4 to 12

4. GETTING WORK DONE AT THE ABC: EMPLOYEES OR CONTRACTORS?.......................... 3
4.1 Introduction ....................................................................................................................................... 3
4.2 Why your decision is important...................................................................................................... 3
4.3 What’s the difference? .................................................................................................................... 4
4.3.1 The ‘multi-factor’ test................................................................................................................ 5
4.4 Sole traders and registered companies ....................................................................................... 5
4.4.1 Tax .............................................................................................................................................. 5
4.4.2 Superannuation ........................................................................................................................ 6
4.5 Employing artists ............................................................................................................................. 6
4.6 Issuing presenter contracts ............................................................................................................ 7
9. MANAGING UNDERPERFORMANCE AND UNSATISFACTORY PERFORMANCE ............... 8
9.1 Introduction ....................................................................................................................................... 8
9.2 Distinguishing underperformance from misconduct ................................................................... 8
9.3 Performance issues: underperformance and unsatisfactory performance ............................. 8
9.4 Managing underperformance – a less formal process............................................................... 9
9.4.1 Provide constructive feedback ............................................................................................... 9
9.4.2 Provide formal advice .............................................................................................................. 9
9.5 Inadequate improvement in performance .................................................................................. 10
9.6 Managing unsatisfactory performance – a more formal process ........................................... 10
9.6.1 Inform the employee there’s a problem with their performance ...................................... 11
9.6.2 Meet with the employee ........................................................................................................ 11
9.6.3 If performance IMPROVES to a satisfactory standard ..................................................... 12
9.6.4 If performance does NOT IMPROVE to a satisfactory standard .................................... 12
9.6.5 Outcomes ................................................................................................................................ 12
10. MISCONDUCT ................................................................................................................................... 13
10.1 Definition ....................................................................................................................................... 13
10.2 Process and possible outcomes ............................................................................................... 13
10.3 Employee suspension................................................................................................................. 15
10.4 Possible outcomes of substantiated misconduct.................................................................... 15
10. MISCONDUCT ................................................................................................................................... 16
10.1 Definition ....................................................................................................................................... 16
10.2 Process and possible outcomes ............................................................................................... 17

10.3 Employee suspension................................................................................................................. 18
10.4 Possible outcomes of substantiated misconduct.................................................................... 18
11. TERMINATION AND REDUNDANCY ............................................................................................ 19
11.1 Reasons for termination of employment .................................................................................. 19
11.2 Notice requirements for termination ......................................................................................... 19
11.2.1 Termination without notice .................................................................................................. 20
11.2.2 Termination with notice ....................................................................................................... 20
11.3 Reasons for redundancy ............................................................................................................ 20
11.4 The redundancy process ............................................................................................................ 21
11.4.1 Development of business case .......................................................................................... 21
11.4.2 Consultation .......................................................................................................................... 21
11.4.3 Notification of redundancy .................................................................................................. 22
11.4.4 ................................................................................................................................................. 22
11.4.5 Decision to redeploy ............................................................................................................ 23
11.4.6 Substitution ........................................................................................................................... 23
11.4.7 Payments............................................................................................................................... 23
11. TERMINATION AND REDUNDANCY ............................................................................................ 24
11.1 Reasons for termination of employment .................................................................................. 25
11.2 Notice requirements for termination ......................................................................................... 25
11.2.1 Termination without notice .................................................................................................. 25
11.2.2 Termination with notice ....................................................................................................... 25
11.3 Reasons for redundancy ............................................................................................................ 26
11.4 The redundancy process ............................................................................................................ 26
11.4.1 Development of business case .......................................................................................... 26
11.4.2 Consultation .......................................................................................................................... 27
11.4.3 Notification of redundancy .................................................................................................. 27
11.4.4 ................................................................................................................................................. 27
11.4.5 Decision to redeploy ............................................................................................................ 28
11.4.6 Substitution ........................................................................................................................... 28
11.4.7 Payments............................................................................................................................... 29
11.4.8 Re-engagement .................................................................................................................... 30

4. GETTING WORK DONE AT THE ABC: EMPLOYEES OR
CONTRACTORS?

4.1 Introduction
5
Everyone who performs work for the ABC is either an employee or a contractor. Within these two options
there are a number of ways the ABC can engage people to work. These are outlined in Figure 4A.

Figure 4A: Types of working arrangements

Chapter 5 ‘Forms of Employment’ explains the employment relationship in detail and how ongoing, fixed
term, specified task and casual employees may be appropriately employed. This chapter describes the
step before that: deciding whether to engage an employee or a contractor to complete a given job.

4.2 Why your decision is important
Why does it matter if someone is classified as an employee or a contractor? Essentially, the relationship
between an employer and an employee is fundamentally different to the relationship between a principal
and a contractor and these two relationships give rise to different rights and obligations. The ABC has
greater obligations with respect to its employees than its contractors. If we classify a person incorrectly – for
example, treating someone as a contractor when they’re really an employee – that person may claim unpaid
employment entitlements as far back as six years. This may include payment of any wages not paid,
reasonable notice, annual leave and long service leave. In some circumstances the ABC may also be
required to make a redundancy payment, not to mention pay the legal costs of any litigation! This means the
financial exposure to the ABC can be significant if we get it wrong.

5
This doesn’t include people like ABC Board members and the like.
The terms ‘contractor’ and ‘independent contractor’ mean the same thing.

Don’t be fooled into thinking that engaging a contractor involves less risk than employing someone: it’s
often okay when the relationship starts but when things go awry and the relationship ends, the contractor
may question the nature of the relationship and believe they were treated like an employee rather than a
contractor. This may lead them to seek payment for all the employment-related entitlements they didn’t
get as a contractor, such as sick leave and annual leave.
No matter which option you choose (that is, employing someone or engaging a contractor), a contract will
exist between the parties. It’s a common mistake to assume that because no written contract exists, there
is no contract. A written contract makes it clear to both the ABC and the employee (or the contractor)
what is expected of them and sets out their rights and obligations. But when someone does a job for you,
even if you don’t write down the terms of the arrangement, the way in which the person does the job, and
how we pay them, forms the basis of an unwritten contract. Also, anything you say to that person about
how you want the job done and how you will pay them can form part of the contract. To avoid uncertainty,
disagreement and possibly litigation, it’s always better to have a written contract stating Radio’s
requirements and the person’s obligations and entitlements.

4.3 What’s the difference?
The difference between an employee and a contractor is whether the person works for Radio or whether
they are in business for themselves doing a job for Radio. For example, when you hire an electrician to
rewire your house you’re not employing them to do the job, you’re contracting with them to provide
electrical services and you’ll pay them on completion of that service.
The employment relationship developed out of the master/servant relationship when the master had virtual
control over the servant. As a result, the law viewed employees as needing greater protection than
contractors. Contractors were regarded as being in business for themselves and therefore in a better and
more equal position to negotiate terms with the principal.
While this distinction may not be as relevant today as it was 100 years ago, it’s true to say that an
employer has far greater obligations with respect to its employees than to its contractors. For example,
when the ABC employs someone it is required to:
• pay in accordance with relevant industrial awards
and agreements;
• deduct PAYE tax from wages;
• pay the Superannuation Guarantee Levy in respect
of wages;
• provide leave entitlements (i.e. annual leave, sick leave, long service leave); and
• have workers’ compensation insurance in respect of its employees.
As you can see, it’s critical that the ABC correctly distinguishes between employees and contractors. The
problem is it’s not always easy to do so.
It’s a common mistake to believe that if a contract states someone is a contractor it must be so. If only it
were that simple! From time to time the courts are asked to decide the issue and, when doing so, they
look to the substance of the relationship and not just the form (i.e. not just what the relationship has been
called). The courts will consider what the contract says about the nature of the relationship but they’ll also
look at other factors.

4.3.1 The ‘multi-factor’ test
Over time the courts have developed what’s called the ‘multi-factor’ test, which you can apply to
determine whether someone is an employee or a contractor. Generally the issues to look at include:
• the level of control over the work: whether we oversee what the person does and require it to be done to
Radio’s specified standards;
• the mode of remuneration: whether we pay a set rate per fortnight or on completion of a job and on
presentation of an invoice;
• equipment: whether the equipment is provided and maintained by the ABC or the individual; and
• whether the person has to work set hours.

Typically, employees provide exclusive services to an employer whereas contractors work for a number of
organisations. Another difference is that contractors normally have the right to delegate the work and
often get someone else to do it, so long as the job gets done.
It’s a matter of weighing up all the factors involved in the relationship to see if they point more strongly to
an employer/employee relationship or one of principal and contractor. P&L has a checklist to help you
through this process. A copy is provided in Appendix 4A.
Remember: if it walks like a duck and talks like a duck, it probably is a duck!

4.4 Sole traders and registered companies
As shown in Figure 4A, a contractor may provide their services as an individual (a sole trader) or via a
company, trust or partnership. We will focus on sole traders and companies because they are the most
common types of arrangements you will deal with.
Whether a contractor is a sole trader or part of a company is clear at law but often gets very confused in
the real world. That’s because a ‘business’ can mean the activities of a sole trader or the activities of a
company. Individuals can set up a business without setting up a registered company structure. For
example, ‘Jo Bloggs Radio Production Business’ may simply involve Jo Bloggs in his own business as a
sole trader and not a registered company as the name might suggest. People often use the terms
‘business’ and ‘company’ interchangeably but as you can see they are very different beasts.

4.4.1 Tax
Generally, a sole trader will get a business name registered and acquire an ABN number. If they include
this ABN number on their invoice, the ABC will not deduct any tax from the contract fee. If however, the
sole trader does not have or does not include an ABN number on their invoice, the ABC will deduct tax at
the highest marginal rate and submit it to the Australian Taxation Office.

2
Having an ABN number does not mean the business is a registered company. To be a registered
company the business must have an ACN number and they get this when it’s registered with the

Australian Securities and Investment Commission. The most common type of registered company you’ll
deal with is likely to be a ‘Pty Ltd’ company.
Having an ACN number has important consequences in terms of tax. The ABC does not deduct tax from
invoices from registered companies. It’s up to the registered company to sort out its own tax obligations.

4.4.2 Superannuation
The distinction between sole traders and registered companies is also important with respect to
superannuation. It’s straightforward when the contractor is providing services via a registered company:
the ABC has no obligation to make superannuation contributions. However, the superannuation situation
with contractors who are sole traders is more complicated.
Normally contractors who are sole traders wouldn’t be entitled to superannuation as it is an employee
entitlement. However, the relevant superannuation legislation deems certain contractors to be employees.
This means the ABC must treat those contractors as if they were employees (for superannuation purposes
only) and it must pay superannuation contributions in respect of their earnings (unless they earn less than
$450 per month or are under 18 or over 70 years of age).
The ABC pays superannuation contributions for contractors who are sole traders except those working in
the areas of security, cleaning or repairs and maintenance.
If you engage a sole trader, they need to complete:
• a Contractor (Sole Trader) Details Form, to get them set up in the pay system; and
• a Choice of Superannuation Fund Form.
These forms need to be sent to Accounts Payable in Adelaide. Then, when you receive an invoice from
the sole trader, you need to complete an Authority to Pay Contractor (Sole Trader) form and send it and
the invoice to Accounts Payable. All these forms are available on P&L’s intranet page called ‘Engagement
of Contractors’. Copies are also provided in Appendices 4B to 4D.
If you are unsure about any of this you should seek advice from your State P&L team or refer to the P&L
3
intranet page called ‘Engagement of Contractors’ as that has a lot of useful information. For example,
see Appendix 4E, ‘Superannuation for Contractors: Guidelines for Assessing Eligibility’ for more
information.

4.5 Employing artists
Like everybody else performing work for the ABC, an artist is either an employee or a contractor. Apply
the multi-factor test outlined in section 4.3.1 and the checklist provided in Appendix 4A to work out if
they’re an employed artist or a contracted artist. If you decide that the artist is a contractor who is a sole
trader (ie not a registered company) then super contributions must be paid. For more information read
Appendix 4F, ‘ABC Guidelines for Payment of Artists’.

4.6 Issuing presenter contracts
So now you’re the full bottle on the difference between employees and contractors, what are the practical
steps you need to take to issue a contract for a presenter?
Most Radio presenters are employees though there are some who are engaged as contractors, either as
sole traders or via registered companies.
A new process for issuing presenter contracts was established in Radio in 2007. The focus of this new
process has mainly been on metro presenters who
have new contracts negotiated each program year
(or longer). The objectives of the new process are to:
• improve and standardise the procedures within Radio, and between Radio and P&L and Legal Services;
• assist and support managers by streamlining the process and making it more consistent;
• ensure that useful and appropriate contract clauses are used across the entire Division rather than in
isolated instances within particular networks;
• assist with the management of terms and conditions generally across the Division; and
• provide managers with greater support in relation to the contracts.
Under the new process, the Project Manager, Strategy, Communication & People Development (Ruth
Niall, on 82 4881) coordinates the issuing of presenter contracts in Radio. The Project Manager is the
central contact for liaising with P&L and Legal Services; rather than spending your time chasing details,
you have a dedicated point of contact who does the legwork for you and who can help you draft
contractual clauses to address specific needs.

The steps in the process are as follows:
STEP 1:
In Local Radio the manager gives the Project Manager an Instructions Sheet (see Appendices 4G and
4H) and a Staff Engagement Form (if the presenter is an employee, see Appendix 4I) setting out all the
requirements for the contract. In the National Networks the manager gives these documents to their
Business Manager who checks them and sends them through to the Project Manager.
STEP 2:
The Project Manager decides whether the contract will be drafted by P&L or Legal Services and sends off
the details to the appropriate area.
STEP 3:
The Project Manager liaises with P&L or Legal Services in relation to the drafting of the contract.
STEP 4:
The Project Manager, in consultation with the Radio manager, organises for the contract to be finalised
and returned to the Radio manager who then has the contract signed by the presenter.
Employment contracts will be processed by P&L and contractor arrangements by Legal Services.

9. MANAGING UNDERPERFORMANCE AND UNSATISFACTORY
PERFORMANCE

9.1 Introduction
If you have concerns about an employee’s performance you need to raise them with the employee as
soon as possible as part of the ongoing feedback throughout the performance cycle. Be proactive about
your concerns and don’t wait for the annual appraisal at the end of the cycle. In general, the earlier a
problem is dealt with, the easier it is to resolve.

9.2 Distinguishing underperformance from misconduct
Sometimes there is an overlap between underperformance and misconduct, making it difficult to
distinguish them from each other. However, it’s important to determine what you’re dealing with because
the Employment Agreement sets out quite different processes to deal with underperformance and
misconduct.
Essentially, underperformance is where an employee’s productivity fails to meet one or all of the required
objectives and standards. If the issue is primarily about how they’re doing their job in terms of things like
poor quality or output, time taken to complete tasks or error rates, then it‘s likely to be a performance
issue.
Misconduct, on the other hand, is where an employee’s behaviour or actions are inappropriate or
improper as defined in the Employment Agreement. For example, breaches of the Code of Conduct and
ABC policies such as the Editorial Policies can be misconduct depending on the circumstances.
Misconduct is discussed in detail in Chapter 10.
It’s easy to think of situations where there’s overlap. For example, an employee may wilfully disobey or
disregard a lawful direction (misconduct) and that may result in a decrease in productivity
(underperformance). In these circumstances, a manager may decide to treat the situation either through
the misconduct provisions of the Employment Agreement or through the underperformance provisions.
It’s worth discussing the situation – either with Radio’s People & Communication contact or with P&L – to
decide which way to go. In the example given, it’s a matter of deciding whether to ‘discipline’ the
employee for their failure to follow a direction or to focus attention on the employee’s decreased
productivity by looking at ways the employee can improve their performance.

9.3 Performance issues: underperformance and unsatisfactory
performance
Performance problems may involve underperformance or unsatisfactory performance. These are treated
differently under the Employment Agreement, so again it’s important to understand the difference.
Underperformance is less serious than unsatisfactory performance.
Underperformance is where there is a problem with an employee’s performance and they fail to meet one
or all of the required objectives and standards (as set out in their job plan).
Unsatisfactory performance occurs when attempts to remedy underperformance have been unsuccessful.

So you only move to the processes dealing with unsatisfactory performance after you have first worked
through the processes dealing with underperformance.

9.4 Managing underperformance – a less formal process
An employee may be underperforming for a range of reasons. It’s important to identify the underlying
causes of underperformance because they will impact on attempts to remedy the problem.
Causes of underperformance can include the following:
• unclear expectations;
• delays or problems caused by other people and outside the employee’s control;
• poor working relationships or conflict in the work area;
• personal problems outside the workplace, which are impacting on the employee at work;
• insufficient knowledge or skills to carry out the tasks;
• inefficient work practices; and
• a poor attitude and lack of enthusiasm for the work.

9.4.1 Provide constructive feedback
There should be ongoing positive and constructive feedback between you and the employee throughout
the performance cycle. Constructive feedback is very important when dealing with performance issues or
concerns. If an employee is not given feedback about their poor performance they can’t really be
expected to improve. In fact, if they aren’t dealt with, poor work practices can become entrenched and
may be difficult to change.
If you identify a problem with an employee’s performance, immediately discuss the problem directly and
clearly with the employee.
Giving constructive feedback is not always easy, and it’s often harder if you’re dealing with an employee
who is underperforming, in part because the employee may become defensive and emotional in their
responses. It’s a good idea to discuss the problem with your manager and consider ways to tackle the
issues during any meetings you have with the employee.

9.4.2 Provide formal advice
If initial informal discussions don’t result in an improvement in the employee’s performance, you may
decide that more formal processes need to be applied.
The process for managing underperformance is set out in clause 23.5 of the Employment Agreement:
(a) advise the employee in writing that an underperformance issue/s needs to be addressed;
(b) inform the employee of the performance standards they are expected to achieve and the area/s of
performance they need to improve;
(c) provide an opportunity for the employee to respond so that all relevant matters can be considered,
including any possible changes to the performance standards expected and any requests by the

employee for training, coaching, re-arrangement of duties or changes to the work environment; and
(d) set a reasonable period over which the employee’s performance will be monitored and a date for
review having regard to (c) above.
Clearly, the aim is to identify the cause of the underperformance and to determine, with the employee’s
input, what is needed to help the employee improve their performance. It’s important for a manager to be
open and transparent in any discussions with the employee about their performance. The process for
managing underperformance is less formal than that dealing with unsatisfactory performance, but it still
requires a manager to clearly explain to the employee, in writing, what the problem is and the standard
expected of the employee.
Once the process has commenced, it’s important to manage it properly. After advising an employee of the
need to improve and setting a reasonable period over which the employee’s performance will be
monitored and a date for review, it’s crucial that you follow through as planned. You’ll always have
competing demands on your time, but make sure you do what you’ve said you would – actively monitor
the employee’s performance during the monitoring period and then meet with the employee on the review
date to discuss their performance. Too often an underperforming employee is left for considerable periods
without being appropriately managed. This doesn’t help remedy the problem and more often than not it
results in the underperformance becoming entrenched and increasingly difficult to rectify.
It’s hoped that the employee, with your assistance, will be able to improve their performance to the
required standard.

9.5 Inadequate improvement in performance
If adequate improvement has not been made by the review date, the ABC may:
• decide to transfer the employee to another function or work area with the employee’s agreement; or
• commence the procedures for dealing with unsatisfactory performance in accordance with the
Employment Agreement.

9.6 Managing unsatisfactory performance – a more formal process
If the attempts to remedy an employee’s underperformance are unsuccessful, the next step is the process
for dealing with unsatisfactory performance. This is set out in detail in clause 24 of the Employment
Agreement.
Unsatisfactory performance is more serious than underperformance and the process for dealing with it is
more formal and more complicated. The Strategy, Communication & People Development team can help
you through the process but also remember, under the Employment Agreement, P&L must be involved in
this process.
Unsatisfactory performance is serious and complex because of the potential outcomes for the employee,
which include:
• having their position redesigned to an equal or lower salary band;
• being transferred to another position equal to or lower than their current salary band; or

• termination of employment.
Remember that an employee may choose to be accompanied or represented by a person of their choice
throughout the process. You need to let the employee know this from the start of the process.

9.6.1 Inform the employee there’s a problem with their performance
The first step is to notify the employee there’s a problem with their performance and to develop a
Performance Improvement Plan (PIP), which clearly spells out:
• in what ways and to what extent the employee’s performance is unsatisfactory;
• the standards of performance which must be fair and in line with the Work Level Standards;
• where appropriate, details of training programs and any rearrangement of duties or changes to the work
environment designed to assist the employee to meet the required standards of performance;
• a reasonable time frame for the employee to show improvement; and
• the likely consequences if the employee does not meet the required standard.

9.6.2 Meet with the employee
When a draft PIP has been prepared (with P&L’s assistance), meet with the employee to discuss it. At the
meeting:
• review the plan with the employee, including the performance standards they are expected to achieve,
the area/s of performance they need to improve and by when;
• provide an opportunity for them to respond so that all relevant matters can be considered, including any
possible changes to the performance standards expected and any requests by the employee for
training, coaching, re-arrangement of duties or changes to the work environment;
• confirm the time frame over which their performance will be monitored against the plan and the date(s)
for review having regard to the above; and
• inform the employee of the likely consequences if they do not meet the required standard (see section
9.6.4).
If you’ve never been involved in developing a PIP and assessing an employee’s performance against it, it
can be a difficult and sometimes complex process. It’s not easy even if you’ve managed a similar process
before. It’s certainly worth carefully planning what you’re going to say to the employee and to be very
clear about what is expected of them and how you’re going to assess their performance during the review
process.
Over the PIP process, it’s likely you’ll have a number of meetings with the employee. For example, a PIP
that has been developed for a three-month period may have weekly and monthly targets incorporated into
the plan. At the meetings, go through the employee’s performance, measured against the
objectives/criteria set in the PIP. This gives you and the employee an idea on how they are going.

9.6.3 If performance IMPROVES to a satisfactory standard
If the employee’s performance improves over the PIP process to a satisfactory standard, this should be
appropriately recognised by confirming it in writing to the employee. The PIP process will close at this
point.
Under the Employment Agreement, if the employee’s performance has improved to a satisfactory
standard under a PIP process and the employee gets an ‘M’
or above in their next annual appraisal, all references to underperformance will be removed from their
personnel file.

9.6.4 If performance does NOT IMPROVE to a satisfactory standard
If, at the end of the PIP process, the employee’s performance remains unsatisfactory, the manager must
formally notify the employee that they’ve failed to remedy their performance and ask the employee to give
reasons why the ABC shouldn’t either:
• redesign the employee’s position to an equal or lower salary band;
• transfer the employee to another position equal to or lower than their current salary band; or
• terminate their employment.
When notifying the employee of their failure to satisfactorily improve, the manager needs to:
• clearly identify all of the concerns about the employee’s performance; and
• provide the employee with an opportunity to respond at a meeting or in writing.

9.6.5 Outcomes
If the employee provides a satisfactory response, you may set up a further period in which to assess the
employee’s performance. It may be that the employee can point to valid reasons why they were unable to
meet the standards required under the PIP.
If the employee is unable to provide a satisfactory response, or if they’ve not complied with the ABC’s
request (to explain why they’ve been unable to improve their performance to the required standard), the
Director of Radio may:
• redesign the employee’s position to an equal or lower salary band;
• transfer the employee to another position at an equal or lower salary band; or
• dismiss the employee with due notice, or payment in lieu, in accordance with the Employment
Agreement.

10. MISCONDUCT

10.1 Definition
Misconduct occurs where an employee’s behaviour or actions are inappropriate or improper as defined in
the Employment Agreement.
It can be difficult to distinguish between misconduct and underperformance because there can be overlap
between the two. Because the Employment Agreement sets out quite different processes to deal with
underperformance and misconduct, it’s important to determine at the outset just what you’re dealing with.
As discussed in the previous chapter, essentially underperformance is where there is a problem with an
employee’s productivity and it fails to meet one or all of the required objectives and standards. If the
problem is primarily about how they’re doing their job in terms of things like poor quality, lack of output,
time taken to complete tasks or error rates, then it’s likely to be a performance issue.
Under the Employment Agreement, misconduct includes serious misconduct and is defined to include
one or more circumstances where an employee:
• wilfully disobeys or disregards a reasonable and lawful direction;
• is inefficient or incompetent for reasons within their own control;
• is negligent or careless in the discharge of their duties;
• engages in improper conduct as an employee of the ABC;
• engages in improper conduct which brings, or is likely to bring, the ABC into disrepute;
• fails to comply with, or contravenes, a term or condition of this Agreement;
• deliberately provides at any time incorrect or misleading information which is relevant to their
employment; or
• exercises unlawful discrimination, patronage or favouritism in relation to employment matters within
the ABC.

10.2 Process and possible outcomes
The process for managing misconduct is set out in the Employment Agreement. It’s a good idea to get
advice early from the Strategy, Communication & People Development team or P&L about how to deal
with misconduct allegations as they can be difficult and complex. Basically if an employee has acted in a
way that could fall within the definition of misconduct, or if this has been alleged, you need to do the
following:
• advise the employee in writing of the nature of the alleged misconduct;
• advise the employee that they may choose to be accompanied or represented by a person of their

choice at any stage during the proceedings (or subsequent proceedings);
• advise the employee in writing of the process to be undertaken by the ABC to determine whether the
alleged misconduct is substantiated;
• if an investigation is required, advise the employee in writing that an independent investigator will be
appointed. The investigator can’t be a person who has had any involvement in the misconduct or
disciplinary proceedings;
• give the employee access to any material that is relied upon and relevant to the allegation; and
• give the employee an opportunity to respond to the allegation(s) and/or to explain their actions or
inactions and any mitigating factors they want taken into consideration. Under the Employment
Agreement, the employee is required to provide their response in a timely manner. When you give the
employee the opportunity to respond, it’s a good idea to stipulate when you want their response. But be
careful to give the employee a reasonable amount of time, not just a couple of days.
If the ABC believes the alleged misconduct is likely to constitute serious misconduct, the employee must
be advised of that at the earliest opportunity. Often this will be at the start of the process because of the
serious nature of the alleged misconduct. However, the initial view taken could be that the alleged
behaviour or actions are misconduct but through investigating the matter other issues arise which make it
serious misconduct. Similarly, an allegation of serious misconduct may be made and not found, while
misconduct is found.
From a procedural fairness perspective, it’s crucial to get the employee’s response to the allegations.
Depending on the circumstances, you may put the allegations to the employee in writing and ask them to
respond in writing. But in many cases you’ll need to meet with the employee (and their representative if
they have one) to discuss the misconduct allegations and to get their response. Once you think you’ll
need to use the misconduct provisions of the Employment Agreement, you should discuss the matter in
detail with your manager. Essentially you’ll need to refer the matter up, as any decisions regarding
possible outcomes may need to be considered by the Director of Radio and, possibly, the Director of
P&L.
There may be times when you meet with the employee to discuss the allegations. There may also be
times when you simply ask for a written response. That’s fine. The important thing is that you offer them
the opportunity to respond.
Similarly, if an employee fails to respond at all to allegations of misconduct, you can still go ahead and
decide whether misconduct has occurred using the information available to you. So long as you have
provided the employee with the opportunity to respond, the process will have been procedurally fair. You
should put the offer in writing and also confirm in writing if they reject the offer.
There’s potential for the process to be difficult and protracted. It’s also not uncommon for the relationship
between the manager and the employee who has had misconduct allegations made against them to
become strained and at times acrimonious. It’s therefore important for you to remain focussed and calm
and to confirm in writing steps taken throughout the process. This can help take some of the heat out of
the process and keep the parties focussed on the important issues. It’s very easy in these matters to
become distracted by peripheral issues that may not be relevant to the allegations that have been made.
It’s crucial to remain clear about the nature of the allegations so you can get a response from the
employee that’s also clear and on point. It’s never very pleasant for anyone involved but both you and the
employee have support to draw on. Radio’s Strategy, Communication & People Development team will
assist you through this process.

10.3 Employee suspension
If the nature or seriousness of the alleged misconduct is such that it is reasonable to do so, the ABC may,
under the Employment Agreement, suspend an employee with or without pay while an investigation is
conducted into the alleged misconduct. There are no rules to determine what is ‘reasonable’, but here are
some examples of when suspension would be reasonable:
• the presence of the employee at work could/would jeopardise the safety of others;
• the conduct under investigation involved violence; or
• the conduct under investigation involved a significant conflict between the employee and others.
Generally, if an employee is suspended from work they are not allowed to be at the workplace without
specific authorisation.
If an employee is suspended without pay, the ABC may give the employee access to any accrued annual
and long service leave.
If at the end of the investigation it’s found that the misconduct is not substantiated, or if it’s found that the
nature of the misconduct did not warrant withholding the employee’s pay, the employee will be
reimbursed for ordinary pay withheld during the suspension and any paid leave taken by the employee
during the suspension will be restored.
It will be up to the Director of Radio or the Director of P&L to decide whether it’s reasonable to suspend
an employee. It’s therefore important for you to refer the matter up to your manager as soon as you are
aware of an incident or an employee’s behaviour that may constitute misconduct or serious misconduct.

10.4 Possible outcomes of substantiated misconduct
If an allegation of misconduct is substantiated,
the ABC may:
• reprimand the employee; and/or
• issue a written warning to the employee.
There may be some circumstances where misconduct is substantiated but no disciplinary action is taken,
though the employee is counselled and the counselling recorded on their personnel file.
If an allegation of serious misconduct is substantiated, the ABC may do one or more of any of the
following:
• reprimand the employee;
• issue a written warning to the employee;
• transfer the employee to another position at an equal or lower salary;
• withhold the employee’s salary for part or all of the period of suspension;
• reduce the employee’s salary within the band;

• dismiss the employee with notice or payment in lieu in accordance with the relevant provisions of clause
55 of the Employment Agreement (the Termination of Employment clause); or
• dismiss the employee without notice where the misconduct is of such a nature that it would be
unreasonable to require the ABC to continue the employment during the required period of notice.
The disciplinary action chosen will depend on the nature and seriousness of the misconduct: it’s an issue
that will need careful consideration. Generally it will be up to the Director of Radio and/or the Director of
P&L to decide on the outcome, particularly if the matter involves serious misconduct. For less serious
misconduct, decisions may be made by the Head of the Network, though that would usually also involve
some consultation or discussion with the Director of Radio. The Strategy, Communication & People
Development team can assist you in the process from the start and help you decide the appropriate
process: who needs to be involved and what documentation will be needed. The important thing for you
as manager is to seek advice throughout the process.

10. MISCONDUCT

10.1 Definition
Misconduct occurs where an employee’s behaviour or actions are inappropriate or improper as defined in
the Employment Agreement.
It can be difficult to distinguish between misconduct and underperformance because there can be overlap
between the two. Because the Employment Agreement sets out quite different processes to deal with
underperformance and misconduct, it’s important to determine at the outset just what you’re dealing with.
As discussed in the previous chapter, essentially underperformance is where there is a problem with an
employee’s productivity and it fails to meet one or all of the required objectives and standards. If the
problem is primarily about how they’re doing their job in terms of things like poor quality, lack of output,
time taken to complete tasks or error rates, then it’s likely to be a performance issue.
Under the Employment Agreement, misconduct includes serious misconduct and is defined to include
one or more circumstances where an employee:
• wilfully disobeys or disregards a reasonable and lawful direction;
• is inefficient or incompetent for reasons within their own control;
• is negligent or careless in the discharge of their duties;
• engages in improper conduct as an employee of the ABC;
• engages in improper conduct which brings, or is likely to bring, the ABC into disrepute;
• fails to comply with, or contravenes, a term or condition of this Agreement;
• deliberately provides at any time incorrect or misleading information which is relevant to their
employment; or
• exercises unlawful discrimination, patronage or favouritism in relation to employment matters within

the ABC.

10.2 Process and possible outcomes
The process for managing misconduct is set out in the Employment Agreement. It’s a good idea to get
advice early from Radio's People & Communication contact or P&L about how to deal with misconduct
allegations as they can be difficult and complex. Basically if an employee has acted in a way that could
fall within the definition of misconduct, or if this has been alleged, P&L will work with you to draft a letter
that advises of the following:
• the nature of the alleged misconduct;
• that they may choose to be accompanied or represented by a person of their choice at any stage during
the proceedings (or subsequent proceedings);
• the process to be undertaken by the ABC to determine whether the alleged misconduct is substantiated;
• if an investigation is required, then advising the employee in writing that an independent investigator will
be appointed. (The investigator can’t be a person who has had any involvement in the misconduct or
disciplinary proceedings);
• give the employee access to any material that is relied upon and relevant to the allegation; and
• give the employee an opportunity to respond to the allegation(s) and/or to explain their actions or
inactions and any mitigating factors they want taken into consideration. Under the Employment
Agreement, the employee is required to provide their response in a timely manner. When you give the
employee the opportunity to respond, it’s a good idea to stipulate when you want their response. But be
careful to give the employee a reasonable amount of time, not just a couple of days.
If the ABC believes the alleged misconduct is likely to constitute serious misconduct, the employee must
be advised of that at the earliest opportunity. Often this will be at the start of the process because of the
serious nature of the alleged misconduct. However, the initial view taken could be that the alleged
behaviour or actions are misconduct but through investigating the matter other issues arise which make it
serious misconduct. Similarly, an allegation of serious misconduct may be made and not found, while
misconduct is found.
From a procedural fairness perspective, it’s crucial to get the employee’s response to the allegations.
Depending on the circumstances, you may put the allegations to the employee in writing and ask them to
respond in writing. But in many cases you’ll need to meet with the employee (and their representative if
they have one) to discuss the misconduct allegations and to get their response. Once you think you’ll
need to use the misconduct provisions of the Employment Agreement, you should discuss the matter in
detail with your manager. Essentially you’ll need to refer the matter up, as any decisions regarding
possible outcomes may need to be considered by the Director of Radio and, possibly, the Director of
P&L.
There may be times when you meet with the employee to discuss the allegations. There may also be
times when you simply ask for a written response. That’s fine. The important thing is that you offer them
the opportunity to respond.
Similarly, if an employee fails to respond at all to allegations of misconduct, you can still go ahead and
decide whether misconduct has occurred using the information available to you. So long as you have
provided the employee with the opportunity to respond, the process will have been procedurally fair. You

should put the offer in writing and also confirm in writing if they reject the offer.
There’s potential for the process to be difficult and protracted. It’s also not uncommon for the relationship
between the manager and the employee who has had misconduct allegations made against them to
become strained and at times acrimonious. It’s therefore important for you to remain focussed and calm
and to confirm in writing steps taken throughout the process. This can help take some of the heat out of
the process and keep the parties focussed on the important issues. It’s very easy in these matters to
become distracted by peripheral issues that may not be relevant to the allegations that have been made.
It’s crucial to remain clear about the nature of the allegations so you can get a response from the
employee that’s also clear and on point. It’s never very pleasant for anyone involved but both you and the
employee have support to draw on. Radio’s Strategy, Communication & People Development team will
advise and assist you through this process.

10.3 Employee suspension
If the nature or seriousness of the alleged misconduct is such that it is reasonable to do so, the ABC may,
under the Employment Agreement, suspend an employee with or without pay while an investigation is
conducted into the alleged misconduct. There are no rules to determine what is ‘reasonable’, but here are
some examples of when suspension would be reasonable:
• the presence of the employee at work could/would jeopardise the safety of others;
• the conduct under investigation involved violence; or
• the conduct under investigation involved a significant conflict between the employee and others.
Generally, if an employee is suspended from work they are not allowed to be at the workplace without
specific authorisation.
If an employee is suspended without pay, the ABC may give the employee access to any accrued annual
and long service leave.
If at the end of the investigation it’s found that the misconduct is not substantiated, or if it’s found that the
nature of the misconduct did not warrant withholding the employee’s pay, the employee will be
reimbursed for ordinary pay withheld during the suspension and any paid leave taken by the employee
during the suspension will be restored.
It will be up to the Director of Radio or the Director of P&L to decide whether it’s reasonable to suspend
an employee. It’s therefore important for you to refer the matter up to your manager as soon as you are
aware of an incident or an employee’s behaviour that may constitute misconduct or serious misconduct.

10.4 Possible outcomes of substantiated misconduct
If an allegation of misconduct is substantiated,
the ABC may:
• reprimand the employee; and/or
• issue a written warning to the employee.
There may be some circumstances where misconduct is substantiated but no disciplinary action is taken,
though the employee is counselled and the counselling recorded on their personnel file.

If an allegation of serious misconduct is substantiated, the ABC may do one or more of any of the
following:
• reprimand the employee;
• issue a written warning to the employee;
• transfer the employee to another position at an equal or lower salary;
• withhold the employee’s salary for part or all of the period of suspension;
• reduce the employee’s salary within the band;
• dismiss the employee with notice or payment in lieu in accordance with the relevant provisions of clause
58 of the Employment Agreement (the Termination of Employment clause); or
• dismiss the employee without notice where the misconduct is of such a nature that it would be
unreasonable to require the ABC to continue the employment during the required period of notice.
The disciplinary action chosen will depend on the nature and seriousness of the misconduct: it’s an issue
that will need careful consideration. Generally it will be up to the Director of Radio and/or the Director of
P&L to decide on the outcome, particularly if the matter involves serious misconduct. For less serious
misconduct, decisions may be made by the Head of the Network, though that would usually also involve
some consultation or discussion with the Director of Radio. Radio's People & Communication contact can
assist you in the process from the start and help you decide the appropriate process: who needs to be
involved and what documentation will be needed. The important thing for you as manager is to seek
advice throughout the process.

11. TERMINATION AND REDUNDANCY

11.1 Reasons for termination of employment
An employee’s employment may end (that is, terminate) in a number of ways and for a number of
reasons, including the following:
• an employee resigns;
• an employee retires;
• an employee is medically retired;
• an employee’s employment is terminated by the ABC with notice, or a payment in lieu of notice;
• an employee’s employment is terminated by the ABC without notice, for serious misconduct; or
• an employee’s employment is terminated because of redundancy.

11.2 Notice requirements for termination
Under the Employment Agreement, the ABC may terminate an employee’s employment without notice
or with notice.

11.2.1 Termination without notice
An employee’s employment can be terminated without notice (that is, the employee is dismissed
summarily) if the employee is found to have been guilty of serious misconduct and it would be
unreasonable to require the ABC to continue to employ the person during any notice period.
To gain an understanding of what sort of conduct or behaviour would be categorised as serious
misconduct it is necessary to look at what has been judged to be misconduct in the past, either at the
ABC or in other organisations, and then look at cases from the industrial tribunals and other courts.
Some examples of serious misconduct, where summary dismissal would be regarded as reasonable,
include physical violence, theft and victimisation. But even in these circumstances an investigation would
be carried out, together with an assessment of mitigating circumstances, before any decision was made
to summarily terminate an employee’s employment.

11.2.2 Termination with notice
An employee’s employment can be terminated with notice (or an employee can be given a payment in
lieu of notice), on the following grounds:
• redundancy;
• medical incapacity;
• unsatisfactory performance;
• misconduct; or
• abandonment of employment.
If an employee’s employment is to be terminated with notice (or a payment in lieu of notice), the length of
notice required will depend on the employee’s period of continuous service with the ABC.
Other than for redundancy, the required notice period is calculated as follows:

11.3 Reasons for redundancy
The redundancy provisions of the Employment Agreement only apply to ongoing employees. They don’t
apply to fixed term and specified task employees, employees on probation, or casual employees.
Terminating an employee’s employment because of redundancy is generally the last resort. Wherever
possible, the ABC looks for alternatives and will endeavour to minimise the need for redundancies. This
will be done through workforce planning, employee development and performance management
strategies. It is also backed up by an active redeployment and retraining policy.

An employee is redundant where:
• they are no longer required for the efficient and economical operation of the ABC; or
• they cannot be effectively employed because of technological change or other changes in work
practices; or
• their function is transferred to another location that is not within reasonable commuting distance of their
current location, they are not willing to relocate and there is no suitable alternative position available
within reasonable commuting distance; or
• their skills, talents or perceived audience appeal are no longer relevant to the ABC’s overall program
requirements.

11.4 The redundancy process
If a redundancy is required, a detailed process must be followed.

11.4.1 Development of business case
Before an employee’s employment can be terminated because of redundancy, a business case first
needs to be prepared and approved by the Network Head and the Director of Radio. It then needs to be
approved by the Chief Operating Officer, the Director of P&L and, finally, the Managing Director.

The business case needs to justify the retrenchment of the employee concerned. It must:
• provide the background and reasons for the redundancy;
• demonstrate that the circumstances show that the employee is redundant, as defined in the
Employment Agreement (clause 52.2);
• if applicable, set out and explain the redundancy selection process;
• demonstrate that alternatives to redundancy have been explored (for example, set out the steps taken to
explore suitable alternative positions); and
• provide the cost of the redundancy (in terms of notice, severance, and other applicable payments).

11.4.2 Consultation
It’s a requirement under the Employment Agreement for the ABC to hold discussions with affected
employees (and their representatives) at the earliest opportunity once possible redundancies have been
identified. During those discussions, the ABC sets out:
• the reasons for the redundancies and the measures taken to avoid or minimise those redundancies;
• the process to be followed where the redundancies arise from there being an excess number of
employees within a class of employees (that is, the redundancy selection process); and
• alternatives to redundancy, including natural attrition, transfer and any opportunities for redeployment
and retraining.

If there are redundancies in your area let P&L’s Head of Industrial Relations know so that the relevant
union(s) can be notified.

11.4.3 Notification of redundancy
After the initial discussions have taken place and a redundancy selection process has been completed (if
applicable), if the ABC determines that an employee is redundant the employee is notified in writing. They
are given a choice between accepting immediate retrenchment or exploring redeployment and retraining
options. The employee is given seven days to decide. If they do not advise the ABC within that time
they’re taken to have chosen immediate retrenchment. The time frame may be extended if the employee
is on approved leave at the time of the written notification.
The ABC will formally notify an employee in writing that they are to be retrenched if:
• following initial discussions they do not wish to examine redeployment and retraining options; or
• after choosing to examine redeployment and retraining options no suitable alternative employment has
been found; or
• the employee has agreed to be substituted.

11.4.4 Redeployment and retraining opportunities
If an employee chooses to explore redeployment and retraining opportunities, the ABC will:
• make an assessment of their competencies;
• provide advice on employment options;
• canvass work areas for possible suitable vacancies;
• assess reasonable retraining options;
• assist with interview and job search skills; and
• take other appropriate action.

At the employee’s discretion, the ABC will continue to explore redeployment and retraining possibilities for
up to six weeks from the date the employee was notified in writing that they are redundant.
An employee who takes personal leave during the redeployment and retraining period may apply, on
production of a medical certificate, for an extension of the redeployment period for a period equal to the
personal leave taken. An extension of the redeployment period will be at the discretion of the ABC,
depending on the employee’s prospects of redeployment and any other factor it considers relevant. If the
period of personal leave is more than two weeks and the ABC declines an application for an extension,
the employee will, in addition to the standard retrenchment payments, receive a payment equal to the
period of personal leave taken, up to a maximum of four weeks.

11.4.5 Decision to redeploy
The ABC may redeploy an employee to a vacant position at or below the employee’s substantive salary,
provided the employee is assessed by the ABC as having the competencies required for the position or is
able to attain those competencies with reasonable training, and provided the employee agrees to the
redeployment.
Where an employee is to be redeployed to a position at a lower substantive salary band, they will be
entitled to income maintenance from the date of redeployment. The duration of income maintenance will
be calculated incrementally at the rate of four weeks for each year (or part year thereof to a completed
month) of continuous service. The minimum period of income maintenance will be 12 weeks and the
maximum period 44 weeks.
For income maintenance purposes, the salary will be fixed in dollar terms (apart from standard
Employment Agreement increases). It will include any regular shift penalties received (on average) over
the 12 months preceding the date of redeployment.
The amount of income maintenance will be reduced by the amount of any increase payable through the
performance management system.

11.4.6 Substitution
There will be some occasions where another employee may be substituted for the employee originally
selected for redundancy, but this is at the discretion of the ABC. The ABC may at its discretion canvass
interest for voluntary retrenchment from other employees.
In assessing the viability of substitution, the ABC will consider the relative competency, experience and
efficiency of the employees in question. The final decision in relation to substitution will rest with the ABC.
Where the ABC agrees to a substitution, the substitute employee will, as soon as practicable, be given
formal notification of retrenchment, and the original employee will be redeployed.

11.4.7 Payments
An employee who is retrenched will receive:
• notice or payment in lieu of notice;
• a severance payment;
• any unpaid long service leave and pro rata long service leave;
• any unpaid annual leave and annual leave bonus; and
• a payment in lieu of the unworked portion of the redeployment and retraining period where the employee
(other than a substitute employee) leaves before the expiration of the six-week period.
The amount of notice or payment in lieu of notice for a redundancy is generally greater than for other
forms of termination of employment. The notice (or payment in lieu) for redundancy is set out below:

If an employee chooses to explore redeployment and retraining opportunities but no suitable alternative
employment is found, they will be notified in writing they are to be retrenched. In those circumstances, the
employee can only be paid in lieu of notice if they agree.
The severance payment is equal to four weeks salary for every completed year of service for the first five
years and three weeks salary for every completed year of service thereafter to a maximum of 24 years
service. Pro rata calculation to the nearest completed month of service applies after the first year.
Unless otherwise agreed, ‘service’ means continuous service with the ABC (provided that any break
between periods of employment is not greater than two months). However, there will also be some
circumstances where previous service with the Commonwealth Public Service or the Australian Defence
Force may be counted, but several conditions apply.
For calculating the above payments, ‘salary’ includes:
• the employee’s base salary;
• higher duties allowance (if the employee has been acting in a higher role for a continuous period of at
least 12 months immediately before the date they were formally notified of retrenchment);
• regular shift penalties paid (on average) over the 12 months immediately preceding the date of formal
notification, provided the employee has been paid penalties for at least half the pay periods over that
period; and
• other allowances in the nature of salary which are paid during periods of annual leave, excluding
allowances which are reimbursement for expenses incurred, or payment for disabilities associated with
the performance of duty.
If one of your staff is, or may become, retrenched and they want to find out what their notice, severance
and other payments would be, refer them to the relevant State P&L team, who can provide this
information.

11.4.8 Re-engagement
An employee who is paid a retrenchment benefit will not be re-engaged by the ABC within 12 months of
their retrenchment without the approval of the Managing Director.

11. TERMINATION AND REDUNDANCY

11.1 Reasons for termination of employment
An employee’s employment may end (that is, terminate) in a number of ways and for a number of
reasons, including the following:
• an employee resigns;
• an employee retires;
• an employee is medically retired;
• an employee’s employment is terminated by the ABC with notice, or a payment in lieu of notice;
• an employee’s employment is terminated by the ABC without notice, for serious misconduct; or
• an employee’s employment is terminated because of redundancy.

11.2 Notice requirements for termination
Under the Employment Agreement, the ABC may terminate an employee’s employment without notice or
with notice.

11.2.1 Termination without notice
An employee’s employment can be terminated without notice (that is, the employee is dismissed
summarily) if the employee is found to have been guilty of serious misconduct and it would be
unreasonable to require the ABC to continue to employ the person during any notice period.
To gain an understanding of what sort of conduct or behaviour would be categorised as serious
misconduct it is necessary to look at what has been judged to be misconduct in the past, either at the
ABC or in other organisations, and then look at cases from the industrial tribunals and other courts.
Some examples of serious misconduct, where summary dismissal would be regarded as reasonable,
include physical violence, theft and victimisation. But even in these circumstances an investigation would
be carried out, together with an assessment of mitigating circumstances, before any decision was made
to summarily terminate an employee’s employment.

11.2.2 Termination with notice
An employee’s employment can be terminated with notice (or an employee can be given a payment in
lieu of notice), on the following grounds:
• redundancy;
• medical incapacity;
• unsatisfactory performance;
• misconduct; or
• abandonment of employment.
If an employee’s employment is to be terminated with notice (or a payment in lieu of notice), the length of
notice required will depend on the employee’s period of continuous service with the ABC.

Other than for redundancy, the required notice period is calculated as follows:

11.3 Reasons for redundancy
The redundancy provisions of the Employment Agreement only apply to ongoing employees. They don’t
apply to fixed term and specified task employees, employees on probation, or casual employees.
Terminating an employee’s employment because of redundancy is generally the last resort. Wherever
possible, the ABC looks for alternatives and will endeavour to minimise the need for redundancies. This
will be done through workforce planning, employee development and performance management
strategies. It is also backed up by an active redeployment and retraining policy.
An employee is redundant where:
• they are no longer required for the efficient and economical operation of the ABC; or
• they cannot be effectively employed because of technological change or other changes in work
practices; or
• their function is transferred to another location that is not within reasonable commuting distance
of their current location, they are not willing to relocate and there is no suitable alternative position
available within reasonable commuting distance; or
• their skills, talents or perceived audience appeal are no longer relevant to the ABC’s overall
program requirements.

11.4 The redundancy process
If a redundancy is required, a detailed process must be followed.

11.4.1 Development of business case
Before an employee’s employment can be terminated because of redundancy, a business case first
needs to be prepared and approved by the Network Head and the Director of Radio. It then needs to be
approved by the Chief Operating Officer, the Director of P&L and, finally, the Managing Director.

The business case needs to justify the retrenchment of the employee concerned. It must:
• provide the background and reasons for the redundancy;
• demonstrate that the circumstances show that the employee is redundant, as defined in the
Employment Agreement (clause 55.2);
• if applicable, set out and explain the redundancy selection process;

• demonstrate that alternatives to redundancy have been explored (for example, set out the steps
taken to explore suitable alternative positions); and
• provide the cost of the redundancy (in terms of notice, severance, and other applicable
payments).

11.4.2 Consultation
It’s a requirement under the Employment Agreement for the ABC to hold discussions with affected
employees (and their representatives) at the earliest opportunity once possible redundancies have been
identified. During those discussions, the ABC sets out:
• the reasons for the redundancies and the measures taken to avoid or minimise those
redundancies;
• the process to be followed where the redundancies arise from there being an excess number of
employees within a class of employees (that is, the redundancy selection process); and
• alternatives to redundancy, including natural attrition, transfer and any opportunities for
redeployment and retraining.
It's important to discuss any proposed business case with the P&L's Manager, Employee Relations before
finalising. This way you can ensure that all considerations and requirements under the Employment
Agreement are considered early on in the process.

11.4.3 Notification of redundancy
After the initial discussions have taken place and a redundancy selection process has been completed (if
applicable), if the ABC determines that an employee is redundant the employee is notified in writing. They
are given a choice between accepting immediate retrenchment or exploring redeployment and retraining
options. The employee is given seven days to decide. If they do not advise the ABC within that time
they’re taken to have chosen immediate retrenchment. The time frame may be extended if the employee
is on approved leave at the time of the written notification.
The ABC will formally notify an employee in writing that they are to be retrenched if:
• following initial discussions they do not wish to examine redeployment and retraining options; or
• after choosing to examine redeployment and retraining options no suitable alternative employment has
been found; or
• the employee has agreed to be substituted.

11.4.4
Redeployment and retraining opportunities
If an employee chooses to explore redeployment and retraining opportunities, the ABC will:
• make an assessment of their competencies;
• provide advice on employment options;

• canvass work areas for possible suitable vacancies;
• assess reasonable retraining options;
• assist with interview and job search skills; and
• take other appropriate action.
At the employee’s discretion, the ABC will continue to explore redeployment and retraining possibilities for
up to six weeks from the date the employee was notified in writing that they are redundant.
An employee who takes personal leave during the redeployment and retraining period may apply, on
production of a medical certificate, for an extension of the redeployment period for a period equal to the
personal leave taken. An extension of the redeployment period will be at the discretion of the ABC,
depending on the employee’s prospects of redeployment and any other factor it considers relevant. If the
period of personal leave is more than two weeks and the ABC declines an application for an extension,
the employee will, in addition to the standard retrenchment payments, receive a payment equal to the
period of personal leave taken, up to a maximum of four weeks.

11.4.5 Decision to redeploy
The ABC may redeploy an employee to a vacant position at or below the employee’s substantive salary,
provided the employee is assessed by the ABC as having the competencies required for the position or is
able to attain those competencies with reasonable training, and provided the employee agrees to the
redeployment.
Where an employee is to be redeployed to a position at a lower substantive salary band, they will be
entitled to income maintenance from the date of redeployment. The duration of income maintenance will
be calculated incrementally at the rate of four weeks for each year (or part year thereof to a completed
month) of continuous service. The minimum period of income maintenance will be 12 weeks and the
maximum period 44 weeks.
For income maintenance purposes, the salary will be fixed in dollar terms (apart from standard
Employment Agreement increases). It will include any regular shift penalties received (on average) over
the 12 months preceding the date of redeployment.
The amount of income maintenance will be reduced by the amount of any increase payable through the
performance management system.

11.4.6 Substitution
There will be some occasions where another employee may be substituted for the employee originally
selected for redundancy, but this is at the discretion of the ABC. The ABC may at its discretion canvass
interest for voluntary retrenchment from other employees.
In assessing the viability of substitution, the ABC will consider the relative competency, experience and
efficiency of the employees in question. The final decision in relation to substitution will rest with the ABC.
Where the ABC agrees to a substitution, the substitute employee will, as soon as practicable, be given
formal notification of retrenchment, and the original employee will be redeployed.

11.4.7 Payments
An employee who is retrenched will receive:
• notice or payment in lieu of notice;
• a severance payment;
• any unpaid long service leave and pro rata long service leave;
• any unpaid annual leave and annual leave bonus; and
• a payment in lieu of the unworked portion of the redeployment and retraining period where the employee
(other than a substitute employee) leaves before the expiration of the six-week period.
The amount of notice or payment in lieu of notice for a redundancy is generally greater than for other
forms of termination of employment. The notice (or payment in lieu) for redundancy is set out below:

If an employee chooses to explore redeployment and retraining opportunities but no suitable alternative
employment is found, they will be notified in writing they are to be retrenched. In those circumstances, the
employee can only be paid in lieu of notice if they agree.
The severance payment is equal to four weeks salary for every completed year of service for the first five
years and three weeks salary for every completed year of service thereafter to a maximum of 24 years
service. Pro rata calculation to the nearest completed month of service applies after the first year.
Unless otherwise agreed, ‘service’ means continuous service with the ABC (provided that any break
between periods of employment is not greater than two months). However, there will also be some
circumstances where previous service with the Commonwealth Public Service or the Australian Defence
Force may be counted, but several conditions apply.
For calculating the above payments, ‘salary’ includes:
• the employee’s base salary;
• higher duties allowance (if the employee has been acting in a higher role for a continuous period of at
least 12 months immediately before the date they were formally notified of retrenchment);
• regular shift penalties paid (on average) over the 12 months immediately preceding the date of formal
notification, provided the employee has been paid penalties for at least half the pay periods over that
period; and
• other allowances in the nature of salary which are paid during periods of annual leave, excluding
allowances which are reimbursement for expenses incurred, or payment for disabilities associated with
the performance of duty.
If one of your staff is, or may become, retrenched and they want to find out what their notice, severance
and other payments would be, refer them to the relevant State P&L team, who can provide this

information.

11.4.8 Re-engagement
An employee who is paid a retrenchment benefit will not be re-engaged by the ABC within 12 months of
their retrenchment without the approval of the Managing Director.

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