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Last updated: 4 September 1998
Circular 1998/16: Restrictions on the appointment and temporary employment of persons who have accepted voluntary retrenchment from the APS - Extension of coverage
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.
The purpose of this circular is to advise agencies of revised notifications made under section 33A and paragraph 82AD(10)(a) of the Public Service Act 1922 (the Act) concerning restrictions on the appointment and employment in the APS of persons who have accepted voluntary retrenchment from the APS. This circular replaces Circular 1998/4. A consolidation of the advice on this issue is at Attachment B.
Background
2. The revised notifications made in February 1998 recognised that many APS agencies are now entering into Certified Agreements (CA) and Australian Workplace Agreements (AWA) which include provisions for the redeployment and retirement of excess non-SES staff. As a result, changes were made to the notifications to ensure that the restrictions encompassed former non-SES staff who received a retrenchment severance benefit under either the provisions of the APS General Employment Conditions Award 1995 (GECA) or the provisions of an agency specific CA or AWA.
3. Subsequently, in March 1998 the Full Bench of the AIRC granted redundancy pay to Casual Court Reporting Officers (CCROs) employed by Auscript. CCROs are not covered by the redeployment and retirement provisions of clause 11 of GECA. Under the Casual Court Reporting Officers (Redundancy) Award 1998 - CCROs made redundant are paid a severance benefit at the same level and on the same conditions as prescribed by clause 11 of GECA.
4. The notifications made in February 1998 would not prevent a former APS employee who receives a severance benefit under an award such as the Casual Court Reporting Officers (Redundancy) Award 1998 from being eligible to apply for appointment or from being selected for temporary employment within 12 months of their retirement or termination.
Revised notifications
5. In order to rectify this anomaly in respect of the Auscript redundancy award, and to cover off the possibility that in the future other awards may prescribe redundancy benefits, new notifications were made under section 33A and paragraph 82AD10(a) of the the Act by the Public Service Commissioner. The new notifications incorporate all the previous restrictions and also include former APS employees who had received a severance benefit under an award other than GECA from being eligible to apply for appointment or from being selected for temporary employment in the APS within 12 months of their retirement or termination.
Consolidation of previous advice
6. The revised notifications were gazetted and came into operation on 10 July 1998. A copy of the notices is at Attachment A. Attachment B is a consolidation of this and previous advice on this matter.
7. Enquiries in relation to the issues raised in this circular should be directed to the PSMPC's Hotline on (02) 6202 3859.
Jeff Lamond
Team Leader
Staffing, Structures and Mobility Team
7 August 1998
Attachment A
COMMONWEALTH OF AUSTRALIA
Public Service Act 1922
NOTIFICATION UNDER SECTION 33A (No. 7 of 1998)
I Helen Williams. Public Service Commissioner, make this notification and determination under section 33A of the Public Service Act 1922 (the Act):
Dated 9th July 1998
Helen Williams
Public Service Commissioner
1. Commencement
1.1 This notification and determination commences on 10 July 1998.
2. Amendment
2.1 The notification and determination under section 33A of the Public Service Act 1922 notified in the Gazette (Special P 15) on 31 May 1994 as amended from time to time, is amended as set out in this instrument.
3. Schedule 1 3.1 Delete the words under the heading "Restrictions on Applying for Appointment" substitute:
A person who has:
- been retired from the Australian Public Service (APS) under section 76W of the Act or has had their APS employment terminated and who has received a retrenchment severance benefit calculated under clause 1 1.4 of the APS General Employment Conditions Award 1995 or a similar payment under another award, a Certified Agreement or Australian Workplace Agreement applicable to the APS officer or employee; or
- retired from the APS followinq the giving of a notice under section 76R of the Act and the receipt of a specified benefit in accordance with a determination under section 82D of the Act;
is ineligible to apply for appointment to the APS within the twelve month period following the date of retirement or termination of the person from the APS.
COMMONWEALTH OF AUSTRALIA
Public Service Act 1922
NOTICE UNDER SECTION 82AD (No. 3 of 1998)
I, Helen Williams, Public Service Commissioner, under subsection 82ADf 1 0)(a) of the Public Service Act 1922 (the Act), notify the following amendment to the Notice under section 8ZAD (No. 2 of 1998) made on 24 February 1998:
(a) Omit clause 1.2 under the heading "The manner in which persons shall be selected for short-term temporary employment"; and
(b) Insert the following:
"1.2 A person who has:
- been retired from the Australian Public Service (APS) under section 76W of the Act or has had their APS employment terminated and who has received a retrenchment severance benefit calculated under clause 11.4 of the APS General Employment Conditions Award 1995 or a similar payment under another award, a Certified Agreement or Australian Workplace Agreement applicable to the APS officer or employee; or
- retired from the APS following the giving of a notice under section 76R of the Act and the receipt of a specified benefit in accordance with a determination under section 82D of the Act;
is ineligible to be selected for short term temporary employment within the twelve month period following the date of retirement or termination of the person from the APS, except where the Secretary is satisfied that the short term employment of such a person is essential due to the nature of the duties to be performed and the skills, experience and/or qualifications of the person."
Dated 9 July 1998
Helen Williams
Public Service Commissioner
Attachment B
Restrictions on the appointment and temporary employment of persons who have accepted voluntary retrenchment from the APS
This document is a consolidation of advice on the arrangements which operate to ensure that staff who accept voluntary retrenchment from the APS are not eligible to apply for appointment or fixed-term temporary employment, or to be selected for short-term temporary employment, within 12 months of their retirement from the APS.
Appointment
2. The Public Service Commissioner has notified under section 33A of the Act that a person who retires from the APS:
- under section 76W of the Act and who has received a retrenchment severance benefit calculated under clause 11.4 of the APS General Employment Conditions Award 1995 or a similar payment under another award, a Certified Agreement or Australian Workplace Agreement applicable to the APS officer or employee; or
- following the giving of a notice under section 76R of the Act and the receipt of a specified benefit in accordance with a determination under section 82D of the Act;
is ineligible to apply for appointment to the APS within the 12 month period following the date of retirement of the person from the APS.
Short-term temporary employment
3. The Public Service Commissioner has also notified under section 82AD(10)(a) of the Act that a person who retires from the APS:
- under section 76W of the Act and who has received a retrenchment severance benefit calculated under clause 11.4 of the APS General Employment Conditions Award 1995 or a similar payment under another award, a Certified Agreement or Australian Workplace Agreement applicable to the APS officer or employee; or
- following the giving of a notice under section 76R of the Act and the receipt of a specified benefit in accordance with a determination under section 82D of the Act;
is ineligible to be selected for short-term temporary employment within the 12 month period following the date of retirement of the person from the APS, except in the circumstances outlined below.
4. There may be exceptional circumstances in which a Secretary considers it essential for a former APS employee who has received a severance benefit to be engaged as a short-term temporary employee to perform a specific task, within 12 months of their retirement. In view of this, the revised notification continues to provide some limited flexibility for the short-term temporary employment of such persons where the Secretary is satisfied that the employment of such a person is essential due to the nature of the duties to be performed and the skills, experience and/or qualifications of the person.
5. In view of the Government's decision to restrict the subsequent employment of former APS employees who have received a severance benefit, it is expected that this special flexibility would be used only in a small number of cases.
Application
6. These provisions:
- apply to both SES and non-SES staff; and
- do not apply to persons who are involuntarily retired, that is, those who have not received a severance benefit or, in the case of an SES officer, a specified benefit in accordance with a determination under section 82D of the Act.
Fixed-term temporary employment
7. Circular 1996/15 of 26 June 1996 advised agencies of changed arrangements for the engagement of fixed-term employees.
8. Those arrangements specifically provide that a Secretary cannot approve the engagement as a fixed-term employee of a person who has applied for the vacancy within the 12 month period following their retirement from the APS with a severance benefit or, in the case of an SES officer, a specified benefit in accordance with a determination under section 82D of the Act.
Other employment
9. Agencies are reminded that the spirit of the Government's decision to restrict the re-employment of people who have received a severance benefit within the previous 12 months applies to any other employment category identified in the Act, including the employment of continuing employees under section 82AC, the engagement of employees in special employment programs under section 82AG and the engagement of overseas employees under section 82AF.
Members of Parliament (Staff) Act (MOPS Act)
10. The restrictions on subsequent employment apply only to APS employment and currently there is no restriction on former APS employees who have received a severance benefit from applying for positions covered by the MOPS Act after their retirement from the APS.
Consultants
11. Consultants should not perform tasks which would establish an ongoing employment relationship with an agency, and would generally be engaged only to provide a specific service or product. Agencies should ensure that any engagement in a consultancy of a former APS employee who has received a severance benefit within the previous 12 months is consistent with Government guidelines on the use of consultants and with the spirit of the Government's decision on managing downsizing.
Arrangements applying to persons receiving a retrenchment benefit from a non-APS Commonwealth employer
12. Since 23 December 1992 (see Circular 1992/18), a Secretary has been able to appoint a person to the APS except where:
- the appointment is to an SES classification; or
- the person to be appointed has received a severance payment from a Commonwealth employer in the 12 months prior to the proposed appointment.
13. In other words, only the Public Service Commissioner is able to appoint a person to the APS who has received a retrenchment benefit from a non-APS Commonwealth employer in the 12 months prior to the proposed appointment. It is entirely a matter for the Secretary or delegate to decide if a request for such an appointment should be made to the Public Service Commissioner.
14. These arrangements for the exercise of powers under section 42 of the Act continue to apply. This means that while former APS staff who have accepted voluntary retrenchment are not eligible to apply for appointment, proposals for the appointment of a person who has received a retrenchment benefit from a non-APS Commonwealth employer (including the Australian Defence Force and Government Business Enterprises) within the 12 months prior to the proposed appointment are to continue to be referred to the PSMPC - Staffing, Structures and Mobility Team.
Persons covered by Part IV of the Act and persons with reciprocal mobility rights
Part IV of the Act
15. The Public Service Amendment Act 1991 provided that persons with either first or second tier coverage who are offered and, after being advised of their re-appointment entitlements to the APS, elect to accept, a retrenchment benefit in relation to the termination of their employment with a Part IV body, cease to be covered by Part IV.
16. Persons with Part IV coverage who accept a retrenchment benefit from a Part IV body and subsequently lose their mobility rights may apply for appointment to the APS for vacancies advertised outside the APS. If, however, the person is the recommended applicant for appointment and 12 months has not elapsed since the person received a retrenchment benefit from the Part IV body, then a proposal to appoint such a person in these circumstances should be referred to the PSMPC (see paragraphs 12 to 14 above).
17. In advising bodies within your portfolio who have, or may have, engaged staff with mobility rights on the operation of Part IV of the Act, it is important to emphasise that in any CA or AWA they should respect the Government's intention that persons with Part IV coverage should have the choice of either:
- electing to accept a retrenchment benefit from the Part IV body; or
- exercising their right to apply to return to the APS,
but not both.
Reciprocal Mobility
18. The APS currently has reciprocal mobility arrangements in place with the Australian Trade Commission, the Albury-Wodonga Development Corporation, the Australian Security Intelligence Organisation and the Australian Capital Territory Public Service (ACTPS).
19. Persons who accept a retrenchment benefit from their employer and cease employment lose their reciprocal mobility rights. A person in this situation who was formerly employed in one of the first three authorities identified above who is subsequently the recommended applicant for appointment, and 12 months has not elapsed since the person received a retrenchment benefit from the Part IV body, can be appointed only by the Public Service Commissioner.
20. The arrangements relating to officers of the ACTPS are different as retrenchment from the ACTPS is not retrenchment from Commonwealth employment. It is important to note that the appointment of an ACTPS staff member under the reciprocal mobility arrangements can only come into effect on the date the person resigns from the ACTPS, being a date on or after the deemed promotion becomes effective - and the appointment cannot take effect if the person has already ceased to be a member of the ACTPS.
