Circular No 2002/5: Breaches of the Code of Conduct - reduction in salary for a specified period

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Purpose

The purpose of this Circular is to clarify the position in relation to a sanction of reduction in salary for a specified period.

Background

2. A number of inquiries have been received from Agencies in relation to the operation of subsection 15(1) of the Public Service Act 1999 where a sanction of reduction in salary is being contemplated.

Reduction in salary

3. Some uncertainty has arisen as to whether or not the current legislation permits a sanction of reduction in salary to be imposed for a specified period or whether it can only be imposed indefinitely. Historically, the Public Service Act 1922 generally permitted reductions in salary to be imposed for a maximum period of 12 months - either as a single sanction, or in combination with a transfer at the same classification. Decision-makers had the option of restoring the employee’s salary to what it would have been at the end of the period, or to a lesser salary point.

4. While subsection 15(1) of the Public Service Act 1999 is silent about the possibility of reducing an employee’s salary for a specified period, agency heads are not excluded from doing so.

5. Paragraph 15(1)(d) - reduction in salary - can be imposed for a temporary period or for an indefinite period, and in either case the reduction will be subject to any subsequent salary event, such as a promotion or a salary increase provided for in an agreement. For example, if a sanction of reduction in salary from the top salary point of an APS 5 to the bottom salary point of an APS 5 were imposed for a period of 12 months and after 6 months the person was promoted to APS 6, the salary reduction would clearly be overtaken by the promotion.

6. Where an employee’s salary is temporarily reduced and that temporary period ends, then provided no event has intervened to take the employee’s salary higher than the original rate (salary point X), it would move back to salary point X in the relevant scale.

7. Reducing an employee’s salary for a limited period needs to be applied fairly. In particular, the period for which the reduction is to have effect should be clearly specified at the time the sanction is determined. There should also be an undertaking that the employee’s salary will be restored, or increased to a different amount having regard to the provisions of an agreement, at the end of the period. If the employee commits a further breach during the intervening period, a new misconduct process should commence - to deal with that incident. The level of sanction that might be imposed would normally take into account past conduct.

8. An amendment to the relevant part of the booklet, Managing Breaches of the APS Code of Conduct, will be made as soon as possible.

Further information

9. If you have any questions about the Circular, please contact the APS Commission Helpline on telephone (02) 6202 3859 or email employmentadvice@apsc.gov.au

Mary Reid
Acting Group Manager
Organisational Performance and Values Group

30 July 2002