Public Service Amendment Regulations 2008 (No. 1)

Administered by Department of the Prime Minister and Cabinet

Legislation au F2008L01099 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 72

Issued by the authority of the Special Minister of State

Public Service Act 1999

Public Service Amendment Regulations 2008 (No. 1)

Section 79 of the Public Service Act 1999 (the Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Public Service Amendment Regulations 2008 (No. 1) (the Amendment Regulations) amend the Public Service Regulations 1999 (the Principal Regulations) to make changes that are consequential on amendments to the Act contained in the Workplace Relations (Transition to Forward with Fairness) Act 2008 (the Transition Act).

The Amendment Regulations also reflect changes to the way in which the terms and conditions of employment of APS employees can be set following the release of the Australian Government’s Employment Bargaining Framework. The aim of this Bargaining Framework is to implement the Government’s workplace relations policy with respect to Australian Government employment.

The Transition Act amends the Workplace Relations Act 1996 (WR Act) to prevent the making of new Australian Workplace Agreements (AWAs) and also amends the definition of ‘workplace agreement’ in the WR Act to exclude AWAs. These changes have flow-on effects to APS employment legislation and the Transition Act makes consequential amendments to the Act. These changes then have an impact on the Principal Regulations.

The Bargaining Framework recognises that, consistent with the amendments to the WR Act, AWAs can no longer be offered to existing or prospective APS employees and instead notes that in certain circumstances, common law arrangements or determinations under the Act can be used to set terms and conditions of employment for APS employees.

The Amendment Regulations reflect the changed terminology of the WR Act and the new arrangements for setting terms and conditions of employment as set out in the Bargaining Framework.

Details of the amendments to the Principal Regulations are set out in the Attachment.

The Amendment Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Amendment Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

Authority: Section 79 of the Public Service Act 1999

ATTACHMENT

Regulation 1 names the Regulations as the Public Service Amendment Regulations 2008 (No. 1).

Regulation 2 provides that the Regulations will commence on the day after they are registered.

Regulation 3 provides that the Public Service Regulations 1999 (the Principal Regulations) will be amended as set out in Schedule 1.

Schedule 1 Amendments

Item 1 Substitution of subregulation 3.11(2)

Regulation 3.11 of the Principal Regulations relates to the termination of employment of non-ongoing APS employees and provides that where an award, workplace agreement (i.e. a collective agreement or AWA), pre-reform certified agreement, or pre-reform AWA sets out procedures that apply to such terminations, those procedures must be followed unless they are prohibited content within the meaning given by the WR Act.

Subregulation 3.11(2) of the Principal Regulations has been redrafted to replace specific references to an award, a workplace agreement, a pre-reform certified agreement or a pre-reform AWA in subparagraphs (a), (b), (c), and (d) respectively with a generic reference to an ‘employment arrangement’.

The term ‘employment arrangement’ is defined in the Dictionary to the Regulations (see item 3 below) to mean an award; or a workplace agreement (as defined in the Workplace Relations Act 1996 (WR Act)); or a pre-reform certified agreement; or an AWA; or a pre-reform AWA; or a determination under subsection 24(1) or 24(3) of the Public Service Act 1999 (the Act); or a written contract of employment.

The effect of the amendment is to provide that if any of these employment arrangements sets out procedures to be followed in respect of the termination of a non-ongoing APS employee, then those procedures apply, unless they are prohibited content within the meaning given by the WR Act.

Item 2 Dictionary, definition of AWA

A new definition of AWA is included to align it with the new definition used in the Act and the WR Act as a result of the Workplace Relations (Transition to Forward with Fairness) Act 2008.

Item 3 Dictionary, definition of employment arrangement

This item inserts a definition of ‘employment arrangement’ for the purposes of the Principal Regulations, as outlined in item 1 above.

Item 4 Dictionary, definition of Commissioner’s Directions

This item updates the definition of the ‘Commissioner’s Directions’ to reflect the latest amendments to the Public Service Commissioner’s Directions 1999, with effect from 2 April 2008.

Item 5 Other amendments

Division 3.2 of the Principal Regulations relates to the re-engagement of election candidates. Regulation 3.15 provides that where a person is re-engaged in accordance with section 32 of the Act and this Division, the person’s continuity of service for the purposes of calculation of leave entitlements and redundancy pay is not broken by the period between the person’s resignation and being re-engaged as an employee, although the period does not count as service.

Regulations 8.1 and 8.2 relate to the variation of remuneration and other conditions of employment of staff affected by administrative re-arrangements made under section 72 of the Act. They impose some parameters on an Agency Head’s powers to make a determination under subsection 24(1) of the Act in relation to employees’ conditions of employment in these circumstances.

This item replaces various references in regulations 3.15, 8.1 and 8.2 to one or more of the terms ‘award’, ‘workplace agreement’, ‘pre-reform certified agreement’ or ‘pre-reform AWA’ with a reference to ‘employment arrangement’.

In addition, this item amends the notes at the end of sub-regulation 8.1(3) and 8.2(2) to reflect amendments to the wording of subsection 24(1) of the Act made by the Workplace Relations (Transition to Forward with Fairness) Act 2008.

Overview

The Public Service Amendment Regulations 2008 (No. 1) were enacted to address the need for amendments to the Public Service Regulations 1999, following changes to the Public Service Act 1999 made by the Workplace Relations (Transition to Forward with Fairness) Act 2008. These regulations were introduced to ensure the Public Service Regulations are aligned with the new legislative framework, particularly in relation to the termination of employment of non-ongoing Australian Public Service (APS) employees, and to reflect changes in the way terms and conditions of employment for APS employees can be set. The Public Service Amendment Regulations 2008 (No. 1) were issued by the authority of the Special Minister of State under section 79 of the Public Service Act 1999. The primary policy objective of these regulations is to implement the Australian Government’s workplace relations policy with respect to APS employment, as outlined in the Australian Government’s Employment Bargaining Framework, by updating the terminology and regulatory framework to reflect the legislative changes that prohibit the making of new Australian Workplace Agreements (AWAs) and their exclusion from the definition of 'workplace agreement' in the Workplace Relations Act 1996.

Scope and Application

The Public Service Amendment Regulations 2008 (No. 1) amend the Public Service Regulations 1999, applying to Australian Public Service (APS) employees, their employment terms, and conditions as influenced by workplace agreements and other employment arrangements. These amendments are made in response to the changes introduced by the Workplace Relations (Transition to Forward with Fairness) Act 2008, which effectively ended the use of Australian Workplace Agreements (AWAs) and necessitated the adoption of alternative methods for setting employment conditions within the APS. The Amendment Regulations apply across the Commonwealth and are aimed at ensuring that the Public Service Act 1999 and associated regulations align with the new legislative environment. The regulations reflect the government's policy on workplace relations by replacing references to AWAs and pre-reform agreements with a broader term, "employment arrangement," which encompasses awards, workplace agreements, certified agreements, and other forms of employment contracts or determinations. These changes ensure that the regulatory framework remains functional and relevant in the absence of AWAs. The Amendment Regulations also update definitions and terminology to reflect legislative changes and provide for the smooth operation of the APS within the new regulatory context.

Key Provisions

The Public Service Amendment Regulations 2008 (No. 1) primarily serve to update and amend the Public Service Regulations 1999 (the Principal Regulations) to reflect significant legislative changes. These changes are consequential upon the amendments to the Public Service Act 1999 (the Act) contained in the Workplace Relations (Transition to Forward with Fairness) Act 2008 (the Transition Act). Moreover, the Amendment Regulations adapt to the new Australian Government’s Employment Bargaining Framework, which outlines the government’s workplace relations policy concerning Australian Public Service (APS) employees. The main operative sections of these Regulations involve amendments to the Principal Regulations, replacing outdated terminology and updating references to various employment arrangements. For instance, Regulation 3.11(2) has been revised to substitute specific references to awards, workplace agreements, certified agreements, and Australian Workplace Agreements (AWAs) with a broader term, "employment arrangement." This term, as defined in the Regulations' Dictionary, encompasses awards, workplace agreements, certified agreements, AWAs, pre-reform AWAs, determinations under subsection 24(1) or 24(3) of the Act, and written contracts of employment. These Regulations impose several obligations and requirements on the parties and entities governed by them. Firstly, they mandate that if any employment arrangement specifies procedures for the termination of non-ongoing APS employees, those procedures must be followed unless they contain prohibited content under the Workplace Relations Act 1996 (WR Act). Additionally, the Regulations require that continuity of service is not broken for APS employees who are re-engaged after resigning to contest an election, although the period of resignation does not count as service. Furthermore, they impose specific parameters on an Agency Head's powers to vary remuneration and other conditions of employment for staff affected by administrative re-arrangements. The Amendment Regulations also introduce potential consequences and penalties for non-compliance. However, the explanatory statement does not explicitly detail these penalties. Generally, non-compliance with public service regulations can result in disciplinary action against employees, and in severe cases, legal action against the employing agency. The precise nature and severity of these penalties would depend on the specific circumstances and the interpretation of the regulations by relevant authorities. The Regulations, however, ensure that any changes to employment terms and conditions are made in line with the updated legislative framework, thereby maintaining legal compliance and fairness in APS employment practices.

Area of Law: Public Service Law
Instrument: Regulation
Concepts: Definitions & Interpretation; Repeal & Amendment; Transitional Provisions

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