Circular No 2004/1: Amendments to the Public Service Regulations 1999 and to the Public Service Commissioner's Directions 1999-(A) mobility between the Australian Public Service and the Parliamentary Service and (B) judgement debts

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The purpose of this circular is to advise agencies of changes to the Public Service Regulations 1999 (the Regulations) and to the Public Service Commissioner's Directions 1999 (the Directions) dealing with the mobility arrangements between the Australian Public Service (APS) and the Parliamentary Service, and minor changes to the Regulations relating to judgement debts.

(A) Mobility between the Australian Public Service and the Parliamentary Service

2. Following the establishment of a separate Australian Public Service and Australian Parliamentary Service in December 1999, it was agreed that amendments would be made to the Regulations and the Directions to give full effect to the mobility arrangements between the two Services. The amendments give access and review rights in respect of APS jobs to Parliamentary Service employees which reflect as closely as possible the rights of APS employees within the APS. Corresponding amendments to the Parliamentary Service Determination give corresponding rights to APS employees applying for jobs in the Parliamentary departments. The following changes came into effect on gazettal on 23 December 2003.

Scope of the amendments

3. The Regulations have been amended to support section 26 of the Parliamentary Service Act 1999 which provides for the operation of mobility arrangements between the two Services.

4. The amendments:

establish an upper limit of three years on the period of engagement of an ongoing Parliamentary Service employee as a non-ongoing APS employee (Regulation 3.5);
specify the date of effect of an engagement in the case of an ongoing Parliamentary Service employee being engaged as an ongoing APS employee at a higher classification (Regulation 3.8A);
provide for certain Gazette notifications where an ongoing Parliamentary Service employee is engaged as an ongoing APS employee at a higher classification (Regulation 3.12); and
provide for the review rights of ongoing employees of both Services against the promotion of an ongoing APS employee or the engagement of a Parliamentary Service employee in the APS at a higher classification (various changes in Division 5.2 of the Regulations).

5. In addition, a schedule (Schedule 2) has been inserted into the Regulations, defining the meaning of comparable classification and higher classification.

6. The Public Service Commissioner has concurrently made Public Service Commissioner's Amendment Directions 2003 (No.3) (the Amendment Directions) which inserts new subclause 4.2(4C) into the Directions to enable an Agency Head to engage an ongoing Parliamentary Service employee as an ongoing APS employee at a comparable classification level, as defined in the Regulations, without the employment opportunity necessarily having been notified in the Gazette. This introduces a capacity to move Parliamentary Service employees at level, similar to the arrangements available to move APS employees at level within and between APS agencies.

7. The Attorney-General's Department's Scaleplus website http://scaleplus.law.gov.au/ holds a consolidated version of the Regulations (http://scaleplus.law.gov.au/html/pastereg/3/1557/top.htm) and Commissioner's Directions (http://scaleplus.law.gov.au/html/instruments/0/26/0/2004011301.htm). For those who wish to examine the amending documentation, the Public Service Amendment Regulations 2003 (No3.) can be located at http://scaleplus.law.gov.au/html/numrul/20/10012/top.htm, and its Explanatory Statement at http://scaleplus.law.gov.au/html/ess/0/2003/N/20031223364.htm. As Scaleplus does not hold copies of Commissioner's Amendment Directions, a copy of Public Service Commissioner's Amendment Directions 2003 (No.3), together with its Explanatory Statement, is attached to this circular.

Date of effect of an engagement of an ongoing Parliamentary Service employee as an ongoing APS employee-Regulation 3.8A

8. If the engagement of an ongoing Parliamentary Service employee as an ongoing APS employee is not subject to review by a Promotion Review Committee (PRC), then the engagement takes effect either 4 weeks after the engagement decision is notified in the Gazette, or on a later date of effect agreed between the employee and the Agency Head.

9. If the engagement of an ongoing Parliamentary Service employee as an ongoing APS employee is subject to review by a PRC, then the engagement takes effect in accordance with the table set out in Regulation 3.8A(2):

Item	Is an application for review made before the end of the application period?	Engagement takes effect
1	No	Either: (a) 2 weeks after the end of the application period; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head - on the agreed date of effect.
2	Yes Application is withdrawn before the PRC makes a decision on the application	Either: (a) 2 weeks after the Agency Head is notified of the withdrawal; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head - on the agreed date of effect.
3	Yes Merit Protection Commissioner appoints a PRC to deal with the application Application lapses before the PRC makes a decision on the application	Either: (a) 2 weeks after the Agency Head is notified by the Merit Protection Commissioner that the application has lapsed; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head - on the agreed date of effect.
4	Yes Merit Protection Commissioner decides under subregulation 5.10 (1) that it is not necessary to appoint a PRC to deal with the application	Either: (a) 4 weeks after the engagement decision is notified in the Gazette; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head - on the agreed date of effect.
5	Yes Under regulation 5.18, PRC does not uphold the application in relation to the engagement of the ongoing Parliamentary Service employee	Either: (a) 2 weeks after the ongoing Parliamentary Service employee is notified of the decision; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head - on the agreed date of effect.
6	Yes Under regulation 5.18, PRC upholds the application in relation to the engagement of the ongoing Parliamentary Service employee	The engagement of the Parliamentary Service employee whose application is upheld commences in accordance with the terms of the offer of employment made under section 22 of the Act Note See subregulation 5.20 (4).

Gazette notification requirements-Regulation 3.12

10. In the event that a PRC decision is that an ongoing Parliamentary Service employee who has applied for a review of an engagement decision or a promotion decision should be engaged to the relevant employment, then that engagement must be notified in the Gazette (see subregulation 3.12(1)(l)).

11. Where a decision is made to engage an ongoing Parliamentary Service employee as an ongoing APS employee, the amendments to the Regulations require an APS agency to include in the Gazette notification of the engagement a note to the following effect:

"This decision to engage an ongoing Parliamentary Service employee at a higher classification may be subject to review by a Promotion Review Committee in accordance with Part 5 of the Regulations."

12. The purpose of this statement is to assist employees of both Services to identify where review rights might be applicable (see subregulation 3.12(2A)).

Review rights-Division 5.2

13. The amendments to the Regulations provide that if an ongoing Parliamentary Service employee has applied for an APS employment opportunity at the level of APS 1 to APS 6, and equivalent classifications (see Groups 1 to 6 set out in Schedule 1 of the Public Service Classification Rules 2000):

where, if they were successful, the engagement would be at a higher classification than the Parliamentary Service employee's current classification as a Parliamentary Service employee; and
where the outcome of the selection process is either the promotion of an existing APS employee, or the engagement of another Parliamentary Service employee at a higher classification than that Parliamentary Service employee's current classification as a Parliamentary Service employee,

then the Parliamentary Service employee is entitled to apply to the Merit Protection Commissioner to have the promotion or engagement decision reviewed by a Promotion Review Committee.

14. Similarly, the amendments provide that APS employees who are unsuccessful in their application for promotion to a classification included in Groups 1-6 of Schedule 1 of the Public Service Classification Rules 2000, where the outcome is the engagement of a Parliamentary Service employee at a higher classification than their current Parliamentary Service classification, may apply to the Merit Protection Commissioner to have the engagement decision reviewed by a Promotion Review Committee.

15. Further advice on seeking a review of promotion or engagement decisions in these circumstances should be directed to the office of the Merit Protection Commissioner on (02) 6202 3849.

Operation of mobility arrangements between the two Services

16. In terms of how the mobility arrangements between the two Services are intended to operate, it should be noted that the expectation is that no unnecessary barriers will be imposed where a Parliamentary Service employee is to be engaged in the APS. This means, for instance, that APS agencies should not consider imposing conditions upon the engagement, such as probation, as the intent of the arrangements is to make movement between the two Services as much akin as possible to promotion and movement at level arrangements applicable to APS employees within and between APS agencies.

17. Where an APS agency considers that there are specific requirements that must be satisfied in relation to the duties being filled, for instance where the health and physical fitness of the employee is of critical importance to the duties concerned, it should take steps to ascertain whether a successful Parliamentary Service employee satisfies those requirements before making any offer of employment.

18. In this regard, the Parliamentary Service arrangements dealing with mobility from the APS to the Parliamentary Service are similarly premised on the basis that there will no unnecessary barriers imposed on the engagement of an APS employee selected for engagement in the Parliamentary Service.

(B) Attachment of salaries to satisfy judgement debts-Procedure to be followed where the debt belongs to the Agency Head

19. Section 75 of the PS Act and Part 8A of the PS Regulations create a framework for action available where a Secretary, the Head of an Executive Agency or an APS employee incurs a judgment debt. These provisions set out a procedure whereby a creditor may recover the debt through the Commonwealth, as the employer, deducting part of an employee's wage and paying that amount to the creditor in satisfaction of the debt.

20. The Senate Standing Committee on Regulations and Ordinances requested that an amendment be made to Part 8A of the Regulations to cover the contingency of an Agency Head being the debtor. The recent amendments to the Regulations implement the Committee's request by inserting new subregulation 8A.4(1A) into the Regulations providing for a procedure to be followed where an Agency Head is in the position of considering whether a deduction should be made in relation to his or her own debt.

21. No action is required in an agency unless the agency receives a request from a creditor to deduct amounts from an Agency Head's salary in order to satisfy a judgment debt. Should such a request be made, the procedure is as follows:

The Agency Head is to delegate the power to appoint a paying officer, in relation to their own judgment debt, to an SES employee without considering whether the making of a deduction from salary is required
The SES employee must then decide whether the making of a deduction is required and appoint a paying officer for the purpose of making the deductions
The Agency Head must not take any action or make any arrangement in relation to the administration of the debt other than the delegation of the power to appoint a paying officer and assisting the paying officer in the repayment of the debt.

22. This amendment came into effect on gazettal on 11 December 2003. The Public Service Amendment Regulations 2003 (No.1) and its Explanatory Statement are also available on the Attorney-General's Department's Scaleplus website: the Amendment Regulations at http://scaleplus.law.gov.au/html/numrul/19/9964/0/NL000050.htm, the Explanatory Statement at http://scaleplus.law.gov.au/html/ess/0/2003/N/20031211317.htm.

Parliamentary scrutiny

23. The 15 sitting days period in which the Amendment Regulations and the Amendment Directions were subject to Parliamentary scrutiny, during which they were subject to the possibility of being disallowed, has now passed.

Further advice

24. General enquiries in relation to these matters can be directed to the APS Commission's Helpline on (02) 6202 3859.

Kathy MacDermott
Group Manager
Policy and Employment Group
23 March 2004

Attachment

Public Service Commissioner's Amendment Directions 2003 (No.3)

Explanatory Statement