Section G – performance and capability

98. Performance Framework

98.1: The ATO performance framework will assist employees achieve performance outcomes through continuing collaboration that:

1. assists employees develop capabilities that align with their career and ATO business objectives
2. operates in a fair and impartial manner, underpinned by principles of procedural fairness and natural justice
3. provides clear and constructive feedback so employees have a clear understanding of their role, and performance standards expected of them
4. shares responsibility for performance including through two-way feedback on performance and provision of resources and support and help to do so
5. ensures communication is open and genuine, so action that needs to be taken by employees around mutual expectations and performance gaps are communicated as soon as practicable after they arise.

Performance and development agreements

98.2: All employees will have a team plan and individual performance and development agreement that is developed, reviewed and updated through discussion with their manager.

Action cannot be taken under subclause 99.2 if an employee does not have a team plan and individual performance and development agreement.

98.3: The individual performance and development agreement will:

1. set out the work performance goals of the employee. These should be aligned to team and ATO strategic goals and reflect the role of the employee
2. identify employees’ career and learning and development needs, how they will be met and the outcomes measured, and
3. specify the mutual expectations between an employee and their manager, and the support required to achieve the agreed goals and behaviours.

98.4: The work performance goals for an employee may include any Key Performance Indicators (KPIs) for the employee’s role. KPI’s will only be included if they are relevant and appropriate to the employee’s role. If a KPI is included, it will be:

1. developed, reviewed and updated through discussion with the employee and their manager, and
2. consistent with their classification level.

98.5: Achievement of the work performance goals will be supported by open and genuine feedback conversations (both formal and informal) throughout the year. The conversations will:

1. occur on a regular basis and as agreed, but will be at least quarterly (with formal conversations occurring at least twice a year)
2. recognise employees’ contributions to individual, team and corporate outcomes and place equal emphasis on business outcomes and behaviours demonstrated in achieving those outcomes
3. include two-way feedback on the performance and development agreement and may include agreed sources in addition to the manager’s observations to ensure balance and objectivity, and
4. clarify next steps around mutual expectations and performance gaps as soon as practicable after they arise.

Recognition

98.6: The ATO will have a recognition scheme which is aimed at recognising the achievements of employees.

99. Closing performance gaps

99.1: Employees should be given help at the earliest practicable opportunity to address performance gaps. If a manager forms an opinion that an employee’s work performance is at risk of falling, or has fallen, below the general standard expected for that particular job, the manager will discuss this concern with the employee. The discussion may be verbal or in writing or could involve both. The discussion will cover any issues that may be affecting performance and action needed to address the situation. The discussion will be documented.

If action taken under this subclause does not lead to a satisfactory level of performance, a Performance Improvement Plan (PIP) will be implemented under subclause 99.2.

99.2: Employees should be given help to improve their work performance to a satisfactory level through fair procedures that protect the interests of the ATO, its employees and its clients.

Those procedures will take the form of a PIP that includes role clarification (including the manager’s expectation of the role), training, and/or some other support or development activity.

99.3: The employee may be assigned alternate duties if there is available work that the employee is capable of performing and that is in the interests of the employee and the ATO.

99.4: The PIP under subclause 99.2 will generally run for 8 weeks except:

1. where the delegate determines that a different period is appropriate, and/or
2. subject to subclause 99.5 and 99.6.

Where the delegate determines that a different period is appropriate, the employee will be provided with written reasons for the chosen period.

99.5: The employee may request leave, including but not limited to annual, purchased or long service leave during the PIP, but this will only extend the period if this is agreed by the delegate or the leave was approved prior to the decision to commence the processes under subclause 99.2. Leave for parenting purposes will extend the period of the PIP.

99.6: The PIP will be extended if the employee is absent due to Personal Leave in accordance with subclause 65.1, but only if:

1. each absence is for a period of one day or more, and
2. is supported by satisfactory documentation if requested under subclause 65.15.

99.7: If the PIP is extended under subclauses 99.5 and/or 99.6:

1. the period of the PIP will be paused during the period/s of leave taken, and
2. the balance of the period of the PIP will immediately recommence upon the employee’s return to duty.

99.8: If the employee has not achieved a satisfactory performance level within the period of the PIP set under subclause 99.4 then the manager should recommend action be taken under clause 100. The employee will be counselled as to the likely consequences if the employee does not reach the standard expected.

99.9: Where in the past six months an employee has had action taken under clause 99.2 and the manager forms the opinion that the employee’s performance is again at risk of falling below the general standard expected for that particular job, the manager will discuss their concerns with the employee before taking action under this clause or clause 100.

100. Managing underperformance

100.1: This clause only applies to ongoing employees who are no longer on probation.

100.2: These underperformance procedures are not to be used where:

1. it is suspected that an employee has breached the APS Code of Conduct
2. it is reasonably suspected, and a registered health practitioner confirms the employee’s physical or mental capacity may be a cause of their unsatisfactory performance
3. there is a genuine case of the services of an employee no longer being able to be effectively used because of technological or work practice changes in the ATO, or
4. the requirements of clause 99 have not been completed.

100.3: Before the delegate decides whether or not to conduct a formal assessment of the employee’s performance:

1. the employee must be provided with the manager’s recommendation and have a reasonable opportunity to put their case to the delegate including any factors which may have materially prejudiced the employee from achieving the expected standard, and
2. the delegate must be satisfied the procedure to date has been fair and free from bias.

100.4: If the delegate decides a formal assessment is appropriate, a written warning must be issued to the employee which:

1. details the problems with the employee’s performance and confirms the standard required to be achieved to be satisfactory
2. specifies how long the employee has got to reach the standard. This period will generally be eight weeks, except where the delegate determines that a different period is appropriate. The written warning will include the reasons for the chosen period, and
3. sets out the likely consequences if the employee does not reach the required standard and advises the employee may request their employment be terminated before the completion of the assessment period.

100.5: The employee’s performance will be assessed on a regular basis throughout the assessment period. Where, in the opinion of the delegate there would be benefit from the employee’s performance being assessed by an independent assessor, the delegate will appoint an assessor from outside the immediate work area. The employee will be given an opportunity to comment on each progress report.

100.6: The employee may request leave, including but not limited to annual, purchased or long service leave during the assessment period, but this will only extend the assessment period if this is agreed by the delegate or the leave was approved prior to the decision to commence the assessment period. Leave for parenting purposes will extend the assessment period.

100.7: The assessment period will be extended if the employee is absent due to Personal Leave in accordance with subclause 65.1, but only if this is supported by satisfactory documentation if requested under subclause 65.15 for:

1. a single period of five days or more, and/or
2. broken periods totalling to 20per cent or more of their period of review.

The length of the extensions will be the total number of working days of a) and b) above.

100.8: At the end of the formal assessment period, if performance has improved to the standard expected, no further action will be taken.

100.9: If performance is still unsatisfactory at the end of the assessment period, the employee will be given seven days to show cause why action should not be taken against them.

100.10: The delegate may decide to:

1. move the employee to a more suitable work unit, or
2. a reduction in salary and/or classification (effective one month after notification if no request for a review is lodged under subclause 100.11), or
3. termination of employment on the grounds of unsatisfactory performance of duties.

100.11: An employee who is reduced in salary or classification without consent may request a review of the decision. In accordance with subclause 93.2, the ATO will stay the decision made under subclause 100.10(b) pending the outcome of the primary review.

101. Capability development

101.1:

1. the ATO is committed to ensuring all employees have access to and are provided with a range of appropriate and tailored opportunities for their specific learning and development so they have the capabilities they need for their current job and for their future ATO career. This includes the ATO ensuring that the needs of diverse employees , part time employees and employees with disabilities are taken into account, in the provision of learning and development activities
2. employees and their manager will work together to identify their capability development needs and how to address them
3. employees and the ATO acknowledge a mutual responsibility for learning and development
4. the ATO will ensure that employees have the time and opportunity to meet their agreed needs as identified in their learning and development plan
5. the ATO will where practicable, provide access to learning and development activities prior to new work being undertaken.

101.2: Employees will undertake identified learning and development activities, keep the capabilities for their current job up to date, and support and contribute to the learning and development of other employees.

101.3: The ATO will make available to employees information about the required capabilities for individual jobs.

101.4: Neither formal nor informal capability assessments will be used for an underperformance process for the purposes of clauses 99 and 100, or disciplinary, redundancy or pay review processes.

101.5: Where an employee has been unable to successfully complete a formal assessment process (e.g. obtaining accreditation, or completion of a development program) or is not making reasonable progress towards meeting identified learning or development needs as part of the particular program, the employee (and where requested their representative) and their manager will discuss the most appropriate course of action.

101.6: An employee may be seconded to another organisation for a fixed term to enable the employee to obtain relevant capabilities. Any secondment arrangement will be on terms and conditions agreed between the employee, the delegate and the organisation where the employee is to be placed.

102. First Nations cultural competency training

102.1: The ATO will take reasonable steps to ensure all substantive, ongoing EL2 employees employed at the commencement of this Agreement or any new substantive, ongoing EL2 employees who commence within the first 6 months of this Agreement will complete relevant First Nations cultural competency training within 12 months of the commencement of the Agreement.

102.2: Any new substantive, ongoing EL2 employee who commences after 6 months of the commencement of this Agreement will be required to complete a relevant First Nations cultural competency training course within 6 months of their engagement or promotion.

103. Continuing professional development

103.1: The ATO is committed to maintaining the professional standards of employees. The ATO may approve or require employees to attend structured continuing professional development activities that address, enhance or maintain the learning and development needs of the employee and benefits the ATO’s business needs.

103.2: In instances when the ATO requires employees to attend professional development activities, costs will be borne by the ATO. If approval is sought by an employee to attend professional development activities, all or part of the costs of attending may be borne by the ATO.

Formal qualifications

103.3: Due regard will be given to the capabilities of existing ATO employees to ensure that those who possess relevant capabilities will not be precluded from applying for higher duties or promotions or assignment to other duties at level.

103.4: This will be recognised by:

1. where practicable, introducing capability and educational requirements for positions as they become vacant or a new position is introduced
2. ensuring that an appropriate transition provision, covering existing employees, is included in any determination introducing mandatory qualifications, and/or
3. when appropriate, recognising relevant capabilities as the equivalent to possession of formal qualifications.

103.5: If the ATO is considering the introduction of any new formal qualifications, employees and their representatives will be consulted.

104. Reimbursement of professional membership fees

104.1: If the Commissioner determines:

1. that membership of a professional body is a requirement for the performance of an employee’s duties the ATO will reimburse the costs associated with the membership of that professional body.
2. that membership of a professional body
1. provides a benefit to the ATO, or
2. is appropriate in the circumstances

the ATO may reimburse the costs associated with the membership of that professional body.

105. Reimbursement of annual licence or professional practising certificate fees

105.1: ATO employees will be reimbursed for the payment of annual licence or professional practising certificate fees if:

1. the licence or practising certificate is a requirement for that employee to undertake their work, or
2. the Commissioner has determined that it is appropriate in the circumstances.

106. Study Leave and assistance

106.1: The ATO is committed to supporting employees to develop for their future in the ATO. Decisions to provide assistance will have regard to:

1. the capability needs of the ATO and the personal development of the employee
2. the ATO’s financial resources, operational needs, and corporate goals
3. the work performance and personal commitment of the employee
4. the need for particular consideration to be given to the study activities of First Nations employees, and
5. any other benefit to the ATO or the employee.

Leave for full time studies

106.2: Leave for full time studies may be granted with full pay, without pay or with a proportion of pay having regard to the factors in subclause 106.1.

106.3: Leave without pay will count as service for all purposes other than the accrual of Annual Leave and Long Service Leave.

106.4: Leave to undertake full time study or development may be subject to the employee returning to duty in the ATO for a period equal to the period of leave granted.

Leave for part-time studies

106.5: The ATO will provide support for approved employees to undertake eligible part time studies (an ‘approved student’). Decisions to grant approved student status will have regard to the factors in subclause 106.1 and the personal commitment of the employee represented by a plan that outlines the personal resources and time that will ensure success in the studies.

106.6: The following part-time study provisions apply to an employee who is an approved student:

Exam/assessment leave

1. An approved student will be granted study leave with pay to travel to and from, and/or to undertake compulsory exams/assessments.

Weekly study leave

2. An approved student will be granted one type of weekly study leave with pay during the teaching period. This is either:
   1. if all study activities are organised outside the employee's regular hours, such as external, online, or relating to the preparation of a thesis: leave up to three hours per week and leave with pay to attend compulsory study activities, or
   2. if undertaking scheduled study activities during regular hours: leave up to eight hours per week for reasonable travel and attendance, or up to 13 hours per week for First Nations employees.

Where the amount of weekly study leave approved is more than the weekly study leave used, the balance may be taken for other study activities with the approval of the delegate.

Leave for other study activities

3. An approved student will also receive study leave for:
   1. attendance at compulsory study activities
   2. SWOTVAC, of up to 18 hours per subject with a maximum of 36 hours per semester, and/or
   3. additional leave if warranted by the circumstances.

The delegate will determine the actual amount of leave to be approved having regard to the study required for the relevant academic period.

107. Financial assistance for study

107.1: The ATO will develop and deliver financial assistance programs including but not limited to the Tuition Assistance Program, for employees to position and sustain our workforce to meet future needs.

107.2: If an employee’s application to participate in a financial assistance program developed under subclause 107.1 is successful they will be provided with:

1. a commitment on the level of funding that will be provided to them for the duration of the approved study
2. the funding end date, and
3. any ongoing conditions and responsibilities.

108. Professional allowance

108.1: The ATO will pay an allowance to EL2 employees to assist with the purchase of goods or services that help maintain or increase their level of professionalism. This could include membership of a professional association.

108.2: The allowance, as set out in Attachment A, Schedule 4 will be paid to employees who are substantive EL2 employees on the first pay day after 1 July each year following the commencement of this Agreement, and will be paid by the first pay day in September of the same financial year.

108.3: The ATO will pay the professional allowance to those employees who have acted continuously at the EL2 level for a full period of 12 months or more, up to and including the first pay day after 1 July each year following the commencement of this Agreement.