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Last updated: 6 December 1999
Public Service Act 1999 Advice No. 24: Miscellaneous issues
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
It has been replaced by the documents referred to in Circular 2004/9
Introduction
This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice takes effect on commencement of the legislation.
2 This advice deals with a range of miscellaneous issues and transitional provisions not covered in other advices.
3 The following issues are covered below:
- Age Retirement;
- Conversion of existing APS staff (including unattachment);
- Gazettal Requirements;
- Judgment Debts;
- Part-time Work;
- Performance of Outside Work;
- Reciprocal Arrangements;
- Returned Soldiers;
- Right of Return for Election Candidates; and
- Secretaries of Departments.
Age retirement
4 Unlike the old PS Act, the new PS Act does not prescribe a maximum retiring age. Subsection 30(1) of the new PS Act provides that an APS employee who has reached minimum retiring age will be entitled to retire at any time by notice in writing to the Head of that employee's Agency. This provision is the same in substance as the 1922 PS Act s. 76I(1) for SES, and s. 76U(1) for other officers.
5 Subsection 30(2) provides that the minimum retiring age is 55 years or such higher or lower age as is prescribed by the Public Service Regulations. No regulation to alter the minimum retiring age is envisaged at this stage.
6 Where a Secretary has determined under s. 76V(2) of the old PS Act that a non-SES officer should continue in employment in the Department beyond the maximum retirement age, and the period of employment will continue beyond 4 December 1999, under s. 5 of the PECTA Act, the officer becomes an ongoing employee in the corresponding agency as if he or she had been engaged as an ongoing APS employee under the new Act.
7 Advice No. 33 contains information on workers' compensation issues for APS employees aged 65 and over.
Conversion of existing APS staff
8 Section 5 of the PECTA Act operates to convert the status that existing APS staff have under the old PS Act into their corresponding status under the new PS Act as follows:
- a fixed term Secretary appointed under s. 37 of the old PS Act will become a Secretary of the corresponding new PS Act Department as if appointed as a Secretary under the new PS Act for a period equal to the unexpired part of the fixed term;
- a fixed term SES officer will become an SES employee in the corresponding new PS Act agency and with a corresponding classification as if engaged as an APS employee under the new PS Act for a period equal to the unexpired part of the fixed term;
- a continuing SES officer will become an SES employee in the corresponding new PS Act agency and with a corresponding classification as if engaged as an ongoing APS employee under the new PS Act;
- a non-SES officer will become a non-SES employee in the corresponding new PS Act agency and with a corresponding classification as if engaged as an ongoing APS employee under the new PS Act;
- a term employee (defined as a person who was a short term or fixed term employee for the purposes of Division 10 of Part III of the old PS Act or a person employed under s. 82AG of the old PS Act) will become a non-SES employee in the corresponding new PS Act agency and with a corresponding classification as if engaged as an APS employee under the new PS Act for the unexpired part of the period of engagement under the old PS Act;
- a continuing employee will become a non-SES employee in the corresponding new PS Act agency and with a corresponding classification as if engaged as an ongoing APS employee under the new PS Act; and
- an overseas engaged employee (defined as a person engaged under s. 82AF of the old PS Act) will become a non-SES employee in the corresponding new PS Act agency and with a corresponding classification as if engaged as an a locally engaged employee under the new PS Act. Such a person is not an APS employee.
9 In addition, a transitional regulation will be made to convert any SES employees engaged under Division 10 of Part IV of the old PS Act as a short term or fixed term employee to their corresponding status under the new PS Act ie as an SES employee in the corresponding new PS Act agency and with a corresponding classification as if engaged as an APS employee under the new PS Act for the unexpired part of the period of engagement under the old PS Act.
10 For the purposes of paragraph 8 and 9 above:
- Corresponding agency
- in relation to an officer, means the agency in which an officer was substantively attached immediately before 5 December 1999. Note: (1) where the officer was on temporary transfer to another agency, and this transfer continues beyond 5 December 1999, transitional regulations will allow the temporary transfer to continue (for further information see Advice Number 6); (2) arrangements for unattached officers are outlined in paragraphs 12-13 below;
- in relation to an employee, means the agency in which the employee was employed immediately before 5 December 1999; and
- Corresponding classification will be defined in regulations made under the PECTA Act to ensure that the classification a person held under the old PS Act equates clearly with a classification set out in the Classification Rules made under s. 23 of the new PS Act.
11 Except where the PECTA Act and related transitional provisions provide otherwise, the new PS Act will apply to all employees converted under the above arrangements in the same way as if they had actually been engaged or appointed under the new PS Act.
Unattachment
12 As the new PS Act does not refer to the concept of office, except in relation to Agency Heads, the concept of unattachment or unattached staff, provided for by s. 33C of the old PS Act, will not apply.
13 The PECTA Act, however, provides that an unattached officer under the old PS Act who was included in a Department under s. 33C(2) of the old PS Act immediately before 5 December 1999, is included in:
- the agency that corresponds to that Department; or
- if that Department no longer existed immediately before 5 December 1999 - the agency that corresponds to the old PS Act Department that was responsible immediately before 5 December 1999 for the matter to which the officer's duties related, or mainly related, at the time when the officer last became an unattached officer.
Gazettal requirements
14 A transitional regulation will preserve the requirement under s. 92 of the old PS Act to gazette a range of actions, including in relation to appointment, promotion, transfer, dismissal and retirement, where those actions were made before 5 December 1999 but not yet gazetted.
15 The new PS Regulations will require notification in the Commonwealth of Australia Public Service Gazette of SES and non-SES engagements, promotions and some other movements, and terminations of APS employees under the new PS Act. Advice No. 31 will provide further information on these gazettal requirements.
Judgment debts
16 Regulations under s. 75 of the new PS Act will provide for deductions to be made from the salary of a Secretary, the Head of an Executive Agency or an APS employee in order to satisfy a judgment debt received on and from 5 December 1999. The new regulations will establish a "one-off" fee of $35 in connection with the deductions made.
17 A transitional regulation will be made to preserve the power under s. 64 of the old PS Act to continue existing deductions or commence new deductions for judgment debts received prior to 5 December 1999.
Part-time work
18 The provisions of the old PS Act in relation to the creation and abolition of part-time offices are no longer relevant, given the abolition of the concept of office. Clause 11 of the Australian Public Service Award 1998 deals with regular part-time employment for those agencies which have not dealt with this matter in their certified agreements or AWAs.
Performance of outside work
19 The old PS Act (s. 91) required APS staff to seek written approval from their Agency Head before engaging in outside work. The general principles in relation to these matters were as follows (Guidelines on Official Conduct 1995 pp75-76):
As a general proposition, public servants should not seek to engage in outside employment if that employment:
- would place them in a conflict with their official duties, or would lead to the perception that they have placed themselves in conflict with their official duties; or
- is likely to affect their efficiency in the performance of their official duties.
Outside employment is to be performed wholly in the public servant's private time.
In considering applications for permission to engage in outside employment, departments will look to strike a proper balance between the interests of the Commonwealth as an employer and the rights of public servants to lead their private lives free of unnecessary restrictions. It should be noted that public servants may not accept outside payment for activities which would be regarded as part of their normal duties.
20 The new PS Act has no specific provision dealing with outside work. The employer powers of an Agency Head under s. 20 of the new PS Act, however, enable an Agency Head to require that an APS employee not engage in employment outside the agency without permission.
21 APS employees engaging in outside employment need to remember all the provisions of the APS Code of Conduct (see Advice No. 4).
Reciprocal arrangements
22 The old PS Act provided for arrangements between the Commonwealth and the States or Territories for APS officers and State or Territory officers to be employed under reciprocal services arrangements (Division 9 of Part III - ss. 77-81). A transitional regulation will preserve any arrangements already agreed between the Commonwealth and a State or Territory Government.
23 Section 71 of the new PS Act provides for similar, but streamlined, arrangements which will enable the Prime Minister to arrange with an appropriate authority of a State or Territory:
- for an APS employee to perform services for the State or Territory as an APS employee; or
- for a State or Territory employee to perform services in an agency as a State or Territory employee.
24 The effective operation of the arrangements may depend on complementary provisions being included in the relevant State or Territory legislation. Legal advice should be sought on this issue.
25 If the arrangement provides for the Commonwealth to reimburse the State or Territory, there will need to be some available appropriation for payment to the State or Territory.
Returned soldiers
26 The new PS Act does not contain an equivalent provision to s. 47A of the old PS Act which provided that where an applicant who was a returned soldier and an applicant who was not a returned soldier were placed equal in order of merit for appointment to the APS, preference be given to the returned soldier.
Right of return for election candidates
27 Section 32 of the new PS Act provides a similar power to s. 47C (old PS Act "officers") and s. 82B (old PS Act "employees") of the old PS Act in relation to the re-engagement rights of persons who resign from the APS to contest an election.
28 This section provides that a person is entitled to be engaged as an APS employee if the person:
- resigned in order to contest an election which is prescribed by the regulations;
- the resignation took effect not earlier than 6 months before the closing date for nominations for the election; and
- person was a candidate at the election but failed to be elected.
29 The new PS Regulations will set out the requirements, including time limits, for engagement. Specifically, they will:
- prescribe the following elections;
- an election for a member of a House of the Parliament of the Commonwealth or of a State;
- an election for a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory;
- a zone election under Division 7 of Part 3 of the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act); and
- an election for a member of the Torres Strait Regional Authority, established under section 142 of the the ATSIC Act;
- give a person to whom s. 32 applies an entitlement to be again engaged as an APS employee if within the 'required time', the person applies to the Agency Head of the Agency in which the person was last employed, provided that where the person was engaged for a specifed term or the duration of a specified task and at the time the person applies to be (re)engaged, the term (including any extension of the term) has expired or the task has been completed, the person is not entitled to be engaged;
- define 'required time' as follows:
- for a person who contested an election and the result of the election is not disputed, 2 months after the declaration of the result of the election; and
- for a person who contested an election the result of which is disputed: :
- if the election was an election for a member of a House of the Parliament of the Commonwealth or of a State; or an election for a member of the Legislative Assembly of the Australian Capital Territory or the Northern Territory, 2 months after a court of disputed returns decides the petition disputing the result, or the petition is withdrawn or lapses; and :
- if the election was a zone election, or an election for a member of the Torres Strait Regional Authority, under the ATSIC Act, 2 months after the Federal Court of Australia makes a final decision on the petition disputing the result, or the petition is withdrawn;
- provide that, where a person is entitled to be again engaged as an APS employee under
these provisions:
- the person must be engaged on the same basis (i.e. ongoing, specified term etc.) as the person was engaged prior to resigning to contest the election;
- the person must be engaged at the same classification that the person had before resigning to contest the election (the previous classification);
- the person must be assigned duties that are the same as, or similar to, the duties the person had before resigning to contest the election or, if such duties are unavailable, other duties at the previous classification;
- the person must be engaged on:
- the same terms and conditions of employment that applied to the person when the person resigned; or
- if the remuneration, or another term or condition, applying to the person's previous classification has changed since the person resigned, the changed terms and conditions; and
- the period between the person's resignation and again being engaged as an APS employee counts as service as an APS employee for the accrual of leave entitlements.
30 PSMPC Circular 1993/4 advised agencies of the 1992 High Court decision in Sykes v Cleary and Others concerning public officials nominating for election to Federal Parliament.
Secretaries of Departments
31 Part 7 of the new PS Act sets out arrangements for Secretaries of Departments. The concept of office has been retained only for the office of Secretary and other Agency Heads (including the Public Service Commissioner) and the Merit Protection Commissioner.
32 Under s. 58 of the new PS Act, the Prime Minister will be able to appoint a person to be the Secretary of a Department for a period of up to five years. Section 61 provides for the remuneration and other conditions of appointment to be determined by the Prime Minister, following advice obtained from the Remuneration Tribunal. Such determinations will be published in the Gazette.
33 As mentioned in paragraph 8 above, a fixed term Secretary appointed under s. 37 of the old PS Act will become a Secretary of the corresponding new PS Act Department as if appointed as a Secretary under the new PS Act for a period equal to the unexpired part of the fixed term. The existing terms and conditions of fixed term Secretaries as at 4 December 1999 will be preserved by transitional regulations (including the terms and conditions provided for under Remuneration Tribunal Determination 1999/04) and will continue until a determination is made under s. 61 of the new PS Act.
34 In addition, transitional regulations will deem any acting appointments of Secretary made under s. 39 of the old PS Act before 5 December 1999 to be acting appointments under s. 62 of the new Act on the terms that applied to the appointment immediately before 5 December 1999.
Further Advice
35 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 (02) 6202 3859. APS staff who contact the PSMPC will be asked to direct their enquiries to the appropriate area of their own agency.
36 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
30 November 1999
