Circular No 2003/3: Cancellation of Section 26 agreements

Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

It has been replaced by the documents referred to in Circular 2004/9

Situations may occur that warrant the cancellation of an APS employment decision made under section 22 (engagement of an APS employee), section 25 (assignment of duties) or section 26 (voluntary moves between agencies) of the Public Service Act 1999 (PS Act) before it takes effect. The purpose of this circular is to provide advice relevant to the cancellation of such decisions. The legislative framework for such decisions is described in the Attachment.

Issues

2. Agency Heads may cancel or revoke employment decisions made under sections 22 and 25 before they take effect. There are doubts, however, that an Agency Head has the power to unilaterally cancel an agreement entered into in writing under section 26 unless the agreement permits this to occur. If there is no provision in the agreement which would allow the agreement to be cancelled then the agreement can only be cancelled or varied by making a further written agreement.

3. Under these circumstances, agencies are advised to include in all section 26 agreements a provision that will allow either party the right to withdraw from the agreement before it takes effect. The type of events which might lead to either party withdrawing from an agreement include the following:

the move involves a promotion and the promotion is overturned by a Promotion Review Committee decision;
information becomes available which was not disclosed during the selection process which may have influenced the outcome;
the Agency Head becomes aware of a serious defect in the selection process;
the employee has been selected for two or more opportunities and the employee opts to accept the other opportunity;
there are unanticipated changes to the employee's personal circumstances; or
there is an unanticipated organisational change within the agency that may impact on the movement.

4. Agencies need to recognise that while there may be a legal power to cancel certain employment decisions, an affected individual may have a right to seek legal redress in relation to that decision, for example under administrative law or for negligent misrepresentation. These risks can be reduced by taking care to ensure that all parties are notified as soon as possible when an agreement is cancelled and providing an explanation of why the agreement has been cancelled.

Peter Miller
Acting Group Manager
Policy and Employment Group

April 2003

Attachment: Legislative framework

Section 22 - Engagement of APS employees

An Agency Head may, on behalf of the Commonwealth, engage a person as an APS employee((section 22(1)) and determine the category of employment in which the person is to be engaged. The categories of employment are:

an ongoing employee (section 22(2)(a)); or
for a specified term or for the duration of a specified task (section 22(2)(b)); or
for duties that are irregular or intermittent (section 22(2)(c)).

The usual basis for engagement in the APS is as an ongoing employee (section 22(3)).

The engagement of an employee may be made subject to conditions notified to the candidate prior to the engagement, eg probation, citizenship, formal qualifications, security and character clearances and health clearances (section 22(6)). An Agency Head may also impose other conditions of engagement (section 22(7)) but those conditions must accord with merit-based decision making and the other APS Values. Persons engaged as APS employees must be Australian citizens unless the Agency Head considers it appropriate to engage a non-citizen (section 22(8)).

Section 25 - Assignment of Duties

An Agency Head may assign duties at an appropriate classification to an employee. Assignment of duties is relevant to engagements, promotions and temporary assignments at a similar classification, or at a higher or a lower classification (section 25).

Section 26 - Voluntary moves between agencies - including movement associated with a promotion

Section 26 provides that an Agency Head may enter into an agreement in writing with an APS employee for that employee to move to the agency and that this agreement has effect according to its terms.

Promotion between agencies

If the promotion involves a movement between agencies, the Agency Head will exercise the powers under section 26 to move the employee to the agency.

Regulation 3.12 - Notification of a cancellation

An Agency Head must notify in the Gazette the cancellation of any employment decision that has already been notified in the relevant section of the Gazette (Regulation 3.12A).

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