Commonwealth Numbered Regulations - Explanatory Statements

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PUBLIC SERVICE REGULATIONS (AMENDMENT) 1995 NO. 357

STATUTORY RULES 1995 No. 357

Issued by the Authority of the Prime Minister

Public Service Act 1922

Public Service Regulations (Amendment)

Paragraph 97(1)(aa) of the Public Service Act 1922 (the Act) provides that the GovernorGeneral may make regulations prescribing matters required or permitted by the Act to be prescribed.

Section 51A of the Act provides that the regulations may make provision for or in relation to the temporary performance of the whole or part of the duties of an office including provision in relation to the selection of an officer to perform temporarily the duties of an office and appeals by officers in relation to such selection of an officer.

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 (commonly called "acting in" 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 perform the duties of an office below a certain level (generally the Senior Officer Grade C classification) for more than a specified period must be notified in a manner that is likely to be noticed by other officers. This enables other officers to become aware of directions to perform duties temporarily against which they may wish to appeal. Regulation 116C allows an officer to appeal against such a direction notified in accordance with regulation 16B. Regulation 116D provides a number of circumstances in which an appeal lodged by an officer under Regulation 116C against a direction to perform duties temporarily may lapse.

Prior to 18 August 1995 "the specified period" referred to above was 3 months. Regulation 116B obliged the Secretary making the direction to notify in the appropriate manner all directions made under Regulation 116A for a period of more than 3 months where the direction was to an office below the Senior Officer Grade C level. Regulation 116C then provided the right of appeal in relation to these notified directions.

On 9 August 1995 the Governor-General made regulations (Statutory Rule No. 243 of 1995) to change the period of 3 months to 12 months with the effect that the non-appellable period, where a direction has been made to an officer to act in another office, would be extended from 3 months to 12 months. A corresponding amendment was made to regulation 116D changing a reference from 3 months to 12 months This amendment 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 bearing 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 1995.

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 begin to apply 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 the application of Statutory Rules 1995 No. 243 to allow more time for the dispute to be resolved.

On 19 September 1995, the Governor-General made regulations (Statutory Rules 1995 No. 276) amending Statutory Rules 1995 No. 243 so that they did not begin to apply until 30 November 1995 by which time it was anticipated the dispute would be resolved.

The AIRC has now made a compromise decision on the dispute establishing the non-appellable period as 6 months in place of the 3 months in the original regulation 116B (the period favoured by the CPSU) and the 12 month period in the new regulation 16B. It is expected that the AIRC will make an order to this effect and it is proposed to amend the Regulations to reflect this decision.

In respect of the amendments to regulation 116D contained in Statutory Rule 1995 No. 241 it was agreed during conciliation between the CPSU and the Government that regulation 116D would be amended to delete subparagraphs 116D(1)(h)(i) and (ii) and subregulation 116D(4). As this outcome was agreed to in conciliation it did not form part of the AIRC decision.

The purpose of the Regulations is to implement the agreed position on regulation 116D and to reflect the AIRC decision on regulation 116B.

Regulation 1 of the Regulations provide that the Regulations commence on 1 December 1995.

Regulation 2 of the Regulations provides that the Public Service Regulations are amended as set out in these Regulations.

Regulation 3 of the Regulations amend paragraph 116B(2)(a)of the Regulations by omitting the reference to 12 months and substituting a reference to 6 months. This change is reflected in a change in the title to regulation 116B.

Regulation 4 of the Regulations amend regulation 116D by omitting paragraph 116D(1)(h) and subregulation 116D(4), consistent with the agreement reached in conciliation before the AIRC. Consequential technical amendment is made to paragraphs 116D(1)(f) and (g).

Regulation 5 is a transitional provision which provides that notwithstanding the amendments to regulation 116B where it relevant direction has been made before 1 December 1995, regulation 116B containing the reference to the 3 month period an it was prior to the commencement of Statutory Rule 1995 No. 243 is to apply in relation to that direction. The effect of this transitional provision is to cancel the effect of the earlier amendments to regulation 116B in relation to directions made prior to the commencement of these Regulations.