EXPLANATORY STATEMENT
STATUTORY RULES 1988 No. 366
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued by the authority of the Minister of State for Industrial Relations for and on behalf of the Prime Minister
Subsection 97(1) of the Public Service Act 1922 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, 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.
Part IV of the Act provides a means by which officers of the Australian Public Service may engage in other public employment whilst retaining certain entitlements and rights to return to the Service. Part IV applies to officers employed by a “public authority” which is defined in subsection 87(1) as including:
“(b) a body corporate, other than a Commonwealth authority, in which the Commonwealth or a Commonwealth authority has a direct or indirect pecuniary interest, being a body corporate prescribed by the regulations for the purposes of this paragraph;”
Regulation 171AA of the Public Service Regulations (the Regulations) prescribes bodies specified in Schedule 3A as public authorities for the purposes of paragraph (b) of the definition of ‘public authority’ in subsection 87(1) of the Act.
Australian Sports Aid Foundation (ASAF) is a company incorporated in the ACT under the Companies Act 1981 for the purpose of raising money for the development of sport. ASAF is a body in which the Commonwealth has an indirect pecuniary interest and it therefore falls directly within paragraph (b) of the definition of ‘public authority’ in subsection 87(1) and may be prescribed by the regulations.
The regulation amends Schedule 3A to the Regulations by inserting the company in the Schedule.
The effect of the prescription is that officers of the Australian Public Service employed by ASAF are covered by the mobility provisions of Part IV the Act, which give protection as to conditions of service and right of return to the Service.
Section 87B of the Act provides, that regulations shall not be made for the purposes of the definition of ‘public authority’ unless the Public Service Commissioner is satisfied as to the terms and conditions of employment that will be applicable to persons employed by the proposed public authority, and the Minister for Finance or an authorised officer is satisfied about the arrangements that have been made for benefits under the Superannuation Act 1976 in relation to those persons. The Commissioner and the officer authorised by the Minister are satisfied that the terms and conditions of employment and the superannuation arrangements applicable to officers employed by ASAF are adequate.
Overview
The Public Service Regulations (Amendment) Statutory Rules 1988, enacted by the authority of the Minister of State for Industrial Relations on behalf of the Prime Minister, amend the Public Service Regulations to address a specific gap in the coverage of public service officers' entitlements and rights under Part IV of the Public Service Act 1922. This amendment is necessary to ensure that officers of the Australian Public Service employed by the Australian Sports Aid Foundation (ASAF), a company with an indirect pecuniary interest held by the Commonwealth, are covered by the mobility provisions of the Act. These provisions safeguard the conditions of service and the right of return to the Public Service for officers who temporarily engage in other public employment. The amendment to Schedule 3A of the Regulations prescribes ASAF as a public authority under the Act, thereby extending the protections to its officers, subject to the satisfaction of the Public Service Commissioner regarding the terms and conditions of employment, and the Minister for Finance regarding the superannuation arrangements, both of which have been confirmed as adequate.
Scope and Application
The Public Service Regulations (Amendment) Statutory Rules 1988 No. 366 amends the Public Service Regulations to include the Australian Sports Aid Foundation (ASAF) in Schedule 3A as a public authority. This amendment applies to officers of the Australian Public Service who are employed by ASAF, ensuring they are covered by the mobility provisions of Part IV of the Public Service Act 1922. These provisions protect their conditions of service and their right to return to the Australian Public Service. The amendment reflects the fact that ASAF is a body corporate in which the Commonwealth has an indirect pecuniary interest, thereby meeting the criteria for inclusion in the definition of 'public authority' under subsection 87(1) of the Public Service Act. Before this regulation could be made, the Public Service Commissioner had to be satisfied with the terms and conditions of employment for ASAF officers, while the Minister for Finance or an authorised officer had to be satisfied with the superannuation arrangements, as required by section 87B of the Act. Both the Commissioner and the authorised officer confirmed that the terms and conditions of employment and the superannuation arrangements applicable to ASAF officers are adequate.
Key Provisions
The statutory rules introduced by this legislation primarily amend the Public Service Regulations to include the Australian Sports Aid Foundation (ASAF) as a public authority under Schedule 3A. This amendment ensures that officers of the Australian Public Service (APS) employed by ASAF are covered by the mobility provisions in Part IV of the Public Service Act 1922. These provisions are designed to protect the terms and conditions of service and the right to return to the APS for officers who engage in other public employment.
To implement this change, Regulation 171AA has been modified to add ASAF to Schedule 3A. This addition means that APS officers working for ASAF will now benefit from the specific protections and entitlements outlined in Part IV of the Act. This includes safeguarding their employment conditions and ensuring their eligibility to return to the APS if they choose to do so in the future.
The obligations imposed by the Act on the parties involved are significant. Firstly, the Public Service Commissioner must be satisfied with the terms and conditions of employment for officers working at ASAF. This ensures that these officers maintain the same protections as they would if they were employed directly by the APS. Secondly, the Minister for Finance or an authorised officer must be satisfied with the superannuation arrangements for these officers under the Superannuation Act 1976. This step guarantees that officers’ retirement benefits are adequately managed and secure.
In terms of penalties or consequences, the Act does not specify any particular penalties for non-compliance with these provisions. However, the failure to adhere to the prescribed terms and conditions of employment or superannuation arrangements could result in legal challenges or disputes. Such issues may need to be resolved through the appropriate legal channels, potentially involving the courts or administrative tribunals to ensure compliance and uphold the rights of APS officers.