Public Service Amendment Act 1991
No. 205 of 1991
An Act to amend the Public Service Act 1922, and for related purposes
[Assented to 24 December 1991]
The Parliament of Australia enacts:
Short title etc.
1.(1) This Act may be cited as the Public Service Amendment Act 1991.
(2) In this Act, "Principal Act" means the Public Service Act 19221.
Commencement
2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) Subject to subsection (3), subsections 4(2), 8(2) and 9(2) commence on a day or days to be fixed by Proclamation.
(3) If the commencement of subsection 4(2), 8(2) or 9(2) is not fixed by a Proclamation published in the Gazette within the period of 6 months beginning on the day on which this Act receives the Royal Assent, the subsection is repealed on the first day after the end of that period.
Interpretation
3. Section 87 of the Principal Act is amended:
(a) by adding at the end of subsection (1) the following definitions:
" 'Public Service Redundancy Award' means the Australian Public Service Redeployment and Retirement (Redundancy) Award 1987 as amended and in force from time to time;
'retention period', in relation to a person's employment, means a period during which the employing authority is not entitled, without the consent of the person, to retire or retrench the person from that employment on the ground that the person is excess to the requirements of that authority.";
(b) by inserting after subsection (1) the following subsections:
"(1A) In this Part:
(a) a reference to a person electing to be retired from his or her employment is a reference to a person notifying the employing authority (whether pursuant to a right conferred by an industrial award or otherwise) to the effect (however the notification is expressed) that the person is willing to be voluntarily retired or voluntarily retrenched from his or her employment; and
(b) a reference to an employing authority accepting an election by a person to be retired from the person's employment is a reference to an employing authority notifying a person to the effect (however the notification is expressed) that the person is to be voluntarily retired or voluntarily retrenched from his or her employment.
"(1B) In this Part:
(a) a reference to a person becoming excess in relation to his or her employment is a reference to a retention period beginning to apply to the person in respect of that employment and a reference to the date on which the person became excess in relation to that employment is a reference to the date of commencement of that retention period; and
(b) a reference to a person ceasing to be excess in relation to his or her employment is a reference to a retention period ceasing to apply to the person in respect of that employment.".
4.(1) After section 87J of the Principal Act the following sections are inserted in Division 2 of Part IV:
Officer electing to be retired
"87JA.(1) This section applies to an officer to whom this Division applies and who, after the commencement of this section, elects to be retired from the employment because of which he or she is an officer to whom this Division applies.
"(2) Unless the officer resigned from the Service before the election is accepted by the employing authority, he or she is taken, for the purposes of this Act, to have resigned from the Service when the election is accepted.
"(3) Despite subsection 87K(1), the officer does not become a person to whom Division 3 applies by being engaged in eligible public employment on the day after the day on which he or she resigned from the Service.
Excess officer failing to resign from employment
"87JB.(1) This section applies to an officer to whom this Division applies and who:
(a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is an officer to whom this Division applies; and
(b) is notified, as prescribed, by the employing authority of the effect in relation to the officer of the operation of this section; and
(c) does not, before the end of 60 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, resign from that employment.
"(2) Unless the officer resigned from the Service before the end of the period referred to in paragraph (1)(c), he or she is taken, for the purposes of this Act, to have resigned from the Service at the end of that period.
"(3) Despite subsection 87K(1), the officer does not become a person to whom Division 3 applies by being engaged in eligible public employment on the day after the day on which he or she resigned from the Service.
"(4) If the officer ceases to be excess in relation to his or her employment as mentioned in paragraph (1)(a) and continues in that employment, the preceding provisions of this section do not apply, and are taken never to have applied, to the officer because of his or her having so been excess.".
(2) After section 87JB of the Principal Act the following section is inserted in Division 2 of Part IV:
Excess officer resigning from employment
"87JC.(1) This section applies to an officer to whom this Division applies and who:
(a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is an officer to whom this Division applies; and
(b) is notified, as prescribed, by the employing authority of the effect in relation to the officer of the operation of this section; and
(c) before the end of 60 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, resigned from that employment.
"(2) Any act or thing validly done by the employing authority in relation to the employment referred to in paragraph (1)(a) in respect of the compulsory or voluntary retirement or retrenchment, or possible compulsory or voluntary retirement or retrenchment, of the officer from that employment is to be treated as if it had been the corresponding act or thing done by the relevant Secretary in respect of the officer's employment in the Service and had been validly done under the Public Service Redundancy Award.
"(3) Without limiting the generality of subsection (2), the retention period provided for by the Public Service Redundancy Award in relation to the officer's employment in the Service is taken to have begun on the date on which he or she became excess as mentioned in paragraph (1)(a).".
Persons to whom Division applies
5. Section 87K of the Principal Act is amended by omitting from subsection (12) "Where" and substituting "Subject to subsections 87SA(2) and 87SB(2), where".
Right to re-enter Service by way of transfer or promotion
6. Section 87M of the Principal Act is amended:
(a) by omitting from subsection (7) "subject to subsection (8)" and substituting "subject to subsections (8) and (8A)";
(b) by inserting after subsection (8) the following subsection:
"(8A) Subsection (7) does not apply to a person who ceased to be a person to whom this Division applies because of subsection 87SA(2).".
Application for re-appointment to Service
7. Section 87N of the Principal Act is amended:
(a) by adding at the end of paragraph (3)(a) "or";
(b) by adding at the end of subsection (3) the following word and paragraph:
"; or (d) if the person has ceased to be a person to whom this Division applies because of subsection 87SA(2) or 87SB(2).";
(c) by inserting after subsection (4) the following subsection:
"(4A) If:
(a) a person to whom this Division applies has made an application under subsection (1); and
(b) the person ceases to be a person to whom this Division applies because of subsection 87SA(2);
the application lapses, and this section ceases to apply to and in relation to the person, upon his or her so ceasing to be a person to whom this Division applies.".
8.(1) After section 87S of the Principal Act the following sections are inserted in Division 3 of Part IV:
Person electing to be retired
"87SA.(1) This section applies to a person to whom this Division applies and who, after the commencement of this section, elects to be retired from the employment because of which he or she is a person to whom this Division applies.
"(2) Unless the person resigned from the employment before the election is accepted by the employing authority, he or she ceases to be a person to whom this Division applies when the election is accepted.
"(3) If, immediately after the employment ceases, the person is engaging in any other employment, he or she does not, by engaging in that other employment, continue to be a person to whom this Division applies.
Excess employee failing to apply for re-appointment
"87SB.(1) This section applies to a person to whom this Division applies and who:
(a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is a person to whom this Division applies; and
(b) is notified, as prescribed, by the employing authority of the effect in relation to the person of the operation of this section; and
(c) does not, before the end of 28 days after the date on which he
or she so became excess or the date on which he or she was so notified, whichever is the later date, apply to the Commissioner for re-appointment to the Service.
"(2) Unless the person ceased to be a person to whom this Division applies before the end of the period referred to in paragraph (1)(c), he or she ceases at the end of that period to be a person to whom this Division applies.
"(3) If the person ceases to be excess in relation to his or her employment as mentioned in paragraph (1)(a) and continues in that employment, the preceding provisions of this section do not apply, and are taken never to have applied, to the person because of his or her having so been excess.".
(2) After section 87SB of the Principal Act the following section is inserted in Division 3 of Part IV:
Excess employee applying for re-appointment to Service
"87SC.(1) This section applies to a person to whom this Division applies and who:
(a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is a person to whom this Division applies; and
(b) is notified, as prescribed, by the employing authority of the effect in relation to the person of the operation of this section; and
(c) applies to the Commissioner, before the end of 28 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, for re-appointment to the Service; and
(d) is so re-appointed.
"(2) Any act or thing validly done by the employing authority in relation to the employment referred to in paragraph (1)(a) in respect of the compulsory or voluntary retirement or retrenchment, or possible compulsory or voluntary retirement or retrenchment, of the person from that employment is to be treated as if it had been the corresponding act or thing done by the relevant Secretary in respect of the person's employment in the Service and had been validly done under the Public Service Redundancy Award.
"(3) Without limiting the generality of subsection (2):
(a) the retention period provided for by the Public Service Redundancy Award in relation to the person's employment in the Service is taken to have begun on the date on which he or she became excess as mentioned in paragraph (1)(a); and
(b) if the employing authority in relation to the employment referred to in paragraph (1)(a) makes a valid decision to pay to the person
an amount in lieu of his or her continuing in that employment for the relevant retention period applicable in relation to that employment, then, upon the making of the decision, the retention period provided for by the Public Service Redundancy Award in relation to the person's employment in the Service is taken to have expired.".
9.(1) After section 87U of the Principal Act the following sections are inserted in Division 4 of Part IV:
Officer electing to be retired
"87UA.(1) This section applies to an officer to whom the repealed Officers' Rights Declaration Act 1928 applies because of section 87TA and who, after the commencement of this section, elects to be retired from the employment because of which he or she is an officer to whom that repealed Act applies.
"(2) Unless the officer resigned from the Service before the election is accepted by the employing authority, he or she is taken, for the purposes of this Act, to have resigned from the Service when the election is accepted.
"(3) If, before the election is accepted, the officer elects that the provisions of that repealed Act are to cease to apply to him or her, section 87SA applies to the officer as if he or she were a person to whom Division 3 applied when the election was made.
Excess officer failing to apply for appointment to an office in the Service
"87UB.(1) This section applies to an officer to whom the repealed Officers' Rights Declaration Act 1928 applies because of section 87TA and who:
(a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is an officer to whom that repealed Act applies; and
(b) is notified, as prescribed, by the employing authority of the effect in relation to the officer of the operation of this section; and
(c) does not, before the end of 60 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, apply to the Commissioner to be appointed to an office in the Service.
"(2) Unless the officer resigned from the Service or made an election referred to in subsection (3) before the end of the period referred to in paragraph (1)(c), he or she is taken, for the purposes of this Act, to have resigned from the Service at the end of that period.
"(3) If, within the period referred to in paragraph (1)(c), the officer elects that the repealed Officers' Rights Declaration Act 1928 is to cease to apply to him or her, subsection 87SB(1) has effect as if he or she had been a person to whom Division 3 applied when he or she became excess in relation to his or her employment as mentioned in paragraph (1)(a).
"(4) If the officer ceases to be excess in relation to his or her employment as mentioned in paragraph (1)(a) and continues in that employment, the preceding provisions of this section do not apply, and are taken never to have applied, to the officer because of his or her having so been excess.".
(2) After section 87UB of the Principal Act the following section is inserted in Division 4 of Part IV:
Excess officer applying for appointment to an office in the Service
"87UC. (1) This section applies to an officer to whom the repealed Officers' Rights Declaration Act 1928 applies and who:
(a) after the commencement of this section, becomes excess in relation to the employment because of which he or she is an officer to whom that repealed Act applies; and
(b) is notified, as prescribed, by the employing authority of the effect in relation to the officer of the operation of this section; and
(c) applies to the Commissioner, before the end of 60 days after the date on which he or she so became excess or the date on which he or she was so notified, whichever is the later date, to be appointed to an office in the Service; and
(d) is so appointed.
"(2) If, within the period referred to in paragraph (1)(c), the officer elects that the repealed Officers' Rights Declaration Act 1928 is to cease to apply to him or her, subsection 87SC(1) has effect as if he or she had been a person to whom Division 3 applied when he or she became excess in relation to his or her employment as mentioned in paragraph (1)(a).
"(3) If the office to which the officer is appointed is abolished within 14 days after the officer is appointed to that office:
(a) any act or thing validly done by the employing authority in relation to the employment referred to in paragraph (1)(a) in respect of the compulsory or voluntary retirement or retrenchment, or possible compulsory or voluntary retirement or retrenchment, of the officer from that employment is to be treated as if it had been the corresponding act or thing done by the relevant Secretary in respect of the officer's employment in the Service and had been validly done under the Public Service Redundancy Award; and
(b) without limiting the generality of paragraph (a):
(i) the retention period provided for by the Public Service Redundancy Award in relation to the officer's employment in the Service is taken to have begun on the date on which he or she became excess as mentioned in paragraph (1)(a); and
(ii) if the employing authority in relation to the employment referred to in paragraph (1)(a) makes a valid decision to pay to the officer an amount in lieu of his or her continuing in that employment for the relevant retention period applicable in relation to that employment, then, upon the making of the decision, the retention period provided for by the Public Service Redundancy Award in relation to the officer's employment in the Service is taken to have expired.".
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NOTE
1. No. 21, 1922, as amended. For previous amendments, see No. 46, 1924; No. 41, 1928; No. 19, 1930; No. 21, 1931; No. 72, 1932; No. 38, 1933; Nos. 45 and 46, 1934; No. 72, 1936; No. 41, 1937; No. 72, 1939; No. 88, 1940; No. 5, 1941; No. 19, 1943; Nos. 11, 29 and 43, 1945; No. 16, 1946; Nos. 1, 38, 52 and 84, 1947; Nos. 35 and 75, 1948; Nos. 51 and 80, 1950; Nos. 46 and 48, 1951; No. 22, 1953; No. 63, 1954; No. 18, 1955; Nos. 13 and 39, 1957; No. 1 1, 1958; Nos. 17 and 105, 1960; Nos. 2 and 75, 1964; Nos. 47 and 85, 1966; Nos. 2 and 115, 1967; Nos. 59, 114 and 120, 1968; No. 6, 1972; Nos. 21, 71 and 209, 1973; No. 59, 1974; No. 40, 1975; Nos. 193 and 194, 1976; Nos. 6 and 80, 1977; Nos. 36 and 170, 1978; Nos. 52 and 155, 1979; No. 177, 1980; No. 61, 1981; Nos. 26 and 80, 1982; No. Ill, 1982 (as amended by No. 39, 1983); Nos. 39, 56 and 92, 1983; Nos. 63 and 165, 1984; Nos. 65, 166 and 187, 1985; Nos. 28, 29, 76 and 153, 1986; Nos. 92, 99 and 141, 1987; Nos. 75, 87, 99 and 109, 1988; Nos. 150 and 153, 1989; and Nos. 2, 73 and 122, 1991.
[Minister's second reading speech made in—
Senate on 13 November 1991
House of Representatives on 27 November 1991]