The more general requirements within clauses 3 and 4 of the contract apply to all executives, while Schedule A lists the duties specific to the role.
While individuals will bring different skills and experiences to an executive role, to the duties in the contract capture the role objectively, rather than reflect the individual candidate.
In practice, the specifics of a role caThe more general requirements within clauses 3 and 4 of the contract apply to all executives, while Schedule A lists the duties specific to the role.n change over time. It is good practice to update the contract to ensure expectations are clear and aligned.
Duties and responsibilities in Schedule A of the contract
Schedule A should clearly describe the duties and responsibilities the executive will be required to perform during their employment in the role. The contract should also be clear about the role to whom the executive reports. This forms the basis of expectations for the life of the contract, unless varied. Duties will also inform performance planning and reviewing. This should typically reflect the advertised position description.
Employers should also consider including duties which emphasise and promote objectives and priorities of the government and employer. This may include:
- sound financial management
- promoting equality and diversity
- commitment to fostering a professional and high-performing public service.
For some roles, it may be appropriate to include any relevant or required qualifications or registrations.
Failure to comply or acting inconsistently with the role’s duties and responsibilities, or failing to fulfil those duties to the requisite standard, may give rise to termination for performance or conduct reasons under the contract.
Universal requirements for executives
Standards of conduct, conflicts of interest and general responsibilities
The contract outlines an executive’s core requirements. These requirements are drafted generically as they apply equally to all executives.
Failure to comply or acting inconsistently with any of the requirements in this provision may be considered misconduct, giving rise to termination under the contract.
Executive warranties
At the time of signing the contract, an executive confirms they have disclosed any conflicts of interest, are not in breach of any legal obligations and have provided accurate information as to their qualifications, skills, experience, and employment history.
A breach of these warranties constitutes serious misconduct, which may give rise to summary termination under the contract.
Travel for work
Depending on the requirements of their role, executives may be required to travel for work. The contract confirms there is no entitlement for an executive to additional remuneration for travel. However, an executive is entitled to reasonable reimbursements, subject to appropriate authority, provision of evidence and any relevant policies.
Relocation
The contract does not include a standard provision for executives relocating from another city, state or country for their employment.
The government’s relocation policy is provided at Appendix A to this Handbook.
Relocation costs may be considered at the start and conclusion of an executive’s appointment and should be negotiated and agreed before a contract is signed. These terms should be appropriately documented, either in the contract or letter of offer.
There is no obligation on the employer to pay an executive’s relocation costs at the conclusion of a contract where this was not negotiated as part of the original contract.
An executive who is temporarily required to live away from home may receive an allowance that reimburses additional costs incurred. This arrangement would be for a short-term assignment and the allowance must be negotiated between the executive and employer. Reimbursements may be subject to FBT, which must be included in the executive’s TRP.
Hours and place of work
An executive’s remuneration under the contract compensates for the hours necessary to perform their duties and responsibilities. On occasion, this may require the executive to work outside of normal business hours, including on weekends and public holidays.
Executives are not eligible for overtime payments. Any arrangements for time-in-lieu are at the employer’s discretion.
The right to disconnect under the FW Act, which applies to non-executive public entity staff may not apply to executives.
Subject to the Employer’s reasonable request, executives are entitled to be absent from work on public holidays without deduction of pay.
Under the contract, an employer may agree to substitute a holiday in place of Australia Day or to observe religious or cultural occasions or like reasons.
Training
An employer may provide a lawful and reasonable direction to an executive to undertake training relevant to their role. This may be incorporated into an executive’s performance planning process.
Refusing to carry out an employer’s lawful and reasonable instruction may be considered misconduct or serious misconduct.
Qualifications and certifications
Depending on the nature of an executive’s role, the employer may direct an executive to obtain and/or maintain certain qualifications and certifications that are relevant to their duties and responsibilities. This may include professional registrations and supervised practice.
As with other general responsibilities under the employment contract, the employer can terminate the contract if there is a serious failure by the executive to comply with such a direction.
Outside employment
Public entity executives should seek prior approval from their employer before undertaking any secondary or outside employment. Any secondary work must not create a conflict of interest or interfere with the performance of official duties.
Post-employment obligations
Restraint of trade
The executive contract does not include a standard restraint of trade clause.
A restraint of trade is a clause in an executive’s contract that prevents them from performing work for particular employers outside the Victorian public sector for a period of time after their employment ends. For certain executive roles, the employer may wish to consider including an appropriately drafted restraint of trade clause in the executive’s contract prior to entry into the contract.
Restraint of trade clauses can only be used in limited circumstances and should be informed by legal advice. Before deciding whether to include a restraint of trade clause in an executive’s contract, the employer should consider whether this is appropriate in the circumstances. Some of the relevant considerations include:
- the seniority of the role including whether the role involves access to sensitive information that could provide an unfair advantage
- whether the role includes significant interaction with private sector clients or contractors, and
- whether the role involves negotiating commercial agreements.
The duration, area and nature of activities restrained will need to be carefully considered. Both the employer and executive should seek, and keep a record of, legal advice before including a restraint of trade clause.
Lobbying
The following obligations apply to executives in the public sector:
- executives must not knowingly and intentionally be party to lobbying activities by a lobbyist or government affairs director who is not listed on the Victorian Register of Lobbyists and Government Affairs Directors.
- when first contacted by a lobbyist, executives should ensure they are informed of which clients the lobbyist is representing, the nature of the clients’ issues, and whether the clients are involved in a government tender process.
- executives must not be party to lobbying activities when they are involved in a government tender process.
- executives must not, for a period of 12 months after they cease their employment, engage in lobbying activities relating to any matter with which they had official dealing in their last 12 months of employment.
The VPSC has issued a Code of conduct for lobbying.
Intellectual property
Ownership of any intellectual property generated by an executive in the course of their employment vests in the State of Victoria regardless of whether or not the intellectual property is created during work hours, on work premises or using the employer’s equipment.
Confidentiality
Confidential information obtained by an executive during their employment must not be used for personal gain or to advantage a prospective employer or business, or disadvantage the Victorian Government. It must be handled in accordance with the contract and any applicable legislation.
Confidential information is extensively defined in the contract. In the event of any uncertainty, all information should be considered by the executive to be confidential and treated as such.
On termination, the executive must ensure all confidential information is returned to their employer. This includes any property of the employer. If an executive has worked on a personal device, an employer may request reasonable access to this device to ensure any confidential information has been removed.
Improper use of official information may be considered misconduct under the contract.
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