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Australian Government Solicitor

 

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Legal Briefing  

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Legal Briefing

Number 54

(8 March 2000)

The Public Service Act 1999: An Overview

The Public Service Act 1999 (the new Act), together with the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act) came into operation on 5 December 1999. The new Act replaced the Public Service Act 1922 (the old Act). The Merit Protection (Australian Government Employees) Act 1984 has also been repealed.

The new Act is constructed along very different lines from the old Act. It is based on a set of explicitly articulated principles – the APS Values. The new Act is drafted in plain language. The terminology used in the new Act is often different from that in the old. A range of powers once held centrally has been formally devolved to Agency Heads.

The detail of the old Act does not appear in the new Act. Some of it has disappeared altogether, because of significant policy changes. For example, the remarkable legal labyrinth that was Part IV of the old Act has no analogue in the new Act. But some important matters of detail are contained in subordinate instruments under the new Act.

Subordinate Instruments

The new Act allows for the making of an array of subordinate instruments including:

  • Public Service Commissioner's Directions on APS Values (s.11(1)), procedural requirements in relation to breaches of the code of conduct (s.15(4)), and SES matters (s.33)
  • Agency Head procedures for breaches of the Code of Conduct (s.15(3))
  • Prime Minister's Directions to Agency Heads (s.21(1))
  • Public Service Minister's Classification Rules (s.23(1))
  • Agency Head Determinations on pay and conditions (s.24(1))
  • Public Service Minister's Determinations on pay and conditions (s.24(3))
  • Public Service Regulations (s.79).

Elements of a number of these subordinate instruments are dealt with in this Briefing.

Key Features of the New Act and its Instruments

Objects

Briefly, the objects of the new Act are:

  • to establish an apolitical, efficient and effective public service
  • to provide a legal framework for Australian Public Service (APS) employment
  • to establish the powers and functions of key players such as Agency Heads, the Public Service Commissioner (the PS Commissioner) and the Merit Protection Commissioner, and the rights and responsibilities of APS employees.

Structure of the APS

The new Act uses different language to describe people who work in the APS and the structural elements of the APS. This helps to emphasise the changes the new Act makes.

The APS under the new Act comprises Agency Heads and APS employees. Agency Heads are secretaries of Departments, heads of Executive Agencies and heads of Statutory Agencies.

Departments and Statutory Agencies under the new Act correspond to the two types of 'department' defined in section 7 of the old Act. But the new Act also includes provisions relating to Executive Agencies. Executive Agencies can be established under the new Act by the Governor-General. The Agency Minister of an Executive Agency may appoint a person to be the Head of the Agency, and may terminate their appointment at any time after receiving a report from the Secretary of the Agency Minister's Department.

It appears that for constitutional purposes, and probably for all purposes other than the purposes of the new Act, Executive Agencies must be regarded as forming part of the Agency Minister's Department. However, heads of Executive Agencies are accountable to ministers in the same way as secretaries.

APS employees

APS employees can be divided into two categories: ongoing APS employees and non-ongoing APS employees.

Ongoing employees approximate to officers under the old Act (often referred to as permanent officers or permanents), while non-ongoing APS employees are those who are employed for a specified term or task or on an irregular or intermittent basis (known as employees, temporary employees or temporaries under the old Act).

The APS Values

The APS Values, set out in subsection 10(1) are perhaps the centrepiece of the new Act. There are fifteen values. In summary terms, they provide that the APS:

  • is apolitical in the performance of its functions
  • makes employment decisions based on merit
  • is free from discrimination and utilises the diversity of the community
  • has the highest ethical standards
  • is accountable for its actions
  • provides frank, honest, timely and comprehensive advice to the government
  • delivers services fairly and effectively to the public
  • has leadership of the highest quality
  • establishes co-operative workplace relations
  • provides a safe and rewarding workplace
  • focuses on achieving results
  • promotes equity in employment
  • provides employment which is open to the whole community
  • is a career-based service
  • has a fair system of review.

The new Act requires Agency Heads to uphold and promote the APS Values (s.12) and requires APS employees to uphold the APS Values (s.13(11)).

Interestingly, the APS Values are not carved in legislative stone. While the Act requires the PS Commissioner to issue directions about each of the values to ensure that the APS incorporates and upholds them, the Act also provides that those directions may determine the scope or application of the values (see s.11(1)). The Act makes it quite clear that the PS Commissioner's Directions may restrict the effect of the values.

It is also interesting that the Act makes special provision for the merit value (see s.10(2)). An employment decision relating to engagement or promotion will be based on merit if an assessment is made of the relative suitability of the candidates, using a competitive selection process, if the assessment meets certain other criteria and if the assessment is the primary consideration in making the decision. This elaboration in subsection 10(2) of the value in relation to decisions relating to engagement or promotion does not appear to apply to other employment decisions. However, other employment decisions would be subject to the Commissioner's Directions on the merit value.

The Code of Conduct

The Act sets out a Code of Conduct for APS employees, Heads of Agencies and certain statutory office holders (see sections 13 and 14). The content of the Code of Conduct is substantially the same as that which applied under the old Public Service Regulations from March 1998.

The new Act requires Agency Heads to establish procedures for deciding whether an APS employee has breached the Code of Conduct (s.15(3)). Those procedures must comply with requirements set out in the PS Commissioner's Directions and they must have due regard to procedural fairness. These arrangements – allowing for different procedures to apply in different agencies – replace the detailed disciplinary arrangements which had been set out in the old Act. The new Act sets out the sanctions that may be applied to an APS employee found to have breached the Code of Conduct, ranging from a reprimand to termination of employment.

Employment Provisions

The regulatory heart of the new Act is contained in Part 4, which comprises sections 20 to 39 of the Act. The Act gives to Agency Heads, on behalf of the Commonwealth, all of the rights, duties and powers of an employer in respect of APS employees in their agency (s.20). This provision can be seen from one perspective as continuing a trend of mainstreaming APS employment with employment arrangements that apply generally in the community. It is worth noting that under section 8, the new Act is made expressly subject to the Workplace Relations Act 1996.

The new Act allows an Agency Head, on behalf of the Commonwealth, to engage persons as APS employees (s.22). (The appointment of officers to departments had been carried out by secretaries under delegation from the PS Commissioner under the old Act.) The engagement of APS employees may be made subject to conditions, including conditions dealing with probation, citizenship, qualifications, and security and health clearances. The new Act provides that the 'usual basis' for engagement is as an ongoing employee.

The PS Commissioner's Directions include a number of provisions which are relevant to engagement (see ch.4), including in relation to the issue of the advertising of employment opportunities for the engagement of ongoing employees (cl.4.2). Essentially, these Directions provide that, subject to considerations of cost and operational efficiency, the opportunity to apply for the relevant employment, or similar employment, must be open to all eligible members of the community, and as a minimum must have been notified as open to all APS employees.

The Public Service Regulations provide quite detailed prescription as to the period of engagement of non-ongoing, non-SES employees (reg.3.5). The Regulations impose maximum periods of engagement of employees engaged for a specified period or for the performance of a specified task, ranging from 6 months to three years depending on the reason for the engagement. SES employees who are engaged for a specified term may be engaged for a total period of up to five years (reg.3.4).

Classification

Section 23 of the new Act allows the Public Service Minister to make Classification Rules. Rules have been made which in essence provide that an Agency Head must allocate an approved classification to each APS employee in their agency (r.5(1)). That classification must be based on the duties that are to be performed by the employee in the Agency (apart from duties temporarily assigned to the employee) (r.5(2)). In turn, the Agency Head must allocate an approved classification to each group of duties to be performed in their Agency (r.7(1)), and that allocation must be based on the work value requirements of the group of duties (r.7(2)). A classification is an approved classification if it is included in an award under the Workplace Relations Act or is a classification set out in either of the schedules to the Classification Rules (r.4).

Section 23 also restricts the capacity of Agency Heads to reduce an employee's classification. An APS employee may only have their classification reduced without consent on the grounds that are listed in subsection 23(4) of the new Act.

Terms and Conditions of Employment

In the most significant devolution of powers under the new Act, Agency Heads are given the power to determine the remuneration and other terms and conditions of employment of employees in their agency (s.24). This power corresponds broadly with the power which had been held by the PS Commissioner under section 82D of the old Act. Importantly, a determination under section 24 cannot reduce the benefit to an employee of any term or condition applying to the employee under an award, certified agreement or Australian workplace agreement.

Section 24 also gives the Public Service Minister power, in exceptional circumstances, to make determinations on pay and conditions which would override Agency Head determinations.

Movements of Employees

Section 25 of the new Act allows an Agency Head to determine the duties of an APS employee in their Agency and to determine where the duties are to be performed. Section 26 of the new Act provides that voluntary movements of APS employees between agencies may only occur if there is an agreement between the employee and the head of the receiving Agency. These sections provide the basis for the staffing transactions conventionally known as promotions, transfers, and temporary transfers. One consequence of section 26 is that where an employee moves to another Agency, and the move is intended to be short-term, the employee will need the agreement of the Head of the former Agency in order to return.

The PS Commissioner's Directions and the Public Service Regulations make quite detailed provision in relation to promotions. A promotion is defined in the Directions, for an ongoing employee, as the assignment to the employee of duties at a higher classification than the employee's current classification. But a movement within a broadband, or a movement associated with a training classification, or a temporary assignment, is not a promotion (see cl.4.6).

The requirements for notifying opportunities for promotion are essentially the same as those that apply in relation to notifying opportunities for engagement as an ongoing employee (see cl.4.6).

The Regulations allow an ongoing APS employee who applied for promotion to a classification in Group 1 to Group 6 (but who was not promoted) to have the promotion decision reviewed by a three person Promotion Review Committee (PRC) on the ground of merit (regs 5.7 and 5.8). The PRC is required to assess the relative merits of the person promoted and each applicant for review of the decision on the basis of the criteria set out in subsection 10(2) of the new Act, and to decide, primarily on the basis of that assessment, whether the promotion should stand or whether one of the applicants for review should be promoted instead (reg.5.18). The regulations do not specify the other considerations that may be taken into account by the PRC in reaching its decision. The decision of the PRC is binding (reg.5.20).

Termination of Employment

Section 29 provides for termination of employment of APS employees (though additional provisions apply to SES employees). Ongoing APS employees may only be terminated on one of the grounds specified in subsection 29(3). Those grounds are: being excess to requirements, loss of an essential qualification, unsatisfactory performance of duties, physical or mental incapacity, failure to complete an entry-level training course, breach of the Code of Conduct, or a ground prescribed in the regulations. The unfair dismissal provisions of the Workplace Relations Act apply to termination of employment of APS employees.

Section 30 allows an APS employee who has reached the minimum retiring age – usually 55 years – to retire. Unlike the old Act, the new Act does not have any provision for mandatory retirement at age 65.

Review of APS Decisions

The new Act includes a very broad provision which entitles an APS employee to review of any APS action that relates to their employment, apart from action to terminate their employment (s.33(1)) and apart from any action excepted by the regulations (s.33(2)). A range of decisions has been excepted and these are set out in regulation 5.23 and Schedule 1 to the Regulations. The scope of reviewable decisions is somewhat different from that of the old Act. The review process requires an initial review to be conducted by the agency in which the person who did the action was at the time of the action. The process may also provide for a second level of review by the Merit Protection Commissioner. As outlined above, there is a special review process for certain promotion decisions.

The Senior Executive Service

A set of provisions deals specifically with the SES. The function of the SES is to provide a group of employees who provide high level professional expertise, policy advice and management, who promote co-operation with other agencies and who promote the APS Values and compliance with the Code of Conduct (s.35).

The new Act includes a special mechanism (similar to section 76R in the old Act, but now devolved) which enables an Agency Head to offer an SES employee a monetary incentive to retire, and enables the SES employee to accept such an offer and retire as if they had been compulsorily retired (s.37), subject to compliance with the Commissioner's Directions. The employment of ongoing SES employees is somewhat more protected than that of ongoing APS employees generally, because an Agency Head may not terminate the employment of an SES employee unless the PS Commissioner has certified that relevant procedural requirements have been met and that the termination is in the public interest (s.38).

The Commissioners

Parts 5 and 6 of the new Act provide for the appointment, and set out the functions, of the Public Service Commissioner and the Merit Protection Commissioner.

Secretaries

A Secretary of a Department is, under the Agency Minister, responsible for managing the Department and must advise the Agency Minister in matters relating to the Department (s.57). The Secretary is also obliged to assist the Agency Minister to fulfil their accountability obligations to the Parliament (s.58).

The appointment of a Secretary may be terminated at any time by the Prime Minister, after the Prime Minister has received a report about the proposed termination from the Secretary of the Prime Minister's Department (s.59). Generally speaking the termination of secretaries will not be subject to the unfair dismissal provisions of the Workplace Relations Act, because secretaries will usually be caught by the exclusion provisions that operate under the Workplace Relations Regulations (see reg.30B of those Regulations).

Other Provisions

Section 72 of the new Act enables the PS Commissioner, among other things, to move APS employees from one Agency to another, or to move them outside the APS and into the employment of a specified Commonwealth authority, or to move them into the APS from other Commonwealth employment.

Section 77 allows an Agency Head to create positions in the agency, and to nominate an APS employee to occupy a position.

Section 78 provides for the making of delegations by the Prime Minister, the Public Service Minister, an Agency Minister, the PS Commissioner, the Merit Protection Commissioner and an Agency Head. Agency Heads are not permitted to delegate powers or functions under the Act to an outsider without the consent of the PS Commissioner. The section allows for subdelegation of powers delegated by either of the Commissioners or by an Agency Head.

Transitional Arrangements

The PECTA Act leaves much of the transitional machinery to be set out in regulations made under that Act. There are two areas worthy of particular note. The first is in relation to misconduct. The PECTA Act provides that an Agency Head may impose the sanctions under section 15 of the new Act on an APS employee in respect of conduct that occurred before the commencement of the new Act, provided the employee had not been charged under the old Act. Before imposing such a penalty the Agency Head must be satisfied that the conduct in question was misconduct under the old Act and would also have constituted a breach of the Code (had the conduct occurred after the commencement of the new Act).

The second area is more complex and relates to the difficult subject of officers' mobility. A large group of people has coverage under the mobility provisions of Part IV of the old Act – people who are or were officers of the APS who had taken up certain non-APS employment. The PECTA Act provides that 'first tier' persons are deemed to be on leave without pay from the APS during the transitional period of 3 years, and will be taken to have resigned from the APS at the end of that period unless they indicate that they will be resuming duties in the APS or are granted leave without pay after the end of the transitional period. 'Second tier' persons are entitled to return to employment in the APS during the transitional period of three years if their employment is to be terminated, or, in certain cases, if their career has been adversely affected by a reduction in the functions of their employer.

This Briefing was prepared by Richard Harding (currently outposted to the Department of Employment, Workplace Relations and Small Business) and Margaret Byrne, both Senior General Counsel. For further information please contact Margaret on tel (02) 6253 7098 or e-mail margaret.byrne@ags.gov.au or any of the following lawyers:

 

Canberra

Joan Bonsey

(02) 6246 1233

 

Tom Howe

(02) 6246 1256

Sydney

Jim Heard

(02) 9581 7477

Melbourne

Craig Rawson

(03) 9242 1257

Brisbane

Maurice Swan

(07) 3360 5702

Adelaide

Sarah Court

(08) 8205 4231

Perth

Graeme Windsor

(08) 9268 1102

Hobart

Peter Bowen

(03) 6220 5474

Darwin

Rick Andruszko

(08) 8943 1400


ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing.

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