the 2009 extended and varied
    Victorian Public Service Agreement 2006 is set out in Attachment 7: Victorian Public
    Service Redeployment Policy. In agencies not covered by the Victorian Public Service
    Agreement 2006 the entitlement to redeployment applies to internal redeployment only.

   No preference is to be given to any one category of employee over another, such as
    non-union members or union members, in relation to retention, termination or
    consultation. All being equal, criteria for determining which roles are to be declared
    surplus is to be disclosed.

   Senior executives on contracts are not entitled to compensation on termination.

   Casual and temporary employees are not generally entitled to redeployment and
    retrenchment benefits if their employment is terminated. Similarly, fixed term contract
    employees who have completed their term of engagement are not entitled to
    redeployment or retrenchment benefits. However, specific consideration may need to be
    given to individual cases involving long term casual employees or employees who have
    been employed on successive fixed term contracts.

   Separation package payments are affected where employees work part time.

   In accepting a Voluntary Departure Package, employees retire early and accept
    conditions relating to re-employment with the Victorian public sector. A three year re-
    employment restriction from the date of termination applies.

   The employer terminates employment under a Targeted Separation Package
    (retrenchment).

   The Government approved separation packages, the Voluntary Departure Package and
    the Targeted Separation Package, are benchmark standards and are not to be exceeded.



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Consultation

Prior to any public announcement of restructuring or other major change initiatives a process
of consultation with employees and their unions must occur.

Consultation is required where departments and agencies (employers) decide to restructure
the workplace, introduce new technology or change existing work practices which affect
employees. Employers are required to notify the employees and their unions of the proposed
changes as soon as practicable from the date of the decision. The likely effects on the
employees‟ responsibilities and working conditions are to be advised.

More generally, employers are to regularly consult with affected employees and their unions
and give prompt consideration to matters raised in order to ensure that change initiatives are
implemented with the involvement of all relevant parties in a spirit of consultation.

Support to Affected Employees

Employers are to ensure that employees affected by organisational change are provided with
support and assistance to consider and pursue the options available to them. The assistance
may include but is not limited to:

     counselling and support services,

     career planning,

     retraining,

     preparation of job applications,

     interview coaching,

     time off to attend job interviews,

     financial advice for all employees eligible to receive a package, and

     counselling and support services.


Retrenchment and redundancy packages

Two separation packages, the Voluntary Departure Package („VDP‟) and the Targeted
Separation Package („TSP‟) have been endorsed by Government. The VDP is an „early
retirement scheme‟ which may be offered in circumstances where larger scale structural
change or staff reductions are required. The TSP is a compulsory retrenchment package and
action of last resort.



                                                                                           47
Key features of the Voluntary Departure Package:

   The standard VDP comprises:

    –     4 weeks‟ pay in lieu of notice on cessation.

    –     A lump sum voluntary departure incentive of up to $10,000 (for a full time
          employee); plus 2 weeks‟ pay per year of continuous service up to a maximum of
          15 years.

    –     3-year restriction on re-employment in the Victorian public sector applies.
          However, in extraordinary circumstances, an agency head may approve earlier re-
          employment.

   The VDP is an early retirement scheme for taxation purposes attracting significant
    taxation concessions.

   Employers must obtain prior approval from the Australian Taxation Office (ATO)
    before conducting a VDP program. The ATO requires employers to establish the „bona
    fides‟ of individual programs before it will issue an individual Class Ruling.

   Employers must invite employees in an identifiable group within the organisation to
    express interest in receiving a VDP offer. Groups must be identified on the basis of
    objective criteria such as location, division or branch of the organisation, or job
    category or classification.

   „Redundant employees‟ are not an acceptable group to which a VDP program may be
    restricted. However, VDPs may be offered to an identifiable group, which includes
    employees whose roles are declared surplus to needs.

   Employers are not bound to accept any employee‟s expression of interest in a VDP or
    to offer any particular employee a VDP.

   Offers must be made on the basis of criteria established by the organisation which have
    regard to operational requirements and the availability of funding.

   Employees are not compelled to accept offers and may withdraw an expression of
    interest at any time prior to accepting an offer.

   The VDP is not appropriate to situations where there is no prospect of on-going work
    for employees whose roles are declared surplus to needs due to the winding-up of an
    organisation or facility. It is only applicable in circumstances where affected employees
    have a genuine choice as to whether they wish to voluntarily depart or remain as
    employees.


                                                                                          48
   Typical situations in which a VDP might be offered would include an overall reduction
    in employee numbers within a branch or division of an organisation to achieve budget
    targets; adjustment of employee numbers to reflect changes in work volume or the
    introduction of new technology and early preparation for a planned change in the mode
    of delivering the organisation‟s services. For example, plans may include reducing the
    existing number of employees as work practices and productivity levels are brought
    into line with industry standards.

   Recipients of a VDP are required to agree not to seek or accept re-employment or any
    other fee for service from any public sector employer for a minimum of 3 calendar
    years from the date of their termination. In extraordinary circumstances, an agency head
    may approve re-employment but there must be no undertakings made to this effect prior
    to an employee‟s departure as a VDP recipient.

   Employees must be on the payroll and in ongoing roles to be eligible for VDPs. Those
    not eligible include employees on unpaid leave, probation or trial, in fixed term
    (includes executives) or casual roles, as well as WorkCover recipients and essential
    services staff.

   The calculation of each week‟s pay is affected by part-time or former part-time work.

   The formulation is based on completed years of continuous service with the Victorian
    public sector only. Employment with the Commonwealth, other States or local
    government is not included.


Key features of the Targeted Separation Package

   The TSP is a bona fide redundancy scheme for taxation purposes. No prior approval is
    required from the ATO as long as it can be established that the separation was a bona
    fide redundancy.

   Decisions on which particular roles are declared excess or surplus must be made on
    objective, non-discriminatory criteria that are consistently applied. This is a key test in
    unfair dismissal claims.

   Departments and agencies should exhaust redeployment opportunities before applying a
    TSP.

   TSPs are not voluntary. They are compulsory retrenchment packages applied by the
    employer in circumstances where there is no opportunity for continued employment.




                                                                                            49
     Notice of termination via a TSP must be consistent with the period specified by the
      relevant award or agreement and given in writing, specifying the actual date of
      separation.

     The calculation of each week‟s pay is affected by part-time or former part-time work.

     TSPs should be used only in circumstances of bona fide redundancy. Bona fide
      redundancies will arise where facilities are closing, organisation are being wound up, or
      where employees‟ skills are no longer required in the public sector.

     The standard TSP comprises:

      –     4 weeks‟ notice (or pay in lieu of notice) on cessation.

      –     if the employee is over 45 years of age and has completed at least 2 years of
            continuous service, the notice period is increased by 1 week;

      –     2 weeks pay per year of continuous service up to a maximum of 10 years.


Both separation packages are Government benchmark standards and are not to be exceeded.
Departments and agencies should also familiarise themselves with the genuine redundancy
considerations in the Termination of Employment policy statement. For more information on
these policies, contact Workforce Victoria.

.




                                                                                            50
                                           Redundancy and other matters:

Termination of employment

Public sector employees are entitled to fair treatment and due process when employment is to
be terminated.

Departments and agencies should ensure they do not terminate an employee‟s employment
unless there is valid reason connected with the employee‟s capacity or conduct or the
termination is based on the operational requirements of the department or agency; for
example structural change leading to redundancy.

Departments and agencies should ensure that due process and procedural fairness are applied
to ensure that any termination is not unlawful or harsh, unjust or unreasonable. These
principles should also be applied to any actions that could lead to termination.

As a result of the Victorian referral of industrial relations matters to the Commonwealth, the
termination of employment provisions of the FW Act apply to Victorian employees. Subject
to constitutional limitations they also apply to the public sector (please refer to the
Constitutional Limitations policy statement).

The provisions of the FW Act, relevant employment agreements and federal awards must be
adhered to.

Requirements of the Fair Work Act 2009

The FW Act and its accompanying regulations provide that an employee may apply to Fair
Work Australia for relief in relation to a termination of employment on the ground that the
termination was harsh, unjust or unreasonable - unless the employee:

     was a non award or agreement employee who was paid an annual salary that exceeds a
      prescribed amount in accordance with the regulations;

     had not served the minimum employment period of 6 months employment in respect of
      large employers and 12 months employment in respect of small employers;

     was a trainee to whom a training arrangement applied;

     was a casual employee not employed on a regular and systematic basis;




                                                                                           51
       was engaged under a contract of employment for a specified period of time, specified
        task or season (where this was not entered into specifically to avoid the provisions of
        the Act); or

       any other additional exclusion as provided in the Fair Work Act regulations.


An employee‟s employment must not be terminated unless he or she has been given the
period of notice or pay in lieu as set out below or he or she is guilty of serious misconduct
such that it would be unreasonable to continue employment during the notice period.

The required minimum period of notice as provided in the National Employment Standards is:


    Employee‟s period of continuous service with the employer      Period of notice


    Not more than 1 year                                           At least 1 week


    More than 1 year but nor more than 3 years                     At least 2 weeks


    More than 3 years but not more than 5 years                    At least 3 weeks


    More than 5 years                                              At least 4 weeks


The minimum period of notice is increased by one week if the employee is over 45 years of
age and has completed at least 2 years‟ continuous service with the employer. Enterprise
agreements may provide periods of notice in excess of the NES.

In determining whether a termination was harsh, unjust or unreasonable, FWA must have
regard to whether there was a valid reason for the termination connected with the employee‟s
capacity or conduct or based on the operational requirements of the enterprise.

Departments and agencies which are subject to federal awards or agreements should also
comply with any specific additional provisions in those awards or agreements.

Genuine Redundancy
An employee is not unfairly dismissed if FWA is satisfied that the dismissal was a case of
genuine redundancy.

Section 389 of the FW Act provides that an employee‟s dismissal is a genuine redundancy if
the employer no longer required the employee‟s job to be performed by anyone because of
changes in the operational requirements of the enterprise and the employer has complied with
any obligation in an applicable modern award or enterprise agreement to consult about the
redundancy.



                                                                                            52
An employee‟s dismissal is not a case of genuine redundancy if it would have been
reasonable in all the circumstances for the employee to be redeployed within the employer‟s
enterprise or an associated entity.

If FWA is satisfied that the termination is a genuine redundancy it is precluded from
continuing to hear the matter further.

Departments and agencies should also familiarise themselves with the constitutional
limitations that also apply to the public sector.

These limitations do not prevent departments and agencies engaging in a consultation process
with employees and their unions when a decision has been made to restructure the workplace
or introduce new technologies or change existing work practices which affect employees.
Please refer to the Redundancy, Redeployment and Retrenchment policy statement.




                                                                                         53
                                            Redundancy and other matters:

Employee entitlements on transfer

The following principles apply to employees who may be affected by a transfer of functions
from the public service or the wider public sector to a private provider.

The Public Administration Act 2004 („the PAA‟) provides for transfers between the public
service and public sector entities on conditions that are no less favorable overall.

Situations where the private sector takes over functions currently performed by public sector
employees are unlikely to be a common occurrence. However situations may arise from time
to time in projects where responsibility for the delivery of existing ancillary services is
transferred to a private provider.


The principles outlined below will apply in circumstances where public sector employees are
required to change their employment status. The principles require that employment processes
ensure that employees are treated fairly and reasonably, that equal employment opportunity is
provided and that employees have an avenue of redress against unfair or unreasonable
treatment.

Departments and a large number of agencies are also bound by the public sector employment
principles under the PAA. Victorian public sector agencies that are not bound by the PAA are
expected to benchmark against the principles under that Act.

Any departures from this operating framework and principles will require the prior
endorsement of Government.

Principle (1) – consultation on change

Subject to the following paragraph, before any public announcement of any proposed change
that involves a transfer from public to private sector employment, or the implementation of
process mechanisms relating to the transfer, a process of consultation must occur. In
accordance with policy, departments and agencies are required to notify employees and their
unions of the impending change as soon as practicable from the date of the decision. Public
sector employers, generally, are also required to consult regularly with affected employees
and their unions and give prompt consideration to matters raised in order to ensure that




                                                                                          54
change initiatives are implemented with the involvement of all relevant parties in a spirit of
full consultation.
Departments and agencies also must adhere to their consultative obligations concerning the
implementation of change as contained in enterprise agreements, awards or as formalised in
local employee relations policies.

Principle (2) – employment offers

Where a project involves the private sector taking over certain services or functions currently
performed by employees in the public sector, the Government requires that the new provider
would make offers of employment to all or most of the pre-existing staff involved wherever
practicable. It is expected that in the overwhelming majority of cases offers of employment
would be made by the new provider.

This principle aligns with practice in the past where new providers have delivered public
sector functions. It is based on the premise that a new employer would do everything possible
to attract and employ existing public sector employees where practicable.

The intention of this principle is to minimise the number of public sector employees who
could potentially become redundant as a consequence of the particular project.

Such offers of employment would precede normal recruitment processes and would allow for
reasonable adjustment, including re-training, where employees selected may not meet all the
new job requirements.

Principle (3) – terms and conditions of employment

Where an employee accepts a final employment offer with the new provider he or she will be
employed on terms and conditions of employment which, in overall terms, will result in no
net disadvantage and are no less favourable than those applying before accepting the
employment offer.

The practical effect of this principle will require that the contractual terms between the
Government and the new provider should ensure current employment standards are
maintained.

This is also subject to the application of the transfer of business provisions of the FW Act or
any enterprise agreement reached between the employees and the new provider.

Employees who are members of accumulation superannuation schemes are able to either elect
to remain as members of their existing schemes or roll-over their accumulated benefit to a
complying fund made available by the new provider.


                                                                                            55
For members of defined benefit funds the issue of superannuation portability is more
complex. This would be decided on a case by case basis with guidance from the Department
of Treasury and Finance having regard to the principle of no net disadvantage to employees or
any increased exposure to the State due to continued membership of the fund. In addition
employees should seek independent professional advice and carefully consider their personal
circumstances.

Principle (4) – continuity of service for leave purposes

If the new provider makes a final employment offer to employees and it is accepted, the
public sector service of the employees will be regarded as being „continuous‟ for leave
purposes and employees will retain all service benefits associated with continuous service.

Furthermore, subject to the specific partnership arrangements agreed with the new provider,
employees may have the option of either:
     being paid out for any unused accrued annual leave, long service leave and rostered
      days off or reasonable amounts of time in lieu; or
     maintaining those leave balances with the new provider.

Consistent with Principle (3) above it is expected that the maintenance of existing terms and
conditions will be accompanied by a commitment by the new provider (again in accordance
with contractual terms) to recognise previous public sector service for the purposes of
transferring accumulated entitlements, such as sick leave, annual leave and long service leave.

In circumstances where continuity of employment applies and unused leave is transferred, it
would be expected that the new provider agrees to recognise public sector service in the
determination of any subsequent retrenchment payments.

Principle (5) – employees electing to remain in the public sector

Where employees either choose not to apply for a position or they reject an offer of
employment with the new provider, a redeployment process will begin as soon as practicable
to try and find them suitable employment elsewhere in the public sector.            This is in
accordance with the Government‟s separation package policy principles and would be
delivered under public sector redeployment processes.

Expressions of interest also may be sought from employees to participate in a Voluntary
Departure Package program, in according to Government policy standards.




                                                                                              56
In circumstances where employees are unable to be redeployed after a reasonable period they
will be retrenched under a Targeted Separation Package. Outplacement assistance would be
made available according to prevailing Government policy. All separation costs are to be met
from public sector employer funds.

Where there is a dispute between the parties regarding a potential retrenchment the decision
will be subject to an appropriate review.

Principle (6) – employees not offered jobs

Where final job offers to employees by the new provider are not made normal redeployment
processes are to be pursued.

In addition, expressions of interest may be sought from employees to participate under a
Voluntary Departure Package program, according to Government policy standards.

Where employees are unable to be redeployed after a reasonable period they will be
retrenched with a Targeted Separation Package. Outplacement assistance in accordance with
the prevailing Government separation policy will be made available.




                                                                                         57
                                                                        Attachments:

Attachment 1:  Victorian Public Sector Industrial Relations
Framework Agreement

PART A:        Introduction
1.   This agreement outlines a framework within which Government, its agencies and
     unions can engage cooperatively and productively.

2.   Government will encourage and expect funded sector agencies and contractors in
     receipt of Government funds for work performed for agencies, to apply the industrial
     relations principles detailed in this agreement.

3.   The union parties to this agreement are listed in the signature clause of this agreement.

4.   In this agreement the word:

          “agency” or “agencies” includes the departments, statutory authorities and
           agencies employing public sector employees.
          “contractors” means private sector organisations contracted by an agency to
           provide services for, or on behalf of that agency.
          “funded sector agencies”, means agencies which provide services to the
           community and are funded wholly or partly through a formal service agreement
           with an agency to do this. Funded sector agencies are often charitable, voluntary
           or community based.
          “union(s)” includes unions and employee association parties to this agreement.


PART B:        Principles / Objectives
5.   The parties commit to the following principles:

          fostering a relationship of openness, trust, mutual support and respect;
          improving the capacity and resources of agencies to meet the objectives and
           priorities established in Growing Victoria Together ;
          improving the quality and provision of services delivered to the people of
           Victoria;
          ongoing cooperation and consultation between Government and unions at the
           peak level;



                                                                                            58
         cooperative relationships between unions and management at the agency or
          workplace level and an improved capacity to manage industrial relations;
         collective negotiations (rather than individual bargaining) between management
          and unions;
         collective negotiations which enable problem identification, joint problem
          solving and a focus on long term mutual gains;
         the consistent implementation and application of agreements and the adoption of
          quality employment practices across the public sector;
         developing a progressive work culture which provides for good employment and
          management practices, opportunities for services to adapt to community needs,
          workforce skill enhancement and development which fosters, rewards and
          encourages excellence and leads to better paid and more satisfying jobs;
         developing sector wide standards on issues common across agencies where
          appropriate;
         recognising the legitimacy of unions and their workplace representatives and the
          encouragement of union membership;
         acknowledging that fiscal responsibility and sustainable industrial relations
          outcomes are high priorities;
         acknowledging that for unions the pursuit of their members industrial interests
          and the improved resourcing of quality public services will always be key
          priorities;
         ensuring consistent, fair and transparent processes across the public sector; and
         improving communication between Government, unions and their members.
         The parties recognise that the effective operation of these principles may require
          reviewing the structures and processes established by this framework from time
          to time. The parties agree that any changes will be pursued according to the
          above principles.
         The parties agree to a review of the operation of this agreement after 12 months.


PART C:       The application of the framework agreement

6.   The following describes the application of this agreement in relation to peak level
     engagement and consultation, negotiating agreements, managing industrial issues and
     discussing workplace change.


     Peak level engagement and consultation




                                                                                              59
7.    This framework reflects a commitment by the Government and unions to cooperation
      and more systematic and meaningful forms of engagement.

8.    A central element of the framework is the establishment and operation of an on-going
      Public Sector Industrial Relations Committee („the Committee‟) to facilitate peak level
      consultation, dialogue and information exchange.

9.    The Committee will be an important mechanism through which Government and unions
      share relevant information, and consider Government and union policies and priorities
      at the broadest level.

10.   The scope of discussion at this level includes:

           the economic outlook for Victoria;
           policy objectives and service delivery priorities;
           processes for making and reviewing industrial agreements and decision-making
            and management of disputation;
           generic public sector workforce development issues and workforce needs;
           processes through which agreement negotiations and consultation about proposed
            workplace outcomes are conducted within agencies and workplaces;
           processes and protocols for the provision and validation of information in
            negotiations;
           identifying and enhancing capacity to negotiate industrial agreements and
            manage industrial issues;
           a joint commitment to expedite the processing of agreements;
           other related issues.

11.   The Committee will consist of representatives from:

           the Department of Premier and Cabinet;
           the Department of Treasury and Finance;
           Workforce Victoria;
           Victorian Trades Hall Council;
           all public sector unions.

12.   Representation will be at departmental deputy secretary level and by senior union
      officials.

13.   The Committee will have an agreed Chair appointed by the Minister for Industrial
      Relations.



                                                                                          60
14.   The Committee will report to the Minister for Industrial Relations. Ministers, and in
      particular the Premier, Treasurer, Minister for Industrial Relations, and Minister for
      WorkCover should attend to brief the Committee on Government policy and objectives
      and to hear from the Committee.

15.   The Committee will meet monthly unless otherwise agreed by the Committee.


16.   The Committee may request other agencies and parties to attend.


      Negotiating agreements

17.   Negotiations should focus on securing agreements which:

          produce longer term and more strategically orientated outcomes that recognise
           the need to achieve more effective service delivery objectives;
          improve work practices, workforce planning and development;
          provide better paid and more satisfying jobs;
          provide training and skills development;
          secure reasonable hours;
          provide for job security;
          manage diversity;
          balance work and family commitments.

18.   The negotiation and agreement-making process will:

          involve agencies consulting with unions to develop comprehensive plans for the
           negotiation and content of agreements – this consultation should, where possible,
           commence one year before the expiry of existing industrial agreements;
          reflect commitments by the parties to negotiate in good faith;
          involve the provision and validation of relevant information by agencies to
           unions;
          involve the development of plans specifying innovation and resource
           requirements relating to service delivery and related workforce development
           needs and which reflect community expectations for the public sector;
          provide for outcomes which are sustainable and fiscally responsible and address
           the aspirations of employees and the needs of the community;
          reflect the joint commitment to the prompt processing of agreements;




                                                                                         61
           promote collective bargaining and workforce participation in agreement making
            through union membership.

19.   Agreement making shall endeavour to generate industrial agreements which are robust
      and include defined grievance and dispute settling procedures and other mechanisms
      capable of effectively addressing industrial issues which arise out of the implementation
      of agreements.

      Managing industrial issues and discussing workplace change

20.   The success of a cooperative approach is predicated on the capacity of agencies and
      unions to engage cooperatively, think in an innovative manner and manage industrial
      issues that arise at the workplace level.

21.   The parties commit to ensuring agencies and unions have the capacity to effectively
      manage industrial relations and undertake agreement making. Consideration of issues
      regarding capacity of parties will form part of the on-going functions of the Committee.

22.   Where appropriate, agencies or workplaces will be provided with support and advice to
      ensure negotiations and workplace industrial relations issues are managed in a manner
      consistent with the principles set out in this Framework Agreement.

PART D:         Provision of support and facilitation
23.   The Parties recognise that successful implementation of the principles requires the
      development and provision of supporting mechanisms to facilitate cooperation, assist
      agreement negotiations and aid the management of industrial issues as they arise.

24.   To achieve these outcomes, the Government, following consideration of any report
      from the Committee to the Minister for Industrial Relations, will:
           provide support and advice for individual agencies regarding the process of
            planning and negotiating agreements and workplace issues;
           consider accreditation of agencies to formal standards in workforce development
            and continuous improvement;
           consider a protocol for the collection, collation and validation of workforce and
            financial data and the provision and validation of relevant information;
           establish a process for identifying and reaching agreement over generic and
            workforce or employment issues.

25.   Each agency will have consultative arrangements which adhere to the principles
      contained in this agreement and which include:



                                                                                            62
   the facilitation of union representative involvement in those arrangements;
   adequate information and job release time to enable union representatives to play
    a meaningful role;
   trade union training leave for union representatives.




                                                                                  63
                                                                       Attachments:

Attachment 2: Individual flexibility arrangements model clauses

Below are two model clauses developed by Workforce Victoria. The first clause is a model
flexibility clause that may be used by departments and agencies to address the requirements
of the FW Act. The second clause may be used by departments and agencies to provide
flexibility arrangements for senior or specialist employees.

Refer to the Individual Flexibility Arrangements policy statement or contact Workforce
Victoria for clarification of the use of flexibility terms.

1       Individual Flexibility Arrangements
1.1     An employee and the employer may enter into an individual flexibility arrangement
        pursuant to this clause in order to meet the genuine needs of the employee and
        employer. An individual flexibility arrangement must be genuinely agreed to by the
        employee and employer.

1.2     An individual flexibility arrangement may vary the effect of one or more of the
        following terms of this enterprise agreement:
        [Insert reference to clauses in the agreement that are subject to existing or agreed
        flexible arrangements]

1.3     An employee may nominate a representative to assist in negotiations for an individual
        flexibility arrangement.

1.4     The employer must ensure that any individual flexibility arrangement will result in
        the employee being better off overall than the employee would have been if no
        individual flexibility arrangement were agreed to.

1.5     The employer must ensure that an individual flexibility arrangement is in writing and
        signed by the employee and employer. If the employee is under 18 the arrangement
        must also be signed by a parent or guardian of the employee.

1.6     The employer must give a copy of the individual flexibility arrangement to the
        employee within 14 days after it is agreed to.

1.7     The employer must ensure that any individual flexibility arrangement sets out:



                                                                                          64
      (a)     the terms of this enterprise agreement that will be varied by the arrangement;
      (b)     how the arrangement will vary the effect of the terms;
      (c)     how the employee will be better off overall in relation to the terms and
              conditions of his or her employment as a result of the arrangement; and
      (d)     the day on which the arrangement commences.


1.8   The employer must ensure that any individual flexibility arrangement:

      (a)     is about matters that would be permitted matters under section 172 of the
              Fair Work Act 2009 if the arrangement were an enterprise agreement;
      (b)     does not include any term that would be an unlawful term under section 194
              of the Fair Work Act 2009 if the arrangement were an enterprise agreement;
              and
      (c)     provides for the arrangement to be terminated:

              (i)     by either the employee or employer giving a specified period of
                      written notice, with the specified period being not more than 28 days;
                      and
              (ii)    at any time by written agreement between the employee and
                      employer.

1.9   An individual flexibility arrangement may be expressed to operate for a specified
      term or while the employee is performing a specified role (such as acting in a
      specified higher position). Such an arrangement will terminate on expiry of the
      specified term or when the employee ceases to perform the specified role unless
      terminated earlier on notice or by agreement.

2     Senior Manager/Technical Specialist Agreements draft clause

2.1   The employer and an employee (designated as a senior management officer/technical
      specialist) / (occupying or acting in a position classified at or above (insert)) may
      enter into an individual agreement pursuant to this clause 2 (a Senior
      Manager/Technical Specialist Agreement).

2.2   The employee may nominate a representative to assist in negotiations for a Senior
      Manager/Technical Specialist Agreement.

2.3   A Senior Manager/Technical Specialist Agreement must be recorded in writing and
      signed by the parties. A copy must be provided to the employee.




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2.4   The terms of a Senior Manager/Technical Specialist Agreement will have effect as
      terms of this agreement and will prevail to the extent of any inconsistency over the
      terms of this document other than this clause 2, provided that this results, on balance,
      in the employee being better off overall under the individual agreement than under
      (this document/the (insert title of relevant agreement(s)).

2.5   (Optional clause) Subject to clause 2.4, a Senior Manager/Technical Specialist
      Agreement may, for example:

      (a)     exclude the operation of specified provisions of this document such as those
              dealing with rates of pay, allowances, expenses, overtime rates, penalty rates,
              higher duties and out of hours availability;
      (b)     provide an annualised or aggregated salary arrangement; and/or
      (c)     provide a salary sacrifice arrangement under which any additional costs to
              the employer arising from the arrangement are met from the employee‟s
              salary.

2.6   (Optional    clause)   Upon     request    by   an     employee   party   to   a   Senior
      Manager/Technical Specialist Agreement the employer will conduct a review of
      benefits under the Senior Manager/Technical Specialist Agreement in comparison to
      the benefits to which the employee would otherwise be entitled under this agreement
      and provide the results of the review to the employee. Provided that the employer
      will not be required to conduct such a review (more than (once/ (insert)) in any 12
      month period/if the request is unreasonable in the circumstances or is made
      vexatiously).

2.7   Any dispute as to whether the terms of a Senior Manager/Technical Specialist
      Agreement would result, on balance, in the employee being better off overall under
      the individual agreement than under (this document / the (insert title of relevant
      agreement(s))), will be referred to Fair Work Australia for determination pursuant to
      the dispute resolution clause of this agreement.

2.8   [Optional clause] An employee party to a Senior Manager/Technical Specialist
      Agreement [or the employer] may terminate the operation of the Senior
      Manager/Technical Specialist Agreement by giving not less than (four/(insert))
      weeks written notice to the other party.

2.9   [Optional clause] A Senior Manager/Technical Specialist Agreement may be
      expressed to operate for a specified term or while the employee is performing a
      specified role (such as acting in a specified higher position) in which case the Senior


                                                                                            66
Manager/Technical Specialist Agreement will cease to operate on expiry of the
specified term or when the employee ceases to perform the specified role.




                                                                            67
                                                                        Attachments:

Attachment 3: Declaration by agency head confirming date in-
principle agreement reached
Deputy Secretary
Workforce Victoria
GPO 4509
Melbourne

Name of Agency
Name of Agreement

Dear Sir / Madam
RE:      DECLARATION CONFIRMING DATE IN-PRINCIPLE AGREEMENT
         REACHED

I confirm that in-principle agreement was reached on all issues between this agency
and the (NAME OF UNION/S) covering (TYPE OF EMPLOYEES) on (INSERT
DATE).

I also confirm that the proposed agreement accords with the following Government
policy requirements:

      It is consistent with Government wages policy;
      The financial impact of the agreement has been identified;
      The outcome can be met by this organisation in line with Government wages policy,
       including identifiable cost savings and offsets;
      The agreement does not jeopardise the sustainability of the organisation; and
      It does not require additional funding by Government.

Key details of the agreement and a description of any productivity improvements and
other relevant issues are attached.

I seek approval for an operative date of ( INSERT DATE) for the first salary increase
under the proposed agreement.

Yours sincerely

Signed by Agency Head
Date


                                                                                       68
                                                                             Attachments:

Attachment 4:      Non Budget Funded Agencies enterprise
bargaining pro forma submission3
To:        The Standing Committee on Enterprise Agreements

1.         Portfolio(s): (insert the name of the relevant department/portfolio(s))

2.         RE: (insert the title of the enterprise agreement)

3.         Background

           (Include a brief description of any relevant history in the making of the enterprise
           agreement, particularly if it may have an impact on the cost/benefits analysis, and the
           source of funding of the agency).

4.         Issues

           (Description of the type of agreement, number of employees covered, pay regime
           provided for, and an outline of the major features/initiatives resulting from the
           agreement).

5.         Cost/Benefits Analysis

           [Outline the costs of the agreement against the estimated savings]

    Estimated Cost of the Agreement (all costings
    should be in financial years)
                                                                      Costing in financial terms
                                Yr 1 / 2*    Yr 2 / 3     Yr 3 / 4                   Salary Base
    Salary base                    FY          FY           FY                         at end
     Salary                                                                               $
     Base (Excluding On
     Costs)

    Salary                      Yr 1 / 2     Yr 2 / 3     Yr 3 / 4    Final Year
    increases                     FY           FY           FY         of Agmt          Total
                       %
    Date            increase




    Total Estimated Costs

                                Yr 1 / 2     Yr 2 / 3     Yr 3 / 4
    On Costs                                                                            Total
                                  FY           FY           FY
    On-costs @

3
    This pro forma submission may be used for both funded and non funded agencies


                                                                                                69
    Total including On
    Costs

    Other costing              Yr 1 / 2     Yr 2 / 3     Yr 3 / 4
    conditions                   FY           FY           FY                           Total
     Salary Structure
     Adjustment Payment
    On costs
    Total
    conditions


    Estimated Benefits of the Agreement

                               Yr 1 / 2     Yr 2 / 3     Yr 3 / 4
    Estimated Benefits           FY           FY           FY                           Total




    Total
    Estimated
    Benefits


    Summary of Cost and Benefits
                                                                     Costing in financial terms
                                Yr 1 / 2     Yr 2 / 3    Yr 3 / 4
    Estimated Aggregates          FY           FY          FY                           Total
     Costs
     Benefits
    Net Benefits
* All costings should be in financial years.

(A more detailed explanation of the benefit should be incorporated here)

6.        Impacts

          (Outline any impact that the agreement may have on Government policy relating to
          enterprise bargaining, particularly with respect to potential flow on effect. State that
          the agreement will not result in a reduction of services or an increase in charges and
          that it will not undermine award conditions)

Signed by Deputy Secretary
Date


Additional Notes for non budget funded agencies
       Costing templates can be provided by the Department of Treasury and Finance. Please
        contact Workforce Victoria for details of the appropriate DTF contact officer. On




                                                                                                 70
    request, DTF will review draft costings and provide feedback to agencies/departments
    prior to submissions being lodged.
   Pay increases afforded by agreements can fall into the following categories –
    guaranteed percentage increases or lump sum bonuses, at risk or “up to” payments or
    lump sum bonuses or a combination.
   The level of savings must be sufficient to ensure cost benefits over the life of the
    agreement i.e. all salary increases and other costs (including oncosts) must be fully
    offset by real, bankable, productivity cost offsets. Real, bankable, productivity cost
    offsets are productivity increases which will result in cash savings to offset the costs of
    any agreed wages outcome.
   Savings must be generated by productivity/efficiency initiatives, new work practices,
    etc.
   Details of negotiated productivity/efficiency initiatives should ideally be identified in
    the actual agreement from the outset.
   Agreements should contain a commitment by the parties to work toward the
    achievement of cost benefits.
   Agreements should specify key performance indicators to be used in measuring the
    level of achievement of negotiated savings or contain specific targets which when
    reached will produce cost benefits.
   Agreements must contain a mechanism that commits the parties to at least an annual
    analysis/review of progress toward the achievement of targets and the ability to adjust
    pay outcomes if targets are not met.
   Where the internal review envisages that monetary target may not be reached then
    either a part payment should be made, or the parties should reassess the KPIs and/or
    develop further initiatives to cover the shortfall.
   Generally, guaranteed payments should only apply when specific initiatives have been
    identified at the beginning of the period of operation of an agreement.
   At risk (or 'up to') payments must apply when initiatives are to be developed during the
    operation of the agreement, in which case a monetary savings target must be specified
    in order to cover the costs of the potential increase. The agreement must specify that
    any increase is conditional on the formulation and achievement of targets.
   Before negotiations start for a new enterprise agreement, agencies may have to report
    on the achievement of cost benefits in the current agreement.




                                                                                            71
                                                                         Attachments:

Attachment 5: Model Enterprise Agreement Dispute Resolution
Clause
The model dispute resolution clause below provides guidance as to what is required in a
public sector collective enterprise agreement to satisfy both Government policy and the
requirements of the FW Act.

The model clause confers powers on FWA to deal with disputes that cannot be resolved
through any internal process, through conciliation and if necessary, arbitration.


1.      DISPUTE SETTLING PROCEDURES

1.1     Resolution of disputes and grievances

1.1.1   Unless otherwise provided for in this Agreement, a dispute or grievance about a
        matter arising under this Agreement or the National Employment Standards, other
        than termination of employment, must be dealt with in accordance with this clause.
        This includes a dispute or grievance about whether an employer had reasonable
        grounds to refuse a request for flexible working conditions or an application to extend
        unpaid parental leave.
1.1.2   This clause does not apply to any dispute on a matter or matters arising in the course
        of bargaining in relation to a proposed enterprise agreement.
1.1.3   The employer or an employee covered by this Agreement may choose to be
        represented at any stage by a representative, including a union representative or
        employer organisation.

1.2     Obligations

1.2.1   The parties to the dispute or grievance, and their representatives, must genuinely
        attempt to resolve the dispute or grievance through the processes set out in this clause
        and must cooperate to ensure that these processes are carried out promptly.
1.2.2   While a dispute or grievance is being dealt with in accordance with this clause, work
        must continue according to usual practice, provided that this does not apply to an
        employee who has a reasonable concern about a risk to his or her health or safety, has
        advised the employer of this concern and has not unreasonably failed to comply with




                                                                                             72
        a direction by the employer to perform other available work that is safe and
        appropriate for the employee to perform.
1.2.3   No person covered by the Agreement will be prejudiced as to the final settlement of
        the dispute or grievance by the continuance of work in accordance with this clause.

1.3     Agreement and dispute settlement facilitation

1.3.1   For the purposes of compliance with this Agreement (including compliance with this
        dispute settlement procedure) where the chosen employee representative is another
        employee of the employer, he/she must be released by his/her employer from normal
        duties for such periods of time as may be reasonably necessary to enable him/her to
        represent employees concerning matters pertaining to the employment relationship
        including but not limited to:

        (a)     investigating the circumstances of a dispute or an alleged breach of this
                Agreement or the National Employment Standards;
        (b)     endeavouring to resolve a dispute arising out of the operation of this
                Agreement or the National Employment Standards; or,
        (c)     participating in conciliation, arbitration or any other agreed alternative dispute
                resolution process.

1.3.2   The release from normal duties referred to in this clause is subject to the proviso that
        it does not unduly affect the operations of the employer.

1.4     Discussion of grievance or dispute

1.4.1   The dispute or grievance must first be discussed by the aggrieved employee(s) with
        the immediate supervisor of the employee(s).
1.4.2   If the matter is not settled, the employee(s) can require that the matter be discussed
        with another representative of the employer appointed for the purposes of this
        procedure.

1.5     Internal process

1.5.1   If any party to the dispute or grievance, who is covered by this Agreement, refers the
        dispute or grievance to an established internal dispute or grievance resolution process,
        the matter must first be dealt with according to that process, provided that the process
        is conducted in a timely manner and is consistent with the following principles:

        (a)     the rules of natural justice;
        (b)     provide for mediation or conciliation of the grievance;



                                                                                              73
        (c)      provide that the employers will take into consideration any views on who
                 should conduct the review; and
        (d)      be conducted as quickly and with as little formality as a proper consideration
                 of the matter allows.

1.5.2   If the dispute or grievance is not settled through an internal dispute or grievance
        resolution process, the matter can be dealt with according to the processes set out
        below.
1.5.3   If the matter is not settled either Party may refer the matter to FWA.

1.6     Disputes of a Collective Character

1.6.1   The parties covered by the Agreement acknowledge that disputes of a collective
        character concerning more than one employee may be dealt with more expeditiously
        by an early reference to FWA.
1.6.2   No dispute of a collective character may be referred to FWA directly unless there has
        been a genuine attempt to resolve the dispute at the workplace level prior to it being
        referred to FWA.

1.7     Conciliation

1.7.1   Where a dispute or grievance is referred for conciliation, a member of FWA may do
        everything that appears to the member to be right and proper to assist the parties to
        agree on terms for the settlement of the dispute or grievance.
1.7.2 This may include arranging:

        (a)      conferences of the parties or their representatives presided over by the
                 member; and
        (b)      for the parties or their representatives to confer among themselves at
                 conferences at which the member is not present.

1.7.3   Conciliation before FWA shall be regarded as completed when:

        (a)      the parties have reached agreement on the settlement of the grievance or
                 dispute; or
        (b)      the member of FWA conducting the conciliation has, either of their own
                 motion or after an application by either party, satisfied themselves that there is
                 no likelihood that within a reasonable period further conciliation will result in
                 a settlement; or
        (c)      the parties have informed the FWA member that there is no likelihood of
                 agreement on the settlement of the grievance or dispute and the member does


                                                                                               74
                not have substantial reason to refuse to regard the conciliation proceedings as
                completed.

1.8     Arbitration

1.8.1   If the dispute or grievance has not been settled after conciliation, either party may
        request that FWA proceed to determine the dispute or grievance by arbitration.
1.8.2   Where a member of FWA has exercised conciliation powers in relation to the dispute
        or grievance, the member shall not exercise, or take part in the exercise of, arbitration
        powers in relation to the dispute or grievance if a party objects.
1.8.3   Subject to sub-clause 1.8.4 below, the determination of FWA is binding upon the
        persons bound by this Agreement.
1.8.4   An appeal can be made to a Full Bench of FWA, with the leave of the Full Bench,
        against a determination of a single member of FWA made pursuant to this clause.

1.9     Conduct of matters before FWA

1.9.1   Subject to any agreement between the parties to the dispute, in relation to a particular
        dispute or grievance and the provisions of this clause, in dealing with a dispute or
        grievance through conciliation or arbitration FWA may conduct the matter in
        accordance with Subdivision B of Division 3 of Part 5-1 of the Fair Work Act 2009.




                                                                                             75
                                                                        Attachments:

Attachment 6: Work / Family model clauses
Outlined below are a parental leave, a personal/carer‟s leave and a compassionate leave
model clause for use by departments and agencies.

The model clauses, developed by Workforce Victoria, provide guidance as to what is required
in a public sector collective enterprise agreement, based on the Family Provisions Standard
provided under the Public Sector Employment (Award Entitlements) Act 2006 and the
requirements of the National Employment Standards under the FW Act


1.        PARENTAL LEAVE
Subject to the terms of this clause employees are entitled to paid and unpaid maternity,
paternity/partner and adoption leave and to work part-time in connection with the birth or
adoption of a child.

The provisions of this clause apply to full-time, part-time and eligible casual employees, but
do not apply to other casual employees.

An eligible casual employee means a casual employee:

(a)       employed by an employer on a regular and systematic basis for a sequence of
          periods of employment or on a regular and systematic basis for an ongoing period
          of employment during a period of at least 12 months; and

(b)       who has a reasonable expectation of ongoing employment, but for the pregnancy or
          the decision to adopt,.

For the purposes of this clause, continuous service is work for an employer on a regular and
systematic basis (including any period of authorised leave or absence) . (Insert any existing or
agreed portability arrangements).

An employer must not fail to re-engage a casual employee because:

(a)       the employee or employee‟s spouse is pregnant; or

(b)       the employee is or has been immediately absent on parental leave.



                                                                                             76
The rights of an employer in relation to engagement and re-engagement of casual employees
are not affected, other than in accordance with this clause.

1.1       Definitions
1.1.1     For the purpose of this clause child means a child of the employee under school age
          except for adoption of an eligible child where „eligible child‟ means a person under
          the age of 16 years who is placed with the employee for the purposes of adoption,
          other than a child or step-child of the employee or of the spouse of the employee or
          a child who has previously lived continuously with the employee for a period of six
          months or more.
1.1.2     For the purposes of this clause, spouse includes a de facto spouse, former spouse or
          former de facto spouse. The employee‟s “de facto spouse” means a person who
          lives with the employee as husband, wife or same sex partner on a bona fide
          domestic basis, although not legally married to the employee.

1.2       Basic entitlement
1.2.1     Employees, who have or will have completed at least twelve months continuous
          service, are entitled to a combined total of 52 weeks paid and unpaid parental leave
          on a shared basis in relation to the birth or adoption of their child. An employee
          who does not satisfy the qualifying service requirement for the paid components of
          leave or an employee who is an eligible casual employee, shall be entitled to leave
          without pay for a period not exceeding 52 weeks.

          Leave available is summarised in the following table:

           Type of leave           Paid leave         Unpaid leave          Total combined paid
                                                                            and unpaid leave

           Maternity leave         __ weeks           __ weeks if primary   52 weeks
                                                      care giver


           Paternity/partner       __ weeks           __ weeks if primary   52 weeks
                                                      care giver


           Adoption leave –        __ weeks           __ weeks              52 weeks
           primary care giver


           Adoption leave –        __ weeks           __ weeks              3 weeks
           secondary care giver



1.3       Employee Couple – Concurrent Leave



                                                                                             77
1.3.1   Parental leave is to be available to only one parent at a time in a single unbroken
        period. However, both parents may simultaneously take:

        (a)   in the case of paternity/partner leave an employee shall be entitled to a total
              of __ days paid leave (which need not be taken consecutively) and up to __
              weeks unpaid leave in connection with the birth of a child for whom he or
              she has accepted responsibility which may be commenced 1 week prior to the
              expected date of birth; and
        (b)   in the case of short adoption leave for the secondary care giver __ week‟s
              paid leave and up to __ weeks‟ unpaid leave which may be commenced at
              the time of placement.

1.3.2   Subject to 1.7.1(a), the total concurrent leave must be for a period of 3 weeks or
        less. Where the employer agrees the employee may start concurrent leave earlier or
        end concurrent leave later than provided for in 1.3.1.

1.4     Maternity leave
1.4.1   An employee must provide notice to the employer in advance of the expected date
        of commencement of parental leave. The notice requirements are:

        (a)   of the expected date of confinement (the employer may require the employee
              to provide evidence that would satisfy a reasonable person or a certificate
              from a registered medical practitioner stating that the employee is pregnant) -
              at least ten weeks; and
        (b)   of the date on which the employee proposes to commence maternity leave
              and the period of leave to be taken - at least four weeks.

1.4.2   When the employee gives notice under 1.4.1(a) the employee must also provide a
        statutory declaration stating particulars of any period of paternity/partner leave
        sought or taken by her spouse and that for the period of maternity leave she will not
        engage in any conduct inconsistent with her contract of employment.
1.4.3   An employee will not be in breach of this clause if failure to give the stipulated
        notice is occasioned by confinement occurring earlier than the presumed date.
1.4.4   Subject to 1.2.1 and unless agreed otherwise between the employer and employee,
        an employee may begin parental leave at any time within six weeks immediately
        prior to the expected date of birth.
1.4.5   Where an employee continues to work within the six week period immediately
        prior to the expected date of birth of the child or is on paid leave under 1.10.2 an
        employer may require the employee to provide a certificate from a registered



                                                                                          78
        medical practitioner that she is fit for work in her present position. The employer
        may require the employee to start maternity leave if the employee:

        (a)   does not give the employer the requested certificate within 7 days after the
              request; or,
        (b)   within 7 days after the request for the certificate, gives the employer the
              medical certificate stating that the employee is unfit to work.

1.4.6   Where leave is granted under 1.4.4 during the period of leave, an employee may
        return to work at any time as agreed between the employer and the employee,
        provided that time does not exceed four weeks from the recommencement date
        desired by the employee.

1.4.7   Personal illness leave and special maternity leave
        (a)   Where the pregnancy of an employee, not then on maternity leave, terminates
              other than by the birth of a living child, the employee must as soon as
              practicable give notice to the employer of the taking of leave advising the
              employer of the period, or expected period, of the leave in accordance with
              the following:

              (i)    where the pregnancy terminates during the first 20 weeks, during the
                     notified period/s the employee is entitled to access any paid and/or
                     unpaid personal illness leave entitlements in accordance with the
                     relevant personal leave provisions;
              (ii)   where the pregnancy terminates after the completion of 20 weeks,
                     during the notified period/s the employee is entitled to paid special
                     maternity leave not exceeding the amount of paid maternity leave
                     available under 1.2.1, and thereafter, to unpaid special maternity leave.

        (b)   If an employee takes leave for a reason outlined in 1.4.7(a)(i) and 1.4.7(a)(ii),
              the employer may require the employee to provide evidence that would
              satisfy a reasonable person or a certificate from a registered medical
              practitioner.

        (c)   Where an employee not then on maternity leave is suffering from an illness
              whether related or not to pregnancy an employee may take any paid personal
              illness leave to which she is entitled and/or unpaid personal illness leave in
              accordance with the relevant personal illness leave provisions.

1.5     Paternity/Partner leave


                                                                                            79
1.5.1   An employee will provide to the employer at least ten weeks prior to each proposed
        period of paternity/partner leave, with:

        (a)     evidence (the employer may require the employee to provide evidence that
                would satisfy a reasonable person or a certificate from a registered medical
                practitioner) which names his or her spouse and states that she is pregnant
                and the expected dated of confinement or states the date on which the birth
                took place; and
        (b)     written notification of the dates on which he or she proposes to start and
                finish the period of paternity leave; and
        (c)     a statutory declaration stating:

                (i)    except in relation to leave taken simultaneously with the child‟s mother
                       under clause 1.3.1 or clause 1.7.1(a) that he or she will take the period
                       of paternity/partner leave to become the primary care-giver of a child;
                (ii)   particulars of any period of maternity leave sought or taken by his or
                       her spouse; and
                (iii) that for the period of paternity/partner leave he or she will not engage
                       in any conduct inconsistent with his or her contract of employment.

1.5.2   The employee will not be in breach of 1.5.1 if the failure to give the required period
        of notice is because of the birth occurring earlier than expected, the death of the
        mother of the child, or other compelling circumstances.

1.6     Adoption leave
1.6.1   The employee shall be required to provide the employer with written notice of their
        intention to apply for adoption leave as soon as is reasonably practicable after
        receiving a placement approval notice from an adoption agency or other appropriate
        body.
1.6.2   The employee must give written notice of the day when the placement with the
        employee is expected to start as soon as possible after receiving a placement notice
        indicating the expected placement day.
1.6.3   The employee must give the following written notice of the first and last days of
        any period of adoption leave they intend to apply for because of the placement:

        (a)     Where a placement notice is received within the period of 8 weeks after
                receiving the placement approval notice – before the end of that 8 week
                period; or




                                                                                             80
        (b)   Where a placement notice is received after the end of the period of 8 weeks
              after receiving the placement approval notice – as soon as reasonably
              practicable after receiving the placement notice.

1.6.4   Generally the employee must apply for leave to the employer at least ten weeks
        before the date when long adoption leave begins and the period of leave to be taken
        or 14 days in advance for short adoption leave. An employee may commence
        adoption leave before providing such notice where, through circumstances beyond
        the control of the employee, the adoption of a child takes place earlier.
1.6.5   Before commencing adoption leave, an employee will provide the employer with a
        statement from an adoption agency of the day when the placement is expected to
        start and a statutory declaration stating:

        (a)   that the child is an eligible child, whether the employee is taking short or long
              adoption leave or both and the particulars of any other authorised leave to be
              taken because of the placement.
        (b)   except in relation to leave taken simultaneously with the child‟s other
              adoptive parent under clause 1.3.1 or clause 1.7.1(a) that the employee is
              seeking adoption leave to become the primary care-giver of the child;
        (c)   particulars of any period of adoption leave sought or taken by the employee‟s
              spouse; and
        (d)   that for the period of adoption leave the employee will not engage in any
              conduct inconsistent with their contract of employment.

1.6.6   An employee must provide the employer with confirmation from the adoption
        agency of the start of the placement.
1.6.7   Where the placement of child for adoption with an employee does not proceed or
        continue, the employee will notify the employer immediately. The employer will
        then nominate a time, not exceeding four weeks from receipt of notification, for the
        employee‟s return to work.
1.6.8   An employee will not be in breach of this clause as a consequence of failure to give
        the stipulated periods of notice if such failure results from a requirement of an
        adoption agency to accept earlier or later placement of a child, the death of a
        spouse, or other compelling circumstances.
1.6.9   An employee seeking to adopt a child is, on the production of satisfactory evidence
        if required, entitled to unpaid leave for the purpose of attending any compulsory
        interviews or examinations necessary to the adoption procedure. The employee and
        the employer should agree on the length of the unpaid leave. Where agreement



                                                                                            81
        cannot be reached the employee is entitled to take up to two days unpaid leave.
        Where paid leave is available to the employee the employer may require the
        employee to take such leave instead.

1.7     Right to request
1.7.1   An employee entitled to parental leave pursuant to the provisions of clause 1.2.1
        may request the employer to allow the employee:

        (a)   to extend the period of simultaneous unpaid parental leave provided for in
              clause 1.3.1 up to a maximum of eight weeks;
        (b)   to extend the period of unpaid parental leave provided for in clause 1.2.1 by a
              further continuous period of leave not exceeding 12 months;
        (c)   to return from a period of parental leave on a part-time basis until the child
              reaches school age;
        to assist the employee in reconciling work and parental responsibilities.

1.7.2   The employer shall consider the request having regard to the employee‟s
        circumstances and provided the request is genuinely based on the employee‟s
        parental responsibilities may only refuse the request on reasonable grounds related
        to the effect on the workplace or the employer‟s business. Such grounds might
        include cost, lack of adequate replacement staff, loss of efficiency and the impact
        on customer service.

1.7.3   Employee‟s request and employer‟s decision to be in writing
        The employee‟s request and the employer‟s decision made under clauses 1.7.1(b)
        and 1.7.1(c) must be in writing. The employer‟s response, including details of the
        reasons for any refusal, must be given as soon as practicable and no later than 21
        days after the request is made.

1.7.4   Request to return to work part-time
        A request under clause 1.7.1(c) must be made as soon as possible but no less than
        seven weeks prior to the date upon which the employee is due to return to work
        from parental leave.

1.8     Variation of period of parental leave
1.8.1   Unless agreed otherwise between the employer and employee, where an employee
        takes leave under clause 1.2.1 and 1.7.1(b), an employee may apply to their
        employer to change the period of parental leave on one occasion. Any such change




                                                                                          82
         must be notified in writing at least two weeks prior to the start of the changed
         arrangements.

1.9      Parental leave and other entitlements
1.9.1.   An employee may in lieu of or in conjunction with parental leave access any annual
         leave or long service leave entitlements which they have accrued subject to the total
         amount of leave not exceeding 52 weeks or a longer period as agreed under 1.7.
1.9.2    Where a public holiday occurs during a period of paid parental leave the public
         holiday is not to be regarded as part of the paid parental leave and the employer will
         grant the employee a day off in lieu to be taken by the employee immediately
         following the period of paid parental leave.

1.10     Transfer to a safe job
1.10.1   Where an employee is pregnant and provides evidence that would satisfy a
         reasonable person that she is fit for work but it is inadvisable for her to continue in
         her present position during a stated period because of illness or risks arising out of
         the pregnancy or hazards connected with the work assigned to the employee, the
         employee will, if the employer deems it practicable, be transferred to a safe job
         with no other change to the employee‟s terms and conditions of employment until
         the commencement of maternity leave. The employer may require the evidence
         referred to above to be a medical certificate.
1.10.2   If the employer does not think it reasonably practicable to transfer the employee to
         a safe job, the employee may take paid no safe job leave, or the employer may
         require the employee to take paid no safe job leave immediately for a period which
         ends at the earliest of either:

         (a)   when the employee is certified unfit to work during the six week period
               before the expected date of birth by a registered medical practitioner, or
         (b)   when the employee‟s pregnancy results in the birth of a living child or when
               the employee‟s pregnancy ends otherwise than with the birth of a living child.

         The entitlement to no safe job leave is in addition to any other leave entitlement the
         employee has.

1.11     Returning to work after a period of parental leave
1.11.1   An employee will notify their intention to return to work after a period of parental
         leave at least four weeks prior to the expiration of the leave.
1.11.2   Subject to clause 1.11.3 an employee will be entitled to the position which they
         held immediately before proceeding on parental leave. In the case of an employee


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          transferred to a safe job pursuant to 1.10 the employee will be entitled to return to
          the position they held immediately before such transfer.
1.11.3    Where such position no longer exists but there are other positions available which
          the employee is qualified for and is capable of performing, the employee will be
          entitled to a position as nearly comparable in status and pay to that of their former
          position.

1.12      Replacement employees
1.12.1    A replacement employee is an employee specifically engaged or temporarily
          promoted or transferred as a result of an employee proceeding on parental leave.
1.12.2    Before an employer engages a replacement employee the employer must inform
          that person of the temporary nature of the employment and of the rights of the
          employee who is being replaced.

1.13      Consultation and Communication during Parental leave
1.13.1    Where an employee is on parental leave and a definite decision has been made that
          will have a significant effect on the status, pay or location of the employee‟s pre-
          parental leave position, the employer shall take reasonable steps to:

          (a)   make information available in relation to any significant effect the change
                will have on the status or responsibility level of the position the employee
                held before commencing parental leave; and
          (b)   provide an opportunity for the employee to discuss any significant effect the
                change will have on the status or responsibility level of the position the
                employee held before commencing parental leave.

1.13.2    The employee shall take reasonable steps to inform the employer about any
          significant matter that will affect the employee‟s decision regarding the duration of
          parental leave to be taken, whether the employee intends to return to work and
          whether the employee intends to request to return to work on a part-time basis.
1.13.3    The employee shall also notify the employer of changes of address or other contact
          details which might affect the employer‟s capacity to comply with 1.13.1.


2.        PERSONAL/CARER‟S LEAVE

The provisions of this clause apply to full-time and regular part-time employees. See 2.6 for
casual employees‟ entitlements.

2.1       Amount of paid personal/carer‟s leave



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2.1.1    Paid personal/carer‟s leave will be available to an employee when they are absent
         because of:

personal illness or injury; or
           (a) personal illness or injury of an immediate family or household member who
                requires the employee's care or support; or
         (b)    an unexpected emergency affecting an immediate family or household
                member; or
         (c)    the requirement to provide ongoing care and attention to another person who
                is wholly or substantially dependent on the employee, provided that the care
                and attention is not wholly or substantially on a commercial basis.

2.1.2    Personal leave of:

          (a)   (insert agreed or relevant sick leave or personal leave award entitlement)
                days/hours will be available in the first year of service;
         (b)    (insert agreed or relevant sick leave or personal leave award entitlement)
                days/hours will be available per annum in the second and subsequent years of
                service.

2.1.3    An employee‟s entitlement accrues progressively during a year of service according
         to the employee‟s ordinary hours of work and unused personal/carer‟s leave
         accumulates from year to year.

2.2      Immediate family or household
2.2.1    The term immediate family includes:

          (a)   spouse (including a former spouse, a de facto partner and a former de facto
                partner) of the employee. A defacto partner means a person who, although
                not legally married to the employee, lives with the employee in a relationship
                as a couple on a genuine domestic basis (whether the employee and the
                person are of the same sex or different sexes); and
          (b)   child or an adult child (including an adopted child, a step child or an
                exnuptial child), parent, grandparent, grandchild or sibling of the employee or
                spouse of the employee (or insert agency’s definition).

2.3      Use of accumulated personal/carer‟s leave
2.3.1    An employee is entitled to use accumulated personal/carer‟s leave for the purposes
         of this clause where the current year's personal/carer‟s leave entitlement has been
         exhausted.



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2.3.2   (insert any notice, certification etc. provisions)

2.4.    Absence on public holidays
2.4.1   If the period during which an employee takes paid personal/carer‟s leave includes a
        day or part-day that is a public holiday in the place where the employee is based for
        work purposes, the employee is taken not to be on paid personal/carer‟s leave on
        that public holiday.

2.5     Unpaid personal leave
2.5.1   Where an employee has exhausted all paid personal/carer‟s leave entitlements,
        he/she is entitled to take unpaid carer‟s leave to provide care or support in the
        circumstances outlined in 2.1.1(b), (c), or (d). The organisation and the employee
        will agree on the period. In the absence of agreement the employee is entitled to
        take up to two (2) days' unpaid carer‟s leave per occasion.

2.6.    Casual employees – Caring responsibilities
2.6.1   Casual employees are entitled to be unavailable to attend work or to leave work:


             if they need to care for members of their immediate family or household who
              are sick and require care or support, or who require care due to an unexpected
              emergency, or the birth of a child; or
             upon the death in Australia of an immediate family or household member.

2.7.2   The organisation and the employee will agree on the period for which the employee
        will be entitled to be unavailable to attend work. In the absence of agreement, the
        employee is entitled to not be unavailable to attend work for up to two (2) days per
        occasion. The casual employee is not entitled to any payment for the period of non-
        attendance.

2.7.3   The organisation will require the casual employee to provide satisfactory evidence
        to support the taking of this leave.


3.      COMPASSIONATE LEAVE

3.1     Amount of compassionate leave
3.1.1   Employees are entitled to (insert agreed entitlement) days compassionate leave on
        each occasion when a member of the employee's immediate family or a member of
        the employee's household:




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             contracts or develops a personal illness that poses a serious threat to his or
              her life;
             sustains a personal injury that poses a serious threat to his/her life; or
             dies.

3.1.2   Any unused portion of compassionate leave will not accrue from year to year and
        will not be paid out on termination.
3.1.3   Such leave does not have to be taken consecutively.
3.1.4   An employee may take unpaid compassionate leave by agreement with the
        employer.
3.1.5   The organisation will require the employee to provide satisfactory evidence to
        support the taking of compassionate leave.




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                                                                        Attachments:

Attachment 7: Victorian Public Service Redeployment Policy

Purpose
1.     The aim of this policy is to specify the redeployment approach to be adopted across
       the Victorian Public Service (VPS) for employees covered by the Victorian Public
       Service Agreement 2006, as extended and varied in 2009 (the VPS Agreement 2006).

Background
2.     The development of this policy is informed by current legislative provisions and the
       VPS Agreement 2006.

Legislation
3.     Part 3 of the Public Administration Act 2004 establishes that public service body
       heads, on behalf of the Crown, have all the rights, powers, authorities and duties of an
       employer in respect of the public sector body and employees in it. The employer‟s
       power to redeploy a surplus employee is drawn from Section 20 of the Act. Section
       31A provides that the employer may assign work to an employee and Section 28(1)
       provides that the employer may transfer an employee to duties in other public service
       bodies or in public entities.

4.     Section 68(h) of Part 4 of the Public Administration Act 2004 requires the State
       Services Authority to monitor the effectiveness of redeployment processes within the
       public service.

VPS Agreement Redeployment Principles
5.     The VPS Agreement 2006 sets out the following policy principles:

             The redeployment of surplus staff wherever practical and consistent with the
              application of merit;
             Surplus staff have priority to be placed in vacancies that occur within the public
              service unless the person is determined to be unsuitable for appointment to that
              vacancy by the prospective employing agency;
             The placement of surplus staff be managed at agency level. The redeploying
              agency is to provide individualised case management and support, including


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               counselling, provision of job search skills, liaison and retraining to assist in
               achieving placements;
              Processes to be consistent with the application of the principles of fair and
               reasonable treatment and merit selection;
              Unplaced surplus staff to have access to departure packages only after a
               reasonable period;
              Retrenchment and payment of a separation package to be used as an action of
               last resort where redeployment within a reasonable period does not appear
               likely;
              Where a vacancy exists for which a redeployee is suitable and is the only
               candidate or the best candidate among redeployees, a valid offer will be made.
               Such an offer involves an offer of duties to a suitably qualified employee
               (which may be at the same or different level or status or the same or different
               general location as the employee‟s previous employment);
              Redeployees will have priority access to vacancies both at level and at other
               levels and where appropriate will be provided with salary maintenance; and
              Relinquishing agencies will provide support to redeployees being placed in
               alternative positions utilising high quality and professional expertise.

REDEPLOYMENT POLICY
6.    In managing surplus employees public service body heads recognise their obligations
      and commit to placing surplus employees into vacancies for which they are suitable.
      Surplus employees are to commit to participate in the redeployment process in good
      faith.

Redeployment process
7.    The redeployment process commences after the identification of a surplus employee.
      The approach to managing a surplus employee in the VPS is set out below:

      a)       Preparing for Redeployment
      Preparation for redeployment is to occur within two weeks of identification of a
      surplus employee:

              The employer is to appoint a case manager for each surplus employee.

              The case manager and the surplus employee will:

               -   undertake a skills audit of the surplus employee;
               -   organise/participate in CV preparation and interview skills training; and



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     -   agree on job search criteria (duties, location and classification).

b)   Commencing Redeployment
On commencing the formal three month redeployment process:

    the case manager and the surplus employee are to identify all possible public
     service vacancies for matching and to discuss options to facilitate the matching
     process and any retraining required;

    the case manager will facilitate the consideration of the surplus employee by
     the relevant employer;

    the case manager will provide feedback to the surplus employee after a referral
     or interview;

    agencies will ensure that all relevant vacancies are reviewed to maximise the
     opportunities for valid offers for redeployment to be made. The aim will be to
     offer duties as close to the employees current level as is possible;

    where a vacancy exists for which a redeployee is suitable and is the only
     candidate or the best candidate amongst redeployees, a valid offer will be
     made;

    a valid offer involves an offer of duties to a suitably qualified employee (which
     may be at the same or lower level or status or the same or different general
     location as the employees previous employment);

    in using best endeavours to identify potential duties to offer surplus staff,
     priority should be accorded to duties in the following order:

     -   duties for which the employee is already qualified or who would become
         qualified for the position as a result of incidental or top up training within a
         reasonable distance from the location of existing duties and not less than at
         the same level or status;
     -   duties at a lower level or status (where this change of level or status is
         acceptable to the employee) within a reasonable distance from existing
         duties; and
     -   duties at a lower level or status and at a different location (where this
         change of level, status and location is acceptable to the employee).

c)   Assignment or transfer to a suitable vacancy




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     An assignment to an internal ongoing vacancy or transfer to an ongoing role in
      another agency completes the redeployment process.
     An assignment/secondment to a specific term vacancy requires that the case
      manager and surplus employee will continue to pursue ongoing vacancies
      during the placement.

d)    Termination
     If redeployment is not achieved at the end of three months, employment will be
      terminated and the surplus employee will be provided with the current VPS
      retrenchment package.

e)    Employee safeguards

     There will be a minimum period for redeployment of 3 months unless agreed
      otherwise.

     Placement in a specific term vacancy of up to 3 months temporarily stops the
      redeployment process.

     There will be salary maintenance for up to 6 months where the surplus
      employee is placed by agreement in a lower classified vacancy.

     Agencies undertaking redeployment processes will consult with the CPSU and
      staff in affected workplaces to ensure that all parties can be confident that
      appropriate efforts are being made to place affected employees in properly
      assessed duties.

     Departmental grievance processes are available and are to be managed
      expeditiously in relation to issues raised by surplus employees. Where
      departmental grievance processes are utilised:


      -   all time frames continue unless FWA recommends that specific time frames
          be suspended in which case agencies will observe FWA recommendations;
          and
      -   the CPSU is to be provided with necessary information so it can satisfy
          itself that the provisions of this policy have been complied with where the
          CPSU is representing the interests of aggrieved employees.

    Nothing in this policy disturbs any existing avenues of redress available to
     aggrieved employees. Where the process involves the operation of Clause 10 of
     the VPS Agreement 2006 (Resolution of Disputes and Grievances), the full



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provisions of this clause shall apply including arbitration in accordance with
Clause 10.9. Where these matters involve FWA, agencies will not challenge
FWA‟s jurisdiction to address matters properly associated with redeployment
unless the matters relate to termination on the ground of redundancy (which is
outside the jurisdiction of FWA as set out in Re: AEU).          While agencies
recognise that FWA could decide to deal with all matters within its jurisdiction,
this does not preclude agencies from seeking to argue that FWA should, as a
matter of discretion, refuse to hear a matter on the basis that it has been
appropriately dealt with by other processes.




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