About this guide
We have published this guide under section 39(1)(a) of the Public Administration Act 2004.
It advises VPS employers on what to do when current VPS executives are considering or have decided to leave public sector employment.
This guide reflects why organisations need to be flexible in upholding the public sector values and employment principles, while not imposing unreasonable restrictions on the employment rights of VPS executives.
Definition of separation risks
Separation risks exist when a VPS executive:
- considers leaving or leaves the VPS to the private sector
- becomes involved in lobbying, tendering for contracts or the provision of professional services to the Victorian Government.
Risks are higher for VPS executives due to their access to confidential information (including Cabinet-in-confidence material or information about competitors), technical knowledge and ability to foster relationships with government stakeholders and other VPS senior executives.
The misuse of such knowledge and relationships can:
- compromise information security
- create an anti-competitive market advantage
- threaten the integrity of the Victorian Government’s engagement with goods and service suppliers.
How to manage separation risks
Consider conflicts of interest
Identify, disclose and manage actual, potential and perceived conflicts of interest. A conflict of interest arises when an employee has private interests that could improperly influence their decisions or actions.
Consider the following to help minimise and manage risks before, during and after separation.
VPS executives who are leaving the public sector
VPS executives who are considering or preparing to leave public sector employment should:
- not allow emerging private interests linked with their future employment to influence any of their decisions
- remove themselves from any procurement or other activity that involves the organisation they’re moving to or its competitors
- remember their obligations about information security and improper use of information gained through their role
VPS executives who are staying in the public sector
Current VPS executives who aren’t leaving public sector employment should:
- not give preferential treatment to former VPS executives in professional dealings, particularly in procurement
- declare and manage any actual, potential or perceived conflicts of interest arising from professional interactions with former VPS executives who now work in the private sector.
Think about risk management
Tailor risk management strategies for all VPS executives before, during and after their separation from the VPS . This includes having policies and procedures on post-separation employment and procedures for managing any associated risks.
VPS employers can:
- advise current VPS executives on what to do when they come into professional contact with former VPS executives employed in the private sector whose business interests intersect with the organisation
- while the leaving VPS executive serves out their notice period, assess the risks that arise from the leaving VPS executive that include any decisions on their ongoing role, restrictions on activities they perform or information they have access to.
- brief and remind leaving VPS executives of their ongoing confidentiality obligations
- consider inserting a requirement in tender documents for suppliers to disclose if any of their team members have been employed in the VPS, including the department and their role.
Increase training and awareness
Departments and entities should provide training and resources to ensure that current and leaving VPS executives:
- are aware of the Victorian public sector values and their duties in the Code of Conduct
- can distinguish between personal skills and knowledge which is the property of the organisation (this includes their ongoing duty to never disclose specific classes of information, even when not employed in the VPS)
- are aware of the Gifts and Benefits policy
- can advise on the applicability of the Register of Lobbyists.
Manage risks with their executive contract
The VPS Standard Executive Employment Contract includes contract clauses relevant to the management of separation risks:
- clause 3(e) says “VPS executives, during the term of their employment, must avoid actual, potential, or perceived conflicts of interest.”
- clause 13 says “subject to certain exceptions, VPS executives are prohibited, without limiting obligations owed under common law or any other law, from, either during or after employment, using or disclosing to any person any confidential information.”
Be familiar with the executive employment handbook
The VPS Executive Employment Handbook references policies and a code of conduct relevant to the separation of VPS executives:
- clause 3(4) says “In compliance with the Victorian Government Professional Lobbyists Code of Conduct, VPS executives, for a period of 12 months following the cessation of their employment, are prohibited from engaging in lobbying activities that relate to any matter with which they had official dealing with in the last 12 months.”
- clause 10(5) says “Conﬁdential information obtained by an executive during their employment remains the intellectual property of their employer (unless agreed otherwise) and must not be used post-termination for personal gain or to advantage a prospective employer or business or disadvantage the Victorian Government.”
- clause 10(6) says “For certain VPS executive roles, the employer may wish to consider including an appropriately drafted restraint of trade clause in the executive’s employment contract.”.
Checklist for employers
Use this checklist to develop or update policies to manage separation risks for VPS executives.
- Ensure you have done appropriate pre-employment checks (including pre-employment screening)
- Communicate the code of conduct to prospective employees
- Consider and then if necessary, negotiate and record agreed post-separation requirements (such as a restraint of trade clause consistent with clause 10(6) of the executive handbook)
- Declare conflicts of interest when they arise.
- Ensure you have a process for dealing with and recording professional contact made by former employees and colleagues.
- Outline any declarations or restrictions of former VPS executives involved in projects in business documents, such as tenders and contracts.
Pre-separation includes notifications of resignation and offers of external employment.
- Assess the risk when a VPS executive gives notice they’re ceasing employment
- Act on assessed risks and any conflicts of interest that arise.
- Remind VPS executives of their obligation and continued duty to keep certain information confidential, even after leaving the VPS.
- Ensure VPS executives return your organisation’s property including laptops, mobile phones, portable data stores and any department information (and sign a declaration to this effect they’ve done so).
- Remove the VPS executive’s IT access when they cease employment.