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Last updated: 12 February 1997

Management of excess staff situations 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 booklet, Management of Excess Staff Situations in the APS continues the series of human resource management publications issued by the Public Service and Merit Protection Commission. It is designed to provide agencies with the legal framework within which they must operate and offers guidance on how agencies can best pursue the application of good practice in the area of excess staff.

These booklets, with their focus on principles and good practice rather than on prescriptive and complicated directions, reflect the devolved environment in which the Australian Public Service now operates. They recognise that, while legal requirements must still be satisfied, sufficient scope exists to allow agencies flexibility in meeting those requirements.

I hope that you will find the booklet of assistance, both in ensuring that the legislative requirements in relation to excess staff are satisfied, and in helping you to achieve good practice in managing the staffing aspects of excess staff situations.

The nature of the public sector employment framework is currently under review, and major amendments to the Industrial Relations Act 1988 (now known as the Workplace Relations Act 1996) were recently passed by Parliament. Agencies will be informed of any changes to the legal and policy framework as they occur.

Dr Peter Shergold
Public Service Commissioner
December 1996

How to use these guidelines

These guidelines draw together the Redeployment and Retirement Provisions of the APS General Employment Conditions Award 1995; relevant areas of the Continuous Improvement in the APS Enterprise Agreement: 1995-96; and relevant parts of the Public Service Act 1922. These elements are collectively known as the Redeployment and Retirement framework (R&R framework). The guidelines also contain good practice advice.

The provisions of the Award replace the provisions of the APS Redeployment and Retirement (Redundancy) Award 1987.

These guidelines supersede the Excess Staff Instructions and all circulars issued on excess staff matters prior to 13 May 1996.

For convenience the Award provisions are shown in italics on a shaded background on the left hand page. Good practice advice is set out in plain type on the opposite page(s).

To manage an excess staff situation successfully and achieve effective outcomes, agencies need to meet not only their legal obligations but also ensure that they adopt good people management practices. The guidelines have been developed to help agencies ensure that their excess staff practices are consistent with the requirements of the R&R framework and to help managers achieve good excess staff practice.

It is important that staff using these guidelines:

familiarise themselves with all elements of the R&R framework; and
do not simply seek to apply one element of the guidelines in isolation from any other.

Definitions and commonly used terms

Act means the Public Service Act 1922, as amended from time to time;

Agency means a department as defined in the Act;

Agency award means the APS Agency Specific Provisions Award or similar award or certified agreement specific to that agency;

AIRC means the Australian Industrial Relations Commission;

APS means the Australian Public Service;

APS Enterprise Agreement means the Continuous Improvement in the APS Enterprise Agreement: 1995-96;

Award means the APS General Employment Conditions Award 1995 (Print No M8993);

Classification award means an award of the AIRC that establishes a classification structure and rates of pay within the APS;

Commissioner means the Public Service Commissioner, or delegate or person authorised. (Where an authority or power is conferred on the Commissioner under the Award it will be read that this authority or power rests with the Presiding Officer(s) or delegate of the Presiding Officer(s) in respect of the Parliamentary Departments);

DIR means the Secretary, Department of Industrial Relations, or delegate or person authorised. (Where an authority or power is conferred on DIR under the Award it will be read that this authority or power rests with the Presiding Officer(s) or delegate of the Presiding Officer(s) in respect of the Parliamentary Departments);

employee includes officer and employee whether full or part-time as defined in the Act. For the purposes of the R&R provisions an employee does not include an officer whose appointment to the Service on probation has not been confirmed, a Secretary, unattached Secretary or a Senior Executive Service officer; and does not include an employee under Division 10 of Part III of the Act other than a continuing employee who has been an employee for more than one year;

EWANO means employees who are not officers. For the purposes of the R&R provisions an EWANO is a continuing employee as defined in Division 10 of Part III of the Act who has been an employee for more than one year;

excess employee means an employee who is excess within the meaning of subclause 11.1 of the Award;

involuntary retirement means the retirement of an excess employee under section 76W of the Act in accordance with subclause 11.5 of the Award;

officer has the same meaning as in the Act;

PSMPC means the Public Service and Merit Protection Commission;

potentially excess employee means an employee who is likely to become an excess employee;

R&R provisions means Clauses 11 and 12 of the Award;

reduce in classification has the same meaning as in section 76T of the Act and includes, in relation to an employee, employing that employee in a lower capacity;

Secretary means a person for the time being performing the duties of an office of Secretary as defined in the Act, and includes a delegate of the Secretary or a person authorised for the purpose by the Secretary;

severance benefit means the benefit payable in accordance with paragraph 11.4.7 of the Award;

staffing structure means the number and classification of employees and the extent of temporary assistance which a Secretary considers necessary for the efficient and economical operation of an agency or a work area within it;

transfer means any permanent movement of an employee by the Secretary or Commissioner at or below level to a vacant office and also refers to a direction for a continuing employee to perform duties.

union means a union party to this Award, and where appropriate, includes the relevant national union official or nominated representative;

voluntary retrenchment means the retirement of an excess employee under section 76W of the Act and in accordance with subclause 11.4 of the Award; and

work area or workplace means a Division, Branch or other organisational unit within an agency.

Introduction

Background

The environment in which the Australian Public Service (APS) operates is constantly changing with Government reviewing its involvement in particular programs and services, and considering whether it should be a provider, purchaser or manager of specific services.

Reform in the APS gained impetus following the structural change which occurred as a consequence of the 1987 Machinery of Government changes. There has been ongoing reform in all areas of the APS since that time.

A major issue for Government is the cost of providing services to the community. In reviewing the provision of services there is often a total or partial restructuring of agencies; or there may be outsourcing or contracting out of services, the establishment of joint ventures, or the privatisation of services. Many of these changes lead to a situation where APS staff may become excess to requirements.

It is good practice to manage excess staff situations with proper regard for the rights and interests of affected staff. However, the fair treatment of affected staff needs to be balanced against the rights and interests of the other staff of the agency, the financial obligations of the agency and the need to provide services to the community in an efficient and effective way.

Although all sectors of Australian employment are bound by aspects of the industrial relations framework, the APS has a specific framework for managing excess staff-the Redeployment and Retirement framework.

The Framework for the management of excess staff

The Redeployment and Retirement framework provides a comprehensive set of interrelated arrangements for the management of excess staff situations. The elements of the framework are:

the Redeployment and Retirement Provisions (R&R provisions) contained in clauses 11 and 12 of the APS General Employment Conditions Award 1995 (the Award) which came into effect on 14ÊDecember 1995;
provisions of the Continuous Improvement in the APS Enterprise Agreement: 1995-96 (the APS Enterprise Agreement) which came into effect on 22 September 1995; and
Division 8C of the Public Service Act 1922 (the Act).

The R&R framework sets out the legal obligations of agencies in relation to the management of excess staff situations. But this legal framework does not, for example, tell agencies what good people management is, how to restructure an agency or how to identify who is an excess employee.

It is important to understand and use, where appropriate, all of the elements of the R&R framework. Unless a comprehensive approach is adopted in managing an excess staff situation, the process may not work effectively and the outcomes sought by an agency may not be realised.

Related requirements

In managing excess staff situations, agencies should be aware of their obligations under:

the termination of employment provisions of the Workplace Relations Act 1996 (the WR Act);
the Superannuation Act 1976 (for members of the Commonwealth Superannuation Scheme) and the Superannuation Act 1990 (for members of the Public Sector Superannuation scheme);
the Income Tax Assessment Act 1936 and associated Rulings and Regulations.

Agencies will need to ensure that they keep abreast of any changes to legislation affecting the management of excess staff. The PSMPC will advise agencies of changes as soon as they occur.

Agencies also need to have regard to any obligations in their agency specific workplace bargaining agreement which may impact on the management of change and the reduction of staff.

Good Practice Advice

Strategic planning

The first step in good people management is to develop a comprehensive strategic plan for managing an excess staff situation. An important element in such a plan is the establishment of a team of appropriately resourced and skilled staff to manage the process.

The plan should also make provision for the careful management of the staff who are to remain in an agency after the downsizing has occurred. Experience has shown, for example, that the staff who remain with the agency may have low morale and special attention may need to be given to workload issues.

Potentially excess staff situations

Circumstances which may lead to potentially excess staff situations include:

the cessation of a program;
work no longer being required to be undertaken by APS staff;
the transfer of a function to a body outside Commonwealth employment;
a program being substantially restructured with changes to the duties of staff or fewer positions, or both;
the funding for the agency being decreased with an overall decrease in the number of staff; or
a function or agency being relocated from one city to another and staff not wishing to relocate.

Excess staff situations

An excess staff situation arises from:

there being a greater number of employees than is necessary for the efficient and economical working of the agency;
an employee not being effectively used because of technological or other changes in work methods, or changes in the nature, extent or organisation of the functions of the agency; or
an employee's duties being performed at a different locality, the employee being unwilling to relocate, and the Secretary having determined that the excess provisions apply to the employee.

Agency experiences

Agencies who have managed excess staff situations have generally concluded that:

the process should be actively, but fairly managed;
it is important to adhere to the provisions of the R&R framework;
consideration needs to be given to the skills and experience required of employees to be retained by the agency when identifying staff who are excess to requirements
- this may be assisted by establishing orders of merit;
an agency-wide 'hands-up' approach to voluntary retrenchment may result in many of the agency's best and most experienced staff leaving, and may lead to low morale and large numbers of grievances from staff who have not been offered voluntary retrenchment;
there should be open and honest communication and consultation with both staff and unions; and
a lack of information for staff on the changes occurring can engender fear, uncertainty and resistance to change.

Experience also suggests there may be an increase in claims for compensation arising out of redundancy processes. Information from Comcare on handling such claims is at Attachment A.

R&R Framework - Major Elements

The R&R framework is a complex set of interrelated legal requirements. Nevertheless, it is important that managers become familiar with them. The elements drawn out below underpin that framework:

The Award covers all permanent APS staff except for an employee whose appointment to the APS on probation has not been confirmed; a Secretary or unattached Secretary; and a Senior Executive Service officer. It also covers continuing employees who have been continuously employed for more than one year.
As soon as an agency is aware that an excess staff situation is likely to arise, the agency must provide the union(s) with relevant details and arrange discussions with the union(s).
An employee cannot be invited to elect for voluntary retrenchment or be advised that he or she is an excess employee within one month of the union being provided with the relevant details, unless the union agrees to a lesser period.
An employee cannot be invited to accept voluntary retrenchment or be advised that he or she is an excess employee until the discussions with the union have been completed unless the Public Service Commissioner determines that the discussions have not proceeded with reasonable timeliness and it is appropriate to proceed.
An employee who has been invited to elect for voluntary retrenchment must be given one month to consider the offer and must be provided with appropriate financial and other information to make an informed decision.
An employee who is declared excess and seeks redeployment or who has rejected a formal offer of voluntary retrenchment must immediately be referred to the APS Labour Market Adjustment Program (APSLMAP) in the Public Service and Merit Protection Commission (PSMPC) for redeployment assistance.
Only one offer of voluntary retrenchment may be made to an excess employee.
An excess employee cannot be retired without consent until:
- he or she has received and has declined an invitation to elect for voluntary retrenchment; and
- the retention period (of 7 or 13 months) has elapsed; and
- the Commissioner is satisfied that it would not be in the interests of the efficient administration of the Service to transfer the employee under section 51 of the Act to another agency.
An employee who has declined an offer of voluntary retrenchment under paragraph 11.4.3 of the Award and who is later retired during or at the end of their retention period under paragraph 11.5 of the Award does not receive the severance benefit payable to an employee who accepts an offer of voluntary retrenchment.

Assistance provided by the PSMPC

The PSMPC has had extensive experience in advising and assisting agencies in managing the staffing consequences of restructuring and managing redeployment and redundancy situations. The PSMPC is available to provide advice and assistance to agencies. It is desirable that any assistance be sought at the earliest possible stage in the process.

The APS Labour Market Adjustment Program's main function is to provide direct assistance to agencies to redeploy excess employees across the APS.

The PSMPC provides a 'Hotline' telephone service for general enquiries. The number is (02) 6202 3859.

These guidelines and other information on the management of excess staff situations are available on the Internet. The Internet address is www.apsc.gov.au.

Flow Chart - Steps to be followed in managing an excess staff situation

The following flow chart provides an overview of the process for managing an excess staff situation.

Circumstances occur which may lead to redundancies eg: abolition of function, reduction in running costs, etc. Redeployment/retirement process commences with consultation with unions. Department identifies who is excess to requirements. Department may formally declare the employees 'excess'. Department establishes who among the affected employees wants voluntary retrenchment immediately and who wants redeployment.

REDEPLOYMENT ACTION Employee is declared 'excess', if this has not already occurred. Retention period of 7 or 13 months (depending on age and length of service) commences (or continues). Employee is immediately referred to APSLMAP. Redeployment prospects are assessed across the service. An employee may be reduced in classification to achieve redeployment. If this occurs without consent, the employee may appeal. Within two months of referral to APSLMAP, employee must be made an offer of VR (but only if one has not already been made). If offer made go to step 2 'Voluntary Retrenchment'. INVOLUNTARY RETIREMENT At the end of the retention period a notice of retirement may be issued*, subject to the Public Service Commissioner's approval.		VOLUNTARY RETRENCHMENT Department may offer VR after taking action to access redeployment prospects. Employee has one month to consider the offer. Does employee accept VR? NO-go to step 2 'Redployment Action' YES-continue Notice of retirement issued*.
*An excess employee may seek a remedy for the termination of their employment by applying to the Australian Industrial Relations Commission if he or she believes the termination was unlawful, but this does not alter the date of effect of the retirement notice.

Note: This is a diagrammatic representation of the process and is to be used in conjunction with the formal provisions of the Award.

R & R Provisions - Definitions and application

11 Redepolyment, Retirement and Redundancy Provisions.¹

11.1 Definitions

11.1.1. Excess employee: For the purposes of this clause an employee is a excess employee if:

11.1.1.(a) 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;

11.1.1.(b) 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

1.1.1.(c) where the duties usually performed by the employee are to be performed a different locality, the employee is not willing to perform duties at the locality and the Secretary has determined that the provisions of Division 8C of the Act apply to that employee.

11.2 Application

11.2.1. Excluded employee: The provisions of this clause do not apply to excluded employees. An excluded employee is:

11.2.1.(a) an employee whose appointment to the APS on probation has not been confirmed; or

11.2.1.(b) an employee who is not an officer, except:

11.2.1. (b)(i) a continuing employee, as defined in Division 10 of Part III of the Act, who has been an employee for more than one year

11.2.1.(c) a Secretary or unattached Secretary; or
11.2.1.(d) a Senior Executive Service officer.

¹ See Clause 12 (EWANO) for variations to these conditions for employees who are not officers.

Good Practice - Definitions and application

Excess employee

Action in relation to an excess employee cannot be taken unless an employee falls or is likely to fall within the definition of an excess employee. Subparagraph 11.1.1(c) of the R&R provisions refers to Division 8C of the Act. See Attachment B for relevant extracts from Division 8C.

There are a number of steps that need to be taken before staff are declared excess, including discussions with unions and potentially excess staff on the strategy for handling the potentially excess staff situation. See the section below dealing with Discussions with Unions.

Before beginning the R&R processes, Secretaries should be confident that an employee is indeed an excess employee and would not be more appropriately managed under the Fitness For Continued Duty Instructions, the Loss of Essential Qualification Instructions, the inefficiency procedures or the discipline procedures.

Geographic relocation

The rights and entitlements of staff affected by the relocation of their position, who choose to decline transfer to a new locality, are set out in the DIR publication: A guide to APS Pay and Conditions of Employment: Part 2.

Excluded employee

The R&R provisions do not apply to probationers, fixed-term and short-term employees, continuing employees with less than one year's service, Secretaries or members of the Senior Executive Service (SES).

Probationers who are excess may have their probationary appointment terminated under section 47 of the Act. (Refer to PSMPC publication Probation - Principles, Guidelines, Good Practice.)

Fixed-term and short-term employees can be terminated at any time under section 82AH of the Act. However, any termination of employment should comply with the relevant provisions of the Act and also with the requirements of the WR Act.

Continuing employees with less than one year's service who are excess can also be terminated under section 82AH of the Act, having regard to the provisions of the WR Act.

A short-term employee whose engagement has been extended beyond twelve months under the provisions of 82AD(7) of the Act and is continuous is deemed to be a continuing employee (refer to PSMPC publication Temporary Employment - Principles, Guidelines, Good Practice).

The redeployment and retirement of a surplus SES officer is covered by sections 76L and 76R of the Act.

R & R Provisions - Discussions with unions

11.3 Discussions With Unions

11.3.1. Requirement to discuss: Where it appears to the Secretary that an employee is likely to become an excess employee, the Secretary will, at the earliest practicable time, provide all relevant details to the union concerned and arrange discussions with the union.

11.3.2. Details to be provided: Relevant details for the purposes of 11.3.1 will include:

11.3.2. (a) the reasons for the Secretary considering that an employee is likely to become an excess employee; and

11.3.2. (b) the number, classification, location and details of the employees likely to be excess; or where changes in the staffing structure are proposed:

11.3.2. (b)(i) the number and classification of employees in the part of the agency affected;

11.3.2. (b)(ii) the number and classification of employees expected to be required for the performance of any continuing functions in the part of the agency affected; and

11.3.2. (b)(iii) details of the employees who are likely to be affected.

11.3.3. Matters to be discussed: Discussions with the relevant union will include discussion of:

11.3.3. (a) measures that could be taken to remove or reduce the incidence of an employee becoming excess;

11.3.3. (b) redeployment prospects for the employee concerned;

11.3.3. (c) the appropriateness of using voluntary retrenchment; and

11.3.3. (d) the method of identifying an employee as excess, having regard to the efficient and economical working of the agency and the relative efficiency of employees.

11.3.4. Timeliness: The discussions will take place over such time as is reasonable, having regard to the particular matters under discussion and to the need for potential excess staff situations to be resolved quickly.

Good Practice - Discussions with unions

Requirement to discuss with unions

When a Secretary is aware that there is likely to be an excess staff situation, the National Secretary of the relevant union should be advised as soon as practicable unless other arrangements have been agreed between the Secretary and union.

The discussions under the R&R provisions should concentrate on the management of the excess staff situation. The purpose is not to debate the merits of Government decisions, or to go over initiatives or measures that have been the subject of consultation with the relevant unions in another forum. However, unions should be given the opportunity to

put their views on any proposed changes to the staffing structure of an affected work area before the structure is finalised. (Agencies should note that they must comply with any obligations to consult unions about the development and implementation of workplace changes contained in their agency-specific agreements or under agreed consultative arrangements).

The aim should be, where practical, to resolve potential excess staff situations without the need for retrenchment, and employees likely to be affected by an excess staff situation should, where appropriate, be reassured of this intention.

It is important however, that employees and unions be given realistic and honest advice about the redeployment prospects of the affected employees.

Details to be provided to unions

The details provided to the union must include the number and classification of affected employees. The further details required under sub-paragraph 11.3.2(b) include the names and location of the affected employees and, where appropriate, would include details of their sex; age; length of service; and employment status (permanent or temporary, full-time or part-time).

To avoid any disputes over the date the union receives the relevant details, a Secretary could send them to the National Secretary of the relevant union by facsimile or registered mail.

Matters to be discussed

Discussions with the relevant union may cover any issues related to the strategy for managing the excess staff situation, but must include discussion of the measures that could be taken to remove or reduce the incidence of employees becoming excess; the redeployment prospects for employees; the appropriateness of voluntary retrenchment; and the method to be used to identify excess staff.

Options for determining which staff are excess

The Award does not set out the processes for deciding which individuals from amongst a group of staff affected by an excess staff situation should be formally declared excess or offered voluntary retrenchment. There is a substantial amount of flexibility for Secretaries to determine the process to be followed.

Where retrenchments are going to be necessary, voluntary retrenchment provides a means of avoiding the slower, costlier and dispute-prone procedures leading to involuntary retrenchment.

Circumstances will vary from agency to agency, but important factors to be considered by a Secretary are the efficient and economical working of the agency, including the need to meet budget targets; the need for an agency to be able to effectively deliver on its corporate goals; fairness and equity; and due process.

It is important to focus both on the processes for handling staff who are excess, and the future shape and functions of the organisation and the staff who will continue to perform those functions.

Because of the wide variety of circumstances that can lead to an excess staff situation, it is not possible to be prescriptive about the processes to be followed in all situations: different processes will fit different circumstances. However, the range of methods of identifying which particular staff are excess could include the following:

If there is a restructure of the agency

it may be appropriate to spill all of the positions in the affected part(s) of the agency, and to fill the positions in the new structure by the transfer of staff at level. If there are more staff than positions, then those who miss out on transfer would be declared excess or offered voluntary retrenchment; or
it may be appropriate to fill jobs in the new part of the structure which have not substantially changed their content with the occupant of the same position in the old structure, and to open up for selection at level only those positions which have substantially changed.

Where there is an across-the-board cut in the agency's running costs

management may wish to develop a revised staffing profile for the organisation. This would clearly show how many staff are required at each classification level, and make it clear how many staff are likely to become excess to requirements at each level;
a merit process could be developed, where practicable, to determine those staff to be transferred at level to positions in the organisation. This process need not be the same as a full-blown merit selection for promotion, but the criteria for selection should be clearly spelled out to staff; staff should be given the opportunity to answer any allegations (or adverse comments) about their performance; and the process should be well documented;
- A recent decision of the Industrial Relations Court (the Submarine Corporation case) makes it clear that it is open to management to use work performance as the basis for deciding who is to be retrenched. But it is clear from this decision that if work performance becomes a reason for selecting a person for retrenchment, then the provisions of the WR Act, particularly section 170CG(3), come into play. If work performance criteria are used for deciding that an employee is to be identified as excess, the criteria should be clear and be made known to the affected staff; and the affected employee must be given the right to defend themselves against allegations made about their performance. Finally, the case makes it clear that in these situations, the employer carries the onus of showing there was a valid reason for the selection of each employee identified as excess on this basis;
where large numbers of staff are potentially excess, agencies may wish to consider using independent convenors from the PSMPC or elsewhere to develop an order of ranking, on a fee-for-service basis. While these convenors are staff of the PSMPC they can act as independent convenors under the Merit Protection (Australian Government Employees) Act 1984; or
through consultation with staff and unions, an agency may conclude that it is appropriate to develop another strategy for identifying the staff who are excess to requirements at each level in order to achieve the necessary savings.

Abolition of a function

Where particular functions of an agency are to be abolished, the staff performing the function who cannot be transferred to a suitable position elsewhere in the agency will be the excess staff.

Substitution

Subparagraph 11.4.12.(b) of the Award permits a Secretary to substitute employees not affected by the redundancy situation who are interested in voluntary retrenchment for employees in an affected area who have rejected voluntary retrenchment, where the affected employee is suitable for the other position. Substitution is often an effective mechanism for resolving an excess staff situation, where the excess employee is suitable for the position and there is a match between the employee who wishes to be redeployed and the position occupied by the employee who wishes to take voluntary retrenchment.

Interdepartmental transfers ('job swaps')

Currently, if two Secretaries are prepared to exercise their discretion, on a case-by-case basis, to facilitate a 'job swap' by the transfer between departments of both an employee who is willing to take voluntary retrenchment and an excess employee who is pursuing redeployment in the APS, then the decision to do so would generally be made on operational grounds and on the basis that the employee to be retained is able to effectively perform the duties of the position. A Secretary is under no obligation to agree to a 'job swap' and may take into account the overall cost of a redundancy.

The Australian Taxation Office (ATO) has advised that a payment made to an employee who is voluntarily retrenched following a 'job swap' between agencies would constitute a bona fide redundancy payment for taxation purposes provided:

the 'job swap' represented the best way to manage the redundancy process; and
the Secretary retiring the employee certifies that the following circumstances applied:
- an excess employee occupied a position which was to be abolished and the employee did not wish to accept voluntary retrenchment;
- there was a position, for which the employee was considered suitable, in another agency which was occupied by an employee who did wish to receive an offer of voluntary retrenchment;
- the Secretaries of the respective agencies agreed to a transfer of the two employees under normal transfer powers (section 50 of the Act);
- the transfer of the second employee into the position which is to be abolished has taken effect and following this he or she was offered and subsequently accepts voluntary retrenchment; and
- the position was then abolished.

Expressions of interest in voluntary retrenchment

While management may wish to seek expressions of interest in voluntary retrenchment from the staff in the affected area, or in some cases, across the agency, formal offers of voluntary retrenchment will usually be made to staff in the affected work areas only, in the first instance. The question of whether some or all of the employees in an affected work area (or employees outside that area) are invited to submit elections will depend on factors such as the size of the redundancy problem and on whether, for operational reasons, the Secretary decides in advance that particular employees will not be invited to submit elections for retrenchment.

There are circumstances where it is appropriate to seek expressions of interest from staff within an affected area, for example, where staff are carrying out similar duties and generally have similar levels of skills and experience. Expressions of interest in voluntary retrenchment are often sought as this is seen to be a less painful option. However, it needs to be borne in mind that such an approach can have adverse effects. It can create the impression that the process is not being firmly managed, and additionally that the whole of the downsizing process will be managed on a completely voluntary basis.

This approach has a number of other disadvantages. It is likely some of the agency's best staff will express interest: agencies' experience has been that the best performers are often the people most interested in voluntary retrenchment. If there are an insufficient number of staff expressing interest in voluntary retrenchment it becomes difficult for management not to agree to offer voluntary retrenchment to all who have expressed interest; and in any case, if the numbers expressing interest do not match the numbers of staff reductions required (whether there are too many or too few), some other process will have to be put into place to determine who is to be offered voluntary retrenchment or to become excess. There is also the possibility of large numbers of grievances, if there is an over supply of expressions of interest, from staff who are not ultimately offered voluntary retrenchment, and the effect of that on the performance of those staff.

In many situations natural attrition will be an important element of an agency's downsizing strategy. The perception that voluntary retrenchment will be available generally within an agency will usually lead to a reduction in an agency's natural attrition rate.

Structures and profiles

Approaches to identifying excess staff which are built around functions, or structures, or new staff profiles will narrow the field of affected staff and may achieve better outcomes in the long run, and be less disruptive for staff in non-affected areas. It is acknowledged, however, that these processes can be complex and may be unsettling for staff in the short-term. Areas to be affected should therefore be identified as clearly as possible.

Whatever approach is adopted, agencies need to give careful consideration to the needs and morale of staff who remain with the agency, and to the effective operation of the organisation after the downsizing.

R & R Provisions - Discussion period

11.3.5. Discussion period: The Secretary will not invite an employee to volunteer for retrenchment or advise the employee in writing that the employee is an excess employee:

11.3.5. (a) within one month of the Secretary advising the union under paragraph 11.3.1., except where the Secretary and unions agree on a lesser period; or

11.3.5. (b) after the period of a month, unless the discussions have been completed or, in the opinion of the Commissioner, the discussions have not proceeded with reasonable timeliness and it is appropriate for the invitation or advice to be given.

Good Practice - Discussion period

Discussion period

A Secretary cannot make a formal offer of voluntary retrenchment or formally advise an employee that he or she is an excess employee:

within one month of the Secretary advising the union of the excess staff situation; and
until the discussions with the union have been completed unless the Commissioner determines that the discussions have not proceeded with reasonable timeliness and it is appropriate to proceed.

Before giving the approval referred to above, the Commissioner requires an agency to provide relevant information to show that it has taken reasonable steps to progress the discussions required under the R&R provisions, that the discussions are not proceeding in a timely fashion and that written advice of the making of an application to the Commissioner has been given to the relevant union.

APS ENTERPRISE AGREEMENT-JOB SECURITY AND REDEPLOYMENT
The material below is an extract from the APS Enterprise Agreement which outlines the way in which the redeployment and redundancy provisions of the award will apply in an excess staff situation. Job security and redeployment (b) The following arrangements will apply to officers below SES and Equivalent level where an agency has an excess staff situation: (i) an agency would carry out the usual consultation with unions about the excess staff situation; (ii) the agency would then identify the officers who are excess to the agency's requirement, and may declare them excess; (iii) the agency would then establish, through consultation with the identified officers, which officers want to be offered voluntary retrenchment immediately and which officers seek redeployment; (iv) the agency may, after having taken reasonable action to assess the redeploy ment prospects of the first category of officers, immediately make formal offers of voluntary retrenchment in accordance with paragraph (c) of clause 7 of the APS Redeployment and Retirement (Redundancy) Award 1987 (Print G8465) or in respect of the Parliamentary Departments, clause 54 of the Parliamentary Departments (Public Sector Union) Award 1990 (Print J3935); (v) the second category of officers, i.e. seeking redeployment would then be declared excess (if this has not already occurred). They would immediately be referred to the APSLMA Program the APSLMAP would commence the redeployment action outlined above. The APSLMAP may, at any time, express to the agency a conclusion on the redeployability of individuals or groups of excess officers. An offer of voluntary retrenchment may be made by the agency within a period of two months after referral to the APSLMAP and, if not already made, will be made at the end of this period, to officers who have not been redeployed; where officers decline the offer of voluntary retrenchment, their retention period continues, and further efforts will be made by the agency and the APSLMAP to achieve redeployment for the remainder of their retention period; only one offer of voluntary retrenchment will be made to an excess officer; at the end of their retention period, the Secretary may take action under s. 76W of the Public Service Act 1922.

APS ENTERPRISE AGREEMENT-JOB SECURITY AND REDEPLOYMENT

The material below is an extract from the APS Enterprise Agreement which outlines the way in which the redeployment and redundancy provisions of the award will apply in an excess staff situation.

Job security and redeployment

(b) The following arrangements will apply to officers below SES and Equivalent level where an agency has an excess staff situation:

(i) an agency would carry out the usual consultation with unions about the excess staff situation;

(ii) the agency would then identify the officers who are excess to the agency's requirement, and may declare them excess;

(iii) the agency would then establish, through consultation with the identified officers, which officers want to be offered voluntary retrenchment immediately and which officers seek redeployment;

(iv) the agency may, after having taken reasonable action to assess the redeploy ment prospects of the first category of officers, immediately make formal offers of voluntary retrenchment in accordance with paragraph (c) of clause 7 of the APS Redeployment and Retirement (Redundancy) Award 1987 (Print G8465) or in respect of the Parliamentary Departments, clause 54 of the Parliamentary Departments (Public Sector Union) Award 1990 (Print J3935);

(v) the second category of officers, i.e. seeking redeployment would then be declared excess (if this has not already occurred). They would immediately be referred to the APSLMA Program

the APSLMAP would commence the redeployment action outlined above. The APSLMAP may, at any time, express to the agency a conclusion on the redeployability of individuals or groups of excess officers. An offer of voluntary retrenchment may be made by the agency within a period of two months after referral to the APSLMAP and, if not already made, will be made at the end of this period, to officers who have not been redeployed;
where officers decline the offer of voluntary retrenchment, their retention period continues, and further efforts will be made by the agency and the APSLMAP to achieve redeployment for the remainder of their retention period;
only one offer of voluntary retrenchment will be made to an excess officer;
at the end of their retention period, the Secretary may take action under s. 76W of the Public Service Act 1922.

APS Agreement

Following consultation with the union(s) about the excess staff situation the agency would identify the employees who are excess to requirements and may formally declare the employees to be excess. This will commence the retention period for those employees so declared.

The employees identified as excess now have two paths down which they can travel: voluntary retrenchment; or an extended assessment of their redeployment prospects which could lead to redeployment, voluntary retrenchment or involuntary retirement.

The agency establishes, through consultation with the identified employees, which employees want to be offered voluntary retrenchment immediately and which employees are seeking redeployment.

Voluntary retrenchment

For those wanting an offer of voluntary retrenchment, the agency may, after assessing the redeployment prospects of those employees, make an offer of voluntary retrenchment.

For these employees, the retention period commences one month after the offer is made, if they have not already been declared excess.

Redeployment

Those employees who are seeking redeployment will be declared excess (if this has not already occurred) and immediately referred to the APS Labour Market Adjustment Program (APSLMAP) of the PSMPC (refer to Attachment C for further details on the APSLMAP). The offer of voluntary retrenchment, if not made before, will be made at the end of two months following referral to the APSLMAP.

Only one offer of voluntary retrenchment may be made to an excess employee.

If an excess employee declines an offer of voluntary retrenchment APSLMAP and the agency will continue their efforts to redeploy the employee (including to a lower level) until the end of their retention period.

At the end of the employee's retention period, the Secretary may take action to involuntarily retire an excess employee.

Written advice that an employee is excess

When the Secretary advises an employee that he or she is excess (that is, declares the employee excess) that advice must be in writing.

R & R Provisions - Voluntary Retrenchment

11.4 Voluntary Retrenchment

11.4.1. Redeployment prospects: The Secretary will take such action as is reasonable to assess the redeployment prospects of excess employees (including to other agencies) and discuss those prospects with the relevant union.

11.4.2. Election to retire: Subject to paragraph 11.3.5. the Secretary may invite an excess employee to elect to be retired under 11.4.

11.4.3. Invitation to elect to be retired: Where the Secretary invites an excess employee to elect to be retired, the employee will have one month in which to advise the Secretary of an election, and the Secretary will not give notice of retirement under section 76W of the Act before the end of the one month period.

11.4.3. (a) To allow an excess employee to make an informed decision on whether to submit an election to be retrenched, the employee must have access to advice on:

11.4.3. (a)(i) the sums of money the employee would receive by way of severance pay, pay in lieu of notice, and paid up leave credits;

11.4.3. (a)(ii) the amount of accumulated superannuation contributions;

11.4.3. (a)(iii) the options open to the employee concerning superannuation; and

11.4.3. (a)(iv) the taxation rules applicable to the various payments.

Good practice - Voluntary retrenchment

Redeployment the first option

In all excess staffing situations, redeployment should be the first option explored. Paragraph 11.4.1 of the Award states that the Secretary will take reasonable action to assess the redeployment prospects of excess employees before offering voluntary retrenchment. Reasonable action could include referring the details and work experience of those employees who have indicated a wish to be redeployed to other relevant agencies and requesting those agencies to consider the employees for suitable vacancies, referring the employees to the APSLMAP and keeping the excess employees aware of suitable vacancies in the APS.

Invitation to elect to be retired

Decisions on who will be made an offer of voluntary retrenchment should be made by management and not by staff. Subject to the completion of the discussions with the relevant union and an assessment of the redeployment prospects of each individual, the Secretary may invite employees to elect to be voluntarily retired in order to achieve the staff reductions required.

The decision on which of those staff who have elected to be retired will be retired is a matter for the Secretary. This decision would normally be made on the basis of operational requirements and an assessment of relative efficiency.

A Secretary may declare an employee excess at the same time as making an offer of voluntary retrenchment. Experience has shown that this is best done by issuing separate notifications.

The following points should be incorporated into the written invitation to employees to elect to be voluntarily retired:

that it is a formal invitation under the Award;
that the invitation will not be repeated;
that the employee has one month in which to advise the Secretary of an election. Failure to respond to the invitation will be taken to mean that the employee has declined the invitation;
that the employee will become excess, if they have not already been declared excess, one month from the date of the invitation and the retention period will commence on that day;
that action could be taken to retire the employee, with the approval of the Commissioner, if it is unlikely that the employee can be redeployed before the end of the retention period; and
that the Secretary has the right to refuse, on operational grounds, any election to be retired.

Employees who are not fit for and are not at work

Where an employee is not fit for and not at work an offer of voluntary retrenchment should not be made unless the issue of continuing Commonwealth liability has been resolved. Refer to Attachment D for details on the processes involved in handling an employee who is not fit for and is not at work.

Employees on leave without pay

Voluntary retrenchment should not be offered to staff who are on leave without pay. Refer to Attachment E for further details.

Election period-one month

The Award provides that an employee who has been invited to submit an election to be retired will have one month to advise the Secretary of his or her decision.

Although the actual election may be submitted before the end of the month, no election should be approved until the month is up. This ensures that approvals are seen to be given fairly and with regard to operational requiremements-not on the basis of 'first come, first served'-and guards against employees making hasty or uninformed decisions. If no election is received in the one month period then it should be taken that the employee has declined the offer. The one month period for consideration of the offer is not extended by periods of sick or other leave.

The effect on an employee who declines an offer of voluntary retrenchment and who has not previously been formally notified that he or she is excess is that their retention period commences on that day (one month after the offer is made) and accordingly they should be immediately referred to APLSMAP for redeployment assistance.

Advice to be provided to an employee during the election period

An employee considering an offer of voluntary retrenchment will need, and must be given, access to advice on the amounts of money he or she will receive and on taxation and superannuation matters. This should happen as early as practicable to enable a decision to be made during the election period.

Secretaries should seek written advice from ComSuper on the arrangements applying to individual excess employees and, as appropriate, from the Australian Taxation Office. It is good practice for agencies to provide general financial advice on a group or individual basis to employees considering an offer of voluntary retrenchment.

The taxation arrangements, for example, for an employee whose services 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 (subparagraph 11.1.1(b) of the Award), or where an unattached employee returns from retirement, may not constitute a bona fide redundancy (see information provided to agencies in Circular No 1994/20 of 22 August 1994 concerning Taxation Ruling 94/12).

The Australian Taxation Office should be contacted for specific advice if there is any uncertainty about the taxation treatment of benefits payable to an employee.

Restrictions on appointment and employment in the APS

Employees considering an offer of voluntary retrenchment need to be clearly informed that if they accept voluntary retrenchment from the APS they are generally not eligible to apply for appointment to the APS or be selected for fixed-term temporary employment in the APS within 12 months of their retirement from the APS (see Attachment F).

R & R Provisions - Voluntary retrenchment

11.4.4. Period of notice: Subject to paragraph 11.4.5, where the Secretary approves an election to be retired and gives notice of retirement under section 76W of the Act, the period of notice will be 28 days. In the case of an employee over 45 years of age with at least five years continuous service the period of notice will be 5 weeks.

11.4.5. Retirement within notice period: Where:

11.4.5. (a) the Secretary directs; or

11.4.5. (b) the employee requests an earlier retirement date within the period of notice, the excess employee will be retired on that date and the employee is entitled to receive payment instead of notice for the unexpired portion of the period.

Other legal requiremnts - APS Enterprise Agreement

APS Enterprise Agreement-Attachment F-Schedule 1

C4. Date of effect of notice of retirement

Despite s. 76W(5) of the PS Act and PS Regulations 120C and 120D, where an officer is retired under clause C.1 of this Schedule on the ground that the officer is an excess officer, the notice of retirement shall take effect:

(a)(i) after the expiration of the period of notice under clauses 7(d),(e) and 8(e) of the APS Redeployment and Retirement (Redundancy) Award 1987 (Print G8465) [i.e. paragraph 11.4.4. of the Agreement] or

(a)(ii) after the expiration of the period of notice required by s.Ê170DB(2) of the IR Act; whichever is the later; or

(b)after the payment to the officer of compensation instead of the notice required under clause C.4(a), calculated in accordance with ss. 170DB(4) and 170DB(5) of the IR Act.

Good Practice - Voluntary retrenchment

Approving elections for voluntary retrenchment

The Secretary has the right to refuse an election for voluntary retrenchment by an employee. This would normally be for operational reasons. It is vital that decisions to approve or refuse elections to be retired be made as soon as possible after the election has been made.

Notice of retirement

When an election to be retired is approved, the Secretary must give the employee notice of retirement under subsection 76W(1) of the Act (see Attachment B for a copy of 76W(1) of the Act) for the retirement to take effect. Before the notice is given, the employee's consent in writing must be obtained, and the date of retirement should be settled.

Where for operational reasons it becomes necessary to retain the services of the employee for a short period before retrenchment occurs, the Secretary should defer giving notice to the employee until the appropriate time. If circumstances change and it becomes possible to retain the employee in employment at his or her classification level then the notice should not be given.

Date of retirement

The date of retirement will be:

the end of the period of notice as set out in 11.4.4; or
where the Secretary directs or the employee requests an earlier retirement date within the period of notice, that earlier date.
- Payment instead of notice must be made where an employee is retired before the end of the notice period (see the section on Payment instead of notice at page 31).

For example, an employee who has elected for voluntary retrenchment may be given a notice of retirement on 1 July to take effect on that day (either by direction of the Secretary or at the request of the employee). In such circumstances, the date of retirement would be 1 July, but the employee would receive payment instead of notice for four or five weeks from 1 July as the case may be.

R & R Provisions - Voluntary retrenchment

11.4.6. Payment instead of notice: The amount of the payment instead of notice must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay the employee because of the employment continuing during that period. The amount must be worked out on the basis of:

11.4.6. (a) the employee's current ordinary hours of work (even if they are not standard hours);

11.4.6. (b) the amounts payable to the employee in respect of those hours, including, for example, allowances, loadings and penalties; and

11.4.6. (c) any other amounts payable under the employee's contract of employment.

Good Practice - Voluntary retrenchment

Payment instead of notice

Where a notice is foreshortened, either by the Secretary or the employee, the employee is entitled to compensation for the unexpired portion of the notice period. The payment instead of notice provisions in the Award are the same as those in the WR Act. Further information on calculating the amount payable is included at Attachment G.

Reasons for foreshortening the notice period

Neither the employee or the employer is required to give reasons for the decision to foreshorten the notice period.

Employees may wish to foreshorten the notice period for personal or other reasons, including the opportunity to take up alternative employment.

A Secretary may wish to foreshorten the notice period where, for example, the workplace is being closed down, the work previously performed is no longer required to be performed or the employee cannot be gainfully employed during the notice period.

R & R Provisions- Voluntary retrenchment

11.4.7. Severance benefit: An employee retired under 11.4 is entitled to be paid a sum equal to 2 weeks salary for each completed year of service, plus a pro rata payment for completed months of service since the last completed year of service.

11.4.7 (a) For earlier periods of service to count there must be no breaks between the periods of service, except where:

11.4.7. (a) (i) the break in service is less than 1 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

11.4.7. (a) (ii) 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.

11.4.7. (b) Provided that the minimum sum payable under paragraph 11.4.7 will be 4 weeks salary and the maximum will be 48 weeks salary.

11.4.7. (c) The severance benefit will be calculated on a pro rata basis where an employee has worked part-time hours during the period of service and the employee has less than 24 years full-time service in accordance with subclause 11.4.11.

Good Practice - Voluntary retrenchment

Agency Workplace or Enterprise Agreement - no negotiation on severance benefits

Under the APS Enterprise Agreement, the essential elements of the redeployment and retirement arrangements are to be maintained (see Clause 2 of the APS Enterprise Agreement). The amount of severance benefit which is payable under the Award is a Service-wide standard and cannot be altered or enhanced by an agency. Under the current provisions of the WR Act, the APS Enterprise Agreement will remain in place unless a new agreement is negotiated.

Severance benefit

An employee who is voluntarily retrenched is entitled to be paid a sum equal to 2 weeks salary for each completed year of service, plus a pro rata payment for completed months of service since the last completed year of service, calculated up until the end of the notice period prescribed under 11.4.4. The minimum sum payable as a severance benefit is 4 weeks salary and the maximum is 48 weeks salary.

For earlier periods of service to count as service for severance pay purposes, there must be no break in service, except as provided for in subparagraph 11.4.7(a) of the Award.

Part-time staff

The severance benefit will be calculated on a pro-rata basis where an employee has worked part-time hours during the period of service and the employee has less than 24 years of full-time service. That is the employee continues to receive the equivalent of 2 weeks salary for each year of service, but the payment for periods of part-time service is based on the applicable part-time rate of salary. Further information on the calculation of the severance benefit for part-time staff is at Attachment H.

R & R Provisions - Voluntary retrenchment

11.4.8. Service for severance pay purposes: Subject to paragraphs 11.4.9 and 11.4.10 , 'service' means:

11.4.8. (a) service in an agency;

11.4.8. (b) Government service as defined in section 10 of the Long Service Leave Act 1976;

11.4.8. (c) 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;

11.4.8. (d) service with the Australian Defence Forces;

11.4.8. (e) APS service immediately preceding deemed resignation under the repealed section 49 of the Act if the service has not previously been recognised for severance pay purposes; and

11.4.8. (f) service in another organisation where:

11.4.8. (f)(i) an employee was transferred from the APS to that organisation with a transfer of a function; or

11.4.8. (f)(ii) 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.

11.4.9. Service not to count as service for severance pay purposes: Any period of service which ceased in any of the following ways will not count as service for severance pay purposes under paragraph 11.4.7:

11.4.9. (a) 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.

11.4.10. 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 severance pay purposes.

11.4.11. Rate of payment - severance benefit: For the purpose of calculating any payment under paragraph 11.4.7, 'salary' will include:

11.4.11. (a) the employee's full-time salary, adjusted on a pro-rata basis for periods of part-time service; or

11.4.11. (b) the full-time salary of the higher position, adjusted on a pro-rata basis for periods of part-time service, 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 retirement under section 76W of the Act; and

11.4.11. (c) shift penalties, where the employee has undertaken shift work and is entitled to shift penalties for 50% or more of the pay periods in the 12 months preceding being given notice of retirement. A weekly average of penalties due over the 12 months will be included in the salary; and

11.4.11. (d) other 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.

Good Practice - Voluntary retrenchment

Service with the Commonwealth

Generally, it is only service with the Commonwealth that will count as service for severance pay purposes and there must be no breaks in service except as provided for in subparagraph 11.4.7.(a). Only service described in subclause 11.4.8 is recognised for severance pay purposes. It is important to note that service for severance pay purposes is not the same as service for long service leave or other leave purposes. An employee may have a period of service recognised as eligible service for long service leave or other purposes but the same service may not be recognised for severance pay purposes.

Service with Commonwealth bodies

Subparagraph 11.4.8. (c) covers Commonwealth bodies such as the Australian National University, the Australian Maritime College and the Commonwealth Bank. However, service with the Commonwealth Bank will only be recognised as service for severance pay purposes for staff who joined the APS on or before 21 July 1996-the date on which the Commonwealth ceased to have a controlling interest in the Bank-or within one month of that date where the provisions of subparagraph 11.4.7.(a)(i) apply.

Service with State Governments

It is important to note that not all service that is recognised for leave purposes is recognised for severance pay purposes. For example, employment with a State Government is recognised for long service leave by virtue of section 11 of the Long Service Leave Act and for sick leave under clause 11.2.2 of Public Service Determination 10 of 1983, but is not included as service for severance pay purposes unless it is linked to a compulsory transfer and is covered by subparagraph 11.4.8.(e).

In a decision (February 1996) Graves v The Commonwealth the Industrial Relations Court dismissed an application by a former officer that service treated as relevant service under section 11 of the Long Service Leave Act should be treated as service for severance pay purposes.

Service in Australian Defence Forces

Where a member of the Australian Defence Forces (ADF) has voluntarily retired from the ADF with an employer-financed retirement benefit, the period of service with the ADF should not be counted as service for severance pay purposes as it is voluntary retirement 'with the payment of an employer-financed retirement benefit'.

Salary for severance pay purposes-shift penalties

Where shift penalties are to be included as salary for severance pay purposes an employee is entitled to receive the weekly average of the penalties payable (rather than the penalties which were actually paid to the employee) over the 12 months preceding the giving of the notice of retirement. This change was introduced as part of the Award and applies from 14 December 1995.

Salary for severance pay purposes - allowances

For an allowance to be considered as salary for severance pay purposes it will have been paid on a regular (i.e. fortnightly) basis and not be a reimbursement for expenses incurred or a payment for disabilities associated with the performance of duty. Some agency specific workplace agreements include certain allowances as salary and these provisions will need to be taken into account when calculating a severance benefit.

Superannuation

In addition to severance pay, employees who are superannuation contributors have a number of options in relation to their superannuation entitlements. Advice on these options should be sought from ComSuper.

Long service leave and recreation leave

The Long Service Leave (Commonwealth Employees) Act 1976 provides for payment in lieu of accrued long service leave for employees who are retrenched. The qualifying service for this purpose (see subsections 17(1) and 17(2) of the LSL Act) is more than 10 years, and payment on a pro rata basis is made where service is more than 1 year but less than 10 years.

The standard provisions for payment in lieu of recreation leave, including leave bonus on separation from APS employment, apply.

R & R Provisions - Voluntary retrenchment

11.4.12. Offer of voluntary retrenchment before involuntary retirement:

11.4.12. (a) Where:

11.4.12. (a)(i) a redundancy situation affects a number of employees engaged in the same work at the same level and in the same location, and

11.4.12. (a)(ii) employees have been invited to elect to be retired under 11.4, the Secretary must not involuntarily retire any employees if there remain employees engaged in that work at that level in that location who have elected to be retired, been refused, and still wish to accept voluntary retrenchment.

11.4.12. (b) The Secretary may invite employees who are not in a redundancy situation to express interest in voluntary retirement under 11.4, where those retirements would permit the redeployment of employees who are in a redundancy situation, who do not wish to accept voluntary retirement and who would otherwise remain excess.

Good Practice - Voluntary retrenchment

Voluntary retrenchment of certain staff engaged in the same work before involuntary retirement

A Secretary must not involuntarily retire an employee if there are other employees at the same level, doing the same work in that workplace who have accepted an invitation to take voluntary retrenchment and the Secretary has refused to retire those employees.

Substitution

Subparagraph 11.4.12.(b) of the Award permits a Secretary to substitute employees from outside an affected area who are interested in voluntary retrenchment for employees in an affected area who have rejected an invitation to take voluntary retrenchment.

Decisions on substitution should be made on operational grounds and on the basis of the retained employee being able to effectively carry out the duties of the substituted employee.

R & R Provisions - Retention Periods

11.5 Retention periods, redeployment and involuntary retirement

11.5.1. Retention periods: Except with the consent of the employee, an excess employee will not be retired under section 76W of the Act until the following retention periods have elapsed:2

11.5.1. (a) 13 months where an employee has 20 or more years of service or is over 45 years of age; or

11.5.1 (b) 7 months for other employees.

11.5.2. Commencement: The retention periods will commence:

11.5.2. (a) on the day the employee is advised in writing by the Secretary that the employee is an excess employee; or

11.5.2. (b) one month after the day on which the Secretary invites the employee to elect to be retired under 11.4 whichever is the earlier.

² See Clause 12 for alternative retirement provisions for employees who are not officers.

Good Practice - Retention Periods

Commencement of retention period

The retention period commences either:

as a result of an employee being notified in writing that they are excess; or
one month after the employee is formally offered voluntary retrenchment (failure to respond to the offer means that the employee has declined the invitation).

An employee who has been declared excess and seeks redeployment or who has rejected a formal offer of voluntary retrenchment must be referred to APSLMAP for redeployment assistance.

Length of the retention period

The age and length of service of an employee on the day the retention period commences determines the length of the employee's retention period. Therefore, an employee who turns 45 or completes 20 years of service after the retention period has commenced is not entitled to have the retention period extended from 7 to 13 months.

Service recognised for severance pay purposes under subclause 11.4.8. should be used to determine whether an employee has 20 or more years of service for the purpose of subparagraph 11.5.1.(a).

The retention period may be extended for certain absences during the retention period - see the good practice advice on sick leave during the retention period at page 63.

The retention period cannot be foreshortened by a Secretary except for employees who are not officers who are covered by Clause 12.

Retirement at employee's request during retention period

A Secretary may retire an employee during the retention period at the employee's request. The decision on such a request will depend on the employee's redeployment prospects.

Income maintenance is not payable in any circumstances. The retirement will not usually attract a severance payment. However, if the employee has not been invited to elect for voluntary retrenchment, or has made such an election and the Secretary has refused it, the employee may be retired with a severance payment.

The Secretary must obtain the employee's written consent before giving notice of retirement under subsection 76W(1) of the Act. The notice takes effect in accordance with paragraphs 11.4.4 and 11.4.5 of the Award.

R & R Provisions - Redeployment

11.5.3. Transfers at level: During the retention period the Secretary must continue to take all reasonable steps, consistent with the interests of the efficient administration of the agency, to transfer an excess employee to a suitable vacancy of equal classification within the agency.

Other legal requirements - APS Enterprise Agreement

APS Enterprise Agreement Attachment B - Schedule 2 - Job Security and Redeployment

(c) The parties agree that it is intended that in all excess staff situations Secretaries will consider the retraining of excess officers where:

(i) retention in employment is unlikely to be possible without it;

(ii) it would be in the interest of the administration of the agency to retrain the officer; and

(iii) it would lead to successful placement within the retention period applying to the officer.

(d) Excess officers will be considered in isolation from and not in competition with other applicants for an advertised vacancy to which an excess officer seeks transfer. (See also subclause 11.5.4 of the Award)

(e) In order to achieve the more effective redeployment of staff covered by the RRR Award [i.e. the R&R provisions of GECA] the following arrangements have been agreed in relation to the redeployment of excess officers. These arrangements are specifically designed to address the difficulty in transferring excess officers between classification structures. The difficulty arises because the existence of small salary differentials between classification structures means that technically, the movement of an officer between those structures can amount to a promotion. The parties agree that these arrangements are in recognition of the exceptional circumstances associated with excess officers applying for transfer and will not be used as a basis for seeking changes to any other arrangement.

(i) Where an officer is declared excess and occupies a classification within a Group, as listed in the Table at paragraph (ii) below, and applies for another position which has a classification within the same Group, redeployment to that classification may occur by transfer in accordance with normal excess staff arrangements.

Good Practice - Redeployment

Redeployment of excess employees

During the retention period the Secretary must continue to take all reasonable steps, consistent with the interests of the efficient administration of the agency, to transfer an excess employee to a suitable vacancy of equal or lower classification within the agency.

Reasonable steps could include giving the excess employee first consideration for placement opportunities as they arise, such as considering the employee for placement in long-term temporary vacancies which might otherwise be staffed on a higher duties basis.

Employee successfully redeployed

Where an excess employee is successfully redeployed (that is, placed in a permanent position) he or she is no longer an excess employee and all associated processes under the R & R provisions cease.

If the employee becomes excess again, the excess staff process should be started again in relation to that employee.

Retraining of excess employees

To enhance the redeployment opportunities of excess staff, it is open to Secretaries to arrange for their retraining. Retraining will usually take the form of on-the-job training but could include, in some cases, the undertaking of a short course to provide new skills or update existing ones. It should be tailored closely to the employment outlook for the employee.

Transfers between different classification groups

Under the APS Enterprise Agreement, a number of classifications with very similar salaries have been grouped together and movement between them which in some cases would otherwise be a promotion, is to be treated as a transfer for the purposes of redeployment of excess employees. An excess employee who holds a position within one of these classification groups is regarded as having applied for a transfer where they apply for a vacant position within the same classification group. They will be considered in isolation from and not in competition with other applicants for that position.

Consideration of an excess employee in isolation from and not in competition with other applicants

Wherever an excess employee seeks transfer to an advertised vacancy, the agency advertising the vacancy will consider the excess employee in isolation from and not in competition with other applicants. If the excess employee is capable of performing the duties of the position immediately or within a reasonable period, the excess employee should be transferred into the vacancy. If more than one excess employee in a location seeks transfer to a vacancy in the same location, it is open to the agency to conduct a merit process and select the most suitable efficient employee.

What is a 'reasonable period' will vary, but it is generally accepted as being a period of three months. In some circumstances, it may be reasonable to allow a period of up to six months.

Reduction in classification

Where all reasonable steps to transfer an excess employee at level have been unsuccessful, for example because of the location or specialisation of the excess employee concerned, Secretaries could consider redeployment to a position at a lower level as an alternative to involuntary retirement.

Any reduction in classification should be to duties for which the employee is qualified, which he or she could perform efficiently either immediately or within a reasonable period, and which the employee could reasonably be required to perform. In relation to permanent staff, any reduction by the Secretary must be to a vacant position. A Secretary may not transfer an excess employee who is an officer to a lower level as an unattached officer (see Attachment B for details of section 76T of the Act).

The Commissioner is also able to reduce an excess employee's classification.

An employee who is reduced in classification during the retention period is entitled to receive income maintenance payments for the balance of what would have been the retention period.

Reduction in classification with the consent of the employee can occur at any time during the retention period. This can occur under section 50 of the Act (for officers) or by the Secretary giving notice under subsection 76W(1) of the Act. The employee's prior written consent to the reduction should be obtained. Before an employee gives consent to reduction, he or she should be advised of the effect that this may have on particular conditions of service and superannuation contributions and benefits.

The notice of reduction takes effect on the date specified in the notice and agreed between the Secretary and the employee.

If the Secretary and the employee do not agree in advance on the reduction, the case should be treated as a reduction without consent.

A proposal to reduce an excess employee in classification without the consent of the employee must first be referred to the PSMPC. Under the Award and the Act a reduction without consent can occur only where:

the Secretary has been unable to find suitable alternative employment for the excess employee at the employee's level in the Secretary's agency, and
the Commissioner is satisfied that it would not be in the interests of the efficient administration of the Service to transfer the employee at level to another agency.

Where these requirements have been fulfilled, the Secretary may give the employee notice of reduction under subsection 76W(1) of the Act. The notice must include or be accompanied by a statement of the reasons for the notice and of the employee's right of appeal.

Where an employee has not given prior written consent to the giving of notice of reduction in classification, the notice takes effect:

one month after the day the notice is given to the employee;
if the Secretary specifies a day that is later than one month after the day the notice is given to the employee-on that day; or
if the employee appeals, the day on which the appeal is disallowed or withdrawn;

whichever occurs last.

A notice of reduction of classification must be in writing. Elements that could be included in the notice of reduction are at Attachment J.

R & R Provisions - Involuntary retirement

11.5.7. Notice periods for involuntary retirement: Where the Secretary or the Commissioner proposes to involuntarily retire an excess employee, the employee will be given no less than one month's notice. An employee over 45 years of age with at least 5 years continuous service will be given 5 weeks notice.

11.5.8. Served concurrently: The specified periods of notice will as far as practicable be concurrent with the retention periods.

11.5.9. Voluntary option: An excess employee will not be retired involuntarily if:

11.5.9. (a) the employee has not been invited to elect to be retired under 11.4; or

11.5.9. (b) the employee has made such an election and the Secretary refuses to approve it.

11.5.10. Reduced classification: Where before the end of a retention period an excess employee is reduced in classification, the employee will be eligible to receive income maintenance payments calculated under 11.7 for the balance of the 7 or 13 month retention period.

Good Practice - Involuntary retirement

Involuntary retirement

Under section 76W of the Act a Secretary has the power to involuntarily retire an excess employee at the end of the retention period with the consent of the Commissioner.

Involuntary retirement should be carried out in a timely manner. The Federal Court in the decision outlined in Attachment K, found that the retirement of an excess employee three years after being declared excess was beyond power and not valid.

Under subclause 11.5 of the Award a Secretary can involuntarily retire an excess employee only:

at the end of the retention period;
if the employee has been formally given the opportunity to elect for voluntary retrenchment and has not taken it up;
if there is no suitable alternative employment for the employee in the agency;
if the substitution provision at sub-paragraph 11.4.12(a) of the Award does not operate; and
where the Commissioner has approved the proposal to give notice of retirement.

Retirement without consent - to be cleared with PSMPC

Any proposal to give notice of retirement without the prior written consent of the employee must be referred to the Commissioner.

Under subsection 76W(2) of the Act and paragraph 11.5.5 of the Award a Secretary must not give notice of retirement unless the Commissioner is satisfied that it would not be in the interests of the efficient administration of the Service to transfer the employee under section 51 of the Act to another agency.

Approval from the Commissioner is not required where the employee consents to retirement during, or at the end of, the retention period.

Notice of retirement

When a Secretary concludes that an excess employee is unlikely to be redeployed by the end of the retention period, the Secretary should give the employee notice of retirement under subsection 76W(1) of the Act. The notice should be given no less than one month (or five weeks where an employee is over 45 years with at least 5 years continuous service) before the scheduled end of the retention period.

If redeployment arrangements can be made before the end of the retention period but the employee will not actually be redeployed until after that period ends, a notice of retirement should not be given or, if it has been given, it should be withdrawn.

Information to be included in a notice of retirement

See Attachment J for elements that could be included in the notice of retirement.

Date of effect

The APS Enterprise Agreement provides that a notice of termination should take effect at the end of the prescribed period of 28 days (or 5 weeks in the case of employees over 45 with at least 5 years continuous service).

The date of retirement is not altered by an employee lodging an application with the AIRC that the termination was unlawful.

Entitlements on involuntary retirement

Employees who are involuntarily retired under section 76W of the Act are entitled, on retirement, to receive the same superannuation and leave payments as are payable to an employee who accepts voluntary retrenchment.

The employee, however, does not receive the severance benefit payable to an employee who accepts voluntary retrenchment.

Appeal rights

Under the APS Enterprise Agreement, an employee who is retired without consent under section 76W can no longer appeal to a Redeployment and Retirement Appeal Committee. Any employee retired under 76W may make an application to the AIRC if he or she believes the termination was unlawful.

The date of retirement is not altered by an employee lodging an application with the AIRC that the termination was unlawful.

R & R Provisions - Preference

11.6 Preference

11.6.1. Union preference: Where employees are of equal efficiency and:

11.6.1. (a) the Secretary is to issue a notice of retirement under section 76W of the Act, and

11.6.1. (b) an employee has not consented; and

11.6.1. (c) a vacancy exists in the Secretary's agency which would permit the retention in employment of an employee preference in retention will be given to an employee who is a member of the union. An employee who holds a current certificate under section 267 of the Industrial Relations Act 1988 will be deemed to be a union member.

11.6.2. Employee preference: Where:

11.6.2. (a) the Secretary is to issue a notice of retirement under section 76W of the Act;

11.6.2. (b) the employee has not consented, and

11.6.2. (c) a vacancy exists in the Secretary's agency which would permit the retention in employment of an employee

an officer will have preference in employment before an employee who is not an officer.

Good Practice - Preference

Preference to union members

Subclause 11.6 of the Award provides preference in retention in employment to union members, when a notice of retirement is being given. It applies to employees who have not consented to the giving of the notice of retirement. It operates only in the event that a suitable vacancy occurs within the agency which would permit retention in employment of an employee and it is not possible to select between two excess employees on the basis of relative efficiency.

R & R Provisions - Income maintenance

11.7 Income maintenance payments³

11.7.1. Definition: Income maintenance payments are the amounts payable from time to time to maintain the level of salary being received at the date an excess employee is notified that the employee is excess or at the date of an excess employee's reduction in classification.

11.7.2. Income maintenance: Income maintenance includes:

11.7.2. (a) higher salary where an employee has been acting in a higher position for a continuous period of at least 12 months:

11.7.2. (a)(i) immediately preceding the date on which the employee is notified that the employee is excess; or

11.7.2. (a)(ii) immediately preceding the date on which the employee receives notice of reduction in classification under section 76W of the Act

the salary of the higher position received on that date will be included as salary for income maintenance purposes, provided that the employee would have continued to act in the higher position but for the excess staff situation; and

11.7.2. (b) other allowances or loadings in the nature of salary which are paid during periods of leave and on a regular basis, except allowances which are a reimbursement for expenses incurred, or a payment for disabilities associated with the performance of duty.

³ See Clause 12, (EWANO) for variations to the income maintenance payments that apply to employees who are not officers.

Good Practice - Income maintenance

Definition of income maintenance

Income maintenance payments are the amounts of money payable from time to time to bring the employee's new salary up to the salary being received as at the date the excess employee is notified that he or she is excess or at the date of an excess employee's reduction in classification (paragraph 11.7.1 of the Award). Income maintenance is not updated, e.g. for salary increases.

Income maintenance payments are to be calculated in accordance with subclause of 11.7 of the Award.

Income maintenance following reduction

An employee who is reduced in classification during the retention period is entitled to receive income maintenance payments for the balance of the retention period. This applies whether the reduction is voluntary or involuntary and whether it is effected by the Secretary or the Commissioner (paragraph 11.5.10 of the Award).

Income maintenance where an excess employee is redeployed at level

Where an 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 notified that he or she is excess and is to be removed from higher duties the salary level will be the salary for the higher level at that date, provided that the employee would have continued to act in the higher position but for the excess staff situation.

R & R Provisions - Leave and expenses to seek employment

11.8 Leave and expenses to seek employment

11.8.1. Leave for interviews: An employee will be entitled to reasonable leave with full pay to attend necessary employment interviews, from the date the employee is:

11.8.1. (a) advised that the Secretary has approved an election by the employee to be retired, under 11.4.2., or

11.8.1. (b) advised in writing by the Secretary that the employee is an excess employee.

11.8.2. 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.

11.9 Moving household

11.9.1. Relocation expenses: Where it is necessary as a result of transfer or reduction in classification for an excess employee to move the employee's household to a new locality, the employee will be entitled to reasonable expenses as if the employee were being promoted.

Good Practice - Leave and expenses to seek employment

Leave and expenses to seek other employment

During the retention period employees are eligible for reasonable leave and expenses to seek employment, in accordance with subclause 11.8 of the Award. This could include paid leave to attend interviews and reimbursement of reasonable travel costs to attend interviews where these costs are not met by a prospective employer.

Relocation expenses if redeployed

An excess employee if redeployed to a different locality is entitled to reasonable costs associated with relocation in line with the arrangements that apply to an employee who relocates as a result of a promotion.

R & R Provisions - Sick leave during the retention period

11.10 Use of sick leave

11.10.1. Extend notice periods: The retention or notice periods under 11.5 will be extended by any periods of certified sick leave taken during the periods.

11.10.2. Income maintenance while on sick leave: An employee who is entitled to income maintenance and at the date of retirement or transfer has accumulated sick leave credits will be entitled to receive maintenance of income payments in respect of loss of income through sickness until such time as those accumulated sick leave credits have been exhausted provided that:

11.10.2. (a) the rate of payment will be as provided in sub-clause 11.7;

11.10.2. (b) entitlement to maintenance of income payments:

11.10.2. (b)(i) will not exceed six months' leave credits,

11.10.2. (b)(ii) will only apply to absences covered by a medical certificate, and

11.10.2. (b)(iii) will only, in relation to access to sick leave credits, be available during the period of income maintenance.

Good Practice - Sick leave during the retention period

Extension of retention period

All excess employees should be afforded a reasonable opportunity to secure redeployment. Efforts to secure redeployment can be affected by an employee's absence due to illness or injury arising from certificated sick leave or approved compensation leave and therefore their retention period is extended by all such leave taken during the retention period.

In these circumstances, an excess employee cannot reach the end of their retention period until the necessary adjustments have been made for absences occurring during the retention period. At the end of the adjusted retention period a Secretary may involuntarily retire an excess employee in accordance with the requirements of section 76W of the Act.

It should be noted that the one month period for consideration of the offer of voluntary retrenchment is not extended by periods of sick leave.

Certified sick leave

Agencies may need to refer to their own workplace bargaining agreements to determine what absences are considered to be certified sick leave.

Maternity leave and other leave

The retention period may also be extended by paid and unpaid maternity leave, but not by any recreation leave or long service leave that is taken, unless in the view of the Secretary there were compelling reasons for such leave to be taken and the employee's absence on leave has significantly affected his or her efforts to obtain redeployment.

R & R Provisions - Appeals

11.11 Appeals

11.11.1 Appeal rights: Without affecting the employee's rights under the Industrial Relations Act 1988, an excess employee will have the right of appeal against:

11.11.1. (a) any decision taken in relation to the employee's eligibility for benefits under 11.8, 11.9 and 11.10;

11.11.1. (b) the amount of such benefits; or

11.11.1. (c) the amount of income maintenance payable under 11.7.

11.11.2 Appeal committee: An appeal made under 11.11.1 will be referred to a committee comprising:

11.11.2. (a) an independent convenor agreed to by the Secretary and the relevant union concerned;

11.11.2. (b) a nominee of the Secretary; and

11.11.2. (c) a nominee of the employee's union.

11.11.3 Reporting requirements: The Committee will report its findings to the Secretary with a recommendation for action appropriate to the case.

11.11.4 Appeals under Act: Rights of appeal against the giving of notice of retirement or notice of reduction in classification will be as set out in section 76Z of the Act as in force at the date of commencement of this Award.

Other legal reguirements - APS Certified Agreement

APS Enterprise Agreement Attachment F - Schedule 1

C. Retirement of other officers on a ground specified in s. 76W(6) of the PS Act.

Access to MPRA Appeals Committee excluded

2. Despite s. 76Z of the PS Act and clauses 13(d) and 17 of the Australian Public Service Redeployment and Retirement (Redundancy) Award 1987 (Print G8465) (i.e. paragraph 11.11.4 of the Award) a decision to retire an officer consistent with s.Ê76W shall not be the subject of an appeal to an Appeal Committee.

Good Practice - Appeals

Appeal rights where an excess employee who is an officer has applied for an advertised vacancy equal to or below level.

Where an excess employee other than an EWANO has applied for an advertised vacancy equal to or lower than his or her substantive classification and a person is promoted to that position, if that promotion is an appellable one, then the excess employee has a right of appeal against the promotion, under section 50H of the Act. Such an appeal may be lodged with the Merit Protection Commissioner. Section 50H of the Act is at Attachment B.

Appeal rights where an employee has been reduced in classification without consent

An employee who is given notice under section 76W of the Act of reduction in classification and who has not given prior written consent to the giving of the notice may appeal under section 76Z of the Act to a Redeployment and Retirement Appeal Committee. Information on the powers of the Redeployment and Retirement Committee is at Attachment L. The ground of appeal is that the reduction would be unreasonable.

An appeal must be in writing and must reach the relevant regional office of the Merit Protection and Review Agency within 14 days of the day the employee received the notice. Where an appeal is lodged, the notice does not take effect unless the notice is confirmed or the appeal is withdrawn. If the notice is revoked by the Committee, then the reduction does not occur.

Appeals in relation to benefits

There is also a right of appeal under sub-clause 11.11 of the Award in relation to decisions about benefits under sub-clauses 11.7 to 11.10 inclusive.

Applications to seek remedy for termination of employment

The date of retirement is not altered by an employee lodging an application with the AIRC. A notice of retirement takes effect at the end of the notice period unless foreshortened by either party. The PSMPC can provide advice if the AIRC or the Industrial Relations Court directs that an employee is to be re-appointed or reinstated to the APS.

R & R Provisions - Interaction with other people management processes

11.12 Award not to prevent other action

11.12.1. Act provisions: Nothing in these provisions will prevent the reduction in classification of an employee or the retirement of an employee as a result of action under the discipline, invalidity, inefficiency or loss of essential qualifications provisions of the Act.

Good Practice - Interaction with other people management processes

Taking other people management action

As mentioned earlier in these guidelines, Secretaries should be confident that an employee is an excess employee and would not be more appropriately managed under the Fitness for Continued Duty Instructions, the Loss of Essential Qualifications Instructions, the inefficiency procedures or the discipline procedures. Secretaries should decide which of these is the most appropriate in the circumstances. The PSMPC can provide advice on the management of these processes.

R & R Provisions - Employees who are not officers

Clause 12 - Employees who are not officers (EWANO) Redeployment, Retirement and Redundancy provisions.

Redeployment, Retirement and Redundancy Provisions apply to excess employees who are not officers, except where the provisions are inconsistent with those in this clause in which case the following conditions will apply.

12.1 Application: The provisions of this clause do not apply to excluded employees (see 11.2).

12.2 Conditions: In addition to the provisions of clause 11 the following provisions apply.

12.2.1. Insufficient work: Where a Secretary believes that there is insufficient productive work available for an excess employee during the retention period, the Secretary may retire the employee before the end of the retention period, after consulting the employee's union and the Commissioner. The provisions of paragraph 11.4.4 and 11.4.5 will apply.

12.2.1. (a) Where an excess employee is retired in accordance with 12.2.1, the employee will be eligible to receive income maintenance payments to maintain the level of salary being received at the date of retirement calculated under 11.7 for the balance of the 7 or 13 month retention period applying to that employee.

12.2.1. (b) Where an employee is retired in accordance with 12.2.1. and has been given a payment instead of notice under 11.4.6. the employee's date of retirement for the purposes of this paragraph and paragraph 11.10. will be the date the employee would have been retired but for being given pay in lieu of notice.

Good Practice - Employees who are not officers

For the purposes of the Award, an employee who is not an officer is a continuing employee with more than twelve months' continuous service. This includes:

persons engaged under section 82AC of the Act who have been employed for a continuous period of more than 12 months; and
persons initally engaged as short-term employees under section 82AD of the Act and whose employment has been extended beyond 12 months under the provisions of section 82AD(7) of the Act and that employment is continuous.

See sections 82, 82AC and 82AD of the Act at Attachment B.

Foreshortening of retention period - excess continuing employees

The retention period of an excess employee covered by clause 12 of the Award may be foreshortened by the Secretary after consulting with the Commissioner and the union, if there is insufficient productive work for the employee during the retention period.

Where the retention period of an excess employee covered by clause 12 is foreshortened, the employee is eligible to receive income maintenance payments for the balance of the retention period, calculated in accordance with sub-clause 11.7 of the Award.

The notice of retirement to an excess employee covered by clause 12 is issued under section 76W of the Act.

Attachment A: Information provided by Comcare on handling claims for Workers' Compensation arising out of a restructuring process

1. Claims for workers' compensation arising out of restructuring processes will be determined on a case-by-case basis in accordance with the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). As an independent decision maker, Comcare will look at all evidence provided by the claimant and the agency and any other information Comcare considers relevant. The following principles apply to the determination of these claims in relation to assessment of medical conditions, the contribution of employment and the application of the exclusionary provisions.

Medical Condition

2. Workers' compensation is payable where a person suffers a medical condition materially contributed to by his or her employment. It is generally Comcare's policy that a person must be suffering from a medical condition diagnosed by a medical practitioner in accordance with the Diagnostic and Statistical Manual of Mental Disorders (4th Ed) (DSMIV) or the International Classification of Diseases 10 (ICD10). Compensation is not generally payable where a person is unhappy, distressed or aggrieved by actions taken by an agency but is not suffering from a diagnosed work related medical condition.

Material contribution of employment

3. When examining the question of material contribution in relation to these claims, Comcare is of the view that restructuring processes are part of the normal employment environment. As such, a claimant would have to demonstrate that the medical condition has arisen as a result of the failure of the employing agency to adopt a reasonable process or through some significant breach of duty in the restructuring process adopted by the agency.

Application of exclusionary provisions

4. The SRC Act excludes payment of workers' compensation where the medical condition is as a result of the person failing to obtain a benefit in connection with his or her employment. In cases where a person is claiming a condition resulting from failure to obtain a voluntary redundancy this exclusionary provision would be applied. The SRC Act also excludes payment of workers' compensation where the condition results from the failure to obtain a promotion or transfer. This provision may be relevant in claims arising from a redeployment process.

Management of restructure processes

5. It is possible that liability for workers' compensation for restructuring processes can arise and employing agencies have a duty of care to their employees to manage these processes appropriately and in accordance with the formal framework for the management of excess staff. It is also important for agencies to manage these processes with a view to minimising any stress on individuals.

6. To assist Comcare in determining these claims, agencies should provide employer statements with the claim that detail the processes adopted by agencies in their restructuring exercises and any other information relevant to the claim.

Appeals process

7. An agency or claimant unhappy with a determination made by Comcare can request a reconsideration by an internal review employee of the original decisions. Should the agency or claimant be unhappy with the decision of the internal review employee, an application may be made to the Administrative Appeals Tribunal for a review of that decision.

8. Comcare can provide advice to agencies on the determination of these claims and the arrangements for offering redundancy to people already claiming workers' compensation.

9. Further information can be obtained from Comcare State Offices or the Stress Claims Management Centre.

Attachment B: Extracts from the Public Service Act 1922

Part III , Division 4 - Appointments, Transfers and Promotions Subdivision D - Promotions and Transfers of Officers other than Secretaries of Departments and Senior Executive Service Officers

Promotion appeal rights of certain officers

50H (1) This section applies to an officer who has been told by the relevant Secretary that the relevant Secretary is satisfied that the officer is an excess officer.

(2) An officer to whom this section applies has a right under this section to appeal against the promotion under section 50 of another person to a vacant office the classification of which is equal to or lower than the classification of the office occupied by the officer to whom this section applies.

(2A) Subsection (2) does not apply in relation to a promotion that, under this Act, is not subject to appeal under section 50B.

(2B) An officer is not entitled to appeal against the promotion of a person to a vacant office unless:

(a) the vacancy in the office was notified in the Gazette and the officer had applied for a transfer that would have had the effect of filling the notified vacancy; or
(b) the promotion was made without the vacancy in the office having been notified in the Gazette.

(3) Where an officer to whom this section applies is an unattached officer, the reference in subsection (2) to a vacant office the classification of which is equal to or lower than the classification of the office occupied by the officer to whom this section applies shall be read as a reference to a vacant office the maximum rate of salary applicable to which is equal to or lower than the salary, or the maximum rate of salary, applicable to the officer to whom this section applies as an unattached officer.

(4) Subsections 50B (2), (3) and (4) apply in relation to an appeal under this section as if the appeal were an appeal under subsection 50B (1).

(5) Where an officer to whom this section applies appeals under this section against the promotion of another officer, then, for the purposes of this Act in relation to that appeal:

(a) references in this Act to promotion shall, in relation to the officer to whom this section applies, be read as references to the transfer of the officer; and
(b) references in this Act to an appeal under section 50B shall be read as references to an appeal under this section.

(6) The making of an appeal under this section or section 50B by an officer to whom this section applies does not affect the operation of Division 8C.

Part III, Division 8C - Redeployment and retirement of officers other than Secretaries of Departments and Senior Executive Service officers

Interpretation

76S. (1) In this Division, unless the contrary intention appears: Appeal Committee means a Redeployment and Retirement Appeal Committee constituted under Subdivision D of Division 2 of Part II of the Merit Protection Act; continuing employee has the same meaning as in Division 10; excess officer includes a person who would be an excess officer as defined in subsection 7 (3) if references in that subsection to officers included references to persons who are officers within the meaning of this Division; fixed-term employee has the same meaning as in Division 10; officer means an officer, other than a Secretary, an unattached Secretary or a Senior Executive Service officer, and includes a continuing employee who has been an employee for more than one year, but does not include an officer whose appointment to the Service on probation has not been confirmed; overseas employee has the same meaning as in Division 10; short-term employee has the same meaning as in Division 10.

(2) For the purposes of this Division, an officer is inefficient if and only if the officer fails, in the performance of the duties that he or she is required to perform, to attain or sustain a standard of efficiency that a person may reasonably be expected to attain or sustain in the performance of those duties.

(3) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether an officer has failed, in the performance of the duties that he or she is required to perform, to attain or sustain the standard of efficiency referred to in subsection (2):

(a) regard shall be had to:

any written selection criteria or job specifications applicable to those duties;

any duty statement describing those duties; and

any written work standards or instructions relating to the manner of performance of those duties; and

(b) regard may be had to:

any written selection criteria or job specifications applicable to similar duties;

any duty statements describing similar duties; and

any written work standards or instructions relating to the manner of performance of similar duties.

(4) A reference in subsection (3) to similar duties, in relation to an officer holding an office or included in a Department, is a reference to similar duties that other officers of that Department are required to perform.

(5) For the purposes of this Division, an officer is not qualified to perform his or her duties if and only if, in relation to those duties:

(a) the officer ceases to hold, or becomes unable or ineligible to hold or to use and enjoy, an essential qualification; or
(b) a court, person, authority or body that is competent to do so suspends, cancels, revokes, rescinds or otherwise withdraws an essential qualification held by the officer.

(6) A reference in subsection (5) to an essential qualification, in relation to an officer, is a reference to any statutory, professional, academic, commercial, technical, trade, health or other qualification the holding of which is a prerequisite to the practice of a profession, trade or occupation, the exercise of a right or the performance of a function or duty, being a profession, trade, occupation, right, function or duty that it is necessary for that officer to practise, exercise or perform in the course of his or her employment.

Power to reduce officer's classification

76T. (1) The power conferred by this Division on a Secretary to reduce an officer's classification is a power:

(a) in the case of a person who holds an office, or is included, in the Secretary's Department - to assign the person to an office of a lower classification in the Department; or
(b) in the case of a continuing employee employed in a particular capacity in the Secretary's Department - to employ the employee in a lower capacity in the Department.

(2) The power conferred by this Division on the Board to reduce an officer's classification is a power:

(a) in the case of a person who holds an office, or is included, in a Department:
(i) to assign the person to an office of a lower classification in that or another Department; or
(ii) to declare the person to be an unattached officer of a lower classification or, being an unattached officer, to have a lower classification and, in either case, to direct that the person is included in that or another Department; or
(b) in the case of a continuing employee employed in a particular capacity in a Department - to direct that the employee be employed in a lower capacity in that or another Department.

(Sections 76U and 76V have not been included in this extract as they do not directly relate to excess staffing matters.)

Powers of Secretary and Board

76W. (1) Where the relevant Secretary is satisfied of a relevant matter in relation to an officer, the relevant Secretary may, having considered whether it would be in the interests of the efficient administration of the Secretary's Department to transfer the officer under section 50, subject to subsection (2), by notice in writing given to the officer, reduce the officer's classification or retire the officer from the Service.

(2) Where:

(a) a Secretary:
(i) has been unable to find alternative suitable employment for an excess officer in the Secretary's Department; and
(ii) proposes to exercise the power under subsection (1) in relation to the officer; and
(b) the officer has not consented to the exercise of that power;
the Board shall take such action as is reasonable to find alternative suitable employment for the officer in the Service, and the Secretary shall not exercise the power under subsection (1) in relation to the officer unless the Board is satisfied that it would not be in the interests of the efficient administration of the Service to transfer the officer under section 51 to another Department.

(3) Where the Board is:

(a) satisfied of a relevant matter in relation to an officer; and
(b) satisfied that it would be in the interests of the efficient administration of the Service to do so;
the Board may, having considered whether it would be in the interests of the efficient administration of the Service to transfer the officer under section 51, by notice in writing given to the officer, reduce the officer's classification.

(4) The powers conferred on a Secretary or the Board by this section are subject to any applicable industrial award.

(5) A notice given to an officer under this section takes effect as provided by the regulations.

(6) In this section, "relevant matter", in relation to an officer, means any of the following matters:

(a) that an officer is unable to perform his or her duties, or other duties appropriate to the officer's classification, because of physical or mental incapacity;
(b) that an officer is inefficient;
(c) that an officer is not qualified to perform his or her duties;
(d) that an officer is an excess officer.

(Sections 76WA, 76X and 76Y have not been included in this extract as they do not directly relate to excess staffing matters.)

Appeals

76Z. (1) An officer to whom a notice under section 76W has been given (not being an officer who, before receiving the notice, consented in writing to the giving of the notice) may, within the prescribed period after receiving the notice, appeal to an Appeal Committee against the giving of the notice, on the ground that the reduction in the officer's classification, or the retirement of the officer, as the case requires, would be unreasonable.

(2) Where an officer appeals to an Appeal Committee against the giving of a notice, an Appeal Committee shall hear and determine the appeal and may:

(a) confirm the notice; or
(b) revoke the notice.

Part III - Division 10 - Employees

Interpretation

82. (1) In this Division, unless the contrary intention appears: ability means skills, aptitude, qualifications or experience, or any combination of any of them; continuing employee means a person employed under section 82AC; fixed-term employee means a person employed under section 82AE; overseas employee means a person employed under section 82AF; short-term employee means a person employed under section 82AD.

(2) For the purposes of this Division:

the definition of "relevant staff organization" in subsection 7 (1) has effect as if references in that definition to an office were references to employment in a particular capacity; and
a reference to the principal relevant staff organization, in relation to employment in a particular capacity, is a reference to the relevant staff organization that is declared by the regulations to be the principal relevant staff organization in relation to employment in that capacity.

(Sections 82AA and 82AB have not been included in this extract as they do not directly relate to excess staffing matters.)

Employment of continuing employees

82AC. (1) Subject to this section, the Secretary of a Department may engage persons as continuing employees in the Department.

(2) A Secretary shall not engage a person as a continuing employee unless the person is engaged in a class of employees declared under section 82AB.

(3) A Secretary shall not engage a person as a continuing employee unless the Secretary is satisfied that the person has the ability necessary for the performance of the relevant duties.

(4) Where:

a person is employed as a continuing employee in a particular class of employees declared under section 82AB; and
the declaration lapses at any time;
the lapse of the declaration does not prevent the continuation of the employment of the person as a continuing employee.

Employment of short-term employees

82AD. (1) Subject to this section, the Secretary of a Department may engage persons as short-term employees in the Department.

(2) The Secretary of a Department shall not employ a person under subsection (1) unless satisfied:

(a) that the Department requires assistance of a temporary nature in the performance of particular duties;
(b) having considered the need to maintain the Service as a career service - that it would not be appropriate to use the services of an officer to perform those duties; and
(c) having considered the need to maintain a stable work-force - that it would not be appropriate to use the services of a continuing employee to perform those duties.

(3) A person who is to be employed as a short-term employee:

(a) shall, subject to subsection (10), be selected from a register of applicants for short-term employment; or
(b) if no suitable person is available from such a register-shall be a person who the Secretary is satisfied has the ability necessary for the performance of the relevant duties.

(4) Subject to subsection (7), the period of engagement of a short-term employee shall not exceed:

(a) if a period (being less than 12 months) is approved by the Board in relation to the class of employee in which the person is included-that period; or
(b) in any other case-3 months.

(5) If:

(a) for the purposes of paragraph (4) (a), the Board proposes to approve, in relation to a class of short-term employees, a period exceeding 3 months; and
(b) there is or are one or more relevant staff organizations;
the Board shall not approve the period except after consultation with the principal relevant staff organization or organizations.

(6) Where the period of engagement of a short-term employee in a Department expires, the employment of the employee is not thereby terminated, but the Secretary of the Department shall:

(a) if the Department no longer requires assistance of a temporary nature in the performance of the duties of the employee-terminate the employment of the employee; or
(b) in any other case-recommend to the Board that the employment be extended.

(7) On receipt of a recommendation under paragraph (6) (b) in relation to the employment of a short-term employee, the Board shall:

(a) if it is satisfied:
(i) having considered the need to maintain the service as a career service-that it would not be appropriate to use the services of an officer to perform the duties of the employee; and
(ii) having considered the need to maintain a stable work-force-that it would not be appropriate to use the services of a continuing employee to perform those duties;
extend the period of engagement of the employee for such further period as it thinks appropriate; and
(b) in any other case-terminate the employment of the employee with effect from such date as it thinks fit and, if the period of the engagement of the employee has expired, or would expire before that date, extend the period of engagement until that date.

(8) The Board may, at a particular time, extend a period of engagement under subsection (7) notwithstanding that the period has expired before that time.

(9) Where at any time:

(a) as a result of an extension of the period of engagement of a person under subsection (7), the person is employed as a short-term employee; and
(b) the period of engagement of the person (including the period as so extended) has subsisted for the period of 1 year immediately preceding that time;
any continuation of the employment of the person from that time shall be deemed to be employment as a continuing employee.

(10) The Board shall, by notice published in the Gazette, notify:

(a) the manner in which persons shall be selected under paragraph (3) (a); and
(b) the manner in which registers of applicants for short- term employment shall be kept for the purposes of that paragraph.

Attachment C: APS Labour Market Adjustment Program

1. The APS Labour Market Adjustment Program (APSLMAP) assists with the redeployment of excess and surplus staff in the Australian Public Service (APS).

2. Under the APS Enterprise Agreement all employees who have been declared excess and are seeking redeployment must be referred to APSLMAP for redeployment assistance.

3. An employee who commences their retention period after they have received an offer of voluntary retrenchment and rejected it must also be referred to APSLMAP for redeployment assistance.

4. The program's functions are to:

encourage and support redeployment initiatives within and between departments and agencies;
meet the Government's commitments under the APS Enterprise Agreement;
provide an integrated and consistent approach to the management of excess and surplus staff across the APS; and
retain for the APS an appropriate level of skilled and experienced staff, including through relevant training and retraining initiatives.

5. The Program's Careers Advisers are located in Canberra, Perth, Adelaide, Melbourne, Sydney and Brisbane. Other arrangements are in place in Hobart and Darwin to support individual excess and surplus employees in these cities.

6. Other APSLMAP services include career transition presentations and training for excess staff and agencies, and the provision of skills and awareness training for managers; the provision of information and consultancy services; a special assistance program for small agencies; and a staff search facility.

7. Fees for the referral of clients from agencies are charged as follows (current at November 1996):

$280 for the referral of an excess employee
$420 for the referral of a surplus employee

Attachment D: Voluntary retrenchment where an excess employee is not fit and is not at work

When can an offer be made to an excess employee who is not fit for and not at work?

1. When deciding whether to make an offer of voluntary retrenchment to an excess employee who is not fit for and not at work, consideration needs to be given to protecting the Commonwealth from unnecessary liability arising under workers' compensation legislation or at common law in relation to an illness or injury. Agencies, however, may offer voluntary retrenchment to an excess employee who is not fit for and not at work in the following circumstances.

2. In compensation cases, where:

there is little or no likelihood of further improvement in the employee's condition,
the employee is unable to return to his or her former duties, or to be placed in another suitable position, and
the agency has consulted with Comcare and sought advice on the implications for continued liability for the Commonwealth, and the impact on a claimant's benefits and on the agency's premium; and

in non-compensation cases, where:

there is little or no likelihood of further improvement in the employee's condition,
the employee is unable to return to his or her former duties, or to be placed in another suitable position, and
the agency has consulted with the Australian Government Health Service (AGHS) to establish that invalidity retirement is not appropriate.

3. It is important that before making an offer of voluntary retrenchment to an employee absent from work through illness or injury, an agency should also be satisfied that:

the employee is an excess employee;
the appropriateness of invalidity retirement has been assessed and any request for invalidity retirement has been considered and determined by the relevant Superannuation Board*; and
the Commonwealth is not exposed to unnecessary or increased liability arising under workers' compensation legislation or at common law in relation to an illness or injury as a result of the agency offering, and the employee accepting, voluntary retrenchment.

4. It continues to be inappropriate to offer voluntary retrenchment in circumstances where an employee is undergoing a graduated return to duty, where the prognosis for the condition is unknown or where the employee may be totally and permanently incapacitated for duty and a request for invalidity retirement has been made but the relevant Superannuation Board has not considered and determined the request.

5. An offer of voluntary retrenchment should not to be made to an excess employee who is absent from duty for minor illness or injury, whether a compensation or non-compensation case, where there is a reasonable prospect of the employee returning to duty. In such cases, voluntary retrenchment should only be offered to the employee after they have returned to duty.

6. Voluntary retrenchment is management-initiated and it is a matter for the agency to decide, in all cases where the above circumstances have been satisfied, whether an offer of voluntary retrenchment is to be made or not.

Impact on other benefits

Payments excluded from salary for severance pay purposes

7. Salary for severance pay purposes is defined in paragraph 11.4.11 of the Award. In calculating the severance benefits any incapacity payment made under workers' compensation legislation (Comcare benefit) or any partial invalidity pension (superannuation benefit) being paid to the employee is not considered as an allowance under subparagraph 11.4.11(d) of the Award. The salary for severance pay purposes for an excess employee receiving compensation payments is the salary the employee would have received had the employee not been absent from work and been performing normal duties during the period.

Attachment E: Employees on leave without pay

Voluntary retrenchment should not be offered to staff who are on leave without pay. The prospects for redeployment of an employee on leave without pay cannot be reasonably assessed by the Secretary while the employee is absent from the workplace. An employee on leave without pay, including employees who are working with an organisation under Division 2 of Part IV of the Act (First Tier of the Officers' Mobility Provisions), is generally not excess to requirements and should not be invited to elect to be voluntarily retired until they return to work and an assessment of their prospects for redeployment has been made.

Attachment F: Restrictions on the appointment and temporary employment of people who have accepted voluntary retrenchment from the APS

1. To ensure the effective implementation of the Government's decision to restrict the re-employment of people in the APS who have accepted an offer of voluntary retrenchment, the Public Service Commissioner has exercised his powers under section 33A and paragraph 82AD(10)(a) of the the Act to notify changes to the appointment and temporary employment arrangements operating in the APS. These notifications were published in a Special Gazette of 22 May 1996 and took effect on that day.

New arrangements - appointment and temporary employment

2. The arrangements set out below have been made to ensure that staff who accept voluntary retrenchment from the APS are not eligible to apply for appointment or fixed-term temporary employment, or to be selected for short-term temporary employment, within 12 months of their retirement from the APS.

Appointment

3. The Public Service Commissioner has notified under section 33A of the Act that a person who retires on or after 22 May 1996 under:

section 76W of the Act and who has received a severance benefit calculated under clause 11.4 of the GECA; or
section 76R of the Act with a specified benefit in accordance with a determination under section 82D of the Act

is ineligible to apply for appointment to the APS within the 12 month period following the date of their retirement from the APS.

Short-term temporary employment

4. The Public Service Commissioner has also notified under paragraph 82AD(10)(a) of the Act that a person who retires on or after 22 May 1996 under:

section 76W of the Act with a severance benefit calculated under clause 11.4 of GECA; or
section 76R of the Act with a specified benefit in accordance with a determination under section 82D of the Act

is ineligible to be selected for short-term temporary employment within the 12 month period following the date of their retirement from the APS, except in the circumstances outlined below.

5. There may be exceptional circumstances in which a Secretary considers it essential for a former APS employee who has received a severance benefit to be engaged as a short-term temporary employee to perform a specific task, within 12 months of their retirement. In view of this, the notification provides some limited flexibility for the short-term temporary employment of such persons where the Secretary is satisfied that the employment of such a person is essential due to the nature of the duties to be performed and the skills, experience and/or qualifications of the person.

6. In view of the Government's decision to restrict the subsequent employment of former APS employees who have received a severance benefit, it is expected that this special flexibility would be used only in a small number of cases. It should be remembered that the Government's requirement for a strategic approach to downsizing includes tighter controls over the engagement of temporary employees.

Important implications of the new arrangements

7. Agencies should note that these restrictions:

are prospective in that they only apply to persons retired with a benefit on or after 22 May 1996;
apply to both SES and non-SES staff; and
do not apply to persons who are involuntarily retired, that is, those who have not received a severance benefit or, in the case of an SES officer, a specified benefit in accordance with a determination under section 82D of the Act.

Fixed-term temporary employment

8. The Public Service Commissioner or his delegate must approve each individual proposal for fixed-term temporary employment under section 82AE of the Act. Approval will not be given to requests to engage individuals as fixed-term temporary employees within 12 months of their retirement with a severance benefit or, in the case of an SES officer, a specified benefit in accordance with a determination under section 82D of the Act.

9. Requests for approval of fixed-term temporary employment must indicate whether the recommended applicant applied for the vacancy within 12 months of retiring from the APS with a severance benefit or, in the case of an SES officer, a specified benefit in accordance with a determination under section 82D of the Act. A revised sample request form that may be used where agencies request approval for a fixed-term engagement is at Attachment F1.

Agencies to inform staff

10. It is important for agencies to inform affected staff of the arrangements which have been implemented to restrict them from applying for appointment or fixed-term temporary employment, or being selected for short-term temporary employment, for 12 months following their retirement. Staff need to be clearly informed of the consequences of taking voluntary retrenchment.

11. This advice could be included in the letter inviting an employee to accept an offer of voluntary retrenchment and, where possible, also be acknowledged by the employee when accepting the offer. A form of advice/acceptance is at Attachment F2.

12. The PSMPC is using a similar form of words in documentation for section 76R retirements of SES officers.

Other employment

Continuing employees and special employment programs

12. Agencies are reminded that the Government's restriction on subsequent employment also applies to the employment of continuing employees under section 82AC of the Act as well as the engagement of employees in special employment programs under section 82AG of the Act.

Members of Parliament (Staff) Act (MOPS Act)

13. The restrictions on subsequent employment apply only to APS employment and currently there is no restriction on former APS employees who have received a severance benefit from applying for positions covered by the MOPS Act after their retirement from the APS.

14. Where an APS employee secures a job under the MOPS Act then the mobility provisions in Part IV of the Act will operate.

Consultants

15. DAS guidelines cover the use of consultants, and these make it clear that consultants should not perform tasks which would establish an ongoing employment relationship, and would generally be engaged only to provide a specific service or product. Agencies should ensure that any engagement in a consultancy of a former APS employee who has received a severance benefit within the previous 12 months is consistent with these guidelines and with the spirit of the Government's decision on downsizing.

Implementation of these restrictions

16. In order for these restrictions to be implemented effectively at the time of recruitment, agencies may, as a matter of good practice, consider asking applicants for appointment, fixed-term or short-term temporary employment to provide a statement confirming that they have not accepted a severance benefit from the APS in the preceding 12 months. Agencies may also consider extending this practice to the recruitment of continuing employees and employees in special employment programs.

Appointment under section 42 - delegation of power to appoint persons to the APS

17. Since 1992 a Secretary has been able to appoint a person to the APS except where:

the appointment is to an SES classification; or
the person to be appointed has received a severance payment from a Commonwealth employer in the 12 months prior to the proposed appointment.

18. These arrangements for the exercise of powers under section 42 will continue to apply in conjunction with the new arrangements outlined above.

Attachment F1: Request for approval for fixed term employment

Name of person being recommended:......................................................

Position details

Department/Agency:.............................................................................................................

Classification: Position ............................................ Number:.............................................

Duration of Employment Proposed: ......../......../........ to ......../......../........

Justification for use of fixed term provisions:......................................................................

Advertising arrangements

Date of advertisement in Gazette:.......................................... Press:...................................

Publications used: .................................................................................................................

Employment and consultation arrangements

I. Is approval required for the above named person to perform duties in connection with a project or task that has a fixed duration where the services of the person are not likely to be required after the project or task is completed, and the duties require ability that cannot be made available from within the Service

if a permanent officer is available to perform the duties of this position and has been assessed as suitable, the Commission will not approve a fixed term engagement - please indicate whether any permanent officers applied and, if so, whether they were rated suitable:
YES/NO

....................................................................................................................

II. Is this proposal being made at the request of the person concerned, because that person would prefer to be employed as a fixed term employee even though he/she could be appointed as an officer or engaged as a continuing employee
YES/NO

III. Has the principal relevant staff organisation been consulted about this proposal (the principal relevant staff association must be consulted if approval is requested in the circumstances described in (I) above):
YES/NO

please attach a statement of details of these consultations including whether the staff organisation agrees or disagrees.

IV. Did the recommended applicant apply for the vacancy within the 12 month period following retirement from the APS

under s76W of the Act, having received a retrenchment severance benefit calculated under clause 11.4 of the APS General Employment Conditions Award 1995; or
following the giving of a notice under section 76R of the Act and receipt of the specified benefit in accordance with a determination under section 82D of the Act.
YES/NO

If yes, please attach details, including date of retirement.

Contact Officer: ......................................................

Phone: .....................................................................

Fax:.........................................................................

Attachment F2: Restriction on subsequent employment - Offer of voluntary retrenchment

1. The following statement could be included in the letter inviting an employee to elect to be retired:

"You should be aware that the Public Service Commissioner has made formal notifications under the Public Service Act which mean that people who wish to take voluntary retrenchment from the APS will be ineligible for appointment and fixed-term and short-term temporary employment in the APS for 12 months after their retirement.

The restriction on subsequent employment also applies to the employment of continuing employees and employees in special employment programs."

2. The following paragraph could be included in any pro-forma for the acceptance of an offer of voluntary retrenchment by an employee:

'I understand that in accepting an offer of voluntary retrenchment I will become ineligible to apply for appointment or fixed-term temporary employment, or be selected for short-term temporary employment in the APS for 12 months from the date of my retirement. I also understand that the restriction on subsequent employment also applies to employment as a continuing employee and in special employment programs.

Signed....................................................................................................................

Dated..........................................

Attachment G : Payment instead of notice

1. The Workplace Relations Act 1996 is applicable to terminations made under the Public Service Act.

Calculation of payment instead of notice

2. Section 170CM of the WR Act gives an employer the option of giving compensation instead of notice.

3. The calculation of compensation instead of notice is covered by subsections 170CM(4) and (5) of the WR Act. The object of subsection 170CM(4) is to ensure that where the employer does not give the prescribed period of notice the employee is not financially disadvantaged.

4. Advice from the Attorney-General's Department states that the compensation payable under section 170CM(4) is made up of all amounts that the employer would have become liable to pay to the employee had the employee worked through the notice period. That is, if the employer would have been required to pay the employee for benefits accrued during the period of notice, that amount must be included in the payment. In circumstances where the employee would otherwise have been on approved leave without pay during all or part of the notice period, then compensation in lieu of notice should not include a salary and wages component for the period the employee would have been on leave without pay.

5. The Attorney-General's Department advises that a payment instead of notice under subsection 170CM(4) should include:

ordinary wages
anticipated overtime or shift allowances
other allowances such as senior officer, clothing and site allowances
accrued recreation leave
pro rata recreation leave
long service leave, and
lost superannuation benefits

and these payments should be calculated up until the end of the notice period.

6. The Attorney-General's Department also advises that sick leave credits may not be paid out and are not an amount that would become payable had the employee worked through the notice period. Therefore sick leave would not be taken into account when calculating the amount payable to an employee on termination unless this is explicitly provided for in an enterprise agreement. The treatment of higher duties payments and salary increments is less clear and would need to be considered on a case by case basis.

Superannuation aspects

7. Where compensation is paid instead of notice, payments need to include an amount representing the superannuation benefit that would be lost because inadequate notice is given.

8. The determination of superannuation entitlements of APS staff is administered by ComSuper and normally need not be the direct concern of the employing department or agency. However, the Attorney-General's Department advises that to comply with subsection 170CM(4), the Commonwealth is obliged to pay an amount representing the amount of superannuation that would accrue had the person remained employed during the period. This amount is payable by the Commonwealth through the employing department or agency, and not through ComSuper.

9. ComSuper can provide advice on the method to be used to calculate the amount of superannuation benefit that would have accrued had the person remained employed during the notice period.

Attachment H: Calculation of the severance benefit for staff with part-time service

1. Severance pay is to be calculated on a pro rata basis where an employee has worked part-time during any part of the service to be included for severance pay purposes except where the employee has 24 or more years of full-time service. The severance benefit is to be calculated for each period of full and part-time service by multiplying:

the number of years (and months) of service in each period by 2 (weeks) by salary for the hours worked during the period.

2. The following rules apply in calculating the severance payment for an employee with a period of part-time service:

the full-time equivalent salary (as defined for severance pay purposes) at date of retirement is used in the calculation of severance benefits for periods of full-time service;
the employee's salary (as defined for severance pay purposes) at date of retirement, adjusted for the hours worked during the period of part-time service, is used in the calculation of the severance benefit for periods of part-time service;
the maximum benefit is 48 weeks' salary; and any period of full-time service should be counted before periods of part-time service. If an employee's part-time hours varied during their service then those periods involving the higher number of hours should be counted first.

3. Following are some examples to assist you to calculate severance payments:

An employee with 30 years service, all at full-time, would receive the maximum severance benefit of 48 weeks' salary - 24 (years) x 2 (weeks) x full-time salary.
An employee with 30 years service, 24 years full-time and 6 years part-time, would receive the maximum benefit of 48 weeks' salary - 24 (years) x 2 (weeks) x full-time salary.
An employee with 30 years service, 20 years full-time and 10 years part-time (20 hours per week), would receive 20 (years) x 2 (weeks) x full-time salary and 4 (years) x 2 (weeks) x salary for 20 hours.
An employee with 30 years service, 20 years full-time and 10 years part-time (5 years at 30 hours per week and 5 years at 20 hours per week), would receive 20 (years) x 2 (weeks) x full-time salary and 4 (years) x 2 (weeks) x salary for 30 hours.

Attachment I: Calculation of the severance benefit for staff who were retired under Section 49 of the Public Service Act (The Marriage Bar)

1. Until the repeal of section 49 of the Act (the Marriage Bar) in 1966, women were retired from the APS on marriage. Women with more than five years service who retired from the APS under this section only received a payment in lieu of long service leave. There was no employer superannuation component paid and there was no opportunity to preserve superannuation benefits on ceasing service. Only a refund of contributions was made. This was a forced break in service on marriage grounds.

2. Consequently, when calculating severance benefits, an employee who was deemed to have retired because of the operation of the former 'marriage bar' and who subsequently re-entered Commonwealth employment should have their service immediately preceding the deemed resignation recognised as service for severance pay purposes. For example:

* The severance benefit for an employee with the following periods of service:

5 January 1961 to 4 September 1965 (deemed to have retired on marriage)
9 October 1975 to the present date
would be calculated on the total period of actual service (the aggregate of both periods).

3. The severance benefit for an employee with the following periods of service:

5 January 1961 to 4 September 1965 (deemed to have retired on marriage)
9 October 1975 to 8 October 1986
6 March 1989 to 5 June 1989
15 July 1990 to the present date
would be calculated on the service from 5 January 1961 to 4 September 1965 and 15 July 1990 onwards.

4. The other requirements of paragraphs 11.4.7 to 11.4.10 of the Award must also be satisfied in respect of any period of service whether before or after the deemed retirement.

Attachment J: Making an offer of voluntary retrenchment and issuing a 76W notice - Elements that could be included

Offering voluntary retrenchment

See Attachments J1 and J2 for examples of letters that might be used to make a formal offer of voluntary retrenchment.

Issuing a notice under section 76W of the Act

The following information should be provided in writing to an employee and may be included in the notice of retirement or reduction in classification issued under section 76W of the Act.

(a) Retirement

that the employee is being retired under section 76W of the Act;
the date of effect of retirement;
that the employee is excess within the meaning of sub-clause 11.1 of the Award;
that the agency has considered whether it would be in the interests of the efficient administration of the agency to transfer the employee under section 50 of the Act;
that written consent has been received from the affected employee. If not, a statement of reasons for the retirement must be provided; and
that the employee has a right to apply for a remedy if he or she believes the termination was unlawful.

(Where the retention period is foreshortened under clause 12 a statement should be included about the availability of productive work during the unexpired portion of the retention period).

See Attachments J3 and J4 for examples of a notice of retirement and accompaning letter.

(b) Reduction in classification

that the employee is being reduced in classification under section 76W of the Act;
the date of effect of reduction in classification;
that the employee is excess within the meaning of sub-clause 11.1 of the Award;
that the agency has considered whether it would be in the interests of the efficient administration of the agency to transfer the employee under section 50 of the Act;
that written consent has been received from the affected employee. If not, a statement of reasons for the reduction in classification must be provided; and
that the employee's rights of appeal if the notice of reduction is given without the employee's consent.

Attachment J1: Example of a letter inviting an employee to volunteer for retrenchment

To:

OFFER OF VOLUNTARY RETRENCHMENT IN ACCORDANCE WITH CLAUSE 11 OF THE APS GENERAL EMPLOYMENT CONDITIONS AWARD (GECA) 1995

In accordance with clause 11.3.1 of the GECA, a number of staff are likely to become excess to requirements because of ..................... in the Department. I have therefore decided that you be made a formal offer of voluntary retrenchment under the provisions of GECA. This is a once only offer and will not be repeated. Your position will be abolished following your retirement.

Entitlements under the GECA differ in some respects from those that would ordinarily accompany other methods of separation from the APS. For this reason, the Department will reimburse you up to $......... for professional financial counselling through a private financial company to assist you with the financial aspects of your decision. If you have not already made an appointment, I urge you to do so as soon as possible. In addition, you will be provided with advice in relation to specific entitlements under the GECA concerning severance benefits. The Department has written to ComSuper seeking an accurate assessment of your superannuation options.

You have one month from the date of this letter in which to consider and respond in writing to this offer (I have included an acceptance notification for return). The statutory one month period cannot be shortened. Retirement under Section 76W of the Act takes effect at the end of the prescribed notice period of 28 days (or 5 weeks in the case of employees over 45 years of age with more than five years of continuous service) unless the period is forshortened with payment for the unexpired portion of the period. If you accept the offer it is my intention, subject to operational requirements, to issue a notice of retirement under Section 76W of the Act on ..................... which will provide for retirement on that day. You will receive salary and entitlements for the whole of the required notice period.

Failure to respond to this invitation will be taken to mean that you have declined the invitation.

Should you either fail to respond or decline the offer you will become excess under GECA one month from the date of this invitation. Should that occur, your name will be provided to the APS Labour Market Adjustment Program who will assist you to find a placement. Should no placement at or below your substantive level be found within the retention period of seven (or thirteen, depending upon your age and length of service) months you may be involuntarily retired.

You should also be aware that I have the right to refuse any election to accept voluntary retrenchment.

You should be aware that the Public Service Commissioner has made formal notifications under the Act which mean that people who wish to take voluntary retrenchment from the APS will be ineligible for appointment and fixed-term and short-term temporary employment in the APS for 12 months after their retirement.

The restriction on subsequent employment also applies to the employment of continuing employees and employees in special employment programs.

If you wish to discuss any other aspects relating to your decision, such as your redeployment prospects if you remain with the Department, please contact .................... on ext .............

Secretary
Date

Attachment J2: Example of a letter to an employee providing additional information on an offer of voluntary retrenchment

To:

VOLUNTARY RETRENCHMENT

Attached is a letter from the Secretary inviting you to accept an offer of Voluntary Retrenchment (VR). You have one calendar month from the date you receive the offer in which to make a decision to accept or reject the offer, that is until close of business on .......................... I would be grateful, however, if you could provide me with an indication of your view about this offer so that the appropriate salaries and separation payments can be calculated, if necessary.

ComSuper has been requested to provide the Department with an up-to-date entitlement statement for you and that will be made available to you as soon as it is received.

In the letter of invitation the Secretary has advised you that, should you accept the offer, he expects to issue you with a notice of retirement on ......... and that this date will be your date of separation from the APS. You will receive payment in lieu of the required period of notice.

Final moneys will be processed to be available within one or two working days of your retirement. With that date in mind, it would be useful if you would let either ......... or ........., know of any particular requirements you may have in relation to the payment of your final moneys. Unless you advise otherwise your final moneys will be paid into the account to which your normal salary is paid.

If you wish to roll over the taxable component of your severance benefit you should advise either ................. or .................. of the name of the particular rollover fund so that an appropriate cheque may be drawn.

Should you have any questions about any aspect of VR please do not hesitate to call me. ................. will be happy to answer any queries concerning your final entitlements and the payment thereof.

Corporate Services
Date

Attachment J3: Example of a letter that might accompany a Section 76W notice of retirement

Dear

Attached is a Notice of Retirement under Section 76W of the Public Service Act 1922. You are required to sign the copy and return it to ................................... to indicate when you have received the notice.

As previously advised, the date of retirement specified in the notice is............................... and I have directed that you will be retired at the expiration of that day. In accordance with Clauses 11.4.4 and 11.4.5 of the APS General Conditions of Employment Award 1995, you are entitled to receive payment instead of (28 days or 5 weeks) notice. The payment of all monies due to you, including your severance benefit, salary, payment in lieu of notice and payments in lieu of leave will be paid in accordance with your instructions to the personnel area.

While there is no right of appeal against the giving of the notice of retirement, an employee may apply to the Australian Industrial Relations Commission for a remedy in respect of unlawful termination of his or her employment.

Of necessity this is a very formal letter. However, I do want to take this opportunity to thank you for your contribution to the work of the Australian Public Service. I wish you well for the future.

Yours sincerely

Secretary
Date

Attachment J4: Example of a notice of retirement under Section 76W

M...............................................................(name)

..................................................................(classification)

..................................................................(location)

PUBLIC SERVICE ACT 1922 - SECTION 76W - NOTICE OF RETIREMENT

I, ..........................................., Secretary, Department of ......................................................:

(1) being satisfied that you are, within the meaning of subclause 11.1 of the APS General Employment Conditions Award 1995, an excess employee;

(2) having considered whether it would be in the interests of the efficient administration of the Department of .............. to transfer you under Section 50 of the Public Service Act 1922; and

(3) having received your written consent to the giving of this notice;

GIVE NOTICE TO YOU, M ........................................., Administrative Service Officer Class.......... that you are to be retired from the Australian Public Service with effect from the expiration of .....(date)..... 1996.

Signed........................................................

Dated.........................................................

Notice handed to officer on...................................................

Signed by officer...................................................................

Date..................................................

Attachment K: Federal Court ruling on delays in handling involuntary retirement cases

1. The Federal Court decision in Lee v Jacka and Another (1994) 125 ALR 459 affects the decision to retire an excess employee in accordance with section 76W of the Act.

Background

2. The case concerned an employee who was declared excess as part of a wider redundancy program but who did not take up the offer of voluntary retrenchment. Efforts were made to redeploy the employee and after a period of almost three years, when no suitable position was found, the employee was involuntarily retired.

3. The employee appealed to a Redeployment and Retirement Appeals Committee (RRAC) on the grounds that the retirement would be unreasonable. While the RRAC criticised aspects of the department's handling of the case, the notice of retirement was confirmed by majority decision.

4. The employee simultaneously took action in the Federal Court, under the Administrative Decisions (Judicial Review) Act, on the grounds that the procedures laid down by law for the making of the relevant decision were not followed.

What the Court decided

5. The Federal Court decided that the power to involuntarily retire an employee must be exercised within a reasonable time and that a period of almost three years from the initiation of the relevant process was more than a reasonable time for a decision to retire to be made. Therefore, the decision to retire was beyond the power of the relevant Secretary and the retirement decision was declared invalid.

What the Court decision highlights:

6. The decision highlights the need for agencies to be aware :

of the arrangements covering the redeployment and retirement of excess staff and to ensure that action taken in relation to excess staff is in accordance with the R&R framework;
that they should act quickly in relation to an excess staff situation to ensure that the staff know what they must do, what the department will do and to give them the maximum available time to do this; and
that any action taken in relation to excess staff should be undertaken within a reasonable time.

Attachment L: Federal Court ruling on powers of redeployment and retirement appeal committees

1. The Federal Court decision in Inglis v Cameron (1991) 99 ALR 149 affected the way Redeployment and Retirement Appeal Committees (RRAC's) handle appeals against a notice under section 76Z of the Act.

Background

2. Briefly, the case concerned an employee who had been issued with a notice of retirement under section 76W of the Act. The employee lodged an appeal with the MPRA against this notice and also lodged a grievance concerning aspects of the process leading to the issuing of the notice. The MPRA subsequently advised the employee that it would not investigate the grievance as the issues raised would be considered by the RRAC when the appeal was heard.

3. The employee applied to the Federal Court for a review of this decision and for an order preventing the RRAC from considering the matter until the grievance had been separately determined. The MPRA moved for dismissal of this application on the grounds that, through the RRAC, there was adequate provision for a review of the issues raised in the grievance. Mr Justice Neaves rejected this argument.

What the Court decided

4. In dismissing the MPRA motion, Neaves J found that while an RRAC may have regard to a wide range of material, including material which was not available to the decision maker, the Act does not confer on an RRAC a general power to consider whether or not, in all the circumstances, the employee should be reduced in classification.

What the Court decision highlights:

5. As a result of the decision, you should be aware that:

an RRAC may not revoke a notice merely because it has reached a different conclusion from that reached by the Secretary;
an RRAC may revoke a notice if, and only if, it reaches the conclusion, on the material before it, that the reduction in classification would be unreasonable; and
an RRAC's powers are limited to confirming or revoking the notice issued by the Secretary and it may not substitute its decision for the Secretary's decision by, for example, directing that the employee be reduced in classification, instead of being retired.

6. Agencies should ensure that their representative on an RRAC is aware of this matter.

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Management of excess staff situations in the APS

How to use these guidelines

Definitions and commonly used terms

Introduction

Background

The Framework for the management of excess staff

Related requirements

Good Practice Advice

Strategic planning

Potentially excess staff situations

Excess staff situations

Agency experiences

R&R Framework - Major Elements

Assistance provided by the PSMPC

Flow Chart - Steps to be followed in managing an excess staff situation

R & R Provisions - Definitions and application

11.1 Definitions

11.2 Application

Good Practice - Definitions and application

Excess employee

Geographic relocation

Excluded employee

R & R Provisions - Discussions with unions

11.3 Discussions With Unions

Good Practice - Discussions with unions

Requirement to discuss with unions

Details to be provided to unions

Matters to be discussed

Options for determining which staff are excess

If there is a restructure of the agency

Where there is an across-the-board cut in the agency's running costs

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R & R Provisions - Discussion period

Good Practice - Discussion period

Discussion period

APS Agreement

Voluntary retrenchment

Redeployment

Only one offer of voluntary retrenchment may be made to an excess employee.

Written advice that an employee is excess

R & R Provisions - Voluntary Retrenchment

11.4 Voluntary Retrenchment

Good practice - Voluntary retrenchment

Redeployment the first option

Invitation to elect to be retired

Employees who are not fit for and are not at work

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Election period-one month

Advice to be provided to an employee during the election period

Restrictions on appointment and employment in the APS

R & R Provisions - Voluntary retrenchment

Other legal requiremnts - APS Enterprise Agreement

APS Enterprise Agreement-Attachment F-Schedule 1

C4. Date of effect of notice of retirement

Good Practice - Voluntary retrenchment

Approving elections for voluntary retrenchment

Notice of retirement

Date of retirement

R & R Provisions - Voluntary retrenchment

Good Practice - Voluntary retrenchment

Payment instead of notice

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R & R Provisions- Voluntary retrenchment

Good Practice - Voluntary retrenchment

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R & R Provisions - Voluntary retrenchment

Good Practice - Voluntary retrenchment

Service with the Commonwealth

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Service with State Governments

Service in Australian Defence Forces

Salary for severance pay purposes-shift penalties

11.7 Income maintenance payments³