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Last updated: 28 October 1999
Public Service Act 1999 Advice No. 1: Implementation of the new Public Service Act
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 ActsIntroduction
The Public Service Act 1999 (the new PS Act) is expected to come into operation on 5 December 1999 and the purpose of this advice is to assist agencies to train in the preliminaries and to prepare for the changes that will occur with the:
- repeal of the Public Service Act 1922 (the old PS Act) and the Merit Protection (Australian Government Employees) Act 1984 (the MPRA Act); and
- proclamation of the new PS Act and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act).
2 Agencies are encouraged to examine the new PS Act and the PECTA Act and their accompaning Explanatory Memoranda in order to gain an understanding of the new provisions.
3 In addition to familarising themselves with the terms of the new PS Act, agencies will need to address the following matters (which are discussed below) before the new PS Act comes into operation:
- changes made by the PECTA Act;
- the powers and functions of Agency Heads;
- the delegation of Agency Head powers under the new PS Act;
- the revision of delegations under other legislation without use of the 'concept of office'; and
- the terminology used to describe matters covered by the old PS Act and the new PS Act.
4 The Department of Employment, Workplace Relations and Small Business (DEWRSB) has provided information on the following topics (discussed below) to assist agencies to prepare for proclamation of the new PS Act:
- implications of the new PS Act for agreement making;
- classification rules and related matters; and
- proposed variations to the APS Award.
5 New Public Service Regulations, Prime Minister's directions, Commissioner's Directions and Classification Rules are being drafted and these will be made available as soon as possible.
Checklist
6 The checklist at Attachment A provides agencies with a summary of the changes that will occur with the passage of the new PS Act. The checklist includes information on where matters that are now covered by the old PS Act will be found after its repeal and the arrangements that will apply under the new PS Act. In moving from a prescriptive, detailed framework to a principles-based framework, there will not always be a specific head of power for every matter that is covered by the old PS Act. In future, some matters will be dealt with under generic heads of power or left to the discretion of Agency Heads. This is an important change.
PECTA Act
7 The primary purpose of the PECTA Act is to deal with the consequential and transitional matters arising from the repeal of the old PS Act and the MPRA Act to enable an orderly transition to the new PS Act.
8 The PECTA Act and accompanying regulations are designed to :
- validate actions and decisions taken under the old PS Act and MPRA Act;
- cover some aspects of the transition from the old PS Act and MPRA Act to the new PS Act; and
- make consequential amendments to other legislation that refers to the old PS Act and the MPRA Act.
Changes made by the PECTA Act
9 The key changes to be made by the PECTA Act and associated regulations concern:
- the conversion of existing APS staff to the new employment categories;
- the rights of existing APS employees and former APS employees covered by the mobility provisions of Part IV of the old Act;
- the introduction of a three year transitional period for persons covered by the first and second tier of the Part IV mobility provisions of the old Act (see Attachment B for details);
- the repeal of ss. 17, 18, 24 and 25 of the Members of Parliament (Staff) Act 1984 (MoPS Act) and thereby ceasing access to a Re-integration Assessment Committee for APS staff employed under the MoPS Act;
- the continuing application of s. 82D determinations (as agency determinations); the conditions determinations are 1998/5 and 1994/162 (DFAT will advise agencies about the status of LES 1 of 1990);
- arrangements for dealing with misconduct which occurs before the commencement date of the new PS Act;
- continuing appeal and grievance processes commenced under the old PS Act or the MPRA Act; and
- amendments to the Superannuation Act 1976 and the Superannuation Act 1990 to ensure that, following the repeal of the old PS Act, persons who continue in eligible public employment will continue to be members of their respective superannuation scheme (see Attachment C for details).
10 There will, therefore, be a need to put in place transitional arrangements for matters partly dealt with under the old PS Act and the MPRA Act at the time of their repeal. More detailed advice will be issued as soon as possible on the scope of these transitional arrangements.
Powers and functions of an Agency Head
11 Attachment D identifies the powers and functions of Agency Heads under the new PS Act.
Delegations under the new PS Act
12 Under s. 78 of the new PS Act, an Agency Head may, in writing, delegate to another person any of the powers or functions under the Act (other than the powers under this section) and a person to whom powers and functions are delegated may, in writing, delegate those powers to another person, subject to any directions by the Agency Head in relation to the exercise of the powers or functions so delegated.
13 Attachment E is a list of the sections and a brief description of the powers held by Agency Heads under the new PS Act which may be delegated.
14 An Agency Head may identify persons to whom powers or functions have been delegated by name or, in accordance with s. 77, create positions in the Agency and may nominate an APS employee in the Agency to occupy the position, but the Agency Head does not have to do so for all employees of the Agency. Accordingly, an Agency Head will be able to use the powers available under this section to identify persons to whom a power or function has been delegated as the occupiers (from time to time) of nominated positions.
Delegations concerning transitional matters under the old PS Act
15 At this stage, it is not envisaged that transitional delegations will be necessary for matters partly dealt with under the old PS Act. If it is found that transitional delegations are necessary then specific advice will be issued to agencies.
Delegations under other legislation
16 The new PS Act is drafted without reference to the 'concept of office' (except in relation to Agency Heads). With this change the PSMPC is looking at options, in consultation with AGS, for preserving the delegations to APS employees under other legislation via a transitional regulation. If such a regulation can be made, it is expected that it would operate for a limited transitional period.
17 If it is not practical or possible to make such a transitional regulation Agency Heads will need to check their delegations under other legislation and be prepared to issue new delegations to coincide with the proclamation of the new PS Act if they wish to continue to delegate such powers and functions to staff employed under the new PS Act. Again, section 77 will be able to be used for the purpose of identifying persons to whom a power or function is delegated.
18 In relation to delegations under the Long Service Leave and Maternity Leave Acts, the PECTA Act makes more significant changes with the powers being vested directly with Agency Heads instead of under delegation from DEWRSB. As a result, it will be essential that new delegations be made under these Acts. More detailed advice and a pro-forma will be issued separately by DEWRSB.
Terminology
19 Attachment F is a list of terms used under the old PS Act which will change with the repeal of the old PS Act. The terms to be used under the new PS Act are also shown. Implications of the new PS Act for agreement making
20 There are a number of implications for agreement making under the Workplace Relations Act 1996, both in relation to existing agreements and new agreements. DEWRSB will be issuing more detailed advices on these from next week.
21 Amendments to Workplace Relations Regulations 30ZE and 30ZJ will be made to operate from the same date that the new PS Act comes into effect:
- removing the existing references to the old PS Act and its supporting legislation; and
- enabling certified agreements and AWAs to displace determinations under s. 24(1) of the Act, except in relation to machinery of government changes (i.e. agreements will not be able to displace the use of s. 24(1) in those circumstances).
22 The position in relation to the old s. 82D determinations - 1998/5, in relation to domestic conditions, and 1994/162 in relation to conditions overseas is more complex:
- many agencies have either totally or partially displaced all s. 82D determinations, e.g. by using a 'comprehensive clause' in their agreements;
- as a result of s. 9 of the PECTA Act, on commencement of the new Acts, Agency Heads will be taken to have made continued determinations under s. 24 (1) of the Act containing the terms of each old s. 82D determination;
- therefore, even if an agreement previously displaced s. 82D determinations, the Agency Head will be taken to have made continued determinations in the terms of the old s. 82D determinations;
- this has the potential to create complexities about the relationship between the two sets of instruments; and
- Agencies are therefore strongly advised to review which old s. 82D determinations they wish to apply and to revoke any that they do not wish to have operate side by side with their certified agreement. They will also need to identify and address any situations where an agreement refers to part of such a determination.
23 At present time the Policy Parameters for Agreement Making in the APS require, as part of Parameter 6, that agencies include facilitative provisions to apply transitional terms and conditions to those staff transferring from another agency as a result of MoG changes. The new Public Service Regulations will achieve the same result, but by a different mechanism. Accordingly, DEWRSB has sought the Government's approval to amend the Policy Parameters to delete this requirement.
24 As the new Act spells out principles rather than process, agencies may want to consider how best to handle matters no longer dealt with in the Act, regulations or Commissioner's Directions. There is no legal requirement to do so. It is up to agencies whether they include some such matters in agreements, or choose to handle them in management policies or leave them to the discretion of line managers, within the new legislative framework.
Classification rules and related matters
25 The Classification Rules will provide a framework for the classification of employees and operate in conjunction with the Commissioner's Direction on Merit. Having a common approach to classification across the APS will continue to be important in the future to facilitate mobility at level, the application of merit in the case of promotions and for Service-wide analysis and reporting. They are also relevant to the sanctions for misconduct.
26 The Classification Rules will continue the concept of Classification Groups and will require agencies to develop Work Level Standards for the classification levels utilised in each agency. Employees will hold an approved classification level. The Commissioner's Directions will specify how a classification level can be changed.
27 By drafting the new PS Act without reference to the 'concept of office' (except in relation to Agency Heads) there will no longer be a requirement to formally create or reclassify positions under the new Act. Where, however, an agency wishes to create a position (e.g. for the performance of statutory functions, and nominate an employee to occupy it) s77 of the Act provides a power.
Proposed variations to the APS Award
28 It is planned that changes will be made to the APS Award, to come into effect at the same time as the new PS Act, to ensure that it operates consistently with the terminology of the new Act, particularly in relation to the new categories of employment.
Further advice
29 While written advices on the new PS Act will be published from time to time, the PSMPC will be concentrating on using E-mail to distribute information to agencies on the new PS Act over the coming months. Any such information will be available through the PSMPC's Homepage. The PSMPC will not be able to handle a high volume of telephone calls about the new PS Act and expects agencies to put in place arrangements to inform their staff of the changes and to handle enquiries from their staff on the new PS Act. Individuals who contact the PSMPC about the new PS Act will be asked to direct their enquiries to the appropriate area of their own agency.
30 Urgent telephone enquiries from Comnet members and their senior staff can be made to the PSMPC's Helpline on 6202 3859. Please do not direct enquiries to individual members of staff within the PSMPC.
31 DEWRSB will be issuing advice on its areas of responsibility in its series of Workplace Relations Advices. These will be accessible through the web sites of both DEWRSB at http://www.dewrsb.gov.au and the PSMPC.
Jeff Lamond
Team Leader
Staffing, Structures and Performance Team
27 October 1999
Attachment A: Check list of changes in moving from the old Public Service Act to the Public Service Act 1999
| Issue | Old PS Act | New PS Act |
| Appointment | Sections 33 and 42 (Non-SES) Sections 42 and 44 (SES) |
See - Engagement of APS employees |
| Appointment of an Agency Head of an Executive Agency | Section 36 and Section 37 (Fixed Term Appointments) | Section 67
The Agency Minister may appoint for a period of up to 5 years |
| Appointment of a Secretary of a Department | Section 36 and Section 37 (Fixed Term Appointments) | Section 58
The Prime Minister may appoint for a period of up to 5 years |
| Approved programs | Section 33(4)(b)
Reg 71B |
Commissioner's Directions
Commissioner's Directions on Merit maintain authority for special recruitment measures for Indigenous Australians and people with intellectual disabilities. |
| APS Values | Section 33(1)
Regs 5, 6 and 12 |
Section 10
Commissioner's Directions There will be Commissioner's Directions about each of the APS Values. These Directions are binding upon Agency Heads. The Act (section 10):
Reporting requirements through the State of the Service Report are now set out in section 44. The Explanatory Memorandum also sets out non-binding Principles of APS Employment which the Government expects agencies to promote and embody. |
| Breaches of the Code of Conduct | Division 6 | Section 15
Commissioner's Directions Agencies are now required, under section 15, to set out procedural requirements for determining whether an employee has breached the Code of Conduct. Agency procedures must comply with the basic procedural requirements set out in the Commissioner's Directions, they must have due regard to procedural fairness and provide for ready access by APS employees. The sanctions for breaches of the Code of Conduct are set out in section 15. Regulations will prescribe any limitations on the sanctions. |
| Categories of employment | Distinguishes between Secretaries, SES officers, other officers, probationers and various categories of temporary employees. | Sections 7, 9 and 22
Regulations The APS consists of Agency Heads and APS employees.
|
Classifications
SES |
Section 28 Section 29A Section 26AA |
Section 23
Commissioner's Directions Classification structures and levels will be authorised under the Rules and the current concept of Classification Groups maintained. Employees will hold an approved classification level - changing an employee's classification level will be in accordance with the PSC Direction. Agencies will be required to classify work on the basis of work value. |
| Code of Conduct | Reg 7 | Section 13
Regulations The APS Code of Conduct is unchanged in its effect. Disclosure of information is not included in section 13, but it will be included in the regulation to be made. |
| Disciplinary Appeals | Sections 63D | Section 33
Regulations |
| Eligibility for engagement | Sections 33A (qualifications), 34 (fit and proper person) and 47 (probation, health and citizenship) | Section 22
The engagement of an APS employee may be made subject to conditions notified to the employee, including in relation to probation; citizenship; formal qualifications; security and character clearance; and a health clearance. An Agency Head must not engage as an APS employee a person who is not an Australian citizen unless the Agency Head considers it appropriate to do so. |
| Engagement of APS employees | Sections 33 (appointments), 42 (SES appointments), 44 (SES fixed term appointments), 82AC (continuing employees), 82AD (short term employees), 82AE (fixed term employees) and 82AG (special programs) | Sections 17, 22 and 36 (for SES employees only)
Regulations Commissioner's Directions An Agency Head may engage a person as APS employee and that must be as an ongoing employee, a specified term employee or as an irregular employee (section 22). The usual basis for engagement will be as an ongoing employee The Public Service Commissioner must issue directions in writing about a range of employment matters relating to the SES, including engagement (section 36). The regulations will set out the circumstances under which an SES employee may be engaged as a specified term employee or for the duration of a specified task and prescribes the limitations on the extension of specified term SES engagements. The regulations will set out the circumstances under which a person may be engaged as a non-SES employee for a specified term or the duration of a specified task. The regulations will prescribe certain limitations on the extension of non-SES specified term engagements. The Commissioner's Directions will set out other requirements for SES and non-SES staff movements. The Directions will require the selection of non-ongoing employees for engagements in excess of 12 months to be based on merit. Employment decisions must be made without patronage or favouritism (section 17). See also - Categories of employment and Eligibility for engagement. |
| Grievances | Regulations 75-86 | Section 33
Regulations |
| Incentive to retire - SES employees | Section 76R | Section 37
Commissioner's Directions Agency Head power, but subject to Commissioner's Directions. |
| Machinery of Government changes (including transfers of functions) | Sections 29, 33C and 82BA in relation to moves within the APS; Section 81B in relation to transfers of functions and staff into the APS; and Section 81C in relation to transfers of functions and staff out of the APS | Section 72
Regulations The Public Service Commissioner may move staff within the APS, into and out of the APS, as a result of an increase, reduction or reorganisation in Commonwealth functions. Subsections 72(3) and (4) provide certain protections in relation to remuneration and other conditions of employment for staff moved out of the APS as a result of a machinery of government change. The regulations provide certain protections in relation to remuneration and other conditions of employment for staff transferred within the APS or into the APS as a result of a machinery of government change. |
| Managing non-performance or unsatisfactory performance | Sections 66A, 66B and 76W | Commissioner's Directions
The Direction relating to APS Values (k) will require agencies to have a performance management system in place. Forfeiture of office can now be handled under section 29(3) in relation to non-performance of duties rather that under misconduct. |
| Maximum age retirement:
Agency Heads APS employees |
Sections 76V, 76J and 76C | There is no longer a legislative requirement for an employee to retire on reaching a particular age. Under section 170CK of the WR Act, termination of an employee's employment on age grounds is unlawful. |
| Medical examination | Regs 46-51 | Regulations |
| Minimum age retirement:
Agency Heads APS employees |
Sections 76U, 76I and 76B | Section 30
Regulations Section 30 covers all APS employees (including SES employees). The minimum retiring age is 55 years or such higher or lower age as prescribed by regulation. |
| Officers' mobility rights | Part IV | No mobility provisions in the new Act. Regulations to be made under
the Public Employment (Consequential and Transitional) Amendment Act 1999 (PECTA Act) will
provide transitional arrangements for a transitional period of 3 years.
Commissioner's Directions will provide that persons covered by Part IV at the time the old PS Act is repealed will be able to apply for all employment opportunities advertised in the Gazette. Directions issued by the Prime Minister under section 23 will make it mandatory for Agency Heads to grant leave without pay for APS employees to take up statutory appointments, or to take up employment under the Members of Parliament (Staff) Act 1984 and the Governor-General Act 1974. |
| Positions and Office | Section 27
Section 29 (Part-Time) |
The new PS act has been drafted without reference to the concept
of 'office' (except in relation to Agency Heads).
There is no requirement to formally create or reclassify positions under the new Act. However, where an agency may need to (e.g. for the performance of statutory functions, or where needed for delegations) section 77 provides the power to do so. The Classification Rules will require work to be classified on the basis of work value. |
| Promotion | Sections 50, 50A, 50DA, 50DB & 53A (non-SES employees)
Section 49B (SES employees) |
Sections 10, 17 and 26
Regulations Commissioner's Directions Classification Rules Promotion of an ongoing employee will be made on the basis of merit following a Gazette notification of the vacancy and a competitive selection exercise (section 10 and Commissioner's Direction on Merit). Agency Heads may choose to use an Independent Selection Advisory Committee established by the Merit Protection Commissioner. Some promotion decisions will be subject to a right of review. The regulations will set out the provisions relating to the taking effect of promotions. Advancement from a training office is provided for in the Classification Rules issued under section 23. All employment decisions are to be made without patronage or favouritism (section 17). |
| Promotion Appeals | Section 50 | Section 33
Regulations |
| Reciprocal mobility | Not in PS Act, but in other legislation (e.g. in relation to ACT Public Service) | Commissioner's directions
PECTA Act amends other legislation to remove reciprocal mobility provisions from Commonwealth legislation. Commissioner's directions will provide that staff of those organisations which previously had reciprocal mobility arrangements with the APS (the Albury-Wodonga Development Corporation, Austrade, Australian Security Intelligence Organization and the ACT Public Service) will be able to apply for all employment opportunities advertised in the Gazette. The Parliamentary Service Act 1999, which establishes the Parliamentary Service as a separate entity from the APS, contains certain reciprocal arrangements for mobility between the two Services. |
| Redeployment of SES employees | Section 76L | Section 36
Commissioner's Directions |
| Redeployment and Retirement Appeals against reductions | Sections 76Z | Section 33
Regulations |
| Release of personal information | Section 21(only in relation to the requirement to keep basic information). Privacy, FOI and Archives Acts. | Section 76
Regulations APS employees are subject to Privacy Act, Freedom of Information Act and Archives Act. |
| Review of Non-Appellable Promotions | Sections 50DAA | Section 33
Regulations |
| Special Employment Programs | Section 82AG
Regulation 122 |
Regulations
The power in relation to approved schemes will be in the Categories of Employment Regulation |
| Temporary Performance (HDA) | Section 51A
Regulations 116-116E |
Sections 17 and 25
Commissioner's Directions Agency Heads may temporarily reassign duties, including those of a higher work value level, to ongoing employees. The decision must be made without patronage and favouritism. The Commissioner's Direction on Merit will specify the factors that need to be considered in temporarily assigning an ongoing employee to duties of a higher work level standard. |
| Termination of Agency Heads | Sections 76D, 76E and 76FA
Section 37 on Fixed Term Appointments |
Section 59 |
| Termination of Non SES employees | Division 8C (in particular sections 76W
Section 47 for probationers |
Section 29
Regulations Agency Head may terminate the employment of an APS employee by notice in writing. For ongoing employees, including SES, the only ground for termination are as set out in section 29 and the notice must specify the grounds for termination. The termination of an employee's employment is subject to the termination of employment provisions of the Workplace Relations Act. |
| Termination of SES employees | Division 8B (in particular sections 76L, 76R and 76N)
Section 47 for probationers |
Sections 29 and 38
Commissioner's Directions Agency Heads may terminate the employment of an SES employee by notice in writing. The only grounds for termination are as set out in section 29 and the notice must specify the grounds for termination Agency Heads cannot terminate employment unless a certificate is issued by the Public Service Commissioner. The termination of an employee's employment is subject to the termination of employment provisions of the Workplace Relations Act. See also - Incentive to retire - SES employees |
| Transfers (now Movements of employees) | Sections 50, 50DA, 50DB, 50J, 50K and 52 (non-SES employees)
Sections 49, 49A and 49AA (SES employees) |
Sections 17, 25, 26 and 36 (SES employees)
Regulations Commissioner's Directions An Agency Head is able to determine the duties of employees and the place where the duties are performed (section 25). There is no longer any provision for an employee to decline a reassignment of duties (section 25). Ongoing APS employees may arrange a movement to another agency. An agency Head may no longer refuse an ongoing movement to another agency. Unless another date is negotiated, the movement takes effect 4 weeks after the movement date has been reached (section 26). |
| Workplace Diversity | Section 22B
Reg 5(c) |
Sections 10 and 18
Commissioner's directions The EEO framework as set out in the old PS Act no longer exists. The Directions on Diversity in Employment will set out the responsibilities of Agency Heads to manage and report on employment equity and workplace diversity. The Act does not prescribe EEO groups. Commissioner's Directions will require Agency Heads to help eliminate disadvantage on the basis of gender, Aboriginality, race and ethnicity and disability. Section 10(1)(c) sets out the diversity Value; section 10(1)(l) sets out the equity Value. Section 18 sets out the requirement for Agency Heads to establish Workplace Diversity Programs |
Attachment B: Rights under the new Public Service Act of people covered by the mobility provisions of the old Public Service Act
Introduction
Part IV of the old PS Act contained very complex provisions (known as the 'mobility provisions') relating to the rights of APS staff who left the APS to take up non-APS Commonwealth employment.
There are no equivalent mobility provisions in the new PS Act. Transitional provisions, however, will apply under clauses 6 and 7 of the PECTA Act for persons who are covered by existing Part IV rights to enable them to exercise certain rights of return or re-engagement into the APS.
These provisions are briefly outlined below and will be included in the transitional regulations.
Section 6 of PECTA (applies to current first-tier persons)
Coverage
Section 4 of the PECTA Act defines a 'first-tier person' as:
- a person to whom Division 2 of Part IV of the old PS Act applied immediately before the commencing time; and
- a person to whom the Officers' Rights Declaration Act 1928 applied immediately before the commencing time.
Length of the transitional period
The transitional period, means the period that starts at the commencing time and ends at the earliest of the following (PECTA Act section 4):
- the period prescribed by the regulations for the purposes of this paragraph (this period will be 3 years from the commencement of the new PS Act);
- the time when the person ceases to be in eligible public employment (within the meaning of the old PS Act);
- the time when the person resigns or retires as an APS employee; or
- the end of the first-tier period (fixed under s-sec. 87D(5) of the old Act) and described as the 'relevant period'.
Status as a person covered by section 6 of PECTA Act
During the transitional period, a person covered by section 6 of the PECTA Act is taken to be absent from duty as an APS employee, on leave without pay. Access to jobs advertised in the Gazette will continue to be available.
Service by a person covered by section 6 of the PECTA Act in eligible public employment during the transitional period is counted, for the purposes of accrual of recreation leave credits and sick leave credits, as if it were service as an APS employee.
At the end of the transitional period
A person covered by section 6 of the PECTA Act is taken to have resigned as an APS employee at the end of the transitional period unless, before the end of the transitional period:
- the person has given written notice to the Agency Head, stating that the person intends to resume duties as an APS employee on the first working day after the end of the transitional period; or
- the person has been granted leave for a period that consists of or includes the first working day after the end of the transitional period.
If the person gives a notice about resuming duty, but is absent from duty without leave on the first working day after the end of the transitional period, then the person will be deemed to have resigned as an APS employee at the end of that first working day.
If a person would have ceased to be an officer at a particular time because of s.87JA or 87JB of the old PS Act (if the old PS Act had not been repealed), then the person will be deemed to have resigned as an APS employee at that time.
Movement of persons from clause 6 to clause 7 coverage
A 'first-tier person' will cease to be covered by clause 6 at the end of the relevant period (as defined in subsection 87D(5) of the old Act) and become a 'second-tier person' covered by clause 7 at the end of that period.
Section 7 PECTA (applies to current second-tier persons and persons moved from section 6 at the end of the relevant period)
Gazette access
Persons covered by section 7 of the PECTA Act will be able to apply for jobs advertised in the Gazette, under the Commissioner's Directions on merit.
Right of re-engagement
A person to whom Division 3 of Part IV of the old PS Act applied (defined as a 'second-tier person') immediately before the new PS Act commences will be entitled to be re-engaged as an APS employee (see PECTA Act s-cl.7(1)):
- in accordance with the PECTA Regulations; and
- within time limits prescribed by the PECTA Regulations
(this period will be three years);
The scheme to be set out in the PECTA Regulations will be along the following lines:
An Agency Head will be required to reappoint a second-tier person who applies for re-engagement if the following conditions are met:
- the application is made within the transitional period to be fixed by the PECTA Regulations (this period will be three years);
- the application is made while the applicant is still in eligible public employment or if eligible public employment has ceased:
- where the cessation was because the person had been notified that he or she was excess: within 28 days of the notification;
- in any other case: within 30 days of the cessation;
- the applicant has not received a redundancy benefit while in eligible public employment (old PS Act ss.87SA-87SC); and
- the applicant satisfies the Agency Head that if Division 3 were still in force the person would satisfy one or other of the prescribed conditions of reappointment set out in the old PS Act s-sec.87N(2).
It is proposed that the PECTA Regulations would also provide that the reappointment would be at the same classification as the person had before ceasing to be an 'officer' within the meaning of the old PS Act or, if there is no longer such a classification, at such a classification as the Agency Head considers appropriate.
Leave credits
A second-tier person's entitlement to any recreation and sick leave credits on reappointment to the APS during the transitional period, will be in accordance with the relevant Agency's certified agreement, an AWA or as determined by the relevant Agency Head.
Access to long service leave is determined in accordance with the Long Service Leave (Commonwealth Employees) Act 1976.
Attachment C: Amendments to Superannuation legislation
The PECTA Act amends the legislation providing the rules for the CSS and the PSS as a consequence of the new Public Service Act.
The intention of the amendments is to ensure that there are no unintended effects on members of the schemes. Most of the amendments are minor and merely serve to reflect new terminology and concepts being introduced by the new PSA. However some needed to be more substantial.
Membership definitions
Membership of the CSS and the PSS is currently defined in terms of a person's employment status under the PSA. For example, an officer under that Act is a permanent employee for the purposes of the CSS and PSS and therefore is a member of the relevant scheme without option. On the other hand, an employee under the old PSA is a temporary employee in the CSS and PSS rules and may or may not join the relevant scheme. The PECTA Act amends the membership provisions of the superannuation legislation to ensure that no public servant loses membership of their scheme. Delegated instruments are being made to ensure that public servants who had the option to join the schemes continue to have that option.
Involuntary retirement
The superannuation legislation provides benefit options for members who cease on involuntary retirement. The test for involuntary retirement includes reference to reasons for termination included in specific provisions of the old PSA, or similar reasons for members who are employed other than under the PSA. The new PSA allows for termination of employment for a number of reasons including reasons similar to those in the old PSA. The PECTA Act amends the superannuation legislation to ensure that the tests for involuntary retirement do not change.
Mobility provisions
People who have moved from public service employment to other Commonwealth employment and who were covered by the mobility provisions of the old PSA continued to be CSS and PSS members while covered by those provisions. The new PSA does not include mobility provisions although there is to be a transitional period during which certain mobility rights continue. The intention in repealing the mobility provisions was to limit rights of return to the APS rather than cease superannuation scheme membership, however this would be the result. Because this was not intended, the PECTA Act amended the superannuation legislation to provide that scheme membership continues for these people while they continue in employment with the organisation that employed them at the end of the transitional period.
Retirement on the grounds of invalidity
The old PSA provides that people employed under that Act cannot be retired on the grounds of invalidity unless the CSS or PSS Board certifies that an invalidity benefit would be payable. The new PSA does not contain a similar provision. However, as the superannuation legislation provides that no CSS or PSS member can be retired on the grounds of invalidity unless the relevant Board certifies an entitlement to invalidity benefits under the scheme, it was not thought necessary to include a similar provision in the new PSA.
Attachment D: Powers, functions and obligations of all Agency Heads under the Public Service Act 1999
| Section | Obligation, Power or Function |
| 12 | Uphold and promote APS Values. |
| 14 | To be bound by the Code of Conduct. |
| 15(1) | Impose any of the following sanctions on an employee found to have
breached the Code of Conduct:
|
| (3) | Establish procedures for determining whether a breach of the Code of Conduct has occurred. |
| (4) | Take reasonable steps to ensure that every Agency employee has ready access to the procedures documents established under (3). |
| 16(c) | Receive, or authorise another person to receive, a report from an APS employee concerning breaches (or alleged breaches) of the Code of Conduct (whistleblower reports). |
| 18 | Establish a workplace diversity program. |
| 20(2) | Exercise, on behalf of the Commonwealth, the rights, duties and powers prescribed by the (new) Public Service Regulations. |
| 22(1) | Engage persons as employees for the purposes of the Agency. |
| (8) | Consider whether it is appropriate to engage as an APS employee a person who is not an Australian citizen |
| 23(3) | Comply with the Classification Rules. |
| 23(4) | Reduce the classification of an APS employee, without the employee's
consent, in the following cases:
|
| 24(1) | Determine the remuneration and other terms and conditions of employment of an employee or employees in the Agency. |
| 25 | Determine the duties of an Agency employee and the place or places at which the duties are to be performed. |
| 26(1) | Agree to an APS employee moving to the Agency from another Agency. |
| 27(2) | Notify the Public Service Commissioner that an employee is excess to the requirements of the Agency. |
| 29(1) | Terminate the employment of an Agency employee on grounds specified in 29(3). |
| 31(1) | Notify an employee concerning forfeiture of non-Commonwealth remuneration received by the employee for performing duties as an APS employee. |
| 37(1) | Offer an SES employee an incentive to retire. |
| 39(2) | Comply with directions of an Agency Minister to engage a person as an APS employee so that the person can become a Head of Mission, and to assign particular duties to that person. |
| 42(2) | Comply with Commissioner's Directions. |
| 44(3) | Provide to the Public Service Commissioner whatever information the Commissioner requires for purposes of the Commissioner's report on the state of the APS (s-sec.44(2)). |
| 57(1) | A Secretary is responsible for managing the Department and advising Agency Minister. |
| (2) | A Secretary must assist Agency Minister to fulfil accountability obligations to the Parliament to provide factual information in relation to the operation and administration of the Department. |
| 63(1) | A Secretary must give an annual report to the Agency Minister for presentation to Parliament. |
| 64 | To be a member of the Management Advisory Committee. |
| 66(1) | The Head of an Executive Agency is responsible for managing the Agency. |
| (2) | The head of an Executive Agency must assist Agency Minister to fulfil accountability obligations to the Parliament to provide factual information in relation to the operation and administration of the Agency. |
| 70 | Give a report to the Agency Minister on the Agency's activities. |
| 74(1) | Engage persons overseas to perform duties overseas as locally engaged employees. |
| (2) | Exercise, on behalf of the Commonwealth, all the rights, duties and powers of an employer in respect of the locally engaged employees in the Agency. |
| 77(1) | Create positions in the Agency. |
| (2) | Nominate any employee in the Agency to occupy a position in the Agency. |
| 78(7) | Delegate to another person any of the Agency Head's powers or functions under the Act (except the power of delegation). |
| 78(8) | Obtain the prior written consent of the Public Service Commission
to delegate powers or functions to an 'outsider', defined as a person other than:
|
Attachment E: Delegations
Under subsection 78(7) of the Public Service Act 1999 (the new PS Act), an Agency Head may, in writing, delegate to another person any of the powers or functions under the Act (other than the powers under this section).
Under subsection 78(8) an Agency Head cannot, under subsection 78(7), delegate the powers or functions to an outsider without the prior written consent of the Public Service Commissioner.
Subject to subsections 78 (7), (8), (9) and (11), a person to whom the powers and functions of an Agency Head are delegated may, in writing, delegate those powers and function to another person. Subsection 78(11) requires a delegate to comply with any direction by the Agency Head in relation to the exercise of the powers or functions so delegated.
The following is a list of the sections of the new PS Act under which powers and functions of an Agency Head may be delegated.
Powers and functions of an Agency Head
s. 15 - An Agency Head may impose sanctions for breaches of Code of conduct. An Agency Head is to establish procedures for determining breaches of the Code of Conduct. An Agency Head is to take steps to ensure that Agency's employees are aware of the procedures.
s. 18 - An Agency Head must establish a workplace diversity program.
s. 22 - An Agency Head may engage persons as APS employees.
s. 24 - Agency Head may determine remuneration and other conditions of employment.
s. 25 - An Agency Head may determine the duties of an APS employee.
s. 26 - An Agency Head may agree to the movement of an APS employee to the Agency Head's agency.
s. 27 - An Agency Head may notify the Public service Commissioner in writing that an employee is excess to the requirements of the Agency.
s. 29 - An Agency Head may terminate the employment of an APS employee. (An Agency Head, however, cannot terminate the employment of an SES employee unless the Public Service Commissioner has issued a certificate under s. 38).
s. 31 - An Agency Head may give notice to an APS employee in relation to additional remuneration.
s. 37 - An Agency Head may give a notice to an SES employee concerning the payment of a specified amount if the employee retires.
s. 39 - An Agency Head must comply with a direction from an Agency Minister to engage a person as an APS employee so that the person can become a Head of Mission and assign particular duties to that person.
s.44 - An Agency Head must provide the Public Service Commissioner with whatever information is required for the purposes of the Commissioner's report on the State of the Service.
s.63 - An Agency Head must give an annual report to the Agency Minister for presentation to Parliament.
s. 74 - An Agency Head may engage persons overseas.
s. 77 - An Agency Head may create positions and nominate APS employees to occupy such positions.
NOTE: s. 20 states that an Agency Head has all the rights, duties and powers of an employer in respect of an APS employee of the Agency. This, however, may not be a power or a function but a general statement of fact. An Agency Head has all the powers of an employer under the common law except to the extent that such powers are constrained by the provision of the Act itself.
Attachment F: Changes in terminology used in the old Public Service Act and the new Public Service Act 1999
The terminology used under the Public Service Act 1999 is different in many respects from that used under the old PS Act. The following list has been prepared to assist agencies to understand the changes that have occurred.
| Term used under old PS Act 1922 | Term used under new PS Act 1999 |
| Appointment | Engagement |
| 'Concept of office' | No equivalent term |
| Disciplinary action | Misconduct action |
| Disciplinary Appeal | Review of Action |
| Efficiency | Relative suitability |
| Failure to fulfil one's duty | Breach of the code of conduct |
| Fit and Proper (person assessment) | Character (clearance) |
| Fixed-term employee | Specified term employee or specified task employee |
| Forfeiture of office/employment | Termination on the grounds of non-performance of duties |
| Grievance | Review of action |
| Inefficiency | Unsatisfactory performance of duties |
| Joint Selection Committee | Independent selection Advisory Committee |
| Locally engaged staff | Locally engaged employee |
| Maximum age retirement | There is no longer a maximum age retirement provision in the Act. The WR Act prohibits the termination of an employee's employment for the reason of age. |
| Medical examination for appointment | Health clearance for engagement on probation |
| Merit Protection and Review Agency | Merit Protection Commissioner |
| Minimum age retirement | Retirement now only refers to the voluntary separation of an employee who has reached the minimum retiring age. |
| Minister | Agency Minister |
| Non-appealable promotion | There is no equivalent term |
| Officer | Ongoing APS employee |
| Officers and employees (including SES employees) | The term 'APS employees' covers employees (including SES employees) whether they are engaged as an ongoing employee, for a specified term or for the duration of a specified task or for duties that are irregular or intermittent, but does not cover locally engaged staff overseas. |
| Part IV mobility | There are no equivalent provisions in the Act. Transitional arrangements will apply for 3 years in accordance with the transitional regulations. Access to ongoing vacancies in the Gazette may also apply in certain circumstances for persons covered by the mobility provisions of old Part IV. |
| Pay and conditions | Remuneration and other conditions of employment |
| Promotion appeal | Review of a promotion decision |
| Promotion Appeal Committee | Promotion Review Committee |
| Reciprocal mobility | Reciprocal mobility will be replaced by provisions in the Commissioner's Direction on Merit regarding access to ongoing vacancies |
| Retirement of employees (excess, inefficiency, etc) | Termination of employment |
| Salary | Pay or salary |
| Secretary | Agency Head or Secretary |
| Short term employee | Specified term employee or specified task employee |
| Temporary employee | Specified term, including an employee engaged for the duration of a specified task or irregular employee |
| Temporary employees (collectively, group) | Non-ongoing employees |
| Temporary transfer and HDA | Temporary reassignment of duties or temporary move |
| Training office | Training classification level |
| Transfer (between agencies) | Non SES - Move
SES - Movement/Mobility |
| Transfer (within agency) | Reassignment of duties |
| Types of employment | Categories of employees |
There will be no change in the terms used to describe the following matters on proclamation of the new PS Act:
- Department;
- Head of mission;
- Medical examination;
- Probation; Promotion; and
- SES employee.
