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PUBLIC SERVICE AMENDMENT REGULATIONS 2003 (NO. 2) 2003 NO. 364
Statutory Rules 2003 No. 364
Issued by the authority of the Prime Minister
Public Service Act 1999
The Public Service Act 1999 (the Public Service Act), its accompanying Public Service Regulations 1999 (the Principal Regulations) and the Parliamentary Service Act 1999 (the Parliamentary Service Act) commenced on 5 December 1999. The Parliamentary Service Act established a separate Australian Parliamentary Service independent of the Australian Public Service (APS).
The framework for the Parliamentary Service Act follows that established by the Public Service Act except where differences are necessary to reflect the unique character of the Parliamentary Service and the obligation of parliamentary staff to serve the Parliament.
Subsection 79(1) of the Public Service Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Public Service Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Public Service Act.
Section 26 of the Parliamentary Service Act provides for mobility arrangements in respect of ongoing employees who move between the Parliamentary Service and the APS. Subsection 26(1) provides that an ongoing Parliamentary Service employee is eligible for engagement, at any classification, as an ongoing APS employee and that such an engagement is subject to review in accordance with the provisions of the Principal Regulations. Subsection 26(2) provides for similar review arrangements to apply to the engagement of an ongoing APS employee in the Parliamentary Service; determinations under the Parliamentary Service Act have been made which provide for such review arrangements.
The Public Service Act has no equivalent provision to section 26 of the Parliamentary Service Act, nor do the Principal Regulations currently provide for review of the engagement of a Parliamentary Service employee as an ongoing APS employee. The Regulations remedy this by introducing provisions to facilitate the mobility provided in the Parliamentary Service Act, including review arrangements, in respect of ongoing employees who move from the Parliamentary Service to the APS.
The purpose of the Regulations is to implement the final phase of the new mobility arrangements. This includes providing for the engagement of an ongoing Parliamentary Service employee as a non-ongoing APS employee, and introducing review arrangements provided for under subsection 26(1) of the Parliamentary Service Act.
The Regulations:
• enable an Agency Head to engage an ongoing Parliamentary Service employee as a non-ongoing APS employee for a specified term of up to three years;
• provide for certain decisions to engage an ongoing Parliamentary Service employee in the APS to be notified in the Gazette; and
• amend Part 5 of the Principal Regulations concerning applications for review to:
- provide an entitlement of ongoing APS employees and ongoing Parliamentary Service employees to review of certain engagement and promotion decisions;
- identify which promotion or engagement decisions are subject to review; and
- provide for a Promotion Review Committee to consider and determine applications for review from eligible employees.
Details of the Regulations are set out in the Attachment.
The Public Service Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations will commence on gazettal.
ATTACHMENT
Regulation 1 names the Regulations as the Public Service Amendment Regulations 2003 (No. 2)
Regulation 2 of the Regulations provides that the Regulations will commence on gazettal.
Regulation 3 of the Regulations provides that the Public Service Regulations 1999 (Principal Regulations) will be amended as set out in Schedule 1.
Schedule 1 Amendments
Item 1 Subregulation 3.5(2), table, after item 8
Regulation 3.5 of the Regulations sets out the circumstances in which a person may be engaged by an Agency as a non-SES employee for a specified term or for the duration of a specified task. The Regulation inserts a new item in the table to enable an APS Agency Head to engage an ongoing Parliamentary Service employee as a non-ongoing APS employee for an initial period and maximum period of up to three years.
Item 2 After subregulation 3.6
Regulation 3.6 provides that, for the purposes of subsection 22(5) of the Act, the engagement of a person for a reason mentioned in an item of the table in subregulation 3.5(2) may be extended in certain circumstances.
The Regulation inserts a new subregulation 3.6(3) to provide that, for the purposes of subsection 22(5) of the Act, the engagement of a person for a reason mentioned in item 9 of the table in subregulation 3.5(2), being the engagement of an ongoing Parliamentary Service employee as a non-ongoing APS employee, may be extended if the reason for the engagement continues to exist, the total term does not exceed 3 years and the Agency cannot fully meet its objectives by using the services of an ongoing APS employee in the Agency.
Item 3 After subregulation 3.8
The Regulation inserts a new subregulation 3.8A to provide for various dates of effect concerning the engagement of an ongoing Parliamentary Service employee as an ongoing APS employee in various circumstances. These provisions are similar to the provisions under Regulation 3.8 concerning the date of effect of the promotion of an ongoing APS employee, but take into account that the movement of an ongoing Parliamentary Service employee is an engagement decision under section 22 of the Act whereas the promotion of an APS employee to the same relevant employment opportunity would be a decision under sections 25 and 26 of the Act.
Item 4 After paragraph 3.12(1)(k)
The amendment inserts a semi-colon after paragraph 3.12(1)(k).
Item 5 After paragraph 3.12(1)(k)
The Regulation inserts new paragraph 3.12(1)(l) to require the notification in the Gazette of engagement of an ongoing Parliamentary Service employee following a decision by a Promotion Review Committee where the engagement has not been notified previously.
Item 6 After subregulation 3.12(2)
The Regulation inserts a new subregulation 3.12 (2A) requiring the notification in the Gazette of the engagement of an ongoing Parliamentary Service employee as an ongoing APS employee at a higher classification as required by paragraph 3.12 (1)(a) to include an additional statement to the effect that "This decision to engage an ongoing Parliamentary Service employee at a higher classification may be subject to review by a Promotion Review Committee in accordance with Part 5 of the Regulations". The purpose of the statement is to assist employees of both Services to identify where review rights may be applicable.
Item 7 Regulations 5.2 and 5.3
Regulation 5.2 of the Principal Regulations provides an outline of the review rights available to APS employees under Part 5.
The amendment substitutes a new Regulation 5.2 to simplify the existing provisions and to provide for the entitlement of ongoing APS employees and ongoing Parliamentary Service employees to the review of certain promotion decisions and certain engagement decisions.
The amendment substitutes a new Regulation 5.3 to provide for applications for review of certain promotion and engagement decisions under Division 5.2 of Part 5 of the Principal Regulations to be made to the Merit Protection Commissioner for review by a Promotion Review Committee.
Item 8 Division 5.2, heading
The amendment substitutes a new heading in Division 5.2 to account for the new review arrangement applying to APS promotion decisions and engagement decisions (involving Parliamentary Service employees).
Item 9 Regulation 5.6
The amendment is necessary to account for the inclusion of new subregulations 5.6(2) and (3) as outlined in Item 10 below.
Item 10 Regulation 5.6
The Regulation inserts a new subregulation 5.6(2) to identify which engagement decisions involving an ongoing Parliamentary Service employee are subject to review. The engagement decisions subject to review are where:
(a) an engagement decision is made by an Agency Head to engage an ongoing Parliamentary Service employee as an ongoing APS employee at a classification mentioned in any of Groups 1 to 6 set out in Schedule 1 to the Classification Rules; and
(b) the engagement decision is not made in accordance with the recommendation of an Independent Selection Advisory Committee; and
(c) the engagement decision is not made in accordance with Promotion Review Committee decision.
The Regulation inserts a new subregulation 5.6(3) to define an engagement decision for the purposes of Division 5.2 if the engagement is at a higher classification than the ongoing Parliamentary Service employee's classification as a Parliamentary Service employee, worked out in accordance with Schedule 2.
Item 11 Regulation 5.7
The Regulation replaces the existing regulation 5.7 with new Regulations 5.7 and 5.7A to provide that an ongoing APS employee who applies for promotion, or an ongoing Parliamentary Service employee who applies for engagement, where the engagement would be at a higher classification than the Parliamentary Service employee's classification, is entitled to apply to the Merit Protection Commissioner to have a promotion or engagement decision reviewed by a Promotion Review Committee.
Item 12 Regulation 5.8
The amendment is necessary to account for the inclusion of review rights being applicable to promotion decisions or engagement decisions.
Item 13 After Regulation 5.9(1)
The amendment inserts a new regulation 5.9(1A) to outline how an application for review of an engagement decision is to be made to the Merit Protection Commissioner. The provision mirrors the arrangements that apply to an application for review of a promotion decision under regulation 5.9(1).
Item 14 Subregulation 5.9(2)
The amendment is necessary to account for the inclusion of review rights being applicable to promotion decisions or engagement decisions.
Item 15 Subregulation 5.9(2)
The amendment changes the reference in subregulation 5.9(2) to refer to Division 3.1 rather than regulation 3.8, which is contained within Division 3.1.
Item 16 Subregulation 5.10(1)
The amendment is necessary to account for the inclusion of review rights being applicable to promotion decisions or engagement decisions.
Item 17 Paragraph 5.10(1)(b)
The amendment is necessary to account for the inclusion of review rights being applicable to promotion decisions or engagement decisions.
Item 18 Subregulations 5.10(2) and (3)
The amendment replaces existing subregulations 5.10(2) and (3) with a new subregulation 5.10(2) to account for the inclusion of review rights being applicable to promotion decisions or engagement decisions and the appointment of a Promotion Review Committee to deal with applications for review of these decisions from an ongoing APS employee and an ongoing Parliamentary Service employee.
Item 19 Subregulation 5.12(1)
The amendment is necessary to account for the inclusion of review rights being applicable to promotion decisions or engagement decisions.
Item 20 After subregulation 5.12(1)
The amendment inserts a new regulation 5.12(1A) to cover the provision of statements to the Merit Protection Commissioner by applicants for review of an engagement decision and the person engaged.
Item 21 Paragraph 5.12(3)(a)
The amendment is necessary to allow an applicant for review of an engagement decision, and the person engaged, to seek an extension to the 14 day period specified in Regulation 5.12(2).
Item 22 Regulation 5.18
The amendment substitutes a new regulation 5.18 to provide for the conduct of a review of a promotion decision and engagement decision by a Promotion Review Committee.
Item 23 Subregulation 5.19(1)
The amendment is necessary to account for the outcome of a Promotion Review Committee now being either a promotion decision or engagement decision.
Item 24 After Subregulation 5.20(2)
The amendment inserts two new subregulations 5.20(3) and (4) to deal with two possible outcomes of a Promotion Review Committee decision. Subregulation 5.20(3) covers a Promotion Review Committee decision, where it decides an ongoing APS employee should be promoted to the relevant employment. Subregulation 5.20(4) covers a Promotion Review Committee decision, where it decides an ongoing Parliamentary Service employee should be engaged to the relevant employment. In this later circumstance the subregulation provides that the Agency Head must offer the ongoing Parliamentary Service employee the relevant employment opportunity not later than 2 weeks after the Agency Head is notified of the review decision.
Item 25 After Schedule 1
The Regulations insert Schedule 2 into the Principal Regulations to define the terms "comparable classification" and "higher classification". The Schedule is necessary to identify which movements of ongoing Parliamentary Service employees to the APS are to a higher classification or to a comparable classification. The term higher classification is referred to in Part 5 of the Regulations to identify what engagement decisions are subject to review by a Promotion Review Committee.
The term comparable classification is necessary because it is to be included in a complementary amendment being made to Clause 4.2 of the Public Service Commissioner's Directions 1999 to allow an Agency Head to engage an ongoing Parliamentary Service employee as an ongoing APS employee at a comparable classification level, as defined in the Regulations, without the employment opportunity necessarily having been notified in the Gazette.
Items 26-29 Dictionary
The amendment inserts five new words in the Dictionary at the end of the Principal Regulations to account for the amendments in these Regulations.