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Cessation of Employment

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Termination by Operation of the MOP(S) Act

Employee Travel During a Deferral Period

During the period where a termination of employment is deferred, travel may only be undertaken between the electorate office and/or other office provided at Commonwealth expense and Canberra. The relevant Ministerial and Parliamentary Services’ Advice and Support Director can provide advice about travel during this time.

Termination at the Initiative of the Employing Senator or Member

Sections 16 and 23 of the MOP(S) Act provide that an employing Senator or Member (or a person authorised by him or her) may give notice of termination in writing to an employee.

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 set of skills
  • unsatisfactory performance or conduct by the employee
  • the Senator or Member has lost trust or 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.

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.

Under the Fair Work Act the factors that will be taken into account when considering whether a dismissal was harsh, unjust or unreasonable include whether:

  • there is a valid reason for the termination related to the capacity or conduct of the employee
  • the employee has been notified of the reason for the termination
  • the employee has been given the opportunity to respond to any reason related to his or her capacity or conduct
  • the Senator or Member has, where reasonable, allowed the employee to have a support person present to assist at any discussions relating to the termination
  • if the termination related to unsatisfactory performance—the employee has been warned about that unsatisfactory performance before the termination and given sufficient opportunity to improve his or her performance
  • any other matters that the Fair Work Commission considers relevant.

Further information on termination of employment can be obtained through the relevant Advice and Support Director. It is important that a Senator or Member, faced with an organisational or employment issue, seeks the early assistance of their Advice and Support Director.

A Termination of Employment form (Form 107) must be forwarded to Ministerial and Parliamentary Services as soon as possible to provide information on the circumstances of the termination of employment and enable the completion of relevant personnel matters.

Notice Period

A Senator or Member must provide the required period of notice when terminating the employment of an employee, except where the employment is terminated due to serious misconduct. Where the applicable period of notice is not given, a payment in lieu of notice is made.

Length of Continuous Service Employed by the Commonwealth* Period of Notice
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.

When an employee is over 45 years of age and has completed two years’ continuous service at the time of termination the employee is entitled to one additional week’s notice of termination.

Non-ongoing or Casual Employment

Unless terminated earlier, the employment of non-ongoing and casual employees ceases at the expiry of the period specified in the employment agreement.

Australian Public Service (APS) Employees

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 to their agency.

Severance Benefits

Severance benefits are payable to ongoing employees under the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (the Enterprise Agreement) on termination of employment other than through resignation and excluding circumstances set out in clause 64.1 of the Enterprise Agreement. The severance benefits payable to staff are set out in clause 64.2 of the Enterprise Agreement.

Additional severance benefits of 30 per cent will be payable when employment ceases as a result of a Senator or Member dying, ceasing to be a Senator or Member, or ceasing to hold office, and if the benefits are not treated as a ‘genuine redundancy payment’ for the purpose of subdivision 83-C of the Income Tax Assessment Act 1997. A severance benefit payable on the automatic termination of employment under the MOP(S) Act is not treated as a genuine redundancy payment.

When an employee who has received a severance benefit is re-employed by a Senator or Member during the period covered by the severance payment defined in the Enterprise Agreement, their severance benefit will be reduced by the period of overlap and they will be required to repay the overlapping portion of the severance benefit, including any additional severance benefit. For example, an employee receiving a severance benefit of 10 weeks’ pay on termination is re-employed by a Senator or Member after a period of six weeks. The severance benefit for the remaining four weeks is to be repaid.

Payment of Accumulated Long Service Leave

Employees with between one and 10 years’ service whose employment is terminated for reasons other than poor performance or misconduct and where the termination has not been initiated, or agreed to, by the employee concerned, may be entitled to pro rata long service leave or payment in lieu of the pro rata long service leave. Pro rata long service leave or payment in lieu is payable 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.

Further information about the granting, or payment in lieu, of pro rata long service leave should be obtained through the relevant Advice and Support Director.

Resignation

An employee may resign from his or her employment at any time by giving notice in writing to the employing Senator or Member.

A copy of the letter of resignation and the Termination of Employment form (Form 107) must be forwarded to Ministerial and Parliamentary Services as soon as possible to enable the completion of relevant personnel matters.

Termination by Operation of the MOP(S) Act

Senator

Sections 16 and 23 of the MOP(S) Act deal with the termination of employment.

Employment terminates if the employing Senator:

  • dies; or
  • ceases to be a Senator.

The employment of a personal employee is also terminated if the employing Senator ceases to hold the designation which was the reason the employee position was allocated. For example, if the Prime Minister allocates a Senator a personal employee position as an ‘Independent Senator’ and the Senator then joins the Opposition, the Senator ceases to be an Independent Senator and the personal employee’s employment is terminated.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides for the deferral of termination of employment of MOP(S) Act employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

Generally, employees are deemed to continue to be employed for a period after the employing Senator dies or ceases to be a Senator, other than on expiry of the Senator's term.

The electorate employees of a Senator for a Territory continue in employment until a casual vacancy is filled or until the declaration of the poll in an election. Electorate employees of a Senator for a State continue to be employed until a casual vacancy is filled or until the declaration of the poll in a double-dissolution election.

For personal employees, the employment generally continues for a period of two weeks where the Senator dies, resigns from parliament, or ceases to hold the designation for which a personal employee position was allocated.

The employment generally continues for a period of eight weeks if the termination is as a result of a Federal election.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Member

Sections 16 and 23 of the MOP(S) Act deal with the termination of employment.

Employment terminates if the employing Member:

  • dies; or
  • ceases to be a Member.

The employment of a personal employee is also terminated if the employing Member ceases to hold the designation which was the reason the employee position was allocated. For example, if the Prime Minister allocates a Member a personal employee position as an ‘Independent Member’ and the Member then joins the Opposition, the Member ceases to be an Independent Member and the personal employee’s employment is terminated.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides for the deferral of termination of employment of MOP(S) Act employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

Generally, employees are deemed to continue to be employed for a period after the employing Member dies or ceases to be a Member.

The electorate employees of a Member continue in employment until the declaration of the poll in an election or by-election.

For personal employees, employment generally continues for a period of two weeks where the Member dies, resigns from parliament or ceases to hold the designation for which a personal employee position was allocated. The employment generally continues for a period of eight weeks if the termination is as a result of a Federal election.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Minister

Section 16 of the MOP(S) Act deals with the termination of employment of a Minister’s employees.

As a backbench Senator or Member, a former Minister will need to complete new employment agreements under Part IV of the MOP(S) Act with those employees he or she wishes to retain as electorate employees.

The employment of a person terminates if the employing Minister:

  • dies; or
  • ceases to hold office as a Minister.

The employment of a Minister’s employees, including electorate employees, is terminated when a Minister’s commission of appointment is revoked, including circumstances where a Minister may be re-sworn following a ministerial reshuffle or the swearing of a new ministry after an election.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides for the deferral of termination of employment of MOP(S) Act employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

For both electorate and personal employees, the employment generally continues for a period of eight weeks if the termination is as a result of a Federal election.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Parliamentary Secretary

Section 16 of the MOP(S) Act deals with the termination of employment of a Parliamentary Secretary’s employees.

As a backbench Senator or Member, a former Parliamentary Secretary will need to complete new employment agreements under Part IV of the MOP(S) Act with those employees he or she wishes to retain as electorate employees.

The employment of a person terminates if the employing Parliamentary Secretary:

  • dies; or
  • ceases to hold office as a Parliamentary Secretary.

The employment of a Parliamentary Secretary’s employees, including electorate employees, is terminated when a Parliamentary Secretary’s commission of appointment is revoked, including circumstances where a Parliamentary Secretary may be re-sworn following a ministerial reshuffle or the swearing of a new ministry after an election.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides for the deferral of termination of employment of MOP(S) Act employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

For both electorate and personal employees, the employment generally continues for a period of two weeks, or eight weeks if the termination is as a result of a Federal election.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Presiding Officer

Section 16 of the MOP(S) Act deals with the termination of employment of a Presiding Officer’s personal employees.

The employment of a person terminates if the employing Presiding Officer:

  • dies;
  • ceases to be a Senator or Member; or
  • the determination under section 12 of the MOP(S) Act empowering the Presiding Officer to employ staff under Part III of the Act is revoked (for example, if the Presiding Officer ceases to hold that office).

If a determination under section 12 of the MOP(S) Act is revoked, only the employment of a Presiding Officer’s personal employees is terminated.  The employment of electorate employees is unaffected as they are employed under Part IV of the MOP(S) Act.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides particular arrangements for the deferral of termination of employment of a Presiding Officer's personal employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

For electorate employees, any deferral of termination is as for a Member or Senator.

For personal employees, the employment generally continues:

  • if the termination is a result of the Presiding Officer’s death or resignation from the Parliament or as Presiding Officer, for a period of two weeks after a new Presiding Officer is chosen; or
  • if the termination is as a result of a Federal election, for a period of eight weeks after a new Presiding Officer is chosen.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Senior Office Holder who is a Member of the Opposition

Section 16 of the MOP(S) Act deals with the termination of employment of an employee of a Senior Office Holder who is a member of the Opposition.

As a backbench Senator or Member, a former Senior Office Holder who is a member of the Opposition will need to complete new employment agreements under Part IV of the MOP(S) Act with those employees he or she wishes to retain as electorate employees.

The employment of a person terminates if the employing Senior Office Holder who is a member of the Opposition:

  • dies; or
  • ceases to hold office as a Senior Office Holder who is a member of the Opposition, including on ceasing to be Senator or Member.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides for the deferral of termination of employment of MOP(S) Act employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

For both electorate and personal employees, the employment generally continues for a period of two weeks, or eight weeks if the termination is as a result of a Federal election.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Leader of a Minority Party

Section 16 of the MOP(S) Act deals with the termination of employment of a Leader of a Minority Party’s employees.

Unless terminated earlier, 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 Leader of a Minority Party will need to complete new employment agreements under Part IV of the MOP(S) Act with those employees he or she wishes to retain as electorate employees.

The employment of a person terminates if the employing Leader of a Minority Party:

  • dies; or
  • ceases to hold office as the Leader of a Minority Party, including on ceasing to be Senator or Member.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides for the deferral of termination of employment of MOP(S) Act employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

For both electorate and personal employees, the employment generally continues for a period of two weeks, or eight weeks if the termination is as a result of a Federal election.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Shadow Minister

Section 16 of the MOP(S) Act deals with the termination of employment of a Shadow Minister’s personal employees.

The employment of a person terminates if the employing Shadow Minister:

  • dies;
  • ceases to be a Senator or Member; or
  • the determination under section 12 of the MOP(S) Act empowering the Shadow Minister to employ staff under Part III of the Act is revoked (for example, if the Shadow Minister ceases to hold office as a Shadow Minister or changes Shadow portfolio).

If a determination under section 12 of the MOP(S) Act is revoked, only the employment of a Shadow Minister’s personal employees is terminated.  The employment of electorate employees is unaffected as they are employed under Part IV of the MOP(S) Act.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides for the deferral of termination of employment of MOP(S) Act employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

For electorate employees, any deferral of termination is as for a Member or Senator.

For personal employees, the employment generally continues for a period of two weeks, or eight weeks if the termination is as a result of a Federal election.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Whip

Section 16 of the MOP(S) Act deals with the termination of employment of a Whip’s personal employees.

The employment of a person terminates if the employing Whip:

  • dies;
  • ceases to be a Senator or Member; or
  • the determination under section 12 of the MOP(S) Act empowering the Whip to employ staff under Part III of the Act is revoked (for example, if the Whip ceases to be a Whip).

If a determination under section 12 of the MOP(S) Act is revoked, only the employment of a Whip’s personal employees is terminated.  The employment of electorate employees is unaffected as they are employed under Part IV of the MOP(S) Act.

Direction 2019/6Direction to defer the termination of employment, issued by the Special Minister of State provides for the deferral of termination of employment of MOP(S) Act employees in certain circumstances.

Direction 2019/6: Direction to defer the termination of employment

For electorate employees, any deferral of termination is as for a Member or Senator.

For personal employees, the employment generally continues for a period of two weeks, or eight weeks if the termination is as a result of a Federal election.

Ministerial and Parliamentary Services will, at the appropriate time, provide relevant employees with specific advice regarding the termination of employment and any deferral period. Any period of deferral of termination of employment may be used to settle affairs in the office and to seek other employment.

Further information on cessation of employment can be obtained through the relevant Ministerial and Parliamentary Services Advice and Support Director.

Last updated: 13 December 2019