EXPLANATORY STATEMENT
STATUTORY RULES 1985 NO 298
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Board
Sub-section 97(1) of the Public Service Act 1922 (the Act) provides, inter alia, that the Public Service Board may, with the approval of the Governor-General, make regulations prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Under the Merit Protection (Australian Government Employees) Act 1984 (the Merit Protection Act) there has been established a Merit Protection and Review Agency (the Agency). The Agency’s functions include:
• the review under Division 3 of Part II of the Merit Protection Act of certain decisions made in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee; and
• the investigation under Division 4 of Part III of the Merit Protection Act of action taken by a Department or Commonwealth authority in relation to a Commonwealth employee in relation to his or her employment as a Commonwealth employee.
Sub-section 39(1) of the Merit Protection Act provides that an enactment (which is defined to mean an Act, an Ordinance or an instrument, including determinations, rules, regulations or by-laws, made under an Act or an Ordinance) may provide that applications may be made to the Agency for the review of decisions specified in the enactment.
Sub-section 47(1) of the Merit Protection Act provides that an enactment may provide that applications may be made to the Agency for the investigation of actions of a kind specified in the enactment.
These Regulations amended the Public Service Regulations to enable officers and employees of the Australian Public Service to apply to the Agency for the review of certain employment decisions and for the investigation of employment related grievances. Details of the regulations are set out below.
Regulation 1 provided for the Regulations to come into operation on 17 November 1985. This date was selected as
the earliest convenient date having regard to the need for the preparation and dissemination of associated guidelines.
Regulation 2 repealed regulations 19, 33 to 33G and 61U of the Public Service Regulations. Regulation 19 which requires Secretaries to report to the Board on establishment and classification matters was no longer required following the devolution of establishment and classification powers to Secretaries of Departments. Regulations 33 to 33G and 61U have been replaced by new grievance regulations.
Regulation 3 provided for the omission of Part and Division headings that were no longer required.
Regulation 4 inserted a new Part III into the Public Service Regulations for the review of certain decisions and investigation of grievances comprising three Divisions: Division 2 (regulation 75) provided for the interpretation of Part III; Division 2 (regulations 76-81) provided for the review of certain decisions, and Division 3 (regulations 82-86) provided for the investigation of employment grievances.
Details of the new regulations are set out below:
Division 1 - Interpretation of Part III
• Regulation 75 defines certain terms used in Part III of the Public Service Regulations.
Division 2 - Review of certain decisions
• Regulation 76 describes the employment decisions that are reviewable by the Agency, for example decisions to defer increments and decisions not to grant certain types of leave.
• Regulation 77 provides for the internal review of the decision in the first instance. This is consistent with the sound principle of personnel management that, wherever possible, grievances should be resolved within the officer’s Department.
• Regulation 78 provides for applications to be made to the Agency for the review of a decision where officers remain dissatisfied following the internal review required by regulation 77.
• Regulation 79 describes the documentation that is required to be forwarded to the Agency when an application under regulation 78 is made.
• Regulation 80 has the effect that, with the exception of decisions relating to the granting of certain types of leave, the Agency will be able to substitute its decision for that of the decisions under review. In the case of decisions relating to leave, the Agency’s powers will be limited to recommendation.
• Regulation 81 requires officers to carry out directions pending the completion of the review of the decision.
Division 3 - Investigation of grievances
• Regulation 82 defines the jurisdiction of the Agency in relation to employment related grievances.
• Regulation 83 requires the Department or other authority responsible for the action which is the subject of the grievance to undertake an initial investigation.
• Regulation 84 provides for applications to be made to the Agency for the investigation of action where the officer remains aggrieved following the initial investigation under regulation 83.
• Regulation 85 describes the documentation that is required to be forwarded to the Agency when an application under regulation 84 is made.
• Regulation 86 requires officers to carry out directions pending completion of the investigation of an action comprising an official direction.
Regulation 4 also inserted a new heading for Part IV of the Public Service Regulations.
Regulation 5 omited certain Division headings no longer required.
Regulation 6 provided appropriate transitional arrangements for the handling of grievance cases that are under consideration upon the commencement of the new regulations.