Bills Digest No. 182  1998-99 Public Employment (Consequential and Transitional) Amendment Bill 1999


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
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Public Employment (Consequential and Transitional) Amendment Bill 1999

Date Introduced: 30 March 1999

House: House of Representatives

Portfolio: Prime Minister

Commencement: The majority of provisions commence immediately after the commencement of the Public Service Act 1999. That Act is expressed to commence on Proclamation, or the day after 6 months after it receives Royal Assent.

Subclause 2(5) provides that if the Employment, Education and Training Act 1997 has commenced before the commencement of this Act, then items 386 and 387 of Schedule 1 of this Act never commence.

Subclauses 2(6) and 2(7) provide that if item 66 of Schedule 7, and Schedule 8 of the Financial Laws Amendment Act 1997 have commenced before the commencement of this Act, then items 519 - 528 and items 532 -536 of Schedule 1 of this Act never commence.

 

Purpose

The Public Employment (Consequential and Transitional) Amendment Bill 1999 (the Bill) will repeal the Public Service Act 1922 (PS Act 1922) and the Merit Protection (Australian Government Employees) Act 1984 (MP(AGE) Act).

The Bill will:

  • validate actions and decisions taken under the PS Act 1922
  • provide for transitional arrangements in relation to mobility rights under Part IV of the PS Act 1922
  • provide for the operation of determinations made under section 82D of the PS Act 1922, and
  • provide for the continued application of the PS Act 1922 and the MP(AGE) Act to the Parliamentary Departments pending the passage of legislation to establish a separate Parliamentary Service.

Schedule 1 of the Bill proposes approximately 964 amendments to 283 Commonwealth Acts, generally to reflect the repeal of the PS Act 1922 and the MP(AGE) Act.

Schedule 1 also amends the Remuneration and Allowances Act 1990 and the Remuneration Tribunal Act 1973, to introduce new mechanisms for determining the remuneration and allowances of statutory office holders and Members of Parliament.

 

Background

The Bill forms part of a package of two Bills, one proposed Bill, and an Act. The Parliamentary Service (Consequential Amendments) Act 1997 was agreed to by both Houses and has received Royal Assent. It is yet to commence.

The Public Service Bill 1999 was introduced into the House of Representatives on 30 March 1999, together with the present Bill.

There is also a proposed Parliamentary Service Bill, the objective of which will be to establish a separate Parliamentary Service. As at the time of writing, this Bill had not been introduced.(1)

Further detail in relation to the present Bill is contained in the Bills Digest on the Public Service Bill 1999.

 

Main Provisions

Part 3 - Transitional Provisions

Conversion of officers, employees (fixed term and continuing)

Item 5 provides for the conversion of offices and positions under the PS Act 1922 to positions under the new Act. For instance, 'officers' will be converted to 'employees'.

In addition, staff appointed or employed under the PS Act 1922 at the time of the commencement of the Bill will be taken to have been employed under the Public Service Act 1999.

Transitional provisions in relation to first tier and second tier mobility rights under the Public Service Act 1922

Items 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 first and second tier arrangements are as follows:

  • Division 2 of Part IV of the PS Act 1922 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 of the PS Act 1922 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 PS Act 1922 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 still were 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 item 6, the Bill proposes that mobility rights for first tier employees will be retained for a transitional period of three years.

Effect of the administrative reforms on Part IV mobility rights on APS staff who moved to non-APS Commonwealth employers after 15 March 1998

The amendments made by the Interim Reform Regulations mean that, with the exception of APS staff whose mobility arrangements are determined by the enabling legislation of the Commonwealth or other (eg ACT Government Service) employer to which they have moved, APS staff who moved to a non-APS Commonwealth employer after 15 March 1998 will not have a right of return to the APS under Part IV of the Public Service Act.(2)

Staff who moved to a non-APS Commonwealth employer or who were appointed to a statutory office before 15 March 1998 retain their Part IV mobility rights.

Similarly, APS staff who are transferred to a non-APS Commonwealth employer under section 81C of the Public Service Act also keep their ('second tier') Part IV mobility rights, irrespective of when the transfer takes place. This is because employees transferred under section 81C acquire their Part IV mobility rights by virtue of subsection 87K(2A) of the Act, not the regulations.

Accordingly, an APS officer who goes to work for a Commonwealth authority or take up a statutory office no longer has a right of return under Part IV of the Act - the officer is required to obtain leave without pay from his or her APS employer, or resign from the APS.

Schedule 1 - Repeal and amendment of other Commonwealth Acts

Schedule 1 proposes approximately 964 amendments to 283 Commonwealth Acts. These amendments are generally consequential in nature, and provide for:

  • changes in the current provisions relating to staffing to reflect the new employment framework
  • the removal of obsolete references to the Public Service Board (itself abolished in 1987)
  • consequential (essential machinery amendments) to the Superannuation Act 1976 and the Superannuation Act 1990
  • 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.(3)

During his Second Reading Speech into the Bill, the Minister Assisting the Prime Minister for the Public Service, the Hon Dr Kemp MP, indicated that the Government would propose further amendments, to other Commonwealth legislation.(4)

The major amendments proposed by Schedule 1 of the Bill are:

Item 597 - this item proposes to repeal the Merit Protection (Australian Government Employees) Act 1984.

Item 735 - this item proposes to repeal the Public Service Act 1922.

Determination of salaries of Members of Parliament

Amendments to the Remuneration and Allowances Act 1990

Items 753, 754, 755 and 756 - these items make various amendments to the Remuneration and Allowances Act 1990. The most significant set of amendments is made by item 756, to subclauses 1(2) and 1(3) of Schedule 3.

At present, subclause 1(2) provides that the annual salary of Members of Parliament is equal to the minimum annual rate of salary payable to APS officers at the Senior Executive Service Band 2 level (SES Band 2).

As the salaries of SES Band 2 officers are now set by (individual) Australian Workplace Agreements, there is arguably no longer a minimum annual rate of salary payable in respect of that classification. In any event, clause 24 of the Public Service Bill, by formally providing for the devolution of salary setting arrangements for SES and non-SES employees to the agency level, will accentuate this issue. Accordingly, a new mechanism for setting the salaries of Members of Parliament is necessary.(5)

The amendments proposed by item 756 will link the annual salary of Members of Parliament to the 'minimum executive office salary'. The 'minimum executive office salary' will be either:

  • the minimum annual rate of salary payable at the SES Band 2 classification, or
  • where a 'principal executive classification' is prescribed by the regulations, the minimum annual rate of salary applicable to that classification.

Amendments to the Remuneration Tribunal Act 1973

Principal executive classifications are to be determined under new subsection 5(2A) of the Remuneration Tribunal Act 1973 (introduced by item 759). The amendment proposed by this item will provide that an additional function of the Remuneration Tribunal is to:

  • determine a classification structure for principal executive offices, and
  • provide advice to relevant employing bodies in relation to terms and conditions on which principal executive offices are to be held.

However, the terms and conditions (including remuneration and allowances) of a principal executive office may be determined by the relevant employing body, under new section 12C. This is a change from the current procedure. At present, the allowances of Members of Parliament and statutory office holders are determined by the Remuneration Tribunal, after receiving submissions from parties, including the relevant employing body.

New subsection 12C(2) compels an employing body to first request the assistance of the Remuneration Tribunal if it wishes to determine terms and conditions for a principal executive office classification that will be inconsistent with the classification structure determined by the Tribunal under subsection 5(2A).

New subsection 12C(3) provides that a determination by an employing body under new subsection 12C(1) in respect of a principal executive office overrides any provision of another Act that would otherwise affect that principal executive office, unless the provision of the other Act is specifically expressed to override subsection 12C(3).

 

Endnotes

  1. The Government laid aside the Parliamentary Service Bill 1997 [No.2] on 6 April 1998, after it refused to accept amendments proposed by the Senate.

  2. Public Service Regulations (Amendment - Interim Reforms) (SR 1998 No. 23); rr. 169, 169A, 170, 171AA, 171A, 172, and Schedules 1, 1G, 2, 3A, 3B, 3C and 4. The Hon Dr Kemp MP, Public Employment (Consequential and Transitional) Amendment Bill 1999, Second Reading Speech, 30 March 1999.

  3. House of Representatives, Parliamentary Debates, 30 March 1999, p. 3894.

  4. Ibid., p. 3894.

  5. See: Healy, M., and Winter, G., 'Remuneration of Members of the Parliament of Australia', Background Papers (Politics and Public Administration Group), No. 18 1997/98, 2 June 1998, p. 6.

 

Contact Officer and Copyright Details

Elen Perdikogiannis and Bob Bennett
17 May 1999
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 1999

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, 1999.

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