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Last updated: 29 January 1999

Circular 1999/2: Redeployment and Retirement Framework and Award simplification

Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

The purpose of this circular is to advise agencies of changes to the redeployment and retirement arrangements for non-SES excess employees following the making of the Australian Public Service Award 1998 (the APS Award), and to remind agencies of the continuation of those arrangements not affected by the making of the new Award.

Background

2. The former Department of Workplace Relations and Small Business (DWRSB) Advice No. 1998/34 of 30 September 1998 advised that the APS General Employment Conditions Award 1995 (GECA) has been varied and renamed the APS Award with effect from 29 September 1998.

Redeployment and retirement arrangements

3. As a result of this action, a non-SES excess employee will now be covered by the relevant provisions of the Public Service Act 1922 (the Act) and

APS Award 1998

4. The redundancy provisions in the APS Award are significantly different to those that applied under GECA. For example, a number of provisions previously contained in clauses 11 and 12 of GECA were removed as part of award simplification, specifically:

5. Following these changes, the APS has an award which provides only for redundancy pay and notice of termination and related matters, such as the definitions of service and salary for severance pay purposes. A copy of the redundancy pay and notice of termination provisions of the APS Award are at Attachment A.

Transitional provisions under the APS Award

6. Under subclause 27.8 of the APS Award, actions commenced prior to 29 September 1998 under the redeployment and retirement provisions of GECA are subject to transitional arrangements. Under the transitional provisions, aspects of the redeployment and retirement provisions of GECA are preserved, but not all of the previous arrangements are continued. For example, agencies should note that where discussions with unions had commenced in accordance with subclause 11.3 of GECA, the provisions of GECA apply only until the required discussions have been completed. After the discussions contemplated by GECA have been completed the provisions of the APS Award apply.

Relocation expenses under the APS Award

7. The expenses payable to an excess employee moved to a new location are now found in subclause 26.8 of the APS Award. A copy of those provisions is at Attachment B.

Redundancy benefit under the APS Award

8. For an employee covered by the APS Award, service for severance pay purposes and the level of redundancy benefits, namely 2 weeks' salary for each completed year of continuous service to a maximum of 48 weeks' salary, are defined in the Award. Under the Award, redundancy benefits are payable to a retrenched employee regardless of whether the employee has been terminated with or without consent. Under these circumstances, agencies need to ensure that excess employees are managed appropriately under the transitional provisions to ensure that redundancy pay is not made available to an employee who rejected voluntary retrenchment and has had access to retention in employment for 7 or 13 months as provided under GECA.

Operation of the APS Enterprise Agreement

9. The redeployment and retirement provisions of the APS Enterprise Agreement apply only to staff not covered by an agency-specific agreement or an AWA. Agencies previously covered by GECA who are now covered by the APS Award will find that there are redeployment and retirement matters which were removed from the Award as part of award simplification (e.g. consultation in excess staff situations and consideration for redeployment) which appear in the APS Enterprise Agreement. While an agency is covered by the APS Enterprise Agreement those provisions will continue to apply.

Operation of redeployment and retirement provisions under agency-specific agreements or AWAs

10. Agencies with agreements or AWAs for non-SES staff that call up the redeployment and retirement provisions of GECA need to be aware of whether they refer to GECA:

11. Where an agency agreement or AWA provides that the redeployment and retirement provisions of GECA, in operation on a particular date, apply, then those provisions continue to operate. Whereas under an agency agreement or AWA that calls up the redeployment and retirement provisions of GECA, as varied from time to time, the provisions contained in the APS Award will now apply.

Retirement with consent

12. When a Secretary proposes to retire an excess employee who has consented to retirement, the Secretary must give the employee notice of retirement under subsection 76W(1) of the Act for the retirement to take effect. Before the notice is given, the employee's consent in writing should be obtained and the date of retirement settled.

Retirement without consent

13. Before an agency can retire an excess employee without consent, the agency is required, in accordance with section 76W(2) of the Act, to seek approval from the Public Service Commissioner. Under the Act, the Commissioner must take such action as is reasonable to find alternative employment for the employee and be satisfied, before approval is given, that it is not in the interests of the efficient administration of the Service to transfer the employee to another agency. This provision applies to all involuntary retirements regardless of whether the employee is covered by an agency specific agreement, an AWA or the APS Award.

14. Requests for approval to the involuntary retirement of an excess employee should be forwarded to the Team Leader, Staffing, Structures and Mobility Team, Public Service and Merit Protection Commission. The following information should be provided in support of any request for approval to retire an excess employee who has not consented to retirement:

15. Where an excess employee has been referred to the APS Labour Market Adjustment Program (APSLMAP) for assistance with redeployment, this should be indicated. In such cases APSLMAP will provide advice to the Public Service Commissioner or delegate on the prospects of transferring the employee to another agency.

Role of APSLMAP

16. Currently APSLMAP provides a range of career transition services to surplus and excess employees referred by their agencies on a fee for service basis. Excess staff in agencies covered by the APS Enterprise Agreement who do not wish to accept voluntary retrenchment must be referred to APSLMAP and agencies with agency-specific agreements or AWAs are encouraged to continue to use APSLMAP services to assist those employees seeking redeployment.

Working with agencies

17. Agencies seeking further advice on the application of the redundancy arrangements in the APS Award should contact the PSMPC. The PSMPC is also keen to work with agencies to develop flexible and workable agency-specific redeployment and retirement arrangements for inclusion in their agreements.

18. Enquires in relation to this and other issues raised in this circular should be directed to the PSMPC's Hotline on (02) 6202 3859.

 

Jeff Lamond
Team Leader
Staffing, Structures and Mobility Team

January 1999

Attachment A

27. Redundancy pay and notice of termination

27.1. Eligible employee: An employee other than:

27.1.1. an officer whose appointment to the APS on probation has not been confirmed; or

27.1.2. an employee who is not an officer, except a continuing employee as defined in Division 10 of Part III of the Act who has been an employee for more than one year is an eligible employee.

27.2. Excess employee: An employee is an excess employee if:

27.2.1. the employee is included in a class of employees employed in the agency, which class comprises a greater number of employees than is necessary for the efficient and economical working of the agency;

27.2.2. the services of the employee cannot be effectively used because of technological or other changes in the work methods of the agency or changes in the nature, extent or organisation of the functions of the agency; or

27.2.3. the duties usually performed by the employee are to be performed at a different locality, the employee is not willing to perform duties at the locality and the Agency Head has determined that the provisions of this clause apply to that employee.

27.3. Entitlement: An excess eligible employee whose employment is terminated will be entitled to be paid redundancy pay of a sum equal to 2 weeks salary for each completed year of continuous service, plus a pro rata payment for completed months of service since the last completed year of service.

27.3.1. Minimum and maximum payments: The minimum sum payable as redundancy pay on termination will be 4 weeks salary and the maximum will be 48 weeks salary.

27.3.2. Pro rata entitlement: Redundancy pay will be calculated on a pro rata basis where the employee has worked part-time hours during the period of service and the employee has less than 24 years full-time service.

27.4. Service for redundancy pay purposes: For the purpose of calculating an entitlement in accordance with 27.3, "service" means:

27.4.1. service in an agency;

27.4.2. Government service as defined in section 10 of the Long Service Leave (Commonwealth Employees) Act 1976;

27.4.3. service with the Commonwealth (other than service with a joint Commonwealth-State body or a body corporate in which the Commonwealth does not have a controlling interest) which is recognised for long service leave purposes;

27.4.4. service with the Australian Defence Forces;

27.4.5. APS service immediately preceding deemed resignation under the repealed section 49 of the Act if the service has not previously been recognised for redundancy pay purposes; and

27.4.6. service in another organisation where:

27.4.6.a. an employee was transferred from the APS to that organisation with a transfer of function; or

27.4.6.b. 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.

27.4.7. Service not to count as service for redundancy pay purposes: Any period of service which ceased in any of the following ways will not count as service for redundancy pay purposes: retrenchment; retirement on grounds of invalidity; inefficiency or loss of qualifications; forfeiture of office; dismissal; termination of probation appointment for reasons of unsatisfactory service; or voluntary retirement at or above the minimum retiring age applicable to the employee or with the payment of an employer-financed retirement benefit.

27.4.8. Earlier periods of service: For earlier periods of service to count there must be no breaks between the periods except where:

27.4.8.a. 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

27.4.8.b. 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 Act.

27.4.9. Absences during a period of service: Absences from duty which do not count as service for long service leave purposes will not count as service for redundancy pay purposes.

27.5. Rate of payment - redundancy pay: For the purposes of calculating any payment under 27.3 or 27.7, "salary" will include:

27.5.1. the employee's full time salary, adjusted on a pro rata basis for periods of part time service; and

27.5.2. for an allowance to be included as salary for redundancy pay purposes it will have been paid during periods of annual leave and on a regular basis and not be a reimbursement for expenses incurred or a payment for disabilities associated with the performance of a duty.

27.5.3. Higher duties payments are to be included in salary where the employee has been acting in a higher position for a continuous period of at least 12 months immediately preceding the date on which the employee is given notice of termination.

27.5.4. Shift penalties are to be included in salary where the emplovee has undertaken shift work and is entitled to shift penalties for 50% or more of the pay periods in the 12 months preceding the date on which the employee is given notice of termination. The employee is entitled to have the weekly average of the penalties payable over the 12 months immediately preceding the date on which the employee is given notice of termination included in salary.

27.6. Period of notice - termination: Where an excess eligible employee is terminated, the period of notice will be 4 weeks. In the case of an employee over 45 years of age with at least 5 years continuous service the period of notice will be 5 weeks. Where the Agency Head directs, or the employee requests, a termination date within the notice period, the employee's employment will terminate on that date. The employee will be paid compensation instead of notice for the unexpired portion of the notice period. The payments an employee would have received in respect of the ordinary time the employee would have worked during the period of notice, had the employment not been terminated, will be used in calculating any payment in lieu of notice.

27.6.1. Time off during notice period: An employee will be entitled to reasonable time off with full pay to attend necessary employment interviews, from the date the period of notice commences.

27.6.2. Expenses: Where expenses to attend interviews are not met by the prospective employer, the employee will be entitled to reasonable travel and incidental expenses incurred.

27.7. Reduction in classification: Where the Agency Head proposes to reduce an excess employee's classification either:

27.7.1. the employee will be given the same period of notice as the employee would have been entitled to receive if the employment had been terminated; or

27.7.2. the employer may pay an amount to maintain the level of salary received by the employee at the date of notice of reduction in classification for the number of weeks of notice still owing. Such payments will be calculated in accordance with subclause 27.5.

27.8. Transitional provisions:

27.8.1. Subject to 27.8.2 where, at the date of commencement of this Award a union had been notified of a likely excess staff situation or discussions had commenced in accordance with subclause 11.3 of the Australian Public Service General Employment Conditions Award 1995, the provisions of that subclause will apply until the required discussions have been completed, from which time the provisions of this Award will apply.

27.8.2. Where one month has elapsed since the union was notified of a likely excess staff situation in accordance with subclause 11.3 of the Australian Public Service General Employment Conditions Award 1995, and in the opinion of the Public Service Commissioner the discussions have not proceeded with reasonable timeliness, the provisions of this Award will apply.

27.8.3. Where at the date of commencement of this Award an employee had been invited to volunteer for retrenchment or had been advised in writing that the employee was an excess employee in accordance with the provisions of clauses 11 and 12 of the Australian Public Service General Employment Conditions Award 1995:

27.8.3.a. the provisions of clauses 11 and 12 of the Australian Public Service General Employment Conditions Award 1995 continue to apply to the employee while the employee remains an excess employee and the employee is not entitled to the benefits of 27.3 of this Award; and

27.8.3.b. where the employee has declined an offer of voluntary retrenchment and the Agency Head proposes to involuntarily retire the employee, the employee is not entitled to the benefits of subclause 27.3 of this Award.

Attachment B

26.8. Removal expenses:

26.8.1. Definitions: "eligible transferred employee" means:

26.8.1.a. an employee transferred from one locality to another under section 50, 50DA, 50DB, 51(3) or Division 6 of Part III or 76W of the Act:
  • on transfer in the interest of the APS or on promotion;
  • on account of an illness which justifies the transfer;
  • on transfer to a locality listed in Table 26C (District Allowance)
  • on transfer after the employee has been stationed at one or more of the localities listed in Table 26C (District Allowance) for a continuous period of not less than 3 years;
  • upon a disciplinary transfer; or
  • in the case of an excess employee, on transfer at the same or at a lower classification;

26.8.1.b. an employee transferred from one locality to another for a period of not less than 13 weeks as a result of a direction under Regulation 116; or

26.8.1.c. a person who is obliged to transfer to a new locality as a result of appointment to the APS or temporary engagement in an agency, and reimbursement for the cost of conveyance and removal is approved.

26.8.2. Entitlement: An eligible employee is entitled to be paid:

26.8.2.a. the cost of conveyance of the employee, dependants and partner by the most economical means;

26.8.2.b. the reasonably incurred cost of removal of furniture and household effects of the employee, dependants and partner; and

26.8.2.c. the reasonably incurred expenses in kennelling and transporting a pet or pets, to a total amount not exceeding $135.00 from the locality resided in immediately prior to the transfer to the new locality.

26.8.3. Loss or damage: Where removal arrangements have been approved by the agency, compensation will be payable for loss or damage to a maximum of $53,000.

26.8.4. Travel by private motor vehicle: Where the Agency Head has authorised that travel under 26.8.2.a may be undertaken by private motor vehicle, the employee will be entitled to payment under 26.1 (Motor vehicle allowance).

26.8.5. Retirement or death of employee: Where an employee retires, is retired from the APS or dies, the Agency Head may authorise the payment of the expenses reasonably incurred by the employee, dependants and partner of the employee in respect of conveyance and removal of furniture and household effects.

26.8.6. Other employees: Where a temporary employee who has been continuously employed by the Commonwealth, and whose costs of conveyance and removal on engagement were met by the agency, ceases employment other than as the result of disciplinary action, resignation or application to transfer from a remote locality, the Agency Head may authorise a discretionary payment of reasonable conveyance and removal costs to the employee's residence prior to engagement.