Commission Advice 2013/16: Other employment matters

Last updated: 07 Feb 2014

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Legislative changes affecting other employment matters

The Australian Public Service Commission (the Commission) has developed a series of ‘Advices’ to assist Australian Public Service (APS) agencies implement the changes made by the Public Service Amendment Act 2013 (the Amendment Act) to the Public Service Act 1999 (the Act) and changes to subordinate legislation. The Advices are available on the Circulars and advices page on the Commission's website.

This Advice provides information on changes relating to medical examinations, transfers of certain matters following a machinery of government change, special payments, termination of employment of non-ongoing APS employees and leave without pay to take up employment under the Members of Parliament (Staff) Act 1984 or the Governor-General Act 1974.

The commencement date for the amended Act, amended Regulations and the Australian Public Service Commissioner’s Directions 2013 (the Directions) is 1 July 2013. The changes will become part of Commonwealth law on that date. Agencies will need to take action to prepare for these changes before the commencement date.

What changes are being made?

Medical examinations

Regulations 3.1 and 3.2 allow an agency head to direct an employee to attend a medical examination, either to satisfy a condition of the employee’s engagement or to assess the employee’s fitness for duty.

Regulation 3.1 which relates to sending persons for a medical examination to satisfy a condition of engagement (imposed under paragraph 22(6)(e) of the Act dealing with health clearances), has been amended to:

  • provide that the agency head may direct the employee to attend a medical examination and give a report of the examination to the agency head within a specified time frame;
  • clarify that a nominated medical practitioner may also give the agency head a report of the examination; and
  • amend the definition of nominated medical practitioner to include a person registered or licensed as a health practitioner (e.g. a clinical psychologist) under a relevant law of a state or territory.

Regulation 3.2 currently allows an agency head to direct an employee to attend a medical examination by a nominated medical practitioner in a range of circumstances where the agency head has concerns about the employee's state of health.

This Regulation has been amended to broaden the circumstances in which an employee may be directed to attend a medical examination to include situations where the employee is to be assigned new duties and the agency head is concerned that the employee's state of health may impact on the employee's ability to perform the duties, or where the employee is to travel overseas as part of their employment. The intent of this amendment is to allow an agency to meet its duty of care obligations to its employees.

Regulation 3.2 is also amended in the same way as Regulation 3.1 as described above—to provide that the employee attend the medical examination within a specified timeframe, to clarify that a nominated medical practitioner may provide a report to the agency head, and to amend the definition of nominated medical practitioner.

Machinery of government changes

New subsection 72(5A) of the Act provides the Australian Public Service Commissioner (the Commissioner) with the discretion to determine how a range of employment-related matters that relate to APS employees moving to another APS agency as a result of a machinery of government (MoG) change will be handled.

At the time of a MoG change involving the movement of employees between APS agencies (i.e. under paragraph 72(1)(a) of the Act), it is possible that there might be a range of employment-related actions underway applying to individual employees or groups of employees who are to be moved to the gaining agency. This could include action under either the Act or subordinate legislation, procedures under an agency's enterprise agreement or other industrial instrument, or an agency's internal operating arrangements.

These employment-related matters have been prescribed in the Regulations (see new Regulation 8.3) as follows:

  • conditions of engagement imposed by the pre-move agency under subsection 22(6) of the Act;
  • enduring conditions of employment imposed by the pre-move agency under section 20 of the Act;
  • investigations into an alleged breach of the APS Code of Conduct, and any resultant imposition of sanctions (including sanctions that have already been imposed but which might have ongoing effect such as a reduction in classification which has not yet taken effect, or periodic deductions from salary);
  • a suspension imposed by the pre-move agency in the context of a suspected breach of the Code of Conduct; and
  • processes (however described) relating to performance management (including those involving non-performance of duties); management of excess staff; assessments of physical or mental fitness for duty; or the loss, or lack, of an essential qualification.

Neither the Act nor the subordinate legislation currently deals with these issues in any detail and the purpose of this amendment is to enable these matters to be dealt with more effectively and with a greater degree of certainty.

It is envisaged that in some cases the Commissioner would make a general determination as to how such matters will be handled (e.g. that where an employee is serving a period of probation in the pre-move agency at the time of the MoG change, then the probation may be continued in the gaining agency for the unexpired period and may be extended by the gaining agency if that possibility had been advised to the employee in their letter of engagement). However, it is also anticipated that the Commissioner may need to determine other matters on a case by case basis, having regard to the individual circumstances of a particular case (e.g. a Code of Conduct investigation that is underway in the pre-move agency at the time of the MoG change).

  • While the principle of ‘staff-follow-function’ generally continues to apply, there may also be circumstances where it is in the interests of the efficient administration of the APS, or in an employee's interests, that an employee not be moved immediately so that the action can be completed in the pre-move agency.

There is a range of other technical amendments to the MoG provisions of the Act and subordinate legislation. These changes include:

  • amending Regulation 8.1(2), which provides a level of salary protection for employees moved between APS agencies as a result of a MoG change, to clarify the meaning of the term ‘annual salary’ as used in that Regulation. The amended regulation will make it clear that annual salary in these circumstances will be an employee's salary set out in an enterprise agreement (including where salary is set through an individual flexibility agreement) or other instrument, and does not include such things as higher duties allowance or other allowances that the employee might be entitled to, travel and other expenses, or bonuses;
  • inserting a new Regulation 8.1(2A) to make it clear that any salary protection that an employee is entitled to under Regulation 8.1(2) continues until such time as the salary of the employee is increased by an employment arrangement (defined in the dictionary to the Regulations as meaning a fair work instrument, determination under section 24 of the Act or a written contract of employment) in the gaining agency; and
  • amending relevant provisions of the Directions to make it clear that when a vacancy has been notified in an agency but no decision made prior to the date of effect of the MoG change regarding the filling of the vacancy, and the relevant functions are then moved to another agency as a result of a MoG change, the gaining agency can decide to proceed (or not proceed) with the filling of the vacancy on the basis of the initial notification.
    • The section 72 determination signed by the Commissioner will continue to be able to deal with situations where, prior to the date of effect of the MoG change, a decision has already been made to fill a vacancy in the pre-move agency but the decision has not yet come into effect. The effect of the section 72 determination is to continue the recruitment process to its finality in the pre-move agency and then immediately move the relevant person to the gaining agency (unless a separate cancellation decision is made by the gaining agency).
    • Note, however, that this provision preserving decisions already made is not able to be used in circumstances where the pre-move agency is abolished, although in these circumstances the gaining agency can decide to re-make the original decision to fill the vacancy.

Special payments under section 73 of the Act

Section 73 of the Act currently provides that the Public Service Minister may authorise the making of payments to a person in special circumstances that relate to, or arise out of the payee's employment by the Commonwealth or another person's employment by the Commonwealth.

Currently, subsection 73(4) of the Act provides a limit on the amount of money that can be approved as a payment under this section of $100,000. The provision has been repealed and replaced by a provision which allows the maximum amount to be set in the Regulations. New Regulation 9.4 provides that the maximum amount that can be paid as a special payment to a person under section 73 of the Act is $250,000.

This amendment will make this special payment provision broadly consistent with an equivalent provision set out in the Financial Management and Accountability Act 1997.

The power to authorise the making of payments under section 73 of the Act continues to be exercised by agency heads under delegation from the Public Service Minister. However, agency heads must exercise this power personally—it is not able to be further delegated.

Termination of non-ongoing employees

Section 29 of the Act continues to deal with the termination of employment of ongoing and non-ongoing APS employees.

Grounds for the termination of an ongoing employee continue to be set out in subsection 29(3) of the Act.

Subsection 29(4) of the Act has been amended to provide that the Regulations can set out the grounds for termination of employment of a non-ongoing employee, rather than grounds or procedures as is currently the case. No grounds for termination have as yet been prescribed for the termination of a non-ongoing employee and there are no current plans to do so.

Relevant procedures for the termination of non-ongoing employees are set out in the Directions as a result of the Commissioner's broader direction making power under section 11A of the Act. Current Regulation 3.11 has been repealed and replaced by clause 7.2 of the Directions. This clause is broadly similar to Regulation 3.11 and provides that where an employment arrangement (as defined) sets out procedures applicable to the termination of a non-ongoing APS employee, those procedures must be followed unless they are unlawful or prohibited under the fair work legislation.

  • A note below clause 7.2 confirms the current situation that the employment of a non-ongoing APS employee may be terminated on the grounds of a breach of the Code of Conduct only in accordance with procedures established by an agency head under subsection 15(3) of the Act.

Clauses 35 and 36 of Part 9, Schedule 4 of the Amendment Act provide that the relevant legislative provisions in force prior to 1 July 2013 will continue to apply to situations where, prior to that date, an agency head had terminated the employment of a non-ongoing APS employee but the termination decision takes effect after 1 July 2013.

Leave without pay to take up employment under the Members of Parliament (Staff) Act 1984 or the Governor-General Act 1974

The Prime Minister's Public Service Directions 1999 (PM's Directions) currently provide for the:

  • mandatory granting of leave without pay by an agency head to an ongoing APS employee who applies for leave to take up employment under certain provisions of the Members of Parliament (Staff) Act 1984 (MoPS Act) or the Governor-General Act 1974 (the Governor-General Act), or to extend a current period of employment under either of these Acts; and
  • rights of return to the APS (at the same or an equivalent classification) for employees granted such leave; and
  • transitional provisions relating to employees who, prior to amendments made to the PM's Directions on 19 October 2005, were on approved leave without pay to take up a full time statutory appointment. These employees are entitled to remain on leave for the duration of their existing period of leave, and to exercise their right of return to the APS (at the same or an equivalent classification) at any time during, or at the expiration of, the period of approved leave.

These provisions are to be removed from the PM's Directions and replicated in clauses 7.4 and 7.5 of the Directions. This change will not impact on employees who are currently on leave without pay to take up relevant employment under either the MoPS Act or the Governor-General Act.

What do agencies need to do?

Agencies will need to comply with the new legislative provisions from 1 July 2013.

Agencies will need to amend any relevant procedures they have in relation to sending employees for medical examinations; authorising special payments; terminating the employment of non-ongoing employees, and the grant of leave without pay take up employment under the MoPS Act or the Governor-General Act to ensure they take account of the changes.

Agencies impacted by MoG changes in the future will continue to need to liaise with the Commission on any such matters with a view to determining how they are to be handled.

What transitional arrangements need to be put in place?

The transitional arrangements applying to each of these matters is described in the relevant sections of the Advice.

Further information

The Amendment Act, the Public Service Amendment Regulation 2013 and the Australian Public Service Commissioner's Directions 2013 are available on the Comlaw website.

The Commission will prepare revised guidelines taking these changes into account. Those guidelines will be finalised and available by the time that the changes to the PS Act come into effect.

Enquiries from agencies' corporate services staff can be made by email at ethics@apsc.gov.au or by telephone on 02 6202 3737.

APS employees who have queries about how the changes will affect them are asked to contact the HR area in their agency.

Owen Livermore
Group Manager, Employment Policy and Participation Group
Australian Public Service Commission

April 2013