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Last updated: 9 May 1996
Redeployment and Retirement provisions (R & R provisions) of the APS General Employment Conditions Award 1995
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.
11. Redeployment, Retirement And Redundancy provisions
This clause applies to excess employees (as defined in 11.1.1) except where the conditions are varied by the operation of clause 12 (Employees who are not officers (EWANO) Redeployment, Retirement and Redundancy provisions).
11.1 Definitions
11.1.1 Excess employee:; For the purposes of this clause an employee is an 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
11.1.1. (c) where 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 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; or
11.2.1. (b)(ii) a Secretary or unattached Secretary; or
11.2.1. (b)(iii) a Senior Executive Service officer.
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 paragraph 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 employees 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.
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.
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 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.
11.4.4. Period of notice: Subject to 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.
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.
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 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.
11.4.8. Service for severance pay purposes: Subject to 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 Australian Defence forces;
11.4.8. (d) 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. (e) service in another organisation where:
11.4.8. (e)(i) an employee was transferred from the APS to that organisation with a transfer of a function; or
11.4.8. (e)(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 11.4.7, "salary" will include:
11.4.11. (a) the employee's salary; or
11.4.11. (b) the salary of the higher position, 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.
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.
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:
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.
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.
11.5.4. Consideration in isolation: Agencies will consider an excess employee in isolation from and not in competition with other applicants for an advertised vacancy to which an excess employee seeks transfer.
11.5.5. Alternative employment: Where:
11.5.5. (a) the Secretary has been unable to find suitable alternative employment for an excess employee in the Secretary's agency, and proposes to give notice of reduction in classification or retirement in accordance with section 76W of the Act; and
11.5.5. (b) the employee has not consented to the giving of that notice
the Commissioner will take reasonable action to find suitable alternative employment for the employee in the APS. The Secretary will not give the notice unless the Commissioner is satisfied that it would not be in the interest of the efficient administration of the APS to transfer the employee under section 51 of the Act to another agency.
11.5.6. Notice periods for reduction in classification: Where the Secretary or the Commissioner proposes to reduce an excess employee's classification, the employee will be given no less than one month's notice.
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.
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;
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. Officer 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.
11.7 Income Maintenance Payment
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 twelve 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.
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.
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 certificated 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 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.
11.11 Appeals
11.11.1. Appeal rights:; Without affecting the employee's right 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 unions 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.
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.
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 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 11.10.2 will be the date the employee would have been retired but for being given pay in lieu of notice.
