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Last updated: 3 December 1999

Public Service Act 1999 Advice No. 29: Limitations on the engagement of persons who have received a redundancy benefit

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It has been replaced by the documents referred to in Circular 2004/9

Introduction

This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation.

2 This Advice should be read in conjunction with separate advices on:

Staffing Actions: Ongoing employees (non-SES) (No. 6);
Engagement of non-ongoing employees (non-SES) (No. 7);
Senior Executive Service (SES) employment arrangements (No. 8); and
Excess Employees (No. 12).

3 The information in this Advice replaces that contained in Circular No 1998/16: Restrictions on the Appointment and Temporary Employment of Persons who have accepted Voluntary Retrenchment from the Australian Public Service (APS) - Extension of Coverage.

4 This Advice focuses on the limitations imposed on an Agency Head's capacity to engage persons who have received a redundancy benefit from an APS Agency or from a non-APS Commonwealth employer.

5 In summary, the new arrangements are as close as possible to the arrangements that operated under the old PS Act for persons who have received a redundancy benefit from an APS Agency. Changes have, however, been made to bring the arrangements in relation to persons who have received a redundancy benefit from a non-APS Commonwealth employer into line with the arrangements that apply to persons who have received a redundancy benefit from an APS Agency. These changes make the arrangements more consistent across both groups. Agencies should note that under the old PS Act a person who accepted voluntary retrenchment was 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 retrenchment. Under the new PS Act, a person who receives a redundancy benefit must not be engaged as an APS employee if 12 months has not passed since the person's employment ceased.

The Legislative Framework

6 The formal framework which applies to staffing actions is contained in:

the new PS Act;
the new Public Service Regulations;
the Public Service Commissioner's Directions 1999 (the Commissioner's Directions); and
the Classification rules.

7 Chapter 4 of the Commissioner's Direction on Merit require an Agency Head to put in place measures to ensure that a person who receives a redundancy benefit from an APS Agency or a non-APS Commonwealth employer is not engaged as an ongoing APS employee within 12 months of the person ceasing employment. (the relevant clause of the Commissioner's Direction is reproduced at Attachment A). In some circumstances, a person who has received a redundancy benefit from an APS Agency or a non-APS Commonwealth employer may be engaged as a non-ongoing APS employee.

Terminology

8. For the purposes of the Commissioner's Directions, the following definitions have been included in the dictionary:

Agency means:

a Department; or an Executive Agency; or
a Statutory Agency.

Non-APS Commonwealth employer includes:

the Australian Defence Force; and
any other non-APS Commonwealth employer established under an Act; and
any other employer in which the Commonwealth has a controlling interest or that is financed in whole, or in substantial part, by money provided by the Commonwealth.

Redundancy benefit:

means a severance payment, or similar payment, made to an employee on cessation of the employee's employment in an Agency or with a non-APS Commonwealth employer; and
includes:
- any payment made to an employee as a result of the shortening of a retention period; and
- any payment made to an SES employee under section 37 of the Act or section 76R of the Public Service Act 1922.

Ongoing employees

9 Under the Commissioner's Directions, there is a total prohibition on the engagement as an ongoing APS employee of a person who has received a redundancy benefit from an Agency or a non-APS Commonwealth employer and 12 months has not passed since the person's employment ended.

Non ongoing employees

10 A person who has received a redundancy benefit from an Agency or a non-APS Commonwealth employer and 12 months has not passed since the person's employment ended may be engaged as non-ongoing employees in prescribed circumstances. These circumstances are set out in the Commissioner's Directions.

Engagement for a specified term in the circumstances mentioned in item 1,2,3,4,5 or 8 of the table in subregulation 3.5 (2) of the PS Regulations

11 Under the Commissioner's Directions, a person who has received a redundancy benefit from an APS Agency or a non-APS Commonwealth employer may be engaged for a specified term:

to enable the Agency to meet a temporary increase in the workload of the Agency, or of a component of the Agency, that the Agency Head does not expect to continue (item 3.5 (2) (1));
when the Agency has a temporary demand for employees with particular skills (item 3.5 (2) (2));
to replace an ongoing APS employee who is on leave authorised by the Agency (item 3.5 (2) (3));
to replace an ongoing APS employee to whom other duties are temporarily assigned; (item 3.5 (2) (4))
to replace an ongoing APS employee who moves temporarily to another Agency (item 3.5 (2) (5)); or
when the person has been offered in writing engagement as an ongoing employee, but prefers to be engaged for a specified term; (item 3.5 (2) (8)); and

the Agency Head considers that the engagement of the person is essential for the Agency's operations having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person; and
the Agency Head has consulted the Commissioner before engaging the person.

Engagement for the duration of a specified task in the circumstances mentioned in subregulation 3.5 (3) of the PS Regulations

12 Under the Commissioner's Directions, a person who has received a redundancy benefit from an APS Agency or a non-APS Commonwealth employer may be engaged for the duration of a specified task under subregulation 3.5 (3) if the specific requirements of the subregulation have been met and if:

the Agency Head considers that the engagement of the person is essential for the Agency's operations having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person; and
the Agency Head has consulted the Commissioner before engaging the person.

Engagement for a specified term, or the duration of a specified task, in the circumstances mentioned in subregulation 3.5 (4), (5) or (6) of the PS Regulations

13 Under the Commissioner's Directions, a person who has received a redundancy benefit from an APS Agency or a non-APS Commonwealth employer may be engaged for a specified term or for the duration of a specified task if the engagement is for the purpose of:

the person gaining skills and experience under a scheme that is approved for the purposes of subsection 20 (2) of the new PS Act of assisting them to participate in the workforce; or the subject of a general direction in force under subsection 21 (1) of the new PS Act (subregulation 3.5 (4)); or
meeting a practical requirement for the award of a qualification to the person by an educational institution; or accreditation of the person by a professional body (subregulation 3.5 (5)); or
providing the person with occupational experience that is required under a law of the Commonwealth, or of a State or Territory, for licensing or registration to engage in the occupation (subregulation 3.5 (6)); and

the Agency Head considers that the engagement of the person is essential for the Agency's operations having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person; and
the Agency Head has consulted the Commissioner before engaging the person.

Engagement for a specified term in the circumstances mentioned in item 6 or 7 of the table in subregulation 3.5 (2) of the PS Regulations 14

Under the Commissioner's Directions, a person who has received a redundancy benefit from an APS Agency or a non-APS Commonwealth employer may be engaged for a specified term:

to replace an ongoing APS employee pending engagement of another ongoing APS employee (item 3.5 (2) (6)); or
to undertake duties for the Agency pending engagement of an ongoing APS employee to undertake the duties (item 3.5 (2) (7)); and

the Agency Head considers that the engagement of the person is essential for the Agency's operations having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person.

Engagement for duties that are irregular or intermittent under section 22 (2)(c) of the new PS Act

15 Under the Commissioner's Directions, a person who has received a redundancy benefit from an APS Agency or a non-APS Commonwealth employer may be engaged for duties that are irregular or intermittent, if the Agency Head considers that the engagement of the person is essential for the Agency's operations having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person.

Other employment

Members of Parliament (Staff) Act (MOPS Act)

16 The measures restricting the engagement of a person who receives a redundancy benefit from an APS Agency or from a non-APS Commonwealth employer apply to engagement in the APS only. There is currently no restriction on former APS employees who have received a redundancy benefit from applying for positions covered by the MOPS Act after their retirement from the APS.

Consultants

17 The measures restricting the engagement of a person who receives a redundancy benefit from an APS Agency or from a non-APS Commonwealth employer do not apply to the engagement of consultants or contractors, however, consultants should not perform tasks which would be expected to be performed by ongoing employees of an Agency. Consultants are generally expected to be engaged to provide a specific service or product. Agencies should ensure that any engagement of a former APS employee who has received a redundancy benefit within the previous 12 months is consistent with Government guidelines on the use of consultants and with the spirit of the Commissioner's Direction on the engagement of persons who have received a redundancy benefit.

Further Advice

18 Urgent enquiries from Comnet members and their senior staff should be made by E-mail to psact@apsc.gov.au or to Peter Labrum, Staffing, Structures and Policy Team on (02) 6202 3815.

Jeff Lamond
Team Leader
Staffing, Structures and Performance Team

2 December 1999

Attachment A: Extract from Public Service Commissioner's Direction - Chapter 4 Merit in employment

4.4 Engagement of persons who have received a redundancy benefit

An Agency Head must put in place measures to ensure that a person is not engaged as an APS employee if:
1. the person has received a redundancy benefit from an Agency or a non-APS Commonwealth employer; and
2. 12 months has not passed since the person's employment ended.
Subclause (1) does not apply if:
1. the person is to be engaged:
  1. for a specified term in the circumstances mentioned in item 1, 2, 3, 4, 5 or 8 of the table in subregulation 3.5 (2) of the Regulations; or
  2. .for the duration of a specified task in the circumstances mentioned in subregulation 3.5 (3) of the Regulations; or
  3. for a specified term, or for the duration of a specified task, in the circumstances mentioned in subregulation 3.5 (4), (5) or (6) of the Regulations; and
2. the Agency Head considers that the engagement of the person is essential for the Agency's operations having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person; and
3. the Agency Head has consulted the Commissioner before engaging the person.
In addition, subclause (1) does not apply if:
1. the person is to be engaged:
  1. for a specified term in the circumstances mentioned in item 6 or 7 of the table in subregulation 3.5 (2) of the Regulations; or
  2. for duties that are irregular or intermittent; and
2. the Agency Head considers that the engagement of the person is essential for the Agency's operations having regard to the nature of the duties to be performed and the skills, experience or qualifications of the person.

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