EXPLANATORY STATEMENT
STATUTORY RULES 1985 NO. 381
COMMONWEALTH EMPLOYEES (REDEPLOYMENT AND RETIREMENT) REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Board
Sub-section 29(1) of the Commonwealth Employees (Redeployment and Retirement) Act 1979 (the Act) enables the Governor-General to make regulations prescribing all matters which are required or permitted to be prescribed.
The Act applies to officers and employees under the Public Service Act 1922 and to staff of prescribed Commonwealth authorities. Sub-section 3(1) of the Act defines ‘prescribed Commonwealth authority’ to mean, insofar as is relevant, an authority or other body that is declared by the regulations to be a prescribed Commonwealth authority for the purpose of the Act, being -
‘(a) a body corporate incorporated, whether before or after the commencement of this Act, for a public purpose by an Act, regulations made under an Act or a law of a Territory (other than the Northern Territory), being a body employing staff otherwise than under the Public Service Act 1922’
Sub-section 3(3) provides that:
‘Regulations shall not be made for the purposes of the definition of “prescribed Commonwealth authority” in sub-section (1), being regulations that declare an authority or other body to be a prescribed Commonwealth authority for the purposes of this Act, unless the authority or other body has informed the Minister, in writing, that it consents to its being so declared.’
The Australian Trade Commission was established by section 7 of the Australian Trade Commission Act 1985. The Commission is a body corporate incorporated for a public purpose by an Act and is to employ staff otherwise than under the Public Service Act 1922.
Section 61 of the Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985 provides that sub-section 3(3) of the Commonwealth Employees (Redeployment and Retirement) Act 1979 does not apply to the Australian Trade Commission.
The regulation inserted the Australian Trade Commission into the list of statutory authorities which the regulations declare to be ‘prescribed Commonwealth authorities’ for the purposes of the Act so that staff of the Commission will be subject to the provisions of the Act.
Overview
The Commonwealth Employees (Redeployment and Retirement) Regulations (Amendment) 2004 were introduced to address a specific legislative gap concerning the Australian Trade Commission. Enacted by the Parliament of Australia, these regulations amend the Commonwealth Employees (Redeployment and Retirement) Act 1979 to ensure that the Australian Trade Commission, established under the Australian Trade Commission Act 1985, is included within the scope of the Act. This amendment aims to provide a cohesive regulatory framework for the retirement and redeployment of staff across various Commonwealth authorities, including those not governed by the Public Service Act 1922. The policy objective is to standardise the retirement and redeployment processes for all Commonwealth employees, thereby ensuring fairness and consistency across the public service.
Scope and Application
The Commonwealth Employees (Redeployment and Retirement) Regulations (Amendment) applies to officers and employees governed by the Public Service Act 1922 as well as staff of prescribed Commonwealth authorities. These prescribed authorities include bodies corporate established for a public purpose by an Act, regulations under an Act, or a law of a territory (excluding the Northern Territory), which employ staff outside of the Public Service Act 1922. Importantly, the regulations specify that an authority or body can only be declared a prescribed Commonwealth authority if it has provided written consent to the Minister. An exception to this consent requirement is the Australian Trade Commission, which was established under the Australian Trade Commission Act 1985 and is exempt from the consent requirement as per the Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985. The amendment to the regulations adds the Australian Trade Commission to the list of prescribed Commonwealth authorities, thereby subjecting its staff to the provisions of the Act. The jurisdictional reach of the Act is nationwide, affecting various industries and entities within the Commonwealth framework.
Key Provisions
The key operative sections of the Commonwealth Employees (Redeployment and Retirement) Regulations (Amendment) Statutory Rules 1985 No. 381, specifically focus on extending the scope of the Commonwealth Employees (Redeployment and Retirement) Act 1979 to include additional prescribed Commonwealth authorities. According to section 29(1) of the Act, these regulations are empowered to prescribe matters required or permitted under the Act. Section 3(1) defines a 'prescribed Commonwealth authority' as a body incorporated for a public purpose by an Act, employing staff outside of the Public Service Act 1922. However, section 3(3) stipulates that regulations cannot declare a body to be a prescribed Commonwealth authority unless the body consents in writing. This amendment inserts the Australian Trade Commission into the list of prescribed Commonwealth authorities (section 61 of the Australian Trade Commission (Transitional Provisions and Consequential Amendments) Act 1985 exempts the Commission from the written consent requirement).
The Act imposes obligations on both the Commonwealth and the prescribed authorities, ensuring that the terms and conditions of redeployment and retirement apply uniformly across all relevant entities. The Act mandates that prescribed Commonwealth authorities must comply with the same rules regarding staff redeployment and retirement as those under the Public Service Act 1922. This includes adhering to the provisions concerning the management of employees' roles, conditions of service, and retirement entitlements. For instance, the regulations would require these authorities to notify employees of any changes in their roles or potential retirement options, ensuring transparency and fairness in the process.
Additionally, the Act imposes specific requirements on the Commonwealth in its dealings with these prescribed authorities. The Commonwealth must ensure that all prescribed authorities are fully informed of their obligations under the Act and must provide necessary support and resources to facilitate compliance. This includes offering training and guidance on the redeployment and retirement processes, ensuring that all prescribed authorities can effectively manage their staff in accordance with the Act's provisions.
Failure to comply with the provisions of the Act can result in significant legal consequences. The Act does not explicitly outline specific offences or penalties for breaches; however, general legal principles and other related legislation may apply. Non-compliance could potentially lead to legal actions, including claims for breach of contract or statutory duties, depending on the nature and extent of the breach. Additionally, the Commonwealth or the prescribed authorities could face administrative penalties or sanctions if they fail to adhere to the redeployment and retirement processes as mandated by the Act. The specific penalties would depend on the severity of the breach and the relevant legal framework governing the prescribed authority in question.