This circular has been replaced by the documents referred to in Circular 2004/9
The purpose of this circular is to advise agencies of changes to the Public Service Commissioner’s Directions (the Directions) dealing with the engagement of persons who have received a redundancy benefit from Commonwealth employment.
2. The Directions provide that an Agency Head must put in place measures to ensure that a person is not engaged as an ongoing Australian Public Service (APS) employee if the person has received a redundancy benefit from an APS Agency or a non-APS Commonwealth employer and 12 months has not passed since the person’s previous employment ended. Agency Heads have some discretion to engage persons as non-ongoing employees (at a classification below the Senior Executive Service (SES) level), usually after consultation with the Public Service Commissioner.
3. Further details on the operation of these provisions is set out in Public Service Act Implementation Advice Number 29–Limitations on the engagement of persons who have received a redundancy benefit. This advice is available on the Commission’s website.
Scope of the amendments
4. The Public Service Commissioner has now made Public Service Commissioner’s Amendment Directions 2002 (No.1) (the Amendment Directions) which:
- extends the limitation on the subsequent employment of persons who have received a redundancy benefit from Commonwealth employment to persons being engaged overseas to perform duties overseas as employees under section 74 of the Public Service Act 1999 (the Act); and
- amends certain terms defined in the Directions to clarify the operation of these provisions.
5. A copy of the Amendment Directions is at Attachment A.
Application to the engagement of persons overseas to perform duties overseas
6. Under section 74 of the Act, an Agency Head may, on behalf of the Commonwealth, engage persons overseas to perform duties overseas as employees. Such persons, however, are not APS employees as defined in the Act and they have not been covered by the arrangements set out in the Directions, which explicitly apply only to the engagement of persons as APS employees.
7. Under the Amendment Directions, an Agency Head must put in place measures to ensure that a person is not engaged overseas to perform duties overseas as an employee under section 74 of the Act if:
- the person has received a redundancy benefit from an Agency or a non-APS Commonwealth employer; and
- 12 months has not passed since the person’s employment ended.
8. However, an Agency Head may engage such a person if the engagement is to be for a specified term and the Agency Head:
- considers the engagement of the person to be essential to the Agency's operations having regard to the nature of the duties to be performed and the skills, experience and qualifications of the person; and
- has consulted the Public Service Commissioner before engaging the person.
9. The new arrangements apply both to the engagement of former APS or other Commonwealth employees as locally engaged employees (LEE) and to the engagement of a former LEE who has received a redundancy benefit in another LEE position. The Directions already apply to a former LEE who has received a redundancy benefit from seeking engagement as an APS employee for a period of 12 months.
10. The discretion available to Agency Heads to engage persons overseas to perform duties overseas for a specified term after first consulting with the Public Service Commissioner is broadly consistent with the arrangements that are currently in place for the engagement of persons who have received a redundancy benefit as non-ongoing APS employees. The criteria which the Commissioner will have regard to in considering any such proposals are set out in Attachment B.
Amendment to the definition of ‘redundancy benefit’
11. The term ‘redundancy benefit’ is currently defined in the Dictionary to the Directions as meaning a severance payment or similar payment made to an employee on cessation of the employee's employment, including a payment made to an employee as a result of the shortening of a retention period as well as payments made to SES employees under section 37 of the Act.
12. The Amendment Directions amend this definition to make it clear that a ‘redundancy benefit’ does not include:
- a payment made to a person for early termination of a period of non-ongoing employment; or
- a payment made to a person engaged overseas who ceases employment other than at the initiative of the employer.
13. In relation to the first dot point, it is not unusual for a non-ongoing employee whose employment is terminated early for reasons outside their control (e.g. where the duties are no longer available or are no longer required to be performed) to be paid an amount as compensation for the foreshortening of the engagement. Such payments are not redundancy benefits and non-ongoing employees who receive such a payment are not restricted under the Directions from applying for subsequent employment in the APS.
14. In relation to the second dot point, it is necessary to recognise that in some overseas jurisdictions, employees who resign receive a separation payment under local law. The definition has therefore been amended to exclude such payments from the definition of a ‘redundancy benefit’.
Amendment to the definition of ‘non-APS Commonwealth employer’
15. The term 'non-APS Commonwealth employer' currently includes employment:
- with non-APS Commonwealth employers such as the Australian Defence Force, the Parliamentary Departments or under the Members of Parliament Staff Act 1984;
- in non-APS Commonwealth authorities (e.g. Airservices Australia, Australian Federal Police, Australian Sports Commission, Australian Trade Commission, Civil Aviation Safety Authority, Commonwealth Scientific and Industrial Research Organisation, Health Insurance Commission, High Court of Australia, National Gallery of Australia);
- in Government Business Enterprises (GBEs) (e.g. Australian Government Solicitor, Australian Postal Corporation, Employment National Limited, Health Services Australia Limited, Medibank Private Limited, Snowy Mountains Hydro-electric Authority, Telstra Corporation Limited); and
- in companies in which a GBE has a controlling interest, such as Pacific Access which is owned by Telstra.
16. The Amendment Directions amend this definition to make it clear that while it continues to include all Commonwealth employers, including a company in which the Commonwealth has a controlling interest, it does not include other organisations, such as charities or community groups, which simply receive funding from the Commonwealth.
Date of effect
17. The Amendment Directions came into effect on 18 June 2002, the date of gazettal, and were tabled in both Houses of Parliament on 20 June 2002.
18. The Amendment Directions are subject to parliamentary scrutiny, which means that a notice of disallowance may be given in either House of Parliament within 15 sitting days of tabling. Should such a notice be given, the Amendment Directions may be disallowed by resolution of either House. In the event of disallowance, the Directions, as they existed before 18 June 2002, would be revived from the date of disallowance.
19. Further advice will be issued should the Amendment Directions be disallowed.
20. General enquiries in relation to these matters can be directed to the Commission’s Helpline on (02) 6202 3859.
Acting Group Manager
Staffing, Structures and Performance Group
21 June 2002
not available electronically
Engagement of persons as non-ongoing APS employees or as specified term overseas employees
The Commissioner will have regard to the following factors in considering proposals submitted by Agency Heads for the engagement of a person who has received a redundancy benefit from Commonwealth employment within the previous 12 months as a non-ongoing APS employee in accordance with clause 4.4A(2) of thePublic Service Commissioner’s Amendment Directions 2002 (No.1)or as an overseas employee in accordance with clause 4.4B(2) of the Public Service Commissioner’s Amendment Directions 2002 (No.1):
- the length of the proposed engagement;
- the specific skills, experience and/or qualifications required for the performance of the particular duties;
- what attempts has been made to attract applications from other suitably qualified applicants who have not received a redundancy benefit in the preceding 12 months; and
- any other relevant factors.
Explanatory statement Public Service Commissioner's Amendment Directions 2002 No. 1
Public Service Commissioner's Amendment Directions 2002 (no.1)