Parliamentary Service Commissioner’s SES Guidelines 2009
Explanatory statement
Circulated by authority of the Presiding Officers
Section 36 of the Parliamentary Service Act 1999 requires the Parliamentary Service Commissioner to issue guidelines in writing about employment matters relating to Parliamentary Service SES employees, including engagement, promotion, redeployment, mobility and termination.
Purpose and Scope of Determination
The Parliamentary Service Commissioner’s SES Guidelines 2009 (the Guidelines) repeal and replace the Parliamentary Service Commissioner’s SES Guidelines (the current Guidelines) made on 9 June 2000. They also introduce a new clause 7(3) providing that the engagement of an SES employee on a non-ongoing basis for no more than 12 months meets the minimum requirements for employment if the provisions about merit in Division 3.5 of Parliamentary Service Determination 2003/2 have been met.
Background
It is possible to engage a non-SES employee on a non-ongoing basis for no more than 12 months without notifying the employment opportunity. This enables short-term staffing requirements to be met in a timely and efficient manner.
Clause 5 of the current Guidelines sets minimum requirements for engagement and promotion of SES employees but there is a lack of clarity about whether an SES employee can be engaged for no more than 12 months without notification of the vacancy. The purpose of these guidelines is to add a provision (clause 7(3)) clarifying that that the engagement of an SES employee on a non-ongoing basis for no more than 12 months without advertising the vacancy meets the minimum requirements if the Parliamentary Service merit selection requirements have been satisfied. Under these requirements, SES and non-SES employees can be engaged without notification of a vacancy provided the vacancy is for no longer than, or is not extended beyond, 12 months.
The only changes these Guidelines make are the repeal of the current Guidelines and the introduction of new subclause 7(3).
Impact
The proposed amendment will have no financial impact.
Authority: Section 36 of the Parliamentary Service Act 1999.
Notes on clauses
Clause 1
These Guidelines are called the Parliamentary Service Commissioner’s SES Guidelines 2009.
Clause 2
These Guidelines commence on the day after they are registered on the Federal Register of Legislative Instruments.
Clause 3
Clause 3 repeals the Parliamentary Service Commissioner’s SES Guidelines made on 9 June 2000.
Clause 4
Clause 4 provides that terms used in these Guidelines have the meaning given to them in the Parliamentary Service Act 1999 (the Act)
Clause 5
Subclause 5(1) establishes the duty of a Secretary of a parliamentary department to exercise his or her employer powers to maintain and develop the leadership role and capabilities of the SES.
Subclause 5(2) requires the Secretary to put measures in place to ensure that SES employees are effectively deployed in the Department and to monitor the skills required at the SES level in the Department.
Clause 6
Clause 6 lists 6 matters relating to decisions on SES employment and requires Secretaries, under subclause 6(2), to ensure that decisions on these matters meet minimum requirements set out in ensuing clauses of the Guidelines.
Clause 7
Subclause 7(1) lists minimum requirements a decision to promote or engage a person as an SES employee must meet. These are:
(a) the merit selection requirements of the Presiding Officers’ determinations under section 71 of the Act must be satisfied;
(b) unless the Commissioner decides otherwise, the SES vacancy, or a similar vacancy, must have been advertised externally—
(i) during the 12 months before the decision is made; and
(ii) as open to all members of the community;
(c) a representative of the Commissioner is a full participant in the selection process;
(d) the representative has certified that the selection process complied with the Act and these Guidelines; and
(e) the Commissioner has endorsed the representative’s certification of the process.
Subclause 7(2) provides that a decision to engage a person as an SES employee also meets the minimum requirements if:
(a) the engagement is for a specified term; and
(b) in relation to a person who is an ongoing employee—
(i) the person resigns from the Parliamentary Service for the sole purpose of taking up the specified term engagement; and
(ii) the person is to perform duties at the same classification.
Subclause 7(3) provides that the engagement of an SES employee on a non-ongoing basis for no more than 12 months without advertising the vacancy also meets the minimum requirements if the Parliamentary Service merit selection provisions have been satisfied.
Clause 8
Clause 8 sets out the minimum requirements that must be met if an SES employee is to be moved within a department or to another department.
In the case of an employee who is to be moved within a department, the Secretary must consult with the employee about options for mobility.
In the case of an employee who is to be moved to another department, the Secretary of the department from which the employee is moving must be consulted about, and agree to, the movement.
In both cases the Secretary must inform the Commissioner of the movement.
Clause 9
Clause 9 provides that, where an SES employee is redeployed with the employee’s agreement, the decision to redeploy meets the minimum requirements if the employee has been given information about available options for reassignment, including the assignment of duties at a lower classification.
Clause 10
Subclause 10(1) provides that, where an SES employee is assigned duties at a lower classification without the employee’s agreement, the decision to assign the duties meets the minimum requirements if it is assessed, having due regard to procedural fairness, that the assignment is justified on the basis of one or more of the circumstances set out in subsection 23(4) of the Act. The Note replicates subsection 23(4) of the Act.
Subclause 10(2) provides that, where an SES employee is assigned duties at a lower classification without the employee’s agreement, the decision to assign the duties also meets the minimum requirements if:
(a) the duties are to be assigned because of a change in the Department’s operational needs; and
(b) reasonable steps have been taken to identify duties in the Department, at the employee’s current classification, which could be assigned to the employee; and
(c) an assessment has been made, having due regard to procedural fairness, that the employee is not suitable to be assigned any of the duties identified.
Clause 11
Clause 11 provides that a decision to give notice to an SES employee under section 37 of the Act of an incentive to retire meets the minimum requirements if:
(a) the employee was engaged as an ongoing SES employee; and
(b) the employee has been given information about available options for reassignment, including the assignment of duties at a lower classification; and
(c) the employee has been given access to independent financial advice and career counselling; and
(d) the Commissioner has agreed to the amount to be paid to the employee if the employee retires within the period specified in the notice.
The Note sets out requirements of the notice under section 37.
Clause 12
Clause 12 provides that a decision to terminate as SES employee under section 29 of the Act meets the minimum requirements if:
(a) an assessment has been made, having due regard to procedural fairness, that the termination is justified on the basis of one or more of the grounds mentioned in subsection 29 (3) of the Act; and
(b) the employee has been given full information about other employment in the Department that the Secretary, having regard to the assessment, considers could be made available to the employee.
Note 1 sets out requirements of the notice under section 29.
Note 2 draws attention to section 38 of the Act which stipulates that a Secretary cannot terminate the employment of an SES employee unless the Commissioner has issued a certificate in the terms required by section 38.