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Last updated: August 2008

Employment framework

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

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 Administration. 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 also relies on agencies to provide accurate employment information about members.

Public Sector Superannuation Scheme

The Public Sector Superannuation Scheme (PSS) 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.

The PSS currently requires members to make a contribution of between 2% and 10% of their superannuation salary. Where an agency deducts member contributions from an employee's salary, the agency is required to pay the amount to ARIA.  From 1 July 2008, PSS member contributions will become optional.

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 administers the PSS on behalf of ARIA.

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.

The CSS requires members to make basic contributions equal to 5% of their superannuation salary. Optional supplementary contributions are also allowed. From 1 July 2008, basic contributions will become optional.

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 administers the CSS on behalf of ARIA.

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:

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

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:

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.