EXPLANATORY STATEMENT
STATUTORY RULES 1984 NO 471
PUBLIC SERVICE REGULATIONS (AMENDMENT)
Issued with the authority of the Public Service Board
These regulations prescribe various matters relating to the promotion and transfer of officers and the constitution of Promotion Appeal Committees. Details of the regulations are set out below.
Regulation 1
This regulation provides for the regulations to come into operation on 23 December 1984.
Regulation 2
This regulation provides for the omission of the heading to Part V of the Public Service Regulations which is currently ‘Senior Executive Service’ and replaces it with a new heading ‘Part V - Promotion, Transfer and Temporary Performance’. A new Division of Part V, entitled ‘Division 1 - General’ is inserted comprising a new regulation 104 that defines terms used in Part V. Sub-regulation 104 (1) defines ‘promotion’ ‘Promotion Appeal Committee’ and ‘relevant address’. Sub-regulation 104 (2) defines ‘efficiency’ by reference to the meaning given to that term in the Act, both in relation to Senior Executive Service offices and to other offices. Sub-regulations 104 (3), (4) and (5) relate to the concept of a ‘higher office’, a term that is used in Division 5 of Part V relating to the temporary performance of higher duties. Proposed Regulation 2 also inserts a new heading ‘Division 2 - Promotions and Transfers - Senior Executive Service’.
Regulation 3
This regulation amends existing regulation 105A by amending references to sub-section 48B (1) of the Act to references to sub-section 33AAA (1). This amendment reflects the fact that the special interim provision in section 48B of the Act that supplied a definition of the term ‘prescribed day’ in relation to promotions and transfers to Senior Executive Service offices, will now be replaced by the definition provisions in section 33AAA which apply to promotion and transfer of all officers. Regulation 105A as amended will continue to provide, in relation to Senior Executive Service officers, that the ‘prescribed day’ (that is, the day on which promotions and transfers take effect) is, in the case of all promotions, and transfers between departments, 14 days after the promotion or transfer is notified in the Gazette. In the case of transfers of Senior Executive Service officers within departments, the ‘prescribed day’ will continue to be, If the officer has indicated no objection to the transfer, the day specified in the notice of transfer given to the officer. When the officer has not indicated that he or she has no objection, the prescribed day will be 14 days after the notice has been given or such later day as is specified.
Regulation 4
This regulation repeals Part VI of the Public Service Regulations. This Part, entitled ‘Part VI - Retirement and Redeployment of Senior Executive Officers’ currently comprises regulation 106 and 106A which relate to periods during which Senior Executive Service officers may appeal against redeployment and retirement action. The reason for their repeal is to provide a logical order to the regulations relating to promotion and transfer. Regulation 8 provides for Part VI to be re-made in identical terms as new regulation 119 and 120.
Regulation 5
This regulation omits the existing heading to Part VII of the Public Service Regulations. The heading (‘Part VII - Promotion, Incremental Advancement and Transfer’) is unnecessary because of the intention to include all regulations relating to promotions and transfers in Part V, which, as described above, is entitled ‘Part V - Promotion, Transfer and Temporary Performance’.
Regulation 6
This regulation repeals all the existing regulations that relate to the promotion and transfer of officers other than Senior Executive Service officers, that is, regulations 107 to 109H inclusive. In their place the following regulations are substituted -
• Regulation 107
This regulation, which will be in Division 2 of Part V (that is, the Division relating to promotions and transfers in the Senior Executive Service) prescribes, for the purposes of section 52 of the Act, which entitles officers to apply for permission to decline promotions and transfers, days before which Senior Executive Service officers may apply to the Public Service Board for permission to decline promotion or transfer. The days prescribed for the purposes of section 52 corresponds in all cases with the days of effect for promotions or transfers, subject to an overall limit of 14 days.
Division 4
A new heading ‘Division 4 - Promotions and Transfers - Offices other than Senior Executive Service Offices’ is inserted after the new regulation 107. (For the present, there will be no Division 3. This is being reserved for future regulations relating to the temporary performance of higher duties by Senior Executive Service officers.)
Regulation 109
This regulation prescribes certain days to be the ‘prescribed day’ for the purposes of sub-section 33AAA(1) of the Act in relation to promotion and transfers of officers other than Senior Executive Service officers. It corresponds to regulation 105A described above and has the effect of determining when promotions and transfers take effect - subject to overriding provisions in the Act concerning appeals.
Under sub-regulation 109(1), promotions under section 50 (the generally applicable provision) take effect, subject to any appeals, 35 days after the promotion is notified in the Gazette. Promotions under section 50DA (the new provision that enables promotions to be made on the advice of Joint Selection Committees and thereby not subject to appeal) are to take effect 14 days after notification in the Gazette.
Under sub-regulation 109(2), transfers will generally take effect as follows:
• 14 days after notification in the Gazette in the case of transfers required to be so notified;
• 14 days after notice is given to the officer in the case of other transfers or such later date as is specified, and
• where the officer has stated in writing that he or she has no objection to the transfer, on whichever day is specified in the notice given to the officer.
Regulation 109A
This regulation prescribes for the purpose of section 52 of the Act, the days before which, officers, other than Senior Executive Service officers, may apply to the Public Service Board for permission to decline promotion or transfer. As in the case of the prescribed day for the purposes of section 52 in the case of Senior Executive Service officers (Regulation 107, described above refers), the day prescribed corresponds with the day on which the promotion or transfer would normally take effect, subject to an overall limit in the case of transfers to a 14 day period.
Regulation 109B
This regulation gives meaning to the term used in section 50DA of the Act, ‘principle relevant staff organization’. ‘Relevant staff organization’ is a term defined in section 7 of the Act, to mean an organization of employees registered under the Conciliation and Arbitration Act 1904 and which has award coverage of the office in relation to which the term is used. Under section 50DA, where a Secretary proposes to fill a position by promotion or transfer
under that section, notice is to be given to all relevant staff organizations to enable them to object if they so desire and the agreement of the ‘principal relevant staff organization’ has to be sought and obtained. Regulation 109B provides that the staff organization, the membership of which includes the larger or largest number of officers occupying offices in the class in relation to which the term is used, is the ‘principal relevant staff organization’.
Regulation 109C
This regulation requires notification in the Gazette of transfers of officers to fill vacancies previously notified in the Gazette.
Regulation 109D
Pending implementation of the relevant provisions of the Merit Protection (Australian Government Employees) Act 1984 Act No 65 of 1984 assented to on 25 June 1984 which will provide for Promotion Appeal Committees to be constituted under the aegis of the Merit Protection and Review Agency, the Public Service Reform Act 1984 provides for an interim provision (section 50CA) to be included in the Public Service Act under which such committees are to be constituted. The regulation is in similar terms to the existing regulation 109D which provides for the constitution of Promotion Appeal Committees under existing sub-section 50(5AB) of the Act. Committees will continue to comprise a Chairman appointed by the Public Service Board, an officer nominated by the Secretary of the Department in which the promotion or selection for higher duties has been made and a staff organization nominee. Provision is included to make it clear that a promotee, an appellant or an officer associated with the departmental selection process may not act as a member of a Promotion Appeal Committee and that an officer is on duty when acting as such a member.
Regulation 109E
This regulation is a replacement for existing regulation 109F and provides protection from civil or criminal action against members of Promotion Appeal Committees and persons appointed under new regulation 109F (see below) for any act or thing done in good faith as a member or a person so appointed.
Regulation 109F
This regulation enables Promotion Appeal Committees to appoint persons to assist it in making its inquiries and to give directions to such persons in relation to the assistance that is to be provided.
Regulation 109G
This regulation governs the manner in which appeals against promotions are to be made, that is, the appeal is to be in writing signed by the applicant, addressed to the Chairman, Promotion Appeal Committee and delivered to the address specified in the Gazette within 21 days of the promotion being notified in the Gazette.
Proposed regulation 6 also inserts a new heading ‘Division 5 - Temporary Performance’.
Regulation 7
This regulation amends regulation 110 (which provides the manner in which the seniority of officers is ascertained) to limit its application to selections and appeals relating to the temporary performance of the duties of a higher office. The removal of seniority as a criterion in selection decisions on promotions is a central feature of the amendments being made to the promotion provisions by the Public Service Acts Amendment Act 1982. It is intended that seniority will also be removed as a criterion for the selection of officers for higher duties. However, further discussions are necessary with staff organizations in relation to the criteria that should apply to the selection of officers for short-term higher duties. Until that process is completed it is that the regulations relating to temporary performance should only be amended to the extent that it is necessary on account of changes made to the promotion process generally. Regulation 110 thus continues to be necessary in relation to temporary performance.
Regulation 8
This regulation omits regulations 111 to 117A inclusive, which relates to various aspects associated with transfer and the temporary performance of the duties of another office, and substitutes the following regulations:
Regulation 116
This regulation replaces part of the existing regulation 116. It continues to provide a power for Chief Officers to direct another officer to perform the whole or a specified part of the duties of another office. When a selection is made of an officer in relation to whom that office is a higher office, criteria for selection are specified according to circumstances. These are unchanged from the existing regulations.
The new regulation makes it clear that it does not apply to directions to Senior Executive Service officers to perform duties at their own level. The reason for this is that the Act makes provision for such directions in section 49A. Regulation 116 will continue to be used to direct Senior Executive Service officers to perform temporarily the duties of a higher officer.
Regulation 116A
This regulation re-makes those parts of the existing regulation 116 which provide to officers (other than Senior Executive Service officers) a right of appeal against the selection of officers to perform the duties of a higher office. The grounds of appeal are the same as presently provided.
Regulation 116B
This regulation provides for the determination of appeals made under regulation 116A.
Proposed regulation 8 also inserts a new heading ‘Division 6 - Miscellaneous’ comprising a new regulation 117 which re-makes, with some drafting changes, existing regulation 117. This regulation provides a right to officers in remote areas or areas where climatic conditions are severe to apply for transfer. Special consideration is required to be given to such applications.
As previously mentioned, regulation 8 also re-makes Part VI relating to the redeployment and retirement of Senior Executive Service officers, comprising regulations 106 and 106A, as a new Part VI, comprising regulations 119 and 120 in identical terms to the existing regulations.
Regulation 9
This regulation inserts Schedules 5 and 6, referred to in new regulation 116 after the existing Schedules.
Regulation 10
This regulation makes necessary transitional arrangements to keep in effect existing appointments of Promotion Appeal Committee Chairman, directions to perform the duties of another office and appeals relating to such directions. Transitional provisions relating to the promotion process generally are to be found in section 76 of the Public Service Acts Amendment Act 1982.