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Last updated: 3 December 1999

Public Service Act 1999 Advice No. 17: Reciprocal mobility - Replacement arrangements

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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.

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 Information on the arrangements that will replace the officers' mobility provisions under Part IV of the old PS Act is contained in Advice No 27 - Regulations made under sections 6 and 7 of the PECTA Act (Part IV Mobility).

The reciprocal mobility arrangements that will cease to apply under the new PS Act

3 The reciprocal mobility arrangements with three non-APS Commonwealth organisations - the Australian Trade Commission, the Albury-Wodonga Development Corporation and the Australian Security Intelligence Organization - are authorised in the enabling legislation of the organisations concerned; s. 22 of the Albury-Wodonga Development Act 1973, s. 63 of the Australian Trade Commission Act 1985 and s. 90A of the Australian Security Intelligence Organization Act 1979. 4 The APS also has reciprocal mobility arrangements in place with the Australian Capital Territory Public Service (ACTPS) which are set out in s. 6 of the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 (ACTGS Act).

5 Under all of these arrangements, staff of the organisations concerned have been able to apply and compete on merit for all vacancies advertised in the Gazette as being available for ongoing filling on the same basis as APS employees.

6 A person from one of those bodies who is selected for an APS vacancy is appointed to the APS under the usual appointment powers (subject to satisfactory completion of normal pre-appointment requirements). Such an appointment is regarded as a deemed promotion which must be notified as such in the Gazette and is subject to appeal/review (whichever is applicable) by APS employees who applied for the vacancy.

7 The PECTA Act repeals all of these reciprocal mobility arrangements set out in each of the Acts mentioned in paragraph 3 above. As a result, these arrangements will cease to apply with effect from 5 December 1999.

8 The information in this advice replaces that contained in circulars 1995/20, 1997/5 and 1998/11 about mobility arrangements between the APS and the ACTPS. Circular 1999/5, which deals with the issue of recognition of ACTPS service for severance purposes in the APS, remains current - see Attachment A.

The reciprocal mobility arrangements that will apply under the new PS Act

Arrangements with non-APS Commonwealth bodies

9 While the PECTA Act has the effect of abolishing the reciprocal mobility arrangements in place with the three non-APS Commonwealth bodies listed in paragraph 3, staff of the three bodies will continue to be able to apply and compete on merit for all ongoing APS vacancies advertised in the Gazette.

Under the new PS Act, the Public Service Commissioner is able to issue Commissioner's Directions on a range of matters, including how employment opportunities are to be advertised.
Chapter 4 of the Commissioner's Direction will provide that where a person is to be engaged as an ongoing employee, or where an ongoing employee is to be promoted, an opportunity to apply for the employment or similar employment must be notified in the Gazette as open to all eligible members of the community. Agency Heads may, however, decide on the basis of cost or operational efficiency to only offer the employment opportunity to existing APS employees. Where this occurs, any person who falls into one of the categories mentioned in Schedule 2 of the Direction is considered to be an APS employee for the purpose of applying for employment opportunities;
- Schedule 2 of the Commissioner's Direction will include 'a staff member of the Australian Trade Commission'; 'a staff member of the Albury-Wodonga Development Corporation'; and 'an officer of the Australian Security Intelligence Organization' as persons who may apply for such employment opportunities.
Where a person from one of these organisations is selected for a job in the APS, the person will be subject to the normal rules applying to engagement under s. 22 of the new PS Act (see Advice No. 6 Staffing Action: Ongoing Employees (non-SES)) and the engagement is not subject to appeal.

10 The terms of the engagement of a person from one of these organisations will be a matter for negotiation between the APS Agency and the individual concerned.

Arrangements with the ACT Public Service

11 As noted above, the PECTA Act will also repeal s. 6 of the ACTGS Act and thereby remove the reciprocal mobility provisions with the ACTPS from Commonwealth legislation.

12 The Commissioner's Directions, however, will provide that staff members of the ACTPS will be able to apply and compete on merit for all ongoing APS vacancies advertised in the Gazette in the same way as staff of Commonwealth organisations which formerly had reciprocal mobility arrangements with the APS may (see paragraph 9 above). This will be authorised by the inclusion of 'an officer of the ACT Public Service' in Schedule 2 of the Commissioner's Direction.

13 ACTPS staff who are selected for a job in the APS will be subject to the normal rules applying to engagement as set out in s. 22 of the new PS Act (see Advice No. 6 Staffing Action: Ongoing Employees (non-SES)).

14 The enagement is not subject to appeal, and the terms of the engagement will be a matter for negotiation between the APS Agency and the individual concerned, although the ACTGS Act will continue to provide certain entitlements in relation to Recreation Leave for ACTPS staff moving to the APS:

s. 25 of the ACTGS Act deals with the Recreation Leave entitlements of ACTPS staff who join the APS and provides that the Recreation Leave and pro rata Recreation Leave entitlements of such persons are carried over to the APS;
the PECTA Act amends s. 25 of the ACTGS Act to preserve this provision and to ensure that it continues to apply to engagements of ACTPS staff made under s. 22 of the new PS Act.

15 A separate advice on Sick Leave entitlements for ACTPS staff moving to the APS under the new PS Act will be provided by DEWRSB at a later date.

16 The treatment of prior ACTPS service for long service leave purposes is governed by the provisions of the Long Service Leave (Commonwealth Employees) Act 1976.

17 The PECTA Act makes a number of other changes to the ACTGS Act relating to the movement of persons from the ACTPS to the APS:

section 8 of the ACTGS Act, which provides the transfer of personal information between the APS and the ACTPS in situations where a person moves from one Service to another and it is reasonable and necessary for the information to be transferred in connection with the person's employment in the gaining Service, is amended to make it clear that the provision only applies to movements that take place before the commencement of the new legislation;
the 'make available' provision in s. 10 of the ACTGS Act, which allow staff of either Service to be temporarily made available to the other Service is amended slightly to reflect the changed terminology of the new PS Act, but otherwise the provision continues in force;
Part 3 of the ACTGS Act, which dealt with mobility arrangements between the Parliamentary Departments and the ACTPS, is repealed; and
section 24 of the ACTGS Act, which preserved the Part IV mobility rights for certain persons covered by the ACTGS Act, is also repealed.

Transitional provisions

18 Transitional regulations made under the PECTA Act will have the effect of preserving any appointments made to the APS prior to 5 December 1999 but not effective at that date under any of the following provisions:

section 22 of the Albury-Wodonga Development Act 1973;
section 63 of the Australian Trade Commission Act 1985
section 90A of the Australian Security Intelligence Organization Act 1979; or
section 6 of the Australian Capital Territory Government Service (Consequential Provisions) Act 1994.

19 The requirements under the relevant legislation that such an appointment be notified in the Gazette as a deemed promotion and to be subject appeal/review by APS applicants will also continue to apply.

20 When the appointment is effective, the person will be deemed to be engaged as an ongoing employee under s. 22(2)(a) of the new PS Act at the time the appointment would have normally taken effect under the relevant provision. Such an engagement will not be able to be made on probation if that could not have occurred under the relevant provisions identified in paragraph 18 above.

Arrangements for APS employees moving to the ACTPS

21 APS employees continue to have the right to apply for vacancies in the ACTPS but these vacancies will be advertised only in the ACT Gazette from January 2000.

22 APS employees will continue to be appointed to the ACTPS under the provisions set out in the ACT's Public Sector Management Act 1994.

Further advice

23 Urgent enquiries from Comnet members and their senior staff should be made by E-mail to psact@apsc.gov.au or the PSMPC's Helpline on 6202 3859. APS staff who contact the PSMPC will be asked to direct their enquiries to the appropriate area of their own Agency.

24 Advice from DEWRSB is accessible through the government employment web sites at www.dewrsb.gov.au or through the PSMPC's web site.

Jeff Lamond
Team Leader
Staffing, Structures and Performance Team

2 December 1999

Attachment A: What ACTPS service is recognised for severance pay purposes in the APS?

This advice was originally contained in PSMPC Circular 1999/5 dated 25 May 1999.

Background

The purpose of this advice is to clarify the arrangements in place concerning the recognition of service with the ACT Public Service (ACTPS) as service for severance pay purposes in the Australian Public Service (APS).

2. The ACTPS was established as a separate entity on 1 July 1994. On that date persons working in the APS on ACT functions ceased, by operation of Commonwealth legislation, to be officers or employees of the APS. The people concerned were immediately appointed to, or employed in, the ACTPS by operation of ACT legislation.

3. At the time of the creation of the ACTPS, legislation was enacted which established reciprocal mobility arrangements between the two Services. The key elements of those arrangements are:

a right for officers of each Service to apply and compete on merit for non-Senior Executive Service vacancies in the other Service which are advertised for permanent filling; and
portability of certain benefits or recognition of service for certain purposes on movement between the two Services under the reciprocal mobility arrangements.

Recognition of service for severance pay - Commonwealth arrangements

In 1994 it was agreed between the Commonwealth and the unions that the Commonwealth would recognise:

APS service prior to 1 July 1994; and
ACTPS service between 1 July 1994 and the person's subsequent appointment to the APS

as service for severance pay purposes for all staff who transferred to the ACTPS on 1 July 1994, regardless of whether they joined the ACTPS from the APS or from a Territory-owned authority, if their APS, ACTPS and APS periods of service were continuous.

5. These arrangements are not covered by legislation but were given effect by an Administrative Instruction made by the Public Service Commissioner under section 76X of the Public Service Act 1922. These arrangements also reflect the principle that the APS only recognises service with non-APS Commonwealth organisations for severance pay purposes where staff move as a result of the compulsory transfer of a function - see subclause 11.4.8 of the former APS General Employment Conditions Award 1995 and clause 23.4.6 of the Australian Public Service Award 1998.

6. Under the arrangements agreed with the ACTPS, the Commonwealth does not recognise either combined APS and ACTPS service, or ACTPS only service, for severance pay purposes for persons who join the ACTPS after 1 July 1994 and later join (or rejoin) the APS, even though such periods of service may be continuous. This includes APS staff who exercise rights to deemed promotion or transfer to the ACTPS after 1 July 1994.

7. Persons who leave the APS to join the ACTPS in this manner, and subsequently rejoin the APS, are treated in the same way as employees of other State Governments who obtain employment in the APS, i.e. the only service that is recognised for severance pay purposes is the current period of APS employment.

Recognition of service for severance pay purposes - ACTPS arrangements

8. In 1994 the ACTPS agreed that, for APS employees compulsorily transferred on 1 July 1994 and for APS employees moving to the ACTPS under the reciprocal mobility arrangements after that date, it would recognise any continuous prior APS service for severance pay purposes where those employees were made redundant by the ACTPS.

9. For persons who:

joined the ACTPS on or after 1 July 1994; and
are subsequently appointed to the APS and retrenched;

the ACTPS has now advised that it will pay a severance benefit in respect of ACTPS service where this is not recognised as service for severance pay purposes by the APS, but it will not include payment for any previous periods of APS service that are not recognised as service for severance pay purposes by the APS. The ACTPS has also advised that the amount payable by the ACTPS to any retrenched APS employee under this commitment will not exceed an amount of two weeks' pay for each completed year of ACTPS service (plus a pro rata amount for completed months of service) up to a maximum of 48 weeks' salary. Provisions in agency agreements

10. When these arrangements were agreed in 1994 each Service had its own Service-wide redeployment and redundancy arrangements. Since that time, however, both the APS and the ACTPS have moved to an environment where comprehensive terms and conditions of employment (including redeployment and retirement arrangements) are determined more and more at the agency level under agency specific agreements. In the APS this means that:

while severance pay (and therefore the definition of service for severance pay purposes) continues to be an allowable award matter and is prescribed in the Australian Public Service Award 1998 (which has replaced GECA), those provisions only operate in agencies which do not have an agency specific agreement; and
APS agencies and their staff are able to agree to vary the former Service-wide arrangements through Certified Agreements or Australian Workplace Agreements.

11. It should be noted, however, that agency level agreements cannot override or displace the reciprocal mobility arrangements which are contained in the Australian Capital Territory Government Service (Consequential Provisions) Act 1994.

12. In the light of these changed circumstances, individuals moving from the ACTPS to the APS and vice versa need to know whether the Service-wide arrangements for the recognition of prior APS or ACTPS service apply or whether the agency they are proposing to join recognises, or is prepared to recognise, their prior APS or ACTPS service for severance pay purposes. Individuals will need to resolve these issues on their own behalf.

Advice to staff

13. It is important that staff who are intending to move from the APS to the ACTPS, or have moved from the APS to the ACTPS and then back to the APS under the reciprocal mobility arrangements, are made aware of the information in this circular. It is suggested that APS agencies advise persons contemplating a move either to or from the ACTPS that they need to clarify the extent to which service with either jurisdiction will be recognised for severance pay purposes should they be retrenched. It is also suggested that agencies:

provide clear advice on the arrangements in place concerning the recognition of prior ACTPS service for severance pay purposes to APS employees who have such service and who are being offered voluntary retrenchment; and
encourage APS staff with prior ACTPS service who are offered voluntary retrenchment to contact the ACTPS for details of the severance payment (if any) they will receive in respect of the periods of service not recognised for severance pay purposes by the APS.