Section 16 of the Members of Parliament (Staff) Act 1984 deals with the termination of employment of an Opposition Office Holder’s employees.
Generally the employment of non-ongoing and casual employees ceases at the expiry of the period specified in the employment agreement.
As a backbench Senator or Member, a former Opposition Office Holder who remains a Member of Parliament will need to complete new employment agreements under Part IV of the Members of Parliament (Staff) Act 1984 with those employees he or she wishes to retain as electorate employees.
The employment of a person terminates if:
- the employing Opposition Office Holder dies;1
- the employing Opposition Office Holder ceases to hold office as an Opposition Office Holder;2 or
- the employing Opposition Office Holder (or a person authorised by him or her) gives written notice to the employee terminating the person’s employment.3
- the employee resigns by giving notice to the Opposition Office Holder in writing.4
Depending on the circumstances surrounding termination of employment, the termination of a personal employee’s employment may be deferred.5
Ministerial and Parliamentary Services will provide advice to all affected employees in the case of any deferral of termination of employment. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.
The termination of employment by the employer may occur for a number of reasons, for example:
- the office may be restructured, calling for a different mix of skills;
- unsatisfactory performance or conduct by the employee;
- the Opposition Office Holder has lost confidence in the employee; or
- the employee has a significant conflict of interest.
Employees are covered by the unfair dismissal provisions contained in the Fair Work Act 2009.6
Employees who have not completed the minimum employment period are excluded from making an unfair dismissal application. The minimum employment period is six months with the Commonwealth.7 Further information can be obtained through the relevant Ministerial and Parliamentary Services Entitlements Manager and reference should also be made to:
It is important that an Opposition Office Holder faced with an organisational or employment issue seeks the early assistance of the relevant Ministerial and Parliamentary Services Entitlements Manager.
As soon as they are notified that their employment under the Members of Parliament (Staff) Act 1984 will be terminated, employees who are APS employees on leave without pay from their agency should give notice in writing to their Agency Head of their intention to return to the agency, and should return as soon as practicable, but within the two week period, to their agency.
In the period between an Opposition Office Holder ceasing to hold office and the termination of an employee’s employment, travel by commercial scheduled services may only be undertaken between the Opposition Office Holder’s electorate office and/or capital city office and Canberra. Associated car transport is available for essential journeys. The relevant Ministerial and Parliamentary Services Entitlements Manager can provide personalised advice about travel during this time.
1 Subsection 16(1) of the Members of Parliament (Staff) Act 1984.
2 Paragraph 16(2)(a) of the Members of Parliament (Staff) Act 1984. The employment of an Opposition Office Holder’s employees, including electorate employees, is terminated when an Opposition Office Holder ceases to hold that relevant office.
3 Subsection 16(3) and section 32 of the Members of Parliament (Staff) Act 1984.
4 Subsection 16(4) of the Members of Parliament (Staff) Act 1984.
5 Clauses 3 and 4 of Direction 2013/4 Direction to Defer the Termination of Employment, made under the Members of Parliament (Staff) Act 1984.
6 See Part 3-2 of Chapter 3 of the Fair Work Act 2009.
7 Sections 382 and 383 of the Fair Work Act 2009.