- Date:
- 23 Aug 2024
Thank you to all who submitted questions during the VGSO webinar on 7 August 2024. As noted in the webinar, the VGSO advises Victorian Public Sector employers and cannot provide legal advice about an individual employee's particular situation or circumstances.
We have grouped questions into particular themes and have provided generic responses as set out below. Victorian Public Sector employers are welcome to contact the VGSO's Workplace Relations and Occupational Safety team for further advice.
Please note that the information set out below does not constitute legal advice.
We have also provided links to further resources for your information.
Flexible Work
Section 65 of the Fair Work Act 2009 sets out the circumstances when an employee can request a flexible work arrangement, including circumstances where the employee is:
- pregnant
- a parent or carer of a child of school age or younger
- a carer within the meaning of the Carer Recognition Act 2010
- has a disability
- is 55 or older
- experiencing family and domestic violence.
An entitlement to request a flexible work arrangement can also be found in many enterprise agreements, including the Victorian Public Service Enterprise Agreement 2024.
A flexible work arrangement can result in a range of changes to an employee's work arrangements, including, changes to hours of work, patterns of work and work locations.
Employers can only refuse a request for a flexible work arrangement on reasonable business grounds, for example: the proposed flexible work arrangement would be too costly for the employer, or would result in a significant loss of productivity, and/or it would be impractical to change the working arrangements of other employees (or recruit new employees) to accommodate the proposed flexible work arrangement.
Reasonable Additional Hours
Section 62 of the Fair Work Act 2009 contains provisions relating to maximum weekly hours of work and provides that an employer must not request or require a full time employee to work more than 38 hours unless the additional hours are reasonable. This section forms part of the National Employment Standards and parties cannot contract out of these provisions.
The factors used to determine whether additional hours are reasonable are set out in section 62(3). These factors are the same as those contained in clause 46.4 of the Victorian Public Service Enterprise Agreement 2024.
Employees at VPS Grade 4 and below are entitled to be paid overtime at the rates specified in clause 46.7 of the Victorian Public Service Enterprise Agreement 2024 or, may request time off in lieu of payment.
The requirement to pay overtime does not apply to employees at VPS Grade 5 or higher however, as noted in clause 46.6(a), time in lieu under clauses 46.8 and 46.9 applies in circumstances set out in the Best Practice Employment Commitment.
We have used the Victorian Public Service Enterprise Agreement 2024 as an example, however, other enterprise agreements may have different provisions.
Right to disconnect
It is important to remember that the right to disconnect focuses on:
- the employee’s action in refusing to connect, not the employer's action in making contact
- the reasonableness of the employee's action in refusing to connect.
In other words, the right to disconnect does not prohibit the employer, or a third party, from making contact with an employee.
In assessing the 'reasonableness' of the employee's refusal, this will be assessed on a case by case basis, taking the following into account a range of factors, including (without limitation):
- the reason for the contact or attempted contact
- how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee
- the extent to which the employee is compensated:
- to remain available to perform work during the period in which contact or attempted contact is made
- for working additional hours outside of the employee's ordinary hours of work
- the nature and seniority of the employee's role and level of responsibility
- the employee's personal circumstances (including family or caring responsibilities).
These matters are also set out in clause 44.3 of the Victorian Public Service Enterprise Agreement 2024.
OHS - Psychosocial hazards
Any factor in the working environment that may cause an employee to experience a psychological response that creates a risk to health and safety (such as high job demands), will constitute a psychosocial hazard that has to be managed in accordance with an employer's obligations under the Occupational Health and Safety Act 2004 (OHS Act).
Employees also have a duty to take reasonable care for their own health and safety and in relation to persons who may be affected by their acts or omissions at work.
An organisation must determine how it will discharge its OHS responsibilities, in accordance with ordinary risk management principles, including identifying the hazard, assessing the risk and implementing control measures to eliminate or reduce the risk so far as is reasonably practicable.
This will also require consultation with employees in accordance with section 35 of the OHS Act.
Charter considerations
Q: How do Charter considerations and Equal Opportunity laws impact on scheduling meetings at a time when someone is not available due to parental responsibilities or due to religious beliefs or obligations?
A: Both parental responsibilities and religious beliefs are protected attributes for the purposes of state and federal anti-discrimination regimes. It is possible that scheduling, directing or requiring employees to attend meetings at times that they can't attend because they possess a protected attribute may amount to indirect discrimination, if it is unreasonable.
Indirect discrimination occurs if there is a requirement, condition or practice that is the same for everyone, but disadvantages a person, or is likely to, because they have a ‘protected attribute’, and the requirement, condition or practice is unreasonable (s 9 Equal Opportunity Act).
However, this ultimately would be determined with regard to whether all the circumstances make the scheduling of the meeting unreasonable. It will be decided on a case by case basis, including considering the needs and requirements of the organisation and other employees.
Resources
Victorian Public Service Enterprise Agreement 2024
Some useful resources on the Right to Disconnect include:
- Australian Public Service Commission's (APSC) guidelines
- Education material from the Fair Work Commission, including:
- VGSO's blog on the right to disconnect
- VGSO's blog on key changes to the Victorian Public Service Enterprise Agreement
Updated