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Recommended common APS terms and conditions of employment (including some model causes)

Introduction

The APS Bargaining Framework (‘Bargaining Framework’) sets out Australian Government policy as it applies to workplace relations arrangements in APS agencies in respect of their APS employees. It provides a framework for the management of workplace relations in the APS consistent with both the broader principles of Australian Government workplace relations policy, and legislative requirements. To this end, the Bargaining Framework operates within the legislative framework of the Fair Work Act 2009, Public Service Act 1999, and other Commonwealth laws.

The Bargaining Framework balances the workplace interests of the Australian Government with those of APS employees.

The Bargaining Framework states that APS Agencies are to:

seek the inclusion of relevant model clauses, as advised by the Australian Public Service Commission (APSC), in terms and conditions instruments.

The aim of the Bargaining Framework is to implement the Government’s workplace relations policy with respect to APS employment, namely to:

  • support the concept of ‘one APS’ and facilitate mobility across the APS by achieving greater commonality of terms and conditions;
  • ensure fairness and flexibility;
  • promote productivity;
  • provide for sustainable and affordable remuneration arrangements;
  • provide for enterprise agreements, negotiated at the individual agency level, as the principal means of setting terms and conditions of employment for non-Senior Executive Service employees;
  • enshrine accountability for compliance with the Bargaining Framework with individual agencies; and
  • respect and facilitate the role of unions in the workplace.

It is Government policy that agencies should work towards achieving the recommended terms and conditions, in order to support the ‘one APS’ concept. This document sets out the recommended terms and conditions for APS agencies (Part 1) as well as providing suggested model clauses on some of the recommended matters (Part 2), which agencies may seek to include in terms and conditions instruments through good faith bargaining. They are not intended to prevent agencies from bargaining terms and conditions in good faith or limit agencies’ capacity to do so. To this end, a failure to achieve all of the recommended terms and conditions, or incorporate suggested model clauses through a good faith bargaining process, will not be cause to determine that a proposed agreement cannot proceed or is inconsistent with the Bargaining Framework.

It is important that agencies consider the implications of the model clauses and the impact clauses may have on agency costs, productivity and the implications for employees.

Some recommended terms and conditions are expressed as a minimum (or ‘at least’) and agencies are free to set provisions at or above that standard. Some provisions may not be applicable in some agencies (eg Christmas Closedown where an agency remains fully operational).

Where an agency does not propose to pursue provisions as set out at Part 1, these should be identified when seeking approval of the bargaining position/outcome. Note that there is not a requirement for agencies to adopt all of the provisions, in order to comply with the Bargaining Framework – they are non-binding recommendations of Government.

The Fair Work Act 2009 (FW Act), particularly the National Employment Standards (NES), will also be relevant in respect of some clauses.

The Bargaining Framework requires agencies to include compulsory redeployment, reduction and retrenchment (RRR) provisions without enhancing existing redundancy arrangements (other than where required by legislation or in exceptional circumstances). Where new agencies are established, the RRR model clause will provide the basis for assessing the ‘no enhancement’ requirement where there is no existing RRR provisions applying in the agency.

The APSC may issue Circulars from time to time to provide information on workplace relations policy and legislation. These circulars, and the former Workplace Relations Advice series, will be made available on www.apsc.gov.au. This may include updated versions of the model clauses.

This document should be read in conjunction with the Bargaining Framework and its Supporting Guidance.

Australian Public Service Commission

28 February 2011

Part 1: Recommended common APS terms and conditions of employment

Terms and conditions and recommended approach

Leave & redundancy entitlements

Annual Leave #

20 days leave per annum. An extra 5 days leave per annum for shiftworkers regularly working Sundays and public holidays. (Existing remote locality leave may be retained).

Personal/Carer’s Leave #

15-18 days leave per annum, accruable.

Public Holidays* #

The same public holidays as the NES (s.115 of FW Act).

Compassionate/Bereavement Leave #

2-3 days paid leave per occasion. For irregular or intermittent employees, leave is to be unpaid. (NES sets minimum standards – s.104).

Cultural, Ceremonial and NAIDOC Leave

Agencies should seek to facilitate leave in a reasonable way on a case by case basis (e.g. through miscellaneous leave)

Defence Reservists*

Defence reserve leave at least as per Defence Reserve Support Council advice.

Community Service Volunteer Leave #

Community service leave to include all emergency services responses, regular training, reasonable travel and recovery time and ceremonial duties. (NES sets minimum standards – s.108-109).

Maternity Leave (incl. adoption and foster carers* leave)

A minimum of 2 weeks additional paid maternity leave i.e. paid leave provided in addition to entitlements under the Maternity Leave (Commonwealth Employees) Act 1973 for a total of 14 weeks paid leave. Arrangements for parents adopting/fostering a child to mirror maternity leave provisions and rules (ie 14 weeks leave for eligible employees).

Paid Parental Leave

A minimum of 2 weeks paid parental leave for supporting partners.

Return to Work After Parental Leave* #

As a minimum, provisions in line with s.84 of the FW Act.

Long Service Leave*

Leave to be in accordance with the Long Service Leave (Commonwealth Employees) Act 1976. Long service leave must be accessed at a minimum of 7 calendar days per occasion.

Portability of leave*

As a minimum, must cover employees from the APS, Parliamentary Service and the ACT Government. Portability may be faciliated in other circumstances in accordance with Part 4.3.5 of the APS Bargaining Framework.

Christmas Closedown*

At a maximum, the days between the Boxing Day Public Holiday and the New Years Day Public Holiday or days in lieu (note that there is no requirement to have closedown).

Redeployment, reduction and retrenchment (RRR) provisions * #

Provision for compulsory RRR and no enhancement of existing provisions, based on longstanding existing policy. Retention periods optional. Model clauses are provided to enable new agencies (that do not have existing RRR provisions) to meet the no enhancment policy. For existing agencies, relevant sub- clauses have been included to ensure no enhancement arises due to NES entitlements.

Hours of work

Flextime

To be provided to APS 1-6 employees and those in training classifications (if applicable). Employees should not carry a flextime credit of more than 1 standard week from one settlement period to the next.

Time Off in Lieu (TOIL)

TOIL may be provided to EL1-2 employees at management’s discretion. It can not provide entitlements that are similar to a flextime scheme.

Flexible working arrangements (including part-time work) #

Requests to be considered in accordance with the employee’s individual performance, personal needs and operational requirements. Provisions relating to the NES do not need to adopt this approach (see model clause 3).

Remuneration

Superannuation Payment*

Contribution rate as per PSSap rate (as at 1 January 2011, the rate is 15.4%), if not otherwise determined by superannuation fund rules (e.g. PSS and CSS). Agencies should not seek to make employer contributions during periods of unpaid leave that does not count as service.

Workplace issues

Individual flexibility* #

Provisions at least in line with s.203 of the FW Act.

Employee representation and workplace delegates rights

Agreements to recognise the rights of workplace delegates and outline the facilities and resources available for delegates to utilise on a reasonable basis. Refer Attachments B and C of the APS Bargaining Framework Suppporting Guidance.

Consultation * #

Provisions at least in line with s.205 of the FW Act.

Dispute resolution * #

Provisions at least in line with s.186(6) of the FW Act.

No extra claims*

See model clause

Notes

* A suggested model clause has been developed for these provisions.

# denotes that Fair Work Act 2009 provisions are relevant to these provisions (most are National Employment Standards (NES)); enterprise agreement provisions need to comply with the FW Act requirements.

Part 2: Model clauses

1. Public holidays

General comments:

The clause does not address payments (overtime and shift payments) for working on a public holiday – agencies may need to add such provisions.

Public holidays

[The National Employment Standards are relevant to this provision – s. 115]

1. Employees will be entitled to the following public holidays:

  1. New Year's Day (1 January);
  2. Australia Day (26 January);
  3. Good Friday;
  4. Easter Monday;
  5. Anzac Day (25 April);
  6. The Queen's birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);
  7. Christmas Day (25 December);
  8. Boxing Day (26 December);
  9. Any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the Fair Work regulations from counting as a public holiday.

2. If under a state or territory law, a day or part day is substituted for one of the public holidays listed above, then the substituted day or part day is the public holiday.

3. The Agency Head and an employee may agree on the substitution of a day or part day that would otherwise be a public holiday, having regard to operational requirements.

4. An employee, who is absent on a day or part-day that is a public holiday in the place where the employee is based for work purposes, is entitled to be paid for the part or full day absence as if that day or part-day was not a public holiday, except where that person would not normally have worked on that day. a. Where a public holiday falls during a period when an employee is absent on leave (other than Annual or paid Personal/carers leave) there is no entitlement to receive payment as a public holiday. Payment for that day would be in accordance with the entitlement for that form of leave (e.g. if on long service leave on half pay, payment is on half pay).

2. Defence Reservists Leave

Leave for ADF Reserve and Continuous Full Time Service or Cadet Force obligations

1. An employee may be granted leave (with or without pay) to enable the employee to fulfil Australian Defence Force (ADF) Reserve and Continuous Full Time Service (CFTS) or Cadet Force obligations.

Note: The entitlement to leave for Reserve Service is prescribed under the Defence Reserve Service (Protection) Act 2001.

2. An employee is entitled to ADF Reserve leave with pay, for up to four weeks during each financial year for the purpose of fulfilling service in the ADF Reserve. These purposes include training and operational duty as required.

  1. During the employee's first year of ADF Reserve service, a further two weeks paid leave may be granted to facilitate participation in additional ADF Reserve training, including induction requirements.
  2. With the exception of the additional two weeks in the first year of service, leave can be accumulated and taken over a period of two years, to enable the employee to undertake training as a member of the ADF Reserves. c. Employees are not required to pay their tax free ADF Reserve salary to the Agency in any circumstances.

3. [optional] An employee who is an officer or instructor of cadets in a Cadet Force may be granted paid leave of up to three weeks each financial year to perform duties as an officer or instructor of Cadets. For these purposes ‘Cadet Force’ means the Australian Navy Cadets, Australian Army Cadets, or the Australian Air Force Cadets.

4. Defence Reserve leave counts as service for all purposes, except for unpaid leave to undertake Continuous Full Time Service (CFTS). Unpaid leave for the purpose of CFTS counts for all purposes except Annual leave.

5. Eligible employees may also apply for Annual leave, long service leave, leave without pay, top-up pay or they may use flextime or make up time for the purpose of fulfilling ADF Reserve, CFTS or Cadet Force obligations.

6. Employees are to notify supervisors at the earliest opportunity once the dates for ADF Reserve, CFTS or Cadet Force activities are known and/or changed.

3. Parental Leave

General comments:

This section covers:

  1. Flexible working arrangements for parents;
  2. Return to work after parental leave;
  3. foster carers leave.

This section is not a comprehensive statement on parental leave.

Clauses 1 and 2 are model clauses that ensure compliance with the NES (ie. they are minimum requirements and can be added to or enhanced). These may form part of other clauses (e.g. parental leave).

In relation to foster carers leave, there is not a model clause, however the information below provides an outline of the standard of benefits expected.

Agencies may have a range of other provisions dealing with flexible working arrangements that would need to considered in conjunction with the following provision.

Flexible work arrangements for parents

[The National Employment Standards are relevant to this provision – s. 65]

1. An employee who is a parent, or has responsibility for the care of a child under school age or a child under 18 who has a disability, may request flexible working arrangements, including part-time hours. The employee is not eligible to make this request unless they have completed at least 12 months of continuous qualifying service (the Agency Head may waive this requirement in exceptional circumstances).

2. A casual employee engaged for irregular or intermittent duties may only request flexible work arrangements if the employee:

  1. a. is a long term casual employee immediately before making the request; and
  2. b. has reasonable expectation of continuing employment on a regular and systematic basis.

Note: ‘long term casual employee’ is defined at s.12 of the Fair Work Act 2009

3. A request made in accordance with clause 1 must be in writing and set out details of the change sought and the reasons for the change. The Agency Head will respond in writing to the request within 21 days and will only refuse on reasonable business grounds. Where the request is refused, the response will include reasons for the refusal.

4. For the purposes of this clause:

  1. ‘qualifying service’ means service that is recognised for redundancy pay purposes;
  2. ‘casual’ means an employee engaged on a irregular or intermittent basis.

Return to work after parental leave

[The National Employment Standards are relevant to this provision – s. 84]

1. On ending parental or maternity leave, an employee is entitled to return to:

  1. the employee’s pre-parental/maternity leave duties; or
  2. if those duties no longer exists – an available position for which the employee is qualified and suited at the same classification and pay as applied pre-parental/maternity leave. Where this is not practical, other duties will be sought, with the redeployment, reduction and redundancy provisions applying to any placement.

2. For the purposes of this clause, duties means those performed:

  1. if the employee was moved to safe duties because of the pregnancy – immediately before the move; or
  2. if the employee began working part-time because of the pregnancy – immediately before the part-time employment began; or
  3. otherwise – immediately before the employee commenced maternity or parental leave.

Foster parents leave

The following outlines key features of a fostering provision (note, this is not a model clause).

  • Arrangements for fostering a child should mirror relevant maternity leave provisions and rules (ie. 14 weeks paid leave for primary carers).
  • This entitlement should apply in relation to a child for whom the employee has assumed long term responsibility arising from the placement of the child by a permanent ‘fostering' arrangement o by a person / organisation with statutory responsibility for the placement of the child; and o where the child is not expected to return to their family.
  • Supporting carers can have up to 2-4 weeks paid leave.

4. Long Service Leave

Long service leave

1. An employee is eligible for long service leave in accordance with the Long Service Leave (Commonwealth Employees) Act 1976.

2. The minimum period during which long service leave can be taken is seven calendar days (at full or half pay). Long service leave cannot be broken with other periods of leave, except as otherwise provided by legislation.

5. Christmas closedown

General comments:

There is no requirement on agencies to introduce Christmas closedown. There is also no requirement to provide direct alternative benefits to a closedown. The model clause is only relevant where an agency has, or wishes to introduce, Christmas closedown.

There is generally a linkage between closedown provisions and an agency's weekly hours of work, for example an agency may increase weekly hours as a trade-off for additional closedown provisions.

Some agencies may have other provisions related to the closedown period, such as allowing employees time off in lieu for days worked during the period between Christmas and New Years, or additional annual leave credits. These other provisions need to be considered in conjunction with this model clause.

The clause does not address payments for shiftworkers or for other employees who work on the closedown days. Agencies may add clauses on these issues.

Christmas closedown

1. The Agency will close its normal operations from close of business on the last working day before Christmas, with business resuming on the first working day after New Year’s Day.

2. Employees will be provided with time off for the working days between Christmas and New Year’s Day and will be paid in accordance with their ordinary hours of work. Where an employee is absent on leave, payment for the Christmas closedown provision will be in accordance with the entitlement for that form of leave, (e.g. if on long service leave half pay, payment is on half pay) .

3. There will be no deduction from Annual or Personal/carer’s leave credits for the closedown days.

6. Portability of Leave

General comments:

The Bargaining Framework requires agreements to contain provisions that ensure the portability of accrued paid leave entitlements and enhance the mobility of employees.

The Australian Government Employment Bargaining Framework Supporting Guidance (Sept 09) contained a similar clause. That provision has been updated to clarify the circumstances where it operates and to ensure consistency with legislation.

The clause assumes ‘employee’ is defined in the enterprise agreement as meaning an Agency employee.

The provision does not deal with leave portability from non-APS Commonwealth bodies, other state/territory public sectors or where employees are moved under machinery of government provisions into the APS. Agencies should discuss proposals on these matters with the APSC and the Department of Finance and Deregulation. Where an agency proposes to recognise leave in these or other circumstances (eg an ex-APS employee being engaged after a short break), the provision should exclude recognition of any personal leave where a redundancy payment was received.

Portability of leave

1. Where an employee moves (including on promotion or for an agreed period) from another agency where they were an ongoing APS employee, the employee’s unused accrued Annual leave and Personal/carers leave (however described) will be recognised, provided there is no break in continuity of service.

2. Where an employee is engaged as either an ongoing or non-ongoing APS employee immediately following a period of ongoing employment in the Parliamentary Service or the ACT Government Service, the employee’s unused accrued Annual leave and Personal/carers leave (however described) will be recognised.

3. For the purposes of this clause:

  • ‘APS employee’ has the same meaning as the Public Service Act 1999*
  • ‘Parliamentary Service’ refers to employment under the Parliamentary Service Act 1999

[* This definition may be covered in the EA-wide definitions]

Additional clause Agencies may choose to include

Portability of leave – former non-ongoing employees

Where a person is engaged as an ongoing employee, and immediately prior to the engagement the person was employed as a non-ongoing APS employee, the Agency Head may, at the employee’s request, recognise any accrued Annual leave and Personal/carers leave (however described), provided there is no break in continuity of service. Any recognised Annual leave excludes any accrued leave paid out on separation.

7. Redeployment, Reduction and Retrenchment (RRR) – (existing agencies)

[The National Employment Standards are relevant to this provision]

General comments:

Note that this is not a comprehensive RRR clause. It only includes NES related sub-clauses for Agencies with existing RRR provisions that have not been updated to reflect the introduction of the NES minimum benefits. These agencies will need to adjust their provisions to ensure that benefits reflect the impact of NES entitlements. The following are sub-clauses that typically appear in agency EAs where the NES may impact (the retention period provisions are only relevant where agencies have retention periods).

Redundancy benefit

1. An employee who elects for retrenchment with a redundancy benefit and whose employment is terminated by the Agency Head under s.29 of the Public Service Act 1999 (PS Act) on the grounds that he /she is excess to the requirements of the agency, is entitled to payment of a redundancy benefit of an amount equal to two weeks’ salary for each completed year of continuous service, plus a pro-rata payment for completed months of service since the last completed year of service, subject to any minimum amount the employee is entitled to under the National Employment Standards (NES).

2. The minimum sum payable will be 4 weeks’ salary and the maximum will be 48 weeks’ salary.

3. The redundancy benefit will be calculated on a pro rata basis for any period where an employee has worked part-time hours during his or her period of service and the employee has less than 24 years full-time service, subject to any minimum amount the employee is entitled to under the NES.

Retention period (where relevant)

1. An excess employee who does not agree to be retrenched with the payment of a redundancy benefit will be entitled to the following period of retention:

  • a. 56 weeks* where the employee has 20 years or more service or is over 45 years of age; or
  • b. 30 weeks* for all other employees.

2. If an employee is entitled to a redundancy payment under the NES, the retention period at clause 1 will be reduced the employee’s redundancy pay entitlement under the NES on termination, calculated as at the expiration of the retention period (as adjusted by this clause).

[* where an agency has a shorter period that should be retained to ensure no enhancement]

Retention period – early termination

1. Where the Agency Head is satisfied that there is insufficient productive work available for the employee within the agency during the remainder of the retention period and that there is no reasonable redeployment prospects in the APS:

  1. the Agency Head may, [with the agreement of the employee - optional] terminate the employee’s employment under s.29 of the PS Act; and
  2. upon termination, the employee will be paid a lump sum comprising:
    1. the balance of the retention period (as shortened for the National Employment Standards under sub-clause XX) and this payment will be taken to include the payment in lieu of notice of termination of employment, plus
    2. the employee’s NES entitlement to redundancy pay.

8. Redeployment, Reduction and Retrenchment (RRR) – (new agencies)

[The National Employment Standards are relevant to this provision]

General comments:

Part 4.2 of the Bargaining Framework requires that all enterprise agreements provide compulsory redeployment, reduction and retrenchment for excess APS employees, without enhancing existing arrangements other than where required by legislation, or in exceptional circumstances with the approval of the Special Minister of State for the Public Service and Integrity.

Where new agencies are established that do not have an Enterprise Agreement in place (nor covered by a Public Service Act determination under s.24), the assessment will be against the RRR clause set out below, including the retention period provisions should the agency wish to include that option.

This will also apply where non-APS agencies are moved into the APS, provided that the benefits in the provisions below are not greater than the benefits that already apply in the agency (or part of the agency) as set out in the agency’s current EA. Where existing agency benefits do not exceed the provisions below, they may be retained.

Excess employees - coverage

The following redeployment, reduction and retrenchment (RRR) provisions will apply to ongoing employees who are not on probation.

Consultation

1. Where an Agency Head considers there is likely to be a need to identify employees as excess, he/she will, as soon as practicable, advise the employees of the situation in writing,

  1. actions that might be taken to reduce the likelihood of the employees becoming excess;
  2. redeployment opportunities for the employees within the agency or another APS agency; c. the possibility of retrenchment with the payment of a redundancy benefit; and an employee may choose to be represented in any such discussions.

2. This consultation period will extend for at least a 4* week period, but may be reduced with the written agreement of the employee.

Note: Where 15 or more employees are likely to become excess, the Agency Head is required to comply with the relevant provisions of Division 2 of Part 3-6 of the Fair Work Act 2009 (requirement to notify Centrelink and relevant employee associations).

[* where an agency has a shorter period that should be retained to ensure no enhancement]

Consideration by excess employees

1. Where an Agency Head decides an employee is excess to the agency’s requirements, the Agency Head will:

  1. advise the employee in writing of the decision and may invite the employee to elect for retrenchment with the payment of a redundancy benefit;
  2. ensure the employee is provided, as soon as is practicable, with information on the entitlements they would be eligible to receive if terminated, including superannuation options and taxation treatment of entitlements; and c. reimburse the employee up to $XX for expenses incurred in seeking financial advice.

2. Where the Agency Head invites an excess employee to elect for retrenchment with a redundancy benefit, the employee will have 4* weeks in which to notify the Agency Head of his or her decision (the consideration period). Where the employee elects for retrenchment the Agency Head may decide to retrench the employee but will not give notice of termination before the end of the consideration period without the agreement of the employee.

3. The consideration period can be reduced by agreement between the employee and the Agency Head. Where the period is reduced the employee will, on termination, be paid the unexpired period of the consideration period; and payment in lieu of the relevant period of notice of termination provided for in clause X [optional sub-clause]

4. Only one invitation to elect for retrenchment with the payment of a redundancy benefit will be made to an excess employee.

[* where an agency has a shorter period that should be retained to ensure no enhancement]

Redundancy benefit

1. An employee who elects for retrenchment with a redundancy benefit and whose employment is terminated by the Agency Head under s.29 of the Public Service Act 1999 (PS Act) on the grounds that he /she is excess to the requirements of the agency, is entitled to payment of a redundancy benefit of an amount equal to two weeks’ salary for each completed year of continuous service, plus a pro-rata payment for completed months of service since the last completed year of service, subject to any minimum amount the employee is entitled to under the National Employment Standards (NES).

2. The minimum sum payable will be 4 weeks’ salary and the maximum will be 48 weeks’ salary.

3. The redundancy benefit will be calculated on a pro rata basis for any period where an employee has worked part-time hours during his or her period of service and the employee has less than 24 years full-time service (refer ‘rate of payment’ sub-clause), subject to any minimum amount the employee is entitled to under the NES.

Notice of termination

1. Where the employment of an excess employee is to be terminated under s.29 of the PS Act on excess grounds, the Agency Head will give written notice of termination of 4 weeks (or 5 weeks for an employee over 45 with at least 5 years of continuous service).

2. Where an employee's employment is terminated at the beginning of, or within, the notice period, the employee will receive payment in lieu of notice for the unexpired portion of the notice period.

Note: s.117 of the Fair Work Act 2009 has obligations in relation to payments in lieu of notice.

Definitions

Excess employee:

An employee is an excess employee if:

  • 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;
  • 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
  • the duties usually performed by the employee are to be performed at a different locality, the employee is not willing to perform duties at the locality and the Agency Head has determined that the provisions of this clause apply to that employee.
Service for redundancy pay purposes:

The following types of service are counted in the calculation of service for the purposes of a redundancy benefit:

  • service in an APS agency;
  • Government service as defined in section 10 of the Long Service Leave (Commonwealth Employees) Act 1976;
  • service with the Commonwealth, which is recognised for long service leave purposes, other than service with a Joint Commonwealth-State body or body corporate in which the Commonwealth does not have a controlling interest;
  • service with the Australian Defence Forces;
  • APS service immediately preceding deemed resignation (due to the marriage bar under the
  • service in another organisation where:
    • an employee was transferred from the APS to that organisation with a transfer of function; or
    • an employee engaged by that organisation on work within a function is engaged as an APS employee as a result of the transfer of that function to the APS; and
    • such function is recognised for long service leave purposes.

For earlier periods of service to count there must be no breaks between the periods of service*, except where:

  • the break in service is less than 4 weeks 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
  • 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 Public Service Act 1922.

[* this is also subject to the transfer of business rules under Part 2-8 of the FW Act]

Any period of service which ceased by way of:

  • any of the grounds for termination specified in s.29 of the PS Act (including any additional grounds prescribed in the PS Regulations);
  • on a ground equivalent to any of these grounds;
  • through voluntary retirement at or above the minimum retiring age applicable to the employee;
  • with the payment of a redundancy benefit or similar payment or an employer-financed retirement benefit;

will not count as service for redundancy pay purposes.

Absences from work that do not count as service for leave purposes will not count as service for redundancy pay purposes.

Rate of payment for redundancy benefit

1. For the purposes of calculating any payment for a redundancy benefit, salary will include:

  1. the employee’s salary at the substantive work value level,
  2. the salary of the higher work value level, where the employee has been working at the higher level for a continuous period of at least 12 months immediately preceding the date on which the employee is given notice of termination of employment,
  3. 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,
  4. [shift penalties – where applicable].

2. Where an employee has worked part-time hours during his or her period of service and the employee has less than 24 years full-time service, the 2 weeks per year of service that relates to the part-time service will be paid on pro-rata basis as follows: a. current annual full-time equivalent salary (used for redundancy purposes), divided by full time hours, multiplied by the part-time hours for that part-time period worked.

Retention period (if the new agency proposes to have such a provision)

1. An excess employee who does not agree to be retrenched with the payment of a redundancy benefit will be entitled to the following period of retention:

  1. 56 weeks* where the employee has 20 years or more service or is over 45 years of age; or
  2. 30 weeks* for all other employees.

2. If an employee is entitled to a redundancy payment under the NES, the relevant period in the above clause is reduced by the number of weeks redundancy pay that the employee will be entitled to under the NES on termination, as at the expiration of the retention period (as adjusted by this clause).

3. The retention period will commence on the day the Agency Head advises the employee in writing that they are an excess employee.

4. During the retention period the Agency Head:

  1. a. will continue to take reasonable steps to find alternative employment for the excess employee; and
  2. b. may, with four weeks’ notice, reassign duties at a lower APS classification to the excess employee
  3. i. where this occurs before the end of an employee’s retention period, the employee will receive income maintenance to maintain salary at the previous higher level for the balance of the retention period in sub-clause 1.

[* where an agency has a shorter period that should be retained to ensure no enhancement]

Involuntary termination of employment at the conclusion of the retention period

1. In accordance with s.29 of the PS Act, the Agency Head may involuntarily terminate the employment of an excess employee at the end of the retention period.

2. An excess employee’s employment will not be involuntarily terminated without being given notice of termination under clause X. Wherever possible, this notice period will be concurrent with the retention period.

3. An excess employee’s employment will not be involuntarily terminated if the employee has not been invited to elect for retrenchment with the payment of a redundancy benefit or has elected for retrenchment but the Agency Head has refused to approve it.

Retention period (these clauses are only relevant where the retention clause is also included)

1. The retention period will be extended by any periods of approved leave due to personal illness or injury of the employee (supported by medical evidence) taken during the retention period (calculated in accordance with clauses 1 and 2).

2. The Agency Head may allow the excess employee to access the services of a redeployment assistance provider to the value of $XXXX.

3. It is the excess employee’s responsibility to take all reasonable steps to identify and apply for suitable vacancies at their substantive level during the retention period.

4. The excess employee may request assistance in meeting reasonable travel and incidental expenses incurred in seeking alternative employment where these expenses are not met by the prospective employer.

5. Where an excess employee is required to move the employee’s household to a new locality the Agency Head may approve reasonable expenses where these expenses are not met by the prospective employer.

6. Where the Agency Head is satisfied that there is insufficient productive work available for the employee within the agency during the remainder of the retention period and that there is no reasonable redeployment prospects in the APS:

  1. the Agency Head may, [with the agreement of the employee - optional] terminate the employee’s employment under s.29 of the PS Act; and
  2. upon termination, the employee will be paid a lump sum comprising:
    1. the balance of the retention period (as shortened for the National Employment Standards under sub-clause XX) and this payment will be taken to include the payment in lieu of notice of termination of employment, plus
    2. the employee’s NES entitlement to redundancy pay.

9. Superannuation payment

Employer Superannuation contributions

1. The Agency will make compulsory employer contributions as required by the applicable legislation and fund requirements.

2. Where an employee has chosen an accumulation superannuation fund other than the PSS Accumulation Plan (PSSap), the employer contribution will be the same percentage of the fortnightly superannuation contribution salary as that required for employees who are members of PSSap. This will not be reduced by any other contributions made through salary sacrifice arrangements. This clause does not apply where a superannuation fund cannot accept employer superannuation contributions (e.g. unable to accept contributions for people aged over 75).

Note: At the time of commencement of this Agreement the rate of PSSap employer contribution is 15.4 percent.

3. Employer superannuation contributions will not be paid on behalf of employees during periods of unpaid leave that does not count as service, unless otherwise required under legislation.

4. The Agency Head may choose to limit superannuation choice to complying superannuation funds that allow employee and/or employer contributions to be paid through fortnightly electronic funds transfer using a file generated by the Agency’s payroll system.

10. Individual Flexibility arrangements

General comments:

An agency’s enterprise agreement must include an Individual Flexibility arrangement (IFA) clause otherwise the model term in FW Reg 2.08 will apply by default (s.202 Fair Work Act 2009)

An IFA term must meet the requirements set out in Fair Work Act 2009 s.203

Individual Flexibility Arrangement

[This clause is based on the model flexibility clause at schedule 2.2 of the FW Regulations, with variations to the matters that may be covered by an IFA]

1. An Agency Head and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

  1. the arrangement deals with 1 or more of the following matters:
    1. arrangements about when work is performed;
    2. overtime rates;
    3. penalty rates;
    4. allowances;
    5. remuneration; and/or
    6. leave; and
  2. the arrangement meets the genuine needs of the Agency and employee in relation to 1 or more of the matters mentioned in paragraph (a); and c. the arrangement is genuinely agreed to by the Agency Head and employee.

2. The Agency Head must ensure that the terms of the individual flexibility arrangement:

  1. are about permitted matters under section 172 of the Fair Work Act 2009; and
  2. are not unlawful terms under section 194 of the Fair Work Act 2009; and c. result in the employee being better off overall than the employee would be if no arrangement was made.

3. The Agency Head must ensure that the individual flexibility arrangement:

  1. is in writing; and
  2. includes the name of the employer and employee; and
  3. is signed by the Agency Head and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and
  4. includes details of:
    1. the terms of the enterprise agreement that will be varied by the arrangement; and
    2. how the arrangement will vary the effect of the terms; and
    3. how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and e. states the day on which the arrangement commences and, where applicable, when the arrangement ceases.

4. The Agency Head must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

5. The Agency Head or employee may terminate the individual flexibility arrangement:

  1. by giving no more than 28 days written notice to the other party to the arrangement; or
  2. if the Agency Head and employee agree in writing — at any time.

11. Consultation

General comments:

A clause regarding consultation on major workplace change must be included in an agency’s EA, otherwise the model term in FW Reg 2.09 will apply by default (refer s.205 Fair Work Act 2009).

The compulsory element can be supplemented by an optional general communication and consultation clause that deals with routine consultation within the Agency. Note that the following provisions will need to be considered in conjunction with other EA provisions.

Consultation on major changes

1. This clause applies where a decision is made to introduce major changes in a work area that are likely to have significant effects on employees, other than where provision is already made elsewhere in this enterprise agreement regarding a specific major change.

2. Where a definite decision is made to introduce major changes in program, organisation, structure or technology that are likely to have significant effects on employees, the Agency Head must notify the employees who are likely to be affected by the proposed changes and their representatives, if any.

3. Significant effects include:

  1. termination of employment;
  2. major changes in the composition, operation or size of the Agency’s workforce or in the skills required;
  3. the elimination or diminution of job opportunities, promotion opportunities or job tenure;
  4. significant alteration in hours of work;
  5. the need to retrain employees;
  6. the need to relocate employees to another workplace; and
  7. the major restructuring of jobs.

Agency Head to discuss major changes

4. The Agency Head must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 2, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

5. The discussions must commence as early as practicable after a definite decision has been made to make the changes referred to in clause 2.

6. For the purposes of such discussion, the employees concerned and their representatives, if any, are to be provided in writing all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees. The Agency Head is not required to disclose confidential or commercially sensitive information to the employees.

12. Dispute sesolution term

General comments:

An EA must include an appropriate dispute resolution clause, otherwise it will fail the requirements of s.186 of the Fair Work Act 2009 and not be approved by Fair Work Australia.

The clause must provide a procedure that requires or allows Fair Work Australia, or another independent person, to settle a dispute and allow for the representation of employees covered by the agreement for the purposes of that procedure.

Parties to an EA then have the flexibility to negotiate:

  • the scope of the term (keeping to EA matters and the NES is recommended);
  • attempting to resolve in the workplace first before escalating to FWA;
  • FWA powers, noting that if the parties want FWA to deal with a matter by arbitration, the dispute clause needs to expressly state this to give FWA to authority to do so.

Resolution of Agreement disputes

1. If a dispute relates to a matter under this agreement, or the NES, the parties to the dispute must first attempt to resolve the matter at the workplace level by discussions between the employee or employees concerned and the relevant supervisor/manager.

2. If a resolution to the dispute has not been achieved after discussions have been held in accordance with clause 1, the parties to the dispute will endeavour to resolve the dispute in a timely manner either through discussions with more senior levels of management where appropriate or through alternative dispute resolution methods.

3. If discussions at the workplace level do not resolve the dispute, and all appropriate steps have been taken in accordance with clauses 1 and 2, a party to the dispute may refer the matter to Fair Work Australia.

4. Fair Work Australia may deal with the dispute in 2 stages:

  1. a. Fair Work Australia will first attempt to resolve the dispute as it considers appropriate,
  2. including by mediation, conciliation, expressing an opinion or making a recommendation; and
  3. b. if Fair Work Australia is unable to resolve the dispute at the first stage, Fair Work Australia may then:
    1. i. arbitrate the dispute; and
    2. ii. make a determination that is binding on the parties.

Note: If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act.

A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Fair Work Act 2009. Therefore, an appeal may be made against the decision.

5. The agency or an employee who is a party to the dispute may appoint another person, organisation or association to accompany and/or represent them for the purposes of this term.

6. Resolution of disputes is to occur in good faith by following the same principles as the good faith bargaining requirements at section 228 of the Fair Work Act 2009.

7. While the parties are trying to resolve the dispute using the procedures in this term:

  1. an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
  2. an employee must comply with a direction given by the Agency Head to perform other available work at the same workplace, or at another workplace, unless:
    1. the work is not safe; or
    2. applicable occupational health and safety legislation would not permit the work to be performed; or
    3. the work is not appropriate for the employee to perform; or
    4. there are other reasonable grounds for the employee to refuse to comply with the direction.

8. The parties to the dispute agree to be bound by a decision made by Fair Work Australia in accordance with this term.

13. No Extra Claims Clause

No extra claims

From the commencement of this Agreement, a person or organisation covered by the Agreement will not pursue further claims for terms and conditions of employment that would have effect during the period of operation of this Agreement, except where consistent with the terms of this Agreement.