Public Service Regulations (Amendment) (Cth)
THE
PUBLIC SERVICE BOARD, acting under the
Dated 8 September 1987.
J D Enfield
Acting Chairman
Harvey Jacka
Acting Commissioner
I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby approve the following Regulations.
Dated 13 September 1987.
n. m. STEPHEN
Governor-General
By His Excellency’s Command,
M. J. Young
Minister of State for Immigration, Local Government and Ethnic Affairs for and on behalf of the Prime Minister
(S.R. 202/87)—Cat. No. 18/20.8.1987
“
“120e. For the purposes of subsection 129
(2) of the
DIVISION 8c OF PART III OF THE ACT IN ITS APPLICATION IN RELATION TO THE STAFF OF CERTAIN PRESCRIBED COMMONWEALTH AUTHORITIES
76s. (1) In this Division, unless the contrary intention appears:
“Appeal Committee” means a Redeployment and Retirement Appeal Committee constituted under Subdivision D of Division 2 of Part II of the Merit Protection Act;
“Authority” means an authority or body that, immediately before the commencement of section 129 of the
Public Service Legislation (Streamlining) Act 1986 ,was a prescribed Commonwealth authority within the meaning of the repealed Act;“employee” means:
(a) a person employed by an Authority on a permanent basis other than an employee whose employment is on probation and whose employment has not been confirmed;
(b) a person employed by an Authority on a temporary basis whose period of continuous service exceeds one year but does not include a person engaged for a specific period or for the completion of a specific task;
“repealed Act” means the
Commonwealth Employees (Redeployment and Retirement) Act 1979.
(2) An employee is an excess employee for the purposes of a provision of this Division if:
(a) the employee is in a class of employees employed in an Authority, which class comprises a greater number of employees than is necessary for the efficient and economical working of the Authority;
(b) the services of the employee cannot be effectively used because of technological or other changes in the work methods of the Authority or changes in the nature, extent or organisation of the functions of the Authority; or
(c) where the duties usually performed by the employee are to be performed at a different locality and the Authority has determined that the provision applies in relation to the re-location of the performance of those duties—the employee is not willing to perform duties at that locality.
(3) For the purposes of this Division, an employee is inefficient if and only if the employee fails, in the performance of the duties that he or she is required to perform, to attain or sustain a standard of efficiency that a person may reasonably be expected to attain or sustain in the performance of those duties.
(4) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether an employee has failed, in the performance of the duties that he or she is required to perform, to attain or sustain the standard of efficiency referred to in subsection (3):
(a) regard shall be had to:
(i) any written selection criteria or job specifications applicable to those duties;
(ii) any duty statement describing those duties; and
(iii) any written work standards or instructions relating to the manner of performance of those duties; and
(b) regard may be had to:
(i) any written selection criteria or job specifications applicable to similar duties;
(ii) any duty statement describing similar duties; and
(iii) any written work standards or instructions relating to the manner of performance of similar duties.
(5) A reference in subsection (4) to similar duties, in relation to an employee of an Authority, is a reference to similar duties that other employees of that Authority are required to perform.
(6) For the purposes of this Division, an employee is not qualified to perform his or her duties if and only if, in relation to those duties:
(a) the employee ceases to hold, or becomes unable or ineligible to hold or to use and enjoy, an essential qualification; or
(b) a court, person, authority or body that is competent to do so suspends, cancels, revokes, rescinds or otherwise withdraws an essential qualification held by the employee.
(7) A reference in subsection (6) to an essential qualification, in relation to an employee, is a reference to any statutory, professional, academic, commercial, technical, trade, health or other qualification the holding of which is a prerequisite to the practice of a profession, trade or occupation, the exercise of a right or the performance of a function or duty, being a profession, trade, occupation, right, function or duty that it is necessary for that employee to practise, exercise or perform in the course of his or her employment.
(8) In this Division, a reference to the retirement of a person from an Authority is a reference to the retirement of that person from his or her employment in the Authority.
76u. Any member of the staff of an Authority who has attained the age of 55 years is entitled to retire from the Authority at any time at which the staff member desires to do so.
76v. (1) Subject to subsection (2), a member of the staff of an Authority shall, by force of this subsection, be retired from the Authority upon attaining the age of 65 years.
(2) Where the Authority is of the opinion that it is desirable, in the interests of the Authority, that a staff member who has not attained the age of 65 years should continue, after attaining that age, in employment, and the staff member is able and willing so to continue, the Authority may determine, in writing, that subsection (1) does not apply to the staff member.
(3) The Authority may, at the time of making, or at any time after making, a determination under subsection (2) in respect of a staff member, determine that the staff member shall retire from the Authority upon attaining a specified age or upon the expiration of a specified period and, where such a determination is made, the Authority may, at any time before the staff member attains that age or before the expiration of the period so determined, vary the determination.
76w. (1) Where an Authority is satisfied of a relevant matter in relation to an employee of the Authority it may, having considered whether it would be in the interests of the efficient administration of the Authority to transfer the employee to another position in the Authority, by notice in writing given to the employee, alter the employment of the employee with the Authority by employing him or her in a lower capacity or retire the employee from the Authority.
(2) The powers conferred on an Authority by this section are subject to any applicable industrial award.
(3) A notice given to an employee under this section takes effect as provided by section 76za.
(4) In this section:
“relevant matter”, in relation to an employee, means any of the following matters:
(a) that an employee is unable to perform his or her duties, or other duties appropriate to employment in the Authority in the same capacity in which he or she is employed, because of physical or mental incapacity;
(b) that an employee is inefficient;
(c) that an employee is not qualified to perform his or her duties;
(d) that an employee is an excess employee.
76z. (1) An employee to whom a notice under section 76w has been given (not being an employee who, before receiving the notice, consented in writing to the giving of the notice) may, within 14 days after receiving the notice, appeal to an Appeal Committee against the giving of the notice, on the ground that the employment of the employee in a lower capacity, or the retirement of the employee, as the case requires, would be unreasonable.
(2) Where an employee appeals to an Appeal Committee against the giving of a notice, an Appeal Committee shall hear and determine the appeal and may:
(a) confirm the notice; or
(b) revoke the notice.
76za. (1) In this section:
(a) a reference to action taken in relation to an employee under section 76w is a reference to:
(i) the proposed alteration of his or her employment with the Authority under that section so that he or she would be employed in a lower capacity; or
(ii) the proposed retirement of the employee from the Authority under that section;
and, for the purposes of this section:
(iii) the matter referred to in each of the paragraphs in subsection 76w (4) shall be regarded as a ground for that action; and
(iv) a reference to the ground of invalidity is a reference to the matter referred to in paragraph 76w (4) (a);
(b) a reference to an appeal in relation to a notice given under section 76w is a reference to an appeal under section 76z against the giving of that notice;
(c) a reference to the appeal period is a reference to the period referred to in section 76z.
(2) For the purposes of subsection 76w (3):
(a) where an employee has consented to action being taken in relation to the employee under section 76w on the ground of invalidity—a notice given to the employee by the Authority under that section for the purpose of that action takes effect on any day specified in the notice and agreed between the employee and the Authority, whether before or after the day on which the notice is given to the employee; and
(b) where an employee has consented to action being taken in relation to the employee under section 76w on any other ground—a notice given to the employee by the Authority under that section for the purpose of that action takes effect on any day specified in the notice and agreed between the employee and the Authority, being a day no earlier than the day on which the notice is given to the employee.
(3) For the purposes of subsection 76w (3), where an employee has not consented to action being taken in relation to the employee under section 76w on the ground of invalidity, a notice given to the employee by the Authority under that section for the purposes of that action takes effect:
(a) in accordance with subsection (6); or
(b) where under an industrial award that is applicable to the employee the notice would not take effect until the day immediately following the day on which the employee exhausts any full-pay sick leave credits to which the employee may be entitled before retirement in accordance with that award and the day that so follows occurs after the time so determined—on that day.
(4) For the purposes of subsection 76w (3), where an employee has not consented to action being taken in relation to the employee under section 76w on the ground that the employee is an excess employee, a notice given to the employee by the Authority under that section for the purposes of that action takes effect:
(a) in accordance with subsection (6); or
(b) where under an industrial award that is applicable to the employee the notice would not take effect until the end of a retention period that ends in relation to that employee after the time so determined—at the end of that period.
(5) For the purposes of subsection 76w (3), where an employee has not consented to action being taken in relation to the employee under section 76w on a ground other
than invalidity or the ground that the employee is an excess employee, a notice given to the employee by the Authority under that section for the purposes of that action takes effect in accordance with subsection (6).
(6) For the purposes of subsection (3), (4) or (5), a notice under section 76w given to an employee referred to in that subsection takes effect:
(a) on the day (if any) specified in the notice as the day on which that notice takes effect;
(b) one month after the day on which the notice is given to the employee;
(c) where the employee appeals against the giving of the notice and withdraws that appeal after the expiration of the appeal period before the Appeal Committee determines the appeal—on the day on which that appeal is withdrawn; or
(d) where the employee appeals against the giving of the notice and the Appeal Committee confirms the notice—on the day on which that notice is confirmed;
whichever occurs last.
76zb. (1) An Authority may:
(a) if it is a body corporate—by instrument under its seal; or
(b) in any other case—by instrument in writing;
delegate, either generally or as otherwise provided in the instrument, to a member of the Authority or to a person employed by the Authority all or any of its powers and functions under this Division, other than this power of delegation.
(2) A power or function delegated under subsection (1) when exercised or performed by the delegate shall, for the purposes of this Division, be deemed to have been exercised or performed by the Authority.
(3) A delegation under subsection (1) does not prevent the exercise of a power or the performance of a function by the Authority.
1.
Notified in the
2. Statutory Rules 1935 No. 18 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1987 No. 25 andsee also Statutory Rules 1987 Nos. 25, 38, 90, 137, 157.
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