South Australian Current Acts South Australian Current Acts24—Separation packages and offers of alternative
public sector employment
(1) Subject to this
section, any action that a private sector employer takes from time to time as
a consequence of a transferred employee's position being identified as surplus
to the employer's requirements must consist of or include an offer of a
separation package that complies with this section.
(2) If a private
sector employer makes an offer to a transferred employee under
subsection (1) after the end of the employee's first two years after
becoming a transferred employee, an offer must also be made to the employee of
public sector employment with a rate of pay that is at least equivalent to the
rate of pay of the employee's position immediately before the employee's
relocation to public sector employment.
(3) A
transferred employee who is made an offer of a separation package under
subsection (1) must be allowed—
(a) if
an offer of public sector employment is also made under
subsection (2)—at least one month from the date of the offer of
public sector employment to accept either of the offers;
(b) in
any other case—at least one month to accept the offer.
(4) If a
transferred employee has been offered both a separation package and
public sector employment under this section and has failed to accept either
offer within the period allowed, the employee is taken to have accepted the
offer of a separation package.
(5) The employment of
a transferred employee may not be terminated as a consequence of the
employee's position being identified, within the employee's first two years
after becoming a transferred employee, as surplus to a
private sector employer's requirements unless the employee has accepted (or is
taken to have accepted) an offer under this section or otherwise agreed to the
termination.
(6) A separation
package offered to a transferred employee under this section must include an
offer of a payment of an amount not less than the lesser of the following:
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(a) |
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(b) |
104WP, |
where—
"CYS" is the number of the employee's continuous years of service in
relevant employment determined in the manner fixed by the Minister by order in
writing; and
"WP" is the employee's weekly rate of pay determined in the manner fixed by
the Minister by order in writing.
(7) An order of the
Minister—
(a) may
make different provision in relation to the determination of an employee's
continuous years of service or weekly rate of pay according to whether the
relevant employment was full-time or part-time, included periods of leave
without pay or was affected by other factors; and
(b) may
be varied by the Minister by further order in writing made before any employee
becomes a transferred employee; and
(c) must
be published in the Gazette.
(8) A person who
relocates to public sector employment as a result of acceptance of an offer
under this section is taken to have accrued as an employee in
public sector employment an entitlement to annual leave, sick leave and long
service leave that is equivalent to the entitlements that the person had
accrued, immediately before the relocation, as an employee of the private
sector employer.
(9) It is a condition
of an offer of a separation package or public sector employment under this
section that the employee waives any right to compensation or any payment
arising from the cessation or change of employment, other than, if the
employee accepts (or is taken to have accepted) a separation package, the
right to superannuation payments or other payments to which the employee would
be entitled on resignation assuming that the employee were not surplus to the
employer's requirements.
(10) If an employee is
relocated to public sector employment as a result of acceptance of an offer
under this section—
(a) the
employee may not be retrenched from public sector employment; and
(b) the
employee's rate of pay in public sector employment may not be reduced except
for proper cause associated with the employee's conduct or physical or mental
capacity.
(11)
Subsection (1) does not apply if the action that a private
sector employer takes as a consequence of an employee's position being
identified as surplus to the employer's requirements consists only of steps to
relocate the employee to another position in the employment of that employer
or a related employer in the electricity supply industry with—
(a)
functions that are in their general nature the same as, or similar to, the
functions of the surplus position; and
(b) a
principal workplace or principal work depot not more than 45 kilometres
distant by the shortest practicable route by road from the principal workplace
or principal work depot of the surplus position; and
(c) a
rate of pay that is at least equivalent to the rate of pay of the surplus
position.
(12) For the purposes
of subsection (5), the employment of a transferred employee is taken not
to have been terminated by reason only of the fact that the employee has been
relocated to another position in the employment of the same employer or a
related employer in the electricity supply industry if the rate of pay of that
position is at least equivalent to the rate of pay of the employee's previous
position.
(13) In this
section—
"award or agreement" means award or agreement under the Industrial and
Employee Relations Act 1994 or the Workplace Relations Act 1996 of
the Commonwealth as amended from time to time;
"electricity supply industry" has the same meaning as in the
Electricity Act 1996 ;
"private sector employer" means—
(a) a
purchaser under a sale/lease agreement or a company that was an
electricity corporation or State-owned company before the shares in the
company were transferred to a purchaser under a sale/lease agreement; or
(b) an
employer who is related to a purchaser or company referred to in
paragraph (a);
"public sector employment" means employment in the Public Service of the
State, or by an instrumentality of the Crown or a statutory corporation;
"rate of pay" includes an amount paid to an employee to maintain the
employee's rate of pay in a position at the same level as the rate of pay of a
position previously occupied by the employee;
"relevant employment" means—
(a)
employment by The Electricity Trust of South Australia, an electricity
corporation or a State-owned company; or
(b)
employment by a private sector employer;
"transferred employee" means an employee—
(a)
who—
(i)
was transferred by an employee transfer order to the
employment of a purchaser under a sale/lease agreement; or
(ii)
was in the employment of a company that was an
electricity corporation or a State-owned company when the shares in the
company were transferred to a purchaser under a sale/lease agreement; and
(b) who
has remained continuously in the employment of that purchaser or company or in
the employment of an employer related to that purchaser or company since the
making of the relevant sale/lease agreement; and
(c)
whose employment is subject to an award or agreement.
(14) Employers are
related for the purposes of this section if—
(a) one
takes over or otherwise acquires the business or part of the business of the
other; or
(b) they
are related bodies corporate within the meaning of the Corporations Law ; or
(c) a
series of relationships can be traced between them under paragraph (a) or
(b).
;