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Last updated: 20 March 1996

Review of the Public Service Act

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.

In the middle of 1994, the Minister Assisting the Prime Minister for Public Service Matters, the Hon Gary Johns, MP commissioned a review of the Public Service Act which was first drafted in 1922. The purpose of the review was to make recommendations for changes that could be incorporated in a new Public Service Act in order to provide a modern and flexible management framework for the Australian Public Service.

A project team was formed, under the leadership of Mr Ron McLeod, then a Deputy Secretary in the Department of Defence. Mr McLeod reported on his review to Minister Johns in December 1994. The McLeod Report, as it has become known, has been circulated widely across the Australian Public Service (APS).

The Government has now considered the McLeod Report and accepted many of its recommendations. The Government's position on the recommendations in the Report will form the basis of the new Act.

The purpose of this booklet is to inform public servants across the APS of the Government's decisions, which represent the basis on which further preparatory work on the new Act is now proceeding. This further work will involve consultation with the unions.

Note: The McLeod Report Recommendations are set out in plain type.

The Government decisions are shown by symbol:

Agreed

Agreed with modification

Under further review

Rejected

(Modifications are described in italics.)

Recommendation No. (Para No.)

R1 (2.14)

There are sound policy and practical reasons for having a Public Service Act and . . . it is essential that there continue to be an Act.

R2 (2.21)

. . . the existing Act be replaced with a streamlined, principles-based Act which offers the Government, as employer, and employees and their unions, a more flexible employment framework in keeping with the operating environment in the 1990s and beyond.

R3 (2.26)

In keeping with the notion of a streamlined, principles-based replacement Act, . . . pay rates and detailed terms and conditions of employment not be included in it.

R4 (2.28 and 2.29)

. . . the following provision be included as the object of the new Act.

The Public Service Act:

establishes the Australian Public Service (APS):

to provide advice and support to the government of the day;
to implement the Government's decisions and programs;
to deliver services on behalf of the Government to members of the community;
to carry out statutory functions under legislation passed by the Parliament;
provides a framework for the employment, administration and management of employees in the APS and in other specified bodies established by the Parliament;
defines the powers and responsibilities of the Secretary of a department, and of the heads of other APS employing bodies;
defines the powers and responsibilities of the Public Service Commissioner;
provides for the management and administration of the APS to be directed towards establishing and maintaining excellence in service to members of the community; and
defines and recognises the role and responsibilities of APS employees in providing a productive and efficient public service and establishes the rights and obligations of APS employees.

Agree, but wording of the object proposed by the Review Group to be refined to include a stronger client /public focus.

Recommendations 5 - 10

R5 (2.30)

. . . the new Act should provide a clear, contemporary statement of the Parliament's expectation of the general principles of public administration under which the Public Service will operate . . . the provisions set out in paragraphs 2.31 - 2.35 (recommendations 6 - 10) be included in the new Act. See R10 for decisions on R5-10.

R6 (2.31)

The APS shall be administered as a politically independent, merit-based and cohesive public service with the following functions, subject to any specific legislative requirements in relevant enabling legislation:

to serve loyally and impartially Ministers and the Government;
to provide frank, honest, comprehensive and accurate advice and other services in a timely manner to, and on behalf of, the Government which assist the Government to achieve its objectives;
to implement the policies and decisions of the Government efficiently and effectively; and
to deliver, on behalf of the Government to members of the community on an equitable basis, services to which they have an entitlement or which assist them to meet their obligations in the community.

R7 (2.32)

The APS shall be structured and organised so as to:

achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities;
enable decisions to be made and actions taken in a timely and professional manner; and
encourage innovative approaches by individuals and groups of employees to improving administrative systems and work practices.

R8 (2.33)

Proper standards in the management of employees and of financial and resource management shall be exercised at all times.

R9 (2.34)

Administrative responsibilities and lines of accountability shall be clearly defined and authority shall be sufficiently delegated to ensure that those to whom responsibilities are assigned have authority to deal expeditiously with matters that arise in the course of discharging those responsibilities. Those delegating responsibility for performance shall retain responsibility and may be called to account.

R10 (2.35)

The management and administration of the APS shall be directed towards:

delivering services in a timely and effective way, consistent with the Government's legislative and regulatory requirements, that best facilitates the ability of all sectors of the community and
individuals to undertake efficiently their lawful and private business and duties;
providing transparent procedures; and
protecting members of the community from arbitrary or discriminatory treatment and protecting their privacy.

For recommendations 5 - 10 Agree, but wording of the general principles proposed by the Review Group to be refined to include a stronger focus on results .

R11 (2.47)

. . . consideration be given, over time, to extending coverage of the new Public Service Act (or parts of it) to other public sector agencies (except Government Business Enterprises), and to providing exemptions or modifications for specified agencies from any provisions which conflict with their basic purpose.

Agree in principle, but there should be no automatic return of agencies currently not operating under coverage of the Act. Ministers may examine on a case-by-case basis the advantages of individual agencies coming under coverage of the Act where they consider it might be beneficial to an agency .

R12 (3.18)

. . . the new Act should:

vest Secretaries with the power to employ non -SES staff in their own right, without delegation or approval from the Public Service Commissioner.

R13 (3.18)

. . . the new Act should:

enable the Public Service Commissioner to issue binding instructions on the manner in which the merit principle will be applied by Secretaries in the exercise of their employing powers.

R14 (3.50)

. . . the legal concept of 'office' should be excluded from the new Act, but those few positions which are public offices created by law should remain. (The notion of position may be retained for administrative purposes, including for delegations and advertising of vacancies).

R15 (3.50)

. . . the consequences for specific terms and conditions of employment of removing the concept of 'office' should be dealt with in subordinate legislation and through the renegotiation of relevant industrial awards and agreements.

Agree, but note other Acts may need amendment (eg. Superannuation Acts).

Recommendations 16 - 24 (3.71)

R16 . . . in relation to non-SES staff, the new Act:

refer to staff of the APS as 'employees' with differing status: continuing or fixed-term.

'Continuing employees' would be those who are performing an ongoing function with no fixed period of employment. Their employment would be terminated only for cause and with due process. 'Fixed-term employees' would be those who are recruited to perform a task for a specified period of time or where the period of employment is related to the completion of a specific task or project. Their employment may be terminated at the end of the period of employment or it may be terminated in accordance with procedures provided by law.

Agree, but there should be a specific power (as now) for Secretaries to engage staff overseas. Such employment is to be subject to local labour law and good employer practice and not otherwise subject to the Act .

Implementation of this recommendation will be subject to detailed negotiation with the Unions, particularly on termination arrangements for fixed-term employees .

R17

require Secretaries to ensure that fixed-term employees whose period of employment is to extend beyond six months undergo competitive entry, and the engagement of those whose period of employment is to be less than six months, is without patronage, favouritism or unjustified discrimination.

R18

not specify that Public Service Commissioner approval and union consultation in the engagement of fixed-term employees is required.

R19

not provide for preference to be given to continuing employees over outside applicants (the former 'officer preference' provision) in the selection of staff for fixed-term employment.

R20

provide to fixed-term employees whose period of employment is to extend beyond six months the right to apply for gazetted vacancies which are not open to outside applicants, after six months continuous employment.

R21

allow for the period of employment for which a fixed-term employee is engaged to be extended, but should place a limit of five years on the period for which fixed-term employees may be employed continuously, except where their employment is related to the completion of a defined project or task which extends beyond five years.

R22

exclude reference to fixed term employees having the right to convert automatically to continuing status after 12 months employment.

R23

in the case of fixed-term employees who have undergone competitive entry, after six months continuous employment, subject to the operational requirements of their agency and satisfactory performance, allow Secretaries the discretion to convert them to continuing status.

Agree, but confine to base level entry only .

R24

include a provision to allow the Minister for Industrial Relations to exempt, via regulation, classes of employees from sections or individual provisions of the Act.

Reject - the only identified category where such a power might be needed is locally engaged staff overseas. Legislation should provide specifically for this rather than a broad power which could be open to abuse.

Recommendations 25 - 26 (4.6)

R25

. . . the definition of merit for the filling of vacancies, whether by recruitment or promotion, should be standardised across all levels to encapsulate the following:

eligible applicants will be selected on the basis of their relative suitability. Suitability for vacancies will be assessed in terms of selection criteria, which will have regard to the following requirements, to the extent that they are relevant:

skills and abilities;
qualifications;
achievement of recognised competencies;
training;
experience;
standard of work performance; and
potential for further development in the APS.

Agree, subject to the alternative definition as follows:

Eligible applicants will be selected on the basis of their relative suitability. Suitability for vacancies will be assessed in terms of selection criteria, which are decided in advance of the selection process with regard to the needs of the position. In determining selection criteria, regard will also be had to the following requirements to the extent that they are relevant:

skills and abilities (including for example, where appropriate, analytical capacity, judgement, leadership capacity for teamwork);
qualifications;
achievement of recognised competencies;
training;
experience;
standard of work performance;
potential for further development in the APS; and
personal qualities.

R26

The new Act should include the above definition of merit which is based on a judgement of relative suitability and capacity to perform at that level.

Agree subject to adoption of alternative definition of merit, as per decision on R25 above.

R27 (4.10)

. . . the new Act should permit exceptions to the merit principle, for example, where a vacancy is to be filled by transfer of an employee at level, or by an excess employee or where a trainee is being recruited under a Government-funded labour market program.

R28 (4.13)

. . . should limited preference for veterans in recruit -ment to the APS continue to apply, provision should be made for it to continue as a permitted exception to the application of the merit principle.

R29 (4.16)

. . . the new Act provide that Secretaries shall not be subject to any direction given by a minister in relation to a staff selection.

Agree, but extend to staffing decisions rather than confine to staffing selections.

R30 (4.27)

. . . the process of hiring all staff to the APS should be described as 'recruitment', to replace the existing terms of 'appointment' and 'engagement'. The current 'offer of appointment' should become an 'offer of employment' and employees would be 'employed', rather than 'appointed' or 'engaged'.

R31 (4.27)

. . . people wishing to apply for entry to the APS should continue to have a 'reasonable opportunity to apply' and these words should be retained in the new Act.

R32 (4.30)

. . . the new Act should:

continue to specify the grounds on which discrim -ination in recruitment and other staffing decisions is prohibited and to add the grounds of 'union membership or activity' to the current list.

R33 (4.30)

. . . the new Act should:

contain a provision which allows for regulations to specify exceptions to the anti-discrimination provisions where they are required.

R34 (4.37)

. . . the new Act should not make reference to the prescribing of minimum educational qualifications, considering that the identification of prerequisite qualifications and other occupational requirements is an integral element of the management of position classification standards.

Agree, but should cover salary advancement power generally.

R35 (4.40)

. . . the new Act should continue the existing requirement for all new entrants seeking continuing employment to be Australian citizens. It should also allow for continuing status to be deferred until any outstanding application for citizenship has been resolved.

R36 (4.44)

. . . the new Act should specify that new entrants to the APS should disclose their health status to Secretaries. This will reflect the fact that pre -recruitment medicals will be replaced with a requirement for a single health status declaration which could be developed to serve the interests of both departments and ComSuper. A medical examination would only be sought in cases of doubt, rather than in all cases as at present.

R37 (4.46)

The new Act should contain a provision that eligible applicants seeking continuing employment, and those seeking fixed-term employment for whom the Secretary judges it necessary, will need to satisfy the Secretary as to their suitability to be employed in the APS, as appropriate, based on a character check and an assessment of their security status. Employees' security status may also be assessed before they are transferred or promoted to duties which require it.

Recommendations 38 - 43 (4.51)

R38 . . . a revised approach to probationary arrangements be adopted as follows:

The new Act should provide that entrants recruited at entry level who are required to undergo a period of Entry Level Training should also be required to demonstrate satisfactory conduct, attendance and on-the-job performance as part of the program of training, in order to meet fully the requirements of their probationary period of employment.

R39

The design and development of Entry Level Training arrangements, which will progressively supplant existing entry level arrangements, will need to incorporate a job performance element. Where exemptions are granted as a result of Recognition of Prior Learning, a Secretary should be able to require a new entrant to continue the probationary period up to a maximum period of 12 months from engagement (excluding authorised leave absences).

R40

Recruitment at other levels will continue to be subject to a probationary period.

R41

A Secretary may extend the maximum 12 month probationary period (excluding authorised leave absences) only on the grounds that an application for Australian citizenship is outstanding, a medical condition requires further assessment or further time is needed to meet a required educational or training standard.

R42

A Secretary may terminate a new entrant's employment, before or at the end of the probationary period, on the grounds of unsatisfactory conduct, attendance or on-the-job performance, failure to meet the requirements of character checks and security clearances, unsatisfactory medical standard or the rejection or non-pursuit of an application for Australian citizenship.

Agree, but include failure to make satisfactory progress in training and excess to requirements as grounds for termination .

R43

At the end of the probationary period, or earlier if a Secretary so decides, a Secretary should convert a new entrant to continuing status if their employment record has been satisfactory.

R44 (4.54)

. . . all non-SES vacancies should be able to be advertised as open to applicants outside the APS, but Secretaries should have the discretion to fill a vacancy without it being open to outside competition.

Recommendations 45 - 47 (4.60)

R45 The new Act:

should retain the existing provision for staff to apply to decline a transfer but applications will normally be considered on compassionate grounds only.

R46

should retain a provision similar to the current section 53A, for cadets and trainees to be automatically advanced upon successful completion of a course of study or training to a linked higher classification, without the need to undergo a further merit selection process.

R47

. . . state that where an employee secures a transfer to another department the 'losing' department will not be able to refuse release.

R48 (4.65)

. . . the following set of provisions be included in the new Act (to replace the current Part IV provisions):

Staff who voluntarily leave the APS to work for another Commonwealth organisation should retain the right to continue to apply for APS vacancies advertised as open to internal applicants, for five years following departure.

Staff should not have the right to return to the APS unless selected in response to an advertised vacancy, or unless they are able to negotiate a transfer in accordance with normal transfer provisions.

Where staff are subject to redundancy in the employing agency, they should have the right to seek redeployment back into the APS, via the Public Service Commission's APS Labour Market Adjustment Branch. However, after a reasonable period, if it becomes clear that they are unlikely to be satisfactorily redeployed back into the APS, they may become liable to retrenchment with the termination costs being met by the employing agency.

Staff who are compulsorily transferred to a non -APS agency should have the same rights as above, except that they should retain the right to apply for APS vacancies advertised as open to internal applicants, on an indefinite basis.

There should be no right of automatic reintegration.

Transitional arrangements should apply to those staff currently covered by the Part IV provisions with the details to be negotiated with unions.

Agree, but regarding redeployment back into the APS (third point above), former APS employees should not be allowed to re-enter the APS at a higher level than when they left the APS. This would ensure that the merit principle is not bypassed.

R49 (4.66)

No change is recommended to the current rights of staff employed under the Members of Parliament (Staff) Act 1984.

Recommendations 50 - 54 (4.94)

R50 In relation to separation from the APS:

the Public Service Commissioner's approval should no longer be required for an employee to be involuntarily retired.

R51

compulsory age retirement (at age 65) should not be included in the new Act, but the recommendation concerning universal annual performance appraisal (R93) is of relevance.

Consideration postponed as this recommendation has ramifications for other Commonwealth legislation (eg. Safety Rehabilitation and Compensation Act).

R52

if the present age limit is removed, the conditions of employment to be applied to mature-age workers approaching the end of their working careers warrants further consideration. Consideration postponed - related to decision on R51 above.

R53

employees whose absence is unauthorised should be deemed to have abandoned their employment, if, after a reasonable attempt has been made to obtain an explanation, no

acceptable explanation is provided. The period of notice before termination should be consistent with the provisions of the Industrial Relations Act 1988. (There will continue to be the capacity to re-employ a person should an acceptable explanation be provided later).

R54

Consideration should be given to devising a new form of exit for those with diminished efficiency, but who are not excess and not eligible for invalidity retirement. A severance benefit should be paid in addition to the involuntary retirement superannuation benefit.

Consideration postponed as this recommendation has ramifications for other Commonwealth legislation (eg. Superannuation Acts) .

R55 (5.5)

. . . the following principles of employment be included in the new Act:

APS employees shall be entitled to:

remuneration rates and conditions of employment commensurate with their responsibilities;

compete for promotion and advancement in their employment on the basis of merit;

terms and conditions of employment which do not discriminate on the grounds of political affiliation, union membership or activity, race, colour, ethnic origin, social origin, religion, sex, sexual preference, marital status, pregnancy, age or physical or mental disability. Where it is justifiable, exceptions to these principles may be specified in the regulations;

opportunities for appropriate training and development;

a safe and healthy working environment free of harassment;

opportunities for appropriate participation in the decision-making processes of the department in which they are employed, including the right to be represented by unions;

fair and consistent treatment, free of arbitrary or capricious administrative acts or decisions;

employment that may only be terminated on prescribed grounds for cause and through due process; and

access to fair avenues for redress of grievances.

Agree, providing that the replacement legislation includes a legal effect clause which provides that these principles do not create or affect legal rights .

R56 (5.8 - 5.9)

. . . the new Act contain the following code of conduct:

APS employees shall at all times in the course of their employment:

conduct themselves with honesty and integrity when dealing with members of the community and other APS employees;

act in accordance with laws, regulations, determinations, industrial awards and agreements and departmental instructions which are applicable to the performance of their duties and the administrative and legal measures established to enhance accountability;

comply with any lawful and reasonable direction given by a person who has authority to give it;

perform their duties with care and diligence;

deliver services equitably, courteously and in a timely manner;

treat other APS employees with appropriate respect and courtesy, without coercion or harassment of any kind;

maintain the confidentiality of dealings with ministers and their staff;

use official information, equipment and facilities in a proper manner;

disclose correct personal information when it is required for official purposes;

disclose and avoid real or apparent conflicts of interest, whether financial or otherwise;

not take advantage of their official duties, status, powers or authority in order to seek or obtain a benefit for themselves or for any other person or body;

avoid patronage, favouritism and unjustified discrimination in their staffing decisions; and

behave in a manner that upholds the reputation and integrity of the APS.

Agree, but the code should not exclude behaviour outside working hours which would bring the APS into disrepute.

R57 (5.12)

. . . the new Act provide that:

Secretaries will be responsible for promulgating their own policies on the kinds of outside employment which may be acceptable or not acceptable. Employees will be expected to identify to their Secretary any potential conflicts of interests, in keeping with the requirements of the code of conduct and the departmental policy.

Recommendations 58 - 66 (5.21)

R58 . . . the new Act:

define misconduct as a breach of the code of conduct.

R59

distinguish between misconduct and underperformance, with the new misconduct arrangements dealing only with misconduct.

R60

express the misconduct provisions in decriminalised language.

R61

contain heads of power for Secretaries to deal with allegations of misconduct expeditiously, to suspend or transfer an employee who is the subject of alleged misconduct, to determine the circumstances in which an investigation will be necessary and to apply appropriate sanctions.

R62

provide that the Public Service Commissioner, in consultation with relevant unions, may issue guidelines to Secretaries which describe the basic procedures that might be followed when an employee is alleged to have committed misconduct. It will be a matter for individual employing bodies to decide whether to adopt these procedures.

Agree, but Secretaries must use the Commissioner's guidelines in the absence of their own guidelines .

R63

state that these guidelines must be consistent with the principles of natural justice and the Industrial Relations Act 1988.

R64

enable Secretaries to amplify these guidelines, in consultation with relevant unions, to reflect local arrangements.

R65

emphasise that less serious cases of misconduct will be dealt with as far as possible by informal resolution, for example through counselling, or mediation, and only in the more serious cases of misconduct should a formal process be followed.

R66

provide that the new arrangements will apply to all employees except those fixed-term employees whose period of employment is to be less than six months. These employees will be dealt with according to the terms of their employment. Agree, but exclude employees on probation .

R67 (5.22)

. . . the proposed method for dealing with misconduct outlined in the report should be developed and used as a basis for both the Public Service Commissioner's and Secretaries' guidelines.

Recommendations 68 - 74 (6.25)

R68 To give effect to the principles established (in the Review Group's report) and having regard to the value that a grievance mechanism serves, . . .

Staff grievances about personnel management decisions and actions should be handled quickly, with fairness and, to the maximum extent possible, be resolved at the local level. This approach should assist Secretaries in their role of monitoring the 'health' of their departments.

Agree, but the revised arrangements should be the subject of an evaluation two years after the replacement legislation becomes operational.

R69

The Act should include a provision that the Secretary of a department shall facilitate the resolution of employees' grievances to the maximum extent possible within the department through mediation and conciliation.

R70

Referral to the Merit Protection and Review Agency (MPRA) should not normally be sought until the parties advise that likely avenues for settlement of the grievance within the department have been exhausted.

Agree, but the MPRA should decide whether a grievance should come forward, particularly in sensitive cases .

R71

Managers should have access to training in dispute resolution skills to assist them in informally resolving differences or problems in the workplace.

Agree, but note that this could be accommodated in a Service-wide framework agreement.

R72

Industrial agreements would be an appropriate place to articulate departmental procedures for dealing with staff grievances.

R73

Where discrimination is raised as one of a number of grounds in a grievance, the MPRA should decide, where necessary in consultation with Human Rights and Equal Opportunity Commission (HREOC), whether it is appropriate for the MPRA to deal with that element of the grievance. Where a decision is made that it would be appropriate for the MPRA to deal with it, the MPRA should document that part of their investigation and finding and provide it to HREOC. In all other cases, the MPRA should refer that part of the grievance to HREOC for investigation. This arrangement, coupled with changes currently being considered to give the Racial and Sex Discrimination Commissioners the power to decline to deal with complaints, should ensure that only one avenue of review is effectively available for the full range of discriminatory actions proscribed in the Act and which are also the grounds for complaint to one of the Discrimination Commissioners or HREOC.

Reject. Conflicts with fundamental aim of avoiding forum shopping. The MPRA should be able to exercise powers similar to HREOC's in relation to grievances involving discrimination. See R74.

R74

Legislative arrangements be made to enable the MPRA, the relevant Discrimination Commissioner and HREOC to exchange cases where the substance of the complaint primarily concerns the other body's jurisdiction. This provision would mirror that already in place between the MPRA, the Ombudsman and the Privacy Commissioner.

R75 (6.27)

. . . the specific provisions relating to 'review of certain decisions' (Public Service Regulations 76-81 inclusive) be repealed.

R76 (6.28)

. . . no changes should be made to the Ombudsman's present power to investigate citizens' complaints about APS recruitment decisions.

R77 (6.31)

The decision to annul (an appointment) should rest with the department as it does at present, with any review being conducted by the Australian Industrial Relations Commission (AIRC) or Industrial Relations Court, to the extent that they are prepared to deal with the matter.

R78 (6.43)

. . . for a vacancy or vacancies below the Senior Officer level, a Secretary may promote an employee to an advertised vacancy either:

upon the report of a departmental selection advisory committee. Such a promotion will be, as now, subject to appeal by unsuccessful applicants; or

upon the report of a tripartite selection committee, chaired by the department and including representation from the relevant union and from outside the department. An avenue of appeal would remain where the Secretary rejects the recommendation and promotes another employee. This arrangement would replace existing joint selection committee provisions in s.50DA and s.50DB of the Act.

Agree, with the qualification in relation to a tripartite selection committee report, that the committee's decision must be unanimous and that scope for MPRA involvement as a member or convenor of such committees is not precluded .

R79 (6.44)

. . . in cases where the department decided that it preferred the two-stage process for filling vacancies below the Senior Officer level - that is, departmental selection with Promotion Appeal Committee (PAC) appeal rights - then the PAC would be required to determine any outstanding grievances associated with the original selection process.

Reject - would detract from overall aim that grievances be resolved to the maximum extent possible within departments .

R80 (6.45)

. . . a Secretary be able to promote an employee to a vacancy, including a Senior Officer level vacancy, without advertisement. In such cases, all continuing employees below the level of the vacancy are eligible to lodge an appeal against the promotion.

Reject. Conflicts with merit principle and could have unintended consequence of appellants being motivated by non-advertisement of the vacancy rather than claims of greater merit - but note that there is a need to allow for promotion without application of the merit principle in special circumstances as per the existing Regulation 112. See also R27.

R81 (6.46)

. . . excess employees should continue to have (a s.50H) appeal right.

R82 (6.49)

. . . the present process review mechanism for promotion to advertised Senior Officer level vacancies (s.50DAA) should be retained.

R83 (6.51)

. . . only in those cases where a Secretary was personally involved in the original decision (to transfer an employee), should there be capacity for the decision to be reviewed by the MPRA.

R84 (6.64)

. . . appeals against departmental decisions to dismiss an employee be removed from the jurisdiction of the MPRA, with the sole avenue of review being the unfair termination provisions in the Industrial Relations Act 1988.

R85 (6.64)

. . . the MPRA should retain the power to consider appeals against the remaining range of appellable decisions - larger fines, transfer of locality or transfer on reduction.

R86 (6.64)

. . . a personal grievance should not be able to be lodged against disciplinary (misconduct) action or procedures.

R87 (6.65)

. . . chairpersons of committees established to consider disciplinary appeals - to be known as misconduct appeals under the proposed new conduct framework - need not have legal qualifications, and parties to an appeal should not be able to have legal representation but will be entitled to have an advocate present to assist in the presentation of their case.

R88 (6.65)

. . . the MPRA be able to issue binding instructions to its Review Committees, in particular Disciplinary Appeal Committees and Redeployment and Retirement Appeal Committees, to emphasise that their role is essentially to examine the merits of the case before them and not to have undue regard to procedural defects that are not material to the outcome of the decision under review.

R89 (6.66)

. . . the maximum fine that may be imposed following a misconduct inquiry should be equivalent to two per cent of the maximum annual salary of the employee's classification. The imposition of a fine of 0.5 per cent or greater of the maximum annual salary of the employee's classification will be appellable to the MPRA.

R90 (6.71)

. . . where an employee is to be retired involuntarily, on the grounds of inefficiency, invalidity, redundancy or loss of essential qualifications, any appeal against the decision to retire should be dealt with under the unfair termination provisions of the Industrial Relations Act 1988. In the case of decisions to reduce in classification without consent, an employee may lodge an appeal with the MPRA . . . any personal grievances associated with these processes, except in relation to termination, be determined by the appeal committee convened by the MPRA.

R91 (6.75)

. . . APS personnel management decisions be excluded from the range of decisions to which the Administrative Decisions (Judicial Review) Act applies. Reject.

R92 (6.76)

. . . the Commissioner review the Guidelines on Keeping of and Access to Personnel Records to express more firmly the view that potential PAC appellants should have access to relevant parts of the comparative statement in selection reports and departments should reflect this approach in their personnel policies and practices. General acknowledgment of this policy would eliminate the need for staff to lodge formal applications under the Freedom of Information Act.

R93 (7.25)

. . . systems of appraisal be introduced for staff at all levels, with the details of such schemes to be determined at departmental level . . . the appraisal cycle be annual.

R94 (7.37)

. . . the new Act should recognise the continuing need for both department specific and Service-wide career development programs. In line with current and future trends . . . Secretaries be encouraged to develop and implement training initiatives both to suit their individual needs and to encourage mobility across the Service.

R95 (7.37

Training initiatives should be linked to personal development plans which should emerge from the appraisal schemes being proposed for all APS employees.

R96 (8.24)

While not supporting the general introduction of fixed-term contracts . . . the Senior Executive Service (SES) should not have a presumption of guaranteed permanent tenure. Agree, but proposed legislation should not be drafted so as to exclude the possibility of moving to contract employment for the SES at some future time if the Government were to decide accordingly .

R97 (8.27)

. . . where it is judged to be in the interests of the Service, the Public Service Commissioner having a general power to make a judgement on the recommendation of a Secretary to transfer to a lower classification or retire an SES employee, after providing the individual with an opportunity to present their position.

R98 (8.30)

. . .the existing provisions covering the option of fixed- term appointment arrangements for outsiders be retained.

R99 (8.30)

. . . there be capacity, in limited circumstances, for fixed-term appointments to be available to insiders where the requirement is for a finite period and where the Public Service Commissioner, on the recommendation of the Secretary, judges that the prospects for redeployment at level within the Service, upon completion of the term, are minimal.

R100 (9.23)

. . . the APS should operate, to the maximum extent consistent with its public responsibilities, under the same industrial relations and employment arrangements as apply to the rest of the workforce, . . . as a general rule, actions relating to the employer-employee relationship between the APS and its staff be authorised by awards or agreements, rather than by detailed legislation or regulations and determinations under the Public Service Act .

Agree, but note some conditions of employment (eg. superannuation) are excluded already from AIRC coverage .

R101 (9.28)

centrally exercised determination-making powers, similar to that contained in s.82D of the Public Service Act, be retained; and

this formal legal employer power be vested in the Minister for Industrial Relations but be capable of delegation within specified parameters.

Agree, with power to be vested in the Minister .

R102 (9.36)

. . . section 121 of the Industrial Relations Act be amended to preclude the Australian Industrial Relations Commission (AIRC) specifically from overriding the principles of APS management and values set out in the new Act and the management of the SES.

Reject. Would remove some aspects of APS employment from the jurisdiction of the AIRC and so lead to the Government's own employees being treated differently from the rest of the workforce. Commonwealth would still be able to argue that the AIRC should refrain from dealing with a specific matter in the public interest.

R103 (9.40)

. . . consistent with the principle that the APS should operate on the same basis as the rest of the workforce in relation to employer-employee matters, there should continue to be no power for Parliament to disallow decisions of the AIRC in relation to the APS.

R104 (9.41)

. . . determinations made under the Public Service Act on pay and conditions matters should not be subject to disallowance by the Parliament.

Agree, subject to discussions between the Attorney-General and the Minister Assisting the Prime Minister for Public Service Matters on the nature and extent of exemption in relation to any such instruments which are legislative in character.

R105 (9.46)

. . . an APS Consultative Council be established to replace the Joint Council.

R106 (9.54)

. . . the current provisions relating to 'industrial democracy' be replaced by inclusion in the new Act of a commitment to the broader principles of participative work practices and the continued inclusion of consultation and facilities provisions in industrial agreements.

R107 (10.10)

. . . the following statement of the responsibilities of Secretaries should be included in the Act:

A Secretary of a department shall, under the minister, be responsible for its general working, and for all the business thereof, and shall advise the minister in all matters relating to the department.

A Secretary of a department has a duty to assist the minister to fulfil his or her accountability obligations to the Parliament by providing full and accurate information to the Parliament about the factual and technical background to policies and their administration.

R108 (10.11)

The Secretary of a department shall:

define the goals and objectives of the department, in accordance with relevant government policies and priorities;

prepare an annual report on the operation of the department and provide it to the minister administering the department for tabling in the Parliament;

manage the affairs of the department in a way that promotes economical, efficient and effective use of the resources for which the Secretary is responsible;

determine organisational and staffing structures having regard to the overall needs of the department for the efficient and effective management of its work;

adopt management practices that are responsive to changing government policies and priorities, and that enable decisions to be made and action to be taken promptly;

promote continuing evaluation and improvement of the efficiency and effectiveness of the department;

employ such persons as are judged necessary to perform the functions of the department within the limits of the available resources;

select staff for recruitment and promotion in accordance with the merit principle;

transfer staff having regard to the overall needs of the department;

promote the maintenance of high standards of conduct (including high ethical standards) within the department;

promote a constructive and harmonious working environment, ensure compliance with relevant industrial awards and agreements, encourage participative practices and recognise the rights of staff to be represented in the workplace through unions;

implement equal employment opportunity (EEO) policies and practices applicable to employment in the APS;

implement access and equity policies and practices to ensure maximum access by members of the community to government programs and appropriate avenues of review;

establish and implement staff appraisal schemes and training and staff development programs;

establish and implement occupational health and safety programs and provide a work environment free of harassment;

facilitate the resolution of employees' grievances through mediation and conciliation to the maximum extent possible within the department; and

ensure that proper standards are maintained at all times in the creation, management, maintenance and retention of Commonwealth records and in accordance with any relevant legislation.

Agree (with qualification). The new Act will contain broad responsibility for Secretaries to administer their department in accordance with the law and with functions established by the Act for the APS. The detail of Secretaries' responsibilities will be determined and published by the Government.

R109 (10.39)

. . . the current legislative requirements in respect of the development of EEO programs be retained in the new Act and the Commissioner should continue to require reports on implementation of these programs. The Commissioner, however, should not be required to approve the individual EEO programs of departments and agencies.

R110 (10.39)

. . . the Commissioner should continue to prepare an annual report to the Prime Minister on EEO achievements across the Service.

R111 (10.39)

. . . reference be made to the wording of the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 and the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 as a basis for expressing in the new Act the obligations to be met by departments in preparing EEO programs and in reporting on their implementation. The reference to consultation with unions as contained in those Acts should also be adopted.

R112 (10.39)

The concept of designated groups should be retained in the new Act, and determination of the actual groups should continue to be made via regulation.

R113 (10.48)

. . . the Public Service Commissioner's role be to:

promote the maintenance of a high quality Senior Executive Service (SES) and be responsible for recruitment, promotion and separation of SES staff;

promote and uphold the principle that selection processes for recruitment and promotion shall be based on a proper assessment of merit;

promote the development of sound personnel management policies and practices in the APS, with particular reference to recruitment, promotion, mobility, redeployment and retirement;

promote the development and maintenance of high standards in relation to ethics and conduct and for dealing with misconduct;

promote APS-wide staff appraisal arrangements;

provide central coordination and support in relation to Service-wide training and staff development matters;

develop and promote policies in relation to EEO; and

provide a consultancy role to departments and in particular to small agencies.

Agree to the (following) statement of PSC functions:

In the new Act the Public Service Commissioner's role should be to:

a) promote the maintenance of a high quality Senior Executive Service (SES) and be responsible for recruitment, promotion and separation of SES staff;

b) promote and uphold the principle that selection processes for recruitment and promotion shall be based on a proper assessment of merit;

c) encourage and facilitate the implementation of sound people management practices by Secretaries and Heads of APS agencies by developing, promoting, reviewing and evaluating policies and practices in regard to:

recruitment, promotion, mobility, redeployment and retirement;

the maintenance of high standards of ethics and conduct and dealing with misconduct;

staff appraisal arrangements; and

equal employment opportunity;

d) provide central coordination and support in relation to Service-wide training and staff development matters; and

e) provide a consultancy role to departments and in particular to small agencies.

R114 (11.17)

. . . the parliamentary departments continue to be covered by the Public Service Act, and . . . the Secretaries of the parliamentary departments be granted the same staffing powers as Secretaries of executive departments.

R115 (12.14)

. . . all employees be given either a personal copy of the new Act (or an abridged version with some supporting explanation) or access to it on departmental systems (such as the Commonwealth Managers' Toolbox). All staff should also be given reasonable access to this report.

R116 (12.20)

. . . an initiative similar to the successful Financial Management Improvement Program be implemented. This initiative would focus on the need to develop appropriate strategies to equip managers to meet those added responsibilities, particularly in the highly devolved environment of today's APS.

R117 (12.34)

. . . the Public Service Commissioner provide a consultancy service to small agencies on personnel management issues, with a particular focus on the implementation of the new Act and related subordinate legislation.

R118 (12.36)

. . . sufficient funds be made available for work associated with implementation of a new Act and . . . the Public Service Commission and Department of Industrial Relations negotiate with the Department of Finance in the context of the 1995/96 Budget.

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Review of the Public Service Act