Employment framework

The Public Service Act 1999 and the Workplace Relations Act 1996 provide the primary legislative framework for APS employment.

Under section 6 of the Public Service Act all persons engaged as employees to perform functions in a department or executive agency must be engaged under either the Public Service Act or the authority of another Act.

The policy underlying the Public Service Act is that the APS should operate, as far as possible, and consistent with its public responsibilities, under the same workplace relations and employment arrangements as the broader Australian workforce. Accordingly, section 8 of the Public Service Act provides that the Public Service Act has effect subject to the Workplace Relations Act. The Public Service Act and the Workplace Relations Act provide a number of obligations in relation to agency heads.

Agency heads also have a range of employment-related responsibilities under other legislation and the common law.

This section covers:

• Agency head employment-related obligations under the Public Service Act, the Public Service Regulations, the Commissioner’s Directions, the Prime Minister's Public Service Directions and the Public Service Classification Rules
• Agency head responsibilities in relation to the Workplace Relations Act
• A workplace based on respect and valuing diversity
• Other agency head responsibilities

Agency head employment related obligations under the Public Service Act, the Public Service Regulations, the Commissioner's Directions, the Prime Minister's Public Service Directions and the Public Service Classification Rules

The Public Service Act 1999, provides for the establishment and management of the Australian Public Service. The main objectives of the Act are:

• to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public
• to provide a legal framework for the effective and fair employment, management and leadership of APS employees
• to define the powers, functions and responsibilities of agency heads, the Public Service Commissioner and the Merit Protection Commissioner
• to establish rights and obligations of APS employees.

The Public Service Act is underpinned by the Public Service Regulations 1999 (Public Service Regulations), Public Service Commissioner's Directions 1999 and the Prime Minister's Public Service Directions 1999 (PM’s Directions) and the Public Service Classification Rules 2000.

While the legal employer of APS employees is the Commonwealth, staffing powers under the Public Service Act are vested in agency heads. Section 20 of the Public Service Act gives agency heads all the rights, duties and powers of an employer in respect of APS employees in the agency, subject to the statutory framework.

Within this framework agency heads have a range of obligations relating to APS employment matters.

This section covers:

• APS Values and Code of Conduct
• Workplace diversity
• Merit in employment and reasonable opportunity to apply for APS employment
• Public Service Classification Rules
• Engagement of APS employees
• Extension of engagement of APS employee engaged for a specified term
• Promotion of ongoing APS employees
• Assignment of duties
• Voluntary moves between agencies
• Engagement of trainees
• Re-engagement
• Remuneration and other terms and conditions of employment
• Senior Executive Service employment
• Heads of Mission
• Locally engaged employees
• Termination of employment
• Review of actions
• Prime Minister's Public Service Directions—mandatory leave without pay
• Delegations

APS Values and Code of Conduct

Agency heads must observe the APS Code of Conduct in the same way as APS employees (section 14 of the Public Service Act 1999). They must uphold and promote the APS Values (section 12 of the Public Service Act), including those with particular relevance to the employment relationship:

• employment decisions based on merit (See: Merit in employment and reasonable opportunity to apply for APS employment
• workplaces free from discrimination that recognise and utilise the diversity of the Australian community (See: Workplace diversity)
• consultative and cooperative workplace relations that value communication and input from employees on matters affecting their workplace
• fair, flexible, safe and rewarding workplaces
• achieving results and managing performance
• equity in employment
• a fair system of review of decisions taken in respect of APS employees (See: Review of actions)
• leadership of the highest quality
• a career-based service to enhance the effectiveness and cohesion of Australia’s democratic system of Government.

Workplace diversity

An agency head must establish a workplace diversity program to assist in giving effect to the APS Values (section 18 of the Public Service Act 1999).

Chapter 3 of the Public Service Commissioner's Directions 1999 (the Directions) provides that a workplace diversity programme must include measures directed at ensuring that:

• the corporate, business and human resource plans of the agency demonstrate that it values the diverse background of its employees and values and uses the diverse skills and experience of its employees
• workplace structures, systems and procedures assist employees to balance work family and other caring responsibilities effectively
• engagement decisions take into account the diversity of the Australian community as well as the goals of the agency and skill required to perform the relevant duties
• equity in employment is promoted and upheld.

Chapter 3 of the Directions requires agency heads to:

• put in place measures to help prevent all forms of discrimination, consistent with Commonwealth law
• put in place measures to recognise the positive advantages of, and help make best use of, the diversity available in the workplace and the Australian community
• assist employees to balance their work, family and other caring responsibilities effectively by encouraging the development of mutually beneficial work practices in the agency
• give the Public Service Commissioner a copy of the workplace diversity program or any revision of it
• develop performance indicators for, and evaluate and report annually on, the effectiveness and outcomes of the workplace diversity program
• give information required by the Public Service Commissioner so the Commissioner can evaluate and assess the effectiveness of agencies’ workplace diversity programs for the State of the Service Report
• review the Agency’s workplace diversity program at least once every four years.

In addition, clause 2.13(1)(b) of the Directions requires agency heads to put measures in place to eliminate any employment-related disadvantage in the agency on the basis of:

• being an Aboriginal or Torres Strait Islander
• gender
• race or ethnicity
  or
• physical or mental disability.

In addition, an agency head must put in place measures directed at ensuring that all Commonwealth anti-discrimination laws are complied with (clause 2.4(1)(a) of the Public Service Commissioner's Directions).

Merit in employment and reasonable opportunity to apply for APS employment

The Public Service Act 1999 includes the following Values which are particularly relevant to agency head obligations in respect of staffing:

• The APS is a public service in which employment decisions are based on merit.
• The APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment.

The Public Service Act also specifically provides:

• at section 17 of the Public Service Act that agency heads (and other persons) exercising powers under the Public Service Act or regulations in relation to APS employees, must do so without patronage or favouritism
• at section 19 that an agency head is not subject to direction by any Minister in exercising their employer powers under the Public Service Act in relation to particular individuals.

Merit-based decision making

Under the Public Service Commissioner's Directions 1999 (the Directions), agency heads must meet minimum requirements in relation to upholding and promoting the values relating to merit and a reasonable opportunity to apply for vacancies.

Section 10(2) of the Public Service Act 1999 states that an engagement or promotion decision is based on merit if:

• it involves an assessment of the relative suitability of candidates for the duties using a competitive selection process
• the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required for the duties
• the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties
• the assessment is the primary consideration in making the decision.

Clause 2.3 of the Directions requires an agency head to put in place measures directed at ensuring that, in relation to decisions on engagement or promotion:

• the aim and purpose of the selection process is determined in advance
• the selection process is transparent and applied fairly in relation to each eligible applicant
• the matters mentioned in section 10(2) of the Public Service Act concerning merit-based decision making are taken into account.

Agency heads are also required to put in place measures directed at ensuring that other employment decisions are made on the basis of an assessment of a person’s work-related qualities and the work-related qualities required for efficient and effective organisational performance (see clause 2.3 of the Directions).

There are additional requirements that must be taken into consideration for decisions involving temporary assignment to duties at a higher classification under clause 4.7 of the Commissioner’s Directions.

Reasonable opportunity to apply

Clause 2.14 and Chapter 4 of the Public Service Commissioner's Directions 1999 (the Directions) set out minimum requirements that an agency head must meet in relation to upholding and promoting the APS Values relating to providing a reasonable opportunity to apply for employment opportunities.

Clause 2.14 requires an agency head to put in place measures directed at ensuring that, taking into account operational requirements, employment opportunities are brought to the notice of the community in such a way as to give eligible members of the community a reasonable opportunity to apply.

Under clause 4.2 of the Directions, an agency head must put in place measures to ensure that if a person is to be:

• engaged as an ongoing APS employee
  or
• engaged as an non-ongoing APS employee for a specified term of more than 12 months, or for the duration of a specified task that is reasonably estimated to take more than 12 months

the opportunity to apply for the relevant employment, or similar employment in the agency, must be notified in the Gazette and must be open to all eligible members of the community during the period of 12 months before the engagement decision.

All ongoing opportunities to be filled by promotion of an ongoing APS employee must be advertised in the Gazette (Clause 4.6A of the Directions).

Generally, an agency head may, on the ground of cost or operational efficiency, open an employment opportunity only to APS employees. However, opportunities for training classifications and APS 1 or equivalent classifications cannot be closed to non-APS employees on the grounds of cost or operational efficiency (see clause 4.2 of the Directions).

An agency head may choose to use an existing selection exercise to fill an employment opportunity by engagement or promotion. However, the new employment opportunity must be similar (that is similar duties and location at the same classification) and the decision to engage or promote the person must be made within 12 months from the date of the Gazette notification of the existing selection exercise.

Special provisions consistent with Commonwealth anti-discrimination law

Under Clause 4.2, 4.3 and 4.6A of the Public Service Commissioner's Directions 1999, an agency head may put into place special measures, consistent with Commonwealth anti-discrimination law, to identify opportunities at any classification as open to:

• Indigenous persons
  or
• persons with an intellectual disability.

These provisions override the requirements to provide a reasonable opportunity to all eligible members of the community to apply for the APS employment.

Public Service Classification Rules

The Public Service Classification Rules 2000 (Classification Rules) provide the framework for classification management arrangements in the APS. The purpose of the Classification Rules is to enable employees and duties to be classified under a common APS-wide classification system.

An agency head must comply with the Classification Rules (section 23(3) of the Public Service Act 1999. The Classification Rules require an agency head to allocate an approved classification to each APS employee in the agency and allocate an approved classification to each set of duties in the agency. Approved classifications are listed in Schedule 1 of the Classification Rules.

If a training classification is allocated to a group of duties, the agency head must ensure that the duties include a requirement to undergo training. Schedule 2 of the Classification Rules provides the mandatory classification that is to be allocated to a trainee on successful completion of training.

An agency head cannot reduce the classification of an APS employee without the employee’s consent, except in certain prescribed circumstances. These circumstances include where there has been a sanction for a breach of the Code of Conduct and where the employee is excess to the requirements of the agency at the higher classification (see section 23(4) of the Public Service Act).

Engagement of APS employees

Under section 22 of the Public Service Act, an agency head has the power, on behalf of the Commonwealth, to engage APS employees for the purposes of the agency as either:

• an ongoing APS employee
• a non-ongoing APS employee either for
  • a specified term
    or
  • the duration of a specified task
• a non-ongoing APS employee for duties that are irregular or intermittent.

The Public Service Act provides that the usual basis for engagement is as an ongoing APS employee (section 22(3)). Regulations 3.5 and 3.6 of the Public Service Regulations 1999 (Public Service Regulations) limits the circumstances in which a person may be engaged as a non-ongoing employee for a specified term or for the duration of a specified task and the extension of such engagements. An agency head should ensure that any delegates observe these limits, as non-compliance can raise complex legal and workplace relations issues.

See: Extension of engagement of APS employee engaged for a specified term.

An agency head may engage a person as an ongoing APS employee in an ongoing training classification. The Public Service Regulations also provide for an agency head to engage a person on a non-ongoing basis for a specified term or for the duration of a specified task to undertake training. Such non-ongoing engagements do not result in ongoing employment on the successful completion of training.

See: Engagement of trainees

All decisions on selecting persons for engagement are subject to merit and reasonable opportunity to apply for employment.

See: Merit in employment and reasonable opportunity to apply for APS employment.

Section 22(6) of the Public Service Act enables an agency head to impose conditions upon engagements dealing with probation, citizenship, formal qualifications, security and character clearances, health clearances or other matters.

Under section 22(8) of the Public Service Act 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. Where a person is engaged who is not an Australian citizen, the agency head should ensure that he or she has appropriate work rights.

Additional requirements apply in relation to the engagement of SES employees.

See: Senior Executive Service employment.

Extension of engagement of APS employee engaged for a specified term

Under the Public Service Regulations (Public Service Regulations), the maximum initial engagement for a specified term is generally 18 months. There is no maximum time specified for an engagement for a specified task - the maximum period is the duration of the specified task.

Under certain circumstances an engagement for a specified term may be extended up to a total term of 3 years (regulation 3.6 of the Public Service Regulations). Under clause 4.5 of the Public Service Commissioner's Directions 1999, an agency head must put in place measures to ensure that if a specified term employee’s engagement is to be extended so that the total period of engagement is more than 12 months:

• the opportunity to apply for the initial employment had been notified in the Gazette as open to all eligible members of the community; or
• the opportunity to apply for the extended period of the engagement is notified in the Gazette as open to all eligible members of the community, whether or not they were APS employees.

Promotion of ongoing APS employees

In clause 4.6 of the Public Service Commissioner's Directions 1999 (the Directions) a promotion is defined as the ongoing assignment of duties to an ongoing APS employee at a higher classification than the employee’s current classification. A promotion may also involve an employee entering into a written agreement with the agency head to move to that agency.

Clause 2.3 of the Directions requires that an agency head must put in place measures directed at ensuring that for a promotion decision:

• the aim and purpose of the selection process is determined in advance
• the selection process is transparent and applied fairly in relation to each eligible applicant
• the matters mentioned in section 10(2) of the Public Service Act concerning merit-based decision making are taken into account.

Under clause 4.6A of the Directions an agency head must put in place measures to ensure that, subject to considerations of costs and operational efficiency, if an ongoing APS employee is to be promoted in the agency, the opportunity to apply for the relevant employment, or similar employment in the agency, was open to all eligible members of the community. The employment opportunity or a similar opportunity must have been notified in the Gazette during the period of 12 months before the decision to promote the ongoing employee.

Assignment of duties

An agency head may, from time to time, determine the duties of an APS employee in the agency, and the place, or places, at which the duties are to be performed (section 25 of the Public Service Act 1999). While this power appears to give an agency head an unfettered right to assign new duties to an ongoing employee or change the place where duties are performed, actions take under the Act must be consistent with the APS Values, chapter 2 of the Commissioner’s Directions and any provisions in a CA or AWA.

Clause 2.3 (1)(b) of the Public Service Commissioner's Directions 1999 (the Directions) requires that an agency head put in place measures in the agency directed at ensuring that a decision regarding an assignment of duties, whether on a temporary or ongoing basis, is made on the basis of an assessment of a person’s work-related qualities and the work-related qualities required for efficient and effective organisational performance.

In addition, clause 4.7 of the Directions requires that these measures must also ensure that before any temporary assignment of duties at a higher classification the following factors are taken into account:

• the efficiency of the employee
• the relative importance to the agency of the duties to be performed at the higher classification and the other duties to be performed in the agency
• the length of the period in which the employee is to perform duties at the higher classification
• the expected cost of the employee performing duties at the higher classification
• the need for APS employees to be given the opportunity to gain experience in performing the duties at a higher classification.

If a proposed change of duties or relocation has not been sought by the employee, to ensure compliance with the APS Values it is advisable that the employee be consulted before a final decision is made.

The extent of consultation and the degree to which an agency takes into account the needs of the employee must be balanced against the operational efficiency of the agency. In the end, the agency head will need to decide the appropriate action given the merits of the individual case.

If the assignment of duties involves a reduction in classification or a relocation or if the person could not reasonably be expected to perform the new duties, the employee may have a right of review.

Voluntary moves between agencies

An agency head may enter into an agreement in writing with an ongoing APS employee for the employee to move on an ongoing basis to the agency head’s agency from another agency (section 26(1) of the Public Service Act 1999). Such a move may result from a competitive selection exercise following a Gazette notification of the employment opportunity. If the move is not the result of a competitive merit selection exercise, clause 2.3 of the Public Service Commissioner's Directions 1999 requires an assessment of a person’s work-related qualities and the work-related qualities required for efficient and effective organisational performance.

A pre-move agency head is not able to prevent an ongoing move occurring. If the move is not associated with a promotion, the move comes into effect 4 weeks after the pre-move agency head is told by the APS employee of the agreement to move unless an earlier or later release date is agreed between the employee and the pre-move and post-move agency heads (regulation 3.9 of the Public Service Regulations 1999).

A non-ongoing APS employee may seek employment in another APS agency but their employment in the new agency would be effected by an engagement.

If an agency head seeks to enter into an agreement for an employee to move to the agency on a temporary basis, regulation 3.9A requires that the pre-move agency head must approve the move in writing for it to proceed as a temporary move. Should the pre-move agency head not approve the temporary move, and the post-move agency head still wishes to proceed with the agreement to move, the move would be considered to be made on an ongoing basis, irrespective of any term set out in the agreement.

Engagement of trainees

An agency head may engage a person as an ongoing APS employee in an ongoing training classification. On successful completion of training determined by the agency head, the trainee must be allocated an appropriate operational classification. The approved training classifications and associated operational classifications are listed in Schedule 2 of the Public Service Classification Rules 2000.

The Public Service Regulations also provide for an agency head to engage a person on a non-ongoing basis for a specified term or for the duration of a specified task to undertake a training scheme for the purpose of gaining skills and experience (regulation 3.5(4)) or a qualification/accreditation (regulation 3.5(5)) or to provide required occupational experience (regulation 3.5(6)). Such non-ongoing engagements do not result in ongoing employment on the successful completion of training.

An agency head may choose to use an approved APS-wide scheme (for example New Apprenticeships) as set out in the Prime Minister's Public Service Directions 1999 or may approve an agency-specific scheme (regulation 3.3 of the Public Service Regulations) that meets the agency’s particular requirements. Notice of the approval of any specific training scheme must be notified in the Gazette.

Re-engagement

Special provisions apply to the re-engagement of a person who has previously received a redundancy benefit on cessation of his/her previous employment or who has resigned from the APS to contest an election.

Redundancy benefit recipients

Clauses 4.4 and 4.4A of the Public Service Commissioner's Directions 1999 (the Directions) set out the arrangements that APS agencies must follow when proposing to engage a person who has received a redundancy benefit. These clauses deal with the engagement of redundancy benefit recipients as APS employees and as locally engaged employees under the Public Service Act 1999 (the Act).

The arrangements governing the employment of redundancy benefit recipients apply to persons who have received a redundancy benefit from an APS agency, or from the Australian Parliamentary Service whose ‘redundancy benefit period’ has not expired. In addition, former employees of the Murray-Darling Basin Commission (MDBC) who did not accept an offer of APS employment made under s.72(1)(d) of the Act and who received a redundancy benefit from the MDBC are also covered. 

Each of the following payments is considered to be a ‘redundancy benefit’: a severance payment, or similar payment, made to an employee on cessation of the employee’s employment; a payment made to an employee as a result of the shortening of a retention period; and an incentive payment to retire.

The period of exclusion (or ‘redundancy benefit period’) is linked to the level of the redundancy benefit received by an individual. The ‘redundancy benefit period’ is to be calculated by dividing the amount of the person’s redundancy benefit (gross amount in dollars) by the person’s weekly salary that was used to calculate the benefit.

There is limited scope for an agency head to engage a redundancy benefit recipient in circumstances where the redundancy benefit period has not expired. Clause 4.4A of the Directions sets out the steps an agency head must follow prior to engaging such a person as an ongoing APS employee, a non-ongoing APS employee or as a locally engaged employee.  In many cases, agency heads will need to either consult with, or seek the approval of, the Public Service Commissioner prior to engaging the person.

Election candidates

Section 32 of the Public Service Act 1999 and regulations 3.13, 3.14 and 3.15 of the Public Service Regulations 1999 (Public Service Regulations) set out the arrangements that apply when an APS employee who resigns from the APS to contest an election (as defined in the Public Service Regulations), and who fails to be elected, applies to be again engaged in the APS (a failed election candidate).

An agency head must engage an election candidate who failed to gain election provided certain conditions (as set out in the Public Service Act and Public Service Regulations) are satisfied. These conditions establish certain time limits in relation to the resignation and subsequent application for re-engagement and specify a person’s entitlements on return to the APS.

The engagement of an election candidate who failed to gain election in these circumstances is not subject to normal APS merit selection requirements.

Remuneration and other terms and conditions of employment

In the APS, Agency Heads are responsible for workplace relations matters within their particular agency. The policy of the Australian Government is for the remuneration and other terms and conditions of employment of non-SES APS employees to be established at the agency level through collective bargaining, and for terms and conditions of SES employees to be established through s.24(1) determinations made under the Public Service Act 1999 or common law agreements, with collective agreements available where a majority of SES employees in an agency so choose.  In this context, Agency Heads must ensure that all instruments setting out terms and conditions are consistent with Australian Government policies. These policies are set out in the Australian Government Employment Bargaining Framework, the associated Supporting Guidance, and the various Workplace Relations Advices which are issued from time to time by the Department of Education, Employment and Workplace Relations. 

Agencies should note that as of 13 February 2008, it is against Australian Government policy for agencies to offer new Australian Workplace Agreements to employees under any circumstances.

Agencies should contact the Department of Education, Employment and Workplace Relations directly for further advice on workplace relations matters specific to their particular circumstances.

Senior Executive Service employment

In general, the same legal framework that applies to non-SES employment also applies to SES employment. However, the Public Service Act 1999 includes a number of provisions applying specifically to SES employees.

Sections 34 to 35 define the constitution and role of the SES.

Section 36 of the Public Service Act requires the Public Service Commissioner to issue directions on SES employment matters. These directions can be found in Chapter 6 of the Public Service Commissioner's Directions 1999 (the Directions), which establish minimum requirements that agency heads must satisfy in reaching various decisions affecting the employment of SES employees (see below).

Section 37 makes provision for an agency head to offer a SES employee an incentive to retire, with a specified monetary benefit. Under clause 6.7 of the Directions the amount must be agreed to by the Public Service Commissioner.

Section 38 requires an agency head to obtain certification of the Public Service Commissioner in relation to any decision to terminate an SES employee.

Under the Directions, an agency head must exercise his or her employer powers in relation to the SES in a way that seeks to maintain and develop the leadership role and capabilities of the SES (clause 6.1 of the Directions).

An agency head must put in place measures:

• to ensure that SES employees are effectively deployed in the agency
• to monitor the skills required at the SES level in the agency (clause 6.2 of the Directions).

The minimum requirements that an agency head must ensure are met in relation to a range of decisions affecting SES employees are specified in clauses 6.3 to 6.8 of the Directions. The decisions include:

• promoting or engaging a person as an SES employee
• decisions in relation to the mobility of an SES employee
• redeploying an SES employee with the employee's agreement
• assigning an SES employee to duties at a lower classification (whether or not in the SES) without the employee's agreement
• assigning (except on a temporary basis) an SES employee whose classification is a specialist classification to duties at the corresponding non-specialist classification
• assigning (except on a temporary basis) an employee at an SES equivalent classification to duties at an SES classification within the same group set out in the Public Service Classification Rules 2000
• giving a notice to an SES employee under Section 37 of the Public Service Act (Incentive to retire)
• terminating the employment of an SES employee under section 29 of the Public Service Act (Termination of employment).

In relation to engagement of persons at SES level, as with all levels, the usual basis for engagement is on an ongoing basis.  Where an engagement is to be on a non-ongoing basis, it should be noted that a a specified term engagement at SES level can be for a maximum period of 5 years, including any extensions.  It is also possible to engage at SES level for a specified task, where the end date is unable to be determined.  Care should be taken that such an engagement does in fact relate to a specified task, and not to an ongoing employment requirement in the agency.

SES employees should be aware that there is an SES Adviser, a function undertaken by a Group Manager in the Australian Public Service Commission, who is able to provide general advice on issues they may be facing. The SES Adviser has no authority to review or overturn decisions and all issues dealt with by the SES Adviser are treated on a confidential basis. For current details of the SES Adviser see the Senior Executive Adviser web link on the Australian Public Service Commission homepage.

Heads of Mission

The appointment of a Head of Mission (HoM) cannot take place unless the person is an APS employee.

An agency head must comply with any written direction of the agency Minister that (i) a prospective Head of Mission be appointed as an APS employee and (ii) particular duties be assigned to a Head of Mission (section 39 of the Public Service Act 1999.

After agreement from the Prime Minister, the Minister for Foreign Affairs recommends to the Governor-General in Council the appointment of a HoM:

• The HoM is paid a salary as an APS employee and is subject to the provisions of the Public Service Act.
• In practice, the terms and conditions of appointment of HoMs, which may differ from those applying to APS employees serving overseas in other capacities, will be set by the employing agency head at the direction of the Minister for Foreign Affairs.
• Determinations of the Remuneration Tribunal will not apply to such an appointment.

Locally engaged employees

Under section 74 of the Public Service Act 1999 an agency head may also engage persons overseas (that is, outside Australia and its Territories) to perform duties overseas as employees. Such persons are known as ‘locally engaged employees’. They are not APS employees (section 7 of the Public Service Act). Any relevant matters such as standards of conduct should be dealt with in their contract and conditions of employment at the time of engagement, and/or in accordance with the law of the overseas country in which they are employed.

Subject to the Public Service Act, an agency head has all the rights, duties and powers of an employer in respect of locally engaged employees in the agency. An a gency is not subject to direction by any Minister concerning the exercise of these powers in relation to particular individuals. These provisions do not limit any other power of an agency head to engage persons to work overseas (section 74(4) of the Public Service Act).

All locally engaged staff (LES) employed under the Public Service Act are to be engaged by the agency responsible for management of the post (2007 Prime Ministerial Directive on Management of the Australian Government Presence Overseas) except AusAID and Austrade staff.  Although the managing agency at Post is the legal employer this does not impact on the day-to-day tasking and management of LES employed by other agencies. Individual agencies are also responsible for all costs associated with their LES, including any costs incurred as a result of legal proceedings initiated by an LES member who works for them. AusAID and Austrade are the legal employers of their staff and are responsible for all legal and management issues related to that employment.

Termination of employment

Under the Public Service Act 1999, an agency head may at any time, by notice in writing, terminate the employment of an APS employee in the agency (section 29(1)).

Such decisions must comply with other relevant requirements including those set out in the Public Service Act, the Workplace Relations Act 1996, the administrative law framework and the common law of employment.

In particular, for an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination (section 29(2)).

Under section 29(3) of the Public Service Act, the following are the only grounds for termination for an ongoing APS employee:

• the employee is excess to the requirements of the agency
• the employee lacks, or has lost, an essential qualification for performing his or her duties
• non-performance, or unsatisfactory performance, of duties
• inability to perform duties because of physical or mental incapacity;
• failure to satisfactorily complete an entry-level training course
• failure to meet a condition imposed under section 22(6) in relation to probation, citizenship, formal qualification, security and character clearances and health clearances)
• breach of the Code of Conduct
• any other ground prescribed by the regulations.

As at the date of publication of this site no other ground for termination of ongoing APS employees has been prescribed by Regulation.

Minimum requirements in relation to non-ongoing employees are set out in regulation 3.11 of the Public Service Regulations 1999 .

Review of actions

The Public Service Act 1999 provides the statutory framework to review certain actions affecting an APS employee’s employment. An agency head has certain responsibilities in relation to this framework, including the upholding and promoting a fair system of review in their own agency (see section 10 (1)(o) of the Public Service Act and clause 2.16 of the Public Service Commissioner’s Directions 1999).

Section 33 of the Public Service Act and the Public Service Regulations 1999 (Public Service Regulations) provide that a non-SES APS employee is entitled to review of a range of employment-related actions, excluding termination decisions. A number of other actions are not reviewable and these are detailed in Schedule 1 to the Public Service Regulations.

In addition, an agency head or the Merit Protection Commissioner may decide that an action ceases to be reviewable if it satisfies grounds specified in the Public Service Regulations.

Other specific agency head responsibilities in the Public Service Regulations include those set out below:

• Under regulation 5.17, a Promotion Review Committee (PRC) may require the agency head to give the PRC stated information or documents relevant to the review. The agency head must give the information or documents in the way, and at or within the time, stated in the notice.
• Under regulation 5.20 the decision of a PRC is binding on an agency head.
• Under regulation 5.25, if the agency head refers an application for review of a reviewable action to the Merit Protection Commissioner, the agency head must tell the employee in writing.
• Under regulation 5.26 where the agency head does not refer the application for review to the Merit Protection Commissioner, the agency head must then review the action and attempt to resolve the employee’s concerns about the action.
• Under regulation 5.27 the agency head must advise the employee in writing of any decision reached on an application for review, reasons for the decision, and action taken as a result, and the review rights available.
• Under regulation 5.30 the agency head must give the affected employee a copy of any documents given to the Merit Protection Commissioner for the purposes of a secondary review and the review rights available.
• Under regulation 5.32, if an agency head receives a recommendation by the Merit Protection Commissioner in relation to a review, the agency head must as soon as possible consider the recommendation and make a decision on such. The agency head must tell the employee and the Merit Protection Commissioner of the decision and the reasons for it.
• Under regulation 5.35, the agency head must give information or documents to a person or committee carrying out a review in the way, and at or within the time, stated in the notice.

Prime Minister’s Public Service Directions—mandatory leave without pay

Section 21 of the Public Service Act 1999 allows the Prime Minister to issue general directions to agency heads about the management and leadership of APS employees.

Clause 2.1 of the Prime Minister's Public Service Directions 1999 (PM’s Directions) provides that where an ongoing APS employee applies for leave without pay to undertake certain employment under the Members of Parliament (Staff) Act 1984, or the Governor-General Act 1974, an agency head must approve the application.

Under clause 2.2 of the PM's Directions, where an APS employee who has been granted leave without pay under these provisions notifies the agency head that he/she wishes to return to the agency, the agency head must arrange for this to occur as soon as practicable. The employee is entitled to be assigned duties at the classification the employee held immediately before being granted leave without pay (or at an equivalent classification should that classification no longer exist).

As a result of amendments that came into effect on 19 October 2005 granting leave without pay is no longer mandatory for APS employees taking up a full time statutory appointment. Australian Public Service Commission Circular 2005/5 provides further advice about the amendments to the PM’s Directions, including on the transitional arrangements for APS employees granted leave without pay prior to 19 October 2005 to take up a statutory appointment.

Delegations

The Public Service Act 1999, Public Service Regulations 1999 (Public Service Regulations), the Public Service Commissioner's Directions 1999, and the Public Service Classification Rules 2000 confer powers and functions on agency heads that may be delegated. An agency head may, in writing, delegate a power or function to one or more persons (the first delegate). An agency head may give directions to the first delegate. The first delegate may in writing delegate any of those powers or functions to another person (the second delegate). However, if the first delegate is subject to directions, the first delegate must give corresponding directions to the second delegate.

The consent of the Public Service Commissioner must be obtained if an agency head wishes to delegate, or a delegate wishes to further delegate, a power or function under the Public Service Framework to an outsider (that is, a person other than an APS employee or a person appointed to an office by the Governor-General or by a Minister, under a law of the Commonwealth).

Workplace Authority

The Workplace Authority has a role under the WR Act to assist employers and employees to make all types of workplace agreements which are available under that Act. The Workplace Authority is responsible for:

• accepting lodgement and issuing receipts after lodgement of all workplace agreements, including in accordance with transmission of business provisions under the WR Act;
• assisting employers and employees with content in workplace agreements;
• providing agreement making advice to employers, employees and industrial organisations; and
• providing advice appropriate to an employer’s specific needs.

Agency head responsibilities in relation to the Workplace Relations Act

The Workplace Relations Act 1996 (WR Act) and subordinate legislation establishes the broad legislative framework for workplace relations in Australia, and therefore the APS.

APS Agency Heads are responsible for managing relations with their employees consistent with the WR Act and for ensuring that their agency collective agreements and other instruments used to set terms and conditions (such as s.24(1) determinations made under the Public Service Act 1999 and common law agreements) are consistent with the Australian Government Employment Bargaining Framework..

Other than in certain proscribed circumstances, workplace agreements cannot override any legislative obligations which are placed on Agency Heads. This includes obligations under the WR Act and subordinate instruments and the PS Act and subordinate instruments.

A workplace based on respect and valuing diversity

Agency heads have a range of obligations in relation to workplace diversity and anti-discrimination legislation that are relevant to the employment responsibilities of the Commonwealth. The Workplace Relations Act 1996 makes it unlawful to terminate the employment of an employee on certain grounds, including race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The anti-discrimination Acts below deal with discrimination that arises in the workplace or in other circumstances.

This section covers:

• Public Service Act 1999
• Disability Discrimination Act 1992
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984
• Age Discrimination Act 2004
• Human Rights and Equal Opportunity Commission Act 1986
• Equal Employment Opportunity (Commonwealth Authorities) Act 1987
• Long Service Leave (Commonwealth Employees) Act 1976
• Maternity Leave (Commonwealth Employees) Act 1973 and other parental leave provisions
• Bullying and Harassment
• Vicarious Liability under anti-discrimination law
• Commonwealth Disability Strategy

Public Service Act

Agency heads must uphold and promote a workplace that is free from discrimination (section 10(1)(c) of the Public Service Act 1999).

An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment (section 13(3) of the Public Service Act).

Agency heads may impose sanctions, including termination of employment, where an employee is found to have breached the Code of Conduct (section 15(1) of the Public Service Act).

Agency heads must put in place measures directed at ensuring that employment and workplace arrangements take appropriate account of employees who are seeking to balance individual needs and the achievement of organisational goals (clause 2.11(1) of the Public Service Commissioner's Directions 1999 (the Directions).

Agency heads must put in place measures to:

• help prevent all forms of direct and indirect discrimination consistently with Commonwealth law
• recognise the positive advantages of, and help make best use of, the diversity available in the workplace (clause 3.2(1) of the Directions (the Directions).

Agency heads must assist employees balance their work, family and other caring responsibilities through mutually beneficial work practices. (see clause 3.2(2) of the Directions).

Agency heads must establish a workplace diversity program (workplace diversity program) (Section 18 of the Public Service Act). It must include measures to ensure:

• the agency’s corporate, business and human resource plans demonstrate that it values the diverse backgrounds of its employees and values, and is able to access and make use of, the diverse skills and experience of its employees
• workplace structures, systems and procedures assist employees to balance their work, family and other caring responsibilities
• engagement decisions take into account the diversity of the community as well as the goals of the agency and skills required
• equity in employment is promoted and upheld, through transparent and fair employment decisions and eliminating any employment-related disadvantage on the basis of being an Indigenous Australian, gender, race or ethnicity or disability (see clause 3.3 of the Directions).

Under clause 3.4 of the Public Service Commissioner's Directions 1999, APS agency heads must provide a copy of their agency's Workplace Diversity Program (including revisions to the workplace diversity program) to the Commissioner. Under clause 3.5, agency heads must also give information as required by the Public Service Commissioner so the Commissioner can evaluate and assess the effectiveness of agencies' workplace diversity programs for the State of the Service Report.

Agency heads must develop performance indicators for their workplace diversity program and evaluate and report on the effectiveness and outcomes of the program annually (see clause 3.5(1) of the Directions).

Agency heads must give the Commissioner information required to enable an assessment of the effectiveness of agencies’ workplace diversity programs for the State of the Service Report (see clause 3.5(2) of the Directions).

Agency heads must review the agency’s workplace diversity program every 4 years to make sure that is continues to give effect to the APS Values and achieve the outcomes mentioned in clause 3.3 (see above and clause 3.6 of the Directions).

In addition, clause 2.13(1)(b) of the Directions requires agency heads to put measures in place to eliminate any employment-related disadvantage in the agency on the basis of:

• being an Aboriginal or Torres Strait Islander
• gender
• race or ethnicity
  or
• physical or mental disability.

Disability Discrimination Act

APS agencies, in common with all Australian employers, also have legal obligations under the Workplace Relations Act 1996 and the Disability Discrimination Act 1992 to ensure that, in their employment processes, they do not discriminate against people with disability.

The Disability Discrimination Act 1992 makes discrimination on the basis of disability unlawful and harassment on the basis of their disability unlawful. The Act also makes it unlawful to discriminate against ‘associates’ of a person with a disability (e.g. a person who cares for a person with disability, or is the partner of a person with disability) . In the employment context, this requires, amongst other things, that:

• staff of Australian Government organisations should display non-discriminatory attitudes in the workplace
• where necessary, reasonable adjustments are to be made to the workplace so that people with disabilities have equal opportunity to use and display their skills
• recruitment processes (such as advertising, interviewing, and other selection processes) should accommodate the needs of people with disability
• people with disability should have access to the same opportunities for engagement, promotion, transfer, training and other benefits offered with the employment.
• any reasonable adjustments are made to ensure that workplace premises and facilities are accessible to people with disability.

The Disability Discrimination Act states that it is not unlawful for a person to discriminate against a person with a disability in determining who should be offered employment or in dismissing the person if a person is unable to perform the inherent requirements of a job. The employer must take the person’s past training, qualifications, experience and performance and other relevant factors into account. The employer must also consider how a ‘reasonable adjustment’ could be made to enable the person to perform the requirements of the job, should discuss this with the person involved and consult other relevant sources of advice. For example, could a person with a vision impairment perform a clerical job with voice activated software? Where the employer is able to establish that it would impose an ‘unjustifiable hardship’ on the employer to provide the reasonable adjustment, it will not be unlawful discrimination.

A Management Advisory Committee Report, Employment of People with Disability in the APS, was launched on 30 August 2006 and provides eight objectives for promoting the employment of people with disability and identifies a range of better practice strategies for meeting those objectives. Individual agencies are to pursue those objectives, tailoring strategies to their particular circumstances. See further: http://www.apsc.gov.au/mac/disabilitye.htm

Racial Discrimination Act

The Racial Discrimination Act 1975 prohibits discrimination on the basis of race, colour, descent or national or ethnic origin. No one, including an agency head or an APS agency, is entitled to discriminate on racial grounds if that discrimination means that a person’s human rights are affected.

Discrimination on these grounds can be direct or indirect.  Direct discrimination is where discrimination is based on any of these grounds.  Indirect discrimination occurs where a requirement or condition is imposed on a person, the requirement or condition is unreasonable, the person cannot comply with the requirement or condition resulting in that person not enjoying  a right on an equal footing with others of the same race, colour, descent or national or ethnic origin.

In general terms, the Act is concerned with equality before the law and can in some circumstances render ineffective Commonwealth, state or territory law that does not comply with this principle.

‘Special measures’ are not unlawful. In general terms, ‘special measures’ are programmes with the objective of securing the adequate advancement of a group, or individual members, affected by historic disadvantage to help them enjoy and exercise their human rights in full equality.

The Racial Hatred Act 1995 amended the Act by making offensive behaviour based on race unlawful. Prohibited behaviour may include offending, insulting, humiliating or intimidating another person because of his or her race, colour, national or ethnic origin.

Sex Discrimination Act

Under the Sex Discrimination Act 1984, it is unlawful to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy in a wide range of area including in the following areas of public life:

• employment
• superannuation
• education
• provision of goods, services or facilities,
• accommodation and housing, and
• administration of Commonwealth laws and programs.

It is also unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.

The Act further provides that it is unlawful to sexually harass a person. The Act identifies sexual harassment as unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances. It can involve unwelcome touching, hugging or kissing, suggestive comments or jokes, unwanted invitations to go out on dates or requests for sex, insults based on sex or sexually explicit emails or text messages. The Act prohibits sexual harassment in almost every employment situation as well as in administration of Commonwealth law and programs, provision of goods, services and facilities and other areas.

Under the Act, it is unlawful to engage in direct or indirect sex discrimination.

Direct sex discrimination occurs where, because of a person’s sex or a characteristic attributed to a person’s sex, the discriminator treats the aggrieved person less favourably than he or she would treat a person of a different sex. An example of direct sex discrimination would be where an employer refused to interview a suitably qualified woman for employment in a male dominated industry.

Indirect discrimination occurs where a discriminator imposes a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of a particular sex. The condition, requirement or practice may ostensibly appear neutral. Indirect discrimination will not be unlawful where it is a reasonable condition, requirement or practice in the circumstances. An example of indirect discrimination in the workplace would be where an employer refused to consider part-time work for his or her employees. This condition would have the effect of disadvantaging women because they have a greater responsibility (statistically) for the care of children, and thus a greater need for part-time work.

The Act also provides certain exemptions to which the Act does not generally apply including:

• the provision of accommodation for employees or students
• religious bodies (such as the ordination of a priest)
• education institutions established for religious purposes
• sport and combat duties
• certain acts done under statutory authority

An employer may also be held legally responsible for acts of sexual harassment committed by employees unless the employer has taken all reasonable steps to prevent the sexual harassment from taking place.

Age Discrimination Act

The Age Discrimination Act 2004makes it unlawful to discriminate against someone on the ground of age in a wide range of areas including in the following areas of public life:

• employment
• superannuation
• education
• provision of goods, services and facilities
• accommodation and housing, and
• administration of Commonwealth laws and programs.

Under the Act, it is unlawful to engage in direct or indirect age discrimination.

Direct age discrimination occurs where, because of a person’s age, the discriminator treats the aggrieved person less favourably than he or she would treat a person of a different age. An example of direct age discrimination may be where an older person is not employed because it is assumed that an older person would not have adequate computer skills.

Indirect discrimination occurs if a person of a particular age is disadvantaged because the person cannot meet a condition, requirement or practice that is neutral as to age on its face, but is more difficult for people of that age to meet than people of another age. However, if such a condition is reasonable in the circumstances, it will not be unlawful discrimination. An example of indirect age discrimination may include where an employer requires an older person to meet a physical fitness test which more young people can be expected to meet, if the fitness standard is not reasonable for the job in question.

In general terms, under the Act it is not unlawful to discriminate against a person because of the person’s age if the person cannot perform the inherent requirements of a job. Further, it is generally not unlawful to provide bona fide benefits to persons of a particular age (for example discounts to holders of a Seniors Card), or to commit an act that was intended to meet a need that arises from the age of a particular group (for example young people may have a greater need for welfare services), or to reduce a disadvantage experienced by people of a particular age (for example older people are often more disadvantaged by retrenchment than are other people).

The Act also provides certain exemptions to which the Act does not generally apply including:

• Commonwealth laws that govern taxation, social security, migration and superannuation
• state and territory laws and court orders,
• certain health programmes, and
• direct compliance with orders fixing minimum wages or industrial agreements and awards.

Human Rights and Equal Opportunity Commission Act

Complaints can be made under theHuman Rights and Equal Opportunity Commission Act 1986 about alleged breaches of human rights in a range of situations including the administration of Australian Government programs and the application of Commonwealth legislation.  The Commission may inquire into the complaint and, where it finds that there has been a breach of any human right may prepare a report with recommendations.  Where such a report is provided to Attorney-General it must be tabled in Parliament.

Human rights are defined in the Act by reference to international human rights treaties and declarations, including the International Covenant on Civil and Political Rights 1966 and the International Labour Organisation, Discrimination (Employment and Occupation) Convention 1958 (No.111). This can include, for example, complaints of alleged discrimination in employment on grounds of sexual preference, criminal record or union activity.

Complaints may also be made under the Act about a range of employers, including the Australian Government, about alleged impairment of equal opportunity in employment on a number of grounds which include sex and marital status.

Under the Act, it is not discriminatory to make a distinction, exclusion or preference in respect of a particular job based on its inherent requirements, or to introduce special measures for the benefit of minorities disadvantaged because of age, sex, family responsibilities or other reasons.

Same-sex couples policy

It is Government policy to eliminate discrimination against same-sex couples and their children in Commonwealth laws and programs. The Government amended 84 laws for this purpose in 2009. Government Departments and agencies are obliged to review their policies and subordinate legislation for consistency with this policy.

Equal Employment Opportunity (Commonwealth Authorities) Act

The Equal Employment Opportunity (Commonwealth Authorities) Act 1987 requires Commonwealth authorities to develop equal employment opportunity programmes for women and designated groups (that is, Indigenous Australians, people from a non-English speaking background and their children and people with a disability). The Act applies to non-APS employing Commonwealth authorities, including those who employ a mix of non-APS and APS employees.

Long Service Leave (Commonwealth Employees) Act 1976

The Long Service Leave (Commonwealth Employees) Act 1976 is a complete code for Commonwealth employees covered by the Act. There is no flexibility for agency heads and employees to negotiate different long service leave arrangements in agreements under the Workplace Relations Act 1996, other than in relation to how agencies exercise the discretions they have under the Act (for example, the minimum period of long service leave or whether staff are entitled to ask for advances of long service leave payments).

Maternity Leave (Commonwealth Employees) Act 1973 and other parental leave provisions

The Maternity Leave (Commonwealth Employees) Act 1973(Maternity Leave Act) directly vests in an Agency Head (and a chief executive officer of a non-APS agency) various powers and functions which may be delegated in relation to maternity leave. The Maternity Leave Act aims to provide employment protection for employees who become pregnant to safeguard the health of the mother and child in the period immediately before and after the birth of the child and to enable an employee to be absent from work to care for the child. The Maternity Leave Act provides for up to 52 weeks of maternity leave, of which up to 12 weeks may be paid.

Agency Heads may also have agency-specific obligations in relation to maternity leave under the Australian Public Service Award 1998 (APS Award), their agency’s collective agreement or any other relevant workplace arrangements including s.24(1) Determinations under the Public Service Act 1999, Common Law Agreements, and Australian Workplace Agreements (AWAs).

The maternity leave provisions of the Maternity Leave Act, the APS Award (or parallel clauses in collective agreements and other workplace arrangements including s.24(1) Determinations, Common Law Agreements or AWAs) and the maternity/parental leave provisions of the Workplace Relations Act 1996 (WR Act) operate side by side within the APS.

The parental leave provisions of the WR Act cover Commonwealth employees who are not covered by the Maternity Leave Act or the APS Award. These provisions aim to help parents to reconcile their employment and family responsibilities.

Under the WR Act, an employee who gives birth to a child is entitled to unpaid maternity leave totalling 52 weeks (less any authorised leave taken by either the employee or their spouse, including paternity leave) to care for the newborn child - section 266. The WR Act also provides for 52 weeks of unpaid adoption leave (less any related authorised leave taken by either the employee or their spouse) - section 301 . The minimum entitlements outlined under the WR Act override entitlements under the Maternity Leave Act where the WR Act provides a more favourable entitlement. Similarly, where the Maternity Leave Act provides a more favourable entitlement, the employee would be entitled to the more beneficial arrangement.

Bullying and harassment

While the APS has focussed on maintaining a workplace free from the types of harassment covered by anti-discrimination legislation such as sexual harassment and racial discrimination, there is increasing recognition of the need also to deal with more subtle forms of bullying and harassing behaviour. Bullying and harassment are overlapping concepts that can encompass a broad range of behaviour.

While there is no standard definition of workplace bullying this term is generally used to describe repeated workplace behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to an individual or group of individuals. It can be overt or covert.

In general terms, bullying and harassment differs from:

• expressing different opinions
• feedback or advice about performance that is provided to assist employees to improve their performance or standard of behaviour
  or
• legitimate and reasonable management decisions or actions

providing that all involved are treated with respect and courtesy.

Vicarious Liability under anti-discrimination law

Federal and State anti-discrimination law provides that an employer may be legally responsible for discrimination and harassment which occurs in the workplace or in connection with a person's employment unless it can be shown 'reasonable steps' have been taken to reduce this liability.

What constitutes reasonable steps is not defined in legislation but 'reasonable steps' could include:

• preparation and regular circulation of a written policy prohibiting workplace discrimination and harassment
• ensuring that all staff are properly trained about workplace discrimination and harassment and its prevention
• establishing effective complaint procedures
• treating all complaints seriously and investigating them promptly
• ensuring that appropriate action is taken to address and resolve complaints
  or
• monitoring the workplace environment and culture.

An employer may be vicariously liable for the conduct of individual or groups of employees, contractors and other workplace participants (such as people who work on the same premises, but have different employers). The conduct can occur both within the usual work environment and elsewhere (such as at employer sponsored seminars, conferences, work functions, Christmas parties, business or field trips).

Agency heads must ensure that the working environment or workplace culture is not sexually or racially permeated or hostile. It may be a potentially hostile working environment if pornographic material is displayed, or crude conversations or innuendo and offensive jokes are part of the culture. A person has the right to complain about the effects of a sexually or racially hostile working environment even if the conduct in question was not specifically targeted at them.

The vicarious liability provisions of the legislation do not preclude individuals from being held liable for their own discriminatory or harassing behaviour in the workplace or in connection with their employment. It may be that both the employer who has been found to have not taken reasonable steps to prevent the discrimination and harassment from occurring and the individual who is the alleged discriminator or harasser will be held jointly liable for the behaviour.

Commonwealth Disability Strategy

The Commonwealth Disability Strategy operates within the Disability Discrimination Act 1992 legislative framework and is designed to eliminate discrimination on the grounds of disability and to ensure and promote the principle that people with disabilities have the same fundamental rights as the rest of the community.

Other agency head employment-related responsibilities

As part of managing their agencies, agency heads should also be mindful of general employment related responsibilities contained in other legislation. This section covers the key legislation that may impact on agency heads in relation to particular employment-related actions and decisions:

• Administrative Decisions (Judicial Review) Act 1977
• The Long Service Leave (Commonwealth Employees) Act 1976 and Related Regulations
• The Maternity Leave (Commonwealth Employees) Act 1973 and other parental leave provisions
• Superannuation
• Safety, Rehabilitation and Compensation Act 1988
• Occupational Health and Safety (Commonwealth Employment) Act 1991
• Remuneration Tribunal

Administrative Decisions (Judicial Review) Act

The Administrative Decisions (Judicial Review) Act 1977 outlines procedures for reviewing an administrative decision (or failure to make a decision), or the imposing of a condition or requirement. A person aggrieved by a decision to which the Act applies may apply to the Federal Court or Federal Magistrates Court for a review.

Judicial review is not the re-hearing of the merits of a particular case. Rather, it is where a court reviews a decision to make sure that the decision maker used the correct legal reasoning or followed the correct legal procedures. On review, if a court finds that a decision has been made unlawfully, the powers of the court will generally be confined to setting the decision aside and remitting the matter to the decision maker for reconsideration according to law.

It is recognised (by both the courts and the executive) that some areas of administrative decision making are more or less amenable to judicial review than others. Certain decisions are excluded from the operation of the Act. These are listed in Schedule 1 to the Act.

Long Service Leave (Commonwealth Employees) Act and related regulations

The entitlement of employees to long service leave is provided for under the Long Service Leave (Commonwealth Employees) Act 1976. This Act directly vests in an agency head (and a chief executive officer of a non-APS agency) various powers and functions in relation to long service leave. These powers and functions may be delegated.

In general terms, the basic qualification for long service leave is that the person is (or was) “employed in Government service’ and has been continuously employed in one or more forms of qualifying service (that is, Government service or recognised prior service) for a period of service of at least ten years (see continuity of service in section 12 of the Act).

The Long Service Leave (Commonwealth Employees) Act 1976 is a complete code for Commonwealth employees covered by the Act. There is no flexibility for agency heads and employees to negotiate different long service leave arrangements in agreements under the Workplace Relations Act 1996, other than in relation to how agencies exercise the discretions they have under the Act (for example, the minimum period of long service leave or whether staff are entitled to ask for advances of long service leave payments).

Maternity Leave (Commonwealth Employees) Act and other parental leave provisions

The Maternity Leave (Commonwealth Employees) Act 1973 (Maternity Leave Act) directly vests in an Agency Head (and a chief executive officer of a non-APS agency) various powers and functions which may be delegated in relation to maternity leave. The Maternity Leave Act aims to provide employment protection for employees who become pregnant to safeguard the health of the mother and child in the period immediately before and after the birth of the child and to enable an employee to be absent from work to care for the child. The Maternity Leave Act provides for up to 52 weeks of maternity leave, of which up to 12 weeks may be paid.

Agency Heads may also have agency-specific obligations in relation to maternity leave under the Australian Public Service Award 1998 (APS Award), their agency’s collective agreement or any other relevant workplace arrangements including s.24(1) Determinations under the Public Service Act 1999, Common Law Agreements, and Australian Workplace Agreements (AWAs).

The maternity leave provisions of the Maternity Leave Act, the APS Award (or parallel clauses in collective agreements and other workplace arrangements including s.24(1) Determinations, Common Law Agreements or AWAs) and the maternity/parental leave provisions of the Workplace Relations Act 1996 (WR Act) operate side by side within the APS.

The parental leave provisions of the WR Act cover Commonwealth employees who are not covered by the Maternity Leave Act or the APS Award. These provisions aim to help parents to reconcile their employment and family responsibilities.

Under the WR Act, an employee who gives birth to a child is entitled to unpaid maternity leave totalling 52 weeks (less any authorised leave taken by either the employee or their spouse, including paternity leave) to care for the newborn child - section 266. The WR Act also provides for 52 weeks of unpaid adoption leave (less any related authorised leave taken by either the employee or their spouse) - section 301.. The minimum entitlements outlined under the WR Act override entitlements under the Maternity Leave Act where the WR Act provides a more favourable entitlement. Similarly, where the Maternity Leave Act provides a more favourable entitlement, the employee would be entitled to the more beneficial arrangement.

Superannuation

As an employer, an agency head has responsibility for ensuring that the agency manages its superannuation responsibilities. Under the Superannuation Guarantee (Administration) Act 1992, all Australian employers are required to provide a minimum level of superannuation cover for employees known as the Superannuation Guarantee and meet the choice of superannuation fund requirements (choice). Certain classes of contractors are deemed employees for the purposes of this legislation.

Superannuation arrangements for Australian Government employees and statutory office holders, which satisfy the SG Act requirements, may be provided either through the Public Sector Superannuation Accumulation Plan (PSSAP), the Public Sector Superannuation Scheme (PSS), the Commonwealth Superannuation Scheme (CSS) or the Superannuation (Productivity Benefit) Act 1988 depending on the circumstances of the particular employee. In certain circumstances employers may contribute to other arrangements directly, in accordance with choice under the SG Act.

A Board of Trustees is responsible for the management of the PSSAP, PSS and CSS. This Board is called the Australian Reward Investment Alliance or ARIA. ComSuper provides administration services to ARIA. 

Choice of superannuation funds for new employees

Since 1 July 2006, employers have been required to comply with choice for all new employees and statutory office holders, and PSSAP members in accordance with the Superannuation Guarantee (Administration) Act 1992.

Public Sector Superannuation Accumulation Plan

Since 1 July 2006, most new Australian Government employees and statutory office holders have been eligible, but not required, to become members of the Public Sector Superannuation Accumulation Plan (PSSAP). Alternatively, these employees and office-holders could elect to have employer contributions paid into a complying superannuation fund or retirement savings account of their choice in accordance with the Superannuation Guarantee (Administration) Act 1992.

The PSSAP provides fully funded accumulation benefits with features that are similar to other accumulation schemes. ARIA is responsible for the administration of the PSSAP and the investment and management of the PSSAP Fund. The responsibilities of ARIA include the provision of information to members regarding the features of that scheme.

The PSSAP is the employer (default) fund for persons employed under the Public Service Act 1999 and any other person declared by the Minister for Finance and Deregulation. The mandated basic employer contribution for the PSSAP is 15.4% of a PSSAP member’s superannuation salary within the meaning of the PSSAP rules.

ComSuper is responsible for providing administration services to ARIA in respect of the PSSAP

The Superannuation Act 2005 and PSSAP Rules made under the PSSAP Trust Deed impose certain obligations on agencies that employ PSSAP members such as the payment of employer contributions and administration costs, the provision of information to members and the payment of interest for the late payment of contributions.

ARIA relies on agencies to provide accurate employment information about members.

Public Sector Superannuation Scheme

The Public Sector Superannuation Scheme (PSS) ) is a defined benefit scheme. It was closed to new members from 1 July 2005 with the exception of previous members who, in specific circumstances, are able to return to the scheme.

ARIA is responsible for administration of the PSS and the investment and management of the PSS Fund. The responsibilities of ARIA include the provision of information to members regarding the features of the PSS.

Under the PSS, members can make member contributions of between 2% and 10% of their superannuation salary or can elect to make no contributions. Where an agency deducts member contributions from an employee's salary, the agency is required to pay the amount to ARIA .

Agencies are also required to make payments for employer productivity contributions, employer costs, administration costs and actuarial costs in respect of employees who are PSS members.

Actuarial costs are paid directly to the Department of Finance and Deregulation. Other amounts, including member contributions, are paid to ComSuper. Member contributions and employer productivity contributions are paid into the PSS Fund, which is managed by ARIA.

In some cases, employers are also required to make payments to ARIA for additional death and invalidity cover for specific employees.

The Superannuation Act 1990 also imposes some other obligations on agencies that employ PSS members such as the provision of information to members and the payment of interest for the late payment of member contributions.

ARIA relies on agencies for the provision of accurate employment information about members.

ComSuper is responsible for providing administration services to ARIA in respect of the PSS

Commonwealth Superannuation Scheme

The Commonwealth Superannuation Scheme (CSS) was closed to new members from 1 July 1990 with the exception of previous members who, in specific circumstances, are able to return to the scheme. The CSS is a hybrid scheme including both a defined benefit and an accumulation benefit.

ARIA is responsible for administration of the CSS and the investment and management of the CSS Fund. The responsibilities of ARIA include the provision of information to members regarding the features of the CSS.

Under the CSS, members can make basic contributions equal to 5% of their superannuation salary or can elect to make no contributions. Optional supplementary contributions are also allowed.

Where an employing agency deducts member contributions from an employee's salary, the agency is required to pay the amount to ARIA. Agencies are also required to make payments for employer productivity contributions, employer costs, administration costs and actuarial costs in respect of employees who are CSS members.

Actuarial costs are paid directly to the Department of Finance and Deregulation. Other amounts, including member contributions, are paid to ComSuper. Member contributions and employer productivity contributions are paid into the CSS Fund, which is managed by ARIA.

The Superannuation Act 1976 also imposes some other obligations on agencies that employ CSS members such as the provision of information to members and the payment of interest for the late payment of member contributions.

ARIA relies on agencies for the provision of accurate employment information about members.

ComSuper is responsible for providing administration services to ARIA in respect of the CSS

Superannuation (Productivity Benefit Act 1988)

The Superannuation (Productivity Benefit) Act 1988 (the PB Act) applies to persons with no other employer-sponsored superannuation cover in respect of their Australian Government or ACT Government employment or appointment. However, it has been closed to new employees and statutory office holders since 1 July 2006.  Persons covered include certain casual and temporary employees, office holders and members of boards and commissions.  The PB Act also covered certain contractors and consultants in Australian Government or ACT Government employment.

From 1 July 2006, new employees and statutory office holders have been covered by the choice of superannuation fund arrangements under the Superannuation Guarantee (Administration) Act 1992.

Agencies were required to ensure all employees covered by the provisions of the PB Act were joined to a superannuation fund approved for the purposes of that Act as soon as possible after commencing employment and that continuing superannuation contributions are paid to the fund in respect of the employee on each payday.

Safety, Rehabilitation and Compensation Act

The Safety, Rehabilitation and Compensation Act 1988 establishes both a premium based and licensed self-insurance based workers’ compensation scheme to provided coverage for work-related injuries sustained by employees of the Commonwealth and certain private sector corporations. Members of the Australian Defence Force whose injuries have occurred on or after 1 July 2004 are covered by the Military Rehabilitation and Compensation Act 2004.

Benefits provided for under the Act include:

• medical expenses (section 16)
• compensation for injuries resulting in death (section 17)
• funeral expenses (section 18)
• incapacity payments (section 19)
• compensation for permanent impairment (section 24)
• household and attendant care services (section 29).

The Act imposes the following responsibilities on agency heads in relation to rehabilitation:

• arranging the assessment of an employee's capability to undertake a rehabilitation programme, where an employee is suffering an injury resulting in an incapacity for work or an impairment (section 36)
• if it is determined that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation programme, arranging for the provision of a rehabilitation programme by an approved programme provider (section 37)
• taking all reasonable steps to provide an employee who is undertaking, or has completed, a rehabilitation programme, with suitable employment, or assisting the employee to find suitable employment (section 40)
• complying with guidelines issued by Comcare issued under section 41 of the Act. This could include implementing a rehabilitation policy, managed rehabilitation programmes and early intervention and return to work strategies.

Occupational Health and Safety (Commonwealth Employment) Act

The Occupational Health and Safety (Commonwealth Employment) Act 1991 establishes the statutory framework to secure the health and safety of Australian Government employees, including employees of Australian Government agencies, statutory authorities and Government Business Enterprises and licensed corporations under the Safety, Rehabilitation and Compensation Act 1988. This framework complements the Commonwealth workers’ compensation and rehabilitation legislation. The Act provides that “an employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees’. An employer also has a duty to third parties to ensure that persons at or near a workplace under the employer’s control are not exposed to risk to their health and safety. Employers have an obligation to notify certain incidents to Comcare and to keep internal records of such incidents. Commonwealth employers must also report on occupational health and safety issues in their annual report in accordance with section 74 of the Act.

In 2006 the Act was amended by the Occupational Health and Safety (Commonwealth) Employment Act 2006 as well as the OHS and SRC Legislation Amendment Act 2006.

These amendments, effective from mid-March 2007 include:

• Renaming the Act to the Occupational Health and Safety Act 1991;
• Exempting employers and employees under the Act from the operation of State of Territory OHS laws unless specifically prescribed in regulations;
• Requiring employers to develop, in consultation with their employees, health and safety management arrangements (HSMAs) that will apply at their workplace;
• Providing that all employees can become health and safety representatives;
• Providing that all employees may be represented by another employee or an employee organisation during HSMA consultations; and
• Requiring employers to conduct elections for health and safety representatives

Remuneration Tribunal

The Remuneration Tribunal determines or advises on the remuneration and related terms and conditions for a wide range of the most senior Commonwealth offices. These positions include secretaries of departments, full time statutory office holders, heads of executive agencies, principal executive offices, judges, members of Parliament and members of boards and committees. The determinations of the Remuneration Tribunal are tabled in each House of the Federal Parliament and are disallowable instruments.