Circular No 2004/3: Amendments to the Public Service Regulations 1999 and the Public Service Commissioner's Directions 1999 — Election candidates and other technical amendments

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The purpose of this circular is to advise agencies of a number of changes that have been made to the Public Service Regulations 1999 (the Regulations) and the Public Service Commissioner's Directions 1999 (the Directions).

2. The major change relates to the arrangements that apply to an Australian Public Service (APS) employee who resigns to contest an election and, if unsuccessful, applies to be again engaged as an APS employee. There have been other technical amendments made in relation to the notification of certain employment decisions in the Gazette and to the definitions of certain terms in the Regulations.

3. The changes to the Regulations came into effect on 18 June 2004 (the date of gazettal), while the amendments to the Directions came into effect on 8 June 2004 (the date they were made). Copies of the Public Service Amendment Regulations 2004 (No.1) and the Public Service Commissioner's Amendment Directions 2004 (No.1) are attached to this circular. Consolidated versions of the Regulations and the Directions, including these amendments, are available on the Attorney-General's Department Scaleplus website http://scaleplus.law.gov.au/.

Persons who resign to contest an election

4. Section 32 of the Public Service Act 1999 (the Act) provides that if an APS employee resigns to contest an election prescribed by the Regulations, then, provided that the resignation took effect not earlier than six months before the closing date for nominations and the person was a candidate in the election and failed to be elected, the person is entitled to be again engaged as an APS employee, in accordance with the Regulations and within the time limits prescribed by the Regulations.

5. Regulations 3.13 to 3.15 set out the arrangements for the purposes of section 32 of the Act. The conditions set out in these regulations relate to:

the form of election (prescribed to include elections for Commonwealth, State and Territory Houses of Parliament/Legislative Assembly and certain elections under the Aboriginal and Torres Strait Islander Commission Act 1989);
time limits on the application for re-engagement (generally, two months after the declaration of the result of the election); and
a person's entitlements on return to APS employment (in relation to employment status, classification, duties and terms and conditions of employment) and how the period between resignation and re-engagement is to be treated.

6. The Regulations also stipulate who a person must apply to for re-engagement and recognise that there is no entitlement to be re-engaged where the person who has resigned to contest an election was originally engaged for a specified term or task and, at the time of application for re-engagement, the original term had expired or the task had been completed.

Scope of the amendments

7. The most significant change relates to how the period between the person's resignation and re-engagement is treated. Under the former sub-regulation 3.15(6), this period counted as service for the purpose of leave accruals.

8. New sub-regulations 3.15(6) and 3.15(7) provide that, rather than counting as service for the purpose of leave accruals, the break between resignation and re-engagement does not break continuity of service for the purpose of the calculation of leave entitlements and the calculation of redundancy pay. They also correct some anomalies in the former provisions by:

making it clear that the period between resignation and re-engagement does not break continuity for the purposes of calculation of both leave entitlements and redundancy pay (the former regulation only referred to the period counting as service for the accrual of leave entitlements); and
clarifying that the Regulations cannot override the provisions of either the Long Service Leave (Commonwealth Employees) Act 1976 or the Maternity Leave (Commonwealth Employees) Act 1973 which treat leave differently.

9. The amendments to the Regulations also clarify who a person must apply to for re-engagement under section 32 of the Act including in circumstances where, after an election, a machinery of government (MoG) change has altered the person's previous agency in some way; for example, by moving that person's functions to a different agency. New sub-regulation 3.14 specifies that a person to whom section 32 of the Act applies is entitled to be engaged again as an APS employee if, within the required time, the person applies to the 'relevant authority'. This term is defined to mean:

the Agency Head of the agency in which the person was employed when the person resigned (if that agency still exists); or
if the functions to which the person's duties related, or mainly related, have been transferred to another agency, the Agency Head of that agency, or
in any other case, the Public Service Commissioner.

10. An example of a case in which the Public Service Commissioner would be the 'relevant authority' is one where, as a result of a MoG change, the duties that the person previously performed prior to resigning to contest an election have been moved out of the APS.

11. Finally, clause 4.1(3) of the Directions has also been amended to clarify that an engagement in accordance with the provisions of section 32 of the Act is not subject to normal APS merit selection requirements.

Other changes

12. The other changes to the Regulations and Directions are more of a technical nature.

Gazettal of certain engagement decisions

13. Amendments to the Directions which came into effect on 18 March 2003, inserted clause 4.2A which provides that, in exceptional circumstances, the Public Service Commissioner may authorise an Agency Head to engage a non-ongoing APS employee as an ongoing APS employee without needing to satisfy normal merit selection provisions in relation to advertising and competitive selection.

14. A note at the end of Clause 4.2A of the Directions advised that it was intended to amend the Regulations to provide that where such engagements occur, an Agency Head must ensure that the engagement is notified in the Gazette and that the notice includes a statement to the effect that 'This engagement was authorised by the Public Service Commissioner on (date) under clause 4.2A of the Public Service Commissioner's Direction 1999'. Further information on engagements in these circumstances is set out in Circular 2003/2 of 15 April 2003 which is available on the Commission's website.

15. As foreshadowed in this note, regulation 3.12 has now been amended to require notification in the Gazette of any engagements made in accordance with clause 4.2A of the Directions. As a result, the note at the end of clause 4.2A of the Directions is no longer needed and has been deleted.

16. Other minor amendments have also been made to regulation 3.12 to reflect some earlier renumbering of the Directions.

Amendments to certain definitions

17. The definitions of the terms 'Classification Rules' and 'Commissioner's Directions' that are contained in the Dictionary to the Regulations have been amended to ensure that they refer to the current versions of these instruments and consequential changes have been made in the body of the Regulations. The definition of the term 'Classification Rules' in the Dictionary to the Directions has also been updated.

Parliamentary Scrutiny

18. The amendments to the Regulations and Directions are subject to Parliamentary scrutiny, which means that a notice of disallowance may be given in either House of Parliament within 15 sitting days of tabling. Should such a notice or notices be given, the amendments to the Regulations and/or the Directions may be disallowed by resolution of either House. In the event of disallowance of either or both amendments, the Regulations and/or Directions as they existed before the amendments were made would be revived from the date of disallowance. Further advice will be issued should disallowance occur.

Further advice

19. For further information on the matters raised in this circular, you may contact the APS Commission's Helpline by phone — on (02) 6202 3859, or e-mail — employmentadvice@apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with by e-mail. Agencies seeking advice on the application of the Long Service Leave or Maternity Leave Acts should direct their enquiries to their Department of Employment and Workplace Relations client contact team.

David Bohn
Group Manager
Policy and Employment Group

June 2004

Attachment A

Public Service Amendment Regulations 2004 (No.1)

Attachment B

Public Service Commissioner's Amendment Directions 2004 (No.1)