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Engagement of people who have received a redundancy benefit
There are arrangements in place in the Australian Public Service (APS) which limit the subsequent employment of people who have received a redundancy benefit (a ‘redundancy benefit recipient’). The circumstances where the restrictions apply are set out in clauses 4.4 and 4.4A of the Public Service Commissioner’s Directions 1999 (the Directions).
Who is covered by the arrangements?
The arrangements apply to persons who have received a redundancy benefit from:
- an APS agency;
- the Australian Parliamentary Service; or
- the Murray-Darling Basin Commission (MDBC), in circumstances where the person did not accept an offer of employment in the APS made under s.72(1)(d) of the Public Service Act 1999 (the Act);
and their ‘redundancy benefit period’ has not expired.
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.
However, agency heads have the flexibility to engage persons prior to the expiry of their redundancy benefit period in certain circumstances (see below).
Note: As a result of an amendment to the Directions which came into effect on 1 March 2009, persons who receive a redundancy benefit from a non-APS Commonwealth employer (other than the Parliamentary Service and the MDBC, in the circumstances described above) are no longer covered by the arrangements. Such persons will be able to be engaged by an APS agency at any time, subject to the normal APS recruitment and selection processes being met.
How is the redundancy benefit period calculated?
The ‘redundancy benefit period’ is based on the number of weeks pay received as a redundancy benefit. The ‘redundancy benefit period’ is 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).
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.
Agencies could consider issuing a pro-forma letter which advised staff of their redundancy benefit period when terminating employment on excess grounds. Individuals could then provide this information to other agencies when applying for future jobs in the APS.
Note: Amendments to the Directions which came into effect on 1 March 2009 replaced the former blanket 12 month exclusion period (regardless of the level of benefit received) with this new arrangement. 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 APS recruitment and selection processes.
What needs to be done to engage a redundancy benefit recipient prior to the expiry of their redundancy benefit period?
Agency heads have limited scope to engage a redundancy benefit recipient in circumstances where the redundancy benefit period has not expired (see clause 4.4A).
In most cases, it is necessary to either gain the approval of the Public Service Commissioner (the Commissioner), or consult with the Commissioner, prior to the engagement.
Engagement as an ongoing APS employee or as a non-ongoing SES employee
An agency head is required to seek the approval of the Commissioner before engaging a redundancy benefit recipient as an ongoing employee (at an SES or non SES level) or as a non-ongoing SES employee. An agency head 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 and/or qualifications of the person.
Engagement as a non-ongoing (non-SES) employee
An agency head is required to consult with the Commissioner before engaging a redundancy benefit recipient as a non-ongoing (non-SES) employee for a specified term or a specified task, where the term of employment, or the duration of the task, is more than six months. Consultation is also 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. An agency head 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.
It is not 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). However, for such engagements (and for the engagement of a redundancy benefit recipient as an irregular or intermittent employee), the agency head needs to be satisfied 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.
Engagement as a locally engaged employee
An agency head is able 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 having regard to the nature of the duties to be performed and the skills, experience and/or qualifications of the person and consults with the Commissioner prior to the engagement.
These arrangements apply to the engagement as a locally engaged employee of a redundancy benefit recipient who is a former APS employee, a former employee of the Parliamentary Service and 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.
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 above in relation to ongoing and non-ongoing engagements.
Submissions to the Commissioner
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.
What pre-engagement procedures should agencies adopt?
Agencies’ pre-engagement documentation should make it clear to applicants that they need to declare whether they have received a redundancy benefit from an APS agency, the Parliamentary Service, or the MDBC (in circumstances where they did not accept an offer of employment in the APS made under s.72(1)(d) of the Act). In such cases, agencies will also need to establish whether the person’s redundancy benefit period has expired, either through information provided to the individual by their former agency, and/or by contacting the person’s former agency to establish/confirm relevant details.
Circulars and Advice
Legislation
- Public Service Commissioner's Directions 1999 ,clauses 4.4 and 4.4A
