Circular 1999/5: What ACTPS service is recognised for severance pay purposes in the APS?

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 clarify the arrangements in place concerning the recognition of service with the ACT Public Service (ACTPS) as service for severance pay purposes in the Australian Public Service (APS).

Background

2. The ACTPS was established as a separate entity on 1 July 1994. On that date persons working in the APS on ACT functions ceased, by operation of Commonwealth legislation, to be officers or employees of the APS. The people concerned were immediately appointed to, or employed in, the ACTPS by operation of ACT legislation.

3. At the time of the creation of the ACTPS, legislation was enacted which established reciprocal mobility arrangements between the two Services. The key elements of those arrangements are:

a right for officers of each Service to apply and compete on merit for non-Senior Executive Service vacancies in the other Service which are advertised for permanent filling; and
portability of certain benefits or recognition of service for certain purposes on movement between the two Services under the reciprocal mobility arrangements.

Recognition of service for severance pay - Commonwealth arrangements

4. In 1994 it was agreed between the Commonwealth and the unions that the Commonwealth would recognise:

APS service prior to 1 July 1994; and
ACTPS service between 1 July 1994 and the person's subsequent appointment to the APS

as service for severance pay purposes for all staff who transferred to the ACTPS on 1 July 1994, regardless of whether they joined the ACTPS from the APS or from a Territory-owned authority, if their APS, ACTPS and APS periods of service were continuous.

5. These arrangements are not covered by legislation but were given effect by an Administrative Instruction made by the Public Service Commissioner under section 76X of the Public Service Act 1922. These arrangements also reflect the principle that the APS only recognises service with non-Commonwealth organisations for severance pay purposes where staff move as a result of the compulsory transfer of a function - see subclause 11.4.8 of the former APS General Employment Conditions Award 1995 and clause 27.4.6 of the Australian Public Service Award 1998.

6. Under the arrangements agreed with the ACTPS, the Commonwealth does not recognise either combined APS and ACTPS service, or ACTPS only service, for severance pay purposes for persons who join the ACTPS after 1 July 1994 and later join (or rejoin) the APS, even though such periods of service may be continuous. This includes APS staff who exercise rights to deemed promotion or transfer to the ACTPS after 1 July 1994.

7. Persons who leave the APS to join the ACTPS in this manner, and subsequently rejoin the APS, are treated in the same way as employees of other State Governments who obtain employment in the APS, i.e. the only service that is recognised for severance pay purposes is the current period of APS employment.

Recognition of service for severance pay purposes - ACTPS arrangements

8. In 1994 the ACTPS agreed that, for APS employees compulsorily transferred on 1 July 1994 and for APS employees moving to the ACTPS under the reciprocal mobility arrangements after that date, it would recognise any continuous prior APS service for severance pay purposes where those employees were made redundant by the ACTPS.

9. For persons who:

joined the ACTPS on or after 1 July 1994; and
are subsequently appointed to the APS and retrenched;

the ACTPS has now advised that it will pay a severance benefit in respect of ACTPS service where this is not recognised as service for severance pay purposes by the APS, but it will not include payment for any previous periods of APS service that are not recognised as service for severance pay purposes by the APS. The ACTPS has also advised that the amount payable by the ACTPS to any retrenched APS employee under this commitment will not exceed an amount of two weeks' pay for each completed year of ACTPS service (plus a pro rata amount for completed months of service) up to a maximum of 48 weeks' salary.

Provisions in agency agreements

10. When these arrangements were agreed in 1994 each Service had its own Service-wide redeployment and redundancy arrangements. Since that time, however, both the APS and the ACTPS have moved to an environment where comprehensive terms and conditions of employment (including redeployment and retirement arrangements) are determined more and more at the agency level under agency specific agreements. In the APS this means that:

while severance pay (and therefore the definition of service for severance pay purposes) continues to be an allowable award matter and is prescribed in the Australian Public Service Award 1998 (which has replaced GECA), those provisions only operate in agencies which do not have an agency specific agreement; and
APS agencies and their staff are able to agree to vary the former Service-wide arrangements through Certified Agreements or Australian Workplace Agreements.

11. It should be noted, however, that agency level agreements cannot override or displace the reciprocal mobility arrangements which are contained in the Australian Capital Territory Government Service (Consequential Provisions) Act 1994.

12. In the light of these changed circumstances, individuals moving from the ACTPS to the APS and vice versa need to know whether the Service-wide arrangements for the recognition of prior APS or ACTPS service apply or whether the agency they are proposing to join recognises, or is prepared to recognise, their prior APS or ACTPS service for severance pay purposes. Individuals will need to resolve these issues on their own behalf.

Advice to staff

13. It is important that staff who are intending to move from the APS to the ACTPS, or have moved from the APS to the ACTPS and then back to the APS under the reciprocal mobility arrangements, are made aware of the information in this circular. It is suggested that APS agencies advise persons contemplating a move either to or from the ACTPS that they need to clarify the extent to which service with either jurisdiction will be recognised for severance pay purposes should they be retrenched. It is also suggested that agencies:

provide clear advice on the arrangements in place concerning the recognition of prior ACTPS service for severance pay purposes to APS employees who have such service and who are being offered voluntary retrenchment; and
encourage APS staff with prior ACTPS service who are offered voluntary retrenchment to contact the ACTPS for details of the severance payment (if any) they will receive in respect of the periods of service not recognised for severance pay purposes by the APS.

14. Further enquiries concerning this circular should be directed to the PSMPC's Helpline on (02) 6202 3859.

Jeff Lamond
Team Leader
Staffing Structures and Performance Team

May 1999