THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES PUBLIC SERVICE LEGISLATION (STREAMLINING) BILL 1986

Transcription

1 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES PUBLIC SERVICE LEGISLATION (STREAMLINING) BILL 1986 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Employment and Industrial Relations and Minister Assisting the Prime Minister for Public Service Industrial Matters, the Honourable Ralph Willis, MP) 15326/86 Cat. No

2 2 OUTLINE 1. The principal purpose of this Bill is to implement the decisions that the Government has taken to streamline the Australian Public Service. 2. It is divided into the following Parts Part I Preliminary Part II Amendments of Public Service Act 1922 Part III Amendments of Merit Protection (Australian Government Employees) Act 1984 Part IV Amendments of Members (Staff) Act 1984 of Parliament 1 Part V Repeal of Commonwealth Employees (Redeployment and Retirement) Act 1979 Part VI Amendments of Superannuation Act 1976 Part VII Amendments of Administrative_Decisions (Judicial Review) Act 1977 Part VIII Amendments of Commonwealth Employment Service Act The most significant amendments are contained in Part II of the Bill and relate to revised redeployment and retirement arrangements, and revised provisions relating to promotions and promotion appeals. In addition, a number of other amendments are made to streamline the administration of the Service. Redeployment and Retirement Provisions 4. A new Division 8C dealing with the redeployment and retirement of officers other than Secretaries of Departments and Senior Executive Service officers is inserted. The central provision of this new Division is proposed section 76W which empowers Secretaries to reduce an officer s classification or retire an officer from the Service where they are satisfied that an officer is unable to perform his or her duties or duties at a similar level because of physical or mental incapacity: the officer is inefficient: the officer is not qualified to perform his or her duties (ie the officer has lost an essential qualification): or

3 3 the officer is an excess officer. 5. Under section 76W the Board will have the power to transfer an officer to a lower level in another Department. These powers will be additional to the existing powers that Secretaries have to transfer staff at their own level within departments, and the proposed section 51 of the Act to permit the Board to transfer staff at their level between departments. Secretaries and the Board are obliged to consider transfer at level before reduction in classification or retirement. In the case of excess officers there is an obligation on the Board to attempt to redeploy staff who have not chosen voluntary retrenchment, before they are compulsorily reduced in classification or retired. 6. Use of these provisions will be subject to administrative instructions and directions by the Board and, of course, to any applicable industrial award. 7. Use of these powers where the officer does not consent will be subject to a right of appeal to a Redeployment and Retirement Appeal Committee established by the Merit Protection and Review Agency. 8. It is envisaged that provisions concerning consultation with unions, benefits payable upon voluntary retrenchment and income maintenance periods, will be provided for in an industrial award. 9. Whilst the main emphasis will continue to be on the redeployment of staff where this is in the interests of the efficient operation of the Service, it is recognised that in many cases a more effective approach to adopt is voluntary retrenchment. Where voluntary retrenchment is not accepted, efforts will be made over a six or twelve month income maintenance period to find an alternative position before the officer is compulsorily retired. 10. The new Division 8C retains from the Commonwealth Employees (Redeployment and Retirement) Act 1979 the provisions relating to maximum age retirement and age 55 retirement. Promotions and Promotion Appeals 11. Section 33 of the Public Service Act will be strengthened to make the prohibition of patronage, favouritism and discrimination more direct. 12. A related amendment to section 56 of the Act will also make it clear that patronage, favouritism or discrimination amount to misconduct and may render an officer liable to disciplinary proceedings.

4 4 13. Section 50 of the Act will be amended to make advertisement of all vacancies to be filled by promotion compulsory, except in very limited circumstances to be prescribed by the Public Service Board. 14. Section 5OA of the Act will be amended to provide an expanded definition of efficiency for the purposes of promotion, permitting both an officer s potential for further career development and her or his ability to perform other jobs at the same level also to be considered. 15. Section 5OB, together with section 33AAA will remove the right of appeal to a Promotion Appeal Committee in the case of promotions to Clerical Administrative Class 9 to 11 and by associated regulations for broadly equivalent levels in other occupational categories. 16. Provision will be included in section 5ODAA permitting the Merit Protection and Review Agency to undertake a special grievance review where unsuccessful applicants complain of patronage, favouritism, discrimination or a serious defect in the selection process, such that it would be unreasonable to permit the promotion to stand. 17. Amendment is proposed to permit greater use of Joint Selection Committees. Other amendments to the Public Service Act 18. These include the removal of gender specific terminology: simplified provisions for acting appointments for Secretaries of Departments and members of the Board; provisions permitting the sub-delegation by Secretaries of Board powers; the removal of the concept of Chief Officer: simplified provisions for the application of the Commonwealth Superannuation Scheme to fixedterm Secretaries or Senior Executive Service officers; revised probation provisions giving Secretaries the power to confirm and terminate probationary appointments; revised arrangements permitting the appointment on probation of persons who have not obtained Australian citizenship; mandatory reappointment of unsuccessful applicants at elections;

5 5 the devolution of the Board s powers to cancel promotions before they take effect, and to decline transfers within departments, to Secretaries; streamlining of the disciplinary provisions, including: removing mandatory provisions relating to reports by supervisors; increasing the maximum fine from $40 to $500; permitting partial payment of salary during suspension where hardship is established: providing a general rule that officers should be heard before suspension, but making an exception where it would not be appropriate in particular circumstances to do so: and removing the right of appeal to a Disciplinary Appeal Committee in cases where the officer has only been admonished, fined less than $50 or transferred to an office at the same level and in the same locality; amending the Senior Executive Service retirement provisions to ensure that they are consistent with the one point of appeal approach being adopted for the rest of the Service; providing for the automatic transfer of public servants to other areas of Commonwealth employment and similar provision for the transfer of nonpublic Service Act staff into the Service where there is an agreed transfer of functions or, in the case of other Commonwealth employees, it is certified by the Prime Minister to be in the public interest to do so; and other amendments to effect or permit the devolution of case work from the Board to departments. Part III 19. Part III of the Bill makes consequential amendments to the Merit Protection (Australian Government Employees) Act 1984 consistent with the changes to the redeployment and retirement provisions. The opportunity has been taken to

6 6 remove genderspecific terminology and to standardise the provisions relating to the constitution of various Review Committees. Part IV 20. Minor amendments are made to the Members of Parliament (Staff) Act 1984 to permit that Act to be used by former Prime Ministers who have left the Parliament. Part V 21. Part V repeals the Commonwealth Employees (Redeployment and Retirement) Act Part VI I 22. This Part makes consequential amendments to the Superannuation Act Part VII 23. This Part removes the requirement under section 13 of the Administrative Decisions (Judicial Review) Act 1977 to give statements of reasons in relation to promotion, transfer and appeal decisions in the Australian Public Service. Part VIII 24. This Part makes a minor amendment to the commonwealth Employment Service Act 1978 consequential upon the removal of the concept of Chief Officer. I I

7 7 NOTES ON CLAUSES PART I: PRELIMINARY Clause 1 Short Title Clause 2 Commencement The provisions of the Bill relating to the changes in the promotion and promotion appeal system, discipline and redeployment and retirement are to come into operation on days to be proclaimed. Formal provisions are to come into operation upon the Royal Assent. The remaining provisions are to come into operation 28 days after the Royal Assent. PART II: AMENDMENTS OF THE PUBLIC SERVICE ACT 1922 Clause 3 Principal Act Defines the Public Service Act 1922 as the Principal Act for the purposes of the amendments in Part II. Clause 4 Repeal of section 5 The proposed amendment repeals section 5 which made appropriate savings and transitional arrangements in It is no longer required. Clause 5 Interpretation The proposed amendment omits from sub-section 7(1) the definition Appeal Board. This term is no longer in the Act. It also omits the definition of Chief Officer which will no longer be required. (Details are provided in relation to the proposed repeal of section 26A.) New definitions of Agency, authorised medical practitioner and Merit Protection Act are inserted for the purpose of proposed new provisions and to permit simpler drafting. The proposed amendment omits subsections 7(3) and (4) which related to the transfer of staff from certain Departments within the meaning of paragraph (a) of the definition of Department to branches or parts of the Service constituting certain Departments within the meaning of paragraph (b) of the definition of Department in subsection 7(1). The provisions are no longer required. A new subsection 7(3) is inserted providing an interpretation of the expression excess officer which is used in proposed section 47 and Division 8C.

8 8 Clause 6 Officers of the Parliament Consequential amendment to section 9 relating to reference to Chief Officer. Clause 7 Repeal of section 10 and substitution of new section Section 10 Constitution of the Public Service The proposed new section 10 remedies a defect that employees engaged under Division 10 of Part III of the Act were not included as persons constituting the Australian Public Service. In revising the section the opportunity has been taken to make specific reference to Secretaries of Departments listed in Schedule 3 and Senior Executive Service officers. Clause 8 Repeal of section 12 and substitution of new section Section 12 Head of the Public Service Board The proposed amendment repeals section 12 and substitutes a new section replacing references to the Chairman of the Board by references to Bead of the Public Service Board who may be known, if he or she prefers, as Chairman or Chairwoman. The amendment is consistent with the Government s policy of genderneutral drafting. Clause 9 Acting appointments of members of the Board The proposed amendment to section l2a will streamline the processes for appointing persons to act as members, or as Head, of the Public Service Board by permitting such appointments to be made by the Prime Minister rather than requiring consideration by the Executive Council. Clause 10 Repeal of section 13 and substitution of new section I Section 13 Remuneration and allowances for members of the Board This amendment simplifies the drafting of section 13. Clause 11 Delegations by Board, &c. The proposed amendment to section 16 made by subclause 11(1) will enable the Board to delegate certain of its powers to Secretaries of Departments who will then be enabled, unless prohibited by the terms of the delegation, to subdelegate the Board power or function for use within the Department. The proposed amendment will also enable the Board (and Secretaries) to make delegations on an absolute or conditional basis and give directions in relation to the exercise of delegated (or sub delegated) powers or functions.

9 9 Subclause 11(2) is a provision to put beyond doubt the effectiveness of certain appointments made in recent years under delegation. There is a view that some delegations may have been invalid because they have been expressed to require departmental delegates to proceed in accordance with guidelines issued by the Board in the Personnel Management Manual. Clause 12 Repeal of section 18 The proposed amendment repeals section 18, the original and principal purpose of which was to require the Board to submit recommendations and reports to the GovernorGeneral on the creation and abolition of positions. It is no longer necessary given the changes made in 1984 permitting Secretaries to abolish and create positions and because the remaining provisions of the Act vesting powers in the GovernorGeneral make sufficient provision for the making of reports or recommendations by the Board where this is appropriate. Clause 13 Joint Council The proposed amendment omits reference to Classification Committees from section l9a. These Committees have not been used since the early l96os If any committeebased consideration is to be given to classification questions, such committees can he established administratively. Clause 14 Equal employment opportunity programs The proposed amendments to section 22B will provide greater flexibility in the making of regulations applying the provisions of this section to Commonwealth authorities and also make a minor drafting change. Clause 15 Industrial democracy plans The proposed amendments to section 22C will provide greater flexibility in the making of regulations applying the provisions of this section to Commonwealth authorities; and also make a minor drafting change. Clause 16 Secretaries of Departments The proposed amendments to section 25 are consequential changes reflecting the removal of the Chief Officer provisions and the change in title from Chairman to Head of the Public Service Board. Clause 17 Delegation by Secretaries of Departments The proposed amendments to section 26 omit provisions relating to Chief Officers and will enable Secretaries to make delegations on an absolute or conditional basis and give directions in relation to the exercise of delegated powers or functions.

10 l0 Clause 18 Repeal of section 26A The proposed amendment in subclause 18(1) will repeal section 26A which provides for Secretaries of Departments to appoint Chief Officers who are presently vested with various powers under the Act and subordinate legislation. The concept of a Chief Officer is considered anachronistic and confusing as most departments have more than one Chief Officer. It is proposed in the future that powers to be exercised within departments should be vested in the Secretary of the Department who may then delegate those powers to staff at appropriate levels within the Department. Subclause 18(2) provides that references to a Chief Officer in subordinate legislation and instruments are to be read as references to the Secretary. Subclauses 18(3) to (5) provide for transitional arrangements the effect of which is to permit persons who are Chief Officers immediately before the repeal of section 26A to continue to exercise the powers that were vested in Chief Officers as though they were delegates of the Secretary. The provisions will also permit persons who immediately before the repeal of section 26A were themselves delegates of a Chief Officer or authorised or appointed by a Chief Officer for a purpose, to continue to exercise those powers and functions. These transitional arrangements will apply until such time as the Secretary makes new delegations, authorisations or appointments. Clause 19 Repeal of Division 3 of Part III The proposed amendment repeals Division 3 of Part III which comprises - Section 30 which is no longer necessary as sufficient provision is made for the remuneration of Secretaries of Departments by subsection 7(3) of the Remuneration Tribunals Act 1973 and for the payment of salaries to other officers by section 82D; Section 31 relating to the payment of increments which is unnecessary as sufficient provision is made by determinations made under section 82D; and Section 32 relating to the Gazette notification of conditions of advancement. This provision is to be remade as subsection 33A(1A). Subclause 19(2) preserves existing section 32 determinations as if they had been made under the new provision.

11 ii Clause 20 Interpretation This clause adds a definition of nonappellable promotion to section 33AAA. The term which is relevant to amended section SOB and proposed new section 5ODAA covers promotions under section 50 to classification at and above Clerical Administrative Class 9. (It is not relevant to Senior Executive Service offices which are already not subject to appeals.) Provision is included so that regulations may be made prescribing promotions to offices at broadly equivalent levels in other occupational categories as nonappellable promotions. It is intended that the regulations will make specific provision for the classifications which are broadly equivalent to Clerical Administrative Class 9 (that is those that are a little below and a little above the pay levels for Clerical Administrative Class 9 so that differential variations in pay adjustments do not have the effect of moving particular classifications in and out of the definition of non appellable office. Paragraphs ( 4 )(e) and (f) are amended as a consequence of the changes made to sections 5OE and 52. Clause 21 Application of merit principle, prohibition of patronage, &c. It is proposed that a number of amendments be made to strengthen the provisions of section 33 relating to the application of the merit principle, the prohibition of patronage, favouritism and unjustified discrimination. Subsection 33(1) will be amended (consistently with the proposed amendments of the description of efficiency for the purpose of making promotion decisions) so that personal qualities and potential for career development are relevant in the assessment of applicants for appointment to the Service. A new subsection 33(2) will be inserted to make the prohibition of patronage and favouritism applicable to the exercise of all powers under the Public Service Act and to make that prohibition more direct. Subsection 33(3) will be amended to make the prohibition of various types of discrimination more direct. A new subsection 33(6) is added so that it is not only the decisionmakers who are subject to the prohibitions of patronage, favouritism and unjustified discrimination, but also those responsible for the making of a report or recommendation leading to a selection decision.

12 12 Clause 22 Notification of certain matters related to appointment, transfer, promotion or advancement The proposed amendments to section 33A, which are consequential upon changes to the promotion system, will permit the Board to notify in the Gazette examinations or tests for the purpose of section 53 and the circumstances when transfers or promotions may be made under section 50DB (managementinitiated Joint Selection Committees) and section 53 (order of merit established in an examination or test). Proposed new subsection 33A(lA) remakes existing section 32. Consistent with the greater devolution of Board powers to departments the amendment to section 33A(2) also permits Secretaries of Departments as well as the Board to form opinions as to the comparability or suitability of qualifications. Clause 23 Notification of vacancies in Senior Executive Service offices I The proposed amendment to section 33AA will provide a very limited exception to the requirement that vacancies in Senior Executive Service offices be advertised before being filled. The amendment will enable Senior Executive Service vacancies to be filled without further advertisement in cases where the person initially appointed or promoted to the position does not take up duty in the position. In such cases it will thus be possible to fill the vacant office with the person who was next in the order of merit established by the original selection process without having to readvertise and go through the selection process again. Provision will be made in section 33AAA for the Board to direct fresh advertisement, and the requirement will remain in section 49B that the Board must be satisfied about the adequacy of the selection procedures before a promotion is made to a Senior Executive Service office. Clause 24 - Repeal of section 33C and substitution of new section Section 33C Unattached officers The clause repeals section 33C and substitutes a new section which will enable Secretaries of Departments rather than the Board to unattach an officer with her or his consent. This is consistent with the devolution of casework from the Board to departments. The proposed new subsection 33C(2) will provide that an unattached officer is an officer included in the Department in which he or she last held an office, except as otherwise directed by the Board.

13 13 Clause 25 Repeal of section 34 and substitution of new section Section 34 Eligibility for appointment to the Service The proposed amendment confines section 34 to the requirement that appointees be fit and proper persons. It will still be necessary to have a medical examination before confirmation of an appointment and for superannuation purposes. In many cases, for example appointments without probation and where a person is already covered by another superannuation scheme or is moving interstate to take up employment, the medical examination will still be undertaken before appointment. The Australian citizenship requirement will in the future not be a precondition for appointment, but rather will be a pre condition for confirmation of appointment. This will enable persons who are not Australian citizens to be appointed on probation pending the grant of citizenship. Further details are provided in the notes on the clause relating to section 47. Clause 26 Interpretation The clause omits an unnecessary definition of Chairman in section 35. Clause 27 Appointment of Secretaries of Departments The proposed amendments to section 36 simplify drafting, remove gender specific pronouns and change references from Chairman to Head of the Public Service Board. Clause 28 Fixedterm appointments The proposed amendment to section 37 removes gender specific pronouns and changes references from Chairman to Head of the Public Service Board. Clause 29 Superannuation benefits for fixedterm Secretaries of Departments The proposed amendment to section 38 will make the processes associated with the appointment of fixedterm Secretaries more flexible in that it will enable the Board (in accordance with arrangements approved by the Minister for Finance), rather than the GovernorGeneral, to determine the superannuation arrangements that are to apply. Superannuation arrangements will thus not have to be determined at the same time as the appointment is made. Provision is included to permit a more direct application of the provisions of the Superannuation Act 1976 where a fixedterm Secretary elects to be covered by the Commonwealth Superannuation Scheme. It will also permit some limited (and beneficial) retrospectivity in determining superannuation arrangements for fixedterm Secretaries. This is desirable because if a fixedterm Secretary seeks coverage under the Commonwealth Superannuation Scheme, benefits may be related

14 14 to completed whole years of service. Where an appointment is made for a fixedterm of a number of years any delay in finalising superannuation arrangements could have an adverse effect on the fixedterm Secretary s entitlements. Clause 30 Acting appointments of Secretaries of Departments The proposed amendment to section 39 will streamline the processes associated with the appointment of persons to act as Secretaries of Departments by vesting the power to make such appointments in the Prime Minister rather than requiring consideration by the Executive Council. The Prime Minister will be able to authorise individual Ministers to make appointments in relation to their own departments as appropriate. Subclause 30(2) saves appointments in force immediately before the commencement of the amendment. Clause 31 Special appointments The proposed amendment to section 43 will permit the delegation of the Board s power to make special appointments under that section. Clause 32 Superannuation benefits for fixedterm Senior Executive Service officers The proposed amendment to section 45 is similar in purpose to that proposed to section 38. It will simplify processes related to superannuation coverage for fixedterm SES officers by permitting a more direct application of the provisions of the Superannuation Act 1976 where a fixedterm officer elects to be covered by the Commonwealth Superannuation Scheme. It will also permit some limited (and beneficial) retrospectivity in determining superannuation arrangements for such officers. This is desirable because if a fixedterm Senior Executive Service officer seeks coverage under the Commonwealth Superannuation Scheme, benefits may be related to completed whole years of service. Where an appointment is made for a fixedterm of a number of years any delay in finalising superannuation arrangements could have an adverse effect on the fixedterm officer s entitlements. Clause 33 Repeal of section 47 and substitution of new section Section 47 Appointments to be on probation The proposed amendment will substitute a new section 47 under which Secretaries of Departments will be responsible for decisions to confirm and terminate probationary appointments in place of the Board. Provision will remain for appointments to be made without probation in appropriate cases.

15 15 The section will also be amended so that persons who are not Australian citizens may be appointed to the Service, but only on probation, thus overcoming the present unsatisfactory practice of using the fixedterm temporary employment provisions as a means of employing persons pending the grant of citizenship. As temporary employees such staff are disadvantaged in opportunities to compete for higher duties and promotion. Persons appointed on probation pending the grant of citizenship will only have their appointments confirmed if they become Australian citizens. Departmental Secretaries will be able to terminate these appointments where an officer is refused a grant of citizenship, or is not diligently pursuing citizenship. As with the present arrangements it will be possible in exceptional cases for a person who is not an Australian citizen to be appointed without probation or to have his or her appointment confirmed. This will only occur in accordance with arrangements approved by the Prime Minister. Subject to provisions concerning the Australian citizenship requirement and officers undertaking specified training courses, provision is included for the automatic confirmation of probationary appointments after 2 years, if they have not been otherwise confirmed or terminated by that time. Proposed subsection (11) sets out the grounds on which an officer s appointment may be terminated under this section and specifies certain reporting requirements. Subclause 33(3) makes appropriate transition provision for officers on probation upon commencement of the new section 47. Subclause 33(2) provides for fixedterm temporary employees who were engaged on the understanding that they would be appointed on the grant of citizenship to be appointed subject to the new probationary requirements. Clause 34 Repeal of section 47C and substitution of new section Section 47C Reappointment of unsuccessful candidates at elections This clause repeals existing section 47C and substitutes a new section which will make it mandatory for the Board, upon application, to reappoint to the Service former officers who have resigned to contest elections and who have been unsuccessful. This amendment implements a recommendation of the Joint Council and is consistent with the comments of the 1981 report of the Senate Standing Committee on Constitutional and Legal Affairs. The amendment will also enable the reappointment provision to apply to persons who have resigned or retired from the Service up

16 16 to 6 months before the day on which nominations for the elections closed rather than the existing 1 month. The amendment also substitutes references to retirement by references to resignation as this is the more correct description. Existing subsections 47C(4) and (5) which at present deem a re appointee not to have retired but to have been on leave without pay have been replaced, in section 82D, by a power for the Board to determine the purposes (other than for superannuation) for which the period between the officer s resignation and reappointment may count as service. The purpose of this amendment is to ensure that the election of successful candidates is not subject to the risk under section 44 of the Constitution which might exist if there was both mandatory reappointment and a provision which deemed a reappointed officer not to have retired. Subclause (2) provides for the proposed new section 47C to apply in relation to resignations occurring before the commencement of the new provision. Clause 35 Promotions to Senior Executive Service offices This clause inserts a new subsection 49B(3A) consistent with the amendment proposed in clause 23 to section 33AA to permit, in extremely limited circumstances, (that is, where a person previously promoted or transferred to a vacant office does not take up duty) a vacant Senior Executive Service office to be filled without renotification of the vacancy. The new subsection 49B(3A) will permit the Board, when considerinq whether selection procedures were adequate, to look at the selection processes followed when the position was previously filled. Clause 36 Repeal of section 49D and substitution of new section Section 49D Day on which transfer or promotion takes effect The proposed amendments to section 490 are consequential upon the amendments proposed to section 52. Clause 37 Subdivision D not to apply This clause amends section 49E so that the general transfer power that the Board is to have under section 51 will also apply to Senior Executive Service officers. Although the Board already may transfer Senior Executive Service officers between departments under section 49 there may be cases of large scale transfers between departments where it is preferable for all staff to be transferred under the same provision whatever their level.

17 17 Clause 38 Transfers and promotions The proposed amendment to section 50 will require that all positions be advertised before they can be filled by promotion. The only exception to this requirement will he in circumstances prescribed by the Board in the Public Service Regulations, for example where a person previously promoted to an office does not take up duty, or where an identical position becomes vacant unexpectedly and it is appropriate to promote a person whose application has been considered in a selection process that is already taking place. Clause 39 Repeal of section 50A and substitution of new section Section 50A Selection of officers for promotion This clause repeals section 50A and inserts a new section dealing with the basis upon which officers are selected for promotion. I Proposed subsection (1) will require the Secretary to select the officer whom she or he considers to be the most efficient of the officers who have applied for promotion. (Under the new arrangements it will not be possible to promote an officer who has not applied for promotion. Hitherto it was theoretically possible to promote an officer against her or his will.) Proposed subsection (2) specifies the factors to which the Secretary may have regard in deciding who is the most efficient officer. Paragraph (a) lists the factors to which regard will be had in all cases according to their relevance to the performance of the duties of the vacant office. These factors are broadly similar to those in the existing provision. Paragraph (h) lists two additional factors (potential for further career development and the ability to perform the duties of other positions at the same level) which may be taken into account if the Secretary considers they are relevant to the selection. Proposed subsection (3) retains the traditional provision relating to returned soldiers. special The drafting of the new provision and the omission of a provision equivalent to existing subsection 50A(3) make it clear that the factors relevant to the assessment of efficiency are not to be given equal weight, but are to be weighted according to their relevance to the performance of the duties of the office. Subclause (2) provides for the former provisions to continue to apply in relation to the filling of vacancies notified on the Gazette before the commencement, or, where the vacancy was not notified, the interviewing of applicants had begun before the commencement.

18 18 Clause 40 Appeals The proposed amendment to section 50B will exclude appeals against promotions which are defined in section 33AAA and the regulations to be nonappellable promotions. Section 33AAA and the regulations will define promotions to offices classified at Clerical Administrative Class 9 and above and offices at equivalent levels in other occupational categories as non appellable promotions. The restriction will apply to non appellable promotions made after the commencement of the amendment. The proposed amendment will also limit the right of appeal to officers who originally applied for promotion except in prescribed circumstances, for example where the vacancy was not advertised. Clause 41 Repeal of sections 50D, substitution of new sections - SODA, This clause repeals existing sections the following new sections. Section SOD Determination 50E, 5OEA and 5OEB and 50D to 50E8 and substitutes of appeals Proposed subsections (1) to (3) apply the revised approach to the basis upon which officers are selected for promotion to the assessment of efficiency by Promotion Appeal Committees. Committees will consider the officer s potential for further career development and ability to perform the duties of other offices at the same level only where the Secretary considers these to have been relevant to the selection for promotion. Proposed subsection (4), as well as empowering the Committee to allow or disallow an appeal, will also permit the Committee to disallow the appeal(s) and cancel the promotion where it is of the opinion that none of the officers concerned is capable of efficiently performing the duties of the position. Subclauses (5) and (6) provide for the automatic cancellation of the promotion of the original promotee, the subsequent promotion of the successful appellant and for the notification of the new promotion in the Gazette where an appeal is allowed. This replaces a current provision which requires the Board to promote the successful appellant. Section 5ODAA Review of nonappellable by Merit Protection and Review Agency promotion decisions

19 19 Proposed new section 5ODAA provides for applications to be made to the Merit Protection and Review Agency for review of a promotion which is not subject to appeal to a Promotion Appeal Committee. The grounds of review are that there was a breach of section 33 (which prohibits patronage, favouritism and various forms of discrimination) or a serious defect in the selection process. Where the Agency is satisfied that it would be unreasonable for the promotion to stand it may recommend cancellation to the relevant Secretary who is then required in the light of the recommendation to reconsider the promotion and who may then cancel the promotion. Provision is included detailing the consequences of cancellation for the previously promoted officer, to ensure that he or she remains entitled to salary and other conditions accrued during the period the promotion was in effect and requiring the Secretary to transfer the officer to an office in the Department at the officer s previous level. Provision is included enabling the Agency to refuse to deal with frivolous or vexatious applications and permitting the Agency to deal with multiple applications concurrently. Provision is included so that the various powers available to the Agency under Division 7 of Part II of the Merit Protection Act, for example to obtain documents, apply to reviews under this section. Section SODA Transfer Selection Committee or promotion on advice of Joint The proposed new section 5ODA is substantially the same as existing section SODA which provides for the use of Joint Selection Committees in cases where this is agreed between the Secretary and the principal relevant staff organisation. The opportunity has been taken to replace the term with Convenor, to make consequential reference to section 5ODAA and to omit subsections (10) and (12), Chairman which are remade in proposed new section 5ODC. Promotions under this section will remain not subject to appeal where the Secretary promotes in accordance with the advice of the Committee, which may be by majority. Section 50DB Transfer or promotion on advice of managementinitiated Joint Selection Committee The proposed new section 50DB will provide a basis for a trial use of managementinitiated Joint Selection Committees. Under this section it will not be necessary for

20 20 Secretaries to obtain the agreement of the principal relevant staff organisation before Joint Selection Committees are used. Provision is included permitting the Board by notice published in the Gazette to specify the circumstances when it will be possible for Secretaries to use Joint Selection Committees under this section. The Board, after consultation with unions, will specify circumstances when Joint Selection Committees can be used. This may be by reference to particular departments or parts of departments, classification levels, the number of identical positions being filled at the one time making up a bulk selection exercise and other relevant considerations. During the trial arrangements a promotion made under this section will not be subject to appeal if it is made in accordance with the unanimous advice of the Joint Selection Committee. Additionally a promotion can be made under this section by the Secretary, either on the majority advice of the Committee, or not in accordance with the Committee s advice at all, in which case the promotion is deemed to have been made under section 50, and is subject to appeal under section SOB (except where the promotion is to a non appellable office as defined in section 33AAA). Provision is included in new subsections (4) (9) (10) and (11) so that a Joint Selection Committee will comprise a person nominated by the Merit Protection and Review Agency to chair the Committee, a nominee of the Department, and, if the relevant union nominates a person within a prescribed period, that nominee. Where a union does not make a nomination the Committee will comprise the other two members. If a union or departmental nominee withdraws from the Committee and a new nominee is not provided within a prescribed period, the Committee may continue as constituted by the remaining two members. The Government intends to review the operation of these provisions after a 12 month trial period and [if this is necessary] to introduce further legislative changes to ensure the effective operation of Joint Selection Commi ttees. Section 5ODC Procedure of Joint Selection Committee Proposed new section 5ODC will require Joint Selection Committees to inquire into the claims of applicants in such manner as it considers necessary to establish the relative efficiency of the parties and to conduct its proceedings with as little formality and technicality and as quickly as a proper consideration of the applications permits.

21 21 Existing subsections 500A(l0) and (12), permitting reconstituted committees to have regard to the proceeding of the previously constituted Committee, and providing that a transfer or promotion under the Joint Selection Committee provisions is not to be called into question because of any defect in the nomination of a member, are remade as subsections 5ODC(3) and (4). Joint Selection Committee members are not to be subject direction whilst acting as such. The provision makes it clear that it is not intended to attempt to oust the jurisdiction of a Court to give directions as to how a Committee should proceed. Section 50E Taking effect &c., of promotions to and transfers New section 50E provides that promotions and transfers take effect as provided by the regulations. The rules relating to the coming into effect of promotions and transfers, particularly when multiple promotions are involved, are dealt with complex and in represent regulations an order than in of the detail Act.thatNew is subsections better 50E(l) and (2) will retain the existing provisions concerning the date from which salary is paid upon promotion. Clause 42 Cancellation of promotion or transfer The proposed amendment to section 50G will permit Secretaries of Departments, as well as the Board, to cancel promotions or transfers at any time before they take effect. Clause 43 Promotion appeal rights of certain officers This clause amends section 50H as a consequence of the repeal of the Commonwealth Employees (Redeployment and Retirement) Act Clause 44 Transfers of officers and employees between Departments This clause amends section 51 by adding new subsections (3) and (4) to section 51 to enable the Board to transfer officers and employees between departments where in the opinion of the Board it is in the interests of the efficient administration of the Service to do so. The provision will permit staff to be transferred either to specified offices in the gaining department or as unattached officers of that department. The Board will exercise this power in consultation with the Secretaries of the affected departments, and where possible with the staff affected. However consultation with staff individually

22 22 is not made a legislative precondition as the provision may be required to be used in cases of largescale transfers of staff where consultations on an individual basis would not be possible. Where the provision is used to redeploy potentially redundant staff, consultations will have taken place with relevant unions in accordance with applicable industrial awards. Transfers under this section take effect as specified by the Board. Clause 45 Officer may decline transfer within Department, &c. This clause amends section 52 to give effect to the Government s decision that the Board s role in staffing casework should be delegated to departments as far as practicable. Under the new provision section 52 will not apply to promotions as only applicants for promotion will be promoted. The previous use of this section to govern the operation of multiple promotions will be replaced by regulations permitting officers to elect which promotion to accept. Section 52 also will not apply to transfers between departments, as section 50J already prohibits the transfer of an officer between departments if the losing Secretary or the officer do not approve of the transfer unless the Board gives its agreement to the transfer. In this situation the use of section 52 amounts to a further review of the issue by the Board which has already decided that the transfer should proceed. Under the revised arrangements an officer will be able to seek permission to decline a transfer within her or his department, from the Secretary of the Department, unless the Secretary has taken the initial transfer decision or has otherwise been personally involved in that decision, in which cases the officer will still be able to seek permission to decline the transfer from the Board. An amendment is made to subsection (4) consequential upon the repeal of the Commonwealth Employees (Redeployment and Retirement) Act Clause 46 Transfers and promotions to specified offices may be made in accordance with order of passing examinations The proposed amendment clarifies the drafting of section 53 and removes the requirement that section 53 be used in all cases where the Board has notified in the Gazette under paragraph 33A(l)(d) that it is a condition of promotion or transfer that an officer pass an examination held or authorised by the Board. The amended provisions will provide the ability to promote some officers to a specified classification under section 53 in accordance with the order in which officers pass an examination such as the Clerical Selection Test, and permit other officers to be promoted to the same classification in accordance with the normal promotion and appeal processes under section 50. I

23 23 Movements of staff to offices of Clerk Class 1 or Clerical Administrative Class 1 from the former Fourth Division should not have been regarded as promotions. These positions are the basegrade entry point for the Clerical Administrative structure and appointment to these positions has required successful completion of the Clerical Selection Test and selection in accordance with the order of merit established by that test. With the removal of the divisional structure distinctions in 1984 and the inclusion of a statutory definition of promotion, it has now become necessary to make alternative arrangements for the movement of staff from the lower level Clerical Assistant and equivalent grades to positions of Clerical Administrative Class 1. It is intended that pending introduction of more integrated officebased classifications, movements will of such staff Clerical Administrative Class be treatedto as promotions under section positions (Clause 102 makes special provision deeming such movements which have taken place since the introduction of the statutory definition of promotion on 22 December 1984 to have been promotions under section 53.) The amendments would allow some promotions to be made under section 53 and some promotions to be made under section 50 which may facilitate the integration of officebased classifications which is the subject of consultations with unions. Clause 47 Promotion of officers who complete courses of training for special positions This clause amends section 53A to change a reference Permanent Head to Secretary. Clause 48 Interpretation Consequential amendment to Chief Officer. Clause 49 from to section 55 relating to reference Meaning of failure to fulfil duty as officer This clause inserts in section 56 a new paragraph 56(ea) to make specific reference to the fact that it is misconduct to knowingly engage in conduct (including patronage, favouritism or discrimination) in breach of section 33. Clause 50 Disciplinary action This clause amends section 61 by removing provisions relating to reports by supervisors on an officer s conduct possibly warranting disciplinary action. The provision is a discretionary preliminary to the initiation of disciplinary proceedings. Whilst in practice it will often be supervisors reports that lead to disciplinary action being taken, this does not need to be reflected in the legislation, and its present inclusion has a tendency to create unnecessary formality and delay in the early stages of discipline cases.

24 24 Consequential amendments relating Officer are also included. to references to Chief Subclause 50(2) is a savings provision to ensure that disciplinary action in progress at the commencement of these amendments is not adversely affected by them. Clause 51 Inquiries into misconduct This clause amends section 62 so that consequent upon removal of the concept of Chief Officers, an inquiry into discipline charges will he carried out by the Secretary or an appropriate officer appointed by the Secretary for the purpose. Provision will remain ensuring that the person who inquires into the charges will not have had any previous dealing with the case. 2 Paragraph 6 (6)(a) is amended to increase the maximum deduction from salary that can be made from $40 to $500 broadly in line with increases in average weekly earnings since the amount was last adjusted. The increase from $40 to $500 provides a more realistic maximum deduction and provides for an appropriate graduation in disciplinary action up to action to reduce an increment (which may be greater than $500) or to transfer an officer to a lower classification. Subclause 55(2) is a savings provision to ensure that disciplinary action in progress at the commencement of these amendments is not adversely affected by them. Clause 52 Conviction by courts Consequential amendment to Chief Officer. Clause 53 to section 63 relating to references Suspension A consequential amendment relating Officer is made to section 63B. to a reference to Chief A new subsection (1A) is added to require that a relevant Secretary shall not suspend an officer without first giving the officer an opportunity to be heard unless the particular circumstances would warrant such an approach (for example in the case of violent action by an officer, where advance warning might lead to the destruction of evidence that would be relevant to discipline proceedings or where it is not possible to contact the officer). Clause 54 Removal and variation of suspension The proposed amendment to section 63C will provide additional flexibility in relation to the payment of salary to officers on suspension. At present if a Chief Officer decides on the ground of hardship that salary should be paid to a suspended officer, full salary has to be paid. The I