Bills Digest No.166  1997-98 Public Employment (Consequential and Transitional) Amendment Bill 1997 [No.2]


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Re-Introduction
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Public Employment (Consequential and Transitional) Amendment Bill 1997 [No.2]

Date Introduced: 5 March 1998

House: House of Representatives

Portfolio: Prime Minister

Commencement: The majority of provisions commence at the same time as the Public Service Act 1997.

Re-Introduction

Like the Public Service Bill 1997, this is one of a number of bills that may trigger a double dissolution election.

The Public Employment (Consequential and Transitional) Amendment Bill 1997 (the CTA Bill) was introduced into the House of Representatives on 26 June 1997 and passed by it on 30 October 1997.

The CTA Bill was introduced into the Senate on 10 November 1997 and was passed incorporating 3 Opposition amendments on 19 November 1997. A message was reported in the House on 20 November 1997 which, on 5 December 1997, formally disagreed to the Senate's amendments and laid the Bill aside.

The present Bill was introduced in the House on 5 March 1998 and passed by it on 11 March 1998 and is identical to the Bill passed by the House on 30 October 1997. The Bill was introduced into the Senate on 12 March 1998 with the Second Reading Speech being given by Senator Newman.(1)

 

Purpose

The Public Employment (Consequential and Transitional) Amendment Bill 1997 (the CTA Bill) will:

  • validate actions and decisions taken under the former legislation (the Public Service Act 1922);
  • provide for the transition from the present to the new employment framework; and
  • make consequential amendments to over 850 other Acts which incorporate references to the framework created by the Public Service Act 1922 (the 1922 Act).

Background

The CTA Bill forms part of a package of four Bills, the others being the:

  • Public Service Bill 1997
  • Parliamentary Service Bill 1997
  • Parliamentary Service (Consequential Amendments) Bill 1997.

Of these four measures, only the Parliamentary Service (Consequential Amendments) Act 1997 has been agreed by both Houses and received Royal Assent.(2)

Detailed background to the legislation forms part of the Bills Digests for the Public Service Bill 1997 and the Parliamentary Service Bill 1997.(3)

Main Provisions

The Senate amendments to the initial Bill were extensively debated in that Chamber but have not received detailed attention in the House.

The 3 Senate amendments to the Bill (as first introduced) are discussed at the end of the Main Provisions.

The Bill deals with an extensive and disparate range of largely technical matters. For those wanting a more detailed analysis of the Bill than is possible here, the Explanatory Memorandum provides a very readable and detailed account of the measures proposed and the Minister's Second Reading Speech usefully discusses the major proposals under two broad groupings.

There are three broad classes of transitional provisions and eight broad types of consequential measures.

The transitional provisions deal with:

  • the changes to the status of existing staff, including converting them from officers to employees;
  • mobility and 'return rights' of public servants;
  • the continuation of matters and legal actions on foot.

The consequential amendments provide for:

  • changes in the current provisions relating to staffing to reflect the new employment framework;
  • removal of obsolete references to the Public Service Board (itself abolished in 1987);
  • consequential (essentially machinery) amendments to the superannuation legislation;
  • limiting the role of the Remuneration Tribunal in relation to the setting of pay and conditions of Secretaries;
  • removal of cross-references to reciprocal mobility, which is now to be dealt with by the Public Service Commissioner's Directions;
  • removal of references to the former mobility arrangements set out in Part IV of the 1922 Act;
  • standard translations for common terms in the 1922 Act; and
  • other miscellaneous amendments to maintain links to the new APS employment framework.(4)

Mobility

This substantive issue is dealt with at page 14 of Bills Digest No. 74 (Public Service Bill 1997) and pages 12-13 of Bills Digest No. 68 (Parliamentary Service Bill 1997) and below in relation to the Senate amendment.

Parliamentary Departments

The Parliamentary Departments are not dealt with by the proposed Public Service Bill 1997, but by their own 'mirror' legislation. Therefore it was thought necessary to include a provision in the present Bill anticipating a possible situation where the Public Service Bills were passed before the two Bills covering the Parliamentary Departments.(5) Clause 12 of the present Bill provides for that eventuality.

Clause 12 is to be repealed by section 10 of the Parliamentary Service (Consequential Amendments) Act 1997 which, although it has received the Royal Assent, is yet to come into effect.

Parliamentary Salaries

The CTA Bill also deals with the consequences of changing arrangements for setting Senior Executive Service (SES) salaries.

Clause 24 of the Public Service Bill provides for the devolution of salary setting arrangements for SES and non SES employees to the agency level. There will in time thus be different rates of pay applying to the same classifications across the APS.

Schedule 3 of the Remuneration and Allowances Act 1990 links the remuneration of members of Parliament to the minimum salaries payable to SES Band 2 officers. However, as there will be no common base salary for SES employees across the APS, it is necessary devise another mechanism for setting base for Members of Parliament. (Enterprise bargaining would not appear to be a practical or favoured option.)

The Government is proposing amendments to the Remuneration Tribunal Act 1973 to determine a classification structure for what will be called principal executive offices (Schedule 1 to the 'amended' CTA Bill, items 757-762). The Explanatory Memorandum states that a linkage will in future be made between parliamentary salaries and a principal executive classification prescribed by regulation.(6) These principal executive classifications are to be subject to regular review in accordance with the Remuneration Tribunal Act 1973.

The Explanatory Memorandum also states that the new linkage will apply to certain statutory offices without increasing the level of remuneration.(7)

Senate Amendments

Office holders

Clause 5 of the Bill provides for certain office-holders under the 1922 Act to retain their present status under the new Act.

For example, when the new Act commences, a person who is Secretary of a Department engaged under section 37 of the Public Service Act 1922 will continue to hold that office for the remainder of their original term of appointment [subclause 5(1)].

The Senate amended clause 5 to provide that this provision also applies to the person holding the office of Merit Protection Commissioner under the Merit Protection (Australian Government Employees) Act 1984 on the date that the new Act comes into effect.

The Government does not appear to have stated any specific reason for opposing this amendment.

Mobility Rights

Clauses 6 and 7 deal with the return rights of APS staff who have transferred to non-APS Commonwealth agencies.

A detailed exposition of the mobility provisions is given in the Explanatory Memorandum and is not repeated here. The essential features of the so-called first and second tier arrangements are as follows:

  • Division 2 of Part IV of the 1922 Act deals with first tier employees. These are APS employees who have taken up employment with a statutory authority but retain the right to return to the APS at any time they please. Such officers are generally deemed to be on leave from the APS but time spent with the non-APS authority by such employees counts as service in the APS.
  • Division 3 of Part IV the 1922 Act deals with second tier employees. This Division applies to APS officers who, at the end of an initial three year period with an authority, choose to remain in the employment of that authority, or another body covered by Part IV of the 1922 Act under the second tier provisions. Officers covered by the second tier arrangements can apply for promotion or transfer to APS vacancies, and exercise promotion appeal rights, as if they were still APS officers. They also have certain rights of re-entry to the APS in cases where they have been or are about to be displaced from employment by their current government (non-APS) employer.

In relation to clause 6, the Government proposal is that mobility rights for first tier employees will be retained but only for a transitional period of 3 years.

The Senate amendment proposes that the present clauses be deleted and replaced by a provision which would 'grandfather' significant mobility rights acquired by current staff employed under the Public Service Act 1922 who are presently engaged in Commonwealth authorities not staffed under that Act.

Both the McLeod Report(8) prepared for the Keating Government, and the 'Accountability in a Devolved Management Framework' document issued by the Public Service and Merit Protection Commission and the then Department of Industrial Relations in May 1997, are critical of the substance and complexity of the present mobility provisions. Those provisions comprise 40 substantive provisions and run to 61 pages in the present reprint of the Public Service Act 1922.

Determinations and remuneration

Section 82D of the 1922 Act enables the making of determinations setting terms and conditions of employment of APS staff.(9)

Since the demise of the Public Service Board in 1987, most of these determinations have been made by the Public Service Commissioner or (what was) the Department of Industrial Relations. Section 82D determinations are administrative measures and are subject to disallowance by the Parliament.

Clause 9 reflects proposed section 24 of the Public Service Bill 1997 which provides that Agency Heads may from time to time determine in writing the remuneration and other terms and conditions of employment of APS employees. A similar power is also to be conferred by proposed subsection 24(3) of the Public Service Bill on the Public Service Minister.

Under clause 9, existing section 82D determinations continue to have effect but may be revoked by the Agency Head in the same manner as determinations made under proposed section 24 of the Public Service Bill. However, subclause 9(3) further provides that all unrevoked section 82D determinations will cease to have effect on the first anniversary of the new legislation coming into effect.

The Senate amendment is aimed at:

  • preventing Agency Heads amending or revoking a determination in a way that diminishes any provisions in an award or certified agreement; and
  • extending the sunset provision in subclause 9(3) from 12 months to 3 years.(10)

The Government opposes the changes, arguing that they will tie what are purely management instruments to awards and certified agreements thus making matters more inflexible and more cumbersome.(11)

Endnotes

  1. Senate, Parliamentary Debates, 12 March 1998, 661.
  2. The Explanatory Memorandum for the present Bill is incorrect in stating that both Parliamentary Service Bills were laid aside on 5 December 1997. Royal Assent was given to the Parliamentary Service (Consequential Amendments) Act 1997 on 7 December 1997.
  3. See Bills Digests Numbers 68, 74 and 164 of 1997-98.
  4. House of Representatives, Parliamentary Debates, 26 June 1997, 6468.
  5. This was a reasonable precaution given the relative stages of development of the two packages of legislation.
  6. page 7.
  7. Ibid.
  8. Report of the Public Service Act Review Group, AGPS, December 1994, 52-53.
  9. Awards and industrial agreements, however, are the main source of APS employment conditions.
  10. Senate, Parliamentary Debates, 19 November 1997, 9157-58.
  11. Ibid., 9158.

Contact Officer and Copyright Details

Bob Bennett
25 March 1998
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
Commonwealth of Australia 1998

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1998.



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