Public Service Regulations (Amendment) (Amendment) 1995 No. 249
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 249
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 non-appellable period") and, generally, if the office is below the Senior Officer Grade C level.
On 9 August 1995, the Governor-General made Regulations (the amending Regulations) to extend the non-appellable period for acting arrangements from three to twelve months. The amending Regulations 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 report back to the AIRC on 6 September.
The purpose of the proposed Regulations is to defer the commencement of the amending Regulations until 29 September 1995, by which time, it is anticipated, the dispute over the amending Regulations would be resolved.
Regulation 1 of the proposed Regulations provides that the amending Regulations are amended as set out in the following regulations.
Regulation 2 of the proposed Regulations would insert a new regulation 3A into the amending Regulations. Regulation 3A would provide that the amending Regulations do not apply to directions issued by Secretaries before 29 September 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 29 September.
The proposed Regulations commenced on the date of gazettal.
Overview
The Public Service Regulations (Amendment) (Amendment) 1995 No. 249, issued by the authority of the Prime Minister under the Public Service Act 1922, aim to address a dispute over the extension of the non-appealable period for acting arrangements within the public service. This Act was introduced to defer the commencement of the amending regulations, which extended the non-appealable period from three to twelve months, until a resolution could be reached between the Government and the Community and Public Sector Union (CPSU). The policy objective is to maintain the existing appeal rights for officers until the dispute over the amending regulations is resolved. The proposed regulations ensure that the rights of officers to appeal against directions for more than three months are preserved until 29 September 1995.
Scope and Application
The Public Service Regulations (Amendment) (Amendment) 1995 No. 249 applies to officers within the public service who are subject to directions for temporary acting arrangements in their departments. Specifically, it modifies the non-appellable period for such arrangements from three to twelve months, affecting officers who are directed to perform duties temporarily in positions generally below the Senior Officer Grade C level. This amendment applies to officers in departments where the Secretary has the authority to issue such directions, and it also considers the rights of officers to appeal against such directions if they believe they could perform the duties more efficiently than the officer selected. The regulations aim to manage the transitional period during which the extended non-appellable period takes effect, ensuring that existing rights and obligations are preserved until the new arrangements come into force. The Regulations also defer the commencement of these changes until 29 September 1995, allowing time for resolution of a dispute between the Government and the Community and Public Sector Union over the initial amendment.
Key Provisions
The Public Service Regulations (Amendment) (Amendment) 1995 No. 249 include amendments to the Public Service Regulations, specifically altering the timeframe for non-appellable acting arrangements. Regulation 116A (regulation 3A inserted by the proposed Regulations) maintains the existing provision that allows the Secretary of a department to direct an officer to temporarily perform the duties of another office (Public Service Regulations, regulation 116A). However, the new regulation 3A ensures that the extended non-appellable period, which was increased from three to twelve months, does not apply to directions issued before 29 September 1995. Until this date, officers retain their right to appeal if they believe they could perform the duties of a position more efficiently than the officer appointed to act in that position, if the acting period exceeds three months (Public Service Regulations, regulation 116C).
The Public Service Regulations (Amendment) (Amendment) 1995 No. 249 impose specific obligations on the parties involved. The Secretary of a department must adhere to the provisions outlined in regulation 3A, ensuring that any directions issued before 29 September 1995 do not benefit from the extended non-appellable period. This means that officers appointed to act in positions for more than three months before this date retain their appeal rights as per regulation 116C. Additionally, officers who believe they are more suited to perform the duties of a position and who were appointed to act in that position before 29 September 1995 must be allowed to appeal according to the existing regulations.
The proposed Regulations do not directly create new offences or penalties, but they ensure the continued application of existing provisions regarding officers' rights to appeal against acting arrangements. The non-compliance with the regulations regarding the non-appellable period and officers' rights to appeal could potentially lead to legal disputes, where officers might claim that their rights have been unfairly restricted. However, the maximum penalties for such breaches would be determined by the relevant laws governing public service employment and industrial disputes.
The Public Service Regulations (Amendment) (Amendment) 1995 No. 249 were designed to address the dispute between the Government and the Community and Public Sector Union (CPSU) regarding the initial amendments to the non-appellable period. By deferring the commencement of these amendments until 29 September 1995, the Regulations aimed to provide a window for negotiation and resolution of the dispute. Any failure to comply with the specific provisions of the proposed Regulations, particularly concerning the non-appealable period and officers' rights to appeal, could lead to legal challenges or disputes under the existing laws governing public service employment and industrial relations.