240. The following provisions apply to all employees covered by this Agreement excluding:
- an employee serving a probationary period; and
- a non-ongoing employee.
241. The following definitions apply in this Agreement:
An employee will be considered excess where:
- the employee is part of a class of employees that is larger in size than is necessary for the efficient and economical working of the Agency; or
- the services of an employee cannot be effectively used because of technological or other changes in the work methods of the Agency, or structural or other changes in the nature, extent or organisation of the functions of the Agency; or
- the duties usually performed by the employee are to be performed in a different locality, the employee is not willing to perform the duties at the other locality and the Chief Executive Officer has determined that these provisions will apply to that employee
Discussion and Consideration Period
is a period of two months commencing from the date the Chief Executive Officer makes an employee a formal offer of voluntary termination
For an Excess Employee, includes:
- the employee’s substantive salary on the date of termination; and
- TPL where the employee has received the loading for a continuous period of at least 12 months immediately preceding the date on which the employee is given a formal offer of a voluntary termination; and
- allowances in the nature of salary which are paid during periods of Annual Leave and on a regular basis, excluding allowances which are a reimbursement for expenses incurred, or a payment for disabilities associated with the performance of duty.
is a period of 13 months where an employee has 20 or more years of continuous, current APS service at the time of the offer, or is over 45 years of age; or seven months for other eligible employees. The retention period commences the day after the expiry of the discussion and consideration period.
Voluntary Termination Offer
242. The offer must state when the Chief Executive Officer proposes to issue the termination notice if the offer is accepted.
243. The offer should include the following information to assist the employee in their considerations:
- amount payable as termination pay, pay in lieu of notice and accrued Annual Leave and Long Service Leave credits;
- amount of accumulated superannuation contributions;
- superannuation options;
- taxation rules applicable to the various payments; and
- the availability of financial assistance, on a reimbursement basis, towards obtaining independent financial advice up to the value of $1200.
Discussion and Consideration Period
244. Where an Excess Employee situation is identified the Chief Executive Officer will:
- advise in writing, the employee(s) directly affected and their representatives of the situation, the reasons and scope;
- discuss the voluntary termination and reassignment processes with affected employees;
- hold discussions with the employee(s) and their representatives; and
- offer the affected employee(s) voluntary termination.
245. The Excess Employee(s) will have two months in which to consider the offer of voluntary termination. An Excess Employee who has received an offer of voluntary termination must advise the Chief Executive Officer, in writing, before the end of the discussion and consideration period whether the Excess Employee wishes to be considered for re-assignment or voluntary termination.
246. The Discussion and Consideration Period may be shortened, with the written agreement of the Excess Employee. The Excess Employee will be entitled to receive payment for the unexpired portion of the discussion and consideration period as per clause 248.
247. If the Excess Employee does not accept the formal offer of voluntary termination or express a preference for reassignment, the Excess Employee will be taken to have a preference to be considered for reassignment, and their retention period will commence in accordance with clause 263.
248. Employees will be become excess one month after the date the Excess Employee receives a formal offer of voluntary termination unless during this time their employment has been terminated, they have been redeployed or the Chief Executive Officer decides they are no longer in an excess situation.
249. Should the Excess Employee request an earlier termination date that falls within the Discussion and Consideration Period, the employee will be entitled to receive payment for the unexpired portion of the Discussion and Consideration Period. In addition, the payment in lieu of the unexpired portion of the Discussion and Consideration Period will include an amount equivalent to the Annual Leave and Long Service Leave entitlements that would have accrued to the employee had they worked through their Discussion and Consideration Period.
Career Transition Assistance
250. At the time the employee is offered a voluntary termination or as soon as possible thereafter but, in any event, no later than one month after the voluntary termination offer, the Excess Employee will be offered Career Transition Assistance which will include:
- advice on the re-assignment and redundancy process;
- a point of contact for individual queries;
- assistance with identifying re-assignment opportunities; and
- training/redeployment assistance.
251. Employees may also access the Agency’s Employee Assistance Program for free personal counselling.
Voluntary Termination Process
252. If an employee accepts an offer of voluntary termination, and the Chief Executive Officer agrees to the termination, the Chief Executive Officer will issue a “notice of termination” under section 29 of the Public Service Act.
253. The period of notice will be four weeks, or five weeks for an employee over 45 years of age with at least five years of continuous, current APS service at the time of the offer. Where an employee elects to terminate their employment before the expiration of the notice period, payment in lieu for the unexpired portion of the notice period will be made.
254. Notice of termination will not be given before the end of the discussion and consideration period without the agreement of the employee.
255. Only one offer of voluntary termination will be made to an employee in an excess or potentially excess situation.
256. Job swaps will be available until the end of the period for discussion and consideration of voluntary termination where an employee who is excess but does not want a voluntary termination, swaps jobs with an employee from within the Agency or from another agency who is not excess but who wants voluntary termination. Job swaps are subject to the Chief Executive Officer’s approval on a case by case basis.
257. An employee who accepts voluntary termination and whose employment is terminated under section 29 of the Public Service Act on the grounds that they are excess to requirements will be entitled to the following severance pay, subject to any minimum amount the employee is entitled to under the NES:
- two weeks’ salary for each completed continuous year of service; and
- a pro-rata payment for completed continuous months of service since the last completed year of service.
- the minimum amount of severance pay is an amount equal to four weeks’ salary and the maximum amount payable is an amount equal to 48 weeks’ salary.
258. Severance pay is calculated on a pro-rata basis for any period of service when the employee worked part-time, subject to any minimum amount the employee is entitled to under the NES.
Service for Severance Pay Purposes
259. Service for severance pay purposes means:
- service in the Agency;
- Government service as defined in section 10 of the Long Service Leave Act;
- service with a Commonwealth body (other than service with a Joint Commonwealth-State body corporate in which the Commonwealth does not have a controlling interest) which is recognised for Long Service Leave purposes;
- service with the Australian Defence Forces;
- APS service immediately preceding deemed resignation under repealed section 49 of the Public Service Act 1922, if the service has not previously been recognised for severance pay purposes; and
- service in another organisation where an employee was transferred from that organisation with a transfer of function; or an employee engaged by that organisation on work within a function is appointed as a result of the transfer of that function to the APS and such service is recognised for Long Service Leave purposes.
260. For earlier periods of service to count, there must be no breaks between the periods of service, except where:
- the break in service is less than one month and occurs where an offer of employment with the new employer was made and accepted by the employee before ceasing employment with the preceding employer; or
- the earlier period of service was with the APS and ceased because the employee was deemed to have resigned from the APS on marriage under the repealed section 49 of the Public Service Act 1922.
Service Not to Count for Severance Pay Purposes
261. Periods of service that will not count as service for redundancy pay purposes are periods of service that ceased by way of:
- termination under section 29 of the Public Service Act; or
- prior to the commencement of the Public Service Act, by way of redundancy; forfeiture of office, retirement on the grounds of invalidity, inefficiency or loss of qualifications; dismissal or termination of probationary appointment for reasons of unsatisfactory service; or
- voluntary retirement at or above the minimum retiring age applicable to the employee; or
- payment of a redundancy benefit or a similar payment or an employer-financed retirement benefit.
262. Absences from duty which do not count as service for Long Service Leave purposes will not count for severance pay purposes.
263. Should an employee not accept the formal offer of voluntary termination, the employee will commence their retention period on the day after the expiry of the discussion and consideration period. The notice period will be concurrent with the retention period.
264. The intention of the retention period is to enable excess employees to be reassigned within the APS or to find other suitable employment. Consistent with this intention, during the retention period:
- the Agency will continue to provide and resource reasonable Career Transition Assistance, and take reasonable steps to move an Excess Employee to a suitable vacancy, to another agency and to pursue placements outside the APS consistent with this Agreement; and
- employees will take reasonable steps to secure permanent re-assignment or placement.
265. The retention period is:
- 13 months where an employee has 20 or more years of continuous, current service with the APS or is over 45 years of age; or
- seven months for other employees.
266. If an employee is entitled to a redundancy payment under the NES, the relevant period in the above clause is reduced by the number of weeks redundancy pay that the employee will be entitled to under the NES on termination, as at the expiration of the retention period (as adjusted by this clause).
267. Where the Chief Executive Officer determines there is insufficient productive work available to an Excess Employee during the retention period, the Chief Executive Officer may, with the agreement of the employee, terminate his or her employment under section 29 of the Public Service Act and pay the balance of the retention period as a lump sum.
Reassignment Services and Reduction in Classification
268. The following provisions will apply to employees during their retention period:
- The employee can access up to $1200 for payment for outplacement services or training opportunities that would be expected to enhance the employment prospects of employees.
- Excess Employees will be considered first and in isolation from, and not in competition with, other applicants who are not excess for an advertised vacancy to which the employee seeks transfer but only at or below the employee’s level. In placing Excess Employees, consideration will be given to the employee’s current skills and experience or the employee’s ability to acquire the relevant skills for the advertised vacancy in a short period of time.
- Suitable trial placements in another organisation including private sector organisations will be funded for up to three months where there is an identifiable opportunity for permanent placement and no job swap arrangement is involved. An individual employee may undertake more than one trial placement.
- The employee may on request, be provided with assistance in meeting reasonable travel costs and incidental expenses incurred in seeking alternative employment.
- If a suitable vacancy does not exist at the same level within the Agency or where the Chief Executive Officer proposes to reduce an Excess Employee’s classification as a means of securing alternative employment, the employee will be given four weeks' notice. If reduction occurs after the offer of voluntary termination and before the end of the retention period the employee will receive payments to maintain the employee’s salary level for the balance of the retention period.
- Employees over 45 years of age and employees in regional remote areas may be eligible for additional outplacement assistance (up to the value of $3,000) during the retention period.
Extension During the Retention Period
269. Retention periods will only be extended by certified leave for personal illness or injury or mandatory Maternity Leave, where the Chief Executive Officer is satisfied that an employee is substantially incapacitated and unfit for work. The retention period will not be extended for other absences except where the Chief Executive Officer is satisfied that exceptional circumstances exist. The period will not be extended on these grounds beyond an additional eight weeks.
270. If an Excess Employee is unsuccessful in obtaining permanent reassignment at the end of the retention period, his or her employment will be terminated under section 29 of the Public Service Act.
271. Where an Excess Employee’s employment is to be terminated the employee will be given four weeks' notice of termination, or five weeks for an employee over 45 years of age with at least five years of continuous, current APS service. This period of notice will be served, as far as practicable, concurrently with the retention period.
272. Where an Excess Employee elects to terminate their employment before the expiration of the notice period, payment in lieu for the unexpired notice period will be made.
273. In deciding whether to terminate an Excess Employee, the Chief Executive Officer will take account of any re-assignment process that may be in progress.
274. An Excess Employee may consent to involuntary termination during the retention period. Severance benefits are not available to employees who resign or consent to involuntary termination during the retention period.