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Australian Border Force Bill 2015

Part 4 Termination of employment in the Department for serious misconduct

   

31   Simplified outline of this Part

•      If the Secretary terminates the employment of an APS employee in the Department and the Secretary or the Australian Border Force Commissioner reasonably believes that the employee’s conduct or behaviour amounts to serious misconduct, the Secretary or the Commissioner may make a declaration to that effect.

•      The effect of the declaration is that provisions of the Fair Work Act 2009 dealing with unfair dismissal, and notice of termination or payment in lieu, will not apply to the APS employee.

32   Termination of employment for serious misconduct

             (1)  This section applies if the Secretary terminates the employment of an APS employee in the Department and the Secretary or the Australian Border Force Commissioner reasonably believes that the employee’s conduct or behaviour or any part of it:

                     (a)  amounts to serious misconduct by the APS employee; and

                     (b)  is having, or is likely to have, a damaging effect on:

                              (i)  the professional self-respect or morale of some or all of the APS employees in the Department; or

                             (ii)  the reputation of the Department with the public or any section of the public, with an Australian or overseas government or with a person or body to whom information may be disclosed under Part 6.

Note:          See section 29 of the Public Service Act 1999 for the termination of the employment of an APS employee in the Department.

             (2)  The Secretary or the Australian Border Force Commissioner may make a written declaration that he or she has the belief referred to in subsection (1) in relation to the APS employee.

Timing of declaration

             (3)  A declaration under subsection (2) must be made within 24 hours of the Secretary’s decision to terminate the APS employee’s employment.

Copy of declaration to be given to APS employee

             (4)  If the Secretary or the Australian Border Force Commissioner makes the declaration for the APS employee, the Secretary or the Commissioner must give the APS employee a copy of the declaration.

Effect of declaration on Fair Work Act

             (5)  If the Secretary or the Australian Border Force Commissioner makes the declaration for the APS employee, the Fair Work Act 2009 (other than Part 3-1 and Division 9 of Part 3-3 of that Act) does not apply in relation to:

                     (a)  the termination of the APS employee’s employment; or

                     (b)  the making of the declaration.

Note 1:       This means, for example, that the provisions of the Fair Work Act 2009 dealing with unfair dismissal, and notice of termination or payment in lieu, do not apply in relation to the APS employee.

Note 2:       Part 3-1 of the Fair Work Act 2009 deals with general protections, and Division 9 of Part 3-3 of that Act deals with payments relating to periods of industrial action.

             (6)  To avoid doubt, subsection (5) applies despite section 8 of the Public Service Act 1999 .

Report to Minister

             (7)  The Secretary or the Australian Border Force Commissioner must give the Minister a written report containing the following, as soon as practicable after making the declaration:

                     (a)  the grounds for the Secretary’s or Commissioner’s belief referred to in subsection (1) in relation to the APS employee;

                     (b)  the nature and findings of any investigation of, or inquiry into, the APS employee’s conduct or behaviour;

                     (c)  details of any other matter the Secretary or Commissioner considers relevant.

Declaration not a legislative instrument

             (8)  A declaration under subsection (2) is not a legislative instrument.