Office for the Public Sector

Policy

Redeployment, retraining and redundancy (RRR) – Salaried Employees Only

The South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014 was approved on 4 December 2014.

As part of this agreement the Commissioner for Public Sector Employment has issued Commissioner’s Determination 7: Management of Excess Employees – Redeployment, Retraining and Redundancy.

To ensure the Determination applies to the employees and agencies covered by the Enterprise Agreement, the  Public Sector Variation Regulations 2015 have been made by the Governor of South Australia.

This legislation is available in multiple formats at www.legislation.sa.gov.au.

If you have any questions about the new arrangements, please speak to the Human Resources area in your agency in the first instance. For additional assistance, please contact us.

Frequently Asked Questions

The new RRR arrangements are referred to in:

The following frequently asked questions were compiled from feedback and issues identified to the Commissioner for Public Sector Employment (the Commissioner), during the consultative period for the Commissioner’s Determination No. 7 and employee information sessions, conducted in regional centres and in the CBD by members of the RRR Committee and the Commissioner between December 2014 to March 2015.

There will inevitably be specific issues applying to individual circumstances. It is not intended that this be an exhaustive list of all questions or issues that may possibly arise.

Chief executives, agency heads and delegates should seek specialist advice (for example human resource and/or legal advice) as necessary.

 

Q1. What is redeployment?

Redeployment is an informal term that is commonly used in a workplace setting to describe the process of transferring an employee who is excess to requirements into another role, duties or position.

 

Q2. What does an agency have to do before declaring an employee excess?

Where organisational change is contemplated and such change may result in roles, duties or positions being abolished and employees becoming excess to requirements, Commissioner’s Determination No. 7 requires the chief executive, agency head or delegate in an agency to have undertaken a written consultative process with relevant stakeholders. It also provides the criteria which will be used to declare an employee(s) excess to requirements if organisational changes do in fact result in a reduction in the number of roles, duties or positions.

During a consultative period, employees will have the opportunity to make submissions in respect of intended organisational change. One requirement for chief executives, agency heads or delegates is that they must consider suitable roles and jobs within their own agency that are available or likely to become available, within a reasonable time, to which an excess employee/s may be transferred.

Reference: Determination No. 7 Section 3.1 “Prior to implementation of organisational change that may result in excess employees”; and Section 3.2 “Declaring an employee excess to requirements”

 

Q3. Does the 12 month redeployment period for employees declared excess operate retrospectively from the date the Enterprise Agreement was approved by the Industrial Relations Commission?

No. Employees can only have the 12 month redeployment period and the new RRR arrangements apply to them by way of the agency providing the employee with written advice confirming that they are declared excess under the new arrangements.

Reference: Determination No. 7 Section 3.2.2 “Employees declared as excess to requirements prior to the commencement of this Determination”

 

Q4. Does taking leave (either unpaid or paid) during a redeployment period extend the 12 month period?

With the exception of parental and defence reserve leave, period(s) of leave will not extend a redeployment period. The current entitlements to apply for leave and for applications to be considered having regard to business needs are not amended by the RRR arrangements.

Reference: Determination No. 7 Section 4.1 “Deferment of the redeployment period”

 

Q5. The Determination does not provide details on the targeted voluntary separation payments (TVSPs). Who publishes that information?

The Department of Treasury and Finance is responsible for the administration of TVSPs. The guideline on the current TVSP scheme can be accessed here.

References:
Enterprise Agreement: “Appendix 1: Redeployment, Retraining and Redundancy” – Principle 14 Application of separation payments
Determination No. 7 Attachment A (copy of Appendix 1 of the Enterprise Agreement)
Current Government policy regarding TVSPs

 

Q6. Does an employee who has been declared excess have a right to refuse a transfer to a role, duties or position?

No. In the new policy setting, employees who have been declared excess do not have a right to refuse to be transferred to an appropriate alternative role, duties or position.

The objective is to secure an employee a suitable substantive/funded role, duties or position that is commensurate with the employee’s skills, abilities etc. and their current classification level.

Reference: Determination No. 7 Section 4.2 “Important considerations”; and Section 5 “Suitable duties including suitable substantive funded roles/duties/positions”

 

Q7. If an alternative role, duties or position has a lower salary rate or does not pay shift penalties, what happens in respect of the employee’s salary?

The Determination of the Commissioner for Public Sector Employment No. 2 Excess Employees – Income Maintenance details employee’s entitlements.

Commissioner’s Determination No. 7 provides that a suitable role, duties or position may be at a lower classification/remuneration level than an employee’s current substantive classification level, providing the classification does not provide a salary of less than 75% of the employee’s substantive salary.

The practical effect of the income maintenance provisions means the employee’s substantive salary is not actually reduced.

The Determination also prescribes that the transfer to a lower classification/
remuneration level should only be considered when all other options provided for in the Public Sector Act 2009 and the Determination have been exhausted.

References:
Determination No. 7 Section 5 “Suitable duties including suitable substantive funded roles/duties/positions”
Section 53(1)(a) and section 54(1)(a) and 54(2) of the Public Sector Act 2009

 

Q8. What arrangements are in place for employees who live and work in a regional area?

Details of the proposed organisational change and affected employees must be provided to the Commissioner. In summary, this will allow the Commissioner to undertake a process of informing the relevant Minister(s) and public sector leaders of the proposal and possible consequences of the intended organisational change.

Reference: Determination No. 7 Section 3.1.1 “Workplaces in rural and regional locality in South Australia”

 

Q9. What support is provided for an employee declared excess to requirements who has a disability?

The normal considerations apply to supporting employees with a disability in view of disability discrimination/anti-discrimination legislation. Advice should be sought with respect to specific circumstances as necessary.

 

Q10.What vacancy management processes should occur in public sector agencies that assist in the management of excess employees?

Agencies should undertake a process sometimes referred to as ‘priority consideration’, which means ensuring that suitable vacancies (including the proposed extension of the term contracts of temporary/term employees (or further terms)) are considered and, wherever appropriate, filled by the transfer of an employee declared as excess to requirements.

Vacancy management processes within agencies need to ensure that employees who are excess to requirements have been actively considered for any vacancies within the agency.

It is expected that proposed vacancies will be scrutinised within agencies prior to them being published on the Jobs SA website or external media.

References:
Enterprise Agreement: “Appendix 1: Redeployment, Retraining and Redundancy” – Principle 12 Responsibilities of SA Public Sector Agencies
Determination No. 7 Section 4.2 “Important Considerations

 

Q11. How does the Determination apply to all public sector agencies named in the Enterprise Agreement?

A variation to Regulation 9 of the Public Sector Regulations 2010 means that the Commissioner now has power to issue determinations in respect of the management of excess employees that are binding on employees and agencies party to the Enterprise Agreement (as well as in relation to employment under Part 7 of the Public Sector Act 2009). Commissioner’s Determination No. 7 will apply to and be binding on employment under Part 7 of the Public Sector Act 2009 and all agencies and employees who are party to the Enterprise Agreement (including employees employed under the Health Care Act 2008).

 

Q12. Does an employee declared excess have to apply for roles, duties or positions?

Employees are to be proactive and supplement their redeployment job seeking activities by independently applying for advertised roles, duties or positions.

 

Q13. Who decides if an employee declared excess is a suitable match for a role, duties or position?

The agency which has the vacant role, duties or position is responsible for undertaking the assessment. If an employee is considered not to be a suitable skill match, the chief executive, agency head or delegate in the agency that has the vacancy will advise both the employee and the person designated as the employee’s case manager in writing of the reasons.

References:
Enterprise Agreement: Appendix 1 “Redeployment, Retraining and Redundancy” – principle 12 Responsibilities of SA Public Sector agencies
Determination No. 7 Section 4.2 “Important considerations”; and Section 5 “Suitable duties including suitable substantive roles/duties/positions”

 

Q14. Can a chief executive, agency head or delegate oblige an employee declared excess to requirements to report (or relocate) to a different work location (which could be in the metropolitan area or a regional centre)?

An employee may be required – by way of a transfer to an alternative role, duties or position – to work in a different workplace. Commissioner’s Determination No. 7 refers to the roles, duties or positions considered suitable even if the transfer of an employee to them would result in a change in distance from home to the workplace(s), providing every effort is made so as not to require relocation of the employee’s household and due consideration is given to the employee’s personal circumstances.

References:
Determination No. 7 Section 5 “Suitable duties including suitable substantive funded roles/duties/positions”
Section 9 of the Public Sector Act 2009
Section 34(4) of the Health Care Act 2008

 

Q15. In the context of the management of excess employees, what are the obligations on chief executives, agency heads or delegates to notify or inform the Commissioner for Public Sector Employment?

The obligations on chief executives, agency heads or delegates are set out below.

Declaring an employee excess in rural or regional localities in South Australia.
When: Prior to the implementation of the relevant organisational change which will result in employees being declared excess
See: Determination No. 7 – Section 3.1.1 Workplaces in Rural and Regional Locality in South Australia of the Determination

Where a significant number of employees may be identified remaining excess for 12 months.
When: As relevant in the circumstances.
See: Determination No. 7 -Section 7 Reporting and Monitoring of the Determination

Deferment of the redeployment period on the basis of exceptional personal circumstances
When: Prior to the Chief Executive or agency head deciding upon an employee’s application
See: Determination No. 7 Section 4.1 Deferment of the Redeployment Period of the Determination

Prior to the expiration of a 12 month period for an individual employee
When:
At the 9 month mark of a redeployment period
See: Determination No. 7 – Section 7 Reporting and Monitoring of the Determination

The processes leading up to the proposed termination of employment of an employee (for employment under Part 7 of the Public Sector Act 2009).
When:
Chief Executives, agency heads or delegates must seek and consider the Commissioner’s advice on the adequacy of the process
See: Section 54(1)(a) of the Public Sector Act 2009 / Determination No. 7 -Section 4.2 Important Considerations of the Determination

 

Q16. What might happen to employees declared as excess to requirements after 12 months being declared as excess to requirements?

It is possible that the employment of an employee who has been declared as excess to requirements and after 12 months remains excess to requirements may be terminated.

There are a number of requirements that chief executives, agency heads or delegates must meet before the employment of an excess employee can be terminated.

Chief executives, agency heads or delegates will be required to demonstrate that the role, duties, position or job that the employee had been doing is no longer required and no longer exists. They will also need to provide evidence that reasonable endeavours have been made to identify an alternative role, duties or position which an excess employee can be transferred, whether within the agency or in another public sector agency and that they have, reasonably, failed to do so. This will require chief executives, agency heads and delegates to consider their engagement in an agency of contractors (for example consultants and labour hire employees).

An employee whose employment is terminated on the basis they are excess to requirements will be entitled to an appropriate payment. This payment is not a TVSP.

References:
Section 54(1)(a) of the Public Sector Act 2009
Determination No. 7 Section 4 “Redeployment period”; and Section 4.2 “Important considerations”
Fair Work Act 1994 (SA)

 

Q17. What if employees become excess to requirements for reasons other than organisational change? What other considerations apply to the management of such employees?

Employees must not be made excess to requirements to avoid the management of unsatisfactory performance or misconduct.

Where an employee becomes excess for reasons other than organisational change, they are to be assigned or allocated work; given priority for appropriate vacant roles, duties, positions within their own agency; provided with reasonable training and development opportunities; and may be transferred into a suitable substantive, funded role, duties or position; but their employment cannot be terminated on the grounds they are excess to requirements.

It is unnecessary to declare such excess employees as excess to requirements pursuant to Determination No. 7. However, it is expected that chief executives, agency heads or delegates will advise employees that they are excess to requirements and as to what they may expect in light of this status.

Reference: Determination No. 7 Section 8 “Employees who become excess other than as a consequence of organisational change”

RRR Committee

The new redeployment, retraining and redundancy arrangements in the South Australian Public Sector Wages Parity Enterprise Agreement: Salaried 2014 stipulate that the Commissioner for Public Sector Employment would establish a Committee to review, monitor and report on agency strategies.

The Terms of Reference for this Committee have been approved.

The Redeployment, Retraining and Redundancy, Salaried Employees - Review Findings - 1 February 2017

Information Session 3 December 2014

Information sessions have been held in the Adelaide CBD as well as a number of rural and regional areas. While no more sessions are currently scheduled, you can access the Commissioner for Public Sector’s presentations below.

To see the Commissioner for Public Sector Employment’s presentation in full, or view other videos from the Office for the Public Sector, please visit our Vimeo page.

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