Ceasing Employment and Automatic Termination
Employment can cease in several ways, including resignations, terminations and automatic terminations.
Ceasing employment under the Members of Parliament (Staff) Act 1984 (MOP(S) Act) can occur in the following ways:
- employee resignation
- termination by the employing parliamentarian
- termination by operation of the MOP(S) Act (also known as ‘automatic’ termination).
For queries related to ceasing employment including advice on terminations HR Advice team. You can also access the Employee Assistance Program.
Resignation
A MOP(S) Act employee can resign from their employment at any time by giving notice in writing to their employing parliamentarian.
A copy of the letter of resignation and the completed ceasing employment form must be completed as soon as possible. This will help MaPS finalise employment matters, such as the payment of final monies.
Termination by the employing parliamentarian
An employing parliamentarian (or authorised person) may terminate an employee’s employment in accordance with the MOP(S) Act and other legislative obligations by giving notice in writing.
Termination must meet the requirements of the Fair Work Act 2009, including ensuring the termination is not unfair or unlawful.
Terminated employees must be provided with detailed written reasons for their dismissal.
Parliamentarians must consult the PWSS before making a decision to terminate the employment of a MO(P)S Act employee.
Termination can include the following reasons:
- office is restructured, calling for different sets of skills
- unsatisfactory performance or conduct by the employee
- parliamentarian has lost trust or confidence in the employee
- employee has a significant conflict of interest.
Where an employer is considering terminating an employee for unsatisfactory performance, the following process is to be undertaken:
- Make the employee aware of any performance issues and then provide a reasonable opportunity for the employee to improve.
- If performance does not improve, issue a notice of intention to the employee setting out the proposed reasons for termination and provide an opportunity for the employee to outline reasons why they should not be terminated.
- Consider the submissions before making a decision regarding termination.
Where an employer proposes to terminate an employee who is on probation, the parliamentarian must still follow a reasonable and fair process.
A copy of the written termination notice (including details of the reason for termination) and the completed ceasing employment form must be completed. This will help MaPS finalise employment matters, such as the payment of accrued leave entitlements and severance benefits.
MOP(S) Act employees may seek advice from the Fair Work Commission regarding any possible remedy in respect of termination of their employment if dissatisfied with the reasons for termination. Further information may be found by referring to the Fair Work Commission website - www.fwc.gov.au.
Notice period
An employing parliamentarian must provide the required notice period when terminating the employment of an employee, except where it is serious misconduct. MaPS will make a payment in lieu of notice where the applicable period is not given.
| Length of continuous service employed by the Commonwealth* | Notice period |
|---|---|
| Not more than 1 year | 1 week |
| More than 1 year but not more than 3 years | 2 weeks |
| More than 3 years but not more than 5 years | 3 weeks |
| More than 5 years | 4 weeks |
*Includes, for example, continuous service under the MOP(S) Act with other Members.
An employee over 45 years of age who has completed two years’ continuous service at the time of termination is entitled to one additional week’s notice of termination.
Where an employee’s employment is terminated within the probation period, the employee will be entitled to one week’s notice of termination or payment in lieu of notice.
Notice requirements are in clause 72 of the Enterprise Agreement.
Termination by operation of the MOP(S) Act
An employee’s employment can be automatically terminated by the operation of the MOP(S) Act. This can be due to a number of events and circumstances of an employing parliamentarian. Section 14 of the MOP(S) Act deals with termination of employment in certain circumstances, such as employer ceases to be Senator or member or hold office.
Affected employees will be contacted when an automatic termination trigger event occurs. Employees are required to complete and submit a notification of employment status form following an automatic termination.
A factsheet on termination triggers, including advice on changes to these arrangements following amendments to the MOP(S) Act provides further information (refer to Automatic Termination of Employment factsheet).
Deferral of termination of employment
Usually when employment is automatically terminated, the MOP(S) Act direction to defer the termination of employment defers the termination for a period of time. Read more in the factsheet on changed employment arrangements for MOP(S) Act staff.
An employee who is in a deferral of termination period may use this time to settle affairs in the office and seek other employment. During a deferral of termination period, an employee may only travel for official purposes between the electorate office or other office provided at Commonwealth expense, and Canberra (unless otherwise approved by the PWSS delegate).
Termination entitlements
MOP(S) Act employees can use the final entitlements calculator to estimate their final entitlements.
Severance benefits
Ongoing employees receive severance benefits under clause 62 of the Enterprise Agreement (excluding circumstances are also set out in clause 62 of the Enterprise Agreement). A severance benefit is paid if an employee’s employment is terminated under the MOP(S) Act and is not a genuine redundancy payment.
Employees receive additional severance benefits of 30 per cent, in line with clause 63 of the Enterprise Agreement, if:
- employing parliamentarian ceases to be a Senator or Member, or hold office AND
- the benefits are not treated as a ‘genuine redundancy payment’ (subdivision 83-C of the Income Tax Assessment Act (Cth) 1997).
Under clause 62.6 of the Enterprise Agreement, employees have the option to keep their severance after they are re-employed as a MOP(S) employee during their severance period. In order to do so, MOP(S) employees must:
- have a break in their employment of at least one business day; and
- notify the MaPS payroll team of their decision to keep their severance by making an irrevocable written election that they will not have their prior service recognised for the purposes of future severance and annual leave when completing and and submitting a notification of employment status form.
Before making a waiver, you should note the effects on the other employment entitlements.
Retaining a severance benefit under clause 62.2 of the Enterprise Agreement has the following effects on entitlements if the employee is re-engaged.
| Entitlement | Effect of enacting Clause 62.6 |
|---|---|
| Annual Leave | Prior balance is not re-credited as it has been paid out. Credits are reset and accrual starts from re-commencement of MOP(S) employment. The anniversary date for additional crediting becomes date of re-commencement of employment. |
| Personal Leave | Prior balance will be re-credited if the break in service is not more than a period of two months. The period of the break in service does not count as service. |
| Long Service Leave | Prior balance is not re-credited or recognised as it has been paid out as severance and under the Long Service Leave (Commonwealth Employees) Act 1976 cannot be paid back. Prior service will be recognised in calculating total service. For example, if an employee were to be paid out 8 years of Long Service Leave pro rata and is then re-employed for another 2 years, they will have 10 years total service. They will be entitled to 2 years pro rata Long Service Leave, i.e 18 days. |
| Maternity Leave |
On re-commencement, service for the purposes of paid maternity leave resets. Prior service is not recognised. Staff on paid maternity leave when they are automatically terminated will have their remaining maternity leave paid out. |
| Future severance benefits | Prior service is not recognised. The service period for purposes of a future severance benefit begins on re-commencement of employment. |
| Retention Payment | Employees will not be eligible for retention payment where they have a break of at least one business day in the preceding 12 months, including in order to retain a prior severance benefit. |
| Salary advancement | Not impacted by retaining a prior severance benefit if the conditions of clause 17.9 of the Enterprise Agreement are met. |
| Competency assessment | Competency assessment immediately ceases on termination of employment, regardless of later re-employment. Employees are not eligible for competency assessment where they have a break of at least one business day in the preceding 12 months. |
Payment of long service leave
MOP(S) Act employees with one to ten years’ service whose employment is terminated may be entitled to pro rata long service leave or payment in lieu of the pro rata long service leave. This would only occur:
- if the termination is for reasons other than poor performance or misconduct
- where the termination has not been initiated, or agreed to, by the employee concerned.
Pro rata long service leave or payment in lieu is also paid to employees with at least 12 months service who have reached 55 years of age.
Unused long service leave credits are paid to employees on the termination of their employment.
Career transition payment
Former MOP(S) Act employees that receive severance benefits under the Enterprise Agreement may obtain a payment of up to $1000 (GST inclusive) for career transition counselling, training or financial advice. Part-time employees can access the full amount. To be eligible, the pre-approved service must be provided within six months of termination.
Please contact HR Advice if you require any further information about career transition payments.
Exit interviews
MOP(S) Act employees can volunteer to participate in exit interviews to share their thoughts and experiences of their MOP(S) Act employment. It’s an opportunity to discuss:
- job satisfaction
- motivation
- induction, training and professional development opportunities
- leadership and management
- office infrastructure
- reward and recognition
- experiences accessing support services
- reasons for leaving MOP(S) Act employment.
If you wish to complete an exit interview, contact the HR Advice.
While an exit interview is voluntary, all departing MOP(S) Act employees are encouraged to participate and provide feedback. Your participation improves the delivery of services by PWSS and employment experiences of current and future MOP(S) Act employees.
You can elect to have your feedback provided to your employing parliamentarian. In all cases, information provided through the exit interview is collected, stored and treated in the strictest confidence. Unless an employee elects to have their feedback provided to their employing parliamentarian, only PWSS will have access to individual interview results.