72. Excess staff
Definition72.1 A Staff member is ‘excess’ when:
- they are included in a group of Staff in the department, comprising a greater number than is necessary for the efficient and economical working of the department;
- due to technological or other changes in the work methods of the department, or structural or other changes in the nature, extent or organisation of the functions of the department, the services of the Staff member cannot be effectively used; or
- the duties usually performed by the Staff member are to be performed at a different locality and the Staff member is not willing to perform those duties at the new locality, and the Secretary has determined that the provisions of this clause may apply to that Staff member .
Eligible staff72.2 The provisions of this Part do not apply to non-ongoing Staff, Staff who are on probation or Staff who are still within the minimum employment period as defined in the Fair Work Act 2009
Secretary’s powers72.3 The powers of the Secretary with regard to excess Staff allow the Secretary to:
- reassign duties to a Staff member within the department and determine the place at which the duties are performed
- consider options for redeployment of the Staff member to another APS agency
- reduce the classification level of a Staff member on the grounds that the Staff member is excess to the requirements of the department at the higher classification level
- terminate the employment of an ongoing Staff member on the grounds that the Staff member is excess to the requirements of the department.
APS Redeployment Guidelines72.4 The Secretary will consider the APS Redeployment Guidelines in making any decision in respect to a potentially excess Staff member. The APS Redeployment Policy includes the option of job exchanges.
Timely advice72.5 When the Secretary is aware that a Staff member is likely to become excess, the Secretary will advise the Staff member at the earliest practicable time.
72.6 The Secretary will hold discussions with the potentially excess Staff member to consider:
- redeployment opportunities for the Staff member concerned; and
- whether voluntary retrenchment might be appropriate.
Referral to staff member - initial consultation72.7 Where a Staff member is identified as potentially excess, the Secretary will hold an initial consultation with the Staff member and/or the Staff member’s representative.
72.8 During this initial consultation period of one month, unless the Staff member agrees to a lesser period, the Secretary will not:
- invite the Staff member to accept an offer of voluntary retrenchment; or
- advise that Staff member in writing that they are excess.
Top of page
73. Voluntary retrenchment73.1 Where the Secretary invites an excess Staff member to elect to accept voluntary retrenchment, the Staff member will have one month to accept or reject the invitation. The Secretary will not give notice of termination under section 29 of the PS Act on the grounds that the Staff member is excess to requirements, before the end of that period or until such election is received (where the election is received before the end of that period).
Information to staff member73.2 At the time of inviting the Staff member to make an election, the Secretary will provide the Staff member the following information:
- the amounts of severance pay, payment in lieu of notice, and likely payment in lieu of leave credits;
- the amount of accumulated superannuation contributions;
- the options open to the Staff member concerning superannuation; and
- the taxation rules applying to the various payments.
Financial assistance73.3 Staff considering voluntary retrenchment also have access to financial assistance up to a total maximum of $450 (inclusive of GST) for financial counselling, and a further $450 (inclusive of GST) for career counselling where such career counselling is not otherwise provided through the department's external Employee Assistance Program.
Period of notice73.4 Where a Staff member accepts an offer of voluntary retrenchment and the Secretary approves the Staff member’s termination under section 29 of the PS Act, the Secretary will give the Staff member a period of notice of four weeks, or five weeks for a Staff member over 45 years of age with at least five years of continuous service.
Payment in lieu of notice73.5 Where a Staff member retires or is retrenched at the beginning of, or within the notice period, he or she will receive payment in lieu of notice for the unexpired portion of the notice period.
Top of page
74. Severance benefit74.1 Where a Staff member accepts an offer of voluntary retrenchment and the Secretary terminates the Staff member’s employment under section 29 of the PS Act, the Staff member is entitled to be paid a severance benefit of a sum equal to two 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, subject to any minimum amount the Staff member is entitled to under the Fair Work Act 2009 National Employment Standards (NES).
74.2 The minimum sum payable will be four weeks salary and the maximum will be 48 weeks salary.
74.3 The redundancy benefit will be calculated on a pro-rata basis for any period where a Staff member has worked part-time hours during the Staff member’s period of service and the Staff member has less than 24 years full-time service, subject to any minimum amount the Staff member is entitled to under the NES.
Earlier periods of service74.4 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 one month and occurs where an offer of employment with the new employer was made and accepted by the Staff member before ceasing employment with the preceding employer; or
- the earlier period of service was with the APS and ceased because the Staff member was deemed to have resigned from the APS on marriage under the then section 49 (as repealed in 1966) of the repealed Public Service Act 1922.
Service for severance benefits purposes74.5 Having regard to clause 74.4, and subject to clauses 74.1 to 74.3 and clause 74.8, service for severance benefit purposes means:
- service in the department;
- government service as defined in section 10 of the Long Service Leave (Commonwealth Employees) Act 1976;
- 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;
- service with the Australian Defence Forces;
- APS service immediately preceding deemed resignation under the then section 49 (as repealed in 1966) of the repealed Public Service Act 1922, if the service has not previously been recognised for redundancy pay purposes; and
- Service in another organisation where a Staff member was transferred from the APS to that organisation with a transfer of function; or a Staff member 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.
Service not to count74.6 Having regard to clause 74.5, any period of service which ceased:
- through termination on the following grounds, or on a ground equivalent to any of the following grounds:
- the Staff member lacks, or has lost, an essential qualification for performing the Staff member’s duties; or
- non-performance, or unsatisfactory performance, of duties; or
- inability to perform duties because of physical or mental incapacity; or
- failure to satisfactorily complete an entry level training course; or
- failure to meet a condition imposed under subsection 22(6) of the PS Act; or
- a breach of the Code of Conduct; or
- on a ground equivalent to a ground listed in subparagraph (a) above under the repealed Public Service Act 1922; or
- through voluntary retrenchment at or above the minimum retiring age applicable to the Staff member; or
- with the payment of a redundancy benefit or similar payment or an employer-financed retirement benefit will not count as service for severance benefit purposes.
74.7 Absences from work which do not count as service for any purpose will not count as service for severance benefit purposes.
Part-time service74.8 The severance benefit will be calculated on a pro-rata basis for any period where a Staff member has worked part-time hours during the Staff member’s period of service and the Staff member has less than 24 years full time service.
Severance benefit - rate of payment74.9 For the purpose of calculating any payment under this clause, salary will include:
- the Staff member's salary; or
- the salary of the higher position, where the Staff member has performed duties at the higher level for a continuous period of at least 12 months immediately preceding the date on which the Staff member is given notice of retrenchment; and
- 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.
75. Involuntary retrenchment
Retention periods75.1 Where an excess Staff member has not accepted an offer of voluntary retrenchment, unless he/she agrees otherwise, the excess Staff member will not be involuntarily terminated by the Secretary under section 29 of the PS Act until the following retention periods have elapsed:
- 56 weeks where a Staff member has 20 or more years of service or is over 45 years of age; or
- 30 weeks for other Staff.
75.2 If a Staff member is entitled to a redundancy payment under the NES, the retention period at clauses 75.1 a) and b) above, is taken to include an employee’s entitlement under the NES.
Retention period commencement75.3 The retention period will commence on the earlier of the following:
- the day the Staff member is advised in writing by the Secretary that the Staff member is an excess Staff member; or
- one month after the day on which the Secretary invites the Staff member to elect to be voluntarily retrenched.
Redeployment attempts75.4 During a retention period the Secretary will continue to provide appropriate training and take all reasonable steps to find alternative employment for the excess Staff member, including consideration of options such as redeployment and reduction of classification.
Extension of retention period due to illness75.5 The retention period as provided for in this Agreement will be extended by periods of leave for personal illness or injury, where supported by satisfactory medical evidence.
Travel expenses incurred75.6 The excess Staff member may request assistance in meeting reasonable travel and incidental expenses incurred in seeking alternative employment where these expenses are not met by a prospective employer.
Retirement during retention period75.7 Where the Secretary believes there is insufficient productive work available for an excess Staff member during the retention period, the Secretary may, with the agreement of the Staff member, terminate the Staff member’s employment under section 29 of the PS Act, and pay a lump sum comprising:
- the balance of the retention period (as shortened for the NES) under clauses 75.1 and 75.2 and this payment will be taken to include the payment in lieu of notice of termination of employment, plus;
- the Staff member’s NES entitlement to redundancy pay.
Must receive offer of voluntary retrenchment75.8 An excess Staff member will not be retrenched involuntarily where the Staff member:
- has not been invited to elect to be voluntarily retrenched; or
- has elected to be voluntarily retrenched but the Secretary has refused to approve it.
Notice period75.9 An excess Staff member will be given four weeks notice (or five weeks notice for a Staff member over 45 years of age with at least five years of continuous service) where it is proposed that the Staff member will be involuntarily terminated under section 29 of the PS Act.
Reduction in classification75.10 During a retention period, the Secretary:
- will continue to take reasonable steps to find alternative employment for the excess Staff member; and/or
- may, with four weeks notice, reduce the excess Staff member's classification as a means of securing alternative employment for the excess Staff member.
Income maintenance as a result of reduction in classification75.11 Where an excess Staff member is reduced in classification before the end of the appropriate retention period, the Staff member will continue to be paid at the Staff member’s previous level for the balance of the retention period with the exception of reductions in line with section 15 of the PS Act.
Top of page