Kaiārahi i te Reo, Therapists', ATSSD, Special Education Assistants' Collective Agreement
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Part 10: Employment Protection and Surplus Staffing Provisions
Kaiārahi i te Reo, Therapists', ATSSD, Special Assistants' Collective Agreement
Effective 13 December 2019 to 6 February 2022
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10.1 Employment Protection Provision
10.1.1 ‘Restructuring’ is given the same definition as in section 69OI of the ERA 2000 and includes:
- Contracting out; or
- Selling or transferring the employer’s business (or part of it) to another person;
but excludes mergers (in the case of mergers clause 10.3 will apply).
10.1.2 Where work undertaken by an employee covered by this Agreement will be, or is likely to be, undertaken by a new employer (whether or not the new employer is an “employer” defined in 1.3) the employer will notify the National Office of the union(s) where one or more of the employees affected by the restructuring is a member of the union(s). In such circumstances the employer will meet with representative(s) of the union(s) to:
- Identify the issues the employee(s) wish to have considered by the new employer;
- Ensure that all current terms and conditions of employment of the employee(s) are accurately recorded; and
- Determine the process by which communications to/from the employee(s) will be conducted.
10.1.3 The employer will encourage the new employer to agree to the involvement of the union(s) in the processes described in clauses 10.1.4 and 10.1.5 below.
10.1.4 Having completed the process described in 10.1.2 above, the employer will meet with the new employer to:
- provide the new employer with details of the work currently performed by the employees concerned together with details of the terms and conditions of their employment; and
- seek a proposal for the employment of the affected employees by the new employer, including clarification of the terms and conditions upon which those employees would be offered employment by the new employer.
10.1.5 The following shall be matters for clarification under clause 10.1.4(b) and again should be read in conjunction with the surplus staffing provisions of this collective agreement.
- the number and type of positions that may be offered by the new employer to employees affected by the restructuring;
- the terms and conditions of employment to be offered to those employees (including whether the employees will transfer to the new employer on the same terms and conditions of employment);
- the arrangements, if required, for the transfer of any accrued benefits and entitlements in relation to those employees;
- the arrangements, if required, for when and how offers of employment are to be made to the affected employees and the mode of acceptance, including whether any offers of employment made by the new employer will be conveyed through the representatives of the union(s).
10.1.6 The notice provisions of the surplus staffing provisions shall apply as described in 10.2.3 and 10.2.4 below.
10.1.7 The process to be followed at the time of the restructuring to determine what entitlements, if any, are available for employees who do not transfer to the new employer are set out in 10.2 below. This clause as a whole shall be read in conjunction with those provisions.
10.1.8 Clause 10.1 shall be read in conjunction with clause 10.2.
10.2 Surplus Staffing Provisions
10.2.1 The surplus staffing provisions shall not apply to any employee who is employed on a fixed term basis as defined in 2.4. The provisions in relation to staff affected by a merger of 2 or more schools are set out under clause 10.3 and any provisions in 10.2 will only apply where they are specifically provided for in clause 10.3.
10.2.2 A surplus staffing situation may arise when the work undertaken by the employee ceases to exist. This may be the result of the restructuring of the whole or any part of the employer’s operations because of, for example:
- the reorganisation or review of work;
- a change in plant (or like cause) relevant to the individual employees employment; or
- change of status or closure of the school, or the sale or transfer of all or part of the school.
10.2.3 The employer shall, at least one month prior to issuing notice of termination, advise any affected employee(s) of the possibility of a surplus staffing situation within an occupational category in the school.
10.2.4 The period of notice is to allow time for discussion between the employer and the employee(s) of the reasons for the possible surplus staffing situation and to determine whether this surplus can be absorbed by attrition. The employer shall consider whether or not it is able to offer an alternative position within the school with terms and conditions that are no less favourable, which may also entail on the job retraining.
10.2.5 If the required number of positions cannot be achieved through attrition (refer clause 10.2.4) and a surplus staffing situation still exists, all available positions in the occupational category will be internally advertised and appointments made from existing employees in that category. Where there is only one position in the identified occupational category in which the surplus exists identification of the position shall be automatic.
10.2.6 Employees who are not appointed in terms of 10.2.5 above, or who are identified as surplus in terms of 10.2.5 above shall be given a minimum of one month’s written notice of termination of employment provided for in clause 9.1. Except in exceptional circumstances (e.g., long-term sick leave), or as agreed with the employee, this notice shall be given at such a time as to ensure it covers a period of a full month during which the employee is paid and at work.
10.2.7 During the notice of termination period both the employer and the employee shall make reasonable efforts to locate alternative employment for the employee. The employer will provide reasonable paid time to attend interviews, where prior approval will not be unreasonably withheld.
10.2.8 In the event that a reasonable offer of employment in the education or state service is made the employer’s responsibilities under these provisions shall be fulfilled.
10.2.9 For the purposes of 10.2.8 a reasonable offer of employment shall constitute an offer of employment that:
- is in the same location or within reasonable commuting distance;
- has comparable duties and responsibilities; and
- has terms and conditions that are no less favourable
- providing the employment being offered is available to be taken up by the employee prior to or at the conclusion of the notice of termination period.
10.2.10 If the offer of employment referred to in 10.2.9 is not a reasonable offer by reason only that it is not available to be taken up by the employee before or at the conclusion of the notice period, the employer may extend the notice period until such time as the position is available to be taken up by the employee; and under these circumstances the offer shall be deemed to be reasonable.
The employer must first ensure that in granting such extended notice that this complies with any funding arrangement applying to the school.
10.2.11 In the event of a school closure, the employee may be made an offer of employment prior to the disestablishment of the position at another state or integrated school. Where this is an offer of employment to a lower graded position or a position at a lower hourly/salary rate than that previously held, the employee shall be entitled to an equalisation allowance calculated in accordance with 10.3.10(f). Where this is an offer of employment to a position with reduced hours to that previously held, the employee shall be entitled to a partial redundancy payment calculated in accordance with 10.3.10(g). Where the employee accepts such an offer the employer of the closing schools’ responsibilities under 10.2.12 below shall be fulfilled. Where the employee does not accept such an offer the provisions of 10.2.12 shall apply.
10.2.12 Except as provided under 10.2.11, above where a reasonable offer of employment is not made before the expiry of the notice of termination period the employee will be entitled to redundancy pay calculated as follows:
- 6 weeks' pay for the first year of service and two weeks' pay for every subsequent year or part thereof to a maximum of 30 weeks' pay in total.
Note 1: This is calculated on current gross weekly earnings as at the last day of service or on average gross weekly earnings over the previous 12 months service whichever is the greater.
Note 2: For the purposes of the redundancy calculation the definition of service for employees other than therapists is the same as that defined in 6.5.3 (a) and (b) provided that no period of service that ended with the employee receiving a redundancy or severance payment shall be counted as service.
Note 3: For the purposes of the redundancy calculation the definition of service for therapists is the same as that defined in 6.2.1 provided that no period of service that ended with the employee receiving a redundancy or severance payment shall be counted as service.
Note 4: An employee with less than one year’s service shall receive a pro-rata payment.
- All holiday pay and wages owing.
10.2.13 A work reference or record of service shall be provided on the employee’s request.
10.3 Staffing Merger Provisions
(Note: Any reference to “support staff” in this clauses below means a Kaiārahi i te reo, an ATSSD, a special education assistant or a therapist.)
10.3.1 The purposes of these provisions are to:
- Provide a staffing merger process that facilitates a fair and orderly transition;
- Ensure an appropriate structure is in place to enable the merged school to function efficiently and effectively;
- Ensure that as many employees as possible currently employed in a merging school are re-assigned or re-confirmed to positions in the merged school;
- Ensure that employees of the merging schools who are not reconfirmed or reassigned to positions in the merged school have access to redundancy compensation in a fair and timely manner.
10.3.2 “Merging schools” includes the merging school(s) and the continuing school before the date of merger; and “merged school” is the continuing school from the date of merger.
10.3.3 “Employee” shall mean a permanent employee of one of the merging schools who falls within the coverage clause of this Agreement.
10.3.4 Employment Protection
- Actual vacancies that arise at the schools involved in a merger or the merged school, from the earlier of the announcement of a staff review or Gazette notices shall be filled with temporary appointments. However, if operational needs require, the employer may determine, in consultation with the union, that any such position may be made permanent. This moratorium applies until the completion of the reconfirmation/reassignment process and notice period, except as provided elsewhere in clause 10.3.
- Throughout the staffing merger process the employer shall attempt to meet any reduction required by the use of attrition.
- Throughout the staffing merger process no support staff position at the merged school shall be externally advertised until the reconfirmation and reassignment processes described in clauses 10.3.9 and 10.3.10 respectively have been finalised.
10.3.5 Needs Analysis
- The needs analysis is the process that designs the staffing structure for the merged school. This process will be conducted by representatives of all the boards involved in the merger (the joint schools’ committee or merger committee).
- This committee shall conduct a needs analysis in consultation with employees and the union.
- The needs analysis shall:
- identify the future support staff structure and needs of the merged school; and
- ensure that the required staff roles have been clearly defined in terms of occupational category and appropriate grade
- As a result of the consultation process, a draft ‘staffing plan’ shall be developed and made available to each employee, and to the nominee(s) of the NZEI Te Riu Roa, for further consultation.
- No less than ten working days shall be made available for this consultation to occur before any further step is taken, unless otherwise agreed.
(Note: The parties agree that it is desirable to have the same number of days as the teachers in the affected school.)
- If, as a result of consultation, there are alterations to this draft, the amended versions shall also be made available for a further three working days.
- When the final staffing structure is announced, the employer shall invite all employees to express a preference (or preferences) in writing, for a position (or positions) at the merged school. Where this announcement identifies the possibility of a position or positions being disestablished, any affected employee(s) shall be given one month’s written notice of a possible surplus staffing situation within her/his occupational category in the school. This period of notice must be allowed before notice of termination, as described in clause 10.3.11(a) of this clause, may be given.
- Employees shall have at least one calendar week’s notice of the closing date for expressions of interest in the position(s) at the merged school.
10.3.6 Appointments Process
- The boards involved in the merger may agree on a Joint Appointments Committee or use the committee referred to in 10.3.5 (a) above (hereafter referred to as the Committee). The Committee should be responsible for managing the reconfirmation and reassignment process for all staff.
- The principal of the merged school, once appointed, should be included on the Committee.
10.3.7 Voluntary Option
- Following the publication of the final staffing structure, the employer board shall invite written expressions of interest in the option of voluntary redundancy. Subject to the employee completing the required period of notice (two months, or less by mutual agreement) an employee whose application for voluntary redundancy is accepted shall receive her/his full entitlement to redundancy pay as prescribed by clause 10.2.12 (Surplus Staffing) of the Agreement.
- An employee may continue to volunteer for this option without prejudice or withdraw from it at any point in the staffing merger process, providing the employer has not already accepted the application in writing. No letter of acceptance will be issued without the agreement of the Committee.
- The employer shall not be bound to agree to any application for voluntary redundancy.
10.3.8 Appointment/Selection Process
- For the purpose of clauses 10.3.9, 10.3.10 and 10.3.11 below:
- Reconfirmation’ shall mean the process whereby employees are transferred to suitable positions at the re-organised school.
- A ‘suitable position’ is one which has similar duties and/or for which the applicant is appropriately qualified and experienced or could become so with reasonable access to re-training. The new position shall have the same or a higher grading.
- ‘Reassignment’ shall mean the process that applies to functionally equivalent positions.
- ‘Functionally equivalent’ shall mean positions which are generally similar in role, duties and status and which require similar qualifications, training, skills and experience but may have different titles.
- ‘Merit’ means the most suitable person and primarily includes assessment of qualifications, training, skills and experience.
- The employer shall reconfirm (as defined in clause 10.3.8(a)(i) above) employees to suitable positions at the merged school.
- An employee may be reconfirmed to her/his preferred position or, subject to her/his agreement, to a position for which she/he is appropriately qualified and experienced.
- Where there are two or more employees eligible for re-confirmation to a single position, the employer shall reconfirm the most suitable candidate(s) based on merit.
- Where a permanent employee is reconfirmed, this must be into a position of at least the same hours. Provided that where an employee accepts redeployment to a position with reduced hours in a situation where a position with at least the same hours is not available, that employee will be entitled to a partial redundancy payment.
- Partial redundancy will be calculated on the basis of applying the redundancy pay formula described in clause 10.2.12 (Surplus Staffing) of this agreement to the total number of reduced hours as set out under clauses 2.5 and 2.6 (Hours of Work) of this Agreement. This total shall be paid as an allowance over the number of weeks of entitlement. Should the employee’s hours increase over this period the allowance will be reduced or removed accordingly.
10.3.10 Re-assignment to Functionally Equivalent Positions
- Following completion of the reconfirmation process, the employer may reassign an employee, who has not been reconfirmed in accordance with clause 10.3.9, to a suitable position at the merged school.
- Subject to the provisions in this section, if an employee expresses a preference for a position that is functionally equivalent (as defined under 10.3.8(a)(iv) above) to her/his current position, and she/he is the only suitably qualified and experienced employee for that position, she/he shall be reassigned to that position.
- An employee may be reassigned to her/his preferred position or, subject to the agreement of the employee, to a position for which she/he is appropriately qualified and experienced.
- Where there are more employees in positions that are functionally equivalent than there are such positions at the merged school, the employer shall seek internal applications for the position(s) from those employees and shall appoint the most suitable candidate(s) based upon merit.
- An employee who is not appointed to a functionally equivalent position at the merged school may be reassigned to any vacant position for which she/he is suitable, or could become suitable with access to re-training, provided the terms and conditions are no less favourable and the duties and responsibilities are comparable.
- An employee who accepts reassignment to a position assessed as being at a lower grade and/or offering a lower hourly rate/salary rate will be entitled to an equalization allowance for a period of one year from the date on which the reassignment takes effect. The equalisation allowance will be calculated on the basis of the difference between the hourly rate/salary rate paid to the employee prior to reassignment and that paid for the position to which she/he has been reassigned. Should the position be upgraded, or a higher graded position obtained during the 12 month period, the allowance would be reduced accordingly or removed.
- An employee who accepts reassignment to a position with reduced hours will be entitled to a partial redundancy payment. Partial redundancy will be calculated on the basis of applying the redundancy pay formula described in clause 10.2.12 (Surplus Staffing) of this Agreement to the total number of reduced hours, as set under clauses 2.5 and 2.6 (Hours of Work) of this Agreement. This total shall be paid as an allowance over the number of weeks of entitlement. Should the employee’s hours increase over this period it will be reduced or removed accordingly.
- An employee who does not wish to accept reassignment to a position with less favourable terms and/or conditions will be deemed to have had her/his position disestablished. The provisions of clause 10.3.11 below will apply to any such employee.
10.3.11 Notice and Disestablishment of Positions
- Any employee who is not reconfirmed or reassigned as per clauses 10.3.9 and 10.3.10 above will be deemed to have had their position disestablished and will be given written notice of termination advising of the date that the notice will take effect. This notice period will be a minimum of one month.
- If, during the two-month notice period, a suitable permanent position arises at the merged school the employee may seek appointment to that position and, if she/he is suitably qualified and experienced, she/he shall be appointed to that position.
- During the notice period the employer will provide reasonable paid time for the employee to attend interviews.
- Clauses 10.2.7 – 10.2.10 (Surplus Staffing) shall apply in relation to the notice period. These provisions emphasise the responsibilities in relation to securing alternative employment on the employer and employee. Where a reasonable offer of employment, as defined in clauses 10.2.8 and 10.2.9, is made in the education or state service, the employer has no further obligation in relation to redundancy payments. Scope exists to co-ordinate the notice period and availability of the new position.
- If at the completion of the notice period alternative employment is not found in accordance with clauses 10.3.9 and, 10.3.10 or clauses 10.2.7 and 10.2.8 (Surplus Staffing) of this Agreement, the employee will receive redundancy and a work reference or record of service in accordance with clauses 10.2.12 and 10.2.13 (Surplus Staffing) of this Agreement.