Public Service Act 1999 Advice No. 26: Transitional provisions for appeals, grievances, other rights of review and joint selection committees

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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 The purpose of this advice is to provide information on the transitional arrangements for grievances and appeals lodged prior to commencement of the new PS Act.

3 This advice should be read in conjunction with the following separate advices:

Advice No 5: Breaches of the Code of Conduct;
Advice No 6: Staffing Actions Ongoing Employees (non-SES);
Advice No 13: Review of Actions;
Advice No 14: Promotion Reviews;
Advice No 15: Independent Selection Advisory Committees; and
Advice No 27: Regulation under sections 6 & 7 of PECTA (former Part IV Mobility).

Background

4 The PECTA Act, which comes into operation when the new PS Act commences, repeals both the Public Service Act 1922 (the old PS Act) and the Merit Protection (Australian Government Employees) Act 1984 (the Merit Protection Act). It is intended that regulations made under the PECTA Act will, in general, provide for all grievance and appeal matters in train under the old PS Act or the Merit Protection Act, as at commencement day of the new PS Act, to be finalised under the procedures and processes of the repealed Acts. With one change, the existing review framework established under the Merit Protection Act will be retained, in full or in part, for as long as is necessary for these purposes. The change is that the functions of the Merit Protection and Review Agency (MPRA) under the Merit Protection Act, as it is continued in force, will be performed by the Merit Protection Commissioner in lieu of the MPRA. The MPRA will consequently cease to exist on commencement of the new PS Act.

5 Under section 5 of the PECTA Act the person holding office as the Merit Protection Commissioner under the Merit Protection Act becomes the Merit Protection Commissioner under the new PS Act. Consequently, from 5 December 1999, the Merit Protection Commissioner will be responsible for both the transitional functions arising from the repeal of the Merit Protection Act and for the functions under section 50 of the new PS Act.

Promotion appeals

6 It is intended that promotion appeal rights in relation to appealable promotions made under the old Act and not finalised before commencement of the new PS Act will be preserved. The Merit Protection Commissioner will establish Promotion Appeal Committees (PACs) to determine promotion appeals:

made, but not determined, before commencement of the new PS Act;
made after commencement of the new PS Act against those appealable promotions which were
- approved (i.e. where a promotion instrument has been signed by an appropriately authorised person before 5 December 1999) but not gazetted before commencement of the new PS Act; and
- gazetted, but the appeal period had not expired before commencement of the new PS Act.

7 Where a promotion is made and/or takes effect following the determination of the PAC after commencement date of the new PS Act, the promotion will then be deemed to be an assignment under sections 25 of the new PS Act (and a movement under section 26 if between agencies).

8 Under the new PS Act promotion at the APS 1-6 levels remains subject to a right to a determinative review.

Temporary performance appeals

9 It is intended that temporary performance appeal rights in relation to appealable directions to perform duties of a higher office will be preserved for directions notified within 14 days prior to commencement of the new PS Act. The Merit Protection Commissioner will establish Promotion Appeal Committees to determine appeals:

made, but not determined, before commencement of the new PS Act; and
in relation to directions notified under regulation 116B of the Public Service Regulations (the old PS Regulations) not more than 14 days before the commencing date of the new PS Act.

10 The intention is that, in the above circumstances, transitional regulations made under the PECTA Act will provide for an appeal to be determined by the PAC and, if allowed, for the replacement direction to take effect as if the appeal had been allowed under regulation 116E of the old PS Regulations.

11 It should be noted that under the new PS Act there will be no right of appeal against temporary assignment of duties.

Review of non-appellable promotions

12 It is intended to preserve review rights in relation to non-appellable promotions approved prior to commencement of the new PS Act whether the promotion is gazetted before or after commencement.

13 Agency Heads should take any necessary consequential action as a result of an application for review as though the old PS Act continued in force.

14 Following commencement of the new PS Act, promotion decisions at Executive Level 1 and 2 will be subject to a right to a non-determinative procedural review under the new review of action regulations.

Joint Selection Committees

15 Where a written request from an agency to establish a Joint Selection Committee (JSC), in accordance with section 50DA(4)(d) or section 50DB(3)(c) of the old PS Act, is received by the MPRA prior to commencement of the new PS Act, or where a vacancy has been advertised prior to the commencement of the new PS Act as to be filled using a JSC, the Merit Protection Commissioner will establish a JSC and that committee may complete its functions under the old PS Act. The old PS Act will also continue to apply for the purposes of filling the vacancies.

16 Once finalised, the promotion will be deemed to be an assignment under section 25 of the new PS Act and, if the promotion is to another agency, a movement under section 26 of the new PS Act.

17 Under the new PS Act agencies will no longer be able to request the MPRA to establish JSCs. Instead agencies will be able to request the Merit Protection Commissioner to constitute an Independent Selection Advisory Committee which has similar functions to a JSC. Advice Number 15, Independent Selection Advisory Committees, provides further information.

Disciplinary appeals

18 The intention is that where charges have been laid prior to the commencement of the new PS Act, any finding of misconduct subject to a penalty which currently gives rise to a right of appeal will be appealable under regulations made under the PECTA Act as if the old Act continued in force. The Merit Protection Commissioner will establish Disciplinary Appeal Committees (DACs) to hear appeals lodged, but not completed, before commencement of the new PS Act and to determine appeals made after commencement where charges have been laid before commencement. This means that an Agency Head may be required to take action as if the old PS Act continued in force for some time after commencement of the new PS Act. For example, if an authorised officer has laid charges before the date of commencement of the new PS Act but an inquiry has not commenced, an Agency Head will need to conduct an inquiry as if section 62 (inquiries into misconduct-officers) of the old PS Act, or regulation 163 (inquiries into charges against unattached officers) of the old PS Regulations, as the case may be, were in force.

19 Under the new PS Act DACs will be abolished. A determination that an employee has breached the Code of Conduct or a sanction imposed for a breach of the Code of Conduct will be subject to a non-determinative right of review by the Merit Protection Commissioner.

Grievances

20 The intention is that grievance rights will be preserved under transitional regulations made under the PECTA Act, and the Merit Protection Act will remain in force where an application for investigation has been made before the commencement of the new PS Act under Division 3 of Part III of the old PS Regulations, or where an application has been made direct to the MPRA under section 50 of the Merit Protection Act before commencement date.

21 An Agency Head should investigate an application, where made under regulation 83 of the old PS Regulations before commencement of the new PS Act, in accordance with the provisions of the old PS Regulations. Likewise, investigations in train at commencement should proceed to finality under the old PS Regulations.

22 After commencement of the new PS Act, an Agency Head should forward to the Merit Protection Commissioner applications for review in accordance with regulation 85 of the old PS Regulations where the employee remains aggrieved following an investigation under regulation 83 of the old PS Regulations. This action should be taken regardless of whether the investigation under regulation 83 of the old PS Regulations was completed before or after commencement of the new PS Act.

23 Where, after commencement of the new PS Act, the Merit Protection Commissioner makes a report to an Agency Head following an investigation under regulation 84 of the old PS Regulations or under section 50 of the Merit Protection Act, the Agency Head may make such comments concerning the report to the Merit Protection Commissioner as he or she wishes in accordance with section 51(8) of the Merit Protection Act.

24 Following commencement of the new PS Act general employment grievances will be considered under the new review of action regulations. Re-appointment Review Committees

25 The intention is that applications for re-appointment made before the commencement of the new PS Act will be dealt with to finality. The Merit Protection Commissioner will establish Re-appointment Review Committees to inquire into applications made to the Public Service Commissioner before commencement of the new PS Act.

26 Under the new PS Act there will no longer be a right to apply for a determination by a Re-appointment Review Committee. For mobility matters after commencement see Advice Number 27 (Regulation under sections 6 & 7 of PECTA (former Part IV Mobility)).

Re-integration Assessment Committees

27 The intention is that applications for re-integration under sections 17 or 24 of the Members of Parliament (Staff) Act 1984 (MOP(S) Act) made:

before commencement of the new PS Act; or
after commencement of the new PS Act where termination occurred prior to commencement of the new PS Act and the application is made within the period for applications set in the MOP(S) Act

will be dealt with to finality. The determination of the Re-integration Assessment Committee will take effect (or have been deemed to have taken effect) upon termination of the officer's employment under sections 16 and 23 of the MOP(S) Act.

28 The PECTA Act repeals sections 17 and 24 of the MOP(S) Act and, save for the specific circumstances mentioned in the above paragraph, there will be no right to apply for a determination by a Re-integration Assessment Committee after commencement of the new PS Act.

Redeployment and retirement appeals

29 The intention is that redeployment and retirement appeal rights will be preserved in relation to instruments of reduction in classification signed before commencement of the new PS Act and that the Merit Protection Commissioner will establish Redeployment and Retirement Appeal Committees to determine those matters. Retirement decisions will continue to be dealt with by the Australian Industrial Relations Commission.

30 Under the new PS Act there will no longer be a right of appeal to a Redeployment and Retirement Appeal Committee. Those actions which would have been reviewable under these appeal provisions will now be reviewable under the new review of action regulations.

Functions performed on request

31 Where the MPRA has received a request in writing prior to the commencement of the new PS Act to perform employment related functions, the existing discretion to undertake the task will remain to be exercised by the Merit Protection Commissioner. Where, before commencement of the new PS Act a task is being performed in response to a request made to the Agency, the functions under the Merit Protection Act will be performed by the Merit Protection Commissioner.

32 Under the new PS Act the Merit Protection Commissioner will have the discretion to perform certain employment related functions on a fee-for-service basis.

Advice on rights of review

33 The Merit Protection Commissioner will provide advice to employees in relation to rights of review under the Merit Protection Act and the PECTA Act both before and after commencement of the new PS Act.

Further advice

34 PSMPC contact is ph (02) 6202 3815.

Alan Doolan
Merit Protection Commissioner

25 November 1999