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  1. 1. 4. GETTING WORK DONE AT THE ABC: EMPLOYEES OR CONTRACTORS?.......................... 3 4.1 Introduction ....................................................................................................................................... 3 4.2 Why your decision is important...................................................................................................... 3 4.3 What’s the difference? .................................................................................................................... 4 4.3.1 The ‘multi-factor’ test................................................................................................................ 5 4.4 Sole traders and registered companies ....................................................................................... 5 4.4.1 Tax .............................................................................................................................................. 5 4.4.2 Superannuation ........................................................................................................................ 6 4.5 Employing artists ............................................................................................................................. 6 4.6 Issuing presenter contracts ............................................................................................................ 79. MANAGING UNDERPERFORMANCE AND UNSATISFACTORY PERFORMANCE ............... 8 9.1 Introduction ....................................................................................................................................... 8 9.2 Distinguishing underperformance from misconduct ................................................................... 8 9.3 Performance issues: underperformance and unsatisfactory performance ............................. 8 9.4 Managing underperformance – a less formal process............................................................... 9 9.4.1 Provide constructive feedback ............................................................................................... 9 9.4.2 Provide formal advice .............................................................................................................. 9 9.5 Inadequate improvement in performance .................................................................................. 10 9.6 Managing unsatisfactory performance – a more formal process ........................................... 10 9.6.1 Inform the employee there’s a problem with their performance ...................................... 11 9.6.2 Meet with the employee ........................................................................................................ 11 9.6.3 If performance IMPROVES to a satisfactory standard ..................................................... 12 9.6.4 If performance does NOT IMPROVE to a satisfactory standard .................................... 12 9.6.5 Outcomes ................................................................................................................................ 1210. MISCONDUCT ................................................................................................................................... 13 10.1 Definition ....................................................................................................................................... 13 10.2 Process and possible outcomes ............................................................................................... 13 10.3 Employee suspension................................................................................................................. 15 10.4 Possible outcomes of substantiated misconduct.................................................................... 1510. MISCONDUCT ................................................................................................................................... 16 10.1 Definition ....................................................................................................................................... 16 10.2 Process and possible outcomes ............................................................................................... 17
  2. 2. 10.3 Employee suspension................................................................................................................. 18 10.4 Possible outcomes of substantiated misconduct.................................................................... 1811. TERMINATION AND REDUNDANCY ............................................................................................ 19 11.1 Reasons for termination of employment .................................................................................. 19 11.2 Notice requirements for termination ......................................................................................... 19 11.2.1 Termination without notice .................................................................................................. 20 11.2.2 Termination with notice ....................................................................................................... 20 11.3 Reasons for redundancy ............................................................................................................ 20 11.4 The redundancy process ............................................................................................................ 21 11.4.1 Development of business case .......................................................................................... 21 11.4.2 Consultation .......................................................................................................................... 21 11.4.3 Notification of redundancy .................................................................................................. 22 11.4.4 ................................................................................................................................................. 22 11.4.5 Decision to redeploy ............................................................................................................ 23 11.4.6 Substitution ........................................................................................................................... 23 11.4.7 Payments............................................................................................................................... 2311. TERMINATION AND REDUNDANCY ............................................................................................ 24 11.1 Reasons for termination of employment .................................................................................. 25 11.2 Notice requirements for termination ......................................................................................... 25 11.2.1 Termination without notice .................................................................................................. 25 11.2.2 Termination with notice ....................................................................................................... 25 11.3 Reasons for redundancy ............................................................................................................ 26 11.4 The redundancy process ............................................................................................................ 26 11.4.1 Development of business case .......................................................................................... 26 11.4.2 Consultation .......................................................................................................................... 27 11.4.3 Notification of redundancy .................................................................................................. 27 11.4.4 ................................................................................................................................................. 27 11.4.5 Decision to redeploy ............................................................................................................ 28 11.4.6 Substitution ........................................................................................................................... 28 11.4.7 Payments............................................................................................................................... 29 11.4.8 Re-engagement .................................................................................................................... 30
  3. 3. 4. GETTING WORK DONE AT THE ABC: EMPLOYEES ORCONTRACTORS?4.1 Introduction 5Everyone who performs work for the ABC is either an employee or a contractor. Within these two optionsthere are a number of ways the ABC can engage people to work. These are outlined in Figure 4A.Figure 4A: Types of working arrangementsChapter 5 ‘Forms of Employment’ explains the employment relationship in detail and how ongoing, fixedterm, specified task and casual employees may be appropriately employed. This chapter describes thestep before that: deciding whether to engage an employee or a contractor to complete a given job.4.2 Why your decision is importantWhy does it matter if someone is classified as an employee or a contractor? Essentially, the relationshipbetween an employer and an employee is fundamentally different to the relationship between a principaland a contractor and these two relationships give rise to different rights and obligations. The ABC hasgreater obligations with respect to its employees than its contractors. If we classify a person incorrectly – forexample, treating someone as a contractor when they’re really an employee – that person may claim unpaidemployment entitlements as far back as six years. This may include payment of any wages not paid,reasonable notice, annual leave and long service leave. In some circumstances the ABC may also berequired to make a redundancy payment, not to mention pay the legal costs of any litigation! This means thefinancial exposure to the ABC can be significant if we get it wrong.5 This doesn’t include people like ABC Board members and the like.The terms ‘contractor’ and ‘independent contractor’ mean the same thing.
  4. 4. Don’t be fooled into thinking that engaging a contractor involves less risk than employing someone: it’soften okay when the relationship starts but when things go awry and the relationship ends, the contractormay question the nature of the relationship and believe they were treated like an employee rather than acontractor. This may lead them to seek payment for all the employment-related entitlements they didn’tget as a contractor, such as sick leave and annual leave.No matter which option you choose (that is, employing someone or engaging a contractor), a contract willexist between the parties. It’s a common mistake to assume that because no written contract exists, thereis no contract. A written contract makes it clear to both the ABC and the employee (or the contractor)what is expected of them and sets out their rights and obligations. But when someone does a job for you,even if you don’t write down the terms of the arrangement, the way in which the person does the job, andhow we pay them, forms the basis of an unwritten contract. Also, anything you say to that person abouthow you want the job done and how you will pay them can form part of the contract. To avoid uncertainty,disagreement and possibly litigation, it’s always better to have a written contract stating Radio’srequirements and the person’s obligations and entitlements.4.3 What’s the difference?The difference between an employee and a contractor is whether the person works for Radio or whetherthey are in business for themselves doing a job for Radio. For example, when you hire an electrician torewire your house you’re not employing them to do the job, you’re contracting with them to provideelectrical services and you’ll pay them on completion of that service.The employment relationship developed out of the master/servant relationship when the master had virtualcontrol over the servant. As a result, the law viewed employees as needing greater protection thancontractors. Contractors were regarded as being in business for themselves and therefore in a better andmore equal position to negotiate terms with the principal.While this distinction may not be as relevant today as it was 100 years ago, it’s true to say that anemployer has far greater obligations with respect to its employees than to its contractors. For example,when the ABC employs someone it is required to:• pay in accordance with relevant industrial awardsand agreements;• deduct PAYE tax from wages;• pay the Superannuation Guarantee Levy in respectof wages;• provide leave entitlements (i.e. annual leave, sick leave, long service leave); and• have workers’ compensation insurance in respect of its employees.As you can see, it’s critical that the ABC correctly distinguishes between employees and contractors. Theproblem is it’s not always easy to do so.It’s a common mistake to believe that if a contract states someone is a contractor it must be so. If only itwere that simple! From time to time the courts are asked to decide the issue and, when doing so, theylook to the substance of the relationship and not just the form (i.e. not just what the relationship has beencalled). The courts will consider what the contract says about the nature of the relationship but they’ll alsolook at other factors.
  5. 5. 4.3.1 The ‘multi-factor’ testOver time the courts have developed what’s called the ‘multi-factor’ test, which you can apply todetermine whether someone is an employee or a contractor. Generally the issues to look at include:• the level of control over the work: whether we oversee what the person does and require it to be done toRadio’s specified standards;• the mode of remuneration: whether we pay a set rate per fortnight or on completion of a job and onpresentation of an invoice;• equipment: whether the equipment is provided and maintained by the ABC or the individual; and• whether the person has to work set hours.Typically, employees provide exclusive services to an employer whereas contractors work for a number oforganisations. Another difference is that contractors normally have the right to delegate the work andoften get someone else to do it, so long as the job gets done.It’s a matter of weighing up all the factors involved in the relationship to see if they point more strongly toan employer/employee relationship or one of principal and contractor. P&L has a checklist to help youthrough this process. A copy is provided in Appendix 4A.Remember: if it walks like a duck and talks like a duck, it probably is a duck!4.4 Sole traders and registered companiesAs shown in Figure 4A, a contractor may provide their services as an individual (a sole trader) or via acompany, trust or partnership. We will focus on sole traders and companies because they are the mostcommon types of arrangements you will deal with.Whether a contractor is a sole trader or part of a company is clear at law but often gets very confused inthe real world. That’s because a ‘business’ can mean the activities of a sole trader or the activities of acompany. Individuals can set up a business without setting up a registered company structure. Forexample, ‘Jo Bloggs Radio Production Business’ may simply involve Jo Bloggs in his own business as asole trader and not a registered company as the name might suggest. People often use the terms‘business’ and ‘company’ interchangeably but as you can see they are very different beasts.4.4.1 TaxGenerally, a sole trader will get a business name registered and acquire an ABN number. If they includethis ABN number on their invoice, the ABC will not deduct any tax from the contract fee. If however, thesole trader does not have or does not include an ABN number on their invoice, the ABC will deduct tax atthe highest marginal rate and submit it to the Australian Taxation Office. 2Having an ABN number does not mean the business is a registered company. To be a registeredcompany the business must have an ACN number and they get this when it’s registered with the
  6. 6. Australian Securities and Investment Commission. The most common type of registered company you’lldeal with is likely to be a ‘Pty Ltd’ company.Having an ACN number has important consequences in terms of tax. The ABC does not deduct tax frominvoices from registered companies. It’s up to the registered company to sort out its own tax obligations.4.4.2 SuperannuationThe distinction between sole traders and registered companies is also important with respect tosuperannuation. It’s straightforward when the contractor is providing services via a registered company:the ABC has no obligation to make superannuation contributions. However, the superannuation situationwith contractors who are sole traders is more complicated.Normally contractors who are sole traders wouldn’t be entitled to superannuation as it is an employeeentitlement. However, the relevant superannuation legislation deems certain contractors to be employees.This means the ABC must treat those contractors as if they were employees (for superannuation purposesonly) and it must pay superannuation contributions in respect of their earnings (unless they earn less than$450 per month or are under 18 or over 70 years of age).The ABC pays superannuation contributions for contractors who are sole traders except those working inthe areas of security, cleaning or repairs and maintenance.If you engage a sole trader, they need to complete:• a Contractor (Sole Trader) Details Form, to get them set up in the pay system; and• a Choice of Superannuation Fund Form.These forms need to be sent to Accounts Payable in Adelaide. Then, when you receive an invoice fromthe sole trader, you need to complete an Authority to Pay Contractor (Sole Trader) form and send it andthe invoice to Accounts Payable. All these forms are available on P&L’s intranet page called ‘Engagementof Contractors’. Copies are also provided in Appendices 4B to 4D.If you are unsure about any of this you should seek advice from your State P&L team or refer to the P&L 3intranet page called ‘Engagement of Contractors’ as that has a lot of useful information. For example,see Appendix 4E, ‘Superannuation for Contractors: Guidelines for Assessing Eligibility’ for moreinformation.4.5 Employing artistsLike everybody else performing work for the ABC, an artist is either an employee or a contractor. Applythe multi-factor test outlined in section 4.3.1 and the checklist provided in Appendix 4A to work out ifthey’re an employed artist or a contracted artist. If you decide that the artist is a contractor who is a soletrader (ie not a registered company) then super contributions must be paid. For more information readAppendix 4F, ‘ABC Guidelines for Payment of Artists’.
  7. 7. 4.6 Issuing presenter contractsSo now you’re the full bottle on the difference between employees and contractors, what are the practicalsteps you need to take to issue a contract for a presenter?Most Radio presenters are employees though there are some who are engaged as contractors, either assole traders or via registered companies.A new process for issuing presenter contracts was established in Radio in 2007. The focus of this newprocess has mainly been on metro presenters whohave new contracts negotiated each program year(or longer). The objectives of the new process are to:• improve and standardise the procedures within Radio, and between Radio and P&L and Legal Services;• assist and support managers by streamlining the process and making it more consistent;• ensure that useful and appropriate contract clauses are used across the entire Division rather than inisolated instances within particular networks;• assist with the management of terms and conditions generally across the Division; and• provide managers with greater support in relation to the contracts.Under the new process, the Project Manager, Strategy, Communication & People Development (RuthNiall, on 82 4881) coordinates the issuing of presenter contracts in Radio. The Project Manager is thecentral contact for liaising with P&L and Legal Services; rather than spending your time chasing details,you have a dedicated point of contact who does the legwork for you and who can help you draftcontractual clauses to address specific needs.The steps in the process are as follows:STEP 1:In Local Radio the manager gives the Project Manager an Instructions Sheet (see Appendices 4G and4H) and a Staff Engagement Form (if the presenter is an employee, see Appendix 4I) setting out all therequirements for the contract. In the National Networks the manager gives these documents to theirBusiness Manager who checks them and sends them through to the Project Manager.STEP 2:The Project Manager decides whether the contract will be drafted by P&L or Legal Services and sends offthe details to the appropriate area.STEP 3:The Project Manager liaises with P&L or Legal Services in relation to the drafting of the contract.STEP 4:The Project Manager, in consultation with the Radio manager, organises for the contract to be finalisedand returned to the Radio manager who then has the contract signed by the presenter.Employment contracts will be processed by P&L and contractor arrangements by Legal Services.
  8. 8. 9. MANAGING UNDERPERFORMANCE AND UNSATISFACTORYPERFORMANCE9.1 IntroductionIf you have concerns about an employee’s performance you need to raise them with the employee assoon as possible as part of the ongoing feedback throughout the performance cycle. Be proactive aboutyour concerns and don’t wait for the annual appraisal at the end of the cycle. In general, the earlier aproblem is dealt with, the easier it is to resolve.9.2 Distinguishing underperformance from misconductSometimes there is an overlap between underperformance and misconduct, making it difficult todistinguish them from each other. However, it’s important to determine what you’re dealing with becausethe Employment Agreement sets out quite different processes to deal with underperformance andmisconduct.Essentially, underperformance is where an employee’s productivity fails to meet one or all of the requiredobjectives and standards. If the issue is primarily about how they’re doing their job in terms of things likepoor quality or output, time taken to complete tasks or error rates, then it‘s likely to be a performanceissue.Misconduct, on the other hand, is where an employee’s behaviour or actions are inappropriate orimproper as defined in the Employment Agreement. For example, breaches of the Code of Conduct andABC policies such as the Editorial Policies can be misconduct depending on the circumstances.Misconduct is discussed in detail in Chapter 10.It’s easy to think of situations where there’s overlap. For example, an employee may wilfully disobey ordisregard a lawful direction (misconduct) and that may result in a decrease in productivity(underperformance). In these circumstances, a manager may decide to treat the situation either throughthe misconduct provisions of the Employment Agreement or through the underperformance provisions.It’s worth discussing the situation – either with Radio’s People & Communication contact or with P&L – todecide which way to go. In the example given, it’s a matter of deciding whether to ‘discipline’ theemployee for their failure to follow a direction or to focus attention on the employee’s decreasedproductivity by looking at ways the employee can improve their performance.9.3 Performance issues: underperformance and unsatisfactoryperformancePerformance problems may involve underperformance or unsatisfactory performance. These are treateddifferently under the Employment Agreement, so again it’s important to understand the difference.Underperformance is less serious than unsatisfactory performance.Underperformance is where there is a problem with an employee’s performance and they fail to meet oneor all of the required objectives and standards (as set out in their job plan).Unsatisfactory performance occurs when attempts to remedy underperformance have been unsuccessful.
  9. 9. So you only move to the processes dealing with unsatisfactory performance after you have first workedthrough the processes dealing with underperformance.9.4 Managing underperformance – a less formal processAn employee may be underperforming for a range of reasons. It’s important to identify the underlyingcauses of underperformance because they will impact on attempts to remedy the problem.Causes of underperformance can include the following:• unclear expectations;• delays or problems caused by other people and outside the employee’s control;• poor working relationships or conflict in the work area;• personal problems outside the workplace, which are impacting on the employee at work;• insufficient knowledge or skills to carry out the tasks;• inefficient work practices; and• a poor attitude and lack of enthusiasm for the work.9.4.1 Provide constructive feedbackThere should be ongoing positive and constructive feedback between you and the employee throughoutthe performance cycle. Constructive feedback is very important when dealing with performance issues orconcerns. If an employee is not given feedback about their poor performance they can’t really beexpected to improve. In fact, if they aren’t dealt with, poor work practices can become entrenched andmay be difficult to change.If you identify a problem with an employee’s performance, immediately discuss the problem directly and clearly with the employee.Giving constructive feedback is not always easy, and it’s often harder if you’re dealing with an employeewho is underperforming, in part because the employee may become defensive and emotional in theirresponses. It’s a good idea to discuss the problem with your manager and consider ways to tackle theissues during any meetings you have with the employee.9.4.2 Provide formal adviceIf initial informal discussions don’t result in an improvement in the employee’s performance, you maydecide that more formal processes need to be applied.The process for managing underperformance is set out in clause 23.5 of the Employment Agreement:(a) advise the employee in writing that an underperformance issue/s needs to be addressed;(b) inform the employee of the performance standards they are expected to achieve and the area/s of performance they need to improve;(c) provide an opportunity for the employee to respond so that all relevant matters can be considered, including any possible changes to the performance standards expected and any requests by the
  10. 10. employee for training, coaching, re-arrangement of duties or changes to the work environment; and(d) set a reasonable period over which the employee’s performance will be monitored and a date for review having regard to (c) above.Clearly, the aim is to identify the cause of the underperformance and to determine, with the employee’sinput, what is needed to help the employee improve their performance. It’s important for a manager to beopen and transparent in any discussions with the employee about their performance. The process formanaging underperformance is less formal than that dealing with unsatisfactory performance, but it stillrequires a manager to clearly explain to the employee, in writing, what the problem is and the standardexpected of the employee.Once the process has commenced, it’s important to manage it properly. After advising an employee of theneed to improve and setting a reasonable period over which the employee’s performance will bemonitored and a date for review, it’s crucial that you follow through as planned. You’ll always havecompeting demands on your time, but make sure you do what you’ve said you would – actively monitorthe employee’s performance during the monitoring period and then meet with the employee on the reviewdate to discuss their performance. Too often an underperforming employee is left for considerable periodswithout being appropriately managed. This doesn’t help remedy the problem and more often than not itresults in the underperformance becoming entrenched and increasingly difficult to rectify.It’s hoped that the employee, with your assistance, will be able to improve their performance to therequired standard.9.5 Inadequate improvement in performanceIf adequate improvement has not been made by the review date, the ABC may:• decide to transfer the employee to another function or work area with the employee’s agreement; or• commence the procedures for dealing with unsatisfactory performance in accordance with theEmployment Agreement.9.6 Managing unsatisfactory performance – a more formal processIf the attempts to remedy an employee’s underperformance are unsuccessful, the next step is the processfor dealing with unsatisfactory performance. This is set out in detail in clause 24 of the EmploymentAgreement.Unsatisfactory performance is more serious than underperformance and the process for dealing with it ismore formal and more complicated. The Strategy, Communication & People Development team can helpyou through the process but also remember, under the Employment Agreement, P&L must be involved inthis process.Unsatisfactory performance is serious and complex because of the potential outcomes for the employee, which include:• having their position redesigned to an equal or lower salary band;• being transferred to another position equal to or lower than their current salary band; or
  11. 11. • termination of employment.Remember that an employee may choose to be accompanied or represented by a person of their choicethroughout the process. You need to let the employee know this from the start of the process.9.6.1 Inform the employee there’s a problem with their performanceThe first step is to notify the employee there’s a problem with their performance and to develop aPerformance Improvement Plan (PIP), which clearly spells out:• in what ways and to what extent the employee’s performance is unsatisfactory;• the standards of performance which must be fair and in line with the Work Level Standards;• where appropriate, details of training programs and any rearrangement of duties or changes to the work environment designed to assist the employee to meet the required standards of performance;• a reasonable time frame for the employee to show improvement; and• the likely consequences if the employee does not meet the required standard.9.6.2 Meet with the employeeWhen a draft PIP has been prepared (with P&L’s assistance), meet with the employee to discuss it. At themeeting:• review the plan with the employee, including the performance standards they are expected to achieve, the area/s of performance they need to improve and by when;• provide an opportunity for them to respond so that all relevant matters can be considered, including any possible changes to the performance standards expected and any requests by the employee for training, coaching, re-arrangement of duties or changes to the work environment;• confirm the time frame over which their performance will be monitored against the plan and the date(s) for review having regard to the above; and• inform the employee of the likely consequences if they do not meet the required standard (see section 9.6.4).If you’ve never been involved in developing a PIP and assessing an employee’s performance against it, itcan be a difficult and sometimes complex process. It’s not easy even if you’ve managed a similar processbefore. It’s certainly worth carefully planning what you’re going to say to the employee and to be veryclear about what is expected of them and how you’re going to assess their performance during the reviewprocess.Over the PIP process, it’s likely you’ll have a number of meetings with the employee. For example, a PIPthat has been developed for a three-month period may have weekly and monthly targets incorporated intothe plan. At the meetings, go through the employee’s performance, measured against theobjectives/criteria set in the PIP. This gives you and the employee an idea on how they are going.
  12. 12. 9.6.3 If performance IMPROVES to a satisfactory standardIf the employee’s performance improves over the PIP process to a satisfactory standard, this should beappropriately recognised by confirming it in writing to the employee. The PIP process will close at thispoint.Under the Employment Agreement, if the employee’s performance has improved to a satisfactorystandard under a PIP process and the employee gets an ‘M’or above in their next annual appraisal, all references to underperformance will be removed from theirpersonnel file.9.6.4 If performance does NOT IMPROVE to a satisfactory standardIf, at the end of the PIP process, the employee’s performance remains unsatisfactory, the manager mustformally notify the employee that they’ve failed to remedy their performance and ask the employee to givereasons why the ABC shouldn’t either:• redesign the employee’s position to an equal or lower salary band;• transfer the employee to another position equal to or lower than their current salary band; or• terminate their employment.When notifying the employee of their failure to satisfactorily improve, the manager needs to:• clearly identify all of the concerns about the employee’s performance; and• provide the employee with an opportunity to respond at a meeting or in writing.9.6.5 OutcomesIf the employee provides a satisfactory response, you may set up a further period in which to assess theemployee’s performance. It may be that the employee can point to valid reasons why they were unable tomeet the standards required under the PIP.If the employee is unable to provide a satisfactory response, or if they’ve not complied with the ABC’srequest (to explain why they’ve been unable to improve their performance to the required standard), theDirector of Radio may:• redesign the employee’s position to an equal or lower salary band;• transfer the employee to another position at an equal or lower salary band; or• dismiss the employee with due notice, or payment in lieu, in accordance with the Employment Agreement.
  13. 13. 10. MISCONDUCT10.1 DefinitionMisconduct occurs where an employee’s behaviour or actions are inappropriate or improper as defined in the Employment Agreement.It can be difficult to distinguish between misconduct and underperformance because there can be overlapbetween the two. Because the Employment Agreement sets out quite different processes to deal withunderperformance and misconduct, it’s important to determine at the outset just what you’re dealing with.As discussed in the previous chapter, essentially underperformance is where there is a problem with anemployee’s productivity and it fails to meet one or all of the required objectives and standards. If theproblem is primarily about how they’re doing their job in terms of things like poor quality, lack of output,time taken to complete tasks or error rates, then it’s likely to be a performance issue.Misconduct, on the other hand, is where an employee’s behaviour or actions are inappropriate orimproper as defined in the Employment Agreement. For example, breaches of the Code of Conduct andABC policies such as the Editorial Policies can be misconduct depending on the circumstances.Under the Employment Agreement, misconduct includes serious misconduct and is defined to include one or more circumstances where an employee: • wilfully disobeys or disregards a reasonable and lawful direction; • is inefficient or incompetent for reasons within their own control; • is negligent or careless in the discharge of their duties; • engages in improper conduct as an employee of the ABC; • engages in improper conduct which brings, or is likely to bring, the ABC into disrepute; • fails to comply with, or contravenes, a term or condition of this Agreement; • deliberately provides at any time incorrect or misleading information which is relevant to their employment; or • exercises unlawful discrimination, patronage or favouritism in relation to employment matters within the ABC.10.2 Process and possible outcomesThe process for managing misconduct is set out in the Employment Agreement. It’s a good idea to getadvice early from the Strategy, Communication & People Development team or P&L about how to dealwith misconduct allegations as they can be difficult and complex. Basically if an employee has acted in away that could fall within the definition of misconduct, or if this has been alleged, you need to do thefollowing:• advise the employee in writing of the nature of the alleged misconduct;• advise the employee that they may choose to be accompanied or represented by a person of their
  14. 14. choice at any stage during the proceedings (or subsequent proceedings);• advise the employee in writing of the process to be undertaken by the ABC to determine whether the alleged misconduct is substantiated;• if an investigation is required, advise the employee in writing that an independent investigator will be appointed. The investigator can’t be a person who has had any involvement in the misconduct or disciplinary proceedings;• give the employee access to any material that is relied upon and relevant to the allegation; and• give the employee an opportunity to respond to the allegation(s) and/or to explain their actions or inactions and any mitigating factors they want taken into consideration. Under the Employment Agreement, the employee is required to provide their response in a timely manner. When you give the employee the opportunity to respond, it’s a good idea to stipulate when you want their response. But be careful to give the employee a reasonable amount of time, not just a couple of days.If the ABC believes the alleged misconduct is likely to constitute serious misconduct, the employee mustbe advised of that at the earliest opportunity. Often this will be at the start of the process because of theserious nature of the alleged misconduct. However, the initial view taken could be that the allegedbehaviour or actions are misconduct but through investigating the matter other issues arise which make itserious misconduct. Similarly, an allegation of serious misconduct may be made and not found, whilemisconduct is found.From a procedural fairness perspective, it’s crucial to get the employee’s response to the allegations.Depending on the circumstances, you may put the allegations to the employee in writing and ask them torespond in writing. But in many cases you’ll need to meet with the employee (and their representative ifthey have one) to discuss the misconduct allegations and to get their response. Once you think you’llneed to use the misconduct provisions of the Employment Agreement, you should discuss the matter indetail with your manager. Essentially you’ll need to refer the matter up, as any decisions regardingpossible outcomes may need to be considered by the Director of Radio and, possibly, the Director ofP&L.There may be times when you meet with the employee to discuss the allegations. There may also betimes when you simply ask for a written response. That’s fine. The important thing is that you offer themthe opportunity to respond.Similarly, if an employee fails to respond at all to allegations of misconduct, you can still go ahead anddecide whether misconduct has occurred using the information available to you. So long as you haveprovided the employee with the opportunity to respond, the process will have been procedurally fair. Youshould put the offer in writing and also confirm in writing if they reject the offer.There’s potential for the process to be difficult and protracted. It’s also not uncommon for the relationshipbetween the manager and the employee who has had misconduct allegations made against them tobecome strained and at times acrimonious. It’s therefore important for you to remain focussed and calmand to confirm in writing steps taken throughout the process. This can help take some of the heat out ofthe process and keep the parties focussed on the important issues. It’s very easy in these matters tobecome distracted by peripheral issues that may not be relevant to the allegations that have been made.It’s crucial to remain clear about the nature of the allegations so you can get a response from theemployee that’s also clear and on point. It’s never very pleasant for anyone involved but both you and theemployee have support to draw on. Radio’s Strategy, Communication & People Development team willassist you through this process.
  15. 15. 10.3 Employee suspensionIf the nature or seriousness of the alleged misconduct is such that it is reasonable to do so, the ABC may,under the Employment Agreement, suspend an employee with or without pay while an investigation isconducted into the alleged misconduct. There are no rules to determine what is ‘reasonable’, but here aresome examples of when suspension would be reasonable:• the presence of the employee at work could/would jeopardise the safety of others;• the conduct under investigation involved violence; or• the conduct under investigation involved a significant conflict between the employee and others.Generally, if an employee is suspended from work they are not allowed to be at the workplace without specific authorisation.If an employee is suspended without pay, the ABC may give the employee access to any accrued annual and long service leave.If at the end of the investigation it’s found that the misconduct is not substantiated, or if it’s found that thenature of the misconduct did not warrant withholding the employee’s pay, the employee will bereimbursed for ordinary pay withheld during the suspension and any paid leave taken by the employeeduring the suspension will be restored.It will be up to the Director of Radio or the Director of P&L to decide whether it’s reasonable to suspendan employee. It’s therefore important for you to refer the matter up to your manager as soon as you areaware of an incident or an employee’s behaviour that may constitute misconduct or serious misconduct.10.4 Possible outcomes of substantiated misconductIf an allegation of misconduct is substantiated,the ABC may:• reprimand the employee; and/or• issue a written warning to the employee.There may be some circumstances where misconduct is substantiated but no disciplinary action is taken,though the employee is counselled and the counselling recorded on their personnel file.If an allegation of serious misconduct is substantiated, the ABC may do one or more of any of the following:• reprimand the employee;• issue a written warning to the employee;• transfer the employee to another position at an equal or lower salary;• withhold the employee’s salary for part or all of the period of suspension;• reduce the employee’s salary within the band;
  16. 16. • dismiss the employee with notice or payment in lieu in accordance with the relevant provisions of clause 55 of the Employment Agreement (the Termination of Employment clause); or• dismiss the employee without notice where the misconduct is of such a nature that it would be unreasonable to require the ABC to continue the employment during the required period of notice.The disciplinary action chosen will depend on the nature and seriousness of the misconduct: it’s an issuethat will need careful consideration. Generally it will be up to the Director of Radio and/or the Director ofP&L to decide on the outcome, particularly if the matter involves serious misconduct. For less seriousmisconduct, decisions may be made by the Head of the Network, though that would usually also involvesome consultation or discussion with the Director of Radio. The Strategy, Communication & PeopleDevelopment team can assist you in the process from the start and help you decide the appropriateprocess: who needs to be involved and what documentation will be needed. The important thing for youas manager is to seek advice throughout the process.10. MISCONDUCT10.1 DefinitionMisconduct occurs where an employee’s behaviour or actions are inappropriate or improper as defined in the Employment Agreement.It can be difficult to distinguish between misconduct and underperformance because there can be overlapbetween the two. Because the Employment Agreement sets out quite different processes to deal withunderperformance and misconduct, it’s important to determine at the outset just what you’re dealing with.As discussed in the previous chapter, essentially underperformance is where there is a problem with anemployee’s productivity and it fails to meet one or all of the required objectives and standards. If theproblem is primarily about how they’re doing their job in terms of things like poor quality, lack of output,time taken to complete tasks or error rates, then it’s likely to be a performance issue.Misconduct, on the other hand, is where an employee’s behaviour or actions are inappropriate orimproper as defined in the Employment Agreement. For example, breaches of the Code of Conduct andABC policies such as the Editorial Policies can be misconduct depending on the circumstances.Under the Employment Agreement, misconduct includes serious misconduct and is defined to include one or more circumstances where an employee: • wilfully disobeys or disregards a reasonable and lawful direction; • is inefficient or incompetent for reasons within their own control; • is negligent or careless in the discharge of their duties; • engages in improper conduct as an employee of the ABC; • engages in improper conduct which brings, or is likely to bring, the ABC into disrepute; • fails to comply with, or contravenes, a term or condition of this Agreement; • deliberately provides at any time incorrect or misleading information which is relevant to their employment; or • exercises unlawful discrimination, patronage or favouritism in relation to employment matters within
  17. 17. the ABC.10.2 Process and possible outcomesThe process for managing misconduct is set out in the Employment Agreement. It’s a good idea to getadvice early from Radios People & Communication contact or P&L about how to deal with misconductallegations as they can be difficult and complex. Basically if an employee has acted in a way that couldfall within the definition of misconduct, or if this has been alleged, P&L will work with you to draft a letterthat advises of the following:• the nature of the alleged misconduct;• that they may choose to be accompanied or represented by a person of their choice at any stage during the proceedings (or subsequent proceedings);• the process to be undertaken by the ABC to determine whether the alleged misconduct is substantiated;• if an investigation is required, then advising the employee in writing that an independent investigator will be appointed. (The investigator can’t be a person who has had any involvement in the misconduct or disciplinary proceedings);• give the employee access to any material that is relied upon and relevant to the allegation; and• give the employee an opportunity to respond to the allegation(s) and/or to explain their actions or inactions and any mitigating factors they want taken into consideration. Under the Employment Agreement, the employee is required to provide their response in a timely manner. When you give the employee the opportunity to respond, it’s a good idea to stipulate when you want their response. But be careful to give the employee a reasonable amount of time, not just a couple of days.If the ABC believes the alleged misconduct is likely to constitute serious misconduct, the employee mustbe advised of that at the earliest opportunity. Often this will be at the start of the process because of theserious nature of the alleged misconduct. However, the initial view taken could be that the allegedbehaviour or actions are misconduct but through investigating the matter other issues arise which make itserious misconduct. Similarly, an allegation of serious misconduct may be made and not found, whilemisconduct is found.From a procedural fairness perspective, it’s crucial to get the employee’s response to the allegations.Depending on the circumstances, you may put the allegations to the employee in writing and ask them torespond in writing. But in many cases you’ll need to meet with the employee (and their representative ifthey have one) to discuss the misconduct allegations and to get their response. Once you think you’llneed to use the misconduct provisions of the Employment Agreement, you should discuss the matter indetail with your manager. Essentially you’ll need to refer the matter up, as any decisions regardingpossible outcomes may need to be considered by the Director of Radio and, possibly, the Director ofP&L.There may be times when you meet with the employee to discuss the allegations. There may also betimes when you simply ask for a written response. That’s fine. The important thing is that you offer themthe opportunity to respond.Similarly, if an employee fails to respond at all to allegations of misconduct, you can still go ahead anddecide whether misconduct has occurred using the information available to you. So long as you haveprovided the employee with the opportunity to respond, the process will have been procedurally fair. You
  18. 18. should put the offer in writing and also confirm in writing if they reject the offer.There’s potential for the process to be difficult and protracted. It’s also not uncommon for the relationshipbetween the manager and the employee who has had misconduct allegations made against them tobecome strained and at times acrimonious. It’s therefore important for you to remain focussed and calmand to confirm in writing steps taken throughout the process. This can help take some of the heat out ofthe process and keep the parties focussed on the important issues. It’s very easy in these matters tobecome distracted by peripheral issues that may not be relevant to the allegations that have been made.It’s crucial to remain clear about the nature of the allegations so you can get a response from theemployee that’s also clear and on point. It’s never very pleasant for anyone involved but both you and theemployee have support to draw on. Radio’s Strategy, Communication & People Development team willadvise and assist you through this process.10.3 Employee suspensionIf the nature or seriousness of the alleged misconduct is such that it is reasonable to do so, the ABC may,under the Employment Agreement, suspend an employee with or without pay while an investigation isconducted into the alleged misconduct. There are no rules to determine what is ‘reasonable’, but here aresome examples of when suspension would be reasonable:• the presence of the employee at work could/would jeopardise the safety of others;• the conduct under investigation involved violence; or• the conduct under investigation involved a significant conflict between the employee and others.Generally, if an employee is suspended from work they are not allowed to be at the workplace without specific authorisation.If an employee is suspended without pay, the ABC may give the employee access to any accrued annualand long service leave.If at the end of the investigation it’s found that the misconduct is not substantiated, or if it’s found that thenature of the misconduct did not warrant withholding the employee’s pay, the employee will bereimbursed for ordinary pay withheld during the suspension and any paid leave taken by the employeeduring the suspension will be restored.It will be up to the Director of Radio or the Director of P&L to decide whether it’s reasonable to suspendan employee. It’s therefore important for you to refer the matter up to your manager as soon as you areaware of an incident or an employee’s behaviour that may constitute misconduct or serious misconduct.10.4 Possible outcomes of substantiated misconductIf an allegation of misconduct is substantiated,the ABC may:• reprimand the employee; and/or• issue a written warning to the employee.There may be some circumstances where misconduct is substantiated but no disciplinary action is taken,though the employee is counselled and the counselling recorded on their personnel file.
  19. 19. If an allegation of serious misconduct is substantiated, the ABC may do one or more of any of thefollowing:• reprimand the employee;• issue a written warning to the employee;• transfer the employee to another position at an equal or lower salary;• withhold the employee’s salary for part or all of the period of suspension;• reduce the employee’s salary within the band;• dismiss the employee with notice or payment in lieu in accordance with the relevant provisions of clause 58 of the Employment Agreement (the Termination of Employment clause); or• dismiss the employee without notice where the misconduct is of such a nature that it would be unreasonable to require the ABC to continue the employment during the required period of notice.The disciplinary action chosen will depend on the nature and seriousness of the misconduct: it’s an issuethat will need careful consideration. Generally it will be up to the Director of Radio and/or the Director ofP&L to decide on the outcome, particularly if the matter involves serious misconduct. For less seriousmisconduct, decisions may be made by the Head of the Network, though that would usually also involvesome consultation or discussion with the Director of Radio. Radios People & Communication contact canassist you in the process from the start and help you decide the appropriate process: who needs to beinvolved and what documentation will be needed. The important thing for you as manager is to seekadvice throughout the process.11. TERMINATION AND REDUNDANCY11.1 Reasons for termination of employmentAn employee’s employment may end (that is, terminate) in a number of ways and for a number of reasons, including the following:• an employee resigns;• an employee retires;• an employee is medically retired;• an employee’s employment is terminated by the ABC with notice, or a payment in lieu of notice;• an employee’s employment is terminated by the ABC without notice, for serious misconduct; or• an employee’s employment is terminated because of redundancy.11.2 Notice requirements for terminationUnder the Employment Agreement, the ABC may terminate an employee’s employment without noticeor with notice.
  20. 20. 11.2.1 Termination without noticeAn employee’s employment can be terminated without notice (that is, the employee is dismissedsummarily) if the employee is found to have been guilty of serious misconduct and it would beunreasonable to require the ABC to continue to employ the person during any notice period.To gain an understanding of what sort of conduct or behaviour would be categorised as seriousmisconduct it is necessary to look at what has been judged to be misconduct in the past, either at theABC or in other organisations, and then look at cases from the industrial tribunals and other courts.Some examples of serious misconduct, where summary dismissal would be regarded as reasonable,include physical violence, theft and victimisation. But even in these circumstances an investigation wouldbe carried out, together with an assessment of mitigating circumstances, before any decision was madeto summarily terminate an employee’s employment.11.2.2 Termination with noticeAn employee’s employment can be terminated with notice (or an employee can be given a payment in lieu of notice), on the following grounds:• redundancy;• medical incapacity;• unsatisfactory performance;• misconduct; or• abandonment of employment.If an employee’s employment is to be terminated with notice (or a payment in lieu of notice), the length ofnotice required will depend on the employee’s period of continuous service with the ABC.Other than for redundancy, the required notice period is calculated as follows:11.3 Reasons for redundancyThe redundancy provisions of the Employment Agreement only apply to ongoing employees. They don’tapply to fixed term and specified task employees, employees on probation, or casual employees.Terminating an employee’s employment because of redundancy is generally the last resort. Whereverpossible, the ABC looks for alternatives and will endeavour to minimise the need for redundancies. Thiswill be done through workforce planning, employee development and performance managementstrategies. It is also backed up by an active redeployment and retraining policy.
  21. 21. An employee is redundant where:• they are no longer required for the efficient and economical operation of the ABC; or• they cannot be effectively employed because of technological change or other changes in work practices; or• their function is transferred to another location that is not within reasonable commuting distance of their current location, they are not willing to relocate and there is no suitable alternative position available within reasonable commuting distance; or• their skills, talents or perceived audience appeal are no longer relevant to the ABC’s overall program requirements.11.4 The redundancy processIf a redundancy is required, a detailed process must be followed.11.4.1 Development of business caseBefore an employee’s employment can be terminated because of redundancy, a business case firstneeds to be prepared and approved by the Network Head and the Director of Radio. It then needs to beapproved by the Chief Operating Officer, the Director of P&L and, finally, the Managing Director.The business case needs to justify the retrenchment of the employee concerned. It must:• provide the background and reasons for the redundancy;• demonstrate that the circumstances show that the employee is redundant, as defined in the Employment Agreement (clause 52.2);• if applicable, set out and explain the redundancy selection process;• demonstrate that alternatives to redundancy have been explored (for example, set out the steps taken to explore suitable alternative positions); and• provide the cost of the redundancy (in terms of notice, severance, and other applicable payments).11.4.2 ConsultationIt’s a requirement under the Employment Agreement for the ABC to hold discussions with affectedemployees (and their representatives) at the earliest opportunity once possible redundancies have beenidentified. During those discussions, the ABC sets out:• the reasons for the redundancies and the measures taken to avoid or minimise those redundancies;• the process to be followed where the redundancies arise from there being an excess number of employees within a class of employees (that is, the redundancy selection process); and• alternatives to redundancy, including natural attrition, transfer and any opportunities for redeployment and retraining.
  22. 22. If there are redundancies in your area let P&L’s Head of Industrial Relations know so that the relevant union(s) can be notified.11.4.3 Notification of redundancyAfter the initial discussions have taken place and a redundancy selection process has been completed (ifapplicable), if the ABC determines that an employee is redundant the employee is notified in writing. Theyare given a choice between accepting immediate retrenchment or exploring redeployment and retrainingoptions. The employee is given seven days to decide. If they do not advise the ABC within that timethey’re taken to have chosen immediate retrenchment. The time frame may be extended if the employeeis on approved leave at the time of the written notification.The ABC will formally notify an employee in writing that they are to be retrenched if:• following initial discussions they do not wish to examine redeployment and retraining options; or• after choosing to examine redeployment and retraining options no suitable alternative employment has been found; or• the employee has agreed to be substituted.11.4.4 Redeployment and retraining opportunitiesIf an employee chooses to explore redeployment and retraining opportunities, the ABC will:• make an assessment of their competencies;• provide advice on employment options;• canvass work areas for possible suitable vacancies;• assess reasonable retraining options;• assist with interview and job search skills; and• take other appropriate action.At the employee’s discretion, the ABC will continue to explore redeployment and retraining possibilities forup to six weeks from the date the employee was notified in writing that they are redundant.An employee who takes personal leave during the redeployment and retraining period may apply, onproduction of a medical certificate, for an extension of the redeployment period for a period equal to thepersonal leave taken. An extension of the redeployment period will be at the discretion of the ABC,depending on the employee’s prospects of redeployment and any other factor it considers relevant. If theperiod of personal leave is more than two weeks and the ABC declines an application for an extension,the employee will, in addition to the standard retrenchment payments, receive a payment equal to theperiod of personal leave taken, up to a maximum of four weeks.
  23. 23. 11.4.5 Decision to redeployThe ABC may redeploy an employee to a vacant position at or below the employee’s substantive salary,provided the employee is assessed by the ABC as having the competencies required for the position or isable to attain those competencies with reasonable training, and provided the employee agrees to theredeployment.Where an employee is to be redeployed to a position at a lower substantive salary band, they will beentitled to income maintenance from the date of redeployment. The duration of income maintenance willbe calculated incrementally at the rate of four weeks for each year (or part year thereof to a completedmonth) of continuous service. The minimum period of income maintenance will be 12 weeks and themaximum period 44 weeks.For income maintenance purposes, the salary will be fixed in dollar terms (apart from standardEmployment Agreement increases). It will include any regular shift penalties received (on average) overthe 12 months preceding the date of redeployment.The amount of income maintenance will be reduced by the amount of any increase payable through the performance management system.11.4.6 SubstitutionThere will be some occasions where another employee may be substituted for the employee originallyselected for redundancy, but this is at the discretion of the ABC. The ABC may at its discretion canvassinterest for voluntary retrenchment from other employees.In assessing the viability of substitution, the ABC will consider the relative competency, experience andefficiency of the employees in question. The final decision in relation to substitution will rest with the ABC.Where the ABC agrees to a substitution, the substitute employee will, as soon as practicable, be givenformal notification of retrenchment, and the original employee will be redeployed.11.4.7 PaymentsAn employee who is retrenched will receive:• notice or payment in lieu of notice;• a severance payment;• any unpaid long service leave and pro rata long service leave;• any unpaid annual leave and annual leave bonus; and• a payment in lieu of the unworked portion of the redeployment and retraining period where the employee (other than a substitute employee) leaves before the expiration of the six-week period.The amount of notice or payment in lieu of notice for a redundancy is generally greater than for otherforms of termination of employment. The notice (or payment in lieu) for redundancy is set out below:
  24. 24. If an employee chooses to explore redeployment and retraining opportunities but no suitable alternativeemployment is found, they will be notified in writing they are to be retrenched. In those circumstances, theemployee can only be paid in lieu of notice if they agree.The severance payment is equal to four weeks salary for every completed year of service for the first fiveyears and three weeks salary for every completed year of service thereafter to a maximum of 24 yearsservice. Pro rata calculation to the nearest completed month of service applies after the first year.Unless otherwise agreed, ‘service’ means continuous service with the ABC (provided that any breakbetween periods of employment is not greater than two months). However, there will also be somecircumstances where previous service with the Commonwealth Public Service or the Australian DefenceForce may be counted, but several conditions apply.For calculating the above payments, ‘salary’ includes:• the employee’s base salary;• higher duties allowance (if the employee has been acting in a higher role for a continuous period of at least 12 months immediately before the date they were formally notified of retrenchment);• regular shift penalties paid (on average) over the 12 months immediately preceding the date of formal notification, provided the employee has been paid penalties for at least half the pay periods over that period; and• other allowances in the nature of salary which are paid during periods of annual leave, excluding allowances which are reimbursement for expenses incurred, or payment for disabilities associated with the performance of duty.If one of your staff is, or may become, retrenched and they want to find out what their notice, severanceand other payments would be, refer them to the relevant State P&L team, who can provide thisinformation.11.4.8 Re-engagementAn employee who is paid a retrenchment benefit will not be re-engaged by the ABC within 12 months oftheir retrenchment without the approval of the Managing Director.11. TERMINATION AND REDUNDANCY
  25. 25. 11.1 Reasons for termination of employmentAn employee’s employment may end (that is, terminate) in a number of ways and for a number ofreasons, including the following:• an employee resigns;• an employee retires;• an employee is medically retired;• an employee’s employment is terminated by the ABC with notice, or a payment in lieu of notice;• an employee’s employment is terminated by the ABC without notice, for serious misconduct; or• an employee’s employment is terminated because of redundancy.11.2 Notice requirements for terminationUnder the Employment Agreement, the ABC may terminate an employee’s employment without notice orwith notice.11.2.1 Termination without noticeAn employee’s employment can be terminated without notice (that is, the employee is dismissedsummarily) if the employee is found to have been guilty of serious misconduct and it would beunreasonable to require the ABC to continue to employ the person during any notice period.To gain an understanding of what sort of conduct or behaviour would be categorised as seriousmisconduct it is necessary to look at what has been judged to be misconduct in the past, either at theABC or in other organisations, and then look at cases from the industrial tribunals and other courts.Some examples of serious misconduct, where summary dismissal would be regarded as reasonable,include physical violence, theft and victimisation. But even in these circumstances an investigation wouldbe carried out, together with an assessment of mitigating circumstances, before any decision was madeto summarily terminate an employee’s employment.11.2.2 Termination with noticeAn employee’s employment can be terminated with notice (or an employee can be given a payment inlieu of notice), on the following grounds:• redundancy;• medical incapacity;• unsatisfactory performance;• misconduct; or• abandonment of employment.If an employee’s employment is to be terminated with notice (or a payment in lieu of notice), the length ofnotice required will depend on the employee’s period of continuous service with the ABC.
  26. 26. Other than for redundancy, the required notice period is calculated as follows:11.3 Reasons for redundancyThe redundancy provisions of the Employment Agreement only apply to ongoing employees. They don’tapply to fixed term and specified task employees, employees on probation, or casual employees.Terminating an employee’s employment because of redundancy is generally the last resort. Whereverpossible, the ABC looks for alternatives and will endeavour to minimise the need for redundancies. Thiswill be done through workforce planning, employee development and performance managementstrategies. It is also backed up by an active redeployment and retraining policy.An employee is redundant where: • they are no longer required for the efficient and economical operation of the ABC; or • they cannot be effectively employed because of technological change or other changes in work practices; or • their function is transferred to another location that is not within reasonable commuting distance of their current location, they are not willing to relocate and there is no suitable alternative position available within reasonable commuting distance; or • their skills, talents or perceived audience appeal are no longer relevant to the ABC’s overall program requirements.11.4 The redundancy processIf a redundancy is required, a detailed process must be followed.11.4.1 Development of business caseBefore an employee’s employment can be terminated because of redundancy, a business case firstneeds to be prepared and approved by the Network Head and the Director of Radio. It then needs to beapproved by the Chief Operating Officer, the Director of P&L and, finally, the Managing Director.The business case needs to justify the retrenchment of the employee concerned. It must: • provide the background and reasons for the redundancy; • demonstrate that the circumstances show that the employee is redundant, as defined in the Employment Agreement (clause 55.2); • if applicable, set out and explain the redundancy selection process;
  27. 27. • demonstrate that alternatives to redundancy have been explored (for example, set out the steps taken to explore suitable alternative positions); and • provide the cost of the redundancy (in terms of notice, severance, and other applicable payments).11.4.2 ConsultationIt’s a requirement under the Employment Agreement for the ABC to hold discussions with affectedemployees (and their representatives) at the earliest opportunity once possible redundancies have beenidentified. During those discussions, the ABC sets out: • the reasons for the redundancies and the measures taken to avoid or minimise those redundancies; • the process to be followed where the redundancies arise from there being an excess number of employees within a class of employees (that is, the redundancy selection process); and • alternatives to redundancy, including natural attrition, transfer and any opportunities for redeployment and retraining.Its important to discuss any proposed business case with the P&Ls Manager, Employee Relations beforefinalising. This way you can ensure that all considerations and requirements under the EmploymentAgreement are considered early on in the process.11.4.3 Notification of redundancyAfter the initial discussions have taken place and a redundancy selection process has been completed (ifapplicable), if the ABC determines that an employee is redundant the employee is notified in writing. Theyare given a choice between accepting immediate retrenchment or exploring redeployment and retrainingoptions. The employee is given seven days to decide. If they do not advise the ABC within that timethey’re taken to have chosen immediate retrenchment. The time frame may be extended if the employeeis on approved leave at the time of the written notification.The ABC will formally notify an employee in writing that they are to be retrenched if:• following initial discussions they do not wish to examine redeployment and retraining options; or• after choosing to examine redeployment and retraining options no suitable alternative employment has been found; or• the employee has agreed to be substituted.11.4.4Redeployment and retraining opportunitiesIf an employee chooses to explore redeployment and retraining opportunities, the ABC will:• make an assessment of their competencies;• provide advice on employment options;
  28. 28. • canvass work areas for possible suitable vacancies;• assess reasonable retraining options;• assist with interview and job search skills; and• take other appropriate action.At the employee’s discretion, the ABC will continue to explore redeployment and retraining possibilities forup to six weeks from the date the employee was notified in writing that they are redundant.An employee who takes personal leave during the redeployment and retraining period may apply, onproduction of a medical certificate, for an extension of the redeployment period for a period equal to thepersonal leave taken. An extension of the redeployment period will be at the discretion of the ABC,depending on the employee’s prospects of redeployment and any other factor it considers relevant. If theperiod of personal leave is more than two weeks and the ABC declines an application for an extension,the employee will, in addition to the standard retrenchment payments, receive a payment equal to theperiod of personal leave taken, up to a maximum of four weeks.11.4.5 Decision to redeployThe ABC may redeploy an employee to a vacant position at or below the employee’s substantive salary,provided the employee is assessed by the ABC as having the competencies required for the position or isable to attain those competencies with reasonable training, and provided the employee agrees to theredeployment.Where an employee is to be redeployed to a position at a lower substantive salary band, they will beentitled to income maintenance from the date of redeployment. The duration of income maintenance willbe calculated incrementally at the rate of four weeks for each year (or part year thereof to a completedmonth) of continuous service. The minimum period of income maintenance will be 12 weeks and themaximum period 44 weeks.For income maintenance purposes, the salary will be fixed in dollar terms (apart from standardEmployment Agreement increases). It will include any regular shift penalties received (on average) overthe 12 months preceding the date of redeployment.The amount of income maintenance will be reduced by the amount of any increase payable through theperformance management system.11.4.6 SubstitutionThere will be some occasions where another employee may be substituted for the employee originallyselected for redundancy, but this is at the discretion of the ABC. The ABC may at its discretion canvassinterest for voluntary retrenchment from other employees.In assessing the viability of substitution, the ABC will consider the relative competency, experience andefficiency of the employees in question. The final decision in relation to substitution will rest with the ABC.Where the ABC agrees to a substitution, the substitute employee will, as soon as practicable, be givenformal notification of retrenchment, and the original employee will be redeployed.
  29. 29. 11.4.7 PaymentsAn employee who is retrenched will receive:• notice or payment in lieu of notice;• a severance payment;• any unpaid long service leave and pro rata long service leave;• any unpaid annual leave and annual leave bonus; and• a payment in lieu of the unworked portion of the redeployment and retraining period where the employee (other than a substitute employee) leaves before the expiration of the six-week period.The amount of notice or payment in lieu of notice for a redundancy is generally greater than for otherforms of termination of employment. The notice (or payment in lieu) for redundancy is set out below:If an employee chooses to explore redeployment and retraining opportunities but no suitable alternativeemployment is found, they will be notified in writing they are to be retrenched. In those circumstances, theemployee can only be paid in lieu of notice if they agree.The severance payment is equal to four weeks salary for every completed year of service for the first fiveyears and three weeks salary for every completed year of service thereafter to a maximum of 24 yearsservice. Pro rata calculation to the nearest completed month of service applies after the first year.Unless otherwise agreed, ‘service’ means continuous service with the ABC (provided that any breakbetween periods of employment is not greater than two months). However, there will also be somecircumstances where previous service with the Commonwealth Public Service or the Australian DefenceForce may be counted, but several conditions apply.For calculating the above payments, ‘salary’ includes:• the employee’s base salary;• higher duties allowance (if the employee has been acting in a higher role for a continuous period of at least 12 months immediately before the date they were formally notified of retrenchment);• regular shift penalties paid (on average) over the 12 months immediately preceding the date of formal notification, provided the employee has been paid penalties for at least half the pay periods over that period; and• other allowances in the nature of salary which are paid during periods of annual leave, excluding allowances which are reimbursement for expenses incurred, or payment for disabilities associated with the performance of duty.If one of your staff is, or may become, retrenched and they want to find out what their notice, severanceand other payments would be, refer them to the relevant State P&L team, who can provide this
  30. 30. information.11.4.8 Re-engagementAn employee who is paid a retrenchment benefit will not be re-engaged by the ABC within 12 months oftheir retrenchment without the approval of the Managing Director.

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