Public Service Regulations (Amendment)

Legislation au C2004L01706 Regulations Not in force Legislative Instrument

Legislation content

Public Service Regulations (Amendment) 1994 No. 147

EXPLANATORY STATEMENT

STATUTORY RULES 1994 No. 147

Issued by the authority of the Prime Minister

Public Service Act 1922

Public Service Regulations (Amendment)

Paragraphs 97(1)(aa) and 97(1)(ab) of the Public Service Act 1922 (the Act) provide 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.

Paragraph 97(1)(n) of the Act provides that in particular the GovernorGeneral may make regulations for regulating the granting of leave of absence to officers and employees.

Subsection 25(2) of the Act provides that the Secretary of a Department shall, under the Minister, be responsible for the general working of the Department.

Subsection 47(11) of the Act provides that the Public Service Commissioner or the relevant Secretary may in certain circumstances terminate an officer's appointment to the Australian Public Service on the ground that he or she is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and physical fitness.

Section 70 of the Act provides that the relevant Secretary may grant leave of absence to an officer on account of illness in certain circumstances and that the regulations may empower the relevant Secretary to direct that an officer who is ill shall absent himself from duty and shall comply with such conditions as are prescribed.

Division 8C of Part III of the Act makes provision for the redeployment and retirement of officers of the Service.

Regulations 54 to 60 of the Public Service Regulations (the Regulations) make provision in relation to aspects of leave on account of illness (sick leave) and in relation to the fitness of an officer who is absent to resume duty and the fitness of an officer who is on duty to continue those duties (fitness for continued duty). The fitness for continued duty regulations are supported by the powers in sections 25,70 and Division 8C of Part III of the Act.

The purpose of the amending regulations is twofold:

(1)       to specifically state what is implicit in subsection 47(11) of the Act that a Secretary may require a person to attend a medical examination for the purposes of section 47 of the Act and that a medical examination is not complete until a person has been examined or reexamined to the satisfaction of the Secretary; and

(2)       to re-organise the sick leave and fitness for continued duty regulations so that they fall into different Divisions of the Regulations, to clarify the situations in which the relevant Secretary may or must give notice to an officer to attend a medical examination for the purposes of assessing fitness for continued duty and to ensure that the provisions of Division 8C of Part III of the Act are not rendered unworkable by officers failing to attend medical examinations or attending at work when unfit to attend.

Details of the Regulations are attached.

The Regulations will commence on gazettal.

ATTACHMENT

Regulation 1 of the Regulations provides that the Public Service Regulations are amended as set out in the Regulations.

Regulation 2 of the Regulations inserts new Divisions 1A and 1B of Part II in the Regulations.

New Division 1A of Part II of the Regulations contains new regulation 45 which provides that a Secretary may require a person appointed on probation to attend a medical examination for the purposes of assessing health and physical fitness prior to confirmation or termination of appointment to the Service. In order to overcome the problems which arise when a probationer refuses to submit to a medical examination subregulation 45(2) provides that a medical examination is not complete until the person has been examined by the practitioner to the satisfaction of the Secretary and undergone further medical examination as required.

New Division 1B of Part II of the Regulations contains new regulations 46 to 51 which concern fitness for continued duty.

Regulation 46 is an interpretation provision which provides a definition of "officer", "relevant medical practitioner", and of "illness".

Regulation 47 precludes a medical examination for the purpose of assessing fitness for continued duty by a medical practitioner who has previously attended or advised the officer in respect of that illness (ie. the officer's treating doctor).

Regulation 48 contains a number of subregulations which prescribe situations where a Secretary may or must require an officer to submit to a medical examination by a relevant medical practitioner nominated by the Secretary.

Subregulation 48(1) enables a Secretary to require an officer to submit to a medical examination by a relevant medical practitioner where the officer has been absent because of illness for a continuous period of 4 weeks, or periods totalling 4 weeks if those absences relate to the same illness.

Subregulation 48(2) requires a Secretary to require an officer to submit to a medical examination by a relevant medical practitioner where the officer has been absent because of illness for a total of 13 weeks in a 26 week period, or continuously absent for a period of 13 weeks, and the officer has not already submitted to a medical examination during the absence.

Subregulation 48(3) enables a Secretary to require an officer to submit to a medical examination by a relevant medical practitioner where another medical practitioner (usually the officer's treating doctor) has indicated that an officer is unfit for duty and is likely to so remain for an extended or indefinite period.

Subregulation 48(4) enables a Secretary to require an officer to submit to a medical examination by a relevant medical practitioner where an officer returns to duty after an absence from duty because of illness of 4 weeks or more and the Secretary is of the opinion that the officer is not fit to return to duty. Such an examination may be requested within 2 weeks of the officer's return to duty.

Regulation 49 provides that an officer must not fail, without reasonable excuse, to submit to a medical examination required by a Secretary under Division 1B of Part II of the Regulations. Proposed regulation 49 also provides that a medical examination is not complete until the person has been examined by the practitioner to the satisfaction of the Secretary and submitted to any further medical examination recommended by the relevant medical practitioner.

Regulation 50 provides that where an officer has been absent from duty for 13 weeks or more the officer must not return to duty until a suitable medical practitioner certifies that the officer is fit to resume duty.

Regulation 51 provides that where a Secretary believes that an officer's state of health is affecting the officer's work performance or is a dancer to the officer or is such that the officer is a danger to others, the Secretary may require the officer to submit to a medical examination by a relevant medical Practitioner nominated by the Secretary or provide a report by the officer's treating doctor as to the officer's condition.

Regulation 3 of the Regulations inserts new regulation 53 in Division 2 of Part II of the Regulations which relates to sick leave. Proposed regulation 53 is an interpretation provision similar to regulation 46.

Regulation 4 of the Regulations omits regulation 56 and substitutes a new regulation 56 which precludes an officer from being granted further leave of absence after an absence of 13 weeks or more unless the officer submits to a medical examination.

Regulation 5 of the Regulations omits regulation 57 and substitutes a new regulation 57 which provides that a Secretary may grant an officer leave of absence to the extent that a medical examination conducted under Division 1B indicates that the officer is unfit for duty and the Secretary may direct an officer to absent himself or herself on leave of absence because of illness where a report of the examination so indicates.

Regulation 6 of the Regulations omits regulation 58 as the content of regulation 58 is now contained in new regulations 51 and 57.

Regulation 7 of the Regulations amends regulation 60 in order to bring the language into line with the other amended provisions and to replace references to "the Board" with references to "the Secretary to the Department of Industrial Relations".

 

Overview

The Public Service Regulations (Amendment) 1994 No. 147, issued by the authority of the Prime Minister, amends the Public Service Regulations under the Public Service Act 1922. This amendment addresses issues concerning the medical assessment of officers and employees in the Australian Public Service, specifically regarding their fitness for continued duty and the granting of sick leave. The primary policy objective of the amendment is to clarify and reinforce the requirements for medical examinations in cases of prolonged illness or when an officer’s fitness for duty is in question. It aims to ensure that officers who are absent due to illness or who return to work after an extended absence are properly assessed by a medical practitioner to confirm their fitness to resume or continue their duties. Additionally, the amendment aims to prevent officers from evading medical examinations or returning to work while unfit, thereby maintaining the integrity and safety of the public service operations.

Scope and Application

The Public Service Regulations (Amendment) 1994 No. 147 applies to officers and employees within the Australian Public Service, encompassing all departments and agencies under the purview of the Commonwealth government. This amendment extends to the regulation of leave of absence, health assessments, and fitness for continued duty, as outlined in the Public Service Act 1922. The scope of the amendment ensures that the provisions related to medical examinations and assessments of health and fitness are clearly defined and enforceable, thereby enhancing the administrative efficiency and effectiveness of the public service. The amendment introduces specific regulations regarding the requirements for medical examinations prior to the confirmation or termination of an officer's appointment, as well as when an officer is deemed unfit for duty. The amendment also re-organises and clarifies the regulations surrounding sick leave and fitness for continued duty, ensuring that officers adhere to the necessary medical assessments. The geographic and jurisdictional reach of these regulations is confined to the Australian Public Service, and they apply nationally across all Commonwealth departments. The regulations do not specify any exclusions or exemptions, thus applying uniformly to all relevant officers and employees within the public service framework.

Key Provisions

The Public Service Regulations (Amendment) 1994 No. 147 make several important changes to the existing Public Service Regulations. The amendments primarily address the requirement for medical examinations concerning fitness to work and sick leave. Regulation 45, inserted under new Division 1A, stipulates that a Secretary may require a person appointed on probation to undergo a medical examination to assess their health and physical fitness before confirmation or termination of their appointment. This regulation aims to ensure that all probationary officers undergo a thorough medical evaluation to the satisfaction of the Secretary. Subregulation 45(2) further clarifies that a medical examination is not considered complete until the person has been examined by a practitioner to the satisfaction of the Secretary and has undergone any further examinations as required. Under new Division 1B, the amendments introduce several new regulations aimed at assessing fitness for continued duty. Regulation 46 provides definitions for key terms such as "officer", "relevant medical practitioner", and "illness". Regulation 47 prohibits the officer's treating doctor from conducting a fitness examination. Regulation 48 outlines specific circumstances in which a Secretary may or must require an officer to undergo a medical examination, such as continuous illness absence for four weeks or more, or where an officer is deemed unfit for duty by another medical practitioner. Regulation 49 mandates that officers must not fail to submit to a required medical examination without reasonable excuse and that the examination is not complete until the Secretary is satisfied with the findings. Regulation 50 requires officers absent for 13 weeks or more to obtain a medical certificate before returning to duty. Regulation 51 allows a Secretary to require an officer to undergo a medical examination if their health is affecting work performance or poses a danger to others. The amendments also introduce new provisions for sick leave under Division 2 of Part II of the Regulations. Regulation 53 serves as an interpretation provision similar to Regulation 46. Regulation 56 ensures that officers cannot be granted further leave of absence after 13 weeks unless they submit to a medical examination. Regulation 57 allows a Secretary to grant leave of absence based on a medical examination indicating unfitness for duty and to direct an officer to take leave when such a report is received. Regulation 58 is omitted, with its content now covered by Regulations 51 and 57. Lastly, Regulation 60 is amended to update language and replace references to "the Board" with "the Secretary to the Department of Industrial Relations". The Public Service Regulations (Amendment) 1994 No. 147 impose several obligations on the parties involved. Secretaries of departments are tasked with ensuring that probationary officers undergo medical examinations, as outlined in Regulation 45. They must also require officers to submit to medical examinations under specific circumstances, as detailed in Regulation 48, and ensure that officers do not fail to comply with these requirements without reasonable excuse, as stipulated in Regulation 49. Furthermore, officers are obligated to submit to medical examinations when required and to obtain medical certification before returning to duty after extended absences, as stated in Regulations 50 and 56. Breaching these obligations can lead to various consequences. For instance, failing to submit to a required medical examination without reasonable cause, as outlined in Regulation 49, could result in disciplinary action or other consequences as deemed appropriate by the Secretary. Similarly, officers returning to duty without the necessary medical certification, as required by Regulation 50, could face further leave or other disciplinary measures. While the amending regulations do not specify maximum penalties for these breaches, the Public Service Act 1922 provides a framework within which such consequences can be imposed, including termination of appointment for unsatisfactory health and physical fitness, as detailed in section 47(11).

Legal classification tags

Area of Law
Public Service Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Regulatory Standards
Reporting & Disclosure Obligations
Compliance Obligations

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.