Section 11 - Separation and retention

Updated: 6 May 2024

Resignation

  1. An employee may resign from their employment by giving the Electoral Commissioner at least 14 calendar days’ notice.
  2. At the instigation of the Electoral Commissioner, 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.
  3. The Electoral Commissioner has the discretion to agree to a shorter period of notice or waive the requirement to give notice.

Payment on death of an employee

  1. When an employee dies, or the Electoral Commissioner has directed that an employee is presumed to have died on a particular date, subject to any legal requirements, the Electoral Commissioner 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.

Redeployment and redundancy

Application

  1. Redeployment and redundancy applies to ongoing excess employees who are not currently subject to probation as per clause 407.
  2. An employee is excess to the requirements of the AEC, if the Electoral Commissioner determines:
    1. the employee is included in a cohort of employees in the AEC, and this cohort comprises a greater number of employees than is necessary for the efficient and economic working of the AEC; or
    2. the services of the employee cannot be effectively used because of technological or other changes in the work methods of the AEC or structural or similar changes in the nature, scope or organisation of the functions of the AEC; or
    3. where the duties usually performed by the employee are to be performed at a different locality, and the employee is not willing to perform duties at the different locality and the Electoral Commissioner has determined that these provisions will apply to that employee.
  3. Where the employee nominates a representative, the Electoral Commissioner will hold discussions with the employee and the employee’s representative or, if the employee requests, with the employee’s representative only.
  4. The Electoral Commissioner will provide the names of potentially excess employees to the relevant employee representative only with the express authority of those employees.
  5. The Electoral Commissioner will comply with the requirements under the FW Act, in situations where 15 or more employees are likely to become excess, and will raise the issue for discussion with the AEC Consultative Forum.

Initial consultation

  1. When the Electoral Commissioner becomes aware that an employee is likely to become excess, the employee will be advised in writing. 
  2. Subject to clause 502, the Electoral Commissioner will then hold discussions with the employee or the employee’s representative, to consider options such as:
    1. reassignment to a suitable vacancy at the same level within the AEC and/or across the APS;
    2. mechanisms to assist in redeployment to other APS agencies; and
    3. any other measures that could be taken to resolve the situation, including:
      1. redeployment opportunities below the employee’s classification level; or
      2. voluntary redundancy.
  3. The Electoral Commissioner may invite employees who are not excess employees to express interest in voluntary redundancy, where doing so would facilitate the redeployment of employees who would otherwise be subject to clause 503.3.2.
  4. The initial consultation period will be no less than 4 weeks unless the employee requests a shorter period of consultation.

Advice and information to be made available

  1. A potentially excess employee is entitled to the following advice and information during the first 2 weeks of the initial consultation period to support their decision making:
    1. the amount of redundancy pay, payment in lieu of notice and paid leave they would be entitled to;
    2. accumulated superannuation contributions;
    3. options for contact with Comsuper regarding superannuation benefits, entitlements and superannuation advice;
    4. taxation rules applying to the various payments; and
    5. financial advice and/or career counselling up to a maximum reimbursement of $600.00.
  2. The information in clause 506 will be updated at the employee’s request at later stages of the process of redeployment and redundancy.
  3. Subject to clause 505, if the agreed period of the initial consultation is shorter than 2 weeks, the information in clause 506 will provided as soon as is practicable.

Offer of Voluntary Redundancy

  1. At the end of the initial consultation period, the Electoral Commissioner may make an offer of voluntary redundancy to an excess employee. Only one offer of voluntary redundancy can be made to an employee during each excess staffing situation.

Consideration period

  1. Subject to clause 509, the employee will have 4 weeks to consider the offer (consideration period) and advise the Electoral Commissioner in writing whether they wish to accept voluntary redundancy or prefer to be redeployed.
  2. Subject to clause 510 and the Electoral Commissioner’s agreement, the employee may request to reduce the consideration period. Where a consideration period of less than 4 weeks is agreed, the AEC will pay out any unexpired portion of the consideration period.

Notice of termination

  1. When an employee accepts an offer of voluntary redundancy when it is made, the Electoral Commissioner will terminate the employment under section 29 of the PSA by providing the required notice in clause 513. The employee will be entitled to the redundancy benefits set out at clauses 515 to 523.
  2. The notice period will be 4 weeks, or 5 weeks for an employee who:
    1. is 45 years of age with at least 5 years of continuous service; or
    2. has at least 20 years’ service.
  3. Subject to clause 512, the Electoral Commissioner may elect to instead make payment in lieu of notice.

Redundancy benefit

  1. Subject to clause 512, and in addition to any other benefits payable on termination an employee is entitled to a redundancy benefit equal to 2 weeks of full-time equivalent 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.
  2. The minimum sum payable as a redundancy benefit will be 4 weeks of salary and the maximum will be 48 weeks of salary.
  3. The redundancy benefit will be calculated on a pro-rata basis for any period where an employee has worked or is working part-time hours during their period of service and the employee has less than 24 years full-time service.
  4. Where the period of continuous service, on the basis of which a redundancy benefit will be calculated, is comprised of both full-time and part-time service, eligible full-time service shall be counted before the part-time service. Where part-time service has been worked over variable weekly hours, the periods of greater weekly hours will be counted first.
  5. Service for redundancy benefit purposes means:
    1. service in the AEC;
    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 does not have a controlling interest) which is recognised for long service leave purposes;
    4. service with the Australian Defence Forces, except where the member has voluntarily retired with an employer-financed benefit;
    5. APS service immediately preceding deemed resignation under the 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 reassigned duties from the APS to that organisation with a transfer of function; or
      2. 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
      3. such service is recognised for long service leave purposes.
  6. Where periods of service are not continuous, earlier periods of service will only count where there are no breaks between those periods, except where:
    1. 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
    2. 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.
  7. Any period of service will not count for severance pay purposes if the previous service ceased:
    1. through termination on the following grounds, or on a ground equivalent to any of the following grounds:
      1. the employee lacks, or has lost, an essential qualification for performing his or her duties;
      2. non-performance, or unsatisfactory performance, of duties;
      3. inability to perform duties because of physical or mental incapacity;
      4. failure to satisfactorily complete an entry level training course;
      5. failure to meet a condition imposed under subsection 22(6) of the PSA; or
      6. a breach of the APS Code of Conduct.
    2. on a ground equivalent to a ground listed in the previous paragraph under the repealed Public Service Act 1922:
      1. through voluntary termination at or above the minimum retiring age applicable to the employee; or
      2. with the payment of a redundancy benefit or similar payment or an employer financed termination benefit.
  8. Absences from work, which do not count as service for long service leave purposes, will not count as service for redundancy pay purposes.
  9. For the purpose of calculating any payment, salary will include:
    1. the employee’s salary at their substantive classification; or
    2. the salary of a higher classification, where the employee has been paid at the higher classification for a continuous period of at least 12 months immediately preceding the date on which the employee is given notice of termination; and
    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.

Redeployment

  1. Employees who, during the consideration period, indicate a preference for redeployment will be advised in writing at the end of the consideration period that they are excess and may elect to be referred to the APS online redeployment register if available or an alternate redeployment service provider.

Retention period

  1. The retention period will commence on the day that the employee receives advice in writing that they are excess.
  2. Unless the employee agrees, the employment of an excess employee will not be involuntarily terminated until the relevant retention period below has elapsed:
    1. 13 months, where an employee has 20 or more years of service or is over 45 years of age; or
    2. 7 months, for other employees.
  3. If an employee is entitled to a redundancy payment in accordance with the NES, the relevant period in clause 526 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.
  4. The retention period may, at the discretion of the Electoral Commissioner, be extended by any periods of paid personal leave with evidence, or periods of compensation leave granted during the retention period.
  5. During the retention period, the Electoral Commissioner and the employee will cooperate to find alternative employment at the same level for the excess employee.
  6. An excess employee may request assistance in meeting reasonable travel and incidental expenses incurred in seeking alternative employment if these expenses are not met by the prospective employer.
  7. An excess employee will be entitled to reasonable leave with full pay to attend necessary employment interviews.
  8. An excess employee who moves to a different locality as a result of a reassignment of duties or reduction in classification is no longer excess and will be entitled to reasonable relocation expenses (clauses 443 to 445).
  9. If, despite taking reasonable steps, the Electoral Commissioner has been unable to find alternative employment at level for the excess employee, the Electoral Commissioner may, with 4 weeks’ notice, reassign the excess employee to a job with a lower APS classification. If this occurs before the end of the retention period, the employee will receive income maintenance to maintain their salary at the higher level for the balance of the retention period.
  10. If an employee:
    1. has received redeployment assistance for a period of at least 2 months; and
    2. the APS Online Redeployment Register, or redeployment service provider suggests no prospect of redeployment; and
    3. the Electoral Commissioner is satisfied there is insufficient productive work available for the remainder of the retention period,

the Electoral Commissioner may, with the agreement of the employee, terminate the employment of the employee under section 29 of the PSA on the grounds that the employee is excess to requirements.

  1. Upon termination, the employee will be paid a lump sum comprising:
    1. the balance of the retention period (as adjusted in clause 527) and which is not less than the payment in lieu of notice of termination of employment; and
    2. an additional redundancy payment equal to the amount the retention period was shortened by under clause 527.

Involuntary termination of employment

  1. The Electoral Commissioner may involuntarily terminate the employment of an excess employee at the end of the retention period. The minimum period of notice of termination will be as outlined in clause 513. An earlier period may be requested by the employee.
  2. An excess employee will not have their employment terminated involuntarily if the employee has not been invited to accept an offer of voluntary redundancy or has elected to have their employment terminated but the Electoral Commissioner has refused to approve the election.
  3. An excess employee will not have their employment terminated involuntarily without being given notice of termination in accordance with clause 513 or payment in lieu of notice.
  4. The specified period of notice will as far as practicable be concurrent with the retention period.