69. Resignation

69.1 An employee may resign from their employment by giving the Clerk at least 14 calendar days’ notice.

69.2 At the instigation of the Clerk, the resignation may take effect at an earlier date within the notice period. In such cases, the employee will receive paid compensation in lieu of the notice period which is not worked.

69.3 The Clerk has the discretion to agree to a shorter period of notice or waive the requirement to give notice.

70. Payment on death

70.1 When an employee dies, or the Clerk has directed that an employee is presumed to have died on a particular date, the Clerk must authorise payments to the partner, dependants or legal representative of the former employee, the amount to which the former employee would have been entitled had they ceased employment through resignation or retirement, or where legislation provides specifically for amounts calculated based on the death of the employee, those amounts. If payment has not been made within a year of the former employee’s death, it should be made to their legal representative.

71. Redeployment, retraining, redundancy

71.1 The following provisions will apply to ongoing employees who are not on probation.

Consultation

71.2 Where the Clerk considers there is likely to be a need to identify employees as excess, the Clerk will, as soon as practicable, advise the affected employees of the situation and discuss the situation with the employees including:

1. actions that might be taken to reduce the likelihood of the employees becoming excess;
2. redeployment opportunities for the employees within the department at or below the employees’ classifications; and
3. whether voluntary retrenchment might be appropriate.

An employee may choose to be represented in any such discussion.

71.3 Where the Clerk is undertaking a consultation process in accordance with clause 67 in relation to the situation, the discussions in clause 71.2 may be undertaken at or around the same time as the discussions contemplated in clause 66.2 to 66.9.

71.4 During the discussions referred to in clause 71.2, the Clerk may invite employees who are not potentially excess to express an interest in voluntary retrenchment, if that would allow for redeployment of potentially excess employees.

Voluntary retrenchment

71.5 Where the Clerk decides that an employee is excess, the Clerk 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
3. reimburse the employee up to $400 for expenses incurred in seeking financial advice.

Consideration

71.6 Where the Clerk invites an excess employee to elect for retrenchment with a redundancy benefit, the employee will have four weeks in which to notify the Clerk of their decision (the consideration period). Where the employee elects for retrenchment the Clerk 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. Only one invitation to elect for retrenchment with the payment of a redundancy benefit will be made to an excess employee.

71.7 The consideration period can be reduced by agreement between the employee and the Clerk.

Redundancy benefit

71.8 An employee who elects for retrenchment with a redundancy benefit and whose employment is terminated by PS Act on the grounds that the employee is excess 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 NES.

71.9 The minimum sum payable will be four weeks’ salary and the maximum will be 48 weeks’ salary.

71.10 For the purpose of calculating a redundancy benefit, salary will include:

1. the employee’s salary at their substantive classification; or
2. the salary of the higher classification, where the employee has been assigned to the higher classification for a continuous period of at least 12 months immediately preceding the date on which the employee is given notice that their employment is to be terminated; and
3. a weekly average of shift penalties where an employee has undertaken shift work and has received shift penalties for 50 percent or more of the pay periods in the 12 months preceding the notice of retirement; and
4. 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.

71.11 The redundancy benefit will be calculated on a pro-rata basis for any period where an employee has worked part-time hours during the employee’s 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.

Notice of termination

71.12 Where the employment of an excess employee is to be terminated on the basis that the employee is excess, the Clerk will give written notice of termination of four weeks (or five weeks for an employee over 45 years old with at least five years of continuous service).

71.13 The Clerk can direct, or the employee may request, an earlier termination date within the period of notice. 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.

Retention period

71.14 An excess employee who does not agree to be retrenched with the payment of a redundancy benefit will be entitled to a seven month retention period. If an employee is entitled to a redundancy payment under the NES, the retention period is reduced by the number of weeks redundancy pay that the employee will be entitled to under the NES on termination of employment, as at the expiration of the retention period (as adjusted by this clause).

71.15 The retention period will commence on the day the Clerk advises the employee in writing that they are an excess employee.

71.16 During the retention period the Clerk:

1. will continue to take reasonable steps to find alternative employment for the excess employee; and
2. may, with four weeks’ notice, reassign duties at a lower classification to the excess employee. Where this occurs before the end of an employee’s retention period, the employee will receive income maintenance to maintain their salary at the previous higher classification for the balance of the retention period set out in clause 71.14.

71.17 It is the excess employee’s responsibility to take all reasonable steps to identify and apply for suitable vacancies during the retention period. The excess employee must actively participate in learning and development activities, trial placements or other reasonable arrangements designed to assist the employee in obtaining alternative employment.

Termination of employment at the conclusion of the retention period

71.18 The Clerk may involuntarily terminate the employment of an excess employee at the end of the retention period. An excess employee’s employment will not be involuntarily terminated without being given notice of termination under clause 71.12. Wherever possible, this notice period will be concurrent with the retention period.

71.19 Where the Clerk is satisfied that there is no reasonable prospect of redeployment or that there is insufficient productive work available for the employee during the retention period, the Clerk may terminate the employee’s employment.

71.20 Where the Clerk terminates an employee’s employment in accordance with clause 71.19, the employee is entitled to be paid:

1. for the balance of the retention period (as reduced by the employee’s entitlement to a redundancy payment under the NES) as a lump sum, with this payment being taken to include payment in lieu of notice of termination; and
2. redundancy pay, in accordance with the NES.

Definition of excess

71.21 For the purposes of this agreement, an employee is excess to the requirements of the department if:

1. the employee has a classification at which there is a greater number of employees than is necessary for the efficient and cost-effective operations of the department; or
2. the services of the employee cannot be effectively used because of technological or other changes in the work methods of the department or changes in the nature, extent or organisation of the functions of the department.

Service for redundancy benefit purposes

71.22 Service for redundancy benefit purposes means:

1. service in the department;
2. Government service as defined in section 10 of the Long Service Leave (Commonwealth Employees) Act 1976;
3. service with the Commonwealth (other than service with a Joint Commonwealth-State body corporate in which the Commonwealth has a controlling interest) which is recognised for long service leave purposes;
4. service with the Australian Defence Force;
5. service in the Australian Public Service immediately preceding deemed resignation under repealed section 49 of the Public Service Act 1922, if the service has not previously been recognised for severance pay purposes; and
6. service in another organisation where:
   1. an employee was transferred from the Parliamentary Service or the Australian Public Service to that organisation with a transfer of function; or
   2. an employee engaged by that organisation on work within a function is transferred, as a result of the transfer of that function, to the Parliamentary Service or the Australian Public Service;

and such service is recognised for long service leave purposes.

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

1. 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 employee before ceasing employment with the preceding employer; or
2. the earlier period of service was with the Australian Public Service and ceased because the employee was deemed to have resigned from the Australian Public Service on marriage under repealed section 49 of the Public Service Act 1922.

71.24 Service does not count as service for severance benefit purposes if it ceased:

1. through termination on a ground set out in subsections 29(3)(b)-(h) of the PS Act;
2. through termination on the basis of a breach of a Commonwealth employer’s code of conduct; or
3. through voluntary retirement at or above the minimum retiring age applicable to the employee; or
4. with the payment of a redundancy benefit or similar payment, or an employer-financed retirement benefit.

71.25 Absences from duty which do not count as service for long service leave purposes will not count as service for severance benefit purposes.