Public Service Act 1999 Advice No. 34: Prime Minister's Public Service Directions 1999

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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.

Background

2. Section 21 (1) of the new PS Act enables the Prime Minister to issue general directions in writing to Agency Heads relating to the management and leadership of APS employees. This advice outlines the requirements of the Prime Minister's Public Service Directions and provides guidance to Agency Heads in exercising their employment powers.

3. The Prime Minister will make two directions under the new PS Act.

4. The advice is divided into two parts:

Part One deals with leave without pay for APS employees to take up statutory appointments, or employment under the Members of Parliament (Staff) Act 1984 (MoP(S) Act), or employment under the Governor-General Act 1974 (G-G Act).
Part Two addresses engagement of persons to undertake APS-wide training schemes.

Arrangements under Part IV (mobility provisions) of the Public Service Act 1922

5. Under the provisions of Division 2 of Part IV of the Public Service Act 1922 (mobility provisions), an APS officer seeking to take up employment under section 17 or section 24 of the MoP(S) Act , or section 13 of the G-G Act or appointment as a Commonwealth office holder was given (automatic) approval to take up the employment because the Secretary could not refuse to release the officer.

6. Whilst the APS officer continued to be employed in the non-APS Commonwealth authority, the officer's period of employment counted for the purpose of accrual of recreation leave credits and sick leave credits, as if the employment were service as an APS officer. In addition, at the end of their period of employment with the non-APS Commonwealth authority, the APS officer was able to resume duty in the APS at their former classification level attained prior to, or during, that leave.

7. The right of APS officers, under the MoP(S) Act, to apply to a Re-integration Assessment Committee (RAC) for review of their APS classification will cease with effect from the commencement of the new PS Act. Transitional regulations will allow for the determination of applications made prior to the commencement date and for the determination of applications made within the time periods specified in the MoP(S) Act where the termination of employment under the MoP(S) Act occurred prior to the commencement date ie within 30 days or such longer period as the Merit Protection Commissioner allows.

8. There are no equivalent mobility provisions in the new PS Act. The purpose of the Prime Minister's Public Service Directions on leave for employment is to enable an APS employee to gain leave of absence to take up certain types of employment with a non-APS Commonwealth employer and to return to the APS at the end of that period of leave without pay.

Part 1 - Leave without pay for certain Commonwealth employment

9. The Joint Committee of Public Accounts (JCPA) Report 353 (recommendation 19, clause 11.44) of September 1997, recommended that the Prime Minister should exercise his power under clause 21 of the Public Service Bill 1997 to issue a general direction to Agency Heads stating that Agency Heads must grant leave without pay to APS employees to take up statutory appointments, employment under the MoP(S) Act or employment under the G-G Act. The direction should cover existing APS staff who may need to seek an extension to their current arrangements as well as staff seeking to move to such employment in the future. The Government accepted the recommendation.

10. Under the Prime Minister's Public Service Directions, an Agency Head must grant leave without pay to an APS employee who applies for leave without pay to undertake employment:

under section 13 or section 20 of the MoP(S) Act, or
under section 13 of the G-G Act, or
in a full-time statutory appointment, or
as a continuation of employment, in any of the above.

Leave credits

11. On commencement of the new PS Act, it will not be possible to guarantee recognition of existing APS leave credits for APS employees who are granted leave without pay in accordance with the Prime Minister's Public Service Directions.

12. The Members of Parliament Staff (Commonwealth) Certified Agreement 1999-2000 does, however, state in paragraph 50.4 "Employees who are permanent officers of the APS shall have all their leave credits recognised on appointment under the MOP(S) Act".

13. Similarly, the Office of the Official Secretary to the Governor-General Agreement 1998-99 at paragraph 32.1 states " A new employee recruited directly from an Australian Public Service Office shall have his or her credit of annual leave and sick leave accrued in the previous APS Office recognised by the Office."

14. In regard to statutory appointments, Remuneration Tribunal Determination 1994/33 (Recreation Leave for Certain Full-time Public Office Holders) includes provisions for the recognition of APS recreation leave credits for certain full-time office holders within jurisdiction of the Remuneration Tribunal. It is suggested that APS employees clarify the issue of recognition and access to their existing APS leave credits before taking up any statutory appointment. If certain leave credits are not recognised, the APS employee may need to negotiate access to their leave credits as part of the terms and conditions of the appointment. A copy of Remuneration Tribunal Determination 1994/33 is attached. Any existing rights of existing Statutory Office Holders are of course unaffected.

15. Access to, and accrual of, long service leave is subject to the Long Service Leave (Commonwealth Employees) Act 1976.

Transitional provisions

16. APS employees who are currently employed under sections 13 or 20 of the MoP(S) Act or section 13 of the G-G Act or who occupy a 'Commonwealth office', as defined under section 87 (1) of Part IV of the Public Service Act 1922, will be covered by the provisions of section 6 of the Public Employment (Consequential and Transitional) Amendment Act 1999 (PECTA Act), on commencement of the PECTA Act. The relevant parts of section 87 (1) of the Public Service Act 1922 are attached.

17. On commencement of the PECTA Act, those persons covered by section 6 (known as a first-tier person) will, for a transitional period of three years:

be deemed to be an APS employee on leave without pay; and
have the period of service while employed under 13 and 20 of the MoP(S) Act or section 13 of the G-G Act or whilst they continue to occupy the 'Commonwealth office' counted, for the purposes of accrual of recreation leave and sick leave credits, as if it were in service as an APS employee.

18. A first-tier person is taken to have resigned as an APS employee at the end of the transitional period unless, before the end of the transitional period:

the person has given notice in writing to the Agency Head, stating that the person intends to resume duties as an APS employee on the first working day after the end of the transitional period; or
the person has been granted leave for a period that consists of, or includes, the first working day after the end of the transitional period. Statutory Office Holders should seek this leave before their transitional period expires.

19. If a person:

gives a notice under paragraph (14)(a) above; and
is absent from duty without leave on the first working day after the end of the transitional period;

the person is taken to have resigned as an APS employee at the end of that first working day.

20. If a first-tier person wishes to undertake new full-time employment/appointment, or seek an extension of their current employment, before the end of the transitional period:

for the purposes of section 13 of the G-G Act; or
for the purposes of section 13 and 20 of the MoP(S) Act; or
in a statutory appointment

they will also need to apply for leave without pay in accordance with this Direction and consider whether they need to negotiate access to leave credits as set out in para 10 above.

21. A first-tier person's coverage under section 6 of the PECTA Act will cease upon commencement of the new employment or appointment and they will be covered by the arrangements set out in the Prime Minister's Public Service Directions.

22. For further information on the application of section 6 and section 7 of the PECTA Act, see Advice Number 27, Regulations under Section 6 and 7 of PECTA (former Part IV Mobility).

Right of return to the APS

23. An APS employee who wishes to return to the Agency must notify the Agency Head in writing of his or her intention to return to the Agency to undertake duties. This notification may occur at any stage of approved leave without pay.

24. The Agency Head must arrange for the APS employee to return to the Agency as soon as practicable.

25. The Agency Head must arrange for the employee to undertake duties at:

the employee's corresponding classification for the purposes of section 5 of the PECTA Act; or
if the APS employee was granted leave without pay, for the first time, after the commencing time - the employee's classification immediately before the employee was granted leave without pay

26. However, if the classification no longer exists, the Agency Head must arrange for the APS employee to undertake duties at an equivalent classification as determined by the Agency Head. An Agency Head should have regard to the APS Classification groups and APS Classification Rules when deciding on the appropriate classification.

Part 2 - APS-wide training schemes for gaining skills and experience

27. Section 22 (2) of the new PS Act provides for the engagement of APS employees and determines the categories of employment in which persons can be engaged.

28. An Agency Head may engage a person for a specified term or for the duration of a specified task to undertake an APS-wide training scheme for the purpose of gaining skills and experience.

29. The Prime Minister's Public Service Directions under s. 21 (1) of the Act state the APS-wide training schemes for which persons are eligible to be employed.

30. This advice should be read in conjunction with Advice No. 7, Engagement of Non-ongoing APS employees.

Further advice

31. Urgent enquiries from COMNET members and their 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.

32. 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

3 December 1999