EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 182
Subject - Public Service Act 1999
Public Service Amendment Regulations 2010 (No. 1)
Subsection 79(1) of the Public Service Act 1999 (the Act) provides 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.
Section 33 of the Act provides that an Australian Public Service (APS) employee is entitled to review, in accordance with the regulations, of any APS action that relates to his or her employment. Part 5 of the Public Service Regulations 1999 (the Principal Regulations) establishes the framework under which reviews of action are conducted in the APS. Regulation 5.1 of the Principal Regulations specifies that one element of the general policy about review is that “employees’ concerns are intended to be dealt with quickly, impartially, and fairly” (emphasis added).
The review framework established by the Principal Regulations provides for a two-tier system of review. Most primary reviews of action are undertaken within an employee’s agency. However applications for primary review involving a breach of the APS Code of Conduct, or cases where an Agency Head is directly involved, are conducted by a person or committee nominated by the Merit Protection Commissioner. If an employee is dissatisfied with the outcome of a primary review, the employee may apply to the Merit Protection Commissioner for a secondary review of the action.
Paragraph 5.24(3)(a) of the Principal Regulations provided that an action ceased to be reviewable action if an application for review was not made within one year of the action occurring and there were no exceptional circumstances explaining why the application was not made within the year.
In practice, the previous timeframe did not meet the policy objective of dealing with employees’ concerns quickly. Disputes were often delayed, unnecessarily protracting resolution of the issue long after the original action occurred. Moreover, the pre-existing timeframe did not encourage productivity and harmony in the workplace as, over this length of time, working relationships had often broken down.
The purpose of the amendments to the Principal Regulations is to specify new timeframes in which applications for review should be made. While reducing the previous timeframe, the amendments do not modify the existing discretion to allow for applications to be made outside the specified periods when there are “exceptional circumstances” justifying the delay. Exceptional circumstances typically include circumstances causing delay that is beyond the control of the applicant. The amendments also resolve an ambiguity that existed in the application of the previous timeframe.
The amendments to the Principal Regulations specify the timeframes in which an APS employee should apply for either primary review or secondary review of an APS action. The new timeframes are as follows:
- in relation to applications for primary review within an employee’s agency, the timeframe is 120 days from the date of the relevant action;
- with respect to primary reviews involving a breach of the APS Code of Conduct, the timeframe is 60 days from either the determination of the breach or from the imposition of the sanction;
- for primary reviews in which the Agency Head is directly involved in the action, the timeframe is 60 days from the date of the action; and
- in relation to applications for secondary review, the timeframe is 60 days from the date the employee is told either the outcome of the primary review or that the action is not considered reviewable.
In developing the new timeframes, the Merit Protection Commissioner consulted with the heads of APS Agencies as well as with the Community and Public Sector Union, the Australian Services Union and the Australian Manufacturing Workers’ Union.
The Act does not specify any conditions that must be satisfied before exercising the power to make regulations.
These Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
These Regulations commence on 2 August 2010.
Overview
The Public Service Amendment Regulations 2010 (No. 1) were enacted to address issues with the existing timeframe for APS employees to apply for review of employment-related actions within the Australian Public Service (APS). The Public Service Act 1999 allows for regulations to be made to facilitate the operation of the Act, and the regulations were developed to meet the policy objective of addressing employees' concerns in a timely, impartial, and fair manner. The amendments to the Public Service Regulations 1999, which were made under the authority of the Public Service Act 1999, aim to establish more efficient timeframes for initiating reviews. This reform was intended to resolve delays in dispute resolution and to enhance workplace productivity and harmony. The new timeframes for review applications were developed in consultation with relevant stakeholders, including union representatives and APS agency heads, ensuring a balanced approach to achieving the policy objectives. These Regulations, which are a legislative instrument under the Legislative Instruments Act 2003, commenced on 2 August 2010.
Scope and Application
The Public Service Amendment Regulations 2010 (No. 1) apply to Australian Public Service (APS) employees and their employment actions, as governed by the Public Service Act 1999. These regulations primarily aim to refine the timeframes within which APS employees can apply for a review of employment actions, ensuring the process is timely and effective. The regulations apply across the Commonwealth jurisdiction and affect all entities within the APS, including federal agencies and instrumentalities. They provide for a two-tiered review system: primary reviews are conducted within the employee's agency unless they involve a breach of the APS Code of Conduct or the direct involvement of an Agency Head, in which case they are conducted by a person or committee nominated by the Merit Protection Commissioner. Dissatisfied employees can then apply for a secondary review by the Commissioner. The regulations introduce specific timeframes for these reviews, such as 120 days for primary reviews within an agency, 60 days for primary reviews involving conduct breaches or Agency Head involvement, and 60 days for secondary reviews. However, these timeframes can be extended in cases of exceptional circumstances. The regulations are made under the authority of the Public Service Act and are designed to facilitate quicker resolution of employment disputes, thereby promoting workplace productivity and harmony.
Key Provisions
The Public Service Amendment Regulations 2010 (No. 1) make significant changes to the timeframes for APS employees to apply for reviews of employment-related actions. Under the new regulations, employees must apply for primary review within 120 days of the relevant action, or within 60 days if the action involves a breach of the APS Code of Conduct or direct involvement of the Agency Head (paragraph 5.24(1)). For secondary reviews, the application must be made within 60 days of being informed of the primary review outcome or the decision that the action is not reviewable (paragraph 5.24(2)). These timeframes aim to ensure that employee concerns are addressed promptly, fostering a productive and harmonious workplace. The regulations also maintain the existing discretion to allow applications outside the specified periods when there are exceptional circumstances (paragraph 5.24(3)).
The regulations impose clear and specific obligations on APS employees to apply for reviews within the prescribed timeframes. For primary reviews, employees must ensure that applications are made within 120 days of the relevant action, except in cases involving breaches of the APS Code of Conduct or direct involvement of the Agency Head, where the timeframe is 60 days. For secondary reviews, the application must be made within 60 days of being notified of the primary review outcome. Failure to meet these timeframes could result in the action no longer being reviewable, unless there are exceptional circumstances justifying the delay. The regulations underscore the importance of timely review applications to uphold the policy objective of addressing employee concerns quickly and fairly.
Breaching the specified timeframes for review applications could have significant consequences. If an APS employee fails to apply for review within the stipulated periods, the action may cease to be reviewable unless there are exceptional circumstances explaining the delay (paragraph 5.24(3)). There are no specified penalties for failing to meet the timeframes; however, the consequence is the loss of the right to have the action reviewed. This underscores the importance of adhering to the new timeframes to ensure that employee concerns are addressed in a timely and effective manner. The regulations emphasise the need for both employees and agencies to act promptly in the review process to maintain workplace productivity and harmony.