Parliamentary Service (Consequential and Transitional) Determination 1999/3

We, MARGARET REID, President of the Senate, and NEIL ANDREW, Speaker of the House of Representatives, make the following Determination under Part 9 of the Parliamentary Service Act 1999.

Dated 6th December 1999

MARGARET REID NEIL ANDREW

Parliamentary Service (Consequential and
Transitional) Determination 1999/3

Determination      

made under the

Parliamentary Service Act 1999

Part 1 Preliminary

1.1 Name of Determination

  This Determination is the Parliamentary Service (Consequential and Transitional) Determination 1999/3.

1.2 Commencement

  This Determination commences on the commencement of the Parliamentary Service Act 1999.

1.3                     Definitions

  In this Determination:

Act means the Parliamentary Service Act 1999.

commencing time means the time at which the Act commences, or is taken to commence, under section 2 of the Act.

eligible public employment means eligible public employment within the meaning of Part IV of the old Act.

Note   Eligible Commonwealth employment was defined in subsection 87 (1) of the old Act to mean:

(a) employment as the holder of a Commonwealth office; or

(b) employment by a Commonwealth authority.

Commonwealth office and Commonwealth authority were also defined in subsection 87 (1).

Joint Selection Committee has the meaning given in section 3 of the Merit Protection Act.

Merit Protection Act  has the meaning given in section 4 of the PECTA Act.

old Act means the Public Service Act 1922.

old Regulations means the Public Service Regulations 1935.

PECTA Act means the Public Employment (Consequential and Transitional) Amendment Act 1999.

PO Regulations means the Public Service (Parliamentary Officers) Regulations 1991.

public authority means:

(a) a person or body, employment with which creates eligible public employment; or

(b) an office, the holding of which creates eligible public employment.

redundancy benefit:

(a) means a severance payment, or similar payment, made to an employee on termination of the employee’s employment in a Department, an Agency or with a Commonwealth employer; and

(b) includes:

(i) any payment made to an employee as a result of the shortening of a retention period; and

(ii)               any payment made to an SES employee under section 37 of the Act or section 76R of the Public Service Act 1922.

1.4                     No Disadvantage or Liability

Where, as a result of clause 1.2, a provision of this Determination takes effect before the date on which this Determination is notified in the Gazette and, as a result, the provision would have the effect that:

(a)        the rights of a person (other than the Commonwealth) as at that date would be affected so as to disadvantage that person; or

(b)       liabilities be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before the date of notification,

the provision is to be interpreted so as not to have that effect.

Note This clause reflects the operation of subsection 48(2) of the Acts Interpretation Act 1901 as applied to this Determination by section 46A of that Act.

Part 2 Transitional provisions relating to the application of the Merit Protection Act

2.1 Definition for Part 2

  In this Part:

Agency means the Merit Protection and Review Agency established under section 5 of the Merit Protection Act.

2.2 Continued application of the Merit Protection Act for certain purposes

 (1) This Part provides for the Merit Protection Act to continue in force after the commencing time for certain purposes.

 (2) However, the functions of the Merit Protection and Review Agency under the Merit Protection Act as it is continued in force are to be performed by:

 (a) the Merit Protection Commissioner appointed, or taken to be appointed, under the new Act; or

(b)        a delegate of the Merit Protection Commissioner.

 (3) If a provision of this Part (other than subclause (2)) mentions the Merit Protection Commissioner, the reference includes a reference to a delegate of the Merit Protection Commissioner.

(4)     The Merit Protection (Australian Government Employees) Regulations are continued in force to the extent necessary for the continued operation of the Merit Protection Act under this Part.

(5)     The continued application of the Merit Protection Act under this Part in particular circumstances does not, after the commencing time, give a right, or impose an obligation or duty, if a corresponding right, obligation or duty was not given or imposed in like circumstances before the commencing time.

2.3                     Review of Decisions

(1)      The Merit Protection Act remains in force to allow review of any action (including an omission or failure to act) under the old Act, the Old Regulations or the PO Regulations initiated before the commencing time, to be completed after the commencing time.

(2)      This clause does not limit the operation of any other clause of this Part.

2.4 Disciplinary Appeal Committee matters

  The Merit Protection Act continues in force to allow for the determination of any appeals, under Division 6 of Part III of the old Act, in relation to disciplinary matters to which the old Act continues to apply.

2.5 Re-appointment Review Committee matters

  The Merit Protection Act continues in force to allow for the determination by a Re-appointment Review Committee of any application referred to the committee under Division 3 of Part IV of the old Act or under this Determination.

2.6 Re-integration Assessment Committee matters (application for determination made before commencing time)

 (1) This clause (2) applies if, before the commencing time a person employed under the Members of Parliament (Staff) Act 1984 (the MoPS Act) applied for a determination to be made under section 17 or 24 of the MoPS Act.

 (2) Despite the repeal of sections 17 and 24 of the MoPS Act by Schedule 1 to the PECTA Act:

 (a) the determination may be made as if the MoPS Act were still in force; and

 (b) the Merit Protection Act continues in force to allow the determination of the application by a Re-integration Assessment Committee.

 (3) A determination made in respect of the application takes effect, or is taken to have taken effect, when the employment to which it relates was terminated under section 16 or 23 of the MoPS Act.

 (4) Section 76 of the Act has effect in accordance with the determination.

Note   See subsection 83(2) of the Act and paragraph 14 (3) (a) of the PECTA Act.

2.7 Re-integration Assessment Committee matters (no application for determination made before commencing time)

 (1) This clause applies if, before the commencing time:

 (a) a person’s employment under the MoPS Act was terminated under section 16 or 23 of the MoPS Act; and

 (b) the person had not applied for a determination to be made under section 17 or 24 of the MoPS Act.

 (2) Despite the repeal of sections 17 and 24 of the MoPS Act by Schedule 1 to the PECTA Act:

 (a) the person may apply for a determination to be made; and

 (b) the determination may be made as if the MoPS Act were still in force; and

 (c) the Merit Protection Act continues in force to allow the determination of the application by a Re-integration Assessment Committee.

 (3) However, the application must be made to the Merit Protection Commissioner:

 (a) before the end of 30 days after the employment is terminated; or

 (b) if the Merit Protection Commissioner allows a longer period, before the end of the longer period allowed.

 (4) If the person applies for a determination, the determination takes effect, or is taken to have taken effect, when the employment to which it relates was terminated under section 16 or 23 of the MoPS Act.

 (5) Section 76 of the Act has effect in accordance with the determination.

Note   See subsection 83(2) of the Act and paragraph 14 (3) (a) of the PECTA Act.

2.8 Other appeals

  The Merit Protection Act continues in force until 5 December 2000 to allow for the determination of an appeal mentioned in any of the following provisions of the Merit Protection Act, made before or after the commencing time:

 (a) section 15 (certain promotion appeals);

 (b) section 21 (certain disciplinary appeals);

 (c) section 26A (certain redeployment or retirement appeals).

2.9 Matters before other committees

 (1) Subclause (2) applies if, before the commencing time:

 (a) a committee was established under section 35A of the Merit Protection Act to perform stated functions; and

 (b) the committee had not fully performed the functions.

 (2) The Merit Protection Act continues in force to allow the committee to continue in existence and perform the functions.

 (3) Subclause (4) applies if, before the commencing time:

 (a) a request was made to the Agency under section 35A of the Merit Protection Act to perform stated functions; and

 (b) a committee had not been established in relation to the request; and

 (c) the Agency had not refused the request.

 (4) The Merit Protection Act continues in force to allow for:

 (a) the consideration of the request by the Merit Protection Commissioner; and

 (b) if the request is approved, the performance of the functions by the Merit Protection Commissioner.

2.10 Review of decisions under Division 3 of Part II of the Merit Protection Act (application made before commencing time)

 (1) This clause applies if, before the commencing time:

 (a) an application for review of a decision under Division 3 of Part II of the Merit Protection Act was made under section 39 of the Merit Protection Act; and

 (b) the application had not been determined.

 (2) The Merit Protection Act continues in force to allow for the review of the decision under Division 3 of Part II of the Merit Protection Act by the Merit Protection Commissioner.

2.11 Review of decisions under Division 3 of Part II of the Merit Protection Act (application authorised after commencing time)

 (1) This clause applies if, under this Determination, an application for review of a decision under Division 3 of Part II of the Merit Protection Act may be made under section 39 of the Merit Protection Act after the commencing time.

 (2) The Merit Protection Act continues in force to allow for the review of the decision under Division 3 of Part II of the Merit Protection Act by the Merit Protection Commissioner.

2.12 Review of other decisions under Division 3 of Part II of the Merit Protection Act

 (1) This clause applies if:

 (a) an application for review of a decision under Division 3 of Part II of the Merit Protection Act may be made under section 39 of the Merit Protection Act; and

 (b) the application is authorised in a way that is not described in clause 2.10 or 2.11.

Note   Review under the Merit Protection Act may be authorised otherwise than  under the Act or this Determination.

 (2) The Merit Protection Act continues in force for the review of the decision under Division 3 of Part II of the Merit Protection Act by the Merit Protection Commissioner, until the end of 4 December 2000.

2.13 Grievances (old Regulations)

 (1) Subclause (2) applies if, before the commencing time:

 (a) an application for investigation of an action was made by an officer aggrieved by the action under regulation 83 of the old Regulations; and

 (b) an application was made under regulation 84 of the old Regulations for the investigation of that action because the officer remained aggrieved by the action; and

 (c) the investigation for the purposes of regulation 84 had not been completed.

 (2) The Merit Protection Act continues in force to allow for:

 (a) the completion of the investigation, or the making of a decision not to investigate further, by the Merit Protection Commissioner; and

 (b) the making of a report by the Merit Protection Commissioner under Division 4 of Part II of the Merit Protection Act.

 (3) Subclause (4) applies if, before the commencing time:

 (a) an application for investigation of an action was made by an officer aggrieved by the action under regulation 83 of the old Regulations; and

 (b) an application had not been made under regulation 84 of the old Regulations for the investigation of that action because the officer remained aggrieved by the action.

 (4) The old Regulations, and the Merit Protection Act, continue in force to allow for:

 (a) the making of an application under regulation 84; and

 (b) an investigation for the purposes of regulation 84, or the making of a decision not to investigate, by the Merit Protection Commissioner; and

 (c) the making of a report by the Merit Protection Commissioner under Division 4 of Part II of the Merit Protection Act.

2.14 Grievances (Merit Protection Act)

 (1) This clause applies if, before the commencing time:

 (a) an application was made under section 50 of the Merit Protection Act for investigation of an action; and

 (b) the investigation had not been completed.

 (2) The Merit Protection Act continues in force to allow for:

 (a) the completion of the investigation, or the making of a decision not to investigate further, by the Merit Protection Commissioner; and

 (b) the making of a report by the Merit Protection Commissioner under Division 4 of Part II of the Merit Protection Act.

2.15 Other grievances

 (1) This clause applies if:

 (a) an application for review in accordance with Division 4 of Part II of the Merit Protection Act may be made; and

 (b) the application is authorised in a way that is not described in clause 2.13 or 2.14.

Note   Review under the Merit Protection Act may be authorised otherwise than under the Merit Protection Act or this Determination.

 (2) The Merit Protection Act continues in force to allow for the review in accordance with Division 4 of Part II of the Merit Protection Act by the Merit Protection Commissioner, until the end of 4 December 2000.

2.16 Inquiries

 (1) Subclause (2) applies if, before the commencing time:

 (a) an inquiry was commenced under section 56 of the Merit Protection Act; and

 (b) the inquiry had not been completed.

 (2) The Merit Protection Act continues in force to allow for the conduct and completion of the inquiry by the Merit Protection Commissioner.

 (3) Subclause (4) applies if, before the commencing time:

 (a) a request was made to the Department under section 56 of the Merit Protection Act to conduct an inquiry; and

 (b) the inquiry had not commenced; and

 (c) the Department had not refused the request.

 (4) The Merit Protection Act continues in force to allow for:

 (a) the consideration of the request by the Merit Protection Commissioner; and

 (b) if the request is approved, the conduct of the inquiry by the Merit Protection Commissioner.

2.17 Provision of advice on grievances and appeals

 (1) The Merit Protection Act continues in force until the end of 4 December 2000 to allow the Merit Protection Commissioner to provide advice that was requested under subsection 57 (1) of the Merit Protection Act before the commencing time.

 (2) The Merit Protection Act continues in force until the end of 4 December 2000 to allow for:

 (a) the making of requests to the Merit Protection Commissioner for advice under subsection 57 (1) of the Merit Protection Act after the commencing time; and

 (b) the provision of the advice.

2.18 Performance of functions on request

 (1) Subclause (2) applies if, before the commencing time:

 (a) functions were being performed in response to a request made to the Department under section 57A of the Merit Protection Act; and

 (b) the functions had not been fully performed.

 (2) The Merit Protection Act continues in force to allow for the performance of the functions by the Merit Protection Commissioner.

 (3) Subclause (4) applies if, before the commencing time:

 (a) a request was made to the Department under section 57A of the Merit Protection Act to perform stated functions; and

 (b) the functions had not been performed; and

 (c) the Department had not refused the request.

 (4) The Merit Protection Act continues in force to allow for:

 (a) the consideration of the request by the Merit Protection Commissioner; and

 (b) if the request is approved, the performance of the functions by the Merit Protection Commissioner.

2.19 Merit Protection Commissioner

 (1) This  clause applies to the person appointed as the Merit Protection Commissioner under the Act.

 (2) Until a determination is made under section 51 of the Act, the terms and conditions of the appointment are those applying to the appointment of the Public Service Merit Protection Commissioner under the Merit Protection Act.

2.20 Final annual report

 (1) The Merit Protection Act continues in force for the preparation of a report on the Department’s operations in relation to the Departments continued in existence by subsection 74(1) of the Act and the officers and employees from time to time in the Departments during the period starting on 1 July 1999 and ending at the commencing time.

 (2) The information required by subsection 83 (3) of the Merit Protection Act to be included in a report as at 30 June in a year, is to be included in the report as at the commencing time.

 (3) The report must be given to the Commissioner no later than the time the Merit Protection Commissioner gives the first report under section 49 of the Act to the Commissioner.

Part 3 Transitional provisions relating to the application of the Public Service Act 1922

3.1 Employment opportunities advertised before commencing time

 (1) This clause applies to an employment opportunity that was notified in the Gazette before the commencing time.

 (2) The Presiding Officers’ Determinations made under section 71 of the Act do not apply for the purposes of selection processes carried out in relation to the employment opportunity within 12 months after it was notified in the Gazette.

 (3) A notification under subsection 33A (1) of the old Act that applied in respect of the employment opportunity continues to apply for the purposes of the employment opportunity until the end of 12 months after it was notified in the Gazette.

3.2 Persons on probation at commencing time

 (1) This clause applies to a person who immediately before the commencing time, was an officer on probation under the old Act in a Department continued in existence under section 74 of the Act.

 (2) The old Act, the old Regulations and any other applicable instruments under the old Act continue in force to allow the person’s appointment to be confirmed or terminated.

 (3) Despite section 76 of the Act, the person is not engaged as a Parliamentary Service employee for the period in which the person’s probationary appointment under the old Act continues.

 (4) However, during that period, the new Act applies to the person:

 (a) as if the person were engaged as an ongoing Parliamentary Service employee under the Act; and

 (b) to the extent that the application of the new Act to the person is not inconsistent with the continued application of the old Act under subclause (2).

 (5) At the end of that period:

 (a) if the appointment is confirmed under the old Act, the person is taken to be engaged as an ongoing Parliamentary Service employee under the new Act; and

 (b) if the appointment is terminated under the old Act, the person is not engaged as a Parliamentary Service employee under the new Act.

3.3 Terminations of Employment

(1)     This clause applies if, at the commencing time, termination of the employment of an officer or employee in a Department referred to in section 74 of the Act was approved but the termination was not completed.

(2)     The termination is to be completed under the old Act, the old Regulations and the PO Regulations as applicable.

3.4                     Temporary Performance of Duties

A person mentioned in subsection 76(1) or (2) of the Act who, at the commencing time, has been directed to perform temporarily the duties of another office, continues after the commencing time to perform the same duties according to the terms of the direction.

3.5                     Secretaries

 (1) This clause applies to a person who is taken, under subsection
75 of the Act, to be appointed as a Secretary under the Act.

 (2) Until a determination is made under section 63 of the Act, the appointment is taken to be subject to the terms and conditions applying to the person’s appointment under the old Act immediately before the commencing time (including the terms and conditions provided for under Remuneration Tribunal Determination 1999/04).

3.6 Acting Secretaries

 (1) This clause applies if, at the commencing time, a person holds under the old Act an appointment to act as the Secretary of a Department mentioned in section 74 of the Act.

 (2) The person is taken to be appointed under section 64 of the Act on the terms that applied to the appointment, immediately before the commencing time, under the old Act.

3.7 Parliamentary Service Commissioner

(1)     This clause applies to the person who is appointed as Parliamentary Service Commissioner under the Act.

(2)     Until a determination is made under section 44 of the Act, the appointment is taken to be subject to the terms and conditions applying to the appointment of the Public Service Commissioner under the old Act immediately before the commencing time (including those provided for under Remuneration Tribunal Determination 1999/04).

3.8 Classification Rules and Classifications

(1)                     This clause operates until Classification Rules are made under the Act.

Note Section 23 of the Act enables the Presiding Officers to make rules about classifications of Parliamentary Service employees.

(2)      Where, immediately before the commencing time:

(a)   a classification was:

(i)        a classification mentioned in a Certified Agreement for a Department referred to in section 74 of the Act as a classification of officers or employees in the Department; or

(ii)     an approved classification in relation to officers or employees in a Department referred to in section 74 of the Act; or

(b)   a classification of an officer or employee in a Department referred to in section 74 of the Act,

the classification is to be taken after the commencing time to be a classification in accordance with Classification Rules made by the Presiding Officers under the Act.

(3)     A reference in a Determination made under section 71 of the Act to a classification mentioned in a group of classifications set out in the Classification Rules is to be read as a reference to a classification of a level corresponding to a classification in the same group set out in Schedule 1 to the Classification Rules under the Public Service Act 1999.

Part 4 Transitional Provisions Relating to Delegations

4.1                     Delegations

 (1) This clause applies if:

 (a) a power or function was delegated to a person, before the commencing time, under:

 (i) subsection 9 (7A) or 26 (1) or any other provision of the old Act; or

 (ii) regulation 160 or any other provision of the old Regulations or the PO Regulations; and

 (b) the delegation was in force immediately before the commencing time.

 (2) If the delegation was expressed to have effect for a specified period, it continues in force:

 (a) with respect to any exercise of the power, or performance of the function, by the person under the old Act the old Regulations or the PO Regulations that:

 (i) was started, but not completed, before the commencing time; and

 (ii) relates to a provision of the old Act or the old Regulations or the PO Regulations that continues to apply, or have effect, because of a provision of this Determination; and

 (b) until the end of the period.

 (3) If the delegation was not expressed to have effect for a specified period, it continues in force with respect to any exercise of the power, or performance of the function, by the person under the old Act, the old Regulations or the PO Regulations that:

 (a) was started, but not completed, before the commencing time; and

 (b) relates to a provision of the old Act, the old Regulations or the PO Regulations that continues to apply, or have effect, because of a provision of this Determination.

4.2 Directions related to delegations

 (1) This clause applies if:

 (a) a person was given a direction under subsection 26 (3A) or any other provision of the old Act with respect to the exercise of a power, or the performance of a function; and

 (b) the direction was in force immediately before the commencing time.

 (2) The direction continues in force with respect to any exercise of the power, or performance of the function, by the person under the old Act, the old Regulations or the PO Regulations that:

 (a) was started, but not completed, before the commencing time; and

 (b) relates to a provision of the old Act, the old Regulations or the PO Regulations that continues to apply, or have effect, because of a provision of this Determination.

Part 5 Transitional provisions relating to rights under Part IV of the old Act

Division 1 First-tier persons

Subdivision 1 General rights

5.1.1 Mobility rights of first-tier persons

 (1) Section 77 of the Act sets out rights of a first-tier person, under Division 2 of Part IV of the old Act, after the commencing time.

 (2) This Determination sets out additional rights.

 (3) A first-tier person has no other rights under Division 2 of Part IV after the commencing time.

Subdivision 2 End of first-tier status

5.1.2 Ceasing to be a first-tier person

 (1) A first-tier person who:

 (a) has given notice in writing to the relevant Secretary in accordance with paragraph 77 (3) (a) of the Act; and

 (b) resumes duties on the end of the first working day after the end of the transitional period;

  ceases to be a first-tier person at the end of the transitional period.

 (2) A first-tier person who has been granted leave:

 (a) for the purposes of paragraph 77 (3) (b) of the Act; and

 (b) for a period that consists of, or includes, the first working day after the end of the transitional period;

  ceases to be a first-tier person at the start of that first working day.

 (3) A first-tier person who is taken to have resigned from the Parliamentary Service because neither of paragraphs 77(3) (a) and (b) of the Act has been complied with ceases to be a first-tier person at the end of the transitional period.

 (4) A first-tier person who is taken to have resigned from the Parliamentary Service in accordance with subsection 77 (4) of the Act ceases to be a first-tier person at the end of the first working day after the end of the transitional period.

 (5) A first-tier person who is taken to have resigned from the Parliamentary Service in accordance with subsection 77 (5) of the Act ceases to be a first-tier person at the time described in the subsection.

 (6) If:

 (a) the transition period for a first-tier person is described in subsection 77 (6) of the Act; and

 (b) the person resigns from the Parliamentary Service, or is taken to have resigned, before the end of that transition period;

  the person ceases to be a first-tier person when the resignation takes effect.

 (7) A first-tier person who:

 (a) has given notice in writing to the relevant Secretary, stating that the person intends to resume duties as a Parliamentary Service employee before the end of the transitional period; and

 (b) resumes duties before the end of the transitional period;

  ceases to be a first-tier person when the person resumes duties.

Note   See clause 5.1.5.

 (8) A first-tier person who resigns from the Parliamentary Service in a way that is not described in section 77 of the Act ceases to be a first-tier person when the resignation takes effect.

 (9) A first-tier person who retires from the Parliamentary Service ceases to be a first-tier person when the retirement takes effect.

Subdivision 3 Leave entitlements

5.1.3 Leave

  A first-tier person retains all unused recreation leave credits and sick leave credits that the person accrued in the period:

 (a) starting when the person started the employment that gave him or her the status of first-tier person; and

 (b) ending immediately before the commencing time.

Subdivision 4 Return to Parliamentary Service while first-tier person

5.1.4 Transitional period

  For the purposes of paragraph (a) of the definition of transitional period in section 72 of the Act, the period of 3 years is prescribed.

Note 1   In accordance with the definition of transitional period, the transitional period starts at the commencing time.

Note 2   While the 3 year transitional period is in effect, first-tier persons have the right to resume duties in the Parliamentary Service, and to apply for employment opportunities advertised in the Gazette.

5.1.5 Notice of return

 (1) A first-tier person may, at any time while the person is a first-tier person, give notice in writing, stating that the person intends to resume duties as a Parliamentary Service employee:

 (a) before the end of the transitional period; or

 (b) on the first working day after the end of the transitional period.

 (2) The notice must be given to:

 (a) the Secretary of the person’s corresponding new Department for the purposes of section 76 of the Act; or

 (b) if the person’s duties are no longer performed in the Department that was the corresponding new Department — the Secretary of the Department where the duties are currently performed.

 (3) Subject to subclause (4), the first-tier person is entitled to resume duties in the appropriate Department described in subclause (2).

 (4) The first-tier person is not entitled to resume duties in the appropriate Agency if the person:

 (a) has ceased the employment that gave him or her the status of first-tier person because the person has reached the maximum age for that employment; or

 (b) is to cease the employment that gave him or her the status of first-tier person because the person will reach the maximum age for that employment.

Note   If a maximum employment age applies to a type of employment, it is likely to be set out in the legislation creating the type of employment.

 (5) The first-tier person is entitled to resume duties at the person’s corresponding classification for the purposes of section 76 of the Act.

 (6) The Secretary must make arrangements for:

 (a) the person’s return to the Agency; and

 (b) the person’s resumption of duties; and

 (c) the acceptance of all of the person’s unused accrued recreation credits and sick leave credits.

Division 2 Second-tier persons

Subdivision 1 General rights

5.2.1 Mobility rights of second-tier persons

 (1) Section 78 of the Act sets out rights of a second-tier person after the commencing time.

 (2) This Determination set out additional rights.

 (3) A second-tier person has no other rights relating specifically to his or her status as a second-tier person after the commencing time.

 (4) However, if:

 (a) the transition period for a first-tier person is described in subsection 77 (6) of the Act; and

 (b) the person resigns from the Parliamentary Service, or is taken to have resigned, before the end of that transition period;

  the person does not become a second-tier person.

Subdivision 2 End of second-tier status

5.2.2 Ceasing to be a second-tier person

 (1) A second-tier person who resumes duties in the Parliamentary Service ceases to be a second-tier person when the person resumes duties.

 (2) A second-tier person who resigns from his or her eligible public employment ceases to be a second-tier person when the resignation takes effect.

 (3) A second-tier person who retires from his or her eligible public employment ceases to be a second-tier person when the retirement takes effect.

 (4) If:

 (a) a second-tier person’s eligible public employment is related to the Commonwealth having a controlling interest in a body or thing; and

 (b) the Commonwealth ceases to have the controlling interest;

  the person ceases to be a second-tier person when the Commonwealth ceases to have the controlling interest.

 (5) If:

 (a) a second-tier person’s eligible public employment is related to the ownership of a body or thing; and

 (b) the Commonwealth sells or otherwise disposes of the body or thing;

  the person ceases to be a second-tier person when the Commonwealth sells or otherwise disposes of the body or thing.

Subdivision 3 Return to Parliamentary Service while second-tier person in certain circumstances

5.2.3 Engagement as Parliamentary Service employee

  For the purposes of subsection 78 (1) of the Act, a second-tier person who wishes to be engaged as a Parliamentary Service employee must:

 (a) apply for engagement within the time limit mentioned in clause 5.2.4; and

 (b) be entitled to apply for engagement under clause 5.2.5; and

 (c) be entitled to be considered for engagement under clause 5.2.6; and

 (d) apply for engagement in accordance with clause 5.2.7.

5.2.4 Time limit for engagement

  For the purposes of subsection 78 (1) of the Act, the period of 3 years, starting at the commencing time, is prescribed as the time limit within which a second-tier person is entitled to be engaged as a Parliamentary Service employee in accordance with this Subdivision.

5.2.5 Entitlement to apply for engagement

  A second-tier person is entitled to apply for engagement as a Parliamentary Service employee only if the person has been in the same eligible public employment at all times in the period described in 5.2.4.

5.2.6 Entitlement to be considered for engagement

 (1) A second-tier person is entitled to be considered for engagement as a Parliamentary Service employee if the person’s employment in a public office is to be, or has been, terminated:

 (a) otherwise than on the ground of the person’s invalidity; and

 (b) before the expiration of the term for which the person was appointed.

 (2) A second-tier person is entitled to be considered for engagement as a Parliamentary Service employee if the person’s employment in a public office has been terminated upon the expiration of the term for which the person was appointed, and the person has not been:

 (a) re-appointed, or offered re-appointment, to the office;

 (b) appointed, or offered appointment, to another public office; or

 (c) employed, or offered employment, by a public authority.

 (3) A second-tier person is entitled to be considered for engagement as a Parliamentary Service employee if the person’s employment by a public authority is to be, or has been, terminated because the person is excess to the authority’s requirements.

 (4) A second-tier person is entitled to be considered for engagement as a Parliamentary Service employee if the person’s employment by a public authority is to be, or has been, terminated otherwise than on the ground of the person’s invalidity or by reason of the person’s resignation.

 (5) A second-tier person is entitled to be considered for engagement as a Parliamentary Service employee if a function previously carried out by the Parliamentary Service has been transferred to a public authority, and :

 (a) the employment that gave him or her the status of second-tier person included functions associated with the transfer; and

 (b) the person’s employment still includes those functions; and

 (c) the person’s career has been adversely affected because of a reduction in, or an alteration of, the functions or activities of the public authority.

 (6) However, a second-tier person is not entitled to be considered for engagement as a Parliamentary Service employee in any of the following circumstances:

 (a) the person’s employment by a public authority is to be, or has been, terminated on the ground of the person’s invalidity or by reason of the person’s resignation;

 (b) the person has received, or become entitled to, the payment of a redundancy benefit from an eligible public employer;

 (c) the person has ceased the employment that gave him or her the status of second-tier person because the person has reached the maximum age for that employment;

 (d) the person is to cease the employment that gave him or her the status of second-tier person because the person will reach the maximum age for that employment;

 (e) the person’s employment in a public office or by a public authority was terminated on a ground of misconduct, and the relevant Secretary is satisfied that the same conduct, if committed in the Secretary’s Department, would be a ground for termination under subsection 29 (3) of the Act;

 (f) any other circumstance not mentioned in subclause (1) to (5).

 5.2.7 Form of application

 (1) A second-tier person must apply for engagement to the Secretary of the Department that corresponds to the Department in which the person last performed duties as an officer.

 (2) The application must:

 (a) be in writing; and

 (b) state the reason why the person claims to be entitled to be considered for engagement; and

 (c) include any additional information or statements required by this clause; and

 (d) identify:

 (i) the person’s classification before the person started the person’s eligible public employment; and

 (ii) the place where the person last performed duties as an officer.

 (3) If the person is entitled to be considered for engagement because of subclause 5.2.6 (1) or (2), the application must:

 (a) state whether the person’s employment in a public office is to be, or has been, terminated on the ground of the person’s misconduct; and

 (b) be made within:

 (i) 30 days after the day on which the person’s employment is terminated; or

 (ii) a further period that the Secretary allows.

 (4) If the person is entitled to be considered for engagement because of subclause 5.2.6 (3), the application must be made not later than 28 days after the later of:

 (a) the day on which the person became excess to the authority’s requirements; and

 (b) the day on which the person was notified that he or she was excess to the authority’s requirements.

 (5) If the person is entitled to be considered for engagement because of subclause 5.2.6 (4), the application must:

 (a) state whether the person’s employment by a public authority is to be, or has been, terminated on the ground of the person’s misconduct; and

 (b) be made not later than 30 days after the later of:

 (i) the day on which the person’s employment is terminated; and

 (ii) the day on which the person was notified that the person’s employment was to be terminated.

 (6) If the person is entitled to be considered for engagement because of subclause 5.2.6 (5), the application must be made within 30 days after the day on which the reduction in, or alteration of, the functions or activities of the public authority happened.

 5.2.8 Decision on application

 (1) A Secretary who receives an application by a second-tier person for engagement must decide the application within 28 days after receiving it.

 (2) However, if a second-tier person who makes an application resigns or retires from his or her eligible public employment, the Secretary is to treat the application as having no effect.

 (3) The Secretary must approve the application if the Secretary is satisfied that the person:

 (a) applied for engagement within the time limit mentioned in clause 5.2.4; and

 (b) is entitled to apply for engagement; and

 (c) is entitled to be considered for engagement; and

 (d) applied in accordance with clause 5.2.7.

 (4) If the Secretary is not satisfied about 1 or more of the matters in subclause (3), the Secretary must refuse the application.

 (5) The Secretary must, as soon as practicable, notify the person in writing whether the application has been approved or refused.

 (6) The notification must also include the following information:

 (a) the nature of the duties that the person will perform on engagement;

 (b) the classification that the person will have on engagement;

 (c) the place where the person is to report for duty;

 (d) the day when the person is to report for duty;

 (e) the proposed salary rate applicable to the person.

5.2.9 Effect of approval

 (1) If a Secretary approves an application for engagement under clause 5.2.8, the second-tier person to whom the approval relates is entitled to be engaged, by the Secretary, as an ongoing Parliamentary Service employee:

 (a) if the person reports for duty in accordance with clause 5.2.12; and

 (b) with effect from the time worked out in accordance with that clause.

 (2) The Secretary, and the Department, have no liability for any salary, allowances or other remuneration in respect of the person for the period before the person reports for duty.

5.2.10 Duties

 (1) If a Secretary approves an application by a second-tier person for engagement, the Secretary must comply with this clause as part of determining the person’s duties for the purposes of section 25 of the Act.

 (2) The Secretary must determine the person’s duties on the basis of:

 (a) the person’s corresponding classification for the purposes of section 76 of the Act; or

 (b) if the classification no longer exists — an equivalent classification determined by the Secretary.

 (3) However, subclause (4) applies if:

 (a) a second-tier person was entitled to be considered for engagement as a Parliamentary Service employee because the person’s employment by a public authority was to be, or had been, terminated because the person is excess to the authority’s requirements; and

 (b) a Secretary accepts the person’s application for engagement.

 (4) The Secretary:

 (a) is to regard the person as excess to the Department’s requirements at the time the person is engaged; and

 (b) is not required to determine the person’s duties in the Department, for the purposes of section 25 of the Act, until the Secretary is satisfied that there is an operational requirement that justifies determining duties.

 5.2.11 Person excess to requirements

 (1) This clause applies if:

 (a) a second-tier person was entitled to be considered for engagement as a Parliamentary Service employee because the person’s employment by a public authority was to be, or had been, terminated because the person is excess to the authority’s requirements; and

 (b) a Secretary accepts the person’s application for engagement; and

 (c) the Secretary does not determine the person’s duties in the Department, for the purposes of section 25 of the Act, because the Secretary is satisfied that there is an operational requirement that justifies determining duties.

 (2) For the period during which the person’s duties are not determined, the person is subject to the procedures in force in the Department for dealing with Parliamentary Service employees who are excess to the Department’s requirements.

 (3) Despite subclause (2), if the person:

 (a) was offered a redundancy package, or an arrangement of similar effect, as part of the person’s employment by a public authority; and

 (b) declined to accept the offer;

  the person is not entitled to be offered a redundancy package, or an arrangement of similar effect, by or on behalf of the Secretary.

 (4) Despite subclause (2), the period during which the person was excess to the authority’s requirements is to be counted as time during which the person is taken to be excess to the Department’s requirements.

 (5) Despite subclause (2), if:

 (a) the period during which the person is taken to be excess to the Department’s requirements is greater than the period allowed under the procedures in force in the Department for dealing with Parliamentary Service employees who are excess to the Department’s requirements; or

 (b) there is no minimum period for the person to be excess to the Department’s requirements under the procedures;

  the Secretary is entitled to terminate the person’s engagement as a Parliamentary Service employee in accordance with section 29 of the Act and the procedures in force in the Department.

 5.2.12 Reporting for duty

 (1) A second-tier person who is engaged as a Parliamentary Service employee must report for duty in accordance with this clause.

 (2) The person is not entitled to report for duty until the person has ceased his or her eligible public employment.

 (3) The person must report for duty within 28 days after the day on which the person is notified under subclause 5.2.8 (5) that his or her application for engagement has been approved.

 (4) If the person:

 (a) ceases his or her eligible public employment; and

 (b) reports for duty within the 28 days;

  the person is entitled to be engaged as an ongoing Parliamentary Service employee.

 (5) The engagement takes effect as follows:

 (a) the person is taken to have been engaged with effect from the day after the day when the person ceased his or her eligible public employment;

 (b) the person is taken to have been engaged at the classification mentioned in the notification under subclause 5.2.8(5);

 (c) the person is taken to have been granted leave without pay for the period:

 (i) starting when the person is taken to have been engaged; and

 (ii) ending immediately before the day when the person reports for duty.

 (6) The person’s entitlement to accrued recreation leave credits and sick leave credits, and to future credits, is to be worked out in accordance with:

 (a) the certified agreement or Australian Workplace Agreement in force in the Department; or

 (b) if there is no agreement — a determination by the Secretary.

 (7) The person ceases to be entitled to be engaged as an ongoing Parliamentary Service employee if:

 (a) the person:

 (i) does not cease his or her eligible public employment by the end of the 28 days mentioned in subclause (3); or

 (ii) does not report for duty within the 28 days; and

 (b) the person has not been granted leave by the Secretary for the period starting after the 28 days.

Subdivision 4 Return to Parliamentary Service by application for employment

5.2.13 Return

 (1) Nothing in this Division prevents a first-tier person or a second-tier person from applying for engagement in the Parliamentary Service to perform duties other than those that the person would perform if the person returned to the Parliamentary Service in accordance with Subdivision 2 or 3.

 (2) The application is to be considered on its merits, without any regard to the person’s status as a first-tier person or a second-tier person.

 (3) However, the person is not entitled to be engaged until the person has ceased his or her eligible public employment.

1. Made by the Presiding Officers on 6 December 1999, and notified in the Commonwealth of Australia Gazette on 6 December 1999.