Human Services Legislation Amendment (Transfer of Staff) Regulations 2005 (Cth)

Human Services Legislation Amendment (Transfer of Staff) Regulations 2005¹

Select Legislative Instrument 2005 No. 208

I, JOHN SANDERSON, Administrator of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Human Services Legislation Amendment Act 2005.

Dated 15 September 2005

JOHN SANDERSON

Administrator

By His Excellency’s Command

JOE HOCKEY

Minister for Human Services

Contents

1Name of Regulations                                            3

2Commencement                                                 3

3Definitions                                                        3

4When disciplinary action commenced                        4

5When decision finally determined                             4

6Purpose of these Regulations                                 4

7Recruitment action relating to engagement or promotion commenced but not decided by commencement time                                            4

8Recruitment action relating to engagement or promotion decided but not effective by commencement time                                            5

9Transfer processes commenced but not decided by commencement time    5

10Transfer processes decided but not effective by commencement time        6

11Disciplinary action process — pre-commencement misconduct for which disciplinary action has commenced                                                 6

12Disciplinary action process — pre-commencement misconduct for which no disciplinary action has commenced                                         7

13Certain staffing procedures commenced but not finally determined by commencement time                                                                     7

14Termination of employment commenced but not finally determined by commencement time                                                                     8

15Grievance processes commenced but not finally determined by commencement time 8

16Review of action processes commenced after commencement time 9

17Review of decisions and determinations                     9

18CEO to perform functions of Managing Director            9

19Delegations                                                      9

Name of Regulations

These Regulations are the Human Services Legislation Amendment (Transfer of Staff) Regulations 2005.

Commencement

These Regulations commence on the commencement of items 31 to 731 of Schedule 2 to the Human Services Legislation Amendment Act 2005.

Definitions

In these Regulations:

Act means Human Services Legislation Amendment Act 2005.

HIC Policies and Guidelines means the policies and guidelines relating to staffing procedures in HIC, as in effect immediately before the commencement time.

HIC Rules means the old law, the HIC Terms and Conditions of Employment and the HIC Policies and Guidelines.

HIC Terms and Conditions of Employment means the terms and conditions relating to the employment of members of the staff of HIC, as in effect immediately before the commencement time.

pre-commencement misconduct means misconduct of a member of the staff of HIC that was committed before the commencement time and that was misconduct for the purposes of the HIC Rules.

pre-commencement period means the period commencing 3 months before the commencement time and ending immediately before the commencement time.

Public Service Act means the Public Service Act 1999, and includes regulations made under that Act and any instruments made under that Act or those regulations.

staffing procedures has the same meaning as in item 721 of Part 3 of Schedule 2 to the Act.

Note The following terms used in these Regulations are defined in item 714 of Part 3 of Schedule 2 to the Act:

·CEO

·commencement time

·HIC

·Managing Director

·old law.

When disciplinary action commenced

In these Regulations, disciplinary action is taken to have been formally commenced when the person suspected of misconduct is notified, in writing, about the disciplinary action (other than counselling) to be taken against the person.

When decision finally determined

In these Regulations, a decision is finally determined if:

(a)the decision is not, or is no longer, subject to any form of review or appeal under the HIC Rules; or

(b)the decision was subject to review or appeal under the HIC Rules but the period within which such review or appeal could have been instituted has ended without a review or appeal having been commenced.

Purpose of these Regulations

These Regulations prescribe matters of a transitional nature in relation to the transfer of staff from HIC to Medicare Australia.

Note Under subitem 721 (4) of Part 3 of Schedule 2 to the Act, these Regulations have effect despite the Public Service Act 1999.

Recruitment action relating to engagement or promotion commenced but not decided by commencement time

(1)This regulation applies to a vacancy or an expected vacancy in HIC:

(a)that was notified, during the pre-commencement period:

(i)in the Gazette; or

(ii)on an Internet website established by HIC; or

(iii)in the print media; and

(b)in relation to which no decision has been made to engage or promote a person.

(2)The CEO may continue an engagement or promotion action for a vacancy or an expected vacancy to which this regulation applies.

(3)If the CEO continues an engagement or promotion action, the CEO must:

(a)do so in accordance with the Public Service Act; and

(b)make a decision in relation to the engagement or promotion within 3 months after the commencement time.

Recruitment action relating to engagement or promotion decided but not effective by commencement time

(1)This regulation applies to a decision to engage a person as a member of the staff of HIC, or to promote a person to a vacancy or expected vacancy in HIC, if the decision was made during the pre-commencement period but the decision has not taken effect.

(2)A decision to which this regulation applies may be given effect by the CEO in accordance with the terms of the decision, if the decision is given effect within 3 months after the commencement time.

(3) A decision made under this regulation has effect as if it were made under the Public Service Act.

Transfer processes commenced but not decided by commencement time

(1)This regulation applies to a transfer process in HIC:

(a)that was commenced during the pre-commencement period; and

(b)in relation to which no decision has been made to transfer a person.

(2)The CEO may continue a transfer process to which this regulation applies.

(3)If the CEO continues a transfer process, the CEO must:

(a)do so in accordance with the Public Service Act; and

(b)make a decision in relation to the transfer within 3 months after the commencement time.

Transfer processes decided but not effective by commencement time

(1)This regulation applies to a decision to transfer a member of the staff of HIC if the decision was made during the pre‑commencement period but the decision has not taken effect.

(2)A decision to which this regulation applies may be given effect by the CEO in accordance with the terms of the decision, if the decision is given effect within 3 months after the commencement time.

(3) A decision made under this regulation has effect as if it were made under the Public Service Act.

Disciplinary action process — pre-commencement misconduct for which disciplinary action has commenced

(1)This regulation applies to pre-commencement misconduct committed by a member of the staff of HIC who has transferred to Medicare Australia, being misconduct:

(a)that, at the time it was committed, involved a suspected breach of the HIC Rules; and

(b)for which disciplinary action has been formally commenced in accordance with the HIC Rules; and

(c)for which no decision has been finally determined.

(2)The CEO may continue with disciplinary action in relation to pre-commencement misconduct to which this regulation applies, and give effect to a decision that finally determines that pre-commencement misconduct, in accordance with the HIC Rules.

(3)The CEO may impose, on an employee of Medicare Australia who has committed pre-commencement misconduct, any sanction that the Managing Director could have imposed under the HIC Rules.

(4) A sanction imposed under this regulation has effect as if it were imposed under the Public Service Act.

Disciplinary action process — pre-commencement misconduct for which no disciplinary action has commenced

(1)This regulation applies to pre-commencement misconduct committed by a member of the staff of HIC who has transferred to Medicare Australia, being misconduct:

(a)that, at the time it was committed, involved a suspected breach of the HIC Rules and that, if the Public Service Act applied to HIC at that time, would have involved a suspected breach of the Public Service Act; and

(b)for which disciplinary action has not been formally commenced in accordance with the HIC Rules.

(2)The CEO may, in accordance with the Public Service Act, commence disciplinary action in relation to pre‑commencement misconduct to which this regulation applies.

Certain staffing procedures commenced but not finally determined by commencement time

(1)This regulation applies to a process related to the inefficiency, redundancy, fitness for duty, loss of essential qualifications, forfeiture of position or performance management of a member of the staff of HIC who has transferred to Medicare Australia, being a process:

(a)that HIC formally commenced against the staff member before the commencement time; and

(b)for which no decision has been finally determined.

(2)The CEO may continue a process to which this regulation applies, and give effect to a decision that finally determines that process, in accordance with the HIC Rules.

(3) A decision made under this regulation has effect as if it were made under the Public Service Act.

Termination of employment commenced but not finally determined by commencement time

(1)This regulation applies to procedures for the termination of the employment of a member of the staff of HIC who has transferred to Medicare Australia, being procedures:

(a)that HIC formally commenced against the staff member before the commencement time; and

(b)for which no decision has been finally determined.

(2)The CEO may continue procedures for termination to which this regulation applies, and give effect to a decision that finally determines those procedures, in accordance with the HIC Rules.

(3)A termination of an employee under this regulation has effect as if it were made under the Public Service Act.

Grievance processes commenced but not finally determined by commencement time

(1)In this regulation:

incomplete grievance process means a grievance process that:

(a)a member of the staff of HIC commenced, in accordance with the HIC Rules, before the commencement time; and

(b)for which no decision has been finally determined.

(2)The CEO may continue an incomplete grievance process in relation to a member of the staff of HIC who has transferred to Medicare Australia, and give effect to a decision that finally determines that process, in accordance with the HIC Rules.

(3)A determination or decision made under this regulation has effect as if it were made under the Public Service Act.

Review of action processes commenced after commencement time

(1)A member of the staff of HIC who has transferred to Medicare Australia may commence a review of action process in relation to an action that occurred before the commencement time.

(2)The CEO must determine the review in accordance with the Public Service Act.

Review of decisions and determinations

To avoid doubt, an employee of Medicare Australia against whom the CEO has made a decision or determination under regulation 7, 9, 12 or 16 may apply, under the Public Service Act, for review of the decision or determination if the Public Service Act allows such review.

CEO to perform functions of Managing Director

To the extent required to fulfil obligations, exercise powers or perform functions under these Regulations, the CEO is authorised, on and after the commencement time, to perform the powers, functions and duties that HIC or the Managing Director was authorised to perform before the commencement time.

Delegations

(1)The CEO may, in writing, delegate to an employee of Medicare Australia any of the CEO’s powers or functions under these Regulations.

(2)A person exercising powers or functions under a delegation made under this regulation must comply with any directions given by the CEO.

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See