Voluntary medical retirement (VMR) scheme (Directive 06/24)

1. Purpose

1. This directive:
   1. provides a scheme for managing situations where reasonable adjustment measures have been considered and the employee cannot continue to perform the duties of their substantive role or other roles for which they are reasonably qualified due to significant illness or injury
   2. establishes the conditions and entitlements for permanent public sector employees under a voluntary medical retirement (VMR) scheme.

2. Commencement

2. This directive commences on 21 August 2024.
3. Commission Chief Executive (CCE) Directive 22/16: Voluntary medical retirement (VMR scheme) is repealed and superseded by this directive.

3. Authorising provisions

3. Section 222 of the Public Sector Act 2022 (the Act).

4. Application

4. This directive applies to:
   1. public sector employees described in section 12 of the Act, who are employed on a permanent basis in a public sector entity that is participating in the VMR scheme in accordance with this directive (a participating entity)
   2. public sector entities described in section 8 of the Act that are a participating entity
   3. chief executives of public sector entities as provided for in section 16 and 17 of the Act, in their capacity as a chief executive of a participating entity.
5. This directive does not apply to:
   1. public sector employees employed in a public sector entity that is not a participating entity
   2. public sector employees employed under another Act or law in a public sector entity on a non-permanent basis as described under section 81(1) of the Act
   3. public service employees employed under the Act on a non-permanent basis, including:
      1. fixed term temporary employees (under section 150 of the Act)
      2. casual employees (under section 151 of the Act)
      3. general employees employed on a temporary or casual basis (under section 149(2)(b) or (c) of the Act).
6. Section 229 of the Act outlines the relationship between a directive and an industrial instrument including how to deal with inconsistencies.

5. Principles

5. Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees.
6. Under the Human Rights Act 2019 decision makers must:
   1. act and make decisions in a way that is compatible with human rights
   2. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
7. Under chapter 1, part 3 (Reframing of State’s relationship with Aboriginal peoples and Torres Strait Islander peoples) of the Act, reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. A chief executive of a reframing entity is responsible for ensuring the entity fulfils its role when applying and making decisions under the Act and Commissioner directives.
8. Under chapter 2 (Equity, diversity, respect and inclusion) and chapter 3 (Public sector arrangements) of the Act, chief executives of public sector entities have a duty to promote equity and diversity and support a culture of respect and inclusion in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.
9. In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.
10. The Queensland Government is committed to supporting public sector employees with mental or physical illness or disability to maintain their employment and to achieve the best possible outcomes by a participating entity and an employee engaging in early discussions, working collaboratively and sharing relevant medical information.
11. Appropriate sensitivity and respect, consistent with the public sector principles under section 39 of the Act, must be applied when implementing processes under this directive.

6. Interpretation of directions

6. The requirements set out in these directions are binding and must be followed.
7. These directions:
   1. establish the delineation between the VMR scheme and managing illness or injury impacting upon the performance of duties and work performance matters
   2. establish a process for how a VMR application may be made, including subsequent actions to be taken by the chief executive
   3. establish circumstances in which an employee may be re-engaged following acceptance of a VMR package
   4. should be read in conjunction with the relevant authorising provision/s of the Act.

7. Reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples

7. Chief executives must consider the responsibilities under section 21 of the Act relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples, including but not limited to:
   1. promoting cultural safety and cultural capability at all levels of the public sector
   2. working in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, when making decisions directly affecting them
   3. promoting a fair and inclusive public sector that supports a sense of dignity and belonging for Aboriginal peoples and Torres Strait Islander peoples
   4. supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector.
8. In the context of promoting cultural safety in a VMR process, the matters a chief executive may consider include, but are not limited to:
   1. ensuring that the decision maker and any contact officer is culturally capable when assessing a VMR application that involves Aboriginal peoples and Torres Strait Islander peoples
   2. ensuring support, communication and correspondence is appropriate during a VMR process
   3. any elements of conscious or unconscious bias that may impact the process, including the use of mitigation strategies to address bias concerns.

8. Obligations of participating public sector entities

8. Participating public sector entities must communicate the VMR scheme to their employees and publish procedures on its intranet, or in another accessible way, to guide managers and employees about the process.

9. General conditions of VMR

9. An employee may seek support by accessing the entity’s employee assistance service or seeking advice from a union during the VMR process. A union representative may submit a VMR application on behalf of the employee.
10. Where an employee has made an application to a participating entity and the participating entity withdraws from the VMR scheme, the application must be decided under this directive as if the entity continued as a participating entity.
11. Where an employee has made an application to a participating entity and subsequently moves to a second entity due to machinery of government changes, the application must be decided under this directive regardless of the second entity being a participating entity or not.
12. Where an employee has been required to attend an independent medical examination and subsequently the public sector entity commences participation in the VMR scheme, it is open to the chief executive to invite the employee to apply for a VMR package under this directive.

10. Relationship with alternative processes under the Act

10. VMR is not an alternative to performance or conduct management in accordance with the principles under section 40 and section 85 of the Act.  However, there may be circumstances where the commencement or continuation of a performance or conduct process would not be appropriate in the context of the medical information available.
11. An employee subject to a current disciplinary process cannot apply for or be offered a VMR package.
12. The Act allows a chief executive to effectively and appropriately manage employees where their attendance and/or performance may be affected by mental or physical illness. This includes a requirement to submit to an independent medical examination (IME).
13. VMR is a distinct and separate process from an IME and subsequent decision under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act.
14. An employee cannot apply for a VMR package after the employee has been directed in writing to attend an IME under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act, unless invited to do so by the chief executive or the chief executive has made a decision under section 107 of the Act to continue an employee’s employment with or without reasonable adjustment.
15. Where an application does not meet the requirements for an offer of a VMR package or an employee declines an offer under clause 12.4, the chief executive should consider what action, if any, should be taken under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act.

11. VMR application

11. A public sector employee may apply for a VMR package where they have medical evidence that they have an injury or illness that prevents (or is reasonably likely to prevent) them from continuing in or returning to their substantive role or other roles for which they are reasonably qualified.
12. The medical evidence must address:
    1. the employee’s illness or injury including the short-term and long-term prospects for rehabilitation or reasonable adjustment
    2. the impact of the person’s illness or injury on their ability to safely and effectively perform their substantive role or other roles for which they are reasonably qualified.
13. The employee must provide medical evidence which the chief executive considers sufficient to consider the employee’s VMR application and is to include one specialist medical opinion.
14. An application made under clause 11.1 must also state whether the employee holds more than one role within the public sector. If so, the application for each role must state the title, enclose a copy of the role description and other relevant documentation (i.e. task analysis) and must address the impact of the injury or illness. Where multiple roles exist, clause 13 applies.
15. A participating public sector entity representative may suggest to an employee that they consider seeking medical advice to determine whether they should apply to retire under this directive.
16. The employee is responsible for meeting the costs associated with obtaining the medical evidence and any additional information requested by the chief executive.

12. Action following receipt of VMR application

12. In considering an application under clause 11.1, the chief executive must have regard to:
    1. the medical evidence received, including whether it provides sufficient information in accordance with clause 11.2
    2. attempts made by the participating public sector entity to maintain employment in line with the medical advice, for example the implementation of reasonable adjustment, transfer or other employment opportunities.
13. The chief executive may request the provision of independent medical advice to make an informed decision and the participating public sector entity will be responsible for the associated cost. This is not a direction under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act.
14. Following consideration of the factors set out in clause 12.1, a VMR offer must be made where the chief executive considers that the medical evidence sufficiently supports the application.
15. When making an offer, the chief executive must provide a letter to the employee outlining the VMR package. The letter of offer must:
    1. provide the employee with 14 calendar days to advise of their decision. Where no decision is made within 14 calendar days, the employee is deemed to have declined the offer, unless an extension is agreed to by the chief executive
    2. nominate a proposed separation date, however this date can be amended by mutual agreement. A nominated separation date should be determined by taking into consideration that the employee cannot continue in their role and that achieving an early resolution is in the interests of the employer and the employee
    3. include a statement to encourage the employee to seek advice from relevant organisations, including but not limited to:
       1. their superannuation fund
       2. the Australian Taxation Office
       3. Department of Social Services
       4. Services Australia (e.g. Centrelink and/or Medicare)
       5. National Disability Insurance Agency
    4. include a statement about the employee’s obligations under clause 16 if they were to be re-engaged in a Queensland Government entity following acceptance of a VMR package, which may include the repayment of the severance payment
    5. attach a copy of this directive.
16. Where the chief executive does not support an application made under clause 11, the employee must be provided with reasons in writing.

13. Employees with multiple roles

13. Where an employee holds multiple roles with participating public sector entity(ies) that are:
    1. substantially the same, and/or
    2. the nature of the illness or injury is such that it impacts on the employee’s ability to continue in more than one or all of the roles,
    an application under clause 11 must be made simultaneously in relation to all relevant permanent roles.
14. Where an employee holds multiple roles within a public sector entity the chief executive must consider the factors in clause 12.1 in relation to each role.
15. Where an employee holds a role in more than one participating public sector entity, the chief executives of the employee’s public sector entities must:
    1. consult with each other about any offer, including any opportunities to maintain employment (for example, a transfer)
    2. consider the application to retire in respect of the roles in their entity.
16. Where an employee holds multiple roles including a role in a non-participating public sector entity:
    1. the chief executive of the participating public sector entity must consult with the chief executive(s) of the other public sector entity(ies) about any offer, including opportunities to maintain employment (for example, a transfer)
    2. the chief executive(s) is/are responsible for determining whether any offer of a VMR package is contingent upon the employee separating from all public sector roles.
17. Where a chief executive has made a decision that an employee with multiple part-time roles is not required to separate from all roles to receive a VMR package, the employee may continue in their existing role (or substantially similar role) but the employee may not otherwise seek to be engaged as a consultant, contractor, or employee in a Queensland Government entity (as defined under section 276 of the Act), unless the requirements of re-engagement as set out in clause 16 are met.
18. A chief executive is responsible for determining if a role is substantially the same, having regard to whether the role uses the same skill sets as the existing role and whether it is or is not impacted on by the injury or illness which led to the VMR application under clause 11.
19. This directive is an authority for a chief executive to disclose information obtained as part of the VMR application to another chief executive under Information Privacy Principle (IPP) 11 subsection (1)(d) and National Privacy Principle (NPP) 2 subsection (1)(f) of the Information Privacy Act 2009 and any successor/s to any privacy principles resulting from legislative review.

14. VMR package

14. A VMR package comprises of the following:
    1. accrued recreation leave
    2. accrued long service leave for employees who have worked for at least five years, on the basis of 1.3 weeks for each year of continuous service and a proportionate amount for an incomplete year of service
    3. a severance payment of two weeks full-time pay per full-time equivalent year of service and a proportionate amount for an incomplete year of service paid at the employee’s substantive appointed level. The minimum payment is four weeks’ pay, and the maximum is 52 weeks.
15. For example, an employee who has worked four years on a full-time basis and one year on a part-time basis at 0.5FTE (total of four and a half full-time equivalent years of service) will receive a severance package of nine weeks paid at the substantive appointed level.

15. Taxation and disability payments

15. Employees are responsible for seeking their own independent advice in relation to financial and taxation issues and superannuation entitlements associated with accepting a VMR package, including the type and number of medical reports necessary to meet Australian Tax Office requirements for employment termination payments.
16. An employee receiving a VMR package may not necessarily be eligible for a disability payment under a superannuation scheme or a disability pension as different requirements must be met (for example, a Total and Permanent Disability payment under a superannuation fund).

16. Re-engagement

16. A person who accepts a VMR package under this directive may be re-engaged as a consultant, contractor, or employee in a Queensland Government entity (as defined under section 276 of the Act) provided that:
    1. the person provides medical evidence that clearly and unambiguously states that the person’s current condition would not affect their ability to safely and effectively perform the proposed role and re-engagement would not pose a risk of worsening or aggravating an existing injury or illness, including the injury or illness for which the person accepted a VMR package
    2. the employing public sector entity has completed a risk assessment that supports re-engagement
    3. the person repays the severance payment, where they are liable for repayment, as if it were a severance payment under the directive relating to early retirement, retrenchment and redundancy
    4. any other matters relevant to the proposed role and re-engagement are satisfied.
17. The person must provide medical evidence which the chief executive considers sufficient to make a decision about re-engagement and is to include at least one specialist medical opinion.
18. The person is responsible for meeting the costs associated with obtaining the medical evidence and any additional information requested by the chief executive.
19. The chief executive may request the provision of independent medical advice and the public sector entity will be responsible for the associated cost. This is not a direction under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act.

17. Appeals

17. A current public sector employee who is dissatisfied with a chief executive’s decision not to offer a VMR package may be able to lodge a fair treatment appeal in the Queensland Industrial Relations Commission in accordance with chapter 3, part 10 (Appeals) of the Act.
18. Appeals by public sector employees are heard and decided by the Queensland Industrial Relations Commission (QIRC) under chapter 11 of the Industrial Relations Act 2016.
19. The directive relating to appeals should be referenced for information regarding appeal rights and associated timeframes.

18. Records and reporting

18. Information obtained through the VMR process must be managed in accordance with chapter 8, part 3 (Confidentiality) of the Act and other relevant legislation including the Information Privacy Act 2009.
19. Any documents, reports or other information obtained through the VMR process must be retained and disposed of in accordance with the retention and disposal schedule approved by the relevant chief executive, or the Queensland Government General Retention and Disposal Schedule.
20. A chief executive must provide information about the implementation of this directive as requested by the Commissioner.

19. Transitional provisions

19. A public service agency participating in the VMR scheme at the time Directive 22/16 is superseded will continue to participate under this directive at the date of commencement.
20. A person who retired under the superseded directive 22/16 may be re-engaged as a consultant, contractor, or employee in a Queensland Government entity on the conditions set out in clause 16 of this directive.
21. Where an employee holds only one role in a participating public service agency and has made an application under the superseded directive 22/16 and as at the commencement date of this directive an offer has been made, but not yet accepted, a decision must be made under this directive.
22. Where an employee holds multiple roles across multiple public sector entities, has made an application under the superseded directive 22/16 to a participating public service agency and as at the commencement of this directive an offer for a VMR package has not yet been made, the employee must make an amended application to the participating public sector entity(ies) as per the conditions set out in clause 11.4 and the application must then be decided under this directive.

Unless otherwise provided, the terms in this directive have the meaning prescribed in the Act.

Multiple roles means multiple part-time roles or a combination of part-time and casual or other non-permanent employment, provided that at least one role is a permanent role.

Service for the purposes of determining the separation payment, means any period of service that has been recognised for the purposes of calculating long service leave. This includes the current period of employment and any previous periods of service recognised in accordance with the directive relating to recognition of previous service and employment. Where an employee has previously received a severance payment, any recognised service to that date will not count towards service when determining a separation payment under this directive.

Current disciplinary process means a discipline matter being handled by the public sector entity in accordance with the Commissioner directive relating to discipline when the application under clause 11 is made. For clarity, a discipline process commences when a chief executive writes to the subject employee to inform them that discipline will commence (usually a show cause notice on disciplinary finding).