Part 6 - Employment Protection and Surplus Staffing Provisions

6.1    Employment Protection Provision

‘Restructuring’ is given the same definition as in section 69OI of the ERA 2000 and includes:

(i) Contracting out; or
(ii) Selling or transferring the employer’s business (or part of it) to another person;

but excludes mergers (in the case of mergers Appendix B will apply).

6.1.1 Where work undertaken by an employee covered by this Agreement will be, or is likely to be, undertaken by a new employer (whether or not the new employer is an “employer” defined in 1.3) the employer will notify the National Office of the union(s) where one or more of the employees affected by the restructuring is a member of the union(s). In such circumstances the employer will meet with representative(s) of the union(s) to:

(a) Identify the issues the employee(s) wish to have considered by the new employer;

(b) Ensure that all current terms and conditions of employment of the employee(s) are accurately recorded; and

(c) Determine the process by which communications to/from the employee(s) will be conducted.

6.1.2 The employer will encourage the new employer to agree to the involvement of the union(s) in the processes described in clauses 6.1.3 and 6.1.4 below

6.1.3 Having completed the process described in 6.1.1 above, the employer will meet with the new employer to:

(a) provide the new employer with details of the work currently performed by the employees concerned together with details of the terms and conditions of their employment; and

(b) seek a proposal for the employment of the affected employees by the new employer, including clarification of the terms and conditions upon which those employees would be offered employment by the new employer.

6.1.4 The following shall be matters for clarification under clause 6.1.3(b) and again should be read in conjunction with the surplus staffing provisions of this collective agreement.

(a) the number and type of positions that may be offered by the new employer to employees affected by the restructuring;

(b) the terms and conditions of employment to be offered to those employees (including whether the employees will transfer to the new employer on the same terms and conditions of employment);

(c) the arrangements, if required, for the transfer of any accrued benefits and entitlements in relation to those employees;

(d) the arrangements, if required, for when and how offers of employment are to be made to the affected employees and the mode of acceptance, including whether any offers of employment made by the new employer will be conveyed through the representatives of the union(s).

6.1.5 The notice provisions of the surplus staffing provisions shall apply as described in 6.2.3 and 6.2.4 below.

6.1.6 The process to be followed at the time of the restructuring to determine what entitlements, if any, are available for employees who do not transfer to the new employer are set out in 6.2 below.  This clause as a whole shall be read in conjunction with those provisions.

6.1.7 Clause 6.1 shall be read in conjunction with clause 6.2.

6.2    Surplus Staffing Provisions

6.2.1 The surplus staffing provisions shall not apply to any employee who is employed on a fixed term basis as defined in 2.4.  The provisions in relation to staff affected by a merger of 2 or more schools are set out under Appendix C and any provisions in  6.2 will only apply where they are specifically provided for in that Appendix.

6.2.2 A surplus staffing situation may arise when the work undertaken by the employee ceases to exist.  This may be the result of the restructuring of the whole or any part of the employer’s operations because of, for example:

• the reorganisation or review of work;
• a change in plant (or like cause) relevant to the individual employees employment; or
• change of status or closure of the school, or the sale or transfer of all or part of the school.

6.2.3 The employer shall, at least one month prior to issuing notice of termination, advise any affected employee(s) of the possibility of a surplus staffing situation within an occupational category in the school.

6.2.4 The period of notice is to allow time for discussion between the employer and the employee(s) of the reasons for the possible surplus staffing situation and to determine whether this surplus can be absorbed by attrition.  The employer shall consider whether or not it is able to offer an alternative position within the school with terms and conditions that are no less favourable, which may also entail on the job retraining.

6.2.5 If the required number of positions cannot be achieved through attrition (refer 6.2.4) and a surplus staffing situation still exists, all available positions in the occupational category will be internally advertised and appointments made from existing employees in that category.

Where there is only one position in the identified occupational category in which the surplus exists identification of the position shall be automatic.

6.2.6 Employees who are not appointed in terms of 6.2.5 above, or who are identified as surplus in terms of 6.2.5 above shall be given a minimum of one month’s written notice of termination of employment provided for in 7.10.  Except in exceptional circumstances (e.g., long-term sick leave), or as agreed with the employee, this notice shall be given at such a time as to ensure it covers a period of a full month during which the employee is paid and at work.

6.2.7 During the notice of termination period both the employer and the employee shall make reasonable efforts to locate alternative employment for the employee.  The employer will provide reasonable paid time to attend interviews, where prior approval will not be unreasonably withheld.

6.2.8 In the event that a reasonable offer of employment in the education or state service is made the employer’s responsibilities under these provisions shall be fulfilled.

6.2.9 For the purposes of 6.2.8 a reasonable offer of employment shall constitute an offer of employment that:

• is in the same location or within reasonable commuting distance;
• has comparable duties and responsibilities; and
• has terms and conditions that are no less favourable

providing the employment being offered is available to be taken up by the employee prior to or at the conclusion of the notice of termination period.

6.2.10 If the offer of employment referred to in 6.2.9 is not a reasonable offer by reason only that it is not available to be taken up by the employee before or at the conclusion of the notice period, the employer may extend the notice period until such time as the position is available to be taken up by the employee; and under these circumstances the offer shall be deemed to be reasonable.

The employer must first ensure that in granting such extended notice that this complies with any funding arrangement applying to the school.

6.2.11 In the event of a school closure, the employee may be made an offer of employment prior to the disestablishment of the position at another state or integrated school.  Where this is an offer of employment to a lower graded position or a position at a lower hourly/salary rate than that previously held, the employee shall be entitled to an equalisation allowance calculated in accordance with Appendix C, clause 8.6.  Where this is an offer of employment to a position with reduced hours to that previously held, the employee shall be entitled to a partial redundancy payment calculated in accordance with Appendix C, clause 8.7.  Where the employee accepts such an offer the employer of the closing schools’ responsibilities under 6.2.12 below shall be fulfilled.  Where the employee does not accept such an offer the provisions of 6.2.12 shall apply.

6.2.12 Except as provided under 6.2.11, above where a reasonable offer of employment is not made before the expiry of the notice of termination period the employee will be entitled to redundancy pay calculated as follows:

(a) 6 weeks pay for the first year of service and two weeks pay for every subsequent year or part there of to a maximum of 30 weeks pay in total.

Note:
1. This is calculated on current gross weekly earnings as at the last day of service or on average gross weekly earnings over the previous 12 months service whichever is the greater.
2. For the purposes of the redundancy calculation the definition of service for employees other than therapists is the same as that defined in 4.2.3 (a) and (b) provided that no period of service that ended with the employee receiving a redundancy or severance payment shall be counted as service.
3. For the purposes of the redundancy calculation the definition of service for therapists is the same as that defined in 4.1.1 provided that no period of service that ended with the employee receiving a redundancy or severance payment shall be counted as service.
4. An employee with less than one year’s service shall receive a pro-rata payment.

(b) All holiday pay and wages owing.

6.2.13 A work reference or record of service shall be provided on the employee’s request.