25Compensation for loss of office

25 Compensation for loss of office

(1) If a Secretary is terminated in accordance with subsection 56(2) or 59(1) of the Public Service Act 1999, and an exclusion event does not occur, the Secretary is entitled upon termination to be paid: (a) for a termination 12 months or more before the end of the Secretary’s term of appointment—12 months’ reference salary at the time of termination; or (b) for a termination less than 12 months before the end of the Secretary’s term of appointment—1 month’s reference salary for each full month of the balance of the term not served, subject to a minimum payment of 6 months’ reference salary at the time of termination. Exclusion events (1A) An exclusion event is any of the following events: (a) the Secretary’s appointment is terminated under subsection 59(1) of the Public Service Act 1999 before the end of the Secretary’s term of appointment, and before that termination: (i) under paragraph 41(2)(m) of that Act, the Australian Public Service Commissioner inquired, in accordance with section 41A of that Act, into an alleged breach of the APS Code of Conduct (within the meaning of that Act) by the Secretary; and (ii) the Commissioner found that the Secretary breached the APS Code of Conduct; and (iii) the Commissioner made a finding in relation to the Secretary’s conduct, as set out in subsection (1B) of this section; (b) the Secretary’s appointment is terminated under subsection 59(1) of the Public Service Act 1999 before the end of the Secretary’s term of appointment, and before that termination: (i) under the National Anti‑Corruption Commission Act 2022, the National Anti‑Corruption Commissioner conducted a corruption investigation into the conduct of the Secretary; and (ii) the investigation report under section 149 of that Act included an opinion that the Secretary had engaged in corrupt conduct of a serious or systemic nature; and (iii) the investigation report included a recommendation to terminate the appointment of the Secretary; (c) the Commonwealth makes the Secretary an offer of suitable alternative employment. (1B) For the purposes of subparagraph (1A)(a)(iii), the Commissioner made a finding that the Secretary’s conduct: (a) constituted any one or more of the following: (i) sexual harassment; (ii) bullying at work (within the meaning of subsection 789FD(1) of the Fair Work Act 2009); (iii) an improper use of the Secretary’s duties, status, power or authority to gain a benefit or advantage (whether financial or otherwise) for themselves or any other person; or (b) is likely to constitute an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment. Offers of suitable alternative employment (2) In determining whether, for the purposes of paragraph (1A)(c), there has been an offer of suitable alternative employment, take account of any offer of employment with any of the following: (a) the Commonwealth; (b) the administration of a Territory; (c) a public statutory corporation referred to in paragraph 3(4)(d) of the Act; (d) an incorporated company all the stock or shares in the capital of which is or are beneficially owned by the Commonwealth or by a public statutory corporation; (e) an incorporated company limited by guarantee where the interests and rights of the members in or in relation to the company are beneficially owned by the Commonwealth or by a public statutory corporation. (3) If: (a) a Secretary who has been terminated (the former Secretary) is appointed to suitable alternative employment in an office within the jurisdiction of the Tribunal; and (b) the total remuneration that applies to that position is less than the total remuneration for the lowest pay point in the classification level of the office from which the former Secretary has been terminated; then the Tribunal may determine that, for up to 12 months from the appointment: (c) the former Secretary is entitled to total remuneration at that pay point; and (d) the former Secretary’s superannuation salary for the purposes of a Commonwealth defined benefits scheme is 70% of that total remuneration (rounded up to the nearest $10).