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Last updated: 25 February 2009
Circular 2009/2: Engagement of redundancy benefit recipients
The provisions relating to the subsequent employment of a redundancy benefit recipient in the Australian Public Service (APS) have been amended to:
- remove most non-APS Commonwealth employers from coverage by the arrangements; and
- link the period of exclusion to the level of the redundancy benefit received.
2. The changes come into effect on 1 March 2009.
Background
3. Clauses 4.4 and 4.4A of the Public Service Commissioner’s Directions 1999 (the Directions) set out the arrangements that APS agencies must follow when proposing to engage a person who has received a redundancy benefit. These clauses deal with the engagement of redundancy benefit recipients as APS employees and as locally engaged employees under the Public Service Act 1999 (the Act).
4. The Public Service Commissioner has now made Public Service Commissioner’s Amendment Directions 2009 (No. 1) (the Amendment Directions) which replace existing clauses 4.4 and 4.4A of the Directions with new clauses 4.4 and 4.4A. The Amendment Directions are available on the Commission’s website at www.apsc.gov.au/publications/directionsamendment20091.doc. A consolidated version of the Directions, including this amendment, is also available on the Commission’s website at www.apsc.gov.au/publications/directionsConsolidated.doc.
5. This circular replaces previous circulars on this issue (2003/5 of 8 September 2003, 2006/5 of 30 November 2006 and 2008/9 of 18 December 2008).
Scope of the amendments
Who is covered by the new arrangements?
6. The new arrangements governing the employment of redundancy benefit recipients will apply to persons who have received a redundancy benefit from an APS agency, or from the Australian Parliamentary Service. In addition, former employees of the Murray-Darling Basin Commission (MDBC) who did not accept an offer of APS employment made under s.72(1)(d) of the Act and who received a redundancy benefit from the MDBC are also covered.
7. The arrangements will no longer apply to former employees of other non-APS Commonwealth bodies who received a redundancy benefit on cessation of their previous non-APS Commonwealth employment. There is no scope for those employees to be redeployed into the APS, prior to retrenchment.
8. Each of the following payments is considered to be a ‘redundancy benefit’: a severance payment, or similar payment, made to an employee on cessation of the employee’s employment; a payment made to an employee as a result of the shortening of a retention period; and an incentive payment to retire (see clause 4.4).
How long is the exclusion period?
9. For those persons still covered by these arrangements, the previous standard 12 month restriction will no longer apply.
10. The period of exclusion (or ‘redundancy benefit period’) will now be linked to the level of the redundancy benefit received by an individual. The ‘redundancy benefit period’ is to be calculated by dividing the amount of the person’s redundancy benefit (gross amount in dollars) by the person’s weekly salary that was used to calculate the benefit (see clause 4.4).
11. Other amounts that a person might receive on separation, such as payment for accrued entitlements and payment in lieu of notice of termination, are not taken into account when calculating the redundancy benefit period.
12. Where an individual’s redundancy benefit period has expired under these new arrangements, a person who was previously excluded by the 12 month period will be able to be employed by an agency, subject to the normal processes.
Engagement of redundancy benefit recipients prior to the expiry of the redundancy benefit period
13. There will continue to be limited scope for an agency head to engage a redundancy benefit recipient in circumstances where the redundancy benefit period has not expired.
14. Clause 4.4A of the Directions sets out the steps an agency head must follow prior to engaging such a person. In most cases, it continues to be necessary to either gain the approval of the Public Service Commissioner (the Commissioner), or consult with the Commissioner, prior to the engagement. However, the consultation arrangements have been simplified in relation to the engagement of non-ongoing APS employees at other than Senior Executive Service (SES) classifications.
Engagement of a redundancy benefit recipient as an ongoing APS employee or as a non-ongoing SES employee
15. The arrangements relating to the engagement of a redundancy benefit recipient as an ongoing APS employee (both SES and non-SES), or as a non-ongoing APS employee at an SES classification, have not changed.
16. In these circumstances, an agency head is required to seek the approval of the Commissioner before engaging the person and also needs to be satisfied that the engagement is essential to the agency’s operations having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person.
Engagement of a redundancy benefit recipient as a non-ongoing (non-SES) employee
17. It is now no longer necessary for an agency head to consult with the Commissioner prior to engaging a redundancy benefit recipient as a non-ongoing employee for a specified term or a specified task, where the person is to be employed for a period of six months or less (at a non-SES classification). Previously, consultation was required in some circumstances.
18. However, for such engagements (and for the engagement of a redundancy benefit recipient as an irregular or intermittent employee), clause 4.4A of the Directions still requires the agency head to consider that the engagement is essential for the agency’s operations, having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person.
19. Consultation with the Commissioner is still required where a redundancy benefit recipient is to be engaged as a non-ongoing employee for a specified term that exceeds six months, or for the duration of a specified task which is reasonably estimated as likely to exceed six months. Consultation will also be required where a redundancy benefit recipient is initially engaged for a specified term or task of six months or less and the period of employment is extended beyond six months, where the person’s redundancy benefit period has not expired.
Engagement of a redundancy benefit recipient as a locally engaged employee
20. An agency head will continue to be able to engage a redundancy benefit recipient as a locally engaged employee in circumstances where the agency head considers that the engagement is essential for the agency’s operations and consults with the Commissioner prior to the engagement.
21. These arrangements apply to the engagement as a locally engaged employee of a redundancy benefit recipient who is a former APS employee, or a former employee of a Parliamentary Service Department, or to certain ex-MDBC employees. They also apply to a former locally engaged employee who is seeking to be engaged again as a locally engaged employee.
- Note that a former locally engaged employee who is a redundancy benefit recipient and who seeks employment in the APS as either an ongoing or non-ongoing APS employee is covered by the arrangements set out in paragraphs 15 to 19 above.
Submissions to the Commissioner
22. In seeking the Commissioner’s approval, or when consulting with the Commissioner, prior to engaging a redundancy benefit recipient, an agency head will need to address the following issues:
- the specific skills, experience and/or qualifications required for the performance of the particular duties;
- the steps that the agency has taken to fill the employment opportunity (extent of advertising, etc.);
- whether there are any other suitable candidates for the vacancy;
- the level of benefit received, the organisation it was received from and the time that has elapsed since it was received;
- the agency head’s personal view of the proposal to engage the person; and
- any other factors considered relevant by the agency.
Pre-engagement procedures
23. Agencies should ensure that their pre-engagement procedures are amended to reflect this change to the Directions. Applicants for employment in the APS need to be made aware that they are covered by the arrangements set out in clauses 4.4 and 4.4A of the Directions if they received a redundancy benefit from an APS agency, the Australian Parliamentary Service, or the MDBC (in circumstances where the person rejected an offer of employment in the APS made under s.72(1)(d) of the Act) and their redundancy benefit period has not expired.
Implementation
24. The amended arrangements can be applied to engagements made from 1 March 2009. The Amendment Directions are able to be disallowed by Parliament. Further advice will be issued should disallowance occur.
Further advice
25. Agencies’ corporate areas can obtain further information on the matters raised in this and other circulars from the Commission’s Employment Policy Adviceline—by phone on (02) 6202 3859 or e-mail employmentadvice@apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with in writing. Individual APS employees should contact the corporate area in their own agency in the first instance.
Karen Wilson
Group Manager
Policy
25 February 2009
