Public Service Regulations (Amendment) (Amendment) 1995 No. 276
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 276
Issued by the Authority of the Prime Minister
Public Service Act 1922
Public Service Regulations (Amendment) (Amendment)
The Public Service Act 1922 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed.
Part V of the Public Service Regulations governs the transfer and promotion of officers and directions for officers to perform temporarily the duties of another office. Within Part V, regulation 116A provides that the Secretary of a department may direct an officer to perform temporarily the duties of another office in that department. Regulation 116B requires that a direction to act in a position below a certain level (generally, the Senior Officer Grade C level) for more than three months must be notified in a manner that is likely to be noticed by other officers. Regulation 116C allows an officer who believes that he or she would perform the duties of an office more efficiently than an officer who has been selected to act in that office to appeal to the Merit Protection and Review Agency against the Secretary's direction that the other officer act in the position. An appeal can only be lodged against such a direction if the period of acting is more than three months ("the nonappellable period") and, generally, if the office is below the Senior Officer Grade C level.
On 9 August 1995, the Governor-General made Regulations (Statutory Rules 1995 No. 243) to extend the non-appellable period for acting arrangements from three to twelve months. These Statutory Rules commenced on notification in the Gazette on 18 August 1995.
The Community and Public Sector Union (CPSU) notified the Australian Industrial Relations Commission (AIRC) of the existence of a dispute with the Government over the amending Regulations.
The AIRC held an initial hearing on 11 August and recommended that the Government and the CPSU discuss the amending Regulations with a view to reaching an agreement acceptable to both parties. The AIRC also recommended that the amending Regulations not commence until after the parties had reported back to the AIRC on 6 September.
On 17 August 1995, the Governor-General made regulations (Statutory Rules 1995 No. 249) amending Statutory Rules 1995 No. 243 so that they did not commence until 29 September 1995, by which time, it was anticipated, the dispute over the amendments would be resolved. These Statutory Rules commenced on the same day as Statutory Rules 1995 No. 243.
The AIRC held a further hearing on the dispute on 6 September 1995 at which the Commonwealth undertook to submit for the Governor-General's approval in Council regulations to defer further the commencement of Statutory Rules 1995 No. 243 to allow more time for the dispute to be resolved.
The purpose of the proposed Regulations is to defer the commencement of Statutory Rules 1995 No. 243 until 30 November 1995. Both parties to the dispute consider that the dispute will be resolved by that date.
Regulation 1 of the proposed Regulations provides that Statutory Rules 1995 No. 243 and Statutory Rules 1995 No. 249 are amended as set out in the following regulations.
Regulation 2 of the proposed Regulations would amend regulation 3A of the amending Regulations. Regulation 3A provides that the amending Regulations do not apply to directions issued by Secretaries before 29 September 1995. The amendment would omit '29 September 199W and substitute "30 November 1995". Until that date, the rights of officers to appeal against directions that another officer act in a position for more than three months would be unaffected by the Regulations made by the Governor-General on 9 August.
Regulation 3 of the proposed Regulations would amend regulation 4 of the amending Regulations. Regulation 4 of the amending Regulations is a transitional provision the effect of which is to save the appeal rights of officers who have a right of appeal against directions made before the amending Regulations commence. Regulation 3 of the proposed Regulations would make it clear that the saving provision would operate from 30 November.
The proposed Regulations commenced on the date of gazettal.
Overview
The Public Service Regulations (Amendment) (Amendment) 1995 No. 276, issued under the authority of the Prime Minister, amends the Public Service Regulations to address a dispute over the extension of the non-appellable period for acting arrangements. This Act is an amendment to the Public Service Act 1922, which allows for the creation of regulations by the Governor-General to govern various aspects of the public service, including the temporary transfer and promotion of officers. The initial amendment, made on 9 August 1995, extended the non-appellable period from three to twelve months, which was contested by the Community and Public Sector Union (CPSU). To facilitate resolution of the dispute, further amendments were made to defer the commencement of these changes until 30 November 1995, aiming to maintain the status quo until an agreement is reached.
Scope and Application
The Public Service Regulations (Amendment) (Amendment) 1995 No. 276 amends the Public Service Regulations to address a dispute over the extension of the non-appellable period for officers acting in positions for more than three months. The regulations pertain to officers within the Commonwealth public service, specifically those who may be directed to temporarily perform duties in another office. The amendments are an extension of the Public Service Act 1922, which empowers the Governor-General to make regulations governing the public service. The jurisdictional reach of these regulations is confined to the Commonwealth public service, affecting officers within departments who may be subject to temporary acting arrangements. The amendments seek to resolve a dispute between the Government and the Community and Public Sector Union (CPSU) regarding the extended non-appellable period. The proposed Regulations aim to defer the commencement of the amendments to allow time for negotiations between the parties, ultimately seeking to resolve the dispute by 30 November 1995. The proposed Regulations, once gazetted, will further amend the earlier regulations to reflect this new commencement date, preserving the rights of officers to appeal against certain acting arrangements until the specified date.
Key Provisions
The main operative sections of the Public Service Regulations (Amendment) (Amendment) 1995 No. 276 involve amendments to existing regulations concerning the temporary assignment of duties within public service departments. Regulation 116A (1) allows the Secretary of a department to direct an officer to temporarily perform the duties of another office within the same department. Regulation 116B (2) mandates that if an officer is directed to perform duties below a certain level for over three months, the direction must be communicated in a manner that is likely to be noticed by other officers. Regulation 116C (3) provides an avenue for appeal to the Merit Protection and Review Agency if an officer believes they could perform the duties more efficiently than the officer assigned, provided the acting period exceeds three months and the office is below the Senior Officer Grade C level. The proposed Regulations, as outlined in Regulation 2 (4) and Regulation 3 (5), further amend these provisions to defer the commencement of earlier amendments until 30 November 1995 to allow more time for dispute resolution.
The obligations and requirements imposed by the Public Service Regulations (Amendment) (Amendment) 1995 No. 276 on the parties involved primarily relate to the procedural and communication aspects of temporary duty assignments. Departmental Secretaries must ensure that any temporary assignment of duties is communicated in a manner that ensures visibility among other officers, particularly when the acting period exceeds three months, as per Regulation 116B (6). Officers who are assigned to act in a position for more than three months have the right to appeal if they believe they can perform the duties more efficiently, as outlined in Regulation 116C (7). The Regulations also stipulate that the amendments to the commencement dates of certain provisions are to be observed until the dispute between the Government and the Community and Public Sector Union is resolved.
The Public Service Regulations (Amendment) (Amendment) 1995 No. 276 do not explicitly state any new offences, penalties, or consequences for breach. However, the failure to comply with the communication requirements of Regulation 116B (8) or the procedural requirements of Regulation 116C (9) could lead to disputes and potential litigation. The existing framework under the Public Service Act 1922 (10) would apply to any such disputes, with the Merit Protection and Review Agency playing a key role in resolving them. While specific penalties are not detailed in the amending Regulations, breaches of public service regulations generally could result in administrative or disciplinary actions against the responsible officers or departments.