EXPLANATORY STATEMENT
STATUTORY RULES 1987 No 90
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Board
Subsection 97(1) of the Public Service Act 1922 (‘the Principal Act’) provides 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 Principal Act.
A number of the provisions of the Public Service Legislation (Streamlining) Act 1986 (‘the Streamlining Act’). which, inter alia, amend the Principal Act, come into operation on 14 June 1987, the date proclaimed by the Governor General for the purposes of subsections 2(2) and 2(4) of the Streamlining Act (Executive Council Minute No. PSB 1987/8 refers).
The statutory rules give effect to sections of the Principal Act inserted or amended by the Streamlining Act in relation to transfers and promotions of officers of the Australian Public Service. In addition, the opportunity has been taken to amend the provisions of the Public Service Regulations (‘the Regulations’) relating to the temporary performance of duties, in conformity with the principles underlying the Streamlining Act. Details of the statutory rules are as follows.
Regulation 1 provides for the regulations to come into operation on 14 June 1987.
Regulation 2 amends regulation 3 of the Regulations by adding interpretation provisions relating to the location of an office.
Regulation 3 amends the heading to Part V of the Regulations, currently “PROMOTION, TRANSFER AND TEMPORARY PERFORMANCE”, to become “TRANSFER, PROMOTION AND TEMPORARY PERFORMANCE”. This amendment brings the heading into line with the order in which these matters are dealt with in the Principal Act.
Regulation 4 amends current regulation 104 by omitting definitions of “relevant address” and “efficiency” The latter definition is adapted in the regulations relating to temporary performance of duties.
Regulation 5 amends the heading to Division 2 of Part V of the Regulations, by substituting the words “Transfers and promotions” for the words “Promotions and transfers”.
Regulation 6 repeals current regulations 105A, 105B and 107, relating to transfers and promotions in and to the Senior
Executive Service. In their place the following regulations are substituted.
Regulation 106 makes general provision for transfers in the Senior Executive Service, covering dates of effect, notification in the Gazette and the period for application to decline transfer. Subregulations (1) and (2) provide for dates of effect for intradepartmental and interdepartmental transfers respectively. Where an officer has agreed to an intradepartmental transfer it may take effect as soon as the officer receives notice of the transfer. All other transfers, whether intra- or interdepartmental, take effect 7 days after the officer receives notice of the transfer or on a later day specified in that notice. Subregulation (3) requires all transfers to Senior Executive Service vacancies which were notified in the Gazette to be notified in the Gazette.
Subregulation (4) prescribes the period within which an officer may apply under section 52 of the Principal Act to decline an interdepartmental transfer. The period begins when the officer is given notice of the transfer and ends on the sixth day after receipt of that notice, or on the day before the transfer takes effect, whichever is the earlier.
Regulation 107 sets the “prescribed day” for the purposes of subsection 33AAA(1) of the Principal Act in relation to promotions to Senior Executive Service offices. As a general rule such promotions are to take effect on the seventh day after notification of the promotion in the Gazette.
Regulation 7 repeals Divisions 3, 4 and 5 of Part V of the Regulations, being the regulations dealing with temporary performance of duties by Senior Executive Service officers and relating to transfer, promotion and temporary performance of duties by officers other than Senior Executive Service officers. In their place the following regulations are substituted.
Regulation 108, which provides for temporary performance of duties by Senior Executive Service officers, corresponds approximately to current regulation 108. Changes have been made to the terms of directions to act, which are now required to commence on the date they are given or a later specified date and to end on a specified date or upon the occurrence of a specified event.
Division 4 comprises provisions relating to transfer and promotion of officers to offices other than Senior Executive Service offices.
Regulation 109 provides definitions of terms such as ‘appellable promotion’, ‘non-appellable promotion’ and ‘nominal effective day’. This last term is used to set the normal date of effect of a transfer or promotion, i.e., where the office is vacant and in the case of a transfer
the transfer is not declined or cancelled or in the case of a promotion the promotion is not appealed against or cancelled. Under normal circumstances a transfer will take effect 7 days after the day on which notice of the transfer was given to the officer. Under normal circumstances an appellable promotion will take effect 21 days after the date of notification of the promotion in the Gazette; and a non-appellable or a section 50DA promotion will take effect 7 days after such notification.
Regulation 110 provides that a transfer or promotion cannot take effect until the office to which it has been made has become vacant. This facilitates the taking of action to fill expected vacancies.
Regulation 111 makes provision for various matters associated with transfers under section 50 of the Principal Act. Subregulation (1) requires that a transfer to fill a vacancy notified in the Gazette must be notified in the Gazette. Subregulation (2) provides that where there is no application to decline, a transfer takes effect 7 days after the officer is given notice of the transfer, or on a later day specified in the notice. Under subregulation (3), where application to decline has been made but refused the transfer cannot take effect until the officer has been advised of that refusal. Subregulation (4) prescribes the period within which application to decline a transfer may be made. The period begins on the day the officer is given notice of the transfer and ends on the sixth day after the giving of that notice.
Regulation 112 prescribes circumstances in which a promotion may be made under section 50 of the Principal Act where the vacancy has not been advertised in the Gazette. The circumstances are:
(a) where a person had been appointed, transferred or promoted to an office but failed to take up duty in that office;
(b) where a vacancy in an office in a department below the level of Clerical Administrative Class 9 or equivalent occurs within 6 months of the notification in the Gazette of the vacancy of an identical office in the department; and
(c) where it is proposed to promote an Assistant Research Officer in a department to a departmental vacancy in the Research Officer stream.
Regulation 113 deals with the taking of effect of appellable promotions, defined in the regulations to mean, in effect, promotions under section 50 of the Principal Act to offices below the level of Clerical Administrative Class 9 or equivalent. Subregulation (1) provides that an appellable promotion will normally take effect 21 days after notification of that promotion in the Gazette: that
is, on the nominal effective day. Where the promotion is appealed against, it will not take effect until all of the appeals become inoperative or are disallowed.
Subregulation (2) provides that salary on an appellable promotion is payable 21 days after notification of the promotion in the Gazette.
Regulation 114 provides for the making of appeals against appellable promotions and for the taking of effect of promotions the result of successful appeals. Subregulation (1) defines the term ‘notice of appeal’ for the purposes of the regulation. Subregulation (2) prescribes for the purposes of subsection 50B(1A) of the Principal Act, the circumstance in which an officer who was not an applicant for a promotion may appeal against that promotion: where the vacancy of the office was not advertised in the Gazette. Subregulation (3) provides that an appeal is to be made in writing and addressed to the Merit Protection and Review Agency (“the Agency”). Subregulations (4) and (5) provide that the Agency may determine the time by which and the address at which the appeal must be lodged, and other details. Subregulation (6) provides that where an appeal against a promotion is allowed, and the appellant is promoted under subsection 50D(5) of the Principal Act, that promotion takes effect on the day the appeal is allowed.
Regulation 115 prescribes offices equivalent to Clerical Administrative Class 9 for the purpose of the second arm of the definition of ‘non-appellable promotion’ in subsection 33AAA(1) of the Principal Act. An office is equivalent to that classification if immediately before the commencement of the regulations the rate or minimum rate of salary payable in respect of that office is greater than the maximum rate of salary payable in respect of the office of Clerical Administrative Class 3.
Regulation 115A provides for the taking of effect, review and payment of salary in relation to non-appellable promotions. Subregulation (1) provides that a non-appellable promotion takes effect 7 days after notification in the Gazette. Subregulations (2) to (6) make provision for review under section 50DAA of the Principal Act. Subregulation (2) sets a period of 14 days after notification of a promotion in the Gazette as the period within which application for review may be made. Subregulation (3) requires the Agency within 7 days of the end of that period to advise the relevant Secretary of the application for review and to furnish particulars. Subregulation (4) requires the Secretary within 14 days to furnish to the Agency all departmental documents relating to the promotion together with any comments thereon. Subregulation (5) provides that where a Secretary reconsiders the promotion and makes a decision the Secretary must advise the applicant, promotee and Agency of that decision. And subregulation (6) provides that a transfer consequent upon the cancellation of promotion under section 50DAA takes effect upon the taking effect of
that cancellation. Subregulation (7) provides that salary on a non-appellable promotion is payable 7 days after notification of the promotion in the Gazette.
Regulation 115B prescribes matters relevant to the setting up of Joint Selection Committees under section 50DA of the Principal Act. Subregulation (1) provides a method for determining which is the principal relevant staff organisation for the purposes of the Secretary obtaining consent to the filling of a vacant office under that section, and that organisation nominating a person to sit on the Joint Selection Committee. Subregulation (2) prescribes a period of 7 days following notification during which a relevant staff organisation may object to the filling of the vacant office using section 50DA.
Regulation 115C makes provision for various matters associated with transfers under section 50DA of the Principal Act. Subregulation (1) requires all such transfers to be notified in the Gazette. Provisions relating to the taking of effect of transfers under section 50DA are similar to those relating to transfers under section 50 of the Act, and the remaining subregulations correspond, with minor adaptations, to subregulations 111(2) to (4) above.
Regulation 115D makes provision for promotions under section 50DA of the Act. Such promotions take effect, and salary on promotion is payable, 7 days after notification in the Gazette.
Regulation 115E provides for various matters associated with transfers and promotions under section 50DB of the Act. Subregulation (1) provides a method for determining the principal relevant staff organisation, which is to be notified of the Secretary’s intention to fill a vacant office under that section. Subregulation (2) prescribes the period of 14 days after receiving that notification within which that organisation may nominate a person to sit on that Joint Selection Committee. Subregulations (3) and (4) prescribe other periods for the purpose of reconstituting a Joint Selection Committee where a member has ceased to take part.
Regulation 115F provides for various matters in relation to cancellation of promotion under section 50G of the Principal Act. Subregulation (1) provides that where formal application for cancellation is made to the Secretary before the nominal effective day in relation to that promotion (21 days after notification of appellable promotions, 7 days after notification for all others), the taking of effect of the promotion is suspended. Where the application to cancel is refused the promotion cannot take effect before the officer is notified of that refusal.
Regulation 115G makes provision in relation to multiple promotions. A multiple promotion occurs where one
promotion is notified in the Gazette and before the normal date of effect of that promotion another promotion of the same officer to an office having the same classification is notified. The normal rules on taking effect are suspended in this situation. Under subregulation (2) an officer may elect between these promotions. The promotion elected takes effect, if at all, on the last of the normal dates of effect of each of the promotions, and the non-elected promotions lapse. Detailed subregulations provide, where the officer has not made an election by the prescribed time, that the earliest notified promotion, the promotion not the subject of appeal or the promotion nominated by the Board is to be the effective promotion, and the other promotions lapse.
Regulation 115H provides for the taking of effect of promotions which are not multiple promotions but which have coinciding dates of effect. Where the promotions are to offices having the same classification, the earliest notified promotion takes effect and the other promotions lapse; where the promotions are to offices having different classifications, the promotion to the highest office takes effect and the others lapse.
Division 5 of the regulations substitutes new provisions relating to temporary performance of duties by officers other than Senior Executive Service officers.
Regulation 116 provides a number of definitions for the purposes of Division 5.
Regulation 116A provides that the Secretary of a department may direct an officer temporarily to perform the duties of an office in that department. As a general rule such a direction takes effect on the day it is given or on a later day specified in the notice to the officer. By subregulation (3) a direction must be expressed to continue in force until the end of a specified day or the occurrence of a specified event. Subregulation (6) expands the range of selection criteria relevant to selections for temporary performance to include a number of operational factors. Where a Secretary proposes to give a direction to an officer of another department, subregulation (8) requires the directing Secretary to obtain the approval of the Secretary of that other department, which may only be withheld where release of the officer would cause substantial difficulties in the functioning of that department.
Regulation 116B requires the Secretary to notify in the department directions to act for periods greater than 3 months in offices below the level of Clerical Administrative Class 9 or equivalent. Directions expressed to continue until the occurrence of a specified event are also required to be notified. Notifiable directions cannot take effect until they have been notified in the department.
Regulation 116C makes provision for appeals against directions notifiable under the previous regulation Appeals against such directions may only be made by officers in offices of lower classification than the subject office, and only on the ground of superior efficiency. Provision is made in subregulations (4) to (7) in relation to timing and lodgement of appeals along the same lines as is made in relation to promotion appeals. An appeal must be lodged within 14 days of notification of the direction.
Regulation 116D lays down the circumstances in which an appeal against the selection of an officer for a direction will lapse. These include circumstances where the appeal is withdrawn; where the period of acting expires; or where the appellant or the officer directed ceases to be an officer. Most significantly an appeal will lapse where the directing Secretary or the Secretary of the appellant’s department advises the Agency that the release of the appellant to perform the duties of the office would cause substantial difficulties in the functioning of the department of the Secretary in question. Provision is, however, made for this lapsing provision not to apply in certain circumstances where the Secretary advises the Agency that the officer cannot be released for a specified part only of the period of acting.
Regulation 116E makes provision for successful appeals. Where the period of acting has not expired the Secretary is required to revoke the direction given to the officer originally selected and to give a direction in the same terms to the successful appellant.
Regulation 8 amends regulation 121 of the Regulations to correct an existing error, so that the regulation refers not only to officers ‘holding offices’, but to unattached officers as well.
Regulation 9 repeals regulation 173 of the Regulations which is no longer necessary.
Regulation 10 makes consequential amendments to current regulation 174 by updating references to regulations relating to transfers and promotions, and by removing references to the concept of seniority which no longer appears in the new regulations relating to temporary performance of duties.
Regulation 11 removes an incorrect reference in current regulation 175 to section 50A and replaces it with a reference to section 50DA.
Regulation 12 removes an incorrect reference in current regulation 176 to section 50A and replaces it with a reference to section 50DA.
Regulation 13 amends Schedule 3A to the Regulations by omitting item 2, the Australian Railway Reseach and
Development Organisation. The operations of that organisation have been wound down to the point where its prescription for the purposes of Part IV of the Act is no longer necessary.
Regulation 14 repeals Schedules 5 and 6 of the Regulations which are no longer necessary as a result of the replacement of the temporary performance regulations.
Regulation 15 makes saving and transitional arrangements. In general the rules in relation to taking effect, declination, cancellation, payment of salary and appeals will continue to apply to transfers and promotions made before the commencement of the new regulations. Likewise directions temporarily to perform the duties of an office given before the commencement will continue, and current appeal rights in respect of such directions are saved. Provision has been made continuing the current specification of addresses and times for lodging appeals, pending the making of a determination on this matter by the Merit Protection and Review Agency.
The regulations are to come into operation on 14 June 1987. They are therefore made in reliance on section 4 of the Acts Interpretation Act 1901, which provides that where an Act has received the Royal Assent but has not yet come into operation, regulations may be made as if the Act had commenced, but the regulations shall not take effect until the Act commences.
Authority: Subsection 97(1) of
the Public Service
Act 1922