Public Service Amendment Regulations 2003 (No. 2) (Cth)

Public Service Amendment Regulations 2003 (No. 2)1

Statutory Rules 2003 No. 3642

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Public Service Act 1999.

Dated 18 December 2003

P. M. JEFFERY

Governor-General

By His Excellency’s Command

KEVIN ANDREWS

Minister for Employment and Workplace Relations

for the Prime Minister

1Name of Regulations

These Regulations are the Public Service Amendment Regulations 2003 (No. 2).

2Commencement

These Regulations commence on gazettal.

3Amendment of Public Service Regulations 1999

Schedule 1 amends the Public Service Regulations 1999.

Schedule 1Amendments

(regulation 3)

  

[1]Subregulation 3.5 (2), table, after item 8

insert

9 To enable the Agency to engage an ongoing Parliamentary Service employee as a non-ongoing APS employee Term not exceeding 3 years

[2]After subregulation 3.6 (2)

insert

1. (3)

   For subsection 22 (5) of the Act, the engagement of a person for a reason mentioned in item 9 in the table in subregulation 3.5 (2) may be extended if:

   1. (a)

      the reason continues to exist; and

   2. (b)

      the total term does not exceed 3 years; and

   3. (c)

      the Agency cannot fully meet its objectives by using the services of an ongoing APS employee in the Agency.

[3]After regulation 3.8

insert

3.8AEngagement of ongoing Parliamentary Service employee at higher classification — date of effect

1. (1)

   If the engagement of an ongoing Parliamentary Service employee as an ongoing APS employee is not subject to review by a PRC, the engagement takes effect:

   (a) 4 weeks after the engagement decision is notified in the Gazette; or

   1. (b)

      if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head — on the agreed date of effect.

2. (2)

   If the engagement of an ongoing Parliamentary Service employee as an ongoing APS employee is subject to review by a PRC, the engagement takes effect in accordance with the following table.

Item	Is an application for review made before the end of the application period?	Engagement takes effect
1	No	Either: (a) 2 weeks after the end of the application period; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head — on the agreed date of effect.
2	Yes Application is withdrawn before the PRC makes a decision on the application	Either: (a) 2 weeks after the Agency Head is notified of the withdrawal; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head — on the agreed date of effect.
3	Yes Merit Protection Commissioner appoints a PRC to deal with the application Application lapses before the PRC makes a decision on the application	Either: (a) 2 weeks after the Agency Head is notified by the Merit Protection Commissioner that the application has lapsed; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head — on the agreed date of effect.
4	Yes Merit Protection Commissioner decides under subregulation 5.10 (1) that it is not necessary to appoint a PRC to deal with the application	Either: (a) 4 weeks after the engagement decision is notified in the Gazette; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head — on the agreed date of effect.
5	Yes Under regulation 5.18, PRC does not uphold the application in relation to the engagement of the ongoing Parliamentary Service employee	Either: (a) 2 weeks after the ongoing Parliamentary Service employee is notified of the decision; or (b) if a later date of effect is agreed between the ongoing Parliamentary Service employee and the Agency Head — on the agreed date of effect.
6	Yes Under regulation 5.18, PRC upholds the application in relation to the engagement of the ongoing Parliamentary Service employee	The engagement of the Parliamentary Service employee whose application is upheld commences in accordance with the terms of the offer of employment made under section 22 of the Act Note See subregulation 5.20 (4).

1. (3)

   In this regulation:

application period means the period in which an application for review of an engagement decision may be made (including any extension of that period).

Note 1 Regulation 3.12 provides for the notification in the Gazette of certain employment decisions. Paragraph 3.12 (1) (l) provides further information about the notification of the engagement decision if the engagement is at a higher classification than the person’s classification as an ongoing Parliamentary Service employee.

Note 2 Division 5.2 provides for review, by a PRC, of an engagement decision where the engagement is at a higher classification than the person’s classification as an ongoing Parliamentary Service employee.

Note 3 See the definition of higher, for a classification, in the Dictionary.

[4]Paragraph 3.12 (1) (k)

omit

paragraph (h).

insert

paragraph (h);

[5]After paragraph 3.12 (1) (k)

insert

1. (l)

   engagement of an ongoing Parliamentary Service employee as an ongoing APS employee if the engagement:

   1. (i)

      follows a decision of a PRC mentioned in subparagraph 5.18 (1) (b) (iii); and

   2. (ii)

      has not been notified under paragraph (a).

[6]After subregulation 3.12 (2)

insert

1. (2A)

   If the person whose engagement is mentioned in paragraph (1) (a):

   1. (a)

      was an ongoing Parliamentary Service employee immediately before the engagement; and

   2. (b)

      was engaged at a higher classification than the Parliamentary Service employee’s classification as a Parliamentary Service employee;

the notification of the decision must include a statement to the effect that:

‘This decision to engage an ongoing Parliamentary Service employee at a higher classification may be subject to review by a Promotion Review Committee in accordance with Part 5 of the Regulations.’.

Note See the definition of higher, for a classification, in the Dictionary.

[7]Regulations 5.2 and 5.3

substitute

5.2Outline of Part 5

This Part makes provision in relation to the following matters:

1. (a)

   the entitlement of APS employees to review of certain promotion decisions and other APS actions;

(b) the entitlement of ongoing Parliamentary Service employees to review of certain promotion decisions;

1. (c)

   the entitlement of APS employees and ongoing Parliamentary Service employees to review of certain engagement decisions;

2. (d)

   the responsibilities and powers of Agency Heads and the Merit Protection Commissioner in relation to review of APS actions;

(e) the role and powers of Promotion Review Committees constituted for the review of a decision mentioned in this regulation.

Note Certain reporting powers for the Merit Protection Commissioner are set out in subsection 33 (6) of the Act.

5.3Review of certain promotion and engagement decisions

Division 5.2 provides for applications for review of certain promotion decisions and engagement decisions to be made to the Merit Protection Commissioner for review by a Promotion Review Committee.

Note A decision by a Promotion Review Committee is binding on an Agency Head: see subregulation 5.20 (1).

[8]Division 5.2, heading

substitute

Division 5.2Review of certain APS promotion decisions and engagement decisions (including decisions involving Parliamentary Service employees)

[9]Regulation 5.6

omit

This Division applies if:

insert

1. (1)

   This Division applies if:

[10]Regulation 5.6

insert

1. (2)

   This Division also applies if:

   (a) an engagement decision is made by an Agency Head to engage an ongoing Parliamentary Service employee as an ongoing APS employee at a classification mentioned in any of Groups 1 to 6 set out in Schedule 1 to the Classification Rules; and

   (b) the engagement decision is not made in accordance with the recommendation of an Independent Selection Advisory Committee; and

   (c) the engagement decision is not made in accordance with a PRC decision.

(3) In this Division, a decision to engage an ongoing Parliamentary Service employee is an engagement decision if the engagement is at a higher classification than the ongoing Parliamentary Service employee’s classification as a Parliamentary Service employee, worked out in accordance with Schedule 2.

Note See the definition of higher, for a classification, in the Dictionary.

[11]Regulation 5.7

substitute

5.7Entitlement for review: promotion decision

1. (1)

   If:

   1. (a)

      an ongoing APS employee applies for promotion to relevant employment; and

   2. (b)

      a promotion decision is made in relation to the relevant employment;

the ongoing APS employee is entitled to apply to the Merit Protection Commissioner to have the promotion decision reviewed by a Promotion Review Committee.

Note A Promotion Review Committee may be appointed to deal with:

(a) applications from APS employees and Parliamentary Service employees in relation to the same promotion decision; and

(b) applications relating to promotion decisions and engagement decisions.

1. (2)

   If:

   1. (a)

      an ongoing Parliamentary Service employee applies for engagement to relevant employment; and

   2. (b)

      the engagement would be at a higher classification than the Parliamentary Service employee’s classification as a Parliamentary Service employee; and

   3. (c)

      a promotion decision is made in relation to the relevant employment;

the ongoing Parliamentary Service employee is entitled to apply to the Merit Protection Commissioner to have the promotion decision reviewed by a Promotion Review Committee.

Note A Promotion Review Committee may be appointed to deal with:

(a) applications from APS employees and Parliamentary Service employees in relation to the same promotion decision; and

(b) applications relating to promotion decisions and engagement decisions.

5.7AEntitlement for review: engagement decision

1. (1)

   If:

   1. (a)

      an ongoing APS employee applies for promotion to relevant employment; and

   2. (b)

      an engagement decision is made in relation to the relevant employment;

the ongoing APS employee is entitled to apply to the Merit Protection Commissioner to have the engagement decision reviewed by a Promotion Review Committee.

Note A Promotion Review Committee may be appointed to deal with:

(a) applications from APS employees and Parliamentary Service employees in relation to the same promotion decision; and

(b) applications relating to promotion decisions and engagement decisions.

1. (2)

   If:

   1. (a)

      an ongoing Parliamentary Service employee applies for engagement to relevant employment; and

   2. (b)

      the engagement would be at a higher classification than the Parliamentary Service employee’s classification as a Parliamentary Service employee; and

   3. (c)

      an engagement decision is made in relation to the relevant employment;

the ongoing Parliamentary Service employee is entitled to apply to the Merit Protection Commissioner to have the engagement decision reviewed by a Promotion Review Committee.

Note A Promotion Review Committee may be appointed to deal with:

(a) applications from APS employees and Parliamentary Service employees in relation to the same engagement decision; and

(b) applications relating to promotion decisions and engagement decisions.

[12]Regulation 5.8

after

promotion decision

insert

or engagement decision

[13]After subregulation 5.9 (1)

insert

1. (1A)

   An application for review of an engagement decision under this Division must:

   1. (a)

      be in writing; and

   2. (b)

      be received by the Merit Protection Commissioner:

      1. (i)

         within the period specified in the Gazette as part of notifying the engagement or within any extension of time given by the Merit Protection Commissioner to a class of employees before the end of that period; and

      2. (ii)

         at the place notified in the Gazette.

[14]Subregulation 5.9 (2)

after

promotion decision

insert

or engagement decision

[15]Subregulation 5.9 (2)

omit

regulation 3.8.

insert

Division 3.1.

[16]Subregulation 5.10 (1)

after

a promotion decision

insert

or an engagement decision

[17]Paragraph 5.10 (1) (b)

after

the promotion decision

insert

or engagement decision

[18]Subregulations 5.10 (2) and (3)

substitute

1. (2)

   A particular PRC may be appointed to deal with:

   1. (a)

      applications by ongoing APS employees and ongoing Parliamentary Service employees for review of a promotion decision; and

   2. (b)

      applications by ongoing APS employees and ongoing Parliamentary Service employees for review of an engagement decision; and

   3. (c)

      applications in relation to more than 1 promotion or engagement decision.

[19]Subregulation 5.12 (1)

after

claim for promotion

insert

or engagement

[20]After subregulation 5.12 (1)

insert

1. (1A)

   An applicant for review of an engagement decision, and the person engaged, must each give the Merit Protection Commissioner a statement in writing setting out his or her claim for promotion or engagement to the relevant employment.

[21]Paragraph 5.12 (3) (a)

omit

within that 14 days the applicant or the person promoted

insert

within that 14 days, the applicant, or the person promoted or engaged,

[22]Regulation 5.18

substitute

5.18Conduct of review by PRC

1. (1)

   In considering an application for review of a promotion decision or an engagement decision, a PRC must:

   1. (a)

      assess the relative merits of the person promoted or engaged, and each applicant for review of the decision, on the basis of:

      1. (i)

         the relative suitability of each person for the duties; and

      2. (ii)

         the relationship between each person’s work-related qualities and the work-related qualities genuinely required for the duties; and

      3. (iii)

         the relative capacity of each person to achieve outcomes related to the duties; and

   2. (b)

      decide, primarily on the basis of the assessment, that:

      1. (i)

         the promotion or engagement decision should be upheld; or

      2. (ii)

         an applicant for review should be promoted to the relevant employment; or

      3. (iii) 

         an applicant for review should be engaged to the relevant employment.

(2) The PRC must tell the relevant Agency Head, in writing, of its decision.

[23]Subregulation 5.19 (1)

omit

promotion decision.

insert

promotion decision or engagement decision.

[24]After subregulation 5.20 (2)

insert

1. (3)

   If a PRC has decided, after conducting a review under regulation 5.18, that an applicant for review who is an ongoing APS employee should be promoted to the relevant employment, the applicant is taken to have been promoted to the relevant employment.

(4) If a PRC has decided, after conducting a review under regulation 5.18, that an applicant for review who is an ongoing Parliamentary Service employee should be engaged to the relevant employment, the Agency Head must offer the ongoing Parliamentary Service employee the relevant employment opportunity not later than 2 weeks after the Agency Head is notified of the review decision.

Note 1 Regulation 3.8 provides for the date of effect of a promotion decision if an application for review has been made to a PRC .

Note 2 Regulation 3.8A provides for the date of effect of an engagement decision if the engagement is at a higher classification than the person’s classification as an ongoing Parliamentary Service employee where an application for review has been made to a PRC.

[25]After Schedule 1

insert

Schedule 2Comparable and higher APS classifications to Parliamentary Service classifications

(Dictionary, definitions of comparable and higher)

1Meaning of comparable classification

A person who is an ongoing Parliamentary Service employee is engaged as an ongoing APS employee at a comparable classification to the person’s classification as an ongoing Parliamentary Service employee immediately before the engagement if:

1. (a)

   the person is engaged as an ongoing APS employee at a classification mentioned in an item in column 2 in the following table; and

2. (b)

   immediately before the engagement, the person was engaged as an ongoing Parliamentary Service employee at the corresponding classification mentioned in column 3 of the item.

Item	APS Group classification	Parliamentary Service Group classification
1	1	1
2	1, 2	2
3	1, 2, 3	3
4	1, 2, 3, 4	4
5	1, 2, 3, 4, 5	5
6	1, 2, 3, 4, 5, 6	6
7	1, 2, 3, 4, 5, 6, 7	7
8	1, 2, 3, 4, 5, 6, 7, 8	8
9	1, 2, 3, 4, 5, 6, 7, 8, 9	9
10	1, 2, 3, 4, 5, 6, 7, 8, 9, 10	10
11	1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11	11

2Meaning of higher classification

A person who is an ongoing Parliamentary Service employee is engaged as an ongoing APS employee at a higher classification than the person’s classification as an ongoing Parliamentary Service employee immediately before the engagement if:

1. (a)

   the person is engaged as an ongoing APS employee at a classification mentioned in an item in column 2 in the following table; and

2. (b)

   immediately before the engagement, the person was engaged as an ongoing Parliamentary Service employee at the corresponding classification mentioned in column 3 of the item.

Item	APS Group classification	Parliamentary Service Group classification
1	2, 3, 4, 5, 6, 7, 8, 9, 10, 11	1
2	3, 4, 5, 6, 7, 8, 9, 10, 11	2
3	4, 5, 6, 7, 8, 9, 10, 11	3
4	5, 6, 7, 8, 9, 10, 11	4
5	6, 7, 8, 9, 10, 11	5
6	7, 8, 9, 10, 11	6
7	8, 9, 10, 11	7
8	9, 10, 11	8
9	10, 11	9
10	11	10

[26]Dictionary, after definition of Commissioner’s Directions

insert

comparable, for a classification, has the meaning given by Schedule 2.

[27]Dictionary, after definition of external review body

insert

higher, for a classification, has the meaning given by Schedule 2.

[28]Dictionary, after definition of *ongoing APS employee

insert

ongoing Parliamentary Service employee has the meaning given by the Parliamentary Service Act 1999.

Parliamentary Service employee has the meaning given by the Parliamentary Service Act 1999.

[29]Dictionary, after definition of relevant Agency Head

insert

relevant employment means employment as an ongoing APS employee at a classification mentioned in any of Groups 1 to 6 set out in Schedule 1 to the Classification Rules.

Notes

1. These Regulations amend Statutory Rules 1999 No. 300, as amended by 2000 No. 359; 2001 No. 328; 2002 Nos. 214 and 264; 2003 No. 317.

2. Notified in the Commonwealth of Australia Gazette