The printable version above is the official version of the OAIC Enterprise Agreement 2016-2019 as approved by the Fair Work Commission on 5 May 2016. The HTML version below has had several minor typographical errors corrected. It is substantively the same as the official version; however for any legal purpose the printable version should be used.
Note: From 13 May 2019 a determination made under section 24(1) of the Public Service Act 1999 applies in addition to the OAIC Enterprise Agreement 2016-2019 (which continues in place until superceeded by another enterprise agreement). The Public Service (Office of the Australian Information Commissioner Non-SES Employees) Determination 2019 provides for salary increases of 2% each year, on 13 May 2019, 13 May 2020 and 13 May 2021 and a one off increase in allowances under clause 53.1 of the Enterpise Agreement to $33.70 per fortnight (a 6% increase).
‘Action’ includes a refusal or failure to act.
‘APS’ means the Australian Public Service.
‘Casual employee’ means an employee engaged on an irregular or intermittent basis.
‘Delegate’ means the Australian Information Commissioner or someone delegated with relevant powers and functions of the Australian Information Commissioner.
‘Director’ means an employee at the EL2 classification.
‘Employee’ means a person employed full-time or part-time by the OAIC under and within the meaning of the Public Service Act 1999.
‘Fair Work Act’ means the Fair Work Act 2009.
‘Family’ means the member of an employee’s family or a significant other person that the Delegate agrees, on reasonable grounds, has a strong affinity with the employee including immediate family as defined under s 12 of the Fair Work Act.
‘Maternity Leave’ is a period of absence of up to 52 weeks in accordance with the Maternity Leave (Commonwealth Employees) Act 1973.
‘Registered Health Practitioner’ means a medical service provider or alternative health provider, licensed or registered, and recognised by a private health fund or by Comcare.
‘Medical certificate’ means a certificate provided by a Registered Health Practitioner as defined above.
‘NES’ means the National Employment Standards which are contained in the Fair Work Act.
‘OAIC’ means the Office of the Australian Information Commissioner.
‘Salary’ is the employee’s rate of salary/pay (in accordance with the salary/pay rates at Appendix B) and will be salary for all purposes. Specifically, where salary sacrifice arrangements and purchased leave options or other relevant arrangements are in place, the employee’s salary for purposes of superannuation, severance and termination payments will be determined as if the salary sacrifice or other arrangement had not been entered into.
‘SES’ means Senior Executive Service.
‘Supervisor’ means the employee responsible for a section or team within the OAIC.
9. Procedures for dealing with disputes
9.1 If a dispute relates to:
- a matter arising under the Agreement, or
- the National Employment Standards
this term sets out the procedures to settle the dispute.
9.2 An employee who is party to the dispute may appoint a representative for the purposes of the procedures in this term.
9.3 In the first instance the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
9.4 If discussions at the workplace level do not resolve the dispute, a party may refer the matter to Fair Work Commission.
9.5 The Fair Work Commission may deal with the dispute in two stages:
- the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
- if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
- arbitrate the dispute; and
- make a determination that is binding on the parties.
Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Division 3 of Part 5.1 of the Fair Work Act. Therefore, an appeal may be made against the decision.
9.6 While the parties are trying to resolve the dispute using the procedures in this term:
- an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
- an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
- the work is not safe
- applicable occupational health and safety legislation would not permit the work to be performed
- the work is not appropriate for the employee to perform, or
- there are other reasonable grounds for the employee to refuse to comply with the direction.
9.7 The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this term.
10.1 The Australian Information Commissioner may delegate any or all of his or her powers and functions under this Agreement, including the power of delegation and may do so subject to conditions but no such delegation shall prevent the personal exercise by the Australian Information Commissioner of a power or function so delegated.
Part 2—Statement of business principles
11.1 This Agreement is to assist the OAIC in achieving its purpose, vision, and strategic goals, as reflected in the OAIC’s Strategic Plan from time to time.
11.2 The OAIC will facilitate a cooperative and consultative workplace through the consultation arrangements at Appendix A.
11.3 The role of workplace representatives, including union delegates and employee representatives, will be respected and facilitated, in accordance with the Fair Work Act.
11.4 This Agreement recognises the challenges and opportunities the OAIC and its staff have in further developing an independent statutory agency that delivers valued services to Parliament, government agencies, private entities, interest groups and the public while also offering a welcoming and flexible workplace in which staff have the opportunity to develop their skills and expertise.
12. Code of Conduct and APS Values
12.1 The OAIC is committed to delivering high quality professional public service. In implementing this Agreement, the OAIC will act ethically and lawfully as an employer. In implementing this Agreement and in undertaking his or her duties, an employee shall comply with the Australian Public Service Valuesand Code of Conduct and shall not behave in a way contrary to the interest of the OAIC.
12.2 In addition to the APS Code of Conduct, OAIC employees must comply with OAIC policies and guidelines and use the resources, equipment and facilities of the OAIC in a proper and lawful manner, recognising the particular nature of the OAIC’s role and functions.
12.3 Breaches of the Code of Conduct:
Matters concerning possible breaches of the Code of Conduct as specified at 12.1 and 12.2 above, will be dealt with in accordance with relevant provisions of the Public Service Act 1999, Public Service Commissioner’s Directions and the Public Service Regulations 1999 and principles governing the application of natural justice.
Further information can be found in the OAIC’s Breaches of the APS Code of Conduct Procedures.
Non-ongoing employees and employees on probation are excluded from the provisions of Clause 12.3 as this is dealt with under the terms of their engagement.
Further information is available in the OAIC’s Probation Guidelines.
13. Anti-discrimination and workplace diversity
13.1 The OAIC is an organisation which values fairness, equity and diversity. Consistent with that aim, the OAIC is committed to preventing and eliminating discrimination on the basis of race, colour, gender, sexual orientation or practices, age, disability, marital status, family responsibilities, pregnancy, religion, political opinion, irrelevant criminal record, national extraction, membership or non-membership of a trade union or social origin.
13.2 The OAIC will develop and implement a Diversity Strategy which recognises and values the diverse skills, cultural values and backgrounds of its employees and will incorporate actions previously detailed in its Reconciliation Action Plan, Disability Action Plan, Multicultural Action Plan/Multicultural Access and Equity Policy and Workplace Diversity Program.
13.3 The OAIC recognises the need for a supportive and flexible workplace to enable employees to combine work and family responsibilities. The Agreement contains clauses that support and promote flexible, family friendly practices and includes access to part time work, home-based work, parental leave and personal/carers leave which assist employees to balance their family and work responsibilities.
14. Workplace communication
14.1 The OAIC will consider, assess and respond to employee requests for changes to work arrangements in a transparent, prompt and reasonable manner, generally within 21 days of receiving a written request. If a decision cannot be made within 21 days, the employee will be advised of the reason for the delay and when a decision can be expected.
14.2 If the request is refused, the reason for the refusal will be provided in writing.
Part 3—Employment conditions
Part 3A: Performance management and learning and development
15. Talking about performance management framework
15.1 The purpose of the OAIC’s Talking About Performance Framework is to strengthen and support the OAIC in performing its functions by providing regular and formal assessment of employees’ work performance and to provide employees with skill development and career advancement opportunities.
Further information can be found in the OAIC’s Talking About Performance Framework.
15.2 Annual assessment of an employee’s performance will be the basis of salary progression within the pay points assigned to their classification and may also be taken into account:
- when considering an employee for temporary reassignment of duties or promotion
- as a basis to commence proceedings in relation to the unsatisfactory performance of duties or misconduct.
15.3 Employees and supervisors will develop a performance agreement and employees will have their work performance assessed and rated, generally by their immediate supervisors. Employees will be eligible to advance by one salary point in the relevant classification pay range subject to meeting a performance standard rating of ‘Strong and effective contribution’ or ’ Sustained high level of contribution’.
15.4 Employees rated ‘Unsatisfactory contribution’ will not be eligible for salary progression and may be subject to proceedings noted at Clause 17 on ‘Managing Underperformance’.
15.5 The OAIC is committed to providing regular feedback on performance to staff and recognises that the Talking about performance framework is one avenue for this.
15.6 Employees who are not satisfied with the supervisor’s assessment may request a review by following the OAIC’s procedures in respect to review of employment decisions contained in Clause 52.
16. Learning and development
16.1 The OAIC is committed to providing opportunities for employees to gain and maintain the skills needed to do their jobs and assisting employees to achieve their full potential by supporting learning and development opportunities. The OAIC recognises the importance of supporting the development of our employees to achieve the best possible outcomes for our clients.
Further information can be found in the OAIC’s Talking About Performance Framework and Learning and Development Plan.
16.2 Learning and development activities will:
- have a clear connection with the work of the OAIC
- have a direct link to individuals’ work responsibilities
- assist ongoing career development.
16.3 The parties to this Agreement are committed to adequate training support to accompany changes, innovations or improvements to work arrangements.
16.4 Performance agreements play a vital role in identifying learning and development needs for employees on an individual, work unit and agency basis.
16.5 Reimbursement of reasonable expenses when attending learning and development activities:
The OAIC will, subject to prior approval of such arrangements by the delegate including the cost, reimburse reasonable additional expenses arising from additional care arrangements when the employee is required to attend a particular learning and development activity outside normal hours of work or away from his or her normal work location.
16.6 Studies assistance:
The OAIC has a commitment to support employees undertaking formal studies that are relevant both to the OAIC and the employee’s personal career development..
All ongoing employees not on probation and non-ongoing employees with more than 6 months service may apply for approval as a student. Approval as a student is not an automatic entitlement but may be granted subject to operational requirements of the OAIC and equity with other employees of the OAIC.
An employee’s proposed course of study as a student must be approved by the delegate for the employee to have any access to any form of studies assistance
- Study leave
The Australian Information Commissioner or his delegate may grant paid study leave or study leave without pay to approved students.
- Financial studies assistance
Approved students may apply for financial assistance up to $500 per semester per completed subject payable on the successful completion of the subject.
- Advice of approval
Employees will be advised in writing of approval of their proposed course of study, study leave and/or financial assistance. Where a request is refused the employee may seek a review of the decision under Clause 52 of this Agreement.
Further information can be found in the OAIC’s Studies Assistance Guidelines.
17. Managing underperformance
17.1 The procedures for managing underperformance only apply to ongoing employees who are not on probation. They do not apply to non-ongoing employees. They do not apply in cases of suspected breaches of the Code of Conduct or where there is a health-related reason for unsatisfactory performance or where an essential qualification has been lost.
17.2 Where an employee’s performance consistently falls below an acceptable level it may be necessary to implement the procedures for managing poor performance.
17.3 A structured performance assessment plan must be developed. The performance assessment plan will be implemented over a period of time determined by the delegate not exceeding 2 months unless there are exceptional circumstances.
17.4 The assessment process must have regard for the principles of procedural fairness, and natural justice and consider issues of privacy.
17.5 Where the delegate determines, on the basis of the assessment, that the employee’s performance remains unsatisfactory; he or she will commence action to:
- assign the employee to other duties
- reduce the employee’s classification
- terminate the employee
- take some other form of appropriate action.
Part 3B: Classification, pay rates and remuneration arrangements
18. Increases in rates of pay
18.1 Salary increases as follows:
- 3% on the first full pay period following commencement
- 2% on the first full pay period following the end of the 12th month after commencement, and
- 1% on the first full pay period following the end of the 24th month after commencement.
19. Classification structure and remuneration
19.1 The range of duties assigned to each position and the employees engaged to perform them, shall be allocated an approved APS classification within the classification structure included at Appendix B. Further information on work level standards that apply to each classification can be found in the APS’s Work Level Standards guidance.
19.2 Where an employee commences employment with the OAIC, or is moved or promoted to a position in the OAIC, salary will be payable at the minimum salary point applicable to the employee’s position classification unless the Australian Information Commissioner or delegate authorises payment above the minimum point in that salary range having regard to skills, qualifications, experience, market considerations and equity with other employees. The Australian Information Commissioner or delegate may authorise payment above the maximum point of the salary range, where immediately prior to commencing with the OAIC, the employee was in receipt of salary above the maximum point in the current salary range whether or not the previous employment was within the APS.
19.3 Incorrect salary point:
Where, at the time of engagement, an employee’s salary is set at an incorrect salary point within the applicable salary scale the Australian Information Commissioner or delegate may authorise in writing the payment of the correct salary point.
Where an employee requests in writing to perform work at a lower work value level, the OAIC may determine in writing that the employee shall be paid a rate of salary applicable to the lower work value position classification.
19.5 Irregular or intermittent employees:
Non-ongoing employees who are employed on an irregular or intermittent basis will be paid an additional loading of 20% of salary in lieu of paid leave and public holidays not worked. Irregular and intermittent employees are entitled to long service leave under the Long Service Leave (Commonwealth Employees) Act 1976.
20. Payment of salary and flexible remuneration packaging
20.1 An employee shall be paid fortnightly in arrears and by electronic funds transfer into a financial institution account of his or her choice.
In the event of an overpayment of salary or allowances monies will be recovered from future pays in accordance with the OAIC Chief Executive Instructions.
20.2 The fortnightly pay shall be based upon the following formula:
fortnightly pay = remuneration × 12 ÷ 313
20.3 A remuneration packaging scheme is available to employees:
- An employee may opt to receive a mix of cash and specified non-cash items up to the total value of his or her current salary.
- The remuneration packaging scheme shall be undertaken by a bureau service on behalf of the OAIC and participating employees.
- The total cost of an employee’s participation in the scheme, including the cost of cash, non-cash items, taxation and administration/bureau fees, shall be met by the participating employee.
- The implementation and operation of the remuneration packaging scheme shall be cost neutral for the OAIC.
- The salary which would have been used for superannuation purposes and severance and termination payments but for the employee electing the option of remuneration packaging is the salary to be used to determine salary for superannuation purposes and severance and termination payments.
21. Remuneration for higher duties
21.1 The filling of short term vacancies by higher duties will only occur where essential to the operational requirements of the OAIC.
21.2 An employee will only be assigned duties at a higher classification level where the period exceeds 15 days or in the case of operational type positions such lesser period as determined by the OAIC.
21.3 Where an employee is assigned duties at higher classification level in excess of 15 days, payment will commence from the beginning of the higher duties period. The parties agree that employees should not be rotated through positions in order to avoid payment of higher duties.
21.4 An employee who is required to undertake duties at a higher classification will not be required to do so without higher remuneration.
21.5 Where an employee is temporarily assigned duties at a higher classification, remuneration will be paid at the minimum rate applicable to the higher classification, unless otherwise determined to be at a higher rate by the Australian Information Commissioner or delegate.
21.6 Where an employee is temporarily assigned duties and the full range of duties is not performed, the Australian Information Commissioner or delegate may determine the remuneration to be paid to the employee.
21.7 An employee temporarily assigned duties at a higher classification level shall be entitled to receive the rate applicable for the higher position during a period of paid leave or public holiday provided that the employee would have received the rate applicable for the higher position if he or she had not been absent from the workplace for the period of the paid leave or the public holiday.
21.8 An employee who has been temporarily assigned duties at a higher level and has been assessed in accordance with Clause 15, to receive a salary increase within the higher classification level may retain that salary point on promotion. The Australian Information Commissioner or delegate will take into account the length of the period of higher duties and how recently the higher duties were performed.
21.9 Where non-Senior Executive Service employees are required to temporarily perform work in Senior Executive Service jobs for more than one week, they will be paid additional salary. The amount of additional salary will be determined by the Australian Information Commissioner or delegate.
22. Payment of overtime
22.1 An employee who is directed by the Australian Information Commissioner or delegate to work outside of standard hours shall be working overtime and shall be entitled to be paid or to receive time off in lieu in accordance with this Clause. This should not result in the employee working hours which are unreasonable or are a risk to employee health and safety.
Further information can be found in the OAIC’s Policy on Attendance, Flextime, Overtime and TOIL.
22.2 The hourly rate for overtime payment will be ascertained by applying the following formulae:
Time and a half rate:
(annual salary ÷ 313) × (6 ÷ 37.5) × 1.5
Double time rate:
(annual salary ÷ 313) × (6 ÷ 37.5) × 2
Double time and a half rate:
(annual salary ÷ 313) × (6 ÷ 37.5) × 2.5
22.3 For the purpose of calculating the formula at 22.2 prescribed weekly hours before overtime is payable will be 37 ½.
22.4 Executive Level employees:
Except with the approval of the Australian Information Commissioner or delegate, an Executive Level 1 or Executive Level 2 employee shall not be subject to the provisions of Clause 22. Where the Australian Information Commissioner or delegate has approved payment to employees at the Executive Level 1 or 2, payment shall be made at the maximum rate applicable to an APS Level 6. Payment of overtime will only be approved for Executive Level employees in exceptional circumstances.
Where the Australian Information Commissioner or delegate and an employee agree, time-off-in-lieu of payment for overtime may be taken, with the time off accrued at the overtime multiplier, within 4 weeks or such other agreed period from the time of working the overtime. Where the time off is not taken within 4 weeks or such other agreed period then payment for the overtime shall be made.
22.6 Monday to Saturday:
Overtime worked Monday to Saturday will be paid at time and a half for the first 3 hours each day and double time thereafter.
Overtime worked on a Sunday will be paid at the rate of double time.
22.8 Public holiday:
Overtime on a Public Holiday will be paid at time and a half during standard hours and double time and a half outside of standard hours (as defined in Clause 27.3).
22.9 Eight hour break:
An employee who works so much overtime that the employee has not had at least 8 consecutive hours off duty plus reasonable travelling time:
- between the termination of the employee’s ordinary duty on any day or shift, and the commencement of the employee’s ordinary work on the next day or shift, or
- on a Saturday, Sunday or a public holiday, not being an ordinary working day, or on a rostered day off, in the 24 hours preceding the employee’s ordinary commencing time on the employee’s next ordinary day or shift
will be granted time off under sub-Clause 22.10.
22.10 An employee who is compelled to work so much overtime that the employee meets the conditions of sub-Clause 22.9 will:
- be allowed to leave work after such overtime for a period of 8 consecutive hours off duty, plus reasonable travelling time, and will suffer no loss of pay for ordinary working time occurring during the employee’s absence
- provided that if an employee is required to resume or continue work on the specific written instruction of the Australian Information Commissioner or delegate, without having had 8 consecutive hours off duty plus reasonable travelling time the employee will be paid at double ordinary time rates (for time worked) until the employee has had 8 consecutive hours off duty plus reasonable travelling time; and
- the employee is to suffer no loss of pay for ordinary working time occurring during the employee’s absence.
22.11 Overtime not continuous with ordinary duty:
Subject to this clause, where an employee is required to perform overtime duty and such duty is not continuous with ordinary duty, the minimum overtime payment for each separate overtime attendance will be 4 hours at the prescribed overtime rate.
22.12 Where more than one attendance is involved, the minimum overtime payment provision will, subject to the prescribed minimum payment, not operate to increase an employee’s overtime remuneration beyond that to which the employee would have been entitled had the employee remained on duty from the commencing time of duty on one attendance to the ceasing time of duty on a subsequent attendance.
22.13 For the purposes of determining whether an overtime attendance is or is not continuous with ordinary duty, or is or is not separate from other duty, meal periods will be disregarded.
22.14 Where an overtime attendance, not continuous with ordinary duty, involves duty both before and after midnight, the minimum payment provisions of this sub-clause will be satisfied when the total payment for the whole of the attendance equals or exceeds the minimum payment applicable to one day. Where a higher overtime rate applies on one of the days, the minimum payment will be calculated at the higher rate.
22.15 Meal allowance:
Where an employee is required to work overtime for periods in excess of 3 hours a meal allowance shall be paid in accordance with the Australian Taxation Office (ATO) Reasonable Allowance Rates. This will be varied in line with the ATO’s annual Ruling in June of each year. Payment will be made through the payroll system. An additional amount may be paid for overtime worked in excess of 10 hours. In exceptional circumstances, the delegate may consider a further payment.
22.16 Reimburse reasonable expenses:
Where an employee agrees or is directed to work overtime the Australian Information Commissioner or delegate will, subject to prior approval of such arrangements including the cost, reimburse reasonable additional expenses arising from any additional care arrangements due to the requirement to work overtime.
23.1 The OAIC will make superannuation contributions in accordance with its obligations under relevant legislation.
23.2 Where an employee has chosen an accumulations superannuation fund other than the PSS Accumulation Plan (PSSap), the employer contribution will be the same percentage of the fortnightly superannuation contribution salary as that required for employees who are members of PSSap. This will not be reduced by any other contributions made through salary sacrifice arrangements. This clause does not apply where a superannuation fund cannot accept employer superannuation contributions (e.g. unable to accept contributions for people aged over 75).
Note: At the time of commencement of this Agreement the rate of PSSap employer contribution is 15.4 %.
23.3 Employer superannuation contributions will not be paid on behalf of employees during periods of unpaid leave that does not count as service, unless otherwise prescribed by legislation.
24. (Not used)
Part 3C: Flexible work arrangements
25. Work/life balance
25.1 The OAIC acknowledges that employees have to balance their working life with other commitments, including family and the community. This is recognised through the provision of a range of flexible attendance arrangements, leave provisions and assistance programs. When applying flexible attendance arrangements and other employment conditions, the OAIC and its employees will consider the operational needs of the OAIC and any effect on other employees to ensure equitable outcomes.
26. Part-time requests
26.1 Under the Fair Work Act (FWA) eligible employees have the right to request flexible working arrangements. The OAIC is committed to providing equitable outcomes for all eligible employees under the FWA and any part-time requests have to be balanced with the operational needs of the OAIC and those of other employees in the work area. Employees agree to be flexible in implementing part-time requests.
26.2 The OAIC may support part-time requests from eligible employees under the FWA for a range of different circumstances, including but not limited to:
- return from maternity/parental leave and additional leave under Clauses 36.1, 37 and 38.1 of this Agreement
- pre-retirement transition
- short-term requests such as personal illness, carer needs and study.
26.3 A job sharing request may be supported where it fits within operational requirements.
26.4 Proposals for part-time work may be initiated by supervisors.
26.5 A part-time employee shall accrue all entitlements under this Agreement, other than entitlements to reimbursement, on a pro rata basis.
26.6 Where a request is not agreed to, the employee has the right to seek a review of the decision. The OAIC will consider other alternatives where possible, and outline reasons where a request is not supported.
Further information can be found in the OAIC’s Part-time Work Policy.
27. Hours of work
27.1 The delegate will determine all matters relating to hours of duty in accordance with the provisions of this clause to ensure that they are consistent with client access, security and operational requirements of the OAIC.
27.2 The OAIC recognises the need for employees to balance their working life commitments with other competing interests, including family and carer responsibilities and does not expect employees to work unreasonable additional hours. It is recognised that some employees will need to work extra hours from time to time in order to meet deadlines and deal with unexpected contingencies. It is expected that supervisors and employees will implement effective work plans to minimise the need to work additional hours, wherever possible.
27.3 Standard hours and bandwidth:
- Standard hours of work shall be 150 hours in each 4-week settlement period.
- Standard hours shall be worked within the bandwidth of 7.30 am to 7.00 pm Monday to Friday.
- A standard day is 8.30 am to 5.00 pm with an hour for lunch between 12.30 pm and 1.30 pm.
27.4 Notwithstanding sub-Clause 27.3(ii), standard hours may be worked outside of the bandwidth where an employee and the Australian Information Commissioner or delegate so agree and where operational and security requirements permit. Agreements under this clause should be reviewed on a regular basis to ensure the approved arrangements are operating effectively. In these circumstances employees will not be entitled to overtime payments for agreed work outside the bandwidth hours.
27.5 Core hours:
Core hours will be 10.00 am to 12.00 midday and 2.00 pm to 4.00 pm unless varied by agreement by an employee and their supervisor. Supervisors will genuinely consider an employee’s personal circumstances when considering any request consistent with Clause 13.3. Employees shall ordinarily be present at work during core hours.
27.6 Unpaid meal breaks:
An employee must not work for longer than 5 hours without an unpaid break for a meal of a minimum of 30 minutes and no longer than 2 hours.
27.7 Start and finish times:
Starting and finishing times within the bandwidth are to be determined by the Australian Information Commissioner or delegate, after consultation with employee/s. To optimise effective client service, supervisors may require employees (including part-time employees, where this is consistent with their ordinary hours) to attend at specific times during general business hours of 8.30 am to 5.00 pm. It is understood that these arrangements should provide employees flexibility to balance work and personal obligations subject to operational requirements of the OAIC, the need for appropriate supervisory arrangements to be in place and occupational health and safety principles.
27.8 Use of taxis after hours:
Where an employee is directed to work after 7.30 pm, the OAIC will provide Cabcharge for the journey home of that employee, subject to prior approval by the relevant supervisor or Director.
Employees classified as APS 1–6 shall have access to flexleave provisions. Flextime credits accrue only for time worked within the bandwidth or where there is an agreement to work outside the bandwidth. In accessing flexleave:
- An employee may not have an accrual in excess of one standard week (or equivalent pro rata for employees working part time) flexleave at the conclusion of any settlement period. Excess flex leave should be utilised in the period that it accrues. Any excess will be reduced automatically to one standard week at the end of the settlement period unless approval is given by the supervisor to carry excessive flex credits forward. This will only occur in exceptional circumstances, eg, periods of high workload. This additional carryover should be used within the next settlement period. The purpose of flex leave is to provide flexibility in work patterns over a regular period and not to build up excessive credits to be used in conjunction with annual leave. An employee may not have a debit of flexleave in excess of 10 hours at the conclusion of any settlement period.
- Periods of absence shall be taken at such times and in such periods as are agreed between the employee and the Australian Information Commissioner or delegate.
- Supervisors must ensure that they manage the hours their team members work so that excessive flextime credits are not accrued without the opportunity for employees to access their flextime leave. If a supervisor identifies that an employee is working excessive hours, they will review employees’ work arrangements in the relevant area to establish whether alternative arrangements are available (eg overtime).
- On termination of employment:
- outstanding flex credits should be acquitted, where possible, as no payment for accumulated flex will be made
- flex debit balances should be processed as leave without pay in accordance with the OAIC Chief Executive Instructions.
27.10 Where an employee fails to comply with the provisions of flextime, a supervisor may recommend to the delegate that the employee be removed from the flextime scheme for a specified period. The employee would revert to working standard hours for the specified period.
Further information can be found in the OAIC’s Guidelines on Attendance, Flextime, Overtime and TOIL.
27.11 Executive Level employees
- Remuneration for Executive Level employees incorporates a component to compensate for the extra demands which may be placed on such employees, including working beyond standard hours.
- Executive Level employees have the flexibility to responsibly manage their own workloads to meet operational needs in consultation with their supervisors. Strategies to reduce the need to work unreasonable additional hours include reviewing workloads, priorities and work practices.
- At times, Executive Level employees may be required to work extended hours during peak workload periods during the week and weekends, but this should not be for lengthy periods. Where it is foreseen that there will be an increase in workload the employee’s supervisor is to raise with the Director/Assistant Commissioner as early as possible to address any issues including work priorities and appropriate time off in lieu (TOIL).
- It is expected that any TOIL arrangements will be discussed and considered at the time of the increased workload. Evidence of hours worked may be required. Executive Level employees will be able to access agreed TOIL as soon as possible, subject to operational requirements. Where agreement cannot be reached between an employee and their Director, the matter may be referred to the delegate to resolve.
- TOIL will not be on an hour for hour basis.
Further information can be found in the OAIC’s Guidelines on Attendance, Flextime, Overtime and TOIL.
27.12 Absences without approval:
Where an employee is absent from duty without approval, all pay and other benefits provided under this Agreement, eg flextime, will cease to be available until the employee resumes duty or is granted leave. Where flextime no longer applies, employees will revert to standard hours (as defined in this clause).
28. Home-based work and remote access
28.1 Where consistent with client service and other operational requirements, an employee may request the OAIC to approve home-based work on either an ongoing or temporary basis.
28.2 Any ongoing or temporary arrangement may be terminated by the Australian Information Commissioner or delegate for cause (eg ineffectiveness of the arrangement, or failure of the employee to comply with requirements). Where the Australian Information Commissioner or delegate has decided to terminate an arrangement, the employee concerned shall be given reasonable notice of the termination.
Further information can be found in the OAIC’s Telework Policy.
29. (not used)
Part 3D: Leave provisions and public holidays
30. Annual leave
To provide an equitable work/life balance, the OAIC recognises that it is important for both the employee and the organisation for employees to access annual leave on a regular basis. Employees are encouraged to take their annual leave credits in the year when the credits accrue and are expected to take at least 2 weeks (or 50%) of those annual leave credits in the year when the credits accrue.
A full-time employee shall accrue 20 days paid annual leave per completed year of service. Annual leave will accrue progressively and may be accessed as it accrues.
- Re-credit: An employee who would have been able to access personal/carer’s leave, compassionate leave, community service leave or any other type of leave where the NES provides that they not be taken to be on annual leave will be re-credited their annual leave for the period the other leave is granted. The provisions for the other leave to be granted as set out in this agreement apply.
30.3 Annual leave shall be taken at such a time or times and in such a period or periods as may be agreed between the employee and the employee’s supervisor. Annual Leave will not be prepaid.
30.4 Excess leave credit
- To assist staff to appropriately utilise their annual leave to maintain an appropriate work-life balance and to assist the OAIC to better manage its accrued annual leave liability employees and the OAIC agree that generally an annual leave credit of more than 6 weeks is excessive.
- Therefore if the annual leave credit an employee is likely to accumulate by 30 June in any given year is over 6 weeks (inclusive of accrued and pro rata entitlements) (or a pro-rated period for non full-time employees) notice will be provided by the OAIC to the employee in the preceding December and March and a request made to the employee to reduce the leave credit to no more than 6 weeks (or a pro-rated period for non full-time employees) by taking annual leave by 30 June
- Where an employee has more than 6 weeks accrued annual leave credit (or a pro-rated period for non full-time employees) the Australian Information Commissioner or delegate may direct an employee to take annual leave within a reasonable period to reduce their accumulated annual leave credit to 6 weeks (or a pro-rated period for non full-time employees). The reasonable period would not usually be longer than 6 months but in exceptional circumstances may be a longer period.
30.5 Cash out of annual leave:
- An employee who has accessed at least 3 weeks annual leave in any 12 month period and has an accrual of at least 5 weeks annual leave may be paid out 1 week of annual leave in lieu of absence from the workplace , subject to subclause (iii) below.
- The delegate may approve further cash out of annual leave if circumstances warrant approval and where the employee has accessed a reasonable amount of annual leave over the previous 12 months, subject to subclause (iii) below.
- Each agreement to cash out a particular amount of paid annual leave must be in writing. Employees cashing out annual leave are required to maintain a balance of at least 4 weeks and the OAIC must pay the employee at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone in accordance with the requirements of s 93 of the Fair Work Act.
31. Purchased leave scheme
31.1 An employee may, with the approval of the Australian Information Commissioner or delegate, purchase from one to four additional weeks of annual leave.
31.2 The leave shall be purchased for the amount the employee would have received for the period of leave purchased, if he or she had taken ordinary annual leave for that period, as estimated at the time of applying for participation in the purchased leave scheme.
31.3 The purchase price of the leave shall be deducted from the fortnightly pay of the purchasing employee in equal instalments over the stipulated period prior to the leave being taken:
- 4 weeks purchased leave 26 pay periods
- 3 weeks purchased leave 20 pay periods
- 2 weeks purchased leave 13 pay periods
- 1 week purchased leave 7 pay periods
31.4 All such leave purchased shall be taken within a 12 month period from the commencing date of accrual or shall be forfeited and the purchase price of the leave refunded.
31.5 Purchased leave shall be taken in accordance with the rules applying to annual leave at Clause 30.
31.6 Approval for entry into the purchased leave scheme is subject to the operational requirements of the OAIC.
31.7 Purchased leave shall count as service for all purposes.
31.8 Entry into the purchased leave scheme shall not affect the superannuation obligations of the OAIC and/or the employee involved.
32. Career break scheme
32.1 Employees will be eligible to apply for a 3 month unpaid career break scheme after they have been employed for 5 years and for a further 3 months unpaid for each subsequent 5 year period. The 3 month period is in calendar days and will be non-cumulative. All approvals will be subject to operational requirements and the negotiation of a mutually agreeable period of absence. Where it is of direct benefit to the work of the OAIC and the career development of the employee it will count as service.
33. Retirement transition
33.1 Employees who have stated an intention to retire from the workforce within 2 years are able to participate in a retirement transition arrangement. Financial assistance of up to $500 will be provided for access to retirement seminars and/or superannuation and financial advice. Transition arrangements may vary between individuals as both individual and operational needs are considered, but may include access to part-time work (refer Clause 26.1 for part-time provisions) and/or changes in work level or responsibilities by agreement.
Further information can be found in the OAIC’s Part-time Work Policy.
34. Personal/carer’s leave
34.1 Personal/carer’s leave may be taken only in the event of personal illness or injury or an unexpected emergency affecting the employee or the illness or injury of, or an unexpected emergency affecting, a member of the employee’s family or household. However, leave will not be granted for the purpose of an employee’s unexpected emergency where it would result in the employee having less than 10 days’ personal/carer’s Leave credits per year available for use for personal injury or illness or caring purposes as provided under the Fair Work Act. The OAIC recognises that caring arrangements may include supporting ill family members interstate or in hospital and caring for a family member where a primary carer is unable to do so.
- Ongoing employees: An employee shall be entitled to 16 days paid personal/carer’s leave upon engagement and shall accumulate a further 16 days paid personal/carer’s leave per completed year of service.
- Non-ongoing employees: A non-ongoing employee shall be entitled to 16 days personal/carer’s leave per annum, which accrues progressively. A non-ongoing employee whose employment extends beyond 9 months will be entitled to the full 16 days personal leave. Leave will accrue on a pro rata basis and will not exceed the entitlement that would have occurred if the employee were an ongoing employee.
- If a non-ongoing employee is then engaged on an ongoing basis, they shall be credited with a full entitlement to personal/carers leave as if they had accrued from the date of their commencement in the OAIC.
- An employee in receipt of compensation for more than 45 weeks will accrue personal/carer’s leave on the basis of the hours actually worked.
- An employee will not be entitled to paid personal/carer’s leave while also entitled to paid leave under the Maternity Leave (Commonwealth Employees) Act 1973.
34.3 Reasonable evidence:
Reasonable evidence, such as a medical certificate, is to accompany any application for leave of 3 consecutive days or more.
- Where 16 days of personal/carer’s leave have been granted in any accrual year, any subsequent applications for personal/carer’s leave shall be accompanied by reasonable evidence, such as a medical certificate.
- The Australian Information Commissioner or delegate may request an employee to provide reasonable evidence, such as a medical certificate, when any future absence on personal/carer’s leave occurs.
An employee absent from the workplace on account of illness or caring responsibilities shall inform his or her immediate supervisor before the normal commencing time of work or as soon as practicable, by a previously agreed method.
An employee may access personal/carer’s leave on half-pay where personal circumstances require. Where half pay personal/carers leave is taken, each day taken equates to half a day personal/carer’s leave credit
An employee will not, without the employee’s consent, be retired on invalidity grounds before the employee’s paid personal/carer’s leave credit has expired except as required by legislation.
35. Compassionate and bereavement leave
35.1 Employees are entitled to take two days paid leave, on each permissible occasion, for the purposes of spending time with a member of the employee’s family or household who has a personal illness or injury that is life threatening or upon the death of a member of an employee’s family or household in accordance with s 105 of the NES.
35.2 An additional day may be granted to an employee upon the death of a member of an employee’s family or household.
35.3 Casual employees are entitled to 2 days unpaid compassionate leave per occasion.
35.4 The Australian Information Commissioner or delegate may approve one day per occasion for the purpose of attending the funeral of a person with a relationship to the employee other than of a member of an employee’s family or household.
35.5 An employee may be required to provide reasonable evidence to support each application for compassionate or bereavement leave.
36. Maternity leave
36.1 Employees covered by this Agreement are entitled to the provisions set down in the Maternity Leave Act (Commonwealth Employees) 1973 (Maternity Leave Act) if they are eligible under that Act.
36.2 Access to paid maternity leave is subject to a qualifying period of 12 months continuous employment as specified in the Maternity Leave Act.
36.3 Under the Maternity Leave Act eligible employees may access up to 12 weeks paid leave, inclusive of public holidays. An employee who is on a period of paid or unpaid maternity leave under the Maternity Leave Act will also have access to a further 4 weeks paid leave to be taken in conjunction with maternity leave. In total, 16 weeks paid leave may be accessed for maternity leave purposes.
36.4 Under the Maternity Leave Act eligible employees may access a period of up to 52 weeks, including approved paid and unpaid leave. An employee may request in writing to return to work during this period on a date earlier than previously approved. The granting of such a request will be at the discretion of the delegate in accordance with s 7A of the Maternity Leave Act. Employees resuming duty full time following their period of maternity leave will return to the position they held prior to their maternity leave or, if the position no longer exists, a position that is nearest in status and remuneration. Any request to resume work on part-time basis will be in writing and in accordance with Clause 26 (Part time requests) of this Agreement.
36.5 An employee who is pregnant is required to absent herself from duty 6 weeks before the expected date of confinement until 6 weeks after the actual date of birth of the child, unless a medical certificate is provided declaring her fit to either continue or return to duty.
36.6 Periods of paid leave during maternity leave will count as service for all purposes. Where an employee does not have a full year of service, the first 12 weeks (including unpaid leave) also counts for service.
36.7 In order to provide a more flexible administration of maternity leave an employee may elect to receive payment for their maternity leave (including the additional 4 weeks leave under Clause 36.3) at half pay. Only the equivalent full-pay period will count as service.
37. Parental leave
37.1 Parental carer’s leave:
- An employee who is not covered by the maternity leave provision but has the same qualifying period of service as per an employee under Clause 36.2, and who has primary parental responsibility caring for a newborn or recently adopted or fostered child under the age 16, is entitled to 16 weeks paid primary carer’s leave from the birth, adoption or fostering of the child.
- Up to 2 weeks of this paid leave can be taken by the employee, prior to the date of adoption or fostering, to assist in finalising administrative arrangements.
- An employee accessing primary carer’s leave may request a period or periods of up to 52 weeks, including paid and unpaid leave.
- An employee who is not covered by the maternity leave provision but has the same qualifying period of service as per an employee under Clause 36.2, and who has non-primary parental responsibility caring for a newborn or recently adopted or fostered child under the age 16, may request a period of up to 52 weeks of unpaid leave.
- Employees resuming full-time duty following their period of approved leave will return to their previously held position, or if that position no longer exists, a position that is nearest in status and remuneration. Any request to resume work on a part-time basis will be in writing and in accordance with Clause 26 of this Agreement.
- Periods of paid leave under this clause will count as service for all purposes. Paid leave may be accessed at half pay. Only the equivalent full pay period will count as service.
- The Australian Information Commissioner or delegate may request reasonable evidence in support of an application, which may include a statutory declaration.
- Where both partners are employed by the OAIC and one partner has accessed, or intends to access, paid maternity or primary carer’s leave; the other partner may only access primary carer’s leave on a non-concurrent basis and so that the combined period of paid leave does not exceed 18 weeks.
37.2 Flexible work arrangements for parents:
- An employee who is a parent, or has responsibility for the care of a child of school age or younger or a child under 18 who has a disability, may request flexible working arrangements, including part-time hours. The employee is not eligible to make this request unless they have completed at least 12 months of continuous qualifying service (the Australian Information Commissioner or delegate may waive this requirement in exceptional circumstances).
- A casual employee engaged for irregular or intermittent duties may only request flexible work arrangements if the employee:
- is a long term casual employee immediately before making the request; and
- has reasonable expectation of continuing employment on a regular and systematic basis.
Note: ‘long term casual employee’ is defined at s 12 of the Fair Work Act
- A request made in accordance with Clause 37.2(i) must be in writing and set out details of the change sought and the reasons for the change. The Australian Information Commissioner or delegate will respond in writing to the request within 21 days and will only refuse on reasonable business grounds. Where the request is refused, the response will include reasons for the refusal.
- For the purposes of this clause:
- ‘qualifying service’ means service that is recognised for redundancy pay purposes.
37.3 Supporting parent leave:
- Six weeks paid supporting parent leave will be granted to an employee following the birth, adoption or long-term fostering of a child.
- The OAIC recognises that a parent may include a person who is in a demonstrated parental relationship to the child. The Australian Information Commissioner or delegate may request reasonable evidence in support of an application, which may include a statutory declaration.
- This period of supporting parent leave will count as service and may be taken in one block or, subject to operational requirements, as part of a flexible work arrangement within 12 months of the birth, adoption or fostering of the child.
- This leave is not available to employees covered by paid Maternity or Primary carers leave provisions.
- Paid leave may be accessed at half pay. Only the equivalent full-pay period will count as service.
38. Request for additional leave following maternity or parental leave
38.1 An employee may request additional unpaid leave up to a further 52 weeks following their maternity leave or parental leave. This leave will not count as service.
38.2 For operational planning purposes requests for this additional leave should be made, where possible, at the commencement of the maternity or parental leave period. Otherwise, employees requesting additional leave under this clause are to provide at least 4 weeks notice of their request.
38.3 An employee may request in writing to return to work during this period on a date earlier than previously approved. The granting of such a request will be at the discretion of the Australian Information Commissioner or delegate and subject to 4 weeks notice for planning purposes.
38.4 Employees resuming duty after this period of leave will return to the same classification level they held prior to their maternity or parental leave. Any request to resume work on part-time basis will be in writing and in accordance with Clause 26 of this Agreement.
39. Jury leave
39.1 An employee is entitled to paid leave to attend jury service. An employee will continue to be paid by the OAIC in lieu of any other payment for jury service. An employee shall be required to pay to the OAIC the amount received for jury service except payments relating to meals, accommodation or fares in accordance with the OAIC Chief Executive Instructions.
39A. Leave for ADF Reserve and Continuous Full Time Service or Cadet Force obligations
39A.1 An employee may be granted leave (with or without pay) to enable the employee to fulfil Australian Defence Force (ADF) Reserve and continuous full time service (CFTS) or Cadet Force obligations.
- An employee is entitled to leave with pay, of up to four weeks during each financial year, and an additional two weeks’ paid leave in the first year of ADF Reserve service, for the purpose of fulfilling service in the ADF Reserve.
- With the exception of the additional two weeks in the first year of service, leave can be accumulated and taken over a period of two years.
- An employee who is an officer or instructor of cadets in a Cadet Force may be granted paid leave of up to three weeks each financial year to perform duties as an officer or instructor of cadets. For these purposes ‘Cadet Force’ means the Australian Navy Cadets, Australian Army Cadets, or the Australian Air Force Cadets.
- Defence Reserve leave counts as service for all purposes, except for unpaid leave to undertake continuous full time service (CFTS). Unpaid leave for the purpose of CFTS counts as service for all purposes except annual leave accrual.
39B. War Service Sick leave
39B.1 Employees with Defence Force service prescribed by the Veterans’ Entitlement Act 1986 are eligible for additional sick leave while unfit for duty because of a war or defence caused condition. A war-caused condition means an injury or disease of an employee that has been determined under the relevant legislation to be war-caused or defence-caused.
39B.2 Eligible employees will accrue a special credit of nine weeks on commencement in the APS and an annual credit of three weeks for each year of APS service. Unused credits will accumulate to a maximum of nine weeks.
39C. Cultural Leave
39C.1 Leave for cultural, religious, ceremonial and National Aboriginal & Islander Day Observance Committee Week (NAIDOC) leave may be granted by the Australian Information Commissioner or delegate in the following situations:
- one days paid leave per year for NAIDOC week; or
- unpaid leave for days of cultural, religious, ceremonial and NAIDOC significance
39D.1 One day paid leave per year may be granted by the Australian Information Commissioner or delegate for the purposes of assisting employees in moving house.
40. Other leave
40.1 Miscellaneous leave with or without pay may be granted by the Australian Information Commissioner or delegate. Unless the Australian Information Commissioner determines otherwise, any continuous period of Miscellaneous leave without pay greater than 30 calendar days will not count as service for Annual Leave and Personal/carer’s Leave purposes. Applications will be considered subject to the operational requirements of the OAIC and equity with other employees.
Further information can be found in the OAIC’s Policy on Miscellaneous Leave.
40.2 Emergency service duties leave:
In accordance with section 108 of the FWA the OAIC will provide unpaid leave for community service personnel for emergency services duties encompassing leave for the emergency service responses, regular training, reasonable recovery time and ceremonial duties.
40.3 Community volunteering:
The OAIC will support community volunteer leave of one day paid per calendar year for employees to undertake voluntary work for a not-for-profit community organisation. The timing of the leave must be approved by the supervisor. Additional unpaid leave of up to 4 days per calendar year may be approved based on operational requirements. Employees will be required to provide appropriate evidence to support leave applications.
40.4 Elder and disabled care leave:
An employee with 12 months of continuing service may request unpaid discretionary leave of up to 12 months to provide care or support to:
- an elderly parent
- a child with a disability
- a family member with high support needs
where the parent or child requires ongoing care or support.
40.5 For any of the above leave that is discretionary the employee’s request must be in writing and set out the period of leave being sought and the reasons for the leave. The Australian Information Commissioner or delegate may refuse an employee request under this clause on reasonable business grounds and must provide in writing within 21 days the reasons for any refusal of the request. Refer to Clauses 36–38 for flexible working arrangements following maternity or parental leave and Clause 26 of this Agreement for part-time work requests.
41. Long service leave
41.1 Employees covered by this Agreement are entitled to the provisions set down in the Long Service Leave (Commonwealth Employees) Act 1976.
41.2 Under the Act, full time employees are generally entitled to 3 months long service leave on full pay after 10 years qualifying service with a rate of accrual of 3/10 month per year of service.
41.3 Part-time and casual employees accrue long service leave on a pro rata basis in accordance with the Long Service Leave (Commonwealth Employees) Act 1976.
41.4 Long service leave will be granted in blocks of at least seven calendar days at full pay or 14 calendar days at half pay and will not be able to be broken by other forms of leave unless required by legislation.
- Re-credit: An employee who would have been able to access personal/carer’s leave, compassionate leave, community service leave or any other type of leave where the NES provides that they not be taken to be on annual leave will be re-credited their long service leave for the period the other leave is granted. The provisions for the other leave to be granted as set out in this agreement apply.
42. Portability of leave
42.1 Where an employee moves (including on promotion or for an agreed period) to the OAIC from an employer staffed under the Public Service Act, the Parliamentary Service Act 1999 or from the ACT Government Service, accrued annual leave and personal/carer’s leave (however described) will be transferred, provided that there is no break in continuity of service. Future entitlements to annual and personal/carer’s leave will be those prevailing in the OAIC.
43. Public holidays and Christmas Closedown
43.1 Public holidays
Employees will be entitled to the following public holidays:
- New Year’s Day (1 January)
- Australia Day (26 January)
- Good Friday
- Easter Monday
- Anzac Day (25 April)
- Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory)
- Christmas Day (25 December)
- Boxing Day (26 December)
- any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the Fair Work regulations from counting as a public holiday.
43.2 If under a state or territory law, a day or part day is substituted for one of the public holidays listed above, then the substituted day or part day is the public holiday.
43.3 The Australian Information Commissioner and an employee may agree on the substitution of a day or part day that would otherwise be a public holiday, having regard to operational requirements.
43.4 An employee, who is absent on a day or part-day that is a public holiday in the place where the employee is based for work purposes, is entitled to be paid for the part or full day absence as if that day or part-day was not a public holiday, except where that person would not normally have worked on that day.
43.5 Where a public holiday falls during a period when an employee is absent on leave (other than Annual or paid Personal/carers leave) there is no entitlement to receive payment as a public holiday. Payment for that day would be in accordance with the entitlement for that form of leave (eg if on long service leave on half pay, payment is on half pay).
44. Christmas closedown
44.1 The OAIC will close its normal operations from close of business on the last working day before Christmas, with business resuming on the first working day after New Year’s Day.
44.2 Employees will be provided with time off for the working days between Christmas and New Year’s Day and will be paid in accordance with their ordinary hours of work. Where an employee is absent on leave, payment for the Christmas closedown provision will be in accordance with the entitlement for that form of leave, (e.g. if on long service leave half pay, payment is on half pay).
44.3 There will be no deduction from Annual or Personal/carer’s leave credits for the closedown days.
Part 3E: Separation procedures
The legislative basis for certain action relating to the management of excess employees may be found in the Public Service Act, specifically:
- s 23, relating to reducing an employee’s classification
- s 25, assignment of duties
- s 27, the Public Service Commissioner’s power to move an excess employee to another agency
- s 29, termination of employment.
45.2 Excess employee:
- The procedure for handling excess employees set out below applies to all employees except:
- an ongoing employee who is on probation
- a non-ongoing employee.
- When the OAIC is aware that an employee is likely to become excess, the Australian Information Commissioner or delegate will advise the employee of the situation at the earliest practicable time. An employee is an excess employee if:
- the OAIC has a greater number of employees than is necessary for the effective performance of a particular role or function within the OAIC
- the services of the employee cannot be effectively used because of technological or other changes in the work methods of the OAIC or changes in the nature, extent or organisation of the functions of the OAIC
- where the duties usually performed by the employee are to be performed at a different locality, the employee is not willing to perform duties at the locality and the OAIC has determined that the provisions of this clause will apply to that employee.
45.3 Consultation process:
- The Australian Information Commissioner or delegate will hold discussions with an excess employee to consider:
- measures that could be taken to resolve the situation, including redeployment opportunities for the employee, at or below level, within or outside the OAIC
- whether termination of employment (voluntary redundancy) might be appropriate
- where the employee chooses a representative, the Australian Information Commissioner or delegate will hold the discussions with the employee’s representative
- The maximum period of time allowed for consultations should be one month (4 weeks) unless a lesser period is agreed to.
45.4 Early separation:
- Where an employee is likely to be the subject of action under these provisions, the Australian Information Commissioner or delegate may provide to that employee an early separation opportunity.
- This option provides for separation to occur within 14 days of the employee being advised that they are excess under Clause 45.2.
- It attracts an additional payment of 8 weeks salary (or 10 weeks for an employee over 45 years of age with at least 5 years continuous service), over and above any other amount paid on separation in accordance with Clause 45.6.
- The payment is in lieu of the time that may have reasonably been expected to elapse for the purposes of the consultation, consideration periods and notice periods.
45.5 Separation with consent:
- Where an employee is advised in writing that they are excess and that it is proposed to terminate the employee in accordance with s 29 of the Public Service Act, the employee will have a maximum period of one month to consider their position and provide their consent to the termination of their employment or request redeployment assistance.
- The Australian Information Commissioner or delegate will not give an employee notice of termination of their employment under s 29 of the Public Service Act until the expiration of that one-month period (unless the employee requests an earlier termination of employment date within that one-month period).
- Within that month, unless agreed otherwise, an employee consenting to termination of employment must be given all the relevant financial information, including:
- amount of redundancy pay, pay in lieu of notice and cashable leave credits
- amount of accumulated superannuation contributions
- options open to the employee concerning superannuation
- taxation rules applying to the various payments
- assistance up to a maximum of $800 for financial advice and career counselling, reimbursed on production of receipts
- The employee is only entitled to receive one offer of voluntary retirement.
45.6 Redundancy benefit:
Where the provisions of this clause provide for less than the National Employment Standards (NES), the NES will prevail.
- An excess employee who agrees to be voluntarily retrenched and whose employment is terminated by the delegate under s 29 of the Public Service Act on the grounds that he/she is excess to requirements is entitled to be paid a sum 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.
- The minimum sum payable will be 4 weeks salary and the maximum will be 48 weeks salary.
- The redundancy benefit will be calculated on a pro rata basis for any period where an employee has worked part-time hours during their period of service and the employee has less than 24 years full-time service.
- For the purpose of calculating payment, salary will include:
- the employee’s salary
- the salary including higher duties, where the employee has been receiving higher duties allowance for a continuous period of at least 12 months immediately preceding the date on which the employee is given notice of termination of employment
- other allowances in the nature of salary which are paid during periods of annual leave and on a regular basis, excluding allowances which are a reimbursement for expenses incurred, or a payment for disabilities associated with the performance of duty.
45.7 Period of notice:
- Where the excess employee agrees to be voluntarily retrenched the Australian Information Commissioner or delegate may terminate the employment of the employee by giving the required notice of termination of employment under s 29 of the Public Service Act. The period of notice will be 4 weeks (or 5 weeks for an employee over 45 years of age with at least 5 years of continuous service).
- Where an employee whose employment is terminated at the beginning of or within the notice period, the employee will receive payment in lieu of notice for the unexpired portion of the notice period. This amount is additional to any redundancy benefit payment.
45.8 Periods of service:
- For earlier periods of service to count there must be no breaks between the periods of service, except where:
- the break in service is less than one month and occurs where an offer of employment with the new employer was made and accepted by the employee before ceasing employment with the preceding employer
- the earlier period of service was with the APS and ceased because the employee was deemed to have resigned from the APS on marriage under the then s 49 (as repealed in 1966) of the repealed Public Service Act 1922
- Subject to Clause 45.8(i) service for redundancy pay purposes means:
- service with the OAIC
- Government service as defined in s 10 of the Long Service Leave Act 1976
- service with the Commonwealth (other than service with a joint Commonwealth-State body corporate in which the Commonwealth has a controlling interest) which is recognised for long service leave purposes
- service with the Australian Defence Forces
- APS service immediately preceding deemed resignation under the then s 49 (as repealed in 1966) of the repealed Public Service Act 1922, if the service has not previously been recognised for severance pay purposes; and
- service in another organisation where an employee was transferred from the APS to that organisation with a transfer of function, or an employee engaged by that organisation on work within a function, is appointed as a result of the transfer of that function to the APS and such service is recognised for long service leave purposes. (Note: transfer means the movement to a new agency under the Public Service Act).
- Any period or service which ceased through termination of employment on the following grounds will not count as service for redundancy pay purposes:
- the employee lacks, or has lost an essential qualification for performing his or her duties
- non-performance, or unsatisfactory performance of duties
- inability to perform duties because of physical or mental incapacity
- failure to satisfactorily complete an entry level training course
- failure to meet a condition imposed under sub-section 22(6) of the Public Service Act, including probation
- a breach of the Code of Conduct
- for a reason equivalent to a reason listed above at Clause 45.8 (ii)(a) to (f) under the repealed Public Service Act 1922
- any other ground prescribed by the Public Service Regulations
- through voluntary retrenchment at or above the minimum retiring age applicable to the employee
- payment of a redundancy benefit or similar payment or an employer financed retirement benefit.
- Absences from work which do not count as service for long service leave purposes will not count as service for severance pay purposes.
This clause is intended to provide an employee with far more intensive and immediate redeployment assistance.
- The OAIC will assist employees throughout the redeployment process by providing reasonable expenses and time off to attend necessary employment interviews where the costs are not met by the prospective employer.
- If an excess employee wishes to be redeployed rather than consent to termination of employment, the OAIC will take all reasonable steps, consistent with the efficient management of the OAIC, to assign duties to that employee in accordance with s 25 of the Public Service Act.
- In the first instance, this placement will be handled within the OAIC.
- The OAIC may also choose to offer the services of a selected outplacement/career management provider at any point in the process (on and from the point the employee is advised that they are likely to become excess).
- The OAIC will give excess employees the option of seeking redeployment in the APS in accordance with any APS wide redeployment arrangements in place at the time.
- The redeployment process commences from the date the employee is advised, in writing, that they are an excess employee.
- Where the Australian Information Commissioner or delegate is satisfied that there is insufficient productive work available for the employee within the OAIC during the remainder of his or her redeployment period, the Australian Information Commissioner or delegate may, with the agreement of the employee, terminate the employee’s employment under s 29 of the Public Service Act and pay an agreed lump sum not greater than the salary which would be payable for the balance of the redeployment period.
- If redeployment has not proven to be a successful option, an employee can consent to termination at the end of the first 2 month period, in preference to continuing redeployment action. If an employee consents to termination of employment at this point and this employment is terminated by the OAIC under s 29 of the Public Service Act on the grounds he/she is excess to requirements, they will be eligible to receive the full redundancy benefit as specified at Clause 45.6(i) and 45.6(ii).
45.10 Salary maintenance:
Where the OAIC reduces the classification of an employee under s 23 of the Public Service Act, salary maintenance will be applied from the date of reduction in classification for a period of 6 months. Salary maintenance will be calculated on the basis of the employee’s regular and ongoing salary.
45.11 Involuntary termination of employment:
- If after 3 months from the date an employee has been notified in writing under clause 45.5(i) that they are an excess employee:
- the OAIC has been unable to assign duties to the employee (at or below level) despite having taken all reasonable steps to do so
- the employee has not consented to termination of employment
the Australian Information Commissioner or delegate may decide to involuntarily terminate the employment of the excess employee under s 29 of the Public Service Act.
- An excess employee cannot have their employment terminated involuntarily unless they have rejected the opportunity to provide their consent to their termination of employment.
- employees whose employment has been terminated involuntarily by the Australian Information Commissioner or delegate under s 29 of the Public Service Act will receive the same entitlements on termination as employees who consent to termination of employment except that the redundancy benefit will be reduced to account for salary payments received during the redeployment period. The reduction in the amount of the redundancy benefit cannot be more than half the amount the employee would have received if they had provided their consent to termination of their employment subject to any minimum amount the employee is entitled to under the NES.
- If an employee is entitled to a redundancy period under the NES, the redeployment/retention period at Clause 45.11(i) will be reduced by the employees’ redundancy pay entitlement under the NES on termination, calculated as at the expiration of the retention period (as adjusted by this clause).
46. Payment on death
46.1 Where an employee has died or the Australian Information Commissioner or delegate has directed that an employee will be presumed to have died on a particular date, the Australian Information Commissioner or delegate may authorise the payment of the amount to which the employee would have been entitled had the employee ceased employment through resignation or retirement. Payment may be made to dependants or the partner of the employee or the employee’s legal personal representative. If a payment has not been made within 12 months of the employee’s death, it shall be paid forthwith to the legal personal representative. Long service leave credits will be paid out in accordance with the Long Service Leave Act (Commonwealth Employees) 1976.
47. Abandonment of employment
47.1 Where an employee is absent from duty without permission for more than 21 calendar days, they will be considered to have abandoned their employment unless they can prove to the satisfaction of the OAIC that the absence was, in all the circumstances, warranted. Where an employee is unable to substantiate that their absence from duty is or was warranted, their employment may be terminated under s 29 of the Public Service Act, subject to Part 3-2 of the Fair Work Act, on the ground of ‘non-performance of duties’.
48.1 Notice periods: The OAIC expects that employees would provide reasonable notice of their intention to resign. This notice period should be a minimum of 2 weeks where possible.
Part 3F: Safe and supportive working environment
49. Work health and safety
49.1 The parties to this Agreement are committed to effective cooperation between the OAIC and its employees on work health and safety (WH&S) matters. The OAIC and its employees aim to create and maintain a safe working environment and to fulfil their requirements under the Work Health and Safety Act 2011 (Cth) (WH&S Act). Further information can be found in the OAIC’s Work Health and Safety Policy and the OAIC’s Harassment Policy.
49.2 Supporting eye health:
- The OAIC will reimburse employees for attendance at standard eye examinations for screen based equipment, for any portion of the fee not covered by Medicare. Appointments may be made every 2 years or as otherwise approved.
- In addition, where an employee requires new spectacles/lenses as the result of such appointment, the OAIC offers financial support for the cost of spectacles/lenses for any portion not covered by private health insurance up to the following amounts:
- $80 for single
- $140 for bifocal or multifocal
49.3 Annual influenza vaccinations:
The OAIC will provide annual influenza injections for interested employees.
49.4 Under the Safety, Rehabilitation and Compensation Act 1988, the OAIC has an ongoing responsibility to manage workers’ compensation claims and provide rehabilitation and return to work programs for injured employees. Supervisors and colleagues of injured employees will cooperate with case managers to provide the necessary work environment and duties to enable employees to achieve the objectives set down in their rehabilitation plan.
50. Employee assistance
50.1 The OAIC provides employees and their families with access to a confidential, professional counselling service to help them resolve either personal or work related problems. On commencement, employees will be advised of the availability of the employment assistance program(EAP)service.
50.2 There will be no initial cost to employees who contact the counselling service, however if the counselling service refers the employee to another service, or agrees to provide services in addition to those under contract to the OAIC, then the employee will be responsible for any costs which may arise.
50.3 Supervisors may access the service to support them in their roles and should encourage employees to use the service where appropriate.
51. Healthy lifestyle
51.1 The OAIC encourages its employees to consider healthy lifestyle activities as a means to develop and maintain work and life balance. In addition, financial support of up to $250 per financial year will be available to reimburse employees who undertake approved activities. The supported activities will have an emphasis on promoting health and wellbeing and be approved by the delegate.
Further information can be found in the OAIC’s Healthy Lifestyle Program Guidelines.
Part 3G: Review of employment decisions
52. Review of employment decisions
52.1 An employee may seek a review of actions under s 33 of the Public Service Act.
52.2 Termination of employment:
- The sole and exhaustive rights and remedies of an employee in relation to termination of employment are those that the employee has under:
- the Fair Work Act
- other Commonwealth laws (including the Constitution)
- at common law.
- Termination of, or a decision to terminate employment, cannot be reviewed under Procedures for dealing with disputes (Clause 9) or procedures for the Review of employment decisions (Clause 52.1) of this Agreement.
- Nothing in this Agreement prevents the OAIC from terminating the employment of an employee for serious misconduct, without further notice or payment in lieu, in accordance with the relevant provisions of the Fair Work Act, subject to compliance with the procedures established by the OAIC for determining whether an employee has breached the Code of Conduct under s 15 of the Public Service Act.
52.3 Unsatisfactory performance of duties (underperformance):
Where an employee is aggrieved about an action or decision related to the unsatisfactory performance of their duties, these matters will be addressed with the provisions at Clause 17 of this Agreement and, if necessary, under sub-Clause 52.2 above.
Part 3H: Allowances
53. Workplace allowances
53.1 An allowance of $31.80 per fortnight will be paid to an employee who is appointed to undertake one or more of the following roles:
- First Aid Officer (requires current Senior First Aid Certificate or equivalent)
- Health and Safety Representative
- Fire Warden
- Harassment Contact Officer.
53.2 Payment of the allowance will cease for continuous absences of over 4 weeks.
53.3 Each role has inherent training requirements which must be successfully met as a condition of receiving the allowance.
53.4 Where employees accept more than one of these roles, they will only be entitled to a single allowance.
54. Motor vehicle allowance
54.1 Where the Australian Information Commissioner or delegate considers that it will result in greater efficiency or involve less expense, he or she may authorise an employee to use a private motor vehicle owned or hired by that employee at their own expense for official purposes.
54.2 Motor vehicle allowance will be payable in accordance with the ATO Reasonable Allowance Rates, as varied from time to time.
55. Travelling allowance
55.1 A travelling allowance shall be payable to an employee who undertakes travel on official business and is required to be absent overnight.
55.2 Travelling allowances are in addition to the cost of conveyance.
55.3 An employee who is travelling to a place of work in anticipation of a permanent move to that place of work, and who has been advised in writing that the move is to be made permanent, will not be eligible to receive travelling allowance during employment at that place of work.
55.4 Travelling allowance rates:
- An employee who is required to be absent overnight from the employee’s usual place of work on official business, under Clause 55.1 will be paid, prior to undertaking the travel, in accordance with the ATORulings on Reasonable Daily Travel Allowance amounts (equivalent non-SES rates).
- Private non-commercial rate:
Where commercial accommodation is not required the employee is not eligible to receive a payment under Clause 55.4(i). The employee will be eligible to receive a payment for every overnight absence in accordance with ATO rulings for reasonable daily travel allowance (equivalent non-SES) amounts for meals and incidentals (for capital cities) published annually.
55.5 Reviewed travelling allowance:
After an employee has resided in the one locality for a period of 21 days, the employee will be paid an allowance equal to the amount actually expended on accommodation, meals and incidentals, or an amount which the OAIC considers to be reasonable in the circumstances.
55.6 Part day travelling allowance:
It is recognised that employees may be required to be absent for more than a standard day when travelling to attend meetings in regional areas or interstate. To compensate an employee for time spent travelling and additional costs, an employee who is required to be absent from the employee’s usual place of work on official business for a period of not less than 10 hours, but is not absent overnight, may be paid $80. Supervisors may agree to reasonable compensatory time off or include as flexleave in recognition of any additional time spent travelling outside normal working hours when the period of travel is less than 10 hours. The employee’s normal travelling time would be taken into account when considering this.
55.7 Approval of additional expenses:
Where reasonable evidence is provided to the satisfaction of the Australian Information Commissioner or delegate that the allowance payable to an employee under 55.1, 55.4 and 55.6 is insufficient to cover expenses which have been, or may be, incurred, the Australian Information Commissioner or delegate may direct payment as is necessary to meet those expenses.
55.8 Repayment when travel not undertaken:
An employee who fails to undertake the anticipated travel, or who undertakes the travel for a lesser period than anticipated, will repay either the full travel allowance, or the difference between the allowance paid and the amount that would have been payable for the actual absence in accordance with the OAIC Chief Executive Instructions.
55.9 Accommodation/meals provided by the Commonwealth:
Where an employee is provided with either accommodation or adequate meals, or both, at Commonwealth expense:
- the employee will not be paid those components of the allowance under Clause 55.1 in respect of any accommodation or meals provided, and
- payment will be made in respect of incidental expenses during the period as the delegate directs.
55.10 Where an employee who is absent on duty from the employee’s usual place of work takes personal/carer’s leave for a condition for which the employee is not at fault and is unable to return home, the employee is entitled to be reimbursed an amount equal to the costs incurred by the employee up to the amount that would be payable under Clause 55.1.
55.11 Reimbursement for carer’s costs:
Where an employee is required to travel for the purpose of official duty away from his or her usual place of work the employee will, subject to prior approval of the arrangements and the cost, be entitled to be reimbursed for any additional costs associated with additional care arrangements.
55.12 Overseas travel:
- An employee required to travel on official business overseas will be provided with a recoverable cash advance to meet reasonable accommodation, meal and incidental expenses. The cash advance will be administered on a case-by-case basis having regard to the costs associated with the country being visited. The rates in accordance with the ATO Rulings will be used as a basis for determining reasonable expenses.
- An employee will be required to comply with the conditions for overseas travel set out in the OAIC’s travel diary and acquit any payments.
56. Class of air travel
56.1 An employee is entitled to economy class where required to travel on official business within Australia.
56.2 An employee is entitled to business class where required to travel on official business overseas.
57. Relocation expenses
57.1 The OAIC may determine the extent of any financial assistance for relocation from one locality to another upon promotion, engagement, movement of an employee or where an employee is assigned duties at or below level.
58. Loss, damage and indemnity
58.1 The OAIC may approve reimbursement to an employee for loss or damage to clothing or personal effects which occurred in the course of the employee’s work.
The parties agree to continue the OAIC consultation forum (OCF). The OCF provides a forum for consultation between the OAIC, employees and their representatives to consider:
The OCF will meet every 6 months on dates set in advance. In exceptional circumstances, extra meetings may be convened.
Any proposed new, or a proposed substantive change to an existing, policy or guideline relating to working arrangements will be made available to staff for comment via the OAIC’s intranet for at least 2 weeks.
Junior rates of pay as a percentage of the APS Level 1 classification component shall apply as follows: