Commonwealth Employees (Redeployment and Retirement) Act 1979
No. 52 of 1979
An Act to make provision with Respect to the Redeployment and Retirement of Commonwealth Employees, and for related purposes.
BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:
PART I—PRELIMINARY
Short title
This Act may be cited as the Commonwealth Employees (Redeployment and Retirement) Act 1979.
Commencement
(1) Section 20 shall come into operation on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act shall come into operation upon a date to be fixed by Proclamation.
Interpretation
(1) In this Act, unless the contrary intention appears—
“declared employee” means an employee in respect of whom a redeployment declaration is in force;
“Department” means—
(a) a Department of the Australian Public Service; or
(b) a branch or part of the Australian Public Service in relation to which a person has, under an Act, the powers of, or exercisable by, the Permanent Head of a Department of the Australian Public Service as if that branch or part of that Service were a separate Department;
“employee” means a person to whom, and in relation to whom, this Act applies by virtue of section 5;
“Permanent Head” means—
(a) in relation to a Department of the Australian Public Service—the person who, under the Public Service Act 1922, holds, or is performing the duties of, the office of Permanent Head of that Department; and
(b) in relation to a branch or part of the Australian Public Service referred to in paragraph (b) of the definition of “Department”—the person who has the powers of, or exercisable by, the Permanent Head of a Department of the Australian Public Service so far as those powers relate to that branch or part of that Service as if that branch or part of that Service were a separate Department;
“prescribed Commonwealth authority” means an authority or other body that is declared by the regulations to be a prescribed Commonwealth authority for the purposes of this Act, being—
(a) a body corporate incorporated, whether before or after the commencement of this Act, for a public purpose by an Act, regulations made under an Act or a law of a Territory (other than the Northern Territory), being a body employing staff on its own behalf;
(b) an authority or body, not being a body corporate, established, whether before or after the commencement of this Act, for a public purpose by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory (other than the Northern Territory), being an authority or body employing staff on its own behalf;
(c) a company or other body corporate incorporated, whether before or after the commencement of this Act, under a law of a State or Territory, being a body corporate in which the Commonwealth has a controlling interest; or
(d) an authority or body established, whether before or after the commencement of this Act, and whether by, or in accordance with the provisions of, an Act, regulations made under an Act or a law of a Territory (other than the Northern Territory) or otherwise, and whether a body corporate or not, being an authority or body which is financed in whole or in substantial part, either directly or indirectly, by moneys provided by the Commonwealth and employs staff on its own behalf;
“redeployment declaration” means an instrument under section 9, or a declaration made by a Tribunal under sub-section 15(6), declaring an employee to be eligible for redeployment in accordance with Part II;
“Tribunal” means a Commonwealth Employees Redeployment and Retirement Appeals Tribunal established under section 16.
(2) A reference in this Act to employment, in relation to an employee, shall be read as a reference to employment in the Australian Public Service or employment by a prescribed Commonwealth authority, whichever is appropriate in the case of the employee.
(3) Regulations shall not be made for the purposes of the definition of “prescribed Commonwealth authority” in sub-section (1), being regulations that declare an authority or other body to be a prescribed Commonwealth authority for the purposes of this Act, unless the authority or other body has informed the Minister, in writing, that it consents to its being so declared.
Application of Act
This Act applies within and outside Australia and extends to all the Territories.
Persons in relation to whom this Act applies
(1) Subject to this section and to section 6, this Act applies to and in relation to—
(a) a person who is an officer within the meaning of the Public Service Act 1922;
(b) a person employed by a prescribed Commonwealth authority in a permanent capacity;
(c) a person who is an employee within the meaning of the Public Service Act 1922, being a person who has, for the immediately preceding period of one year (whether or not the period commenced before the commencement of this Act), been an employee, or an officer and then an employee, within the meaning of the Public Service Act 1922; and
(d) a person employed by a prescribed Commonwealth authority, otherwise than in a permanent capacity, being a person who has, for the immediately preceding period of one year (whether or not the period commenced before the commencement of this Act) been employed by that authority otherwise than in a permanent capacity, or in a permanent capacity and then otherwise than in a permanent capacity.
(2) Subject to section 6, this Act does not apply to or in relation to—
(a) a person who is remunerated by fees, allowances or commission only;
(b) a person who is employed in an honorary capacity only;
(c) a person referred to in paragraph (1)(a) or (b) who was appointed or employed on probation and whose appointment or employment has not been confirmed;
(d) a person who is employed under a contract of employment for a term of less than 1 year or for a term of years; or
(e) a person who is employed in a temporary capacity in a Department under section 82 of the Public Service Act 1922 on a condition specified in sub-section (4) of that section.
Orders relating to the application of this Act
(1) The Governor-General may, by order in writing published in the Gazette—
(a) declare that sub-section 5(2) shall not apply—
(i) to a person specified in the order, being a person employed under a contract of employment for a term of years; or
(ii) to persons included in a class of persons specified in the order, being a class of persons each of whom is employed under a contract of employment for a term of years; or
(b) declare that the provisions of this Act or of the regulations, or that any of the provisions of this Act or of the regulations specified in the order, shall not apply—
(i) to a person specified in the order; or
(ii) to persons included in a class of persons specified in the order.
(2) An order under sub-section (1) may be expressed to be in force for a period specified in the order and, in that case, the order shall be in force for that period only.
(3) A reference in sub-section (1) to a provision of this Act or of the regulations includes a reference to a particular part of a provision of this Act or of the regulations.
PART II–REDEPLOYMENT OF EMPLOYEES
Objects of Part
(1) The objects of this Part are—
(a) first, to ensure, to the greatest extent that is practicable, that each Department and each prescribed Commonwealth authority operates in such a manner as to make efficient and economical use of the services of the persons employed in the Department or by the authority; and
(b) secondly, to ensure, to the greatest extent that is practicable, that each employee in a Department, and each employee of a prescribed Commonwealth authority, whose services cannot, consistently with the achievement of the first object of this Part, reasonably be used in the Department or by the authority, as the case may be—
(i) for the reason that he is included in a class of employees employed in the Department or by the authority which comprises a greater number of employees than is necessary for the efficient and economical working of the Department or authority;
(ii) for the reason that he is, in consequence of physical or mental incapacity, incapable of performing his duties; or
(iii) for any other prescribed reason,
is redeployed in the Australian Public Service or in the employment of a prescribed Commonwealth authority on duties which he can reasonably be required to perform.
(2) Regulations prescribing a reason for the purposes of paragraph (1)(b) shall not be made except after consideration by the Governor-General of a report made to the Governor-General by the Public Service Board after consultation by the Public Service Board with the organisations, being organisations representing the interests of employees or a class of employees, prescribed for the purposes of this section.
Approved criteria and procedures
(1) The Public Service Board may, from time to time, publish in the Gazette a notice setting out administrative procedures to be followed by Departments for the purpose of facilitating the achievement of the objects of this Part.
(2) A prescribed Commonwealth authority may, from time to time, but only after consultation with the Public Service Board, publish in the Gazette a notice setting out administrative procedures to be followed by the authority for the purpose of facilitating the achievement of the objects of this Part.
(3) Without limiting the generality of sub-section (1) or (2), the administrative procedures—
(a) may specify criteria by reference to which—
(i) an employee in a Department or a part of a Department; or
(ii) an employee of an authority, or an employee of an authority employed in a branch of the authority,
may be identified as an employee whose services cannot, for a reason referred to in sub-paragraph 7(1)(b)(i), (ii) or (iii), reasonably be used in the Department, in that part of the Department, by the authority or by the authority in that branch, as the case may be, consistently with the achievement of the first object of this Part by the Department or authority, as the case may be;
(b) may make provision for defining the occasions on which, or circumstances in which, those procedures should be given effect to for the purpose of determining whether the services of any employee in the Department, or of the authority, cannot, consistently with the achievement of the first object of this Part, reasonably be used in the Department or by the authority; and
(c) may, in the case of procedures set out in a notice under sub-section (1), make provision for authorizing the Public Service Board, by notice in writing given to the Permanent Head of a Department, to direct that effect be given to the procedures in relation to a specified employee, or a specified class of employees, in the Department.
(4) The Public Service Board may revoke, or from time to time vary, a notice published by it under sub-section (1).
(5) A prescribed Commonwealth authority may, after consultation with the Public Service Board, revoke, or from time to time vary, a notice published by it under sub-section (2).
(6) A reference in this section to an employee does not include a reference to a person who is included in the First Division of the Australian Public Service.
Efficient and economical use of staff
(1) The Permanent Head of a Deparment—
(a) is responsible for ensuring that the Department operates in such a manner as to make as efficient and economical use of the services of the persons employed in the Department as is practicable; and
(b) without limiting the generality of paragraph (a)—
(i) shall give all such directions, and do all such things, as can be given or done by him for ensuring that the procedures set out in a notice in force under sub-section 8 (1) (including any directions given by the Public Service Board under those procedures) are, so far as they are relevant to the operation of the Department, given effect to in the administration of the Department; and
(ii) shall cause each employee in the Department who, in accordance with the procedures set out in a notice in force under sub-section 8(1), is identified as an employee whose services cannot, for a reason referred to in subparagraph 7(1)(b)(i), (ii) or (iii), reasonably be used in the Department, or in a part of the Department, to be declared, by instrument in writing, to be, for that reason, eligible for redeployment in accordance with this Part.
(2) A prescribed Commonwealth authority—
(a) shall organise its operations in such a manner as to make as efficient and economical use of the services of the persons employed by it as is practicable; and
(b) without limiting the generality of paragraph (a)—
(i) shall give all such directions, and do all such things, as can be given or done by it for ensuring that the procedures set out by it in a notice in force under sub-section 8 (2) are given effect to in the administration of the affairs of the authority; and
(ii) shall cause each employee of the authority who, in accordance with the procedures set out by it in a notice in force under sub-section 8 (2), is identified as an employee whose services cannot, for a reason referred to in sub-paragraph 7 (1) (b) (i), (ii) and (iii), reasonably be used by the authority, or be used by the authority in a branch of the authority, to be declared, by instrument in writing, to be, for that reason, eligible for redeployment in accordance with this Part.
(3) Nothing in sub-section (1) or (2) requires or authorizes the making of an instrument declaring an employee to be eligible for redeployment in accordance with this Part if the employee was identified, under a relevant notice under section 8, as an employee whose services cannot reasonably be used in a Department or a part of a Department, or by a prescribed Commonwealth authority or by such an authority in a branch of the authority, for the reason that he is inefficient or incompetent for causes within his own control.
Notification of declaration
(1) Where a redeployment declaration is made under section 9 in respect of an employee in a Department, the Permanent Head of the Department shall furnish copies of the declaration to the employee and to the Public Service Board.
(2) Where a redeployment declaration is made under section 9 in respect of an employee of a prescribed Commonwealth authority, the prescribed Commonwealth authority shall furnish copies of the declaration to the employee and to the Public Service Board.
(3) Where a redeployment declaration is made by a Tribunal under sub-section 15(6) in respect of an employee in a Department or of a prescribed Commonwealth authority, the Tribunal shall cause copies of the declaration to be furnished to the employee, to the Public Service Board and to the Permanent Head of the Department or the prescribed Commonwealth authority, as the case requires.
Public Service Board to attempt to redeploy declared employees
(1) Where the Public Service Board receives a copy of a redeployment declaration in respect of an employee, the Board shall take such action as it considers reasonable and practicable for it to take to redeploy the employee in the Australian Public Service, or to arrange for the redeployment of the employee in the employment of a prescribed Commonwealth authority, on duties which the Board considers he is competent to perform and can reasonably be required to perform.
(2) The Public Service Board may, from time to time, publish in the Gazette—
(a) a notice setting out principles in accordance with which it will perform its functions under sub-section (1) with respect to declared employees generally or with respect to employees included in a specified class of declared employees, being principles which the Board considers it desirable that it should comply with for the purpose of facilitating the achievement of the first object of this Part by Departments and prescribed Commonwealth authorities; and
(b) a notice revoking or varying principles set out in a notice under paragraph (a).
(3) In determining what action to take under sub-section (1) in respect of a declared employee, the Public Service Board shall give effect to any principles set out in a notice under sub-section (2) that are applicable in the case of the employee.
(4) Subject to sub-section (3), the Public Service Board shall, in determining what action to take under sub-section (1) in respect of a declared employee, have regard to—
(a) matters related to the efficient operation of a Department, or of a prescribed Commonwealth authority, and to the efficient and economical use of the persons employed in a Department or by a prescribed Commonwealth authority;
(b) the feasibility, having regard to the first object of this Part, of retraining the employee with a view to his becoming employed in a Department, or in the service of a prescribed Commonwealth authority, on work for which he has been re-trained;
(c) the educational standard attained by, and any professional, technical or other special qualifications possessed by, the employee concerned;
(d) the interests of the employee concerned; and
(e) the interests of persons employed in a Department or by a prescribed Commonwealth authority.
(5) The Public Service Board shall not take action under sub-section (1) in relation to a redeployment declaration made under section 9 in respect of an employee unless—
(a) the employee has waived his right to appeal against the declaration or the time within which the employee may appeal against the declaration has expired and no such appeal has been instituted; or
(b) if such an appeal has been instituted—
(i) the appeal has been heard and determined and the declaration has been confirmed; or
(ii) the appeal has been withdrawn.
(6) When the Public Service Board has complied with sub-section (1) in respect of an employee, the Board shall—
(a) if it has redeployed, or arranged for the redeployment of, the employee—notify the employee, in writing, accordingly and revoke the redeployment declaration in respect of the employee; or
(b) in any other case—issue to the Permanent Head or prescribed Commonwealth authority concerned a certificate in writing certifying that it has not been practicable to redeploy the employee, and furnish a copy of the certificate to the employee.
(7) A certificate under paragraph (6)(b) in respect of an employee shall state the reason for which the employee was declared to be eligible for redeployment.
Redeployment in Public Service
(1) For the purpose of enabling the Public Service Board to perform the functions conferred on it by sub-section 11(1), the Public Service Board may—
(a) transfer a declared employee who is an officer within the meaning of the Public Service Act 1922 to an office in a Department for which he is qualified, being an office that has the same classification as, or a lower classification than, the classification of the office held, or last held, by the employee;
(b) by instrument in writing, declare that a declared employee who holds an office in a Department shall, on a date specified in the instrument, become an unattached officer and direct that he commence, on that date, to perform specified duties, being duties which the Board considers he is competent to perform, and that he have such designation (being a designation corresponding to that of an office in the Division in which he is included) as the Board determines to be appropriate to those duties;
(c) by instrument in writing, direct that a declared employee who is an unattached officer of the Australian Public Service commence, on a date specified in the instrument, to perform duties specified in the instrument, being duties which the Board considers he is competent to perform, and that he have such designation (being a designation corresponding to that of an office in the Division in which he is included) as the Board determines to be appropriate to those duties;
(d) direct that a declared employee who is an employee within the meaning of the Public Service Act 1922 be employed on any duties in the Australian Public Service which the Board considers he is competent to perform;
(e) appoint under Public Service Act 1922, notwithstanding any provision of that Act except paragraphs 34(a) and (c), a declared employee who is employed by a prescribed Commonwealth authority in a permanent capacity—
(i) to an office in the Australian Public Service, being an office the duties of which the Board considers he is competent to perform; or
(ii) to the Australian Public Service as an unattached officer to perform duties which the Board considers he is competent to perform;
(f) notwithstanding the provisions of section 82 of the Public Service Act 1922, employ in a Department, in a temporary capacity, a declared employee who is employed by a prescribed Commonwealth authority;
(g) by notice in writing given to the Permanent Head of a Department in which a specified office exists, or in which any offices included in a specified class of offices exist, direct that, until the notice is revoked, a transfer or promotion of an officer to fill a vacancy in the office, or in an office included in the class of offices, shall not be made under section 50 of the Public Service Act 1922 unless the Board has approved the filling of the vacancy by the transfer or promotion of an officer;
(h) by notice in writing given to the Permanent Head of a Department, direct that the Permanent Head shall not confirm a specified provisional promotion, or a provisional promotion included in a specified class of provisional promotions, made under the Public Service Act 1922 unless the Board has approved the confirmation of the promotion; and
(j) cancel a provisional promotion made under the Public Service Act 1922 at any time before the promotion has been confirmed under that Act, whether or not an appeal has been made under that Act against the promotion or, if an appeal has, or appeals have, been made, whether or not the appeal or each appeal has been determined or has become inoperative.
(2) Where the Public Service Board transfers a declared employee to an office in a Department under paragraph (1)(a), the transfer has effect, for the purposes of the Public Service Act 1922 and the regulations in force under that Act, as if it had been made by the Permanent Head of the Department under that Act.
(3) Where, in pursuance of paragraph (1)(b), the Public Service Board, by instrument in writing, declares that a declared employee who holds an office in a Department shall become, on a date specified in that instrument, an unattached officer of the Australian Public Service, that office shall become vacant upon that date.
(4) Subject to this Act, the Public Service Act 1922 applies to a person employed by the Public Service Board under paragraph (1)(f) in a temporary capacity in a Department as if the person had been employed by a Chief Officer of the Department under sub-section 82(1a) of the Public Service Act 1922.
(5) The power conferred on the Public Service Board by paragraph (1)(g) is in addition to, and not in substitution for, the power conferred on the Board by sub-section 50(11) of the Public Service Act 1922.
Redeployment by prescribed Commonwealth authorities
(1) For the purposes of facilitating the performance by the Public Service Board of the functions conferred on it by sub-section 11(1)—
(a) a prescribed Commonwealth authority has such powers to employ persons, and to transfer persons employed by it, as are prescribed;
(b) without limiting the powers of a prescribed Commonwealth authority, the Public Service Board, after consultation with that authority—
(i) may, on behalf of that authority, engage as an employee of the authority in a permanent capacity a declared employee who is employed in a permanent capacity in the Australian Public Service or by another prescribed Commonwealth authority; and
(ii) may, on behalf of that authority, engage as an employee of the authority otherwise than in a permanent capacity a declared employee who is employed in the Australian Public Service or by another prescribed Commonwealth authority; and
(c) the Public Service Board may request a prescribed Commonwealth authority to furnish to the Board, as soon as practicable, such particulars as the Board specifies concerning opportunities that exist, or are likely to exist during a period specified by the Board, for employment by the authority either in a permanent capacity or in a temporary capacity, or both, and the authority shall comply with the request.
(2) Any powers conferred on a prescribed Commonwealth authority by sub-section (1) are in addition to, and not in substitution for, any powers otherwise conferred on the authority to employ persons or to transfer persons employed by it.
(3) Where the Public Service Board engages a declared employee as an employee of a prescribed Commonwealth authority under paragraph (1)(b), the Board may, after consultation with that authority, determine the salary payable to that employee upon his being so engaged.
(4) The engagement, by the Public Service Board, of a person in the employment of a prescribed Commonwealth authority has the same force and effect for all purposes as it would have if the person had been so engaged by the authority.
(5) In this section, a reference to a declared employee shall be read as a reference to a person declared, by a redeployment declaration that is in force, to be, for the reason referred to in sub-paragraph 7(1)(b)(i), eligible for redeployment in accordance with this Part.
Invalidity precluding redeployment
(1) Where an employee who has been declared to be eligible for redeployment in accordance with this Part for the reason referred to in sub-paragraph 7(1)(b)(ii) has not been redeployed in accordance with section 11, the Public Service Board may, if it is satisfied that the employee should, in consequence of his incapacity, be retired from his employment, issue to the Permanent Head or prescribed Commonwealth authority concerned a certificate, in writing, certifying that it is satisfied that the employee should, for the reason so referred to, be retired from his employment.
(2) Where the Public Service Board issues a certificate under sub-section (1) in respect of an employee, the Board shall furnish a copy of the certificate to the employee.
(3) The Public Service Board shall not issue a certificate under sub-section (1) in respect of an employee unless—
(a) the employee has waived his right to appeal against the redeployment declaration relating to him or the time within which the employee may appeal against that declaration has expired and no such appeal has been instituted; or
(b) if such an appeal has been instituted—
(i) the appeal has been heard and determined and the declaration has been confirmed; or
(ii) the appeal has been withdrawn.
Appeals
(1) An employee may appeal to a Tribunal against—
(a) the making of a redeployment declaration under section 9 in respect of the employee;
(b) the issue of a certificate under section 11 or 14 in respect of the employee; or
(c) action taken under this Act by way of the redeployment of the employee in the Australian Public Service or in the employment of a prescribed Commonwealth authority.
(2) Where an employee appeals to a Tribunal under sub-section (1), a Tribunal shall hear and determine the appeal and may—
(a) in the case of an appeal against the making of a redeployment declaration under section 9—
(i) confirm the declaration;
(ii) revoke the declaration; or
(iii) revoke the declaration and make a redeployment declaration in respect of another employee under sub-section (6);
(b) in the case of an appeal against the issue of a certificate under section 11 or 14—confirm or revoke the certificate; or
(c) in the case of an appeal against action taken by way of the redeployment of an employee—
(i) confirm the taking of the action; or
(ii) set aside the taking of the action and remit the matter to the Public Service Board for the Board to take such other action by way of the redeployment of the employee as the Board thinks fit.
(3) Where a Tribunal hears an appeal against the making of a redeployment declaration made under section 9 in respect of an employee, the Tribunal shall, in determining the appeal, apply the criteria set out in a notice under section 8 that were applicable to the decision by the Department or prescribed Commonwealth authority concerned to make the declaration.
(4) Where a Tribunal hears an appeal against the issue of a certificate under section 11 or 14 or against the taking of action by way of the redeployment of an employee, the Tribunal shall determine the appeal in accordance with the principles, if any, set out in a notice under sub-section 11 (2) to which the Public Service Board was required by sub-section 11 (3) to give effect and shall have regard to the matters to which the Public Service Board was required by sub-section 11 (4) to have regard in relation to the issue of the certificate or the taking of the action, as the case may be.
(5) Where a declared employee, being an employee in respect of whom a redeployment declaration has been made by reason that he is included in a class of employees employed in a Department or by a prescribed Commonwealth authority which comprises a greater number of employees than is necessary for the efficient and economical working of the Department or authority, appeals to a Tribunal against the making, under section 9, of that declaration in relation to him, the Tribunal may—
(a) if the employee is employed in a Department—at the request of the employee or of the Public Service Board; or
(b) if the employee is employed by a prescribed Commonwealth authority—at the request of the employee or of that authority,
join all or any of the employees included in that class as parties to that appeal.
(6) Where a Tribunal hears an appeal by a declared employee against the making of a redeployment declaration under section 9 in respect of the employee, the Tribunal may, if it is satisfied that a redeployment declaration should have been made in respect of another employee (being an employee who has been joined as a party to the appeal under sub-section (5) ) instead of in respect of that declared employee, determine the appeal by revoking the declaration made in respect of that declared employee and making a declaration declaring that other employee to be eligible for redeployment in accordance with this Part.
(7) A Tribunal may, upon hearing and determining an appeal under this Act, furnish to the Public Service Board, or to a prescribed Commonwealth authority, any comments the Tribunal deems it desirable to make with respect to the administrative procedures set out in a notice under section 8, or the principles set out in a notice under section 11, that were relevant to the appeal.
(8) Where a Tribunal revokes a certificate issued under section 11 or 14 in respect of an employee, section 11 applies to and in relation to the employee as if the certificate had not been issued.
(9) Where the Tribunal sets aside action taken by way of the redeployment of an employee—section 11 applies to and in relation to the employee as if that first-mentioned action had not been taken.
(10) The Tribunal shall give reasons, in writing, for its decision on an appeal under this section.
(11) Where a Tribunal sets aside the taking of action by way of the redeployment of an employee—
(a) if the employee was, prior to the taking of the action, employed in a Department—the Public Service Board; or
(b) if the employee was, prior to the taking of the action, employed by a prescribed Commonwealth authority—that authority,
shall take such action as is necessary to restore the situation, in relation to his employment, which existed immediately before he was redeployed.
Commonwealth Employees Redeployment and Retirement Appeals Tribunals
(1) The Public Service Board shall, from time to time, arrange for the establishment, in accordance with this section, of such Commonwealth Employees Redeployment and Retirement Appeals Tribunals as are required for the purposes of this Act.
(2) A Tribunal established for the purposes of an appeal under section 15 shall be constituted by—
(a) a Chairman—
(i) who shall be the person appointed by the Governor-General to be a Chairman of the Commonwealth Employees Redeployment and Retirement Appeals Tribunal established for the purpose of that appeal or of a class of appeals in which that appeal is included; or
(ii) who shall be a person appointed by the Governor-General to be a Chairman of a Commonwealth Employees Redeployment and Retirement Appeals Tribunal;
(b) one person nominated as provided in the regulations to represent—
(i) in the case of an appeal against the making of a redeployment declaration—the Department or Commonwealth authority concerned; or
(ii) in any other case—the Public Service Board; and
(c) one person nominated as provided in the regulations to represent employees.
(3) A Chairman of a Tribunal shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by that Tribunal is in operation, he shall be paid such remuneration as is prescribed.
(4) A member of a Tribunal shall be paid such allowances as are prescribed.
(5) Sub-sections (3) and (4) have effect subject to the Remuneration Tribunals Act 1973.
(6) A person appointed as a Chairman of a Tribunal under sub-paragraph (2)(a)(ii) shall be appointed for such period as is specified in the instrument of his appointment.
(7) Subject to sub-sections (3) and (4), a Chairman of a Tribunal holds office on such terms and conditions as the Governor-General determines.
(8) A person who has attained the age of 65 years shall not be appointed or re-appointed as a Chairman of a Tribunal under sub-paragraph (2)(a)(ii) for a specified period that commences after, or extends beyond, the date at which he will attain the age of 65 years.
(9) For the purposes of hearing and determining an appeal under section 15, a Tribunal may take evidence on oath or affirmation and, for those purposes, the Chairman of the Tribunal may administer an oath or affirmation.
(10) In hearing and determining an appeal under section 15—
(a) the procedure of a Tribunal is, subject to this Act and to the regulations, within the discretion of the Tribunal;
(b) the proceedings shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, and a proper consideration of the matter before the Tribunal, permit; and
(c) the Tribunal is not bound by rules of evidence.
(11) Where the hearing of an appeal has been commenced before a Tribunal but, before the appeal has been finally determined, a member of the Tribunal has ceased to be such a member or, for any other reason, is unable to take any further part in the determination of the appeal, the 2 remaining members of the Tribunal, with the consent of the parties, constitute the Tribunal for the purpose—
(a) if the hearing has not been completed—of completing the heading; and
(b) if both members concur in the decision—of determining the appeal.
(12) If, for any reason, a Tribunal constituted in accordance with sub-section (11) by the remaining members of the Tribunal established under sub-section (2) to hear and determine an appeal does not complete the hearing and determine the appeal, a new Tribunal constituted in accordance with sub-section (2) shall hear and determine the appeal and, for that purpose, may have regard to the evidence given, the argument adduced and the reasons for any decision given during the previous hearing.
PART III–RETIREMENT OF EMPLOYEES
Division 1—Voluntary Retirement
Retirement of employees upon or after attaining minimum retiring age
(1) An employee who has attained his minimum retiring age is entitled to retire from his employment at any time he desires to do so.
(2) In sub-section (1), “minimum retiring age” means, in relation to an employee—
(a) if the employee is included in a class of employees in respect of whom a minimum retiring age is fixed by the regulations—the age so fixed; or
(b) in the case of any other employee—the age of 55 years.
Division 2—Compulsory Retirement
Retirement of First Division officers on ground of inefficiency or incapacity
(1) If, upon report to the Governor-General by the Public Service Board after investigation by the Board into the circumstances, it appears to the Governor-General that a person included in the First Division of the Australian Public Service is inefficient or incompetent, or is, by reason of physical or mental incapacity, incapable of performing his duties, the Governor-General may retire the officer from the Australian Public Service on a date to be specified by the Governor-General, or may transfer him to some other office, with salary appropriate to that other office.
(2) In the case of a retirement of an officer under sub-section (1) on the ground that he is, by reason of physical or mental incapacity, incapable of performing his duties, the date from which he is retired may, with the consent of the officer, be a date earlier than the date on which the decision by the Governor-General to retire him was made.
Retirement of employees who cannot be redeployed
(1) Subject to sub-section (3), where the Permanent Head of a Department receives a certificate issued under section 11 or 14 in respect of an employee, the Permanent Head shall retire the employee from the Australian Public Service on a date to be specified by the Permanent Head unless the Permanent Head is able, consistently with the achievement of the first object of Part II, to employ the employee in the Department on duties which the Permanent Head considers the employee is competent to perform and can reasonably be required to perform.
(2) Subject to sub-section (3), where a prescribed Commonwealth authority receives a certificate issued under section 11 or 14 in respect of an employee, the authority shall retire the employee, Or cause the employee to be retired, from his employment on a date to be specified by the authority unless, consistently with the achievement of the first object of Part II, the employee can be employed by the authority in the performance of duties which the authority considers that the employee is competent to perform and can reasonably be required to perform.
(3) Action shall not be taken under sub-section (1) or (2) to retire an employee, or cause an employee to be retired, from his employment unless—
(a) the employee has waived his right to appeal against the issue of the certificate issued under this Act in respect of the employee or the time within which the employee may appeal against the issue of the certificate has expired and no such appeal has been instituted; or
(b) if such an appeal has been instituted—
(i) the appeal has been heard and determined and the certificate has been confirmed; or
(ii) the appeal has been withdrawn.
(4) Where an employee is retired under this section on the ground of invalidity, the date as from which he is retired may, with the consent of the employee, be a date earlier than the date on which the action to retire him was taken.
First Division officers recommended for retirement on medical grounds may be declared unattached officers
(1) Where a medical practitioner employed in the Department of Health has, whether before or after the commencement of this section, recommended in writing that an employee, being an employee who holds an office in the First Division of the Australian Public Service, be retired on the ground that he is, by reason of physical or mental incapacity, incapable of performing his duties, the Governor-General may declare, upon report by the Board, by instrument in writing, that the employee shall, on a date specified in the instrument, become an unattached officer and, if the Governor-General does so, the office held by the officer becomes vacant on the date so specified.
(2) As soon as practicable after a declaration is made under sub-section (1) in respect of an employee—
(a) a copy of the declaration shall be furnished to the employee; and
(b) a copy of the declaration shall be published in the Gazette.
Second, Third and Fourth Division officers recommended for retirement on medical grounds may be declared unattached
(1) At any time after a medical practitioner employed in the Department of Health has recommended, in writing, that an employee who holds an office in the Second, Third or Fourth Division of the Australian Public Service, being an officer who has, for the reason referred to in sub-paragraph 7(1)(b)(ii), been declared to be eligible for redeployment, be retired on the ground that he is, by reason of physical or mental incapacity, incapable of performing his duties, the Board may declare, by instrument in writing, that the employee shall, on a date specified in the instrument, become an unattached officer and, if the Board does so, the office so held by the officer becomes vacant on the date so specified.
(2) As soon as practicable after a declaration is made under sub-section (1) in respect of an employee a copy of the declaration shall be furnished to the employee.
Retirement on ground of age
(1) Subject to sub-section (2), an employee shall, by force of this sub-section, be retired from his employment upon attaining his maximum retiring age.
(2) Where the relevant authority in respect of an employee who has not attained his maximum retiring age is of the opinion that it is desirable, in the interests of the Commonwealth, that the employee should continue, after he has attained that age, in his employment, and the employee is able and willing so to continue, the relevant authority may determine, in writing, that sub-section (1) does not apply to the employee.
(3) A relevant authority may, at the time it makes, or at any time after it has made, a determination under sub-section (2) in respect of an employee, determine that the employee shall retire from his employment upon attaining a specified age or upon the expiration of a specified period, and may, at any time, vary such a determination.
(4) A determination shall not be made under sub-section (2) in respect of an employee who holds an office of Permanent Head of a Department of the Australian Public Service, being an employee who was appointed to fill the vacancy in that office after the commencement of the Public Service Amendment (First Division Officers) Act 1976, if he was not, when so appointed, an established candidate, within the meaning of section 54 of the Public Service Act 1922, in relation to the vacancy.
(5) In this section—
“maximum retiring age” means, in relation to an employee—
(a) if the employee is included in a class of employees in respect of whom a maximum retiring age, being an age less than 65 years, is fixed by the regulations—the age so fixed; or
(b) in the case of any other employee—the age of 65 years;
“relevant authority” means—
(a) in respect of a person included in the First Division of the Australian Public Service—the Governor-General;
(b) in respect of a person included in the Second, Third or Fourth Division of the Australian Public Service or an employee within the meaning of the Public Service Act 1922—the Public Service Board; or
(c) in respect of an employee who is employed by a prescribed Commonwealth authority—that authority.
PART IV—MISCELLANEOUS
Benefits
(1) The regulations may make provision for and in relation to—
(a) the payment, in such circumstances as are prescribed, to or in respect of an employee (being an employee who has been declared to be eligible for redeployment for a reason referred to in sub-paragraph 7(1)(b)(i) or (iii) and has been retired under section 19) of a benefit, by way of a lump sum, calculated in such manner as is provided for in the regulations; or
(b) the reimbursement, in such circumstances as are prescribed, of expenses of a prescribed kind incurred by a declared employee.
(2) The regulations—
(a) may make provision for the purpose of—
(i) enabling a person entitled to the payment of a lump sum under regulations made in pursuance of sub-section (1) to elect to have paid, in lieu of that sum, benefits, calculated in such manner as is provided for in the regulations, being pension benefits similar to pension benefits payable under the Superannuation Act 1976; and
(ii) enabling the payment of such a pension benefit to the person entitled to it in association with any benefit payable to the person under the Superannuation Act 1976 and as if it were a benefit payable under that Act;
(b) may apply the provisions of the Superannuation Act 1976, other than the provisions of Part X of that Act, subject to such modifications and adaptations as are prescribed by the regulations, to and in relation to such a benefit; and
(c) may make such other provision, not inconsistent with this Act, as is necessary or convenient to be made for carrying out or giving effect to the purpose specified in paragraph (a).
(3) The provision that may be made by regulations in pursuance of sub-section (2)—
(a) shall not enable an election referred to in that sub-section to be made by a person—
(i) who did not become, upon retirement under section 19, entitled to a pension under the Superannuation Act 1976; or
(ii) who has made an election under that Act by virtue of which he has become entitled to receive, as a lump sum benefit, all the benefits which, but for the election, he would be entitled to under that Act in consequence of his retirement under section 19; and
(b) shall include provision for an election referred to in sub-section (2) to become void if the person who made the election subsequently makes an election under the Superannuation Act 1976 by virtue of which he becomes entitled to receive, as a lump sum benefit, all the benefits which, but for that last-mentioned election, he would be entitled to under that Act in consequence of his retirement under section 19.
(4) A payment of benefit, or by way of reimbursement of expenses, under regulations made in pursuance of this section is payable—
(a) in the case of a payment of a pension benefit that is payable as if it were a pension benefit payable under the Superannuation Act 1976—out of the Consolidated Revenue Fund, in accordance with the appropriation of that Fund made by that Act for the payments of benefits under that Act, as if it were a payment of a pension benefit under that Act;
(b) in the case of a payment (not being a payment to which paragraph (a) applies) payable to a person employed in the Australian Public Service, or payable to or in respect of a person who has retired from the Australian Public Service under section 19—out of moneys lawfully available for the purpose; or
(c) in the case of a payment (not being a payment to which paragraph (a) applies) payable to a person employed by a prescribed authority of the Commonwealth, or payable to or in respect of a person who has been retired from his employment with a prescribed Commonwealth authority under section 19—out of moneys of the authority.
(5) In sub-section (2), “modification” includes the addition or omission of a provision or the substitution of a provision for another provision.
(6) Where, by virtue of an election referred to in paragraph (2) (a), benefits become payable to or in respect of a person in lieu of the lump sum that would, under the regulations, have otherwise been payable to or in respect of that person by a prescribed Commonwealth authority, the authority shall pay to the Commonwealth an amount equal to the amount of the lump sum and the authority may apply for that purpose any moneys under its control.
(7) The Minister for Finance may enter into an arrangement with a prescribed Commonwealth authority for the making of payments to the Commonwealth by the authority in lieu of payments that, but for the arrangement, the authority would be required to make under sub-section (6), being an arrangement which the Minister for Finance is satisfied will provide a fair basis of payment to the Commonwealth in respect of amounts paid, payable or likely to become payable out of the Consolidated Revenue Fund to or in respect of a person who has been employed by the authority, and the authority may apply for the purposes of the arrangement any moneys under its control.
(8) A reference in sub-section (7) to the Minister for Finance shall be read as including a reference to a person authorized by the Minister for the purposes of that sub-section.
(9) The regulations may provide that the provisions of sub-sections (6) and (7) do not apply to a prescribed Commonwealth authority specified in the regulations for the purposes of this sub-section.
Inconsistency with other laws, &c.
(1) Subject to sub-section (3), where a provision of the terms and conditions of employment of an employee of a prescribed Commonwealth authority contained in a law of the Commonwealth or of a Territory (other than the Northern Territory) or determined under such a law is inconsistent with a provision of this Act, the latter provision shall prevail and the former provision shall, to the extent of the inconsistency, be inoperative in relation to the employee.
(2) Subject to sub-section (1), this Act does not affect the application to an employee of a prescribed Commonwealth authority of a law of the Commonwealth or of a Territory (other than the Northern Territory) to the extent that that law is capable of operating concurrently with this Act.
(3) Where a term of an award, whether made before or after the commencement of this Act, that applies in relation to an employee is inconsistent with a provision of this Act, the term shall prevail and the provision of this Act shall, to the extent of the inconsistency, be inoperative in relation to the employee.
(4) A reference in sub-section (3) to an award shall be read as a reference to—
(a) an award of the Conciliation and Arbitration Commission;
(b) a determination made under the Public Service Arbitration Act 1920, or by the Conciliation and Arbitration Commission on appeal under that Act; or
(c) an agreement to which section 31 of the Conciliation and Arbitration Act 1904 applies.
Delegation
(1) The Public Service Board may, either generally or as otherwise provided by the instrument of delegation, by instrument in writing, delegate to—
(a) an officer or employee within the meaning of the Public Service Act 1922; or
(b) a person who holds, or is acting in, an office or appointment under an Act other than the Public Service Act 1922 or under an Ordinance of a Territory,
any of its powers under this Act, other than this power of delegation.
(2) A Permanent Head may, either generally or as otherwise provided by the instrument of delegation, by instrument in writing, delegate to–
(a) an officer or employee within the meaning of the Public Service Act 1922; or
(b) a person who holds, or is acting in, an office or appointment under an Act other than the Public Service Act 1922 or under an Ordinance of a Territory, or an office of member of the Public Service Board,
any of his powers under this Act, other than this power of delegation.
(3) A prescribed Commonwealth authority may, either generally or as otherwise provided by the instrument of delegation—
(a) if the authority is a body corporate—by instrument under its seal; or
(b) in any other case—by instrument in writing,
delegate to a member of the authority or to a person employed by the authority any of its powers under this Act, other than this power of delegation.
(4) A power so delegated by a person, authority or body under this section and exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by that person, authority or body.
(5) A delegation given by a person, authority or body under this section does not prevent the exercise of a power by that person, authority or body.
Amendments of Acts
The Acts specified in Column 1 of the Schedule are amended as respectively specified in Column 2 of the Schedule.
Transitional provisions
(1) Where, before the commencing day the Chief Officer had reported to the Public Service Board under section 67 of the Public Service Act 1922 in respect of an officer within the meaning of that Act but the Public Service Board had not retired the officer from the Australian Public Service or transferred him to another office under that section, the provisions of that section continue to apply to and in relation to the officer as if it had not been repealed by this Act.
(2) The repeal of section 86 of the Public Service Act 1922 does not affect the operation, after the date on which this Act receives the Royal Assent, of a direction given by the Public Service Board under that section before that date.
(3) Where a person who is, on the commencing day, an employee within the meaning of the Public Service Act 1922—
(a) was such an employee on the day immediately preceding the commencing day; and
(b) had attained the age that is his maximum retiring age before the commencing day,
section 22 does not apply to him, but his services may be dispensed with under the Public Service Act 1922 as if the amendments of that Act made by this Act had not been made.
(4) Where a person who is, on the commencing day, an employee of a prescribed Commonwealth authority—
(a) was an employee of that authority on the day immediately preceding the commencing day; and
(b) had attained the age that is his maximum retiring age before the commencing day,
section 22 does not apply to him but his services may be dispensed with in accordance with the terms and conditions of employment applicable to him immediately before the commencing day as if those terms and conditions had not been affected by this Act.
(5) In this section—
“commencing day” means—
(a) in relation to an officer or employee within the meaning of the Public Service Act 1922—the date fixed by Proclamation under sub-section 2(2) of this Act; and
(b) in relation to an employee of a prescribed Commonwealth authority—the date on which the authority becomes a prescribed Commonwealth authority for the purposes of this Act;
“maximum retiring age”, in relation to an employee, has the same meaning as in section 22.
Application of Act to employees in Parliamentary Departments, &c.
(1) Where the Governor-General is satisfied that it is desirable to modify the application of this Act in relation to employees in a Parliamentary Department, the Governor-General may make regulations declaring that this Act shall apply to and in relation to employees in the Department subject to specified modifications and adaptations.
(2) Where the Governor-General is satisfied that it is desirable to modify the application of this Act in relation to employees of a particular prescribed Commonwealth authority, the Governor-General may make regulations declaring that this Act shall apply in relation to employees in that prescribed Commonwealth authority subject to specified modifications and adaptations.
(3) In this section—
“modification” includes the addition or omission of a provision or the substitution of a provision for another provision;
“Parliamentary Department” means—
(a) the Department of the Senate;
(b) the Department of the House of Representatives;
(c) the Department of the Parliamentary Library;
(d) the Department of the Parliamentary Reporting Staff; or
(e) the Joint House Department.
Regulations
(1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular—
(a) for regulating the manner in which, and the time within which, appeals may be made to a Tribunal;
(b) for regulating the procedure of Tribunals, including, without limiting the generality of the foregoing—
(i) the manner by which, and the circumstances in which, 2 or more appeals may be consolidated and heard together;
(ii) the manner in which employees may be joined as parties to an appeal under sub-section 15(5);
(iii) the procedure for summoning witnesses and requiring
the production of documents; and
(iv) the procedure for the service of documents upon persons;
(c) prescribing the circumstances in which, and the procedure by which, the evidence of an employee appealing to a Tribunal, or of a witness concerned in an appeal to a Tribunal, may be taken by a member of the Tribunal, or a person other than a member of the Tribunal, who is authorized by the Tribunal to take that evidence;
(d) for applying the provisions of this Act, subject to such modifications and adaptations (if any) as are prescribed, to and in relation to—
(i) persons appointed under section 5 of the Commonwealth Police Act 1957;
(ii) the person holding office as the Commonwealth Teaching Service Commissioner under the Commonwealth Teaching Service Act 1972 and persons appointed as officers, or engaged as employees, under that Act;
(iii) persons who hold offices or appointments (not being offices or appointments in the Defence Force) under regulations made under the Naval Defence Act 1901;
(iv) persons appointed under section 5 of the Police Ordinance 1927 of the Australian Capital Territory, as amended; or
(v) persons who are employed under section 10 of the Supply and Development Act 1939.
(2) In sub-section (1), “modification” includes the addition or omission of a provision or the substitution of a provision for another provision.
SCHEDULE Section 26
AMENDMENTS OF ACTS
Column 1
Column 2
Act
Extent of Amendment
Long Service Leave (Commonwealth Employees) Act 1976
Section 4—Omit sub-section (9), insert the following sub-sections:“(9) For the purposes of this Act, the minimum retiring age of an employee to whom the Commonwealth Employees (Redeployment and Retirement) Act 1979 applies is the age that is, for the purposes of section 17 of that Act, his minimum retiring age.“(10) For the purposes of this Act, the minimum retiring age of an employee to whom the Commonwealth Employees (Redeployment and Retirement) Act 1979 does not apply is—(a) in the case of an employee who is employed under the Public Service Act 1922 otherwise than as an officer—(i) if the Public Service Board has, for the purposes of this Act, fixed an age, less than 60 years, as the minimum retiring age in respect of a class of employees in which the employee is included—the age so fixed; or(ii) if sub-paragraph (i) does not apply in relation to the employee—the age of 60 years;(b) in the case of an employee who is employed by a public authority of the Commonwealth otherwise than in a permanent capacity—(i) if the public authority has, for the purposes of this Act, fixed an age, less than 60 years, as the minimum retiring age in respect of a class of employees in which an employee is included—the age so fixed; or(ii) if sub-paragraph (i) does not apply in relation to the employee—the age of 60 years; or(c) in the case of any other employee—(i) if, under the terms and conditions of his employment, an age that is less than 60 years of age is fixed as the age upon the attainment of which he is required to retire from his employment and no other age is fixed as the age upon the attainment of which he may retire from his employment—the age fixed as the age upon the attainment of which he is required to retire from his employment;(ii) if, under the terms and conditions of his employment, an age that is less than 60 years of age is fixed as the age upon the attainment of which he may retire from his employment and the age so fixed is less than the age fixed as the age upon the attainment of which he is required to retire from his employment or no age is fixed as the age upon the attainment of which he is required to retire from his employment—the age fixed as the age upon the attainment of which he may retire from his employment; or(iii) if sub-paragraph (i) or (ii) does not apply in relation to the employee—the age of 60 years.”.
SCHEDULE—continued
Column 1
Column 2
Act
Extent of Amendment
Public Service Act 1922 . .
Section 20—Repeal.Section 54—Omit from sub-section (15) the words “Divisions 6 and 7”, insert “Division 6 of this Act or of section 18 of the Commonwealth Employees (Redeployment and Retirement) Act 1979”.Division 7 of Part III—Repeal.Section 82—Omit sub-section (4), insert the following sub-section:“(4) Where a person is selected for employment, or the employment of a person is authorized, on the condition that his employment shall not continue after the expiration of a specified period or on the condition that his employment shall not continue after the completion of specified work, the Chief Officer shall, if the services of that person have not been dispensed with before the expiration of that period or the completion of that work, as the case may be, dispense with the services of that person upon the expiration of that period, or upon the completion of that work, as the case may be.”.Omit from sub-section (6) “sub-section (6a)”, insert “sub-sections (6a) and (6b)”.After sub-section (6a), insert the following sub-section:“(6b) The services of a person to whom the Commonwealth Employees (Redeployment and Retirement) Act 1979 applies shall not be dispensed with under sub-section (6) except on the ground that the person has been guilty of conduct that, if he were an officer, would have constituted an offence specified in sub-section (1) of section 55.”.Omit from sub-section (7) all the words after the words “prolonged period”.Division 12 of Part III—Repeal.
Superannuation Act 1976 . .
Section 58—Omit paragraph (b) of sub-section (3), substitute the following paragraph:“(b) he is retrenched, he is retired from his employment under section 19 of the Commonwealth Employees (Redeployment and Retirement) Act 1979 or he is retired from his employment, otherwise than under that Act, on a ground similar to the ground on which persons might have been retired under section 20 of the Public Service Act 1922 immediately before the date fixed under sub-section 2(2) of the Commonwealth Employees (Redeployment and Retirement) Act 1979”.Omit paragraph (e) of sub-section (3), substitute the following paragraph:“(e) he is retired under section 18 of the Commonwealth Employees (Redeployment and Retirement) Act 1979 or his employment or appointment is terminated otherwise than under that Act on a ground similar to a ground that is specified in that section,”.