The purpose of this circular is to advise of an amendment to the arrangements set out in Chapter 2 of the Prime Minister’s Public Service Directions 1999 (the Prime Minister’s Directions) dealing with mandatory leave without pay for Australian Public Service (APS) employees to take up a full time statutory appointment. This circular replaces Part 1 of Public Service Act Implementation Advice No. 34 dated 3 December 1999 and has been prepared in consultation with the Department of the Prime Minister and Cabinet.
2. The Prime Minister’s Public Service Amendment Directions 2005 (No.1) (the Amendment Directions) amend the Prime Minister’s Directions. The new arrangements came into effect on 19 October 2005. A copy of the Amendment Directions is at Attachment A to this circular. A consolidated version of the Prime Minister’s Directions, including these amendments, will be available on the Attorney-General’s Department ComLaw website http://comlaw.gov.au/.
Mandatory leave without pay
3. Leave without pay will continue to be mandatory for ongoing APS employees (as defined in section 7 of the Public Service Act 1999 (the PS Act)) who apply for such leave to take up employment under certain provisions of the Members of Parliament (Staff) Act 1984 (the MoPS Act) and the Governor-General Act 1974 (the GG Act), or to extend a current period of employment under either of these Acts.
4. The right of return of APS employees granted leave without pay to take up employment under either of these Acts is set out in clause 2.2 of the Prime Minister’s Directions and is unchanged.
5. These arrangements are explained in more detail at Attachment B to this circular.
Discretionary leave without pay
6. Leave without pay will no longer be mandatory for APS employees wishing to take up a full time statutory appointment. Instead, the discretion to grant leave without pay will rest with the relevant agency head. Given this, references to statutory appointments have been removed from the Prime Minister’s Directions.
7. An APS employee will need to apply to his or her agency head for leave without pay in order to take up a statutory appointment. Agency heads are encouraged to ensure that the attraction of statutory appointments is not diminished. This is particularly the case where the proposed appointment is at a more junior level.
8. Agency heads may wish to take into account the following factors in deciding whether to grant leave without pay in a particular case.
- The nature of the appointment and the body to which the person is to be appointed.
- The broader interests of the Australian Government in having the best available person in such offices.
- The term of the appointment.
- Whether the appointment is for an initial or second term.
- The likelihood of the person resuming their career in the APS.
- The potential benefits to the agency/APS of the person resuming their career in the APS.
9. Where leave without pay is not granted, agencies should look at other options—for example, if an APS employee is refused leave without pay to take up a statutory appointment in another portfolio, it may be possible for the employee to be moved under section 26 the PS Act to the new portfolio and for that agency head to then grant a period of leave without pay.
10. Alternatively, an employee may choose to either resign from the APS to take up the appointment or to decline the appointment.
Access to accrued leave entitlements upon taking up a full time statutory appointment
11. APS employees who are granted leave without pay to take up a full time statutory appointment may not have automatic access to their accrued recreation leave and personal leave credits for the duration of the appointment. It will be up to the employee and/or the employing authority to initiate action to ensure continued access to these credits—for example, as part of the negotiations on terms and conditions of the statutory appointment. Appointments covered by the Remuneration Tribunal currently have no provision for the transfer of recreation leave credits where a person remains an APS employee, on leave without pay; however there is scope where a person resigns. Agencies should investigate the provisions applying at the time of the appointment.
12. It is important that any issues relating to the access, or otherwise, of accrued credits should be resolved before applications for leave without pay are considered. APS employees who resign to take up a statutory appointment will also need to be aware of the impact on their accrued entitlements.
13. The Amendment Directions include transitional provisions which provide that employees who, prior to 19 October 2005, were on approved leave without pay to take up a full time statutory appointment are entitled to remain on leave without pay for the duration of their existing period of leave without pay, and to exercise their right of return to the APS as set out in clause 2.2 of the Prime Minister’s Directions at any time during, or at the expiration of, the period of approved leave without pay (see Attachment B of this circular for further information about rights of return).
14. An application for leave without pay from an employee offered a new appointment, or an extension of an existing appointment, after the date the Prime Minister’s Directions were amended will be at the discretion of the employee’s agency head.
15. Further information on the matters raised in this circular is available from the APS Commission’s Employment Policy Adviceline—by e-mail employmentadvice [at] apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with in writing.
Acting Group Manager, Policy
Attachment B: Leave without pay for APS employees taking up employment under the Members of Parliament (Staff) Act 1984 (MoPS Act) or the Governor-General Act 1974 (G-G Act)
Mandatory leave without pay
Clause 2.1 of the Prime Minister’s Public Service Directions 1999 (Prime Minister’s Directions) provides that where an ongoing APS employee applies for leave without pay to undertake employment for the purposes of sections 13 or 20 of the MoPS Act, or section 13 of the G-G Act, the employee’s agency head must grant the application. This also applies to any application to extend a period of leave without pay for the purposes of employment under either of these Acts.
Portability of entitlements
APS employees who are granted leave without pay in accordance with clause 2.1 of the Prime Minister’s Directions may wish to establish whether their leave credits will be recognised when taking up employment under either the MoPS Act or G-G Act. The following sets out the situation under the relevant certified agreements as at October 2005—employees should obtain up to date information at the time leave without pay is sought:
- Clause 46.4 of the Members of Parliament Staff (Commonwealth) Certified Agreement 2003-2006 provides that an ongoing MoPS Act employee who immediately prior to appointment was an ongoing employee as defined in the Public Service Act will have all their leave credits recognised on appointment under the MoPS Act.
- Similarly, clause 92.1 of the Office of the Official Secretary to the Governor-General Certified Agreement 2005-2008 provides that where an employee is recruited to the Office from an APS agency or the Parliamentary Service, the Office may recognise all existing unused accrued recreation leave and sick leave which that employee had accrued in those agencies. However, the recognition of unused recreation leave credits is subject to payment being received for the unused accrued recreation leave liability from the employee's former agency.
Rights of return for employees subject to mandatory leave without pay provisions
Clause 2.2 of the Prime Minister’s Directions provides that where an APS employee who has been granted leave in accordance with clause 2.1 wishes to return to the APS, the employee must notify his or her 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.
- an employee’s agency head in these circumstances is the agency head of the agency in which the employee was last employed, or, in circumstances where a machinery of government change has resulted in the employee being moved to another agency, the agency head of the gaining agency.
Where an employee notifies his or her agency head under clause 2.2, the agency head must arrange for the APS employee to return to the agency as soon as practicable. The agency head must also arrange for the employee to undertake duties at:
- the employee's classification immediately before the employee was granted leave without pay; or
- where the employee was initially granted leave prior to the commencement of the PS Act on 5 December 1999, the employee's corresponding classification for the purposes of section 5 of the Public Employment (Consequential and Transitional) Amendment Act 1999;
- clause 2.2 also provides that where the employee’s former 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 Public Service Classification Rules 2000 when deciding on the appropriate classification.