EXPLANATORY STATEMENT

PUBLIC SERVICE ACT 1999

SUBSECTION 24(3)

DETERMINATION UNDER SUBSECTION 24(3)

Subsection 24(3) of the Public Service Act 1999 (the Act) allows the Public Service Minister, by notice in the Gazette, to determine the remuneration and other terms and conditions of employment applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances.

Background

A Heads of Agreement was executed on 24 September 2007 between the then Minister for Health and Ageing on behalf of the Commonwealth and the Minister for Health and Human Services on behalf of Tasmania which set out the terms by which the Tasmanian government transferred ownership of the Mersey Campus of the North West Regional Hospital of Tasmania to the Commonwealth on 1 November 2007.

The Heads of Agreement relevantly provided that:

• from 1 November 2007 until 30 June 2008 Tasmania, at the Commonwealth’s cost, would second all consenting staff of the Mersey Campus of the North West Regional Hospital to the Commonwealth (subject to the provisions of the State Service Act 2000 (Tas)); and
• the Commonwealth or its nominee would offer employment to the seconded employees for employment commencing on 1 July 2008, on the same financial terms and with recognition of past service, continuity of service and assumption of liability for accrued leave entitlements.

On 23 May 2008 Tasmania and the Commonwealth agreed to extend the employment of the seconded staff until 31 August 2008. In addition, the Commonwealth also extended the term of employment of all non-ongoing APS employees employed at the Mersey Community Hospital until 31 August 2008.

Under this Determination, the Public Service Minister has set out the mechanism to allow for the remuneration and other conditions of employment of staff engaged as APS employees in the Mersey Community Hospital to be on the same financial terms as amended from time to time as they would have received had they been employed to undertake the same duties at the Mersey Community Hospital by the Tasmanian Department of Health and Human Services. The Determination also allows for the remuneration and other conditions of employment of one or more APS employees of Mersey Community Hospital to be provided under a determination made under s24(1) of the Act or their contract of employment, provided that the remuneration and other conditions of employment so determined are no less favourable overall than those determined by this Determination.

This Determination is being made due to exceptional circumstances.

A tender process to find a private not-for-profit provider to run the Mersey Community Hospital from 1 July 2008 was unsuccessful and Tasmania agreed to operate the Mersey Community Hospital on the Commonwealth’s behalf. The initial s.24(3) determination recognises pay increases and improvements to conditions under Tasmanian industrial instruments only until 30 June 2008. This new determination will ensure APS employees at the Hospital have access to improvements in remuneration and other conditions that come into effect on or after 1 July 2008. Tasmania and the Commonwealth agreed to extend the employment of the seconded staff and the Commonwealth extended the term of employment of all non-ongoing APS employees at the Mersey Community Hospital until 31 August 2008.

While the determination is expressed to apply to the APS employees of Mersey Community Hospital until 1 January 2010, it will only have application to them while they remain employed in the APS.

Additionally, the Department of Health and Ageing’s current collective agreement does not contain classifications, salary and conditions that suit the type of employment in the Mersey Community Hospital (which involves shift work arrangements).

Due to the timing pressures and difficulty in reaching final agreement by 1 July 2008 with the Tasmanian government on employment and contract arrangements, the Public Service Minister was of the opinion that exceptional circumstances were present and that the situation could be resolved by making this Determination.

Consultation

The Determination has been developed in consultation with the Department of Education, Employment and Workplace Relations and the Australian Public Service Commission.  Unions with coverage of staff at the Hospital have also been consulted.

The Determination commences on 1 July 2008.

Details of the Determination are provided in Attachment A. 

The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Authority:  Subsection 24(3) of the Public Service Act 1999

ATTACHMENT A

NOTES ON CLAUSES OF THE DETERMINATION

Clause 1   

This clause sets out the mechanism to allow for the remuneration and other conditions of employment of the Mersey Community Hospital APS employees to be on the same financial terms as existed prior to 1 November 2007.

Clause 2   

This clause provides that the Determination commences on 1 July 2008.

Clause 3   

This clause provides that the Determination expires on 1 January 2010.

Clause 4   

This clause defines the term ‘Mersey Community Hospital APS Employees’ as those APS employees in the Department of Health and Ageing who perform duties in the Mersey Community Hospital, Tasmania. 

Clause 5   

This clause provides that a reference in clause 1.b) of the Determination to ‘same remuneration and other conditions of employment that the employee enjoyed as a Tasmanian State Service employee performing duties at Mersey Campus of the North West Regional Hospital, Tasmania’ shall be taken as including a reference to any additional, increased or improved remuneration and conditions of employment that the employee would otherwise be entitled to had the employee remained as an employee of the Tasmanian State Service.