Bills Digest No. 46 2001-02
Parliamentary Service Amendment Bill 2001
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
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Parliamentary Service Amendment Bill
2001
Date Introduced: 23 August 2001
House: House of Representatives
Portfolio: The Parliament
Commencement: On a date to be fixed by
Proclamation or within 6 months of Royal Assent.
The Parliamentary
Service Amendment Bill 2001:
-
- Proposes that present arrangements for the mobility of
employees between the Australian Public Service and the
Parliamentary Service and vice versa will only apply to ongoing
(ie. permanent) employees of the Parliamentary Service and the
Australian Public Service, and
-
- Proposes transitional arrangements for continuity which would
apply where a joint parliamentary department is renamed or
abolished with its functions conferred on another parliamentary
department.
Parliamentary Administration
The administration of the Parliament is
conducted through five Parliamentary Departments: the Department of
the House of Representatives, the Department of the Senate, the
Department of the Parliamentary Library, the Department of the
Parliamentary Reporting Staff and the Joint House
Department.(1)
The Department of the House of Representatives
and the Department of the Senate are responsible for the provision
of procedural, information and administrative services to Members
and Senators respectively. The Department of the Parliamentary
Library is responsible for the provision of library, reference and
research services to Members and Senators. The Department of the
Parliamentary Reporting Staff (DPRS) provides reporting,
information technology, telecommunications and broadcasting
services to the Parliament. The Joint House Department performs
building management, maintenance and catering functions associated
with Parliament House.
Staffing in the Parliamentary
Service
This Bill proposes several amendments to the
Parliamentary Service Act 1999. That Act provided for the
creation of a separate Parliamentary Service distinct from the
Australian Public Service (APS). In particular, it established a
separate legal framework covering staff employed by the five
Parliamentary Departments. It substantially replicated the terms of
the Public Service Act 1999 which made significant changes
to the rights and obligations of APS employees as well as other
matters relating to employment arrangements in the broader
Australian Public Service (APS). The Public Service Act
1999 replaced the employment framework contained in the
Public Service Act 1922. Background to the
Public Service Act 1999 and the Parliamentary Services
Act 1999 was provided in previous Bills
Digests.(2)
The Parliamentary Service created by the
Parliamentary Service Act 1999 consists of all persons
employed by the (presently five) Parliamentary Departments,
including Departmental Secretaries, SES and non SES staff.
The Parliamentary Departments are also subject
to the Workplace Relations Act 1996. All Parliamentary
Departments have negotiated certified agreements under this
legislation.
Inter-Service Mobility of
Employees
The Report of the Joint Committee of Public
Accounts (JCPA) Inquiry into the Public Service Bill 1997 made some
comments about employees' mobility rights between the two Services.
It recommended that:
The Parliamentary Service Bill should provide
for reciprocal mobility arrangements between the Parliamentary
Service and the Australian Public Service which enable staff of
either service to compete on merit for jobs in the other service
and to carry over relevant entitlements.(3)
The importance of questions of staff mobility
were underlined by the Clerk of the Senate, Mr Evans in evidence to
the 1997 JCPA Inquiry:
There must be ready mobility between the Public
Service and the parliamentary service in the sense that public
servants should be able to come readily to the parliamentary
service and to bring with them the entitlements that they have as
public servants...Without ready mobility, the parliamentary service
will wither on the vine, because it relies for recruitment on the
Public Service very heavily. We rely on getting good people coming
from the Public Service and going back again. If they do not feel
that they can readily move to the parliamentary service and go back
again, we will not get the quality of staff that we have been
getting in the past. So that mobility is absolutely crucial. The
absence of it would so cripple the parliamentary departments that
it would cripple the parliament.(4)
Items 1 and 2 insert new definitions of
'non-ongoing APS employee' and 'ongoing APS employee' into the
definitions section of the Parliamentary Service Act,
(s.7). The Act already contains definitions of 'non-ongoing
Parliamentary Service employee' and 'ongoing Parliamentary Service
employee'.
Item 3 proposes the repeal of
existing section 26 of the Parliamentary Service Act. It inserts
new sections 26 and 26A.
Existing section 26 of the Parliamentary Service
Act makes provision for reciprocal mobility of staff between the
Public Service and the Parliamentary Departments without a break in
continuity of employment or loss of accrued benefits.
Proposed new section 26
provides for the mobility arrangements of the present Parliamentary
Services Act to be available to all ongoing employees in
both Services, and to enable those employees to transfer their
accrued leave entitlements to their new employer. The new section
provides for the portability of annual leave, and personal or
carer's leave (however they may be described) if an ongoing
employee in one Service is engaged in the other Service as an
ongoing employee.
Section 26, as presently drafted means that
Parliamentary Service employees do not have mobility rights to
Australian Public Service Statutory Agencies such as the
Ombudsman's office. The Explanatory Memorandum states: "The
drafting of section 26 of the Parliamentary Service Act resulted in
employees of the Parliamentary Service having mobility rights with
Australian Public Service Departments and Executive Agencies
created under the Public Service Act but not with Australian Public
Service Statutory Agencies (for example, Centrelink or the
Australian Taxation Office).
Proposed new section 26A
addresses the other situation where an ongoing employee is engaged
as a non-ongoing employee in the other Service. The Explanatory
Memorandum states that it: "deals with the situation where an
ongoing employee...is granted leave without pay to take up
employment as a non-ongoing employee in the other Service. These
provisions also cover arrangements for the portability of annual
leave, and personal or carer's leave (however they may be
described) between Services."
Item 4 inserts new
sections 54A and 54B which address the situations of
change of name of a Parliamentary Department or abolition of a
Parliamentary department (but not the Department of the Senate or
Department of the House of Representatives). These
transitional arrangements would apply where a joint parliamentary
department is renamed or abolished with its functions conferred on
another parliamentary department.
The Bill serves to clarify questions of mobility
of all ongoing employees between the APS and Parliamentary
Service. In this way it facilitates mobility. This mobility is
essential to maintain a high standard of staffing within the
Parliamentary Service over time.
The impact of the Bill on the rights of
temporary, non-permanent (ie non-ongoing) employees is
less certain. These employees were engaged for a specified term or
for the duration of a particular task, or for duties that are
irregular or intermittent - as is set out in the Parliamentary
Service Act, paragraphs 22(2)(b) and (c). Therefore it is argued
that there is no need to provide for portability of leave
entitlements between the APS and Parliamentary Service for these
employees. On this view, the 'normal' approach to non-ongoing
employees will apply at the end of their contracts - under which
any remaining unused leave entitlements are 'paid out' in cash.
The government's position is to explain that
changes to section 26 are necessary to correct an inadvertent
omission from the legislation, and to implement the original
intention of the legislation, especially to ensure consistency
between the regime set out in the Public Service Act 1999
and the Parliamentary Service Act 1999. The Explanatory
Memorandum explains "section 26 did not operate as intended because
of drafting changes between the 1997 and 1999 Public Service Bills
which were not picked up in section 26 of the Parliamentary Service
Bill 1999." According to the Second Reading Speech, that section 26
only apply to ongoing employees was "the original intent of both
the Parliament and the government when the Parliamentary Service
Bill was developed between 1997 and 1999 but was not fully
reflected in the ensuing Act."
On the other hand, it may be the case that the
Bill proposes to reduce the rights of temporary employees by
removing mobility rights which, prima facie, appear to
apply to them. There are a significant number of employees in both
Services engaged on a 'non-ongoing' basis for various reasons,
including the lower overall cost of employing persons on this
basis. Arguably this reflects broader trends in sections of the
Australian workplace - a process of creeping 'casualisation' of the
workforce.
Further, it should be noted also that the Bill
does not use the phrase "on the same terms and conditions" which is
presently contained in s.26 of the Act. The Explanatory Memorandum
is silent on this point. However, on its face, it appears that the
Bill may detrimentally affect the rights of ongoing employees as
well as those of non-ongoing employees, as their specific terms and
conditions will not be transferred to their new workplace. In some
measure this is a recognition of the fact of variations in working
terms and conditions that apply under the certified agreements of
different Departments within both the APS and the Parliamentary
Service.
-
- Parliamentary Services Act 1999, s.54.
- Elen Perdikogiannis and Bob Bennett, Information and Research
Services, Bills Digest No 177
of 1998-99 (Public Service Bill 1999); Bob Bennett,
Information and Research Services, Bills Digest No 18 of
1999-2000 (Parliamentary Service Bill 1999).
- Submissions, volume 2, p. 137.
- Transcript of evidence, 7 August 1997, pp .126-127.
James Prest
10 September 2001
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 2000
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,
2001.
Back to top