Commonwealth Employees (Redeployment and Retirement) Regulations (Cth)

Statutory Rules

1981 No. 13

REGULATIONS UNDER THE COMMONWEALTH EMPLOYEES (REDEPLOYMENT AND RETIREMENT) ACT 1979*

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Commonwealth Employees (Redeployment and Retirement) Act 1979.

Dated this fifth day of February 1981.

ZELMAN COWEN

Governor-General

By His Excellency’s Command,

IAN VINER

Minister of State for Employment and Youth Affairs for and on behalf of the Prime Minister

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COMMONWEALTH EMPLOYEES (REDEPLOYMENT AND RETIREMENT) REGULATIONS

PART I—PRELIMINARY

Citation

1. These Regulations may be cited as the Commonwealth Employees (Redeployment and Retirement) Regulations.

Interpretation

2. In these Regulations, unless the contrary intention appears—

“Director” means the Director, Grievance and Appeals Bureau, Office of the Public Service Board;

“the Act” means the Commonwealth Employees (Redeployment and Retirement) Act 1979.

PART II—APPEALS

Interpretation

3. (1) In this Part, unless the contrary intention appears, a reference to an appeal shall be read as a reference to—

(a) an appeal by an employee to a Tribunal against the making of a redeployment declaration under section 9 of the Act in respect of the employee;

 

* Notified in the Commonwealth of Australia Gazette on 5 February 1981.

(b) an appeal by an employee to a Tribunal against action taken under the Act by way of redeployment of the employee in the Australian Public Service or in the employment of a prescribed Commonwealth authority;

(c) an appeal by an employee to a Tribunal against the issue of a certificate under section 11 of the Act in respect of the employee; or

(d) an appeal by an employee to a Tribunal against the issue of a certificate under section 14 of the Act in respect of the employee,

as the case requires.

(2) In this Part, unless the contrary intention appears, a reference to the appropriate authority shall be read as—

(a) in relation to an appeal against the making of a redeployment declaration by a Permanent Head under section 9 of the Act—a reference to that Permanent Head;

(b) in relation to an appeal against the making of a redeployment declaration by a prescribed Commonwealth authority under section 9 of the Act—a reference to that prescribed Commonwealth authority; and

(c) in any other case—a reference to the Public Service Board.

Form of appeal

4. (1)An appeal shall be made in writing and shall specify the ground of appeal.

(2) Without limiting the generality of sub-regulation (1), an appeal—

(a) being an appeal referred to in paragraph 3 (1) (a), shall specify in what respect (if any) it is claimed that any relevant administrative procedures set out in a notice published in the Gazette under section 8 of the Act have not been followed; and

(b) being an appeal referred to in paragraph 3 (1) (b), (c) or (d), shall specify—

(i) in what respect (if any) it is claimed that the Public Service Board did not give effect to any principles set out in a notice published in the Gazette under sub-section 11 (2) of the Act that are applicable in the case of the employee; or

(ii) in what respect (if any) it is claimed that the Public Service Board did not have regard to the factors referred to in sub-section 11 (4) of the Act,

as the case requires.

 

Lodging appeals

5. (1) Subject to this regulation, an appeal shall be—

(a) delivered to the Director; or

(b) posted so as to be received by the Director,

at an address specified by the Director by notice published in the Gazette as an address at which appeals may be lodged, within the period of 21 days commencing on the day on which the employee is furnished with the relevant documents, or within such longer period as the Director considers reasonable.

(2) In this regulation, a reference to relevant documents shall be read as a reference to—

(a) notification in writing under section 11 of the Act of the action taken by the Public Service Board to redeploy an employee or to arrange for his redeployment;

(b) a copy of the redeployment declaration under section 9 of the Act; or

(c) a copy of the certificate under section 11 or 14 of the Act,

as the case requires, in respect of which the appeal is made, together with, in each case—

(d) subject to regulation 12, a statement in writing setting out, in relation to the notification, declaration or certificate—

(i) the facts and circumstances in relation to which the action was taken, the declaration was made or the certificate was issued, as the case may be;

(ii) the rights of appeal under the Act available to the employee;

(iii) the time within which and the manner in which such an appeal may be made under these Regulations; and

(iv) the address at which appeals may be lodged.

(3) Subject to regulation 12, an employee shall not be furnished with a notification or a copy of a declaration or certificate, referred to in paragraph (2) (a), (b) or (c), unless that notification or copy is accompanied by the statement referred to in paragraph (2) (d).

(4) Where an employee who is entitled to appeal to a Tribunal under sub-section 15 (1) of the Act, or any person on behalf of such an employee, applies in writing to the Director, before the expiration of the period referred to in sub-regulation (1), for an extension of that period, the Director may, if there is reasonable ground for so doing, extend that period by such further period as he considers reasonable.

(5) Where the Director refuses to grant an extension of time under sub-regulation (4), he shall notify the appellant in writing accordingly.

(6) Subject to sub-regulation (7), where the Director has refused an application made to him under sub-regulation (4), a Chairman of a Tribunal may, upon request by or on behalf of an appellant, made in relation to an appeal lodged after the expiration of the period referred to in sub-regulation (1) agree, if there are special circumstances for so doing, that a Tribunal hear and determine that appeal as if it had been lodged before the expiration of that period.

(7) A Tribunal shall not hear and determine an appeal referred to in sub-regulation (6) unless it is satisfied that the appellant has, within 7 days after the Director has notified the appellant of his refusal of the application for extension of the period referred to in sub-regulation (1), notified the Director of his intention to request that a Tribunal hear and determine the appeal in accordance with sub-regulation (6).

Director to notify appropriate authority

6. Where the Director receives an appeal under sub-regulation 5 (1) or a Chairman agrees under sub-regulation 5 (6) that a Tribunal hear and determine an appeal, the Director shall notify the appropriate authority forthwith that the appeal has been made and furnish that authority with a copy of the appeal.

Management representative on Tribunal

7. Where the appropriate authority receives a copy of an appeal from the Director, that authority shall nominate, for the purposes of paragraph 16 (2) (b) of the Act, a person to represent—

(a) in the case of an appeal against the making of a redeployment declaration—the Department or prescribed Commonwealth authority concerned; or

(b) in any other case—the Public Service Board,

for the purpose of the appeal, and shall inform the Director of the name and address of the person so nominated.

Referral of appeals to Tribunal

8. Where the Director receives an appeal under sub-regulation 5 (1) or a Chairman agrees under sub-regulation 5 (6) that a Tribunal hear and determine an appeal, the Director shall, as soon as practicable, refer that appeal to a Chairman of a Tribunal and inform that Chairman of the name and address of the person nominated by the appropriate authority for the purposes of paragraph 16 (2) (b) of the Act.

Employees’ representative on Tribunal

9. (1) Where the Director receives an appeal under sub-regulation 5 (1) or a Chairman agrees under sub-regulation 5 (6) that a Tribunal hear and determine an appeal, the Director shall inform the prescribed organizations of—

(a) the fact that the appeal has been made;

(b) the nature of the appeal and the reason for the making of the redeployment declaration, the issue of the certificate or the action taken, as the case may be, to which the appeal relates;

(c) the name of the appellant;

(d) the class of employees to which he belongs; and

(e) the name of the Department in which, or the prescribed Commonwealth authority by which, he is employed,

and he shall request that those organizations nominate a person for the purposes of paragraph 16 (2) (c) of the Act for the purpose of the appeal.

(2) The person to represent employees as a member of a Tribunal for the purpose of an appeal shall be a person nominated jointly by the prescribed organizations and may be a person so nominated in respect of that appeal or a person so nominated as a person to represent employees, or employees included in a particular class of employees, in appeals generally or in appeals included in a particular class of appeals.

(3) Where the prescribed organizations receive a request under sub-regulation (1), those organizations shall nominate a person for the purposes of paragraph 16 (2) (c) of the Act and shall inform the Director of the name and address of the person so nominated.

(4) Upon being informed of the name of the person nominated for the purposes of paragraph 16 (2) (c) of the Act for the purpose of an appeal, the Director shall notify the Chairman of the Tribunal concerned accordingly.

(5) In this regulation “prescribed organizations” means the organizations referred to in regulation 2 of the Commonwealth Employees (Redeployment and Retirement) (Prescribed Organizations) Regulations.

Date of hearing

10. (1) Subject to sub-regulation (2), as soon as practicable after an appeal has been referred to a Chairman under regulation 8, he shall fix the date on which and the time and place at which the Tribunal will hear the appeal, and shall forthwith notify the appellant, any other party to the appeal and the persons nominated for the purposes of paragraphs 16 (2) (b) and (c) of the Act, of that date, time and place.

(2) A Chairman shall not fix a date under sub-regulation (1) that is less than 7 days after—

(a) the expiration of the period within which the appeal may, in accordance with regulation 5, be made; or

(b) the date on which copies of the statements and documents referred to in sub-regulation 11 (4) are furnished to the appellant,

whichever is the later.

Document and statements relating to appeals

11. (1) The appropriate authority shall, as soon as practicable after receiving a copy of an appeal from the Director, furnish the Director with 5 copies of each of the documents referred to in sub-regulation 5 (2) that have been furnished to the appellant.

(2) The appropriate authority may furnish the Director with a supplementary statement setting out information in relation to the issues raised by the appellant and the facts and circumstances in relation to those issues that were not set out in the statement referred to in paragraph 5 (2) (d).

(3) Subject to regulation 12, a copy of the supplementary statement referred to in sub-regulation (2) shall be furnished to the appellant by the appropriate authority as soon as practicable after the statement has been furnished to the Director.

(4) Subject to regulation 12, the Director shall, as soon as practicable after the appropriate authority has furnished him with the copies of the documents referred to in sub-regulation (1) and with any supplementary statement referred to in sub-regulation (2), furnish the appellant, the Chairman and every other member of the relevant Tribunal with a copy of each of those statements and documents and with a copy of the appeal.

Nondisclosure of certain information

12. (1) Where—

(a) a statement or supplementary statement prepared by an appropriate authority for the purposes of paragraph 5 (2) (d) or sub-regulation 11 (2) contains information of a medical or psychiatric nature concerning the appellant; and

(b) it appears to that appropriate authority that the disclosure of the information to the appellant might be prejudicial to the physical or mental health or well-being of the appellant,

it may, with the approval of the Director, exclude that information from the copy of the statement or supplementary statement furnished to the appellant under sub-regulation 5 (3), 11 (3) or (4) and give that information instead to a medical practitioner nominated for that purpose by the appellant.

(2) Where information is excluded under sub-regulation (1) from a copy of a statement or supplementary statement furnished to an appellant, the appropriate authority shall, in a separate document accompanying that copy, indicate—

(a) the nature of the information so excluded;

(b) the manner in which this information may be made available to the appellant; and

 

(c) that, where the appellant is not satisfied with the manner in which he may obtain the information, he may apply to the Director for the provision of that information.

(3) Where information is excluded under sub-regulation (1) from a copy of a statement or supplementary statement furnished to an appellant, the appropriate authority shall, in a separate document accompanying the copies of the statements or supplementary statements furnished to the Director under regulation 11, indicate the information that has been so excluded.

(4) Where an appellant is not satisfied with the manner in which he may obtain information excluded from a copy of a statement or supplementary statement in accordance with sub-regulation (1), he may apply to the Director for the provision of that information.

(5) Where the Director receives an application under sub-regulation (4) for the provision of information referred to in that sub-regulation, he shall refer the information to a Commonwealth Medical Officer together with all other relevant information for advice as to whether or not disclosure of the information to the appellant would be, or would be likely to be, prejudicial to the physical or mental health or well-being of the appellant.

(6) Where the Commonwealth Medical Officer to whom information is referred under sub-regulation (5) advises the Director that provision of that information or part of that information to the appellant would be, or would be likely to be, prejudicial to the physical or mental health or well-being of the appellant, the Director shall not provide that information or that part of that information to the appellant.

(7) Where information is withheld from an appellant by virtue of the application of this regulation, the relevant Tribunal shall be so informed and may, notwithstanding the other provisions of this regulation, release that information or part of that information to that appellant in such manner and subject to such conditions or limitations as it considers appropriate in the circumstances.

Appointment of person to hear evidence

13. (1) Where a Tribunal considers that it is impracticable for any evidence in an appeal to be taken by the Tribunal, it may appoint a person, whether a member of the Tribunal or not, to take that evidence.

(2) A person appointed under sub-regulation (1) may, for the purpose of taking evidence in an appeal, administer an oath or affirmation.

(3) Where a person appointed under sub-regulation (1) takes evidence in an appeal, he shall transmit that evidence to the Tribunal.

 

(4) Evidence in an appeal taken by a person appointed under sub-regulation (1) shall, for the purpose of the hearing and determination of that appeal, be deemed to have been taken by the Tribunal

Powers of Chairman

14. For the purpose of the hearing of an appeal, the Chairman of a Tribunal may, by writing under his hand, summon a person to attend before the Tribunal or before a person appointed under sub-regulation 13 (1) to give evidence and to produce such documents (if any) as are referred to in the summons.

Consolidation of appeals

15. Where 2 or more appeals have been made, being appeals by employees in respect of whom redeployment declarations have been made by reason that they are included in a class of employees employed in a Department or by a prescribed Commonwealth authority which comprises a greater number of employees than is necessary for the efficient and economical working of the Department or authority, the Tribunal may, where it is of the opinion that the consolidation of the appeals would expedite the hearing and determination of those appeals, and where the Tribunal is of the opinion that consolidation of those appeals will not prejudice any party to one or more of those appeals, consolidate those appeals and hear those appeals together.

Notification of joinder of appeals

16. Where 2 or more appeals are consolidated under regulation 15, or where employees are joined as parties to an appeal under sub-section 15 (5). of the Act, the Tribunal shall cause those employees, all other parties to that appeal and the Director to be notified in writing of that fact forthwith.

Representation of parties

17. A person who is a party to an appeal before a Tribunal may be represented at that appeal by an official of an organization within the meaning of the Conciliation and Arbitration Act 1904 or, with the approval of the Tribunal, by some other person.

Protection of members of Tribunal, witnesses &c.

18. (1) An action or proceeding, civil or criminal, does not lie against a person who is a Chairman or other member of a Tribunal for or in respect of any act or thing done in good faith by the person in his capacity as such a Chairman or member.

(2) Subject to these Regulations—

(a) a person summoned to attend or appearing before a Tribunal to give evidence at an appeal; and

(b) an official or other person representing a party at the hearing of an appeal before a Tribunal,

has the same protection, and is subject to the same liabilities, in any civil or criminal proceedings, as a witness in proceedings in the High Court.

 

Rights of parties to proceedings

19. Where 2 or more appeals are consolidated under regulation 15, or where employees are joined as parties to an appeal under subsection 15 (5) of the Act, for the purpose of the appeal—

(a) each party, other than the appropriate authority, shall have the rights of an appellant;

(b) the Director shall have the same duties and responsibilities in respect of each party to the appeal; and

(c) the Tribunal shall inform each party of the name of each other party to the appeal.

Impartiality of Tribunal

20. A Chairman or other member of a Tribunal—

(a) shall not take part in the hearing or determination of an appeal where he has or has had personal involvement in a matter to be considered in that appeal; and

(b) shall not be subject to the direction of any other person in respect of any act or thing done in his capacity as Chairman or other member of that Tribunal.

Decision of Tribunal

21. Where a Tribunal determines an appeal, it shall forthwith cause all parties to the appeal and the Director to be notified in writing of its decision on the appeal and of the reasons for that decision.

PART III—MISCELLANEOUS

Service of documents

22. Where the Act requires or these Regulations require that an employee be furnished or provided with any document, that document may be—

(a) delivered to him personally; or

(b) sent to him by post addressed to him at his last known place of residence or business.

Delegations

23. (1) The Director may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him, delegate to an employee holding, or performing the duties of, an office in the Public Service Board any of his powers under these Regulations, other than this power of delegation.

(2) A power so delegated, when exercised by the delegate, shall, for the purposes of these Regulations, be deemed to have been exercised by the Director.

(3) A delegation under this regulation does not prevent the exercise of a power by the Director.