Public Service Act 1999 - Determination under subsection 24(3) (24/06/2008)

Administered by Department of the Prime Minister and Cabinet

Legislation au F2008L02222 Not in force Legislative Instrument

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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.

 

Overview

The Public Service Act 1999 was enacted to provide a legislative framework for the Australian Public Service (APS), including the regulation of employment terms and conditions. In 2008, a legislative instrument was introduced under subsection 24(3) of the Act to address exceptional circumstances at the Mersey Community Hospital in Tasmania, where the hospital was transferred from state to Commonwealth control. The instrument was developed in consultation with relevant departments and unions, and it aimed to ensure that APS employees at the hospital received remuneration and conditions of employment no less favourable than they would have under Tasmanian employment terms. The determination was necessitated by the failure of a tender process for a private not-for-profit provider to run the hospital and the subsequent agreement between Tasmania and the Commonwealth to continue operating the hospital on behalf of the Commonwealth until further notice. This legislative instrument ensures continuity and fairness in employment terms for the affected APS employees.

Scope and Application

The Public Service Act 1999, under subsection 24(3), allows the Public Service Minister to determine the remuneration and other terms and conditions of employment for Australian Public Service (APS) employees when deemed necessary due to exceptional circumstances. This Determination applies specifically to APS employees of the Mersey Community Hospital in Tasmania. The purpose of this Determination is to ensure that the remuneration and other employment conditions for these employees remain consistent with what they would have received if they were still employed by the Tasmanian Department of Health and Human Services. This Determination applies to APS employees who were seconded from Tasmania and to non-ongoing APS employees at the hospital, ensuring they receive no less favourable overall terms than what they would have under Tasmanian employment. The Determination is effective from 1 July 2008 and will expire on 1 January 2010, or until the employees cease to be employed in the APS, whichever is earlier. This Determination was made in response to the exceptional circumstances surrounding the transition of the hospital from Tasmanian to Commonwealth operation, and it was developed in consultation with relevant departments and unions.

Key Provisions

The Public Service Act 1999 (the Act) under subsection 24(3) empowers the Public Service Minister to determine the remuneration and other terms and conditions of employment for Australian Public Service (APS) employees in exceptional circumstances. This determination, effective from 1 July 2008, applies to APS employees of the Mersey Community Hospital until 1 January 2010, but only while they remain employed in the APS. Clause 1 establishes that APS employees at the Mersey Community Hospital will receive the same financial terms and conditions of employment as they would have if they were employed by the Tasmanian Department of Health and Human Services, including any increases or improvements to their remuneration and conditions. Clause 2 specifies the commencement date of the determination as 1 July 2008, and Clause 3 sets the expiration date as 1 January 2010. Clause 4 defines 'Mersey Community Hospital APS Employees' as those APS employees in the Department of Health and Ageing who perform duties at the Mersey Community Hospital in Tasmania, while Clause 5 ensures that any additional, increased or improved remuneration and conditions of employment that the employees would have received under Tasmanian State Service employment are included in the determination. The obligations under this determination are primarily focused on ensuring that APS employees at the Mersey Community Hospital receive remuneration and employment conditions that are equivalent to what they would have received if they had continued to be employed by the Tasmanian government. This includes recognising past service, continuity of service, and assuming liability for accrued leave entitlements. The determination aims to provide a seamless transition for the employees, maintaining their financial terms and conditions of employment without interruption. Additionally, the Department of Health and Ageing must ensure that their collective agreement includes classifications, salaries, and conditions suitable for the shift work arrangements at the Mersey Community Hospital. Failure to comply with these obligations may result in legal repercussions for the Department and the Commonwealth. Breach of the obligations outlined in this determination may lead to various consequences. While the explanatory statement does not explicitly detail specific offences or penalties, breaches of employment terms and conditions under the Public Service Act 1999 can lead to legal actions, including civil penalties for non-compliance. The Public Service Minister may also face scrutiny and potential legal challenges from affected employees or unions. Additionally, ongoing failure to meet the terms of this determination could result in adverse outcomes for the Commonwealth in terms of employee satisfaction and retention, potentially impacting the operational efficiency of the Mersey Community Hospital.

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