Last updated 1 July 2013
This page provides advice to Australian Public Service (APS) agencies on:
- the arrangements in place under the Australian Public Service Commissioner’s Directions 2013 (Commissioner’s Directions) relating to the mandatory granting of leave without pay in certain circumstances to take up other government employment; and
- discretionary leave without pay provisions that agencies can use in order to allow an employee to take up a statutory appointment.
1. Mandatory leave without pay to take up employment under the Members of Parliament (Staff) Act 1984 or the Governor-General Act 1974
Subclause 7.4(1) of the Commissioner’s Directions (available at the following link: http://www.comlaw.gov.au/Details/F2013L00448) provides that an agency head must approve an application for leave without pay from an ongoing APS employee to undertake employment for the purposes of s.13 or 20 of the Members of Parliament (Staff) Act 1984(MoPS Act), or s.13 of the Governor-General Act 1974 (G-G Act), or to extend a current period of employment under either of these Acts.
- section 13 of the MoPS Act relates to the employment of staff by office holders as defined under the MoPS Act, while s.20 relates to the employment of staff by Senators or Members of the House of Representatives.
- section 13 of the G-G Act relates to the employment of persons as a member of the Governor‑General’s staff.
Note that there is still a requirement for ongoing employees to apply for leave without pay in these circumstances – the Commissioner’s Directions provide that where an employee applies for leave without pay it must be granted. Ongoing employees should be advised of the availability of leave without pay to take up MoPS Act or G-G Act employment. However, if an employee chooses not to apply for leave without pay, the employee should be advised to resign from his/her APS employment in order to take up employment under either the MoPS Act or G-G Act.
1.1 Right of return to the APS
Subclause 7.4(2) of the Commissioner’s Directions provides that where an ongoing APS employee who has been granted leave without pay to take up MoPS Act or G-G Act employment notifies his or her agency head in writing that he/she wishes to return to the agency to undertake duties, the relevant agency head must arrange for the employee to return to the agency as soon as practicable, and undertake duties at the employee’s classification immediately before the employee was granted leave without pay (or if the classification no longer exists, at an equivalent classification determined by the agency head).
- 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.
- This notification that the employee wishes to return to APS employment may occur at any stage of approved leave without pay.
1.2 Portability of entitlements
APS employees who are granted leave without pay in accordance with subclause 7.4(1) of the Commissioner’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 Members of Parliament Staff enterprise agreement 2012-15:
59.1 Employees, other than casual employees, who are:
- employed by an agency as defined in section 5 of the Financial Management and Accountability Act 1997; and
- who are granted leave without pay from that employer (the former employer) to undertake MOP(S) Act employment,
will have all their accrued leave credits recognised.
59.2 An employee’s entitlement to the accrued leave credits specified in clause 59.1 and to any future leave entitlements will be in accordance with this Agreement.
59.3 On an employee’s return to the former employer at the cessation of MOP(S) Act employment, the employee’s accrued leave entitlements will be transferred to the former employer and will not be paid in lieu.
The Office of the Official Secretary to the Governor-General enterprise agreement 2011-14 provides as follows
97.1 Where an employee is recruited to the Office from an APS agency or the Parliamentary Services, the Office may recognise all existing unused accrued Recreation Leave and Sick Leave, which that employee has accrued in those agencies. 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. All future credits of leave for new employees will be under the terms of this Agreement.
1.3 Transitional arrangements
Prior to 1 July 2013, mandatory leave without pay provisions for APS employees seeking to take up MoPS Act or G-G Act employment were included in the Prime Minister’s Public Service Directions 1999 (PM’s Directions). The PM’s Directions were repealed with effect from the commencement of the Australian Public Service Commissioner’s Directions 2013 on 1 July 2013. Periods of leave approved prior to 1 July 2013 under the PM’s Directions, and the right of return to the APS of employees granted leave prior to this date, are not affected by this change.
2. Discretionary leave without pay in order to take up a statutory appointment
An APS employee wishing to take up an appointment to a statutory office may apply for leave without pay to their agency head. Approval of leave without pay is not mandatory in these circumstances - the discretion to grant leave rests with the relevant agency head.
In considering whether to grant leave without pay in these circumstances, an agency head may wish to take into account the following factors:
- 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 (or subsequent) term;
- the likelihood of the person resuming their career in the APS; and
- the potential benefits to the agency/APS of the person resuming their career in the APS.
Where a request for leave without pay is not granted, agencies may wish to investigate 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 relevant agencies and the employee concerned to agree that the employee be moved under section 26 the PS Act to an agency in the other portfolio and for that agency head to then grant a period of leave without pay.
Alternatively, an employee may choose to either resign from the APS to take up the appointment or to decline the appointment.
3. Access to leave entitlements for employees granted leave without pay to take up a statutory appointment
APS employees who are granted leave without pay to take up a full time statutory appointment may not have automatic access to their previously accrued annual leave and personal leave credits for the duration of the appointment.
In particular, statutory appointments to certain offices which have recreation leave determined 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 leave is transferrable where an APS employee resigns and does not receive payment in lieu for that credit (Remuneration Tribunal Determination 2012/11 - Recreation leave for Full-time Holders of Relevant Offices refers).
For other appointments, it is the responsibility of the employee and/or the employing authority to initiate action to ensure continued access to recreation leave credits—for example, as part of the negotiations on terms and conditions of the statutory appointment.
Agencies should investigate the provisions applying at the time of the appointment. It is important that any issues relating to the access, or otherwise, of accrued credits are 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.
For all appointments, arrangements in relation to the transfer of personal leave and access to other types of leave are dependent on specific arrangements for each office holder, at the discretion of the relevant decision-maker, often the Minister or a Board. Likewise arrangements (other than for recreation leave) made in respect of an office holder granted leave without pay to take up a public office, are matters for the agency granting the leave.
3.1 Transitional provisions
Prior to 19 October 2005, the PM’s Directions included mandatory leave without pay provisions for ongoing APS employees taking up full-time statutory appointments.
These provisions were repealed on that date and transitional provisions were included in the PM’s Directions in operation after 19 October 2005 which applied to employees who, prior to that date, were on approved leave without pay to take up a full time statutory appointment.
These transitional provisions have now been included in clause 7.5 of the Commissioner’s Directions and provide that any employees who, prior to 19October 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, and to exercise their right of return to the APS as set out in clause 7.4(2) of the Commissioner’s Directions at any time during, or at the expiration of, the period of approved leave without pay.
However, any application for leave without pay from an employee offered a new appointment, or an extension of an existing appointment, on or after the 19 October 2005 will be at the discretion of the employee’s agency head.
4. Other leave without pay
Agencies are able to determine their own policies in relation to the granting of leave without pay for other purposes, including where an employee wants to take up other employment outside the APS, to accompany a spouse on an overseas posting or for a range of other reasons.
- Agencies should note that the Prime Minister’s Australian Civilian Corps Directions 2012 (ACC Directions) issued under the Australian Civilian Corps Act 2011, include provisions in relation to the granting of leave without pay to APS and certain other Commonwealth employees to attend compulsory Australian Civilian Corps (ACC) training and for deployment as an ACC employee. The ACC Directions are available on Comlaw.
The ACC Directions also provide a right of return to APS employment for APS employees granted leave without pay in accordance with the ACC Directions. For further information on the operation of these provisions, agencies should contact AUSAID.