Circular No 2001/6 : Mobility arrangements between the Australian Public Service and the Parliamentary Service

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Introduction

The purpose of this circular is to advise Agencies of the changes recently made to the Parliamentary Service Act 1999 (Parliamentary Service Act) which ensure mobility between the Australian Public Service (APS) and the Parliamentary Service. The changes are effective from 17 October 2001.

2. The Parliamentary Service Act came into operation on 5 December 1999 and established the Parliamentary Service as a separate Service from the APS.

3. Section 26 of the Parliamentary Service Act was intended to regulate the movement of employees between the Australian Public Service and the Parliamentary Service and vice versa. The provision, however, never operated as intended because it did not reflect changes made to the Public Service Bill between the 1997 and 1999 in relation to categories of employment (ongoing and non-ongoing) and promotion reviews. In addition, the provision did not apply to movements between Statutory APS Agencies (e.g. Centrelink and the Australian Taxation Office) and the Parliamentary Service or provide for a formal separation of employment with the employee's former Service other than through the employee resigning before taking up an employment opportunity in the other Service.

4. The changes made to the Parliamentary Service Act on 17 October 2001 and those to be made via new Public Service Regulations will overcome these difficulties.

Amendments to the Parliamentary Service Act

5. The Parliamentary Service Amendment Act 2001 repealed section 26 of the Parliamentary Service Act and inserted two new sections (sections 26 and 26A) to clarify mobility arrangements between the APS and the Parliamentary Service. A copy of sections 26 and 26A of the Parliamentary Service Act is at Attachment A.

6. Sections 26 and 26A of the Parliamentary Service Act apply to the movement of an ongoing employee in one Service to an ongoing or non-ongoing employment opportunity in the other Service.

Section 26 - the engagement of an ongoing employee of one Service as an ongoing employee in the other Service

7. Subsections 26(1) and 26(2) provide that an ongoing employee in one Service is eligible for engagement, at any classification, as an ongoing employee in the other Service and the engagement is subject to review in accordance with the provisions of the Public Service Regulations and Parliamentary Service Determinations, as the case may be. The Regulations and Parliamentary Service Determinations to provide for these review rights are currently being drafted.

8. Subsection 26(3) provides for the portability of annual leave and personal or carer's leave (however they may be described) between the two Services, if an ongoing employee in one Service is engaged as an ongoing employee in the other Service.

9. Subsection 26(4) provides that an ongoing employee stops being an ongoing employee in his or her former Service upon engagement as an ongoing employee in the other Service. This is to ensure that an ongoing employee moving from one Service to the other Services ceases to be an employee of their former Service without a requirement to formally resign.

Section 26A - the engagement of an ongoing employee granted leave without pay in one Service to take up employment as a non-ongoing employee in the other Service

10. Subsections 26A(1) and 26A(2) provide for the portability of annual leave and personal or carer's leave (however they may be described) between the two Services where an ongoing employee in one Service is granted leave without pay to take up a non-ongoing employee opportunity in the other Service.

11. Subsection 26A(3) provides that any period of leave without pay referred to in subsection 26A(1) or 26A(2) counts as service for all purposes except accrual of annual leave and personal or carer's leave (however they may be described). This exception is to ensure an employee cannot receive leave credits from both Services for the same period.

12. The granting of leave without pay to an ongoing employee of one Service to take up a non-ongoing employment opportunity in the other Service is a decision for the losing APS Agency or Parliamentary Department to make, as the case may be.

Public Service Regulations

13. The operation of the sections 26 and 26A of the Parliamentary Service Act will be supported by Public Service Regulations that will deal with the following issues:

the review rights of ongoing employees of both Services against the promotion of an ongoing APS employee or the engagement of a Parliamentary Service in the APS at a higher classification;
Gazette notification arrangements where an ongoing Parliamentary Service employee is engaged as an ongoing APS employee at a higher classification; and
time limits associated with the initial period of engagement of an ongoing Parliamentary Service employee as a non-ongoing APS employee.

14. These Regulations are currently being drafted and will be forwarded to the Minister Assisting the Prime Minister for the Public Service for consideration when they have been settled with the Office of Legislative Drafting.

15. Once the new Regulations have been made the PSMPC will issue comprehensive advice to Agencies on the mobility arrangements that operate between the APS and the Parliamentary Service.

16. In the interim, Agencies should apply the provisions outlined in paragraphs 7-12 above. If clarification or assistance is required an Agency can contact Alan Harrison in the Commission on (02) 6202 3859.

Enquiries

17. General enquiries from Comnet members and their senior staff about this circular can be directed to the PSMPC's Helpline on (02) 6202 3859.

Jeff Lamond
Team Leader
Staffing, Structures and Performance Team

November 2001

Attachment A : Section 26 and Section 26A: Parliamentary Service Act 1999

26 Mobility between Parliamentary Service and Public Service

An ongoing Parliamentary Service employee is eligible for engagement, at any classification, as an ongoing APS employee. The engagement is subject to review in accordance with regulations under the Public Service Act 1999.
An ongoing APS employee is eligible for engagement, at any classification, as an ongoing Parliamentary Service employee. The engagement is subject to review in accordance with the determinations.
A person who moves from:
1. employment as an ongoing Parliamentary Service employee to employment as an ongoing APS employee; or
2. employment as an ongoing APS employee to employment as an ongoing Parliamentary Service employee;
retains his or her existing or accrued entitlements relating to annual leave, and personal or carer's leave, (however they may be described).
Note: Service for long service leave purposes is dealt with under the Long Service Leave (Commonwealth Employees) Act 1976, and service for maternity leave purposes is dealt with under the Maternity Leave (Commonwealth Employees) Act 1973.
If a person moves from one service to another as mentioned in this section, the person stops being an employee of the service from which the person moved when he or she is engaged as an ongoing APS employee or as an ongoing Parliamentary Service employee.

26A Rights of ongoing employees when engaged as non-ongoing employees of the other service

If an ongoing Parliamentary Service employee is granted leave without pay to take up employment as a non-ongoing APS employee, the employee:
1. retains his or her existing or accrued entitlements relating to annual leave, and personal or carer's leave, (however they may be described) in respect of employment as a Parliamentary Service employee; and
2. when he or she returns to the Parliamentary Service-retains his or her existing or accrued entitlements of that kind in respect of employment as an APS employee.
If an ongoing APS employee is granted leave without pay to take up employment as a non-ongoing Parliamentary Service employee, the employee:
1. retains his or her existing or accrued entitlements relating to annual leave, and personal or carer's leave, (however they may be described) in respect of employment as an APS employee; and
2. when he or she returns to the APS-retains his or her existing or accrued entitlements of that kind in respect of employment as a Parliamentary Service employee.
Any period of leave without pay referred to in subsection (1) or (2) counts as service for all purposes except accrual of annual leave, or personal or carer's leave, (however they may be described).
Note: Service for long service leave purposes is dealt with under the Long Service Leave (Commonwealth Employees) Act 1976, and service for maternity leave purposes is dealt with under the Maternity Leave (Commonwealth Employees) Act 1973.