77. Job security

Commitment to ongoing employment and rebuilding APS capacity

77.1: The APS is a career-based public service. In its engagement decisions, the ATO recognises that the usual basis for engagement is an ongoing APS employee.

Reporting

77.2: The ATO will report to the NCF on an annual basis, or more frequently if agreed, on the number, duration, classification and location of ongoing, non-ongoing and casual employees engaged by the ATO.

Pathways to permanency

77.3: The ATO and the APS will comply with the casual conversion provision of the FW Act. In addition, the ATO recognises that a proactive approach, including regularly reviewing casual and non-ongoing arrangements, is both a fair and efficient approach to supporting ongoing employment as the usual form of employment.

78. Assignment of duties

78.1: Any employee can be assigned to carry out such duties as are within the limits of the employee’s skill, competence and training and are consistent with the employee’s classification, provided that such duties are not designed to promote deskilling. Employees do not have to carry out duties that are a threat to a safe and healthy work environment.

78.2: The ATO may require an employee to perform duties which are typical of the duties completed at a lower classification. This will only be:

1. in limited circumstances, including for the completion of urgent and temporary priority work, and
2. for a total of up to eight weeks in any one financial year and may only be extended due to special circumstances, following consultation with the affected employees and their representatives.

78.3: Wherever practicable, the ATO will initially seek volunteers for the lower level duties, prior to directing other employees to undertake the work. In directing other employees to undertake lower level duties, the ATO will have established that it is not practicable to fill the positions through:

1. use of HAD, or
2. reassignment of duties at level, or
3. the use of non-ongoing employees.

78.4: Where subclause 78.2 applies, the ATO will continue to pay affected employee/s according to their existing classification and pay excess travel time and fares where appropriate.

79. Work Level Standards

79.1: The APS Work Level Standards continue to operate and describe the work at each of the classification levels in this Agreement, consistent with the Public Service Classification Rules 2000, made in accordance with section 23 of the PS Act.

80. Advancement Programs

80.1: The ATO will use Advancement Programs (AP) that utilise an ATO advancement broadband.

80.2: The ATO advancement broadband will be used for those employees selected to undertake an advancement program and whose progression to the exit level classification is subject to the successful completion of an AP.

80.3: Existing employees who do not successfully complete the requirements of the AP will be assigned duties at the entry level classification of the AP.

80.4: Without limiting subclause 80.1, in the nominal life of this Agreement the ATO will trial the implementation of an advancement program for some specific cohorts of employees within the Service Delivery Group.

Further information on matters including, but not limited to, the advancement program’s eligibility, selection, duration, entry and exit classification levels will be detailed in relevant policies and guidelines.

Training classifications

80.5: An employee who undertakes the Graduate Program as a Graduate APS (i.e. where an advancement broadband has not been used) will be placed at the entry level of the relevant AP on completion of the Program. On meeting the requirements of the AP they will be advanced to the next level of the AP.

81. Permanent relocation of employees between offices

Intra-city transfers

81.1: This clause applies where the ATO proposes to permanently move employees between buildings in the same city.

81.2: Any such move will be voluntary to the fullest extent practicable, having regard to hardship factors of employees and the ATO’s business needs.

81.3: Hardship factors considered may include, but are not limited to:

1. Personal circumstances such as caring responsibilities
2. Medical issues
3. Issues arising from a spouse's employment
4. Reasonable travel time
5. Additional costs or financial commitments
6. Education/training commitments
7. Problems in a prior location, and/or
8. Childcare arrangements.

81.4: If the delegate finds that the relocation would cause hardship for an employee, the ATO, as far as reasonably practicable, will seek alternatives to relocation.

81.5: An employee will be given as much notice of the need to move as is reasonable in the circumstances. In the case of a move between suburbs or between the central business district (CBD) and a suburb, the notice period will be at least one month unless the employee and the delegate agree to a shorter or longer period.

81.6: Where the factors that give rise to hardship are of a temporary nature the delegate will consider a longer period of notice of the need to move.

81.7: Managers may allow employees up to three days paid miscellaneous leave when this is necessary to arrange personal matters associated with the move.

If significant relocation costs are likely to be incurred, the employee will be entitled to a one-off payment upon taking up duty in the new building in accordance with Attachment A, Schedule 4. For the purpose of this clause the employee’s level is their actual classification level at the date of the move.

Inter-city transfers

81.8: There will be no compulsory moves between cities. In this context, ‘cities’ means the greater metropolitan area.

82. Excess employees

82.1: Clauses 82 to 91 only apply to ongoing employees who are no longer on probation.

When is an employee excess?

82.2: An employee becomes excess for any of the following reasons:

1. the duties of the employee are transferred to a different capital city or to an office which requires a move of a similar scale, involving a necessary change of residence, and
1. the employee is unwilling to perform duties at the new office
2. the ATO is unable to provide ongoing work at the first office, and
3. the delegate agrees redundancy is an economically viable alternative to relocation
2. where the delegate determines the employee is a member of a given class that has more members than is necessary for the efficient and economical working of the ATO in a particular location, or
3. the employee’s services can no longer be effectively used in their current job because of changes in technology or work methods or changes in the nature, extent or organisation of the ATO. An employee who leaves the ATO under this subclause will be able to do so with dignity and respect for the contribution they have made in the past.

82.3: Subclause 82.2 c) will only be used where an employee’s job is still required and the employee will be replaced. If the job is no longer required, the employee may become excess under subclause 82.2 a) or b).

83. Preventing excess employee situations

83.1: The ATO will, as far as practicable, prevent excess employee situations. This means that amongst other things, the ATO will use an employee retraining/redeployment approach so that employees prepared to acquire new capabilities within an appropriate time can reasonably expect to continue to be employed by the ATO.

83.2: The ATO will consult with employees and their representatives when the provisions of this clause need to be exercised. This will include, but not be limited to:

1. consultation with employees and their representatives about workforce adjustment issues
2. consultation in relation to possible national corporate measures which could be taken to prevent excess employee situations, and
3. briefings of employees and their representatives to explain the overall funding and likely staffing situation of the ATO.

83.3: Measures to be used may include one or more of the following:

1. moving work and/or reassignment of duties
2. redeployment (including in the APS), and/or
3. retraining and developing new capabilities within an appropriate time to enhance redeployment and/or reassignment opportunities.

83.4: Employees identified by the delegate as being in a situation where they are likely to be excess will be assessed for suitability (including suitability within three months) for any identified ongoing job opportunity in the work areas where they could be redeployed in their region prior to the ATO filling the opportunity in another way. The assessment for suitability under this clause is not limited to the employee’s current work area.

83.5: Where there are insufficient volunteers for ongoing job opportunities, the delegate may redeploy an affected employee to any suitable ongoing job.

83.6: Where there are more affected employees than required, a merit based assessment process may be conducted to determine which employees are assigned to the required duties.

83.7: The ATO is not obliged to redeploy employees between regions and such redeployments do not have priority over other vacancy filling methods in other regions. If the ATO and the employee agree on redeployment to another region, the move may be considered to be in the interests of the ATO.

83.8: Redeployment measures will continue to apply until an offer of voluntary redundancy is made. The measures will also apply through the retention period when the employee declines an offer of voluntary redundancy. Where redeployment involves an intra-city move, to the extent practicable, employee preferences and any hardship factors will be taken into account and the provisions of clause 81 will apply.

84. Consultation with employees and their representatives

84.1: If, despite actions taken in accordance with clause 83, an excess employee situation cannot be prevented, the delegate will inform the affected employee(s), in writing of the period over which, it is likely to occur.

The delegate will consult with the employee(s), and their representative(s) (if any) over a period of one month on a range of matters including:

1. the measures that could be taken to reduce or remove the likelihood of the employee(s) becoming excess
2. redeployment prospects for the employee(s) concerned
3. the appropriateness of using voluntary redundancy, and
4. the method of identifying an employee as excess.

84.2: Where the employee and the delegate agree, the consultation period can be extended or reduced.

84.3: Apart from employees who express interest in voluntary redundancy, no employee will be notified that they are excess within the consultation period.

85. Determination of excess employee

85.1: Notwithstanding any provision of this Agreement, the delegate may invite an employee, or a group of employees, to informally express an interest in voluntary redundancy at any time. Employees who lodge an informal expression of interest in voluntary redundancy will be provided with, or given access to information in relation to their likely entitlements. This could take the form of access to ‘self help’ methods of estimating final leave/severance payments and superannuation benefits.

85.2: If redeployment or other measures are not feasible or only partially remove the likely excess situation, the delegate will identify, by written determination, the employee(s) who are considered to be excess.

85.3: If the ATO determines that it is effective and economical to do so, the ATO will facilitate the use of swaps to maximise the extent to which redundancies are voluntary.

85.4: Employees who are identified as being excess will be provided with the following information:

1. the retention provisions which apply if the employee declines an offer of voluntary redundancy
2. estimates of severance benefits, pay in lieu of notice and pay in lieu of any unused annual, purchased or long service leave credits
3. the estimated amount of taxation the ATO will deduct from any payments, and
4. for employees who are members of the CSS or PSS (defined benefit) schemes details of accumulated superannuation contributions and the options available to them.

Employees who are not members of the CSS or PSS (defined benefit) funds are responsible for obtaining details about their options from their superannuation fund. The ATO will, where possible, assist the employee to get this information.

85.5: Once the employee has been provided with the information as set out in subclause 85.4 (and an employee who is not a member of a defined benefit fund has been provided with reasonable time to get the information), they will be made a formal offer of voluntary redundancy. An employee will have up to two weeks to accept or decline such an offer.

85.6: An employee who accepts the formal offer of voluntary redundancy will be given notice of termination and will be paid a voluntary redundancy severance benefit. With agreement from the employee follow on action may commence inside the 2 week period.

85.7: If the employee does not respond to the ATO within the 2 week period provided in subclause 85.5, they will be taken to have declined the offer.

85.8: The ATO will not make a further offer of a voluntary redundancy to the employee at later steps in the process.

85.9: Employees who decline the offer of voluntary redundancy will begin a formal retention period, to commence from the day after the offer was declined.

86. Retention period

86.1: An excess employee who declines the offer of voluntary redundancy will be entitled to the following period of retention:

1. 13 months when the employee has 20 years or more service or is 45 years of age or over, or
2. seven months for all other employees

reduced by the relevant NES redundancy pay period that would apply to the employee at the end of the 7 or 13 months retention period.

86.2: Employees who cannot be placed in a suitable job within the first 3 months of declining an offer of voluntary redundancy:

1. will be advised that, because there is sufficient work available, it is intended at this stage that the employee’s services will be retained for the remainder of their retention period. It is expected that this will normally be the case but it may be necessary for affected employees to move to a different type of work, for which they are suitable, or
2. if the delegate is satisfied at any time in the remaining retention period that there is insufficient productive work available for the employee during the remainder of the retention period and that there is no reasonable redeployment prospects in the APS, the delegate may
1. give written notice of the involuntary termination of the employee’s employment in accordance with section 29 of the PS Act, or
2. by agreement with the employee, give written notice of involuntary termination of their employment, or
3. will be given 4 weeks' written notice of the intention to reduce their classification so that they can be redeployed to suitable employment, in which case income maintenance will apply instead of an involuntary redundancy benefit; or
4. may at any time, be given written notice of the involuntary termination of the employee’s employment under section 29 of the PS Act.

86.3: Where the delegate and employee agree, the 3-month period referred to in subclause 86.2 may be reduced.

86.4: Excess employees will be assessed for suitability for any identified ongoing job opportunity in their region, in the ATO, prior to it being filled in another way.

Alternate Retention Period

86.5: Where an employee chooses to enter into the retention period provisions under this sub clause, the employee's retention period determined in subclause 86.1 above will be:

1. 13 months where the employee has 20 years or more service or is 45 years of age or over, or
2. 7 months for all other employees.

86.6: Where an employee elects to enter into the Alternate Retention Period provisions in subclause 86.5 their total pay throughout the retention period will be reduced by an amount equivalent to the employee’s redundancy pay entitlement under the NES, with such redundancy pay entitlement calculated as at the expiration of the retention period.

86.7: For the purposes of subclause 86.6, the reduction of the employee's ordinary pay will be amortised over the duration of the retention period.

86.8: If during the Alternate Retention Period the employee ceases to be excess (other than by termination of employment for the reason of being excess) amortisation will cease and the amount deducted as part of the amortisation provisions will be paid to the employee.

87. Support for excess employees

87.1: An employee who is identified as being excess, or offered a voluntary redundancy, will be reimbursed for the costs of the following support if they choose to use it:

1. transition and/or financial planning by a qualified advisor, and/or
2. assistance with preparation of job applications.

The maximum total amount of reimbursement under a) and b) is set out in Attachment A, Schedule 4.

87.2: During any notice or retention periods referred to in clauses 86 and 87:

1. the ATO will provide assistance to the employees to try to find opportunities to redeploy the employee to another agency, and
2. excess employees will be given reasonable time to attend employment interviews, including reasonable travel and incidental expenses when these are not met by the prospective employer.

87.3: If an excess employee has to move their household to a new locality as a result of a movement at level or reduction in classification, they will be entitled to reasonable travel costs and relocation costs as if being promoted.

Payment if reduced in classification

87.4: If an employee is reduced in classification, the employee will maintain the base salary they had immediately prior to the reduction for the relevant period as determined by clause 91, less the period of employment since the offer of voluntary redundancy was rejected.

Notice period

87.5: The following notice periods will apply when employment is terminated:

1. if 45 years of age or over, with at least 5 years continuous service: 5 weeks' notice, or
2. other employees: 4 weeks' notice.

88. Voluntary redundancy benefit

88.1: An employee who accepts the offer of a voluntary redundancy and whose employment is terminated on the grounds that they are 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.

88.2: Attachment C lists certain conditions relating to service for redundancy benefit purposes.

88.3: The minimum sum payable will be an amount equal to four weeks' salary and the maximum payable will be equal to 48 weeks' salary.

88.4: The redundancy benefit will be calculated on a pro rata basis for part-time hours during the period of service if the employee has less than 24 years full time service.

88.5: This benefit will be in addition to any payment in lieu of the notice period and accrued Annual, Long Service and Purchased Leave credits.

89. Involuntary redundancy benefits

89.1: If employment is terminated involuntarily, employees will be paid a sum calculated as follows:

1. for employees with 20 or more years of service or 45 years of age or over: a lump sum equal to 13 months’ salary reduced by the amount of salary paid since the date the offer of voluntary redundancy was rejected, or
2. for others: a lump sum equal to seven months’ salary reduced by the amount of salary paid since the date the offer of voluntary redundancy was rejected.

89.2: Such employees will receive payment of an amount equivalent to payment in lieu of accrued Annual Leave calculated as if the date of termination of their employment is 13 months or seven months (as the case may be) later than the date the offer of voluntary redundancy was rejected.

89.3: If the total amount payable is less than the total amount (including pay in lieu of leave) that would have been payable had the employee accepted the offer of voluntary redundancy (reduced by any salary received since the date the offer was rejected), the employee will be paid an additional amount to bring the total benefit to that amount.

90. Salary for calculating benefits

90.1: For calculating redundancy benefits, an employee's salary will include:

1. HDA, if received on the date notice is given and has been payable for a continuous period of at least 12 months at that date - where the higher duties or higher work value of an employee who has received HDA for a continuous period of 12 months is ceased due to the workforce adjustment process necessitating the redundancy, and the employee would otherwise have continued to receive higher duties until the date notice was given, the higher duties will be taken to have continued to the date notice was given for the purpose of this clause
2. an average of shift penalties over the 12 months prior to notice being given, provided shift work has been rostered in at least 26 weeks, and
3. any other regular allowance in the nature of salary received on the date notice is given.

91. Income maintenance period

91.1: Where clauses 84 to 90 refer to an employee’s base salary being maintained as a result of a reduction in classification, the relevant period shall be determined as follows:

1. for an employee with 20 or more years of service: 13 months
2. for an employee who is 45 years of age or over: 13 months, or
3. for any other employee: 7 months.

92. Resignation

92.1: An employee may resign from their employment by giving the Commissioner at least 14 calendar days’ notice.

92.2: At the instigation of the 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.

92.3: The Commissioner has the discretion to agree to a shorter period of notice or waive the requirement to give notice.

92.4: When an employee dies, or the Commissioner has directed that an employee is presumed to have died on a particular date, the 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.

93. Termination of employment and reduction in classification

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

Reduction in classification

93.2: An employee who is reduced in salary or classification without consent may request a review of the decision.

The ATO will stay the decision pending the outcome of the primary review:

1. where the request is lodged by the employee within ten working days of being given notice of the reduction, and
2. a statement in support of the request for review is lodged within a further 14 working days.

The ATO will further stay the decision until the outcome of a secondary review by the Merit Protection Commissioner, if sought by the employee within ten working days of being notified of the outcome of the primary review.

Date of effect of termination

93.3: Subject to the special cases set out below, if an employee is terminated, the termination will take effect on the later of:

1. one month after the day on which the notice is given to the employee, or
2. after expiration of a period of notice required by the FW Act, or
3. on the date of effect of the notice of termination.

93.4: Except where an employee is guilty of serious misconduct warranting termination without notice, termination of employment due to a breach of the code of conduct shall take effect on the later of:

1. 14 days after the employee has been furnished with reasons for the termination, or
2. after any greater period of notice required by the FW Act.

The ATO is committed to ensuring that the ATO procedures for determining breaches of the APS Code of Conduct are properly applied. As provided by subclause 4.3 neither the APS Code of Conduct or the ATO procedures form part of this Agreement.

93.5: If an excess employee’s employment is terminated, the notice of termination shall take effect on the later of:

1. after expiration of the period of notice under this Agreement, or
2. after expiration of the period of notice required by the FW Act.

93.6: Termination on grounds relating to an employee’s performance shall take effect on the later of:

1. 14 days after the day on which the notice is given to the employee, or
2. after the period of notice required by the FW Act.

93.7: Unless an employee agrees otherwise, termination of employment due to inability to perform duties because of physical or mental incapacity takes effect, unless there are special circumstances, on the later of:

1. one month after the day on which the notice is given to the employee, or
2. on the day paid personal leave credits are exhausted, or
3. after expiration of a period of notice required by the FW Act.

93.8: In all cases, termination may take effect after payment of compensation in lieu of the notice required. Payment in lieu of notice may be at the instigation of the delegate or the employee.

Workplace environment

94. Accommodation

94.1: The ATO is committed to providing high quality office accommodation that meets the professional needs of employees and the nature of the employees’ work.

94.2: The ATO will continue to make more effective use of space, greater use of flexible work arrangements and rationalise accommodation holdings. The ATO’s default accommodation approach will be unallocated workspaces that are consistent with subclause 94.1.

94.3: Where a decision has been made to have new accommodation or modify existing accommodation, affected employees and where they choose, their representatives will be consulted.

95. Disruptions due to building activity

95.1: If building activities are likely to cause disruption in an office, the delegate (in consultation with the affected employees and their representatives) will determine appropriate measures that can be used to prevent employees from being subjected to any disruption.

95.2: In situations where disruptions are unavoidable at a particular location, the delegate will consult with the affected employees and their representatives to determine an appropriate disruption allowance.

95.3: If employees are required to temporarily relocate office due to disruptions to the office, the provisions of clause 41 will apply in regard to excess travel time and expenses.

96. Use of ICT equipment

96.1: This clause does not apply to the provision of information and communication technology (ICT) equipment for working at home arrangements. Details of ICT equipment provided for working from home arrangements are contained in subclause 51.20.

96.2: Appropriate fit for purpose ICT equipment will be supplied for work purposes to enable employees to undertake their job.

96.3: Employees may utilise the equipment for incidental personal use in accordance with relevant policies and guidelines.

96.4: Further information about the use and supply of appropriate ICT equipment is available in relevant policies and guidelines, including but not limited to policies relating to information security and social media.

97. Automated employee monitoring

97.1: Automatic work measurement data may be captured and used by an automated monitoring system.

97.2: Prior to the use of a new automatic monitoring system the ATO will consult with relevant employees and their representatives.

97.3: Employees will be advised about:

1. the use of any automatic monitoring system
2. whether the use of the automatic monitoring system will extend to automatic monitoring of individual performance, and
3. the use of data collected by the automated monitoring system.

97.4: Employees will have access to data collected by an automated monitoring system about them if requested.

97.5: The data collected by an automated monitoring system will not be the sole or primary source of performance assessment.

97.6: Employees may access team level work performance data collected by an automated monitoring system.

97.7: Access to individual data will be limited to those with a ‘need to know’ in connection with performance appraisal and the efficient operation of a work area.

97.8: Access to and use of data under this clause must be consistent with all legislative requirements including those under privacy laws. Performance information that is freely accessible will not identify specific employees.

97.9: Systems will not be used to measure the number of keystrokes made by an individual in any given period.