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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
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.
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.
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.
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).
-
- 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.
- 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.
- House of Representatives, Parliamentary Debates, 30
March 1999, p. 3894.
- Ibid., p. 3894.
- 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.
Elen Perdikogiannis and Bob Bennett
17 May 1999
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1999
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