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Termination by Operation of the MOP(S) Act
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.
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.
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.
Unless terminated earlier, the employment of non-ongoing and casual employees ceases at the expiry of the period specified in the employment agreement.
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 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.
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.
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.