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Public Service Bill 1999

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1999

 

 

 

The Parliament of the Commonwealth of Australia

 

House of Representatives

 

 

 

 

 

 

 

 

Public Service Bill 1999

 

 

 

 

 

Supplementary Explanatory Memorandum

 

Amendments and new clauses to be moved on behalf of the Government

 

 

 

(Circulated by Authority of the Minister for Education, Training and Youth Affairs and the Minister Assisting the Prime Minister for the Public Service,

the Honourable David Kemp, MP)

 

 

 

 

 

 

 

 

 

 

Cat. No.                                                     ISBN





 

CONTENTS

PUBLIC SERVICE BILL 1999 - OUTLINE......................................................................................................................... 1

Financial Impact Statement............................................................................................................................... 2

Background.................................................................................................................................................................... 2

Outline of amendments.......................................................................................................................................... 3

Public Employment (Consequential and Transitional) Amendment Bill 1999...................... 3

Public Service Bill 1999............................................................................................................................................... 3

NOTES ON AMENDMENTS................................................................................................................................................... 4

Part 1 - Preliminary................................................................................................................................................... 4

Clause 3 - Objects of this Act....................................................................................................................................... 4

Part 2 - Interpretation............................................................................................................................................ 5

Clause 7 - Interpretation.............................................................................................................................................. 5

AWA............................................................................................................................................................................ 5

Award........................................................................................................................................................................... 5

Category of APS employee....................................................................................................................................... 5

Certified agreement..................................................................................................................................................... 5

Non-ongoing APS employee.................................................................................................................................... 5

Ongoing APS employee............................................................................................................................................. 6

Presiding Officer.......................................................................................................................................................... 6

Commissioner’s Directions........................................................................................................................................ 6

Part 3 - The Australian Public Service.......................................................................................................... 7

Clause 10 - APS Values................................................................................................................................................ 7

(c)      No discrimination.............................................................................................................................................. 7

(e)      Accountability.................................................................................................................................................. 7

(g)     Service delivery................................................................................................................................................. 7

(i)       Co-operative workplace relations................................................................................................................... 7

(l)       Equity in employment...................................................................................................................................... 7

(m)     Access to APS employment........................................................................................................................... 8

(n)     A career-based service.................................................................................................................................... 8

(o)     Review of employment decisions................................................................................................................... 8

(j)       A good workplace............................................................................................................................................ 8

Clause 11 - Commissioner’s directions about APS Values.................................................................................... 9

Clause 14 - Agency Heads bound by Code of Conduct.......................................................................................... 9

Clause 15 - Breaches of the Code of Conduct.......................................................................................................... 9

Clause 16 - Protection for whistleblowers............................................................................................................. 10

Part 4 - APS employees............................................................................................................................................ 11

Division 1 - APS employees generally............................................................................................................. 11

Clause 21 - Prime Minister’s directions to Agency Heads.................................................................................. 11

Clause 22 - Engagement of APS employees............................................................................................................ 11

Clause 23 - Classification Rules............................................................................................................................... 12

Clause 24 - Remuneration and other conditions.................................................................................................. 13

Clause 29 - Termination of employment.................................................................................................................. 15

Clause 31 - Forfeiture of additional remuneration.............................................................................................. 16

Clause 33 - Review of Actions................................................................................................................................... 16

Division 2 - The Senior Executive Service...................................................................................................... 17

Clause 36 - Commissioner’s Directions on SES matters...................................................................................... 17

Clause 38 - Termination not subject to Workplace Relations Act..................................................................... 18

Part 5 - The Public Service Commissioner................................................................................................... 19

Division 1 - Commissioner’s functions etc................................................................................................. 19

Clause 41 - Commissioner’s functions..................................................................................................................... 19

Clause 44 - Annual report......................................................................................................................................... 19

Division 2 - Public Service Commissioner’s appointment, conditions etc............................... 20

Clause 45 - Appointment of Commissioner............................................................................................................. 20

Clause 46 - Remuneration etc................................................................................................................................... 20

Part 6 - The Merit Protection Commissioner........................................................................................... 21

Division 1 - Merit Protection Commissioner’s functions etc......................................................... 21

Clause 50 - Merit Protection Commissioner’s functions..................................................................................... 21

Clause 51 - Annual report......................................................................................................................................... 22

Division 2 - Merit Protection Commissioner’s appointment, conditions etc....................... 22

Clause 52 - Appointment of Merit Protection Commissioner............................................................................. 22

Clause 53 - Remuneration etc................................................................................................................................... 22

Part 7 - Secretaries of Departments............................................................................................................ 24

Clause 57 - Responsibility for managing Department......................................................................................... 24

Clause 58 - Appointment etc of Secretary............................................................................................................... 24

Clause 59 - Termination of appointment................................................................................................................ 24

Clause 61 - Remuneration and other conditions.................................................................................................. 25

Clause 63 - Annual Report........................................................................................................................................ 25

Part 9 - Executive Agencies.................................................................................................................................. 26

Clause 66 - Responsibility for managing Agency................................................................................................. 26

Clause 67 - Appointment etc of Head...................................................................................................................... 26

Clause 68 - Remuneration......................................................................................................................................... 26

Clause 70 - Annual Report........................................................................................................................................ 27

Part 10 - Administrative arrangements and re-organisations................................................ 28

Clause 72 - Machinery of government changes..................................................................................................... 28

Part 11 - Miscellaneous......................................................................................................................................... 30

Clause 76 - Release of personal information......................................................................................................... 30

Clause 78 - Delegations............................................................................................................................................. 30

Clause 79 - Regulations............................................................................................................................................. 31

ATTACHMENTS.................................................................................................................................................................... 33

A:   Abbreviations....................................................................................................................................................... 34

 

 



 

PUBLIC SERVICE BILL 1999 - OUTLINE

1.                The Public Service Bill 1999 (hereafter ‘Bill’) is intended to replace the current legislative framework for the establishment and management of the Australian Public Service (‘APS’).

 

2.                The Bill is an element in the Government’s public service reform agenda, which has three parts

•                 modernising the APS legislative framework- this is being done in this Bill which is a careful balance between devolved responsibility and improved accountability;

•                 simplifying APS awards and agreement-making processes - this is being done by the Department of Employment, Workplace Relations and Small Business (‘DEWRSB’) in accordance with the Workplace Relations Act 1996 (‘WRA’); and

•                 transforming the APS management culture - this will be the responsibility of Agency Heads.

 

3.                This public service reform agenda is being implemented within the new workplace relations framework that has been set out in the WRA .   The Government considers that 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 Australian workforce.

 

4.                Within the general employment arrangements for the community as a whole the Bill sets out

•                 the important values and culture the Parliament wants in the APS (see Bill Part 3);

•                 the role and powers of Agency Heads, and their relationship to Ministers, in a clear and public way;

•                 a clear statement to those within the APS, and to the Australian people, of the conduct that is expected of public servants (see Bill cl.13);

•                 as part of accountability, significant new inquiry, evaluation and reporting powers for the Public Service Commissioner including an annual State of the Service Report to the Parliament (see Bill Part 5 Division 1);

•                 an independent mechanism for review of employment actions affecting the employment of an APS employee (see Bill cl.33 and Bill Part 6); and

•                 a mechanism by which Government decisions on administrative arrangements and reorganisations can be implemented (see Bill Part 10).



Financial Impact Statement

5.                The Bill seeks to provide a legal framework for APS employment which achieves an optimal balance between improved accountability and devolved responsibility (summarised at Attachment A) so as to maximise the efficiency and effectiveness of the APS.

 

6.                This Bill is intended to improve the quality of people management in the APS. This, in turn, is expected to translate, among other things, into

•                 more efficient, effective and ethical use of the Commonwealth’s resources (cf. Financial Management and Accountability Act 1997 (‘FMA Act’) s.44);

•                 responsiveness to Government in providing timely advice and implementing the Government’s policies and programs; and

•                 fair, effective, impartial and courteous services for all Australians.

 

Background

7.                The Public Service Bill 1999 was introduced into the House of Representatives on 30 March 1999.  The Bill was identical to the Public Service Bill 1997, introduced into the House on 26 June 1997 and subsequently amended in November 1997.

 

8.                The 1997 Bill was referred to the Joint Committee of Public Accounts (‘JCPA’) together with the accompanying Public Employment (Consequential and Transitional) Amendment Bill 1997.  The Committee’s Report 353, ‘An Advisory Report on the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997’ (‘JCPA Report’) was handed down on 29 September 1997.

 

9.                The Government accepted the thrust of the recommendations of the Committee, either fully or in large measure, and moved related amendments in the House of Representatives.  On 30 October 1997, the Government also moved amendments to clarify the meaning of clauses of the Bill and amendments of a technical nature.  The principal purpose of the Bill was not affected by the amendments which were made.

 

10.              The amended Public Service Bill 1997 was introduced into the Senate on 11 November 1997.  The Senate effected further significant amendments to that Bill and it was returned to the House of Representatives with those amendments at the end of November 1997.

 

11.              On 5 December 1997, the Minister Assisting the Prime Minister for the Public Service informed the House of Representatives that the Government had rejected outright the amendments made to the Public Service Bill 1997 by the Senate, and that the legislation would be returned to the Senate unchanged after three months.  That Bill was formally laid aside in the House of Representatives on 5 December 1997.

 

12.              The Bill was subsequently reintroduced unchanged into the House of Representatives on 5 March 1998.  After passage through the House, the legislation was returned to the Senate which made the same amendments to the Bill as it had in November 1997.  On 6 April 1998 the Government again rejected outright the amendments made by the Senate, and the Bill was laid aside.

 

13.              The terms of the Public Service Bill 1999 have been considered further, since its introduction in March 1999, following consultation with the Opposition.  As a result, the Government is proposing various amendments to the Bill.  Those amendments will not affect the principal purpose and objectives of the Bill.

 

Outline of amendments

14.              The principal amendments to the Bill are in the following areas:

·                                     expanding of the APS Values;

·                                     clarifying the sanctions applicable to breaches of the Code of Conduct and the applicability of the Code to statutory office holders;

·                                     expanding the responsibilities of the Merit Protection Commissioner;

·                                     enhancing accountability and reporting requirements in a number of areas;

·                                     increasing the protections afforded to employees against reduction in their entitlements under an award, certified agreement or Australian Workplace Agreement;

·                                     extending the processes for the review of actions affecting employees; and

·                                     elaborating on the responsibilities of Heads of Executive Agencies.

 

There are also amendments which have been made to clarify the meaning of other clauses of the Bill or which are of a technical nature.

 

Public Employment (Consequential and Transitional) Amendment Bill 1999

15.              Amendments are also proposed to the Public Employment (Consequential and Transitional) Amendment Bill (‘CTA Bill’).  Details are provided in a separate explanatory memorandum on those amendments.

 

Public Service Bill 1999

16.              Notes on the proposed amendments to the current Bill are set out below.

 



NOTES ON AMENDMENTS

Part 1 - Preliminary

Clause 3 - Objects of this Act

1.1              It is proposed to insert in cl.3 of the Bill a new para (ba) providing the following additional objective of the Bill:

‘(ba)  to define the powers, functions and responsibilities of Agency Heads, the Public Service Commissioner and the Merit Protection Commissioner;’



Part 2 - Interpretation

Clause 7 - Interpretation

2.1              It is proposed to amend cl.7 of the Bill, which contains various interpretative provisions for the purposes of the Bill, by adding the following definitions:

AWA

2.1.1           When used in the Bill, the term ‘AWA’ (Australian Workplace Agreement) will have the same meaning as in the Workplace Relations Act 1996.  Reference is made to this term in the proposed amendment of s-cl.24(1) of the Bill (para 4.6(a) of this Ex. Memo. refers).

Award

2.1.2           When used in the Bill, the term ‘award’ will have the same meaning as in the Workplace Relations Act 1996 .  It is proposed to omit the definition of this term currently appearing in s-cl.24(2) of the Bill (para 4.15 of this Ex. Memo. refers).

Category of APS employee

2.1.3           When used in the Bill, the term ‘category of APS employee will mean one of the following categories:

(a)               ongoing APS employees;

(b)               APS employees engaged for a specified term or for the duration of a specified task;

(c)               APS employees engaged for duties that are irregular or intermittent.  The term is mentioned in cl.15 of the Bill which deals with breaches of the Code of Conduct.

Certified agreement

2.1.4           When used in the Bill, the term ‘certified agreement’ will have the same meaning as in the Workplace Relations Act 1996 .  It is proposed to omit the definition of this term currently appearing in s-cl.24(2) of the Bill (para 4.19(b) of this Ex. Memo. refers).

Non-ongoing APS employee

2.1.5           When used in the Bill, the term ‘non-ongoing APS employee’ will mean a person who is not an ongoing APS employee.  The term is mentioned in cl.29 of the Bill which deals with the termination of employment of an APS employee.

Ongoing APS employee

2.1.6           When used in the Bill, the term ‘ongoing APS employee’ will mean a person who is engaged as an ongoing APS employee, as mentioned in para 22(1A)(a) of the Bill.

Presiding Officer

2.1.7           When used in the Bill, the term ‘Presiding Officer’ will mean the President of the Senate or the Speaker of the House of Representatives.

Commissioner’s Directions

2.1.8           This term is currently defined in cl.7 of the Bill to mean directions issued by the Commissioner in relation to APS Values (see Bill cl.11) or about employment matters relating to SES employees (see Bill cl.36).

2.1.9           It is proposed to amend the definition by inserting a reference to directions which will be issued by the Commissioner under cl.15 of the Bill in relation to procedures which must be established by an Agency for purposes of dealing with a breach of the Code of Conduct by an employee of the Agency.



Part 3 - The Australian Public Service

Clause 10 - APS Values

3.1              Clause 10 of the Bill sets out a declaration of APS Values within which the employment powers of Agency Heads will be exercised and for which they will be accountable.

3.2              it is proposed to amend existing values (c), (e), (g) and (i), and to insert new values (l), (m), (n), and (o), in cl.10 of the Bill.  Details of the proposed amendments are set out below.

(c)              No discrimination

3.2.1           It is proposed to amend this value to provide that the APS will provide a workplace that is free from discrimination and utilises the diverse nature of the Australian community it serves.

3.2.2           The proposed amendment will mean that this value will have a wider coverage than the present wording which provides for recognition only of the diverse backgrounds of APS employees.

(e)              Accountability

3.2.3           It is proposed to amend this value to provide that the APS will be ‘openly’ accountable for its actions under the terms of this value.

(g)              Service delivery

3.2.4           It is proposed to amend this value to provide that, in delivering services to the Australian Public, the APS will be sensitive to its diversity.

(i)               Co-operative workplace relations

3.2.5           It is proposed to amend this value to widen its scope to provide that the APS will establish workplace relations that value communication, consultation, co-operation and input from employees on matters that affect their workplace.

(l)                Equity in employment

3.2.6           It is proposed to insert a new value to provide that the APS will promote equity in employment.

(m)             Access to APS employment

3.2.7           It is proposed to insert a new value to affirm that the APS will provide a reasonable opportunity to all eligible members of the community to apply for APS employment.  This complements existing value (b), which provides that the APS will be a public service in which employment decisions are based on merit.

(n)              A career-based service

3.2.8           It is proposed to insert a new value to provide that the APS will be a career-based service to enhance the effectiveness and cohesion of Australia’s democratic system of government.  This new value serves to affirm that the APS will remain an effective repository of knowledge about government administration and service delivery.

(o)              Review of employment decisions

3.2.9           It is proposed to insert a new value to assert that the APS will provide a fair system of review of decisions taken in respect of APS employees.  This new value will complement the amended value (i), which will provide for cooperative workplace relations in the APS - para 3.2.5 above refers.

3.3              In addition to the proposed amendments and additions to the statement of APS Values in cl.10 of the Bill as outlined above, the Government has decided that it is appropriate to set out in this Ex Memo the intended application of proposed value (j), without amending the current, proposed wording of that value.

(j)                A good workplace

3.3.1           Under proposed value (j), the APS will provide a fair, flexible, safe and rewarding workplace.  While workplace arrangements will be primarily the responsibility of individual agencies, the Government also sees this value as encompassing the application of certain consistent principles operating in the APS workplace and applying to APS employment.  While these principles will not be legally binding in the same way as the APS Values, the Government expects APS agencies to promote and embody them.

3.3.2           The principles are as follows:

Principles of APS employment

The APS provides its employees with:

1.      fair and flexible remuneration and conditions of employment;

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

3.      an environment where, consistent with the Workplace Relations Act 1996, employees have the freedom to join industrial associations of their choice, or not to join industrial associations; and

4.      opportunities for appropriate training and development.

Clause 11 - Commissioner’s directions about APS Values

3.4              It is proposed to amend cl.11 of the Bill by substituting a new s-cl.(1) to provide that directions in writing issued by the Commissioner will be for the purpose of ensuring that the APS both incorporates and upholds each APS Value and for determining, where necessary, the scope or application of each Value.

Clause 14 - Agency Heads bound by Code of Conduct

3.5              It is proposed to amend cl.14 of the Bill by adding a new s-cl.(2), providing that statutory office holders will be bound by the APS Code of Conduct (cl.13 of the Bill refers) in the same way as APS employees.  Proposed new s-cl.14(3) of the Bill defines ‘statutory office holder’ to mean a person who holds any office or appointment under an Act, being an office or appointment that is prescribed by the regulations for the purposes of the definition.

3.6              The effect of the proposed amendments will be that an Agency Head who is a statutory office holder, and whose office or appointment is prescribed by the regulations, will be bound by the Code of Conduct in the same way as other Agency Heads.

3.7              It is envisaged that the regulations would prescribe that all Agency Heads of the agencies listed in Parts C and D of Attachment C of the original Ex. Memo. for this Bill would be bound by the Code of Conduct.

Clause 15 - Breaches of the Code of Conduct

3.8              Clause 15 of the Bill provides for prescription in the regulations of the sanctions that an Agency Head may impose on an employee who is found to have breached the Code of Conduct (cl.13 of the Bill refers).

3.9              It is proposed to omit cl.15 of the Bill and to substitute a new cl.15 in the following terms.

3.10            Proposed new s-cl.15(1) of the Bill will provide that an Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under s-cl.15(3) of the Bill) to have breached the Code of Conduct:

(a)               termination of employment;

(b)              reduction in classification;

(c)               re-assignment of duties;

(d)              reduction in salary;

(e)               deductions from salary, by way of fine, and

(f)               a reprimand.

Proposed para 15(1)(f) of the Bill will now provide for an additional sanction of a reprimand.

3.11            Proposed new s-cl.15(2) of the Bill will provide that the regulations may prescribe limitations on the power of an Agency Head to impose sanctions under s-cl.15(1) of the Bill.

3.12            Proposed new s-cl.15(3) of the Bill will provide that an Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct.  The procedures:

(a)               must comply with basic procedural requirements set out in Commissioner’s Directions; and

(b)              must have due regard to procedural fairness; and

(c)               may be different for different categories of APS employees.

3.13            Proposed new s-cl.15(4) of the Bill will provide that the Public Service Commissioner must issue directions in writing for the purposes of s-cl.15(3) of the Bill.

3.14            Proposed new s-cl.15(5) of the Bill will provide that an Agency Head must take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out the procedures referred to in s-cl.15(3) of the Bill.

Clause 16 - Protection for whistleblowers

3.15            It is proposed to amend cl.16 of the Bill by adding a new para(aa) to provide that an APS employee must not be victimised, or discriminated against, for reporting breaches (or alleged breaches) of the Code of Conduct to the Merit Protection Commissioner or a person authorised for the purposes of cl.16 of the Bill by the Merit Protection Commissioner.  This is consistent with the approach taken in relation to a report that is made to the Public Service Commissioner, an Agency Head or a person authorised for the purposes of cl.16 of the Bill by the Public Service Commissioner or an Agency Head.



Part 4 - APS employees

Division 1 - APS employees generally

Clause 21 - Prime Minister’s directions to Agency Heads

4.1              It is proposed to amend cl.21 of the Bill by adding a new s-cl.21(2), which will require that general directions issued by the Prime Minister to Agency Heads, relating to the management and leadership of APS employees, must be published in the Gazette within 14 days after the direction is issued.  Similar amendments requiring publication in the Gazette are also made in relation to

(a)               determination by the Agency Minister under s-cl.53(3) of the Bill of the remuneration and other conditions of appointment of the Merit Protection Commissioner (para 6.15 of this Ex. Memo. refers);

(b)               determination by the Prime Minister under s-cl.61(3) of the Bill of the remuneration and other conditions of appointment of a Secretary of a Department (para 7.9 of this Ex. Memo. refers); and

(c)               determination by the Agency Minister under s-cl.63(3) of the Bill of the remuneration and other conditions of appointment of the Head of an Executive Agency (para 9.9 of this Ex. Memo. refers).

Clause 22 - Engagement of APS employees

4.2              Clause 22 of the Bill provides that an Agency Head will be able, on behalf of the Commonwealth, to engage persons as employees for the purposes of the Agency.

4.3              It is proposed to amend cl.22 of the Bill by inserting new s-cls.(1A), (1B), (1C) and (1D) as set out below.

4.4              Proposed new s-cl.22(1A) of the Bill will provide that the engagement of an APS employee (including an engagement in connection with an administrative re-arrangement under cl.72 of the Bill) must be:

(a)               as an ongoing APS employee;

(b)              for a specified term or for the duration of a specified task; or

(c)               for duties that are irregular or intermittent.

4.5              Proposed new s-cl.22(1B) of the Bill will provide that the usual basis for engagement will be as an ongoing APS employee.  This provision is intended to apply to APS employment as a whole.  It is likely, from time to time, there will be individual agencies where, for good reasons, the usual basis of engagement is not as an ongoing employee.  For example, an agency may be established for a purpose that has a limited duration, such as to prepare for a special event, or inquiry.  In addition, some agencies with an ongoing role may regularly engage significant numbers of non-ongoing staff for a particular purpose - for example, engagement of Antarctic expeditioners by the Australian Antarctic Division of Environment Australia.

4.6              Proposed new s-cl.22(1C) of the Bill will provide that the regulations may limit the circumstances in which persons may be engaged as mentioned in para 22(1A)(b) or (c) of the Bill.

4.7              Proposed new s-cl.22(1D) of the Bill will provide that an engagement for a specified term under para 22(1A)(b) of the Bill may be extended, subject to any limitations that may be prescribed by the regulations.

4.8              It should be noted that, while it is technically possible, as a result of WRA s.121, for the AIRC to make an award which is inconsistent with Commonwealth legislation, the Government regards the types of employment that apply within the APS as a fundamental issue, where the provisions included in the Bill, and any associated regulations, should prevail.  Accordingly, the Government will not initiate any application to vary the award in a way that is inconsistent with the provisions on types of employment included in the Bill and regulations.  It will also oppose any such application made by others.

4.9              Similarly, while WRA ss.170LZ and 170VR  enable the making of regulations that would allow certified agreements and AWAs to override prescribed conditions of employment set out in prescribed Commonwealth laws, it is not the Government’s intention to enable the provisions of the Bill and the regulations relating to types of employment to be overridden by agreements under the WRA.

4.10            It is intended to seek variations to the APS Award to come into effect at the same time as the Bill, to reflect the new types of employment provided for in the Bill.  That award, and agreements under the WRA, identify those terms and conditions of employment that may vary depending on the basis of engagement.

Clause 23 - Classification Rules

4.11            Under cl.23 of the Bill, the Public Service Minister may make rules about classifications of APS employees.

4.12            The purpose of the Classification Rules is to provide a systematic mechanism for categorising employees for the purposes of facilitating the application of the merit principle and the APS mobility arrangements.  Common Service-wide prescription of the classification system is needed in order to distinguish clearly between promotions (which are subject to merit) and assignments of duties at the same classification level or reductions in classification, where different rules and rights of review may apply.  The Classification Rules will create a framework of approved classifications for these purposes.  It is not intended that they would be used to make rules that directly change the classification of individual employees or their remuneration and conditions.

4.13            The Classification Rules will recognise existing classifications in awards.  They will also be drafted so that, whenever there is a variation in the classification set out in an award that applies to the APS, the new classification will automatically become an approved classification for the purposes of the Classification Rules.

4.14            It is proposed to amend s-cl.23(2) of the Bill by omitting the definition of ‘award’ in the second sentence, as that definition is now proposed to be included in cl.7 of the Bill (para 2.1.2 of this Ex Memo refers).

4.15            It is proposed to further amend cl.23 of the Bill by adding a new s-cl.(4), which broadly corresponds to 1922 PSA s-sec.52(4).  Proposed s-cl.23(4) of the Bill will provide that an Agency Head cannot reduce the classification of an APS employee under provisions of this Bill without the employee’s consent, except in the following cases:

(a)               as a sanction under clause 15 of the Bill; or

(b)              in accordance with Public Service Commissioner’s Directions made under clause 36 of the Bill; or

(c)               on the ground that the employee is excess to the requirements of the Agency at the higher classification;

(d)              on the ground that the employee lacks, or has lost, an essential qualification for performing duties at the higher classification;

(e)               on the ground of non-performance, or unsatisfactory performance, of duties at the higher classification;

(f)               on the ground that the employee is unable to perform duties at the higher classification because of physical or mental incapacity;

(g)               in other circumstances prescribed by the regulations.

4.16            It is proposed to amend cl.23 of the Bill also by adding a new s-cl.(5) which will provide that, if a relevant award, certified agreement or AWA contains procedures to be followed when reducing the classification of an APS employee, then a reduction will be of no effect unless those procedures are followed.

Clause 24 - Remuneration and other conditions

4.17            Clause 24 of the Bill provides that an Agency head may determine in writing the remuneration and other terms and conditions of employment applying to an APS employee or employees in the Agency.

4.18            It is proposed to amend cl.24 of the Bill by

(a)               inserting at the end of s-cl.24(1) of the Bill an additional sentence to provide that a determination by an Agency Head, concerning the remuneration or other terms and conditions of employment of an employee or employees in the Agency, will be of no effect to the extent that it would reduce the benefit to an employee of any individual term or condition applicable to the employee under an award, certified agreement or AWA;

(b)               omitting from s-cl.24(2) of the Bill the definition of ‘award’ and ‘certified agreement’, as those definitions are now proposed to be included in cl.7 of the Bill (para 2.1.2 and 2.1.3 of this Ex. Memo. refers); and

(c)               omitting from s-cl.24(3) of the Bill the words ‘special circumstances’ and substituting the words ‘exceptional circumstances’.

4.19            The amendments to s-cl.24(1) of the Bill will clarify the relationship between the determination-making power under clause 24 of the Bill and awards and agreements under the WRA.

4.20            Subclause 24(3) of the Bill currently provides that the Public Service Minister may, by notice in the Commonwealth Gazette , determine the remuneration and other terms and conditions applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of special circumstances.  The proposed amendment replaces the test ‘special circumstances’ with ‘exceptional circumstances’. 

4.21            The effect of the proposed amendment is that the reserve power provided by s-cl.24(3) of the Bill will be exercisable only where the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances.  For example, in a public emergency - economic or in relation to national security or a national disaster - the Government may need to use such a power to create additional entitlements for a short period or to freeze existing entitlements or override conditions included in awards, agreements or determinations under s-cl.24(1) of the Bill, such as leave arrangements.

4.22            Paragraph 4.11.7 of the existing Ex. Memo. for the Bill states that, as is currently the case in relation to 1922 PSA s82D determinations, regulations will be made under the WRA to allow later agreements to be inconsistent with determinations made under cl.24 of the Bill.  By way of clarification, it is intended that such regulations will enable the making of later agreements under the WRA that are inconsistent with a determination by an Agency Head under s-cl.24(1) of the Bill, but not the making of agreements that are inconsistent with a determination by the Public Service Minister under s-cl.24(3) of the Bill.  Thus, during such time as a determination by the Public Service Minister under s-cl.24(3) of the Bill remains in force, it would not be possible for this to be overridden by a later agreement under the WRA.

Clause 29 - Termination of employment

4.23            Clause 29 of the Bill deals with the termination of employment of an APS employee by an Agency Head.  Under s-cl.29(1) of the Bill, an Agency Head may terminate such employment at any time, by notice in writing.

4.24            It is proposed to amend cl.29 of the Bill by substituting a new s-cl.(2) to provide that, for an ongoing APS employee, the notice of termination must specify the ground or grounds that are relied on for the termination.

4.25            It is proposed to further amend cl.29 by substituting a new s-cl.(3), providing that the only grounds for termination will be the following:

(a)               the employee is excess to the requirements of the Agency;

(b)              the employee lacks, or has lost, an essential qualification for performing his or her duties;

(c)               non-performance, or unsatisfactory performance, of duties;

(d)              inability to perform duties because of physical or mental incapacity;

(e)               failure to satisfactorily complete an entry-level training course;

(f)               failure to meet a condition imposed under s-cl.22(2) of the Bill;

(g)               breach of the Code of Conduct; or

(h)               any other ground prescribed by the regulations.

4.26            It is proposed to add a new s-cl.29(4) in the Bill to provide that the regulations may prescribe grounds or procedures applicable to the termination of the engagement of non-ongoing APS employees.  A ‘non-ongoing APS employee’ is defined in cl.7 of the Bill to mean a person who is not an ongoing APS employee.

4.27            It is proposed also to add a new s-cl.29(5) in the Bill to provide that proposed new s-cl.29(4) of the Bill will not, by implication, limit the grounds for termination for a non-ongoing APS employee.  This provision could be relevant if, for example, regulations were to be made under s-cl.29(4) of the Bill dealing with the processes to be followed relating to the termination of employment on certain grounds, but they did not seek to specify exhaustively the other permissible grounds for termination.

4.28            A decision by an SES employee to retire as a consequence of a notice given by an Agency Head under s-cl.37(1) of the Bill, which broadly corresponds to 1922 PSA s.76R, does not constitute a termination by an Agency Head for the purposes of cl.29 of the Bill.

Clause 31 - Forfeiture of additional remuneration

4.29            It is proposed to amend cl.31 of the Bill by

(a)               adding new s-cl.31(2A) to provide that, if an Agency Head receives any non-Commonwealth remuneration for performing duties as an Agency head, then the Agency Minister may give a notice in writing to the Agency Head in relation to the whole, or a specified part, of the remuneration, and

(b)              adding a new s-cl.31(2B) to provide that the amount notified by the Agency Minister will be taken to have been received by the Agency Head on behalf of the Commonwealth, and may be recovered by the Commonwealth from the Agency Head as a debt in a court of competent jurisdiction.

4.30            Existing s-cl.31(3) of the Bill defines ‘non-Commonwealth remuneration’ to mean remuneration from a person other than the Commonwealth.

Clause 33 - Review of Actions

4.31            It is proposed to omit cl.33 of the Bill, relating to the entitlement of an APS employee to review of any APS action that relates to his or her APS employment, and to substitute a new cl.33 in the following terms.

4.32            Proposed new s-cl.33(1) of the Bill will continue to provide that an APS employee is entitled to review, in accordance with the regulations, of APS action that relates to his or her employment.  However, an APS employee will not be entitled to review under cl.33 of the Bill of APS action that consists of the termination of the employee’s employment.

4.33            Proposed new s-cl.33(2) of the Bill will provide that the regulations may provide exceptions to the entitlement for review of an action.  A footnote to proposed s-cl.33(2) indicates, by way of example, that the regulations might provide that there is not an entitlement to review if the application for review is frivolous or vexatious.

4.34            Proposed new s-cl.33(3) of the Bill will provide that, without limiting the effect of s-cl.33(1) of the Bill, regulations made for the purposes of that sub-clause may provide for the power which will be available to the Merit Protection Commissioner, or any other person or body, when conducting a review under the regulations.

4.35            Proposed new s-cl.33(4) of the Bill will provide that regulations made for the purposes of s-cl.33(1) of the Bill

(a)               may provide for an initial review to be conducted within the responsible Agency; and

(b)               may provide that applications for review of particular kinds of APS action are to be made directly to the Merit Protection Commissioner; and

(c)               must provide for an application for review to be referred to the Merit Protection Commissioner if the applicant is not satisfied with the outcome of an initial review within the responsible Agency; and

(d)               in the case of a review following an application or referral to the Merit Protection Commissioner, must provide for the review to be conducted by a person nominated by the Merit Protection Commissioner or by a 3 member committee constituted in accordance with the regulations.

4.36            Proposed new s-cl.33(5) of the Bill will provide that a person or body that has conducted a review under cl.33 of the Bill may make recommendations in a report on the review, but does not have power to make any binding decision as a result of the review, except as provided by the regulations.

4.37            Proposed new s-cl.33(6) of the Bill will provide that, if the Merit Protection Commissioner is not satisfied with the response to recommendations contained in a report on a review under cl.33 of the Bill, the Merit Protection Commissioner may, after consulting the Public Service Minister, give a report on the matter to the Agency Minister of the responsible Agency and to either or both of the following:

(a)               the Prime Minister;

(b)              the Presiding Officers, for presentation to the Parliament.

4.38            Proposed new s-cl.33(7) of the Bill will provide that, in cl.33 of the Bill

action includes a refusal or failure to act.

APS action means action by a person in the capacity of an Agency Head or APS employee.

responsible Agency , in relation to APS action, means the Agency in which the person who did the action was at the time of the action.

4.39            An application for relief in respect of the termination of employment of an APS employee by an Agency Head under cl.29 of the Bill, which the APS employee claims is unfair or unreasonable, may be made under the relevant WRA provisions rather than under cl.33 of the Bill.

Division 2 - The Senior Executive Service

Clause 36 - Commissioner’s Directions on SES matters

4.40            It is proposed to amend cl.36 of the Bill by specifying that the directions which the Commissioner must issue in writing about employment matters relating to SES employees will include matters of engagement, promotion, redeployment, mobility and termination.

Clause 38 - Termination not subject to Workplace Relations Act

4.41            The Government is not now proceeding with existing cl.38 of the Bill, which provides that Division 3 of Part VIA of the Workplace Relations Act 1996 (WRA) does not apply to the termination of the employment of an SES employee.  Rather, the application of the termination of employment provisions of the WRA to particular classes of APS employees will be regulated by the WRA and the WR Regs, as it is for the rest of the workforce.

4.42            It is proposed to substitute a new cl.38 in the Bill providing that an Agency Head will not be able to terminate the employment of an SES employee unless the Commissioner has issued a certificate stating that:

(a)               all relevant requirements of directions issued by the Commissioner under cl.36 of the Bill have been satisfied in respect of the proposed termination; and

(b)              the Commissioner is of the opinion that the termination is in the public interest.

4.43            The requirement for the Public Service Commissioner to issue a certificate under cl.38 of the Bill, in relation to the termination of employment of an SES employee, does not apply to a decision by an SES employee to retire as a consequence of a notice given by an Agency Head under s-cl.37(1) of the Bill.  The minimum procedural requirements in this case will be set out in the Commissioner’s Directions.



Part 5 - The Public Service Commissioner

Division 1 - Commissioner’s functions etc

Clause 41 - Commissioner’s functions

5.1              The Public Service Commissioner will have a range of functions under the Bill including the functions specified in paras 41(1)(a) to (h) of the Bill.

5.2              It is proposed to amend cl.41 of the Bill by:

·                                     inserting in para (a) provision for the Commissioner to evaluate the extent to which Agencies uphold, as well as incorporate, the APS Values specified in cl.10 of the Bill;

·                                     substituting a new para (f) providing for the Commissioner to report to the appropriate authority on the results of any enquiries into alleged breaches by Agency Heads of the Code of Conduct set out in cl.15 of the Bill and, where relevant, make recommendations for sanctions; and

·                                     adding a new s-cl.(3), defining the appropriate authority for a report about an Agency Head to be

(a)   the Prime Minister, if the Agency Head is a Secretary; or

(b)   the Agency Minister, if the Agency Head is the Head of an Executive Agency; or

(c)   the Presiding Officers, if the Agency Head is the Head of a Statutory Agency that is prescribed by the regulations for the purposes of this paragraph; or

(d)   the Agency Minister, if the Agency head is the Head of a Statutory Agency this is not prescribed by the regulations for the purposes of paragraph (c).

It is envisaged that the regulations would prescribe the following Heads of Statutory Agencies for the purposes of paragraph (c):  the Auditor-General, the Public Service Commissioner, the Merit Protection Commissioner, the Australian Statistician, the Chief Executive Officer of the Australian Customs Service, the Commonwealth Ombudsman and the Commissioner of Taxation.

Clause 44 - Annual report

5.3              It is proposed to amend cl.44 of the Bill by adding a new s-cl.(4) to provide that the annual report of the Public Service Commissioner must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.  Similar amendments are proposed to be made in relation to s-cl.51(2), 63(2) and 70(2) of the Bill dealing, respectively, with the annual reports to be prepared by the Merit Protection Commissioner, the Secretary of a Department and the Head of an Executive Agency (paras 6.9, 7.10 and 9.10 of this Ex. Memo. refer).

 

Division 2 - Public Service Commissioner’s appointment, conditions etc

Clause 45 - Appointment of Commissioner

5.4              It is proposed to amend cl.45 of the Bill to provide that the appointment of the Public Service Commissioner by the Governor-General for a period of up to five years will be on a full-time basis.  It is envisaged that the Public Service Commissioner would still be eligible also for appointment as the Parliamentary Service Commissioner in accordance with proposed s-cl.42(2) of the Parliamentary Service Bill 1999.

Clause 46 - Remuneration etc.

5.5              Clause 46 of the Bill provides that the remuneration and other conditions of appointment of the Public Service Commissioner will be as determined by the Minister responsible for administering this Bill (described as the Agency Minister in the Bill).

5.6              Proposed new s-cl.46(2) of the Bill will provide that, for each determination, the Minister will be required to seek the advice of the Remuneration Tribunal and to take that advice into account.

5.7              Proposed new s-cl.46(3) of the Bill will provide that each determination by the Minister must be published in the Commonwealth Gazette within 14 days after the determination is made.



Part 6 - The Merit Protection Commissioner

Division 1 - Merit Protection Commissioner’s functions etc.

Clause 50 - Merit Protection Commissioner’s functions

6.1              Clause 50 of the Bill currently provides that the Merit Protection Commissioner is to have such functions as may be prescribed by regulations made for the purposes of Clause 33 of the Bill on review of actions.

6.2              It is proposed to substitute a new cl.50 in the Bill to provide for an expanded statement in the Bill of the Merit Protection Commissioner’s functions and powers.

6.3              Proposed s-cl.50(1) of the Bill provides that the Merit Protection Commissioner’s functions include:

(a)               to inquire into reports made to the Merit Protection Commissioner (or a person authorised by the Merit Protection Commissioner) under cl.16 of the Bill, relating to protection of whistleblowers;

(b)               to inquire into alleged breaches of the Code of Conduct in cl.13 of the Bill by the Public Service Commissioner and to report to the Presiding Officers the results of such enquiries, with recommendations for sanctions, where relevant;

(c)               to inquire into an APS action at the request of the Public Service Minister and to report to the Minister on the results of the inquiry;

(d)               to undertake such functions as are prescribed by regulations made for the purposes of cl.33 of the Bill relating to review of actions; and

(e)               to undertake such other functions as are prescribed by regulations made for the purposes of the Bill.

6.4              Proposed s-cl.50(2) of the Bill provides that the Merit Protection Commissioner will have, in relation to an inquiry under para 50(1)(c) of the Bill, inquiry and information gathering powers similar to those of the Auditor-General in the AG Act (ss. 32,33,34 and 35 of that Act), together with powers under any other provisions of the AG Act, or of regulations under that Act, that are relevant to the operation of ss. 32, 33, 34 and 35 of that Act.  The same powers are proposed for the Public Service Commissioner under s-cl.43(2) of the Bill.

6.5              Proposed s-cl.50(3) of the Bill provides that the regulations will be able to authorise the Merit Protection Commissioner to charge fees (on behalf of the Commonwealth) for the performance of functions which may be prescribed under para 50(1)(e) of the Bill.



6.6              Proposed s-cl.50(4) of the Bill provides that, for the purposes of cl.50 of the Bill

·                                     ‘action’ includes a refusal or failure to act, and

·                                      ‘APS action’ means an action in relation to the employment of an APS employee, being an action by another APS employee or by an Agency Head.

Clause 51 - Annual report

6.7              It is proposed to substitute a new cl.51 in the Bill, amending the provisions under which the Merit Protection Commissioner will be required to submit an annual report.

6.8              Proposed s-cl.51(1) of the Bill provides that, after the end of each financial year, the Merit Protection Commissioner must give a report to the Public Service Minister, for presentation to the Parliament, on the activities of the Merit Protection Commissioner during the year.

6.9              Proposed s-cl.51(2) of the Bill provides that the report of the Merit Protection Commissioner must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.

6.10            Proposed s-cl.51(3) of the Bill provides that the report of the Merit Protection Commissioner must be included in the annual report by the Public Service Commissioner.

 

Division 2 - Merit Protection Commissioner’s appointment, conditions etc

Clause 52 - Appointment of Merit Protection Commissioner

6.11            It is proposed to amend cl.52 of the Bill to provide that the appointment of the Merit Protection Commissioner by the Governor-General for a period of up to five years will be on a full-time basis.  Clause 45 of the Bill has been amended in the same manner in relation to the appointment of the Public Service Commissioner.  It is envisaged that the Merit Protection Commissioner would still be eligible for appointment as Parliamentary Service Merit Protection Commissioner, in accordance with proposed s-cl.49(2) of the Parliamentary Service Bill 1999.

Clause 53 - Remuneration etc.

6.12            Clause 53 of the Bill provides for the manner of determining the remuneration and other conditions of appointment of the Merit Protection Commissioner.

6.13            It is proposed to amend a drafting error in s-cl.53(1) of the Bill by omitting the present reference to determination of those conditions by the Public Service Minister and substituting reference to determination by the Minister responsible for administering this Bill (to be described as the Agency Minister in the Bill).

6.14            Proposed new s-cl.53(2) of the Bill will provide that, for each determination, the Minister will be required to seek the advice of the Remuneration Tribunal and to take that advice into account.

6.15            Proposed new s-cl.53(3) of the Bill will provide that each determination by the Minister must be published in the Commonwealth Gazette within 14 days after the determination is made.



Part 7 - Secretaries of Departments

Clause 57 - Responsibility for managing Department

7.1              Clause 57 of the Bill provides that the Secretary of a Department will, under the Minister who administers that Department (the Agency Minister), be responsible for managing that Department.

7.2              It is proposed to substitute a new cl.57 in the Bill to provide an expanded statement of the responsibilities of Secretaries.  A similar amendment is proposed to cl.66 of the Bill, dealing with the responsibilities and accountability of the Heads of Executive Agencies (paras 9.2 to 9.5 inclusive of this Ex. Memo. refer).

7.3              Proposed s-cl.57(1) of the Bill provides that the Secretary of a Department, under the Agency Minister, will be responsible for managing the Department and must advise the Agency Minister in matters relating to the Department.

7.4              Proposed s-cl.57(2) of the Bill provides that the Secretary of a Department must assist the Agency Minister to fulfil the Agency Minister’s accountability obligations to the Parliament to provide factual information, as required by the Parliament, in relation to the operation and administration of the Department.

Clause 58 - Appointment etc of Secretary

7.5              It is proposed to amend s-cl.58(5) of the Bill, which provides that the same person may hold more that one office of Secretary, to make it clear that the person may be paid remuneration in respect of only one such office.

Clause 59 - Termination of appointment

7.6              It is proposed to add a footnote to s-cl.59(1) of the Bill referring to the decision of the Federal Court of Australia in Barratt v Howard [1999] FCA 1132 relating to the basis on which requirements of procedural fairness applied to the termination of an appointment of a Secretary of a Department in accordance with 1922 PSA s.37.

7.7              It is proposed also to amend cl.59 of the Bill by omitting s-cl.(4).

7.8              The Government is not now proceeding with s-cl.59(4) of the Bill, which provides that Division 3 of Part VIA of the WRA does not apply to the termination of the appointment of a Secretary.  Rather, the application of the termination of employment provisions of the WRA to particular classes of APS employees will be regulated by the WRA and the WR Regs.  Secretaries are not currently covered by these provisions as they are not covered by awards, certified agreements or AWAs and they are above the income threshold specified in the WR Regs.

Clause 61 - Remuneration and other conditions

7.9              Clause 61 of the Bill provides that the remuneration and other conditions of appointment of a Secretary are as determined by the Prime Minister.

7.10            Proposed new s-cl.61(2) of the Bill provides that, for each such determination, the Prime Minister must seek the advice of the Remuneration Tribunal and must take that advice into account.

7.11            Proposed new s-cl.61(3) of the Bill provides that each determination made by the Prime Minister must be published in the Commonwealth Gazette within 14 days after the determination is made.

Clause 63 - Annual Report

7.12            Proposed new s-cl.63(2) of the Bill provides that the annual report required of the Secretary under cl.63 of the Bill must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.



Part 9 - Executive Agencies

Clause 66 - Responsibility for managing Agency

9.1              Clause 66 of the Bill provides that the Head of an Executive Agency, under the Minister who administers that Agency, is responsible for managing the Agency.

9.2              It is proposed to substitute a new cl.66 in the Bill to provide an expanded statement of the responsibilities and accountability of the Heads of Executive Agencies.  A similar amendment is proposed to cl.57 of the Bill, dealing with the responsibility of a Secretary for managing a Department (para 7.2 of this Ex. Memo. refers).

9.3              Proposed s-cl.66(1) of the Bill provides that the Head of an Executive Agency, under the Agency Minister, will be responsible for managing the Agency.

9.4              Proposed s-cl.66(2) of the Bill provides that the Head of an Executive Agency must assist the Agency Minister to fulfil the Agency Minister’s accountability obligations to the Parliament to provide factual information, as required by the Parliament, in relation to the operation and administration of the Agency.

9.5              Proposed s-cl.66(3) of the Bill provides that the Head of an Executive Agency is accountable to the Government, the Parliament and the public in the same way as the Secretary of a Department.

Clause 67 - Appointment etc of Head

9.6              It is proposed to amend cl.67 of the Bill by omitting s-cl.(5).

9.7              The Government is not now proceeding with s-cl.67(5) of the Bill, which provides that Division 3 of Part VIA of the WRA does not apply to the termination of the appointment of the Head of an Executive Agency.  Rather, the application of the termination of employment provisions of the WRA to particular classes of APS employees will be regulated by the WRA and the WR Regs.

Clause 68 - Remuneration

9.8              Clause 68 of the Bill provides that the remuneration and other conditions of appointment of the Head of an Executive Agency are as determined in writing by the Agency Minister.

9.9              Proposed new s-cl.68(2) of the Bill provides that, for each such determination, the Agency Minister must seek the advice of the Remuneration Tribunal and must take that advice into account.

9.10            Proposed new -cl.68(3) of the Bill provides that each determination made by the Agency Minister must be published in the Commonwealth Gazette within 14 days after the determination is made.

Clause 70 - Annual Report

9.10            Proposed new s-cl.70(2) of the Bill provides that the Annual Report required of the Head of an Executive Agency under cl.70 of the Bill must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.



Part 10 - Administrative arrangements and re-organisations

Clause 72 - Machinery of government changes

10.1            Clause 72 of the Bill deals with actions which the Public Service Commissioner may consider to be necessary or desirable to give effect to administrative re-arrangements.  Present s-cl.72(3) of the Bill provides that Division 3 of Part VI A of the WRA would not apply to any termination of employment under this clause.

10.2            It is proposed to omit s-cl.72(3) of the Bill and to substitute new s-cls.72(3), (3A) and (3B) as set out below.

10.3            The Government is not now proceeding with s-cl.72(3) of the Bill as

(a)               the compulsory transfer of staff within the APS to give effect to changed administrative arrangements under para 72(1)(a) of the Bill does not involve a termination of employment - staff are simply transferred between APS agencies and the APS remains the employer; and

(b)               the power under para 72(1)(b) of the Bill to compulsorily transfer staff out of the APS to a specified Commonwealth authority does result in a technical termination of employment.  This power is parallel to the power in 1922 PSA s.81C, which is not currently excluded from the WRA.  Thus the removal of present s-cl.72(3) of the Bill preserves the status quo in relation to movements of staff under para 72(1)(b) of the Bill.

10.4            Proposed new s-cl.72(3) of the Bill will provide that, if an APS employee (the transferred employee ) becomes an employee of a Commonwealth authority under paragraph 72(1)(b) of the Bill, the employee is entitled to remuneration and other conditions of employment that are not less favourable than the terms and conditions to which the employee was entitled as an APS employee immediately before ceasing to be an APS employee, under:

(a)               an award, certified agreement or AWA; or

(b)              a determination under provisions of the Bill.

10.5            Proposed new s-cl.72(3A) of the Bill will provide that s-cl.72(3) of the Bill will cease to have effect on the next occasion when there is a relevant variation in remuneration and conditions in the Commonwealth authority.  For this purpose, relevant variation means a variation that:

(a)               results from the making or variation of an award, certified agreement or AWA; and

(b)              applies to the transferred employee, or to a class of employees that includes the transferred employee.

10.6            Proposed new s-cl.72(3B) of the Bill will provide that the regulations may prescribe arrangements for determining any variation of the remuneration and other conditions of employment applicable to

(a)               APS employees who are moved to another Agency under para 72(1)(a) of the Bill; and

(b)              persons who become APS employees under para 72(1)(c) of the Bill.



Part 11 - Miscellaneous

Clause 76 - Release of personal information

11.1            It is proposed to insert a footnote to cl.76 of the Bill, dealing with the disclosure of personal information by APS agencies, noting that the Freedom of Information Act 1982 and the Privacy Act 1988 have rules about the disclosure of personal information.

Clause 78 - Delegations

11.2            Clause 78 of the Bill provides that powers or functions that are conferred on persons under the Bill are able to be delegated within the framework provided by the Bill.

11.3            It is proposed to insert a new s-cl.78(5A) in the Bill which will provide that the Merit Protection Commissioner may delegate in writing to an APS employee any of the Merit Protection Commissioner’s powers or functions under the Bill, other than the power of delegation.

11.4            It is proposed to insert a new s-cl.78(6A) in the Bill to provide that, in exercising his or her power of delegation under s-cl.78(6) of the Bill, an Agency Head will not be able to delegate powers or functions to an outsider, without the prior consent of the Public Service Commissioner.  For this purpose, ‘outsider’ is defined in proposed s-cl.78(6A) of the Bill to mean a person other than:

(a)               an APS employee; or

(b)               a person appointed to an office by the Governor-General, or by a Minister, under a law of the Commonwealth.

11.5            It is proposed to amend s-cl.78(7) of the Bill to insert a reference to proposed new s-cl.78(5A) of the Bill, which will enable sub-delegation of powers or functions delegated by the Merit Protection Commissioner to an APS employee (the first delegate) to another person (the second delegate).

11.6            It is proposed to amend s-cl.78(8) of the Bill to insert a reference to proposed new s-cl.78(5A) of the Bill.  The effect of the proposed amendment will be that a second delegate exercising powers or functions of the Merit Protection Commissioner, in accordance with s-cl.78(7) of the Bill, will be taken to have exercised or performed the powers or functions as if they had been exercised by the Merit Protection Commissioner.



Clause 79 - Regulations

11.7            Clause 79 of the Bill provides that the Governor-General may make regulations prescribing matters required, permitted, necessary or convenient to be prescribed for the purposes of the Bill (s-cl.79(1)).  In particular, the regulations may prescribe penalties for offences against the regulations by way of fines up to 10 penalty units (s-cl.79(2)).  A penalty unit equals $110 (s.4AA of Crimes Act 1914 ).

11.8            It is proposed to substitute a new s-cl. 79(2) in the Bill to provide that, without limiting the Governor-General’s regulation-making power in s-cl.79(1) of the Bill, regulations may be made for, or in relation to, any of the following:

(a)               confidentiality of information obtained by persons performing, or assisting in the performance of, functions under clause 33, paragraph 41(1)(c) or paragraph 50(a) or (c) of the Bill;

(b)               immunity from civil action in respect of acts or omissions of persons performing, or assisting in the performance of, functions under clause 33, paragraph 41(1)(c) or paragraph 50(a) or (c) of the Bill; and

(c)               prescribing penalties for offences against the regulations by way of fines of up to 10 penalty units.



 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENTS



 

ATTACHMENT A

Abbreviations

 

1902 PSA                               Public Service Act 1902

1922 PSA                               Public Service Act 1922

1922 PS Regs                         Public Service Regulations in force under the 1922 PSA

1994 McLeod Report             Report of the Public Service Act Review Group (chaired by Mr RN McLeod - December 1994)

AAO                                      Administrative Arrangements Order

ADJRA                                   Administrative Decisions (Judicial Review) Act 1977

ADMF Paper                          Paper: ‘Accountability in a Devolved Management Framework’ issued by the PSMPC and the DIR (May 1997)

AGEST                                   Australian Government Employees Superannuation Trust

AG Act                                   Auditor-General Act 1997

AIA                                        Acts Interpretation Act 1901

AIRC                                      Australian Industrial Relations Commission

APS                                        Australian Public Service

APS Award                            Australian Public Service Award 1998

ATSIC                                    Aboriginal and Torres Strait Islander Commission

AWA                                      Australian Workplace Agreements provided for in the WRA

Bill                                          Public Service Bill 1999

CEO                                       Chief Executive Officer

CTA Bill                                 Public Employment (Consequential and Transitional) Amendment Bill 1999

DEWRSB                               Department of Employment, Workplace Relations and Small Business - formerly the Department of Industrial Relations

DoFA                                     Department of Finance and Administration

Ex Memo                                The Explanatory Memorandum circulated with the Public Service Bill 1999

FMA Act                                Financial Management and Accountability Act 1997

GECA                                    General Employment Conditions Award (1995)

Guide to AG Bill                      Guide released by DoF December 1996: ‘A Bill for an Auditor-General Act 1996 incorporating the explanatory memorandum’

Guide to FMA Bill                   Guide released by DoF December 1996: ‘A Bill for the Financial Management and Accountability Act 1996 , incorporating the explanatory memorandum’

HoM                                       Head of Mission

IPP                                         Information Privacy Principles under the Privacy Act 1988

JCPA                                      Joint Committee of Public Accounts

JCPA Report                          Report 353, An Advisory Report on the Public Service Bill 1997 and the Public Employment (Consequential and Transitional) Amendment Bill 1997

LSL                                        Long service leave

MAB                                      APS Management Advisory Board established by s.22 of 1922 PSA

MoG                                       Machinery of Government

MP(AGE)A                            Merit Protection (Australian Government Employees) Act 1984

MPRA                                    Merit Protection and Review Agency

MOPSA                                 Members of Parliament (Staff) Act 1984

New PS Regs                         Public Service Regulations to be made under the Public Service Bill 1999

PSB                                        Commonwealth Public Service Board (abolished in 1987)

PSMPC                                  Public Service and Merit Protection Commission

SES                                        Senior Executive Service

TBPAPS Paper                       Paper: 'Towards a Best Practice APS' issued by The Hon Peter Reith, MP (November 1996)

WRA                                      Workplace Relations Act 1996

WR Regs                                Workplace Relations Regulations in force under the WRA