For more information email:  WorkingTogether@facs.nsw.gov.au

Free and confidential Employee Assistance Program 1300 687 327

Transfer of staff

Transfer of staff

Information is available in the following topic groups:

Entitlements

Will my leave and other entitlements transfer to the NGO with me?

If you are part of the transfer process you will have the option to cash out a portion of accrued leave or transfer all accrued annual and extended or long service leave.

The conditions around cashing out leave are as follows:

Annual (Recreation) Leave:

A minimum balance of 20 days annual leave must be retained. You may opt to cash out all accrued annual or recreation leave above the retention limit of 20 days. If you have less than 20 days of accrued annual leave, this will all be transferred to the new provider and you will not be able to cash out any annual leave. Staff who choose to cash out some of their accrued annual leave will be granted payment of a proportionate amount of annual leave loading for the current leave year.

Where the accrued annual leave is not cashed out, annual leave loading will carry across to the new employer to the extent permitted under the Commonwealth Fair Work Act.

Extended (long service) leave:

You will be able to cash out some or all of your extended (long service) leave at transfer. There is no limit on how much extended (long service) leave you can cash out. All accrued annual leave and extended leave that is not cashed out will be transferred to the new employer.

Other Leave:

There will not be the option to cash out any other leave entitlements although these, including accrued sick leave and family and community services leave, will also transfer to the NGO.

 

I’m on maternity leave and not planning to return to work until March 2018. What will happen to me?

Employees on maternity leave at the time of transfer will not be required to return to work prior to transfer. Your employment will transfer and at the conclusion of your maternity leave you will return to work, commencing with the new provider.

I’ve booked and paid for an overseas holiday in 2018. Will I still be able to take my holiday after I transfer to the new provider?

Any approved leave in our system will be honoured by the new provider.

Will I have the same leave entitlements (e.g. flex leave and maternity leave) when I transfer to the NGO?

Any transfer to the non-government sector is at the current rate of pay and conditions, as defined by your Award, including access to maternity leave and flex leave.

If I transfer to an NGO and then return to work in the NSW public sector will my leave and previous years of service be taken into account or would I start again?

If you cease employment with the NGO to take up a new opportunity with the NSW public sector, the NGO would be required to pay out all accrued leave entitlements i.e. Extended Leave and Recreation Leave at the date of exit. The accrued leave is not transferable back to government.

Upon taking up a new role within the NSW public sector, previous government service would be recognised for the purposes of calculating extended leave entitlements only and you would immediately start accruing extended leave at commencement of the government role. Service with the NGO is not recognised towards this accrual calculation.

Prior to transfer a draft Certificate of Service will be issued for the purposes of checking accuracy and completeness. A final Certificate of Service will be issued up to two pay periods after you transfer. This document will capture all your government work history, and as such is an important document to retain.

Will my Workplace Giving Deductions be transferred to my new employer?

The Workplace Giving Program (WPG) is a Public Sector initiative and as such will not be transferring to the new non-government providers.

If you wish to continue supporting your favourite charities, you can arrange transfers directly from your bank account to commence post transfer.

Your current WPG deductions will continue up to and including your final full pay from FACS prior to transfer.

 

Am I eligible for free membership to the National Disability Practitioners (NDP)?

Yes, FACS has an agreement with NDP to provide staff with free membership until 30 June 2018.

To join you should visit the NDP website and use the promotional code FACS when completing your application form.

Transfer Payment

How will my transfer payment work?

If you are a full-time or part-time ongoing (permanent) employee transferring to the new provider, you will receive a transfer payment from the Department shortly after the transfer. This payment is intended to be made within two pay periods after your final FACS pay. You will be given more information about the payment date closer to the transfer.

Please note if you are a temporary or casual employee, you are not eligible for a transfer payment.

The Transfer Payment is based on your completed years of service and will be calculated on your base rate of pay (that is, excluding any allowances you may be paid) at the transfer date as follows:

Continuous years of service Transfer payment schedule (weeks of base rate of pay)
Less than one year service 0 weeks
One year or more but less than two years 2 weeks
Two years or more but less than three years 3.5 weeks
Three years or more but less than four years 5 weeks
Four years or more but less than five years 6 weeks
Five years or more but less than six years 7 weeks
Six years or more 8 weeks

“Service” is defined as all continuous service with the NSW Government as a full-time or part-time ongoing employee including:

  • periods of recreation and long service leave/extended leave;
  • periods of approved paid leave; and/or
  • periods of previous employment recognised as service by the Government (e.g. temporary employment immediately prior to your appointment).

Other periods of approved unpaid leave will not break your continuity of service, but those periods will not count towards your completed years of service and will impact your transfer payment.

The transfer payment will be based on your employment status, i.e. ongoing full-time or ongoing part time.

Ongoing full-time: If you are an ongoing full-time employee you will receive the transfer payment at the full time rate including the following:

  • you are on parental/maternity leave and have chosen to work reduced hours
  • you have reduced your hours to take up opportunities in the lead up to transfer to undertake private work/temporary assignments/section 66
  • you are working reduced hours due to family and carer responsibilities.

Ongoing part-time: If you are an ongoing part-time employee, your transfer payment will be paid at either your contract hours or the average weekly hours you have worked in the previous 12 month period, whichever is greater. The average weekly hours includes ordinary contract hours and additional hours, overtime hours are not included.

If you are an ongoing part-time employee working reduced hours, your transfer payment will be paid at your contract hours.

Will I receive a transfer payment if I am employed on a casual or temporary basis?

If you are a temporary or casual staff you will not receive a transfer payment when you transfer.

Only ongoing (permanent) employees, either full time or part time, who are transferring to a new provider as part of the transfer of FACS operated disability services, will receive a transfer payment from FACS. The payment is intended to be made within two pay periods after the final FACS pay.

How will the transfer payment be taxed?

The NSW Government has sought a Class Ruling on the tax treatment of transfer payments. The Australian Taxation Office has now issued the ruling that the transfer payment you receive will be subject to tax as an Employment Termination Payment (ETP).

This means the transfer payment should not be taxed at the same rate as your normal salary and wages.

In accordance with the ETP tax treatment, the portion of your transfer payment relating to service pre July 1983 will be paid to you tax free. For most of you, the balance of the transfer payment should be taxed at:

  • 32% (including Medicare Levy) if you are below preservation age at 30 June 2018; or
  • 17% (including Medicare Levy) if you are over preservation age at 30 June 2018.

This tax will be withheld by FACS before the transfer payment is paid to you.

To the extent the tax rates change prior to receiving the transfer payment, the applicable rates at that time will apply.

Preservation age

Date of birth Preservation age
Before 1 July 1960 55
1 July 1960 – 30 June 1961 56
1 July 1961 – 30 June 1962 57
1 July 1962 – 30 June 1963 58
1 July 1963 – 30 June 1964 59
From 1 July 1964 60

Depending on your total final income and personal circumstances for the year, the final tax due may be adjusted via your individual income tax return. For example where your total taxable income including the transfer payment is over $180,000 for the year ending 30 June 2018, some or all of your transfer payment may be taxed at the top tax rate of 47%. In this situation you may need to pay more tax to the Australian Taxation Office with your tax return. FACS will endeavour to withhold tax at 47% for you where they are aware your salary and wages plus transfer payment exceeds $180,000 in the year. Alternatively, if your tax rate is below 32% or 17%, you may get a refund with your Australian tax return.

You should seek independent tax advice on the tax rate applicable to you.

FACS will calculate the tax free component of your transfer payment and the applicable rate of tax to withhold on the balance of the payment for you. They will withhold the tax and deliver the net amount to you two pay periods after your final pay from FACS.

Can the transfer payment be rolled over into my superannuation fund?

Due to the current Australian tax law, you cannot choose to roll over the transfer payment you receive into your superannuation fund. The Transfer Payment must be delivered as a payment into your designated bank account.

It is strongly recommended that you seek financial advice regarding your individual financial circumstances.

 

Do I need to report the Transfer Payment in my Australian tax return?

You should expect to receive an ETP Payment Summary detailing the transfer payment and tax withheld within 14 days of receiving your transfer payment.

Where you transfer to the new employer between 1 July 2017 to 30 June 2018, FACS will also provide you with your annual individual PAYG Payment Summary (previously referred to as your group certificate) after 30 June 2018. The PAYG Payment Summary will detail your salary and tax withheld for the period 1 July 2017 to the date of your transfer to the new employer.

You should report the amounts shown in both the ETP Payment Summary and the PAYG Payment Summary in your Australian tax return for the year ending 30 June 2018.

Transfer Conditions

I’m a staff member who will be transferring. When will I receive my Employee Information Pack?

It’s being mailed to your home address approximately six weeks after the transfer announcement. So we don’t send your pack to the wrong address, please make sure your home address information on SAP HR is up-to-date.

What are my transfer conditions?

You’ll find questions and answers on this page that cover the following transfer of conditions: superannuation; part-time workers; the employment guarantee; grounds for objection; and employee entitlements.

Your personalised Employee Information Pack is the best source of information for your specific circumstances.

Packs are mailed to employees approximately 6 weeks after the announcement of each new provider. So we don’t send your pack to the wrong address, please make sure your home address information on SAP HR is up-to-date.

If it has been more than 6 weeks since your new provider has been announced and you still haven’t received your pack, please email workingtogether@facs.nsw.gov.au

What will happen to my superannuation when I transfer?

There will be no change to your superannuation arrangements. Your superannuation transfers with you.

You will continue to be a member of, and contribute to, the same defined benefit or accumulation scheme as you currently do. The new employer will be required to continue to make the same contributions to your superannuation scheme.

The transfer of superannuation schemes includes both the old defined benefit (such as SASS and SSS) and current contribution schemes like First State Super.

Therefore, all your superannuation benefits and entitlements will remain the same after the transfer; irrespective of the super scheme you are presently on.

Will my part-time arrangements go with me when I transfer to the new provider?

If your ongoing role is full-time but you are working part-time at the time of transferring to the new provider, this temporary arrangement will continue either until any change is agreed between you and the provider or, if you wish, until its term expires without further negotiation.

If your ongoing role is part-time at the time of transferring to the new provider, this will remain the same after you transfer.

Which FACS staff will transfer?

All staff involved in the provision of accommodation and respite support services, including group homes, centre-based respite and in-home support services, will transfer. The transfer also includes roster support team staff. Not all staff will transfer at the same time.

Can I stay working in the NSW public sector or do I have to transfer to the new provider?

To ensure the success of the NDIS, it is vital that our skilled workforce is retained in the disability sector. If your role is identified as transferring, you will be expected to transfer to the new provider.

Your transfer to the new provider is based on your ongoing role. If you want to stay working in the NSW public sector, you would need to find, apply for and secure an alternative role. You will not have the option to take a redundancy or transfer to a role in another public sector agency instead.

If you wish to object to the transfer please refer to the FAQs and Conscientious Objection Application Form provided in the Staff Information Pack.

As part of the transfer process will I need to do anything like apply for my job?

If your role is transferring, you will be expected to transfer to the new provider.

You will not be required to apply for your job as both services and the staff who deliver them are transferring to the new provider.

Will I have to change group homes as a result of the transfer process?

The NSW Government is committed to ensuring continuity of support to clients.

At the time of transfer staff will be working in the same home or unit. Staff who wish to move to a different location will need to negotiate with the new provider.

Employment Guarantee

What’s in place to ensure the new providers are fully committed to the two year employment guarantee?

There is an agreement between FACS and the service provider you’re transferring to that is legally enforceable and forms part of the contract between FACS and the service provider. Read the employer commitments after transfer fact sheet to get all the details.

What job security does the Employment Guarantee provide to me when I transfer to an NGO provider?

The Employment Guarantee specifies that if you are transferred as part of the transfer of disability services to the NGO sector, your employment terms and conditions, including your salary or rate of pay, will transfer with your employment. The Enabling Act specifies that a transfer agreement for the transfer of an employee to the NGO sector must contain provisions that the employee is to be on the same terms and conditions as they were immediately before the transfer of employment.

If you are an ongoing (permanent) employee, your employment terms and conditions are guaranteed for two years from the date of transfer. If you are a casual or temporary employee, your employment terms and conditions are guaranteed for up to six months from the date of transfer. During these periods your employment with the NGO cannot be terminated except:

  • If you have agreed to terminate your employment
  • If you have been found to have committed serious misconduct
  • Following the proper application of reasonable disciplinary procedures.

You are, however, able to resign at any time.

The Employment Entitlement Period – Fair Work Act (Cth) means your current employment entitlements under state public sector awards can be protected for up to five years, unless a new agreement is reached between you and your employer to replace them.

What is the difference between the employment guarantee (2 years) and employee entitlements (5 years)?

The NDIS (NSW Enabling Act) is the legislation that authorises the transfer of FACS employees to the non-government sector as part of NDIS implementation in NSW.

The Act allows for an employment guarantee period to be set in the transfer agreement the Government makes with a new non-government employer.

The Act provides for an Employment Guarantee Period of two years. This is the time during which you can’t be terminated unless you agree.

The Employment Entitlement Period – Fair Work Act (Cth) means your current employment entitlements under state public sector awards can be protected for up to five years, unless a new agreement is reached between you and your employer to replace them.

Does the employment guarantee period of two years mean that my current salary/pay rate and conditions are guaranteed for that period?

During the employment guarantee period, your current award terms and conditions, including your salary or rate of pay, cannot be varied unless variations are agreed with you as the employee in accordance with the Fair Work Act. This includes any overtime and penalty provisions in the Award you are currently under. Increments are part of the Award and the employment contract and will continue to be paid.

If you are currently employed in a role other than your substantive position, your current salary will be based on the FACS role you transfer with.

What happens to my rate of pay and entitlements at the end of the two year guarantee period?

Any transferred accrued leave entitlements will continue to apply regardless of expiration of the employment guarantee period.

You will be provided with a Certificate of Service from FACS at the time of transfer to the NGO. The Certificate will detail the leave that you have accrued and that is to be transferred with you. The new employer is required by contract with the NSW Government and under the Fair Work Act and NDIS Enabling Act, to honour the accrued leave balance.

The award terms and conditions (including your rate of pay) may continue to apply for up to five years or until they are replaced by a new Enterprise Agreement with the new operator, negotiated on your behalf by your union, and on which you would be entitled to vote.

Your superannuation conditions and arrangements will continue to be the same after the 2 year employment guarantee period unless changed by formal agreement with you or by legislation.

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