6Rights under Part IV of the old Act—first tier

6 Rights under Part IV of the old Act—first tier (1) During the transitional period, a first‑tier person is taken to be absent from duty as an APS employee, on leave without pay. (2) Service by a first‑tier person in eligible public employment during the transitional period is counted, for the purposes of accrual of recreation leave credits and sick leave credits, as if it were service as an APS employee. (3) A first‑tier person is taken to have resigned as an APS employee at the end of the transitional period unless, before the end of the transitional period: (a) the person has given notice in writing to the Agency Head, stating that the person intends to resume duties as an APS employee on the first working day after the end of the transitional period; or (b) the person has been granted leave for a period that consists of, or includes, the first working day after the end of the transitional period. (4) If a person: (a) gives a notice under paragraph (3) (a) of this section; and (b) is absent from duty without leave on the first working day after the end of the transitional period; the person is taken to have resigned as an APS employee at the end of that first working day. (5) If a person would have ceased to be an officer under the old Act at a particular time because of section 87JA or 87JB of the old Act (if the old Act had not been repealed), then the person is taken to have resigned as an APS employee at that time. (6) If the transitional period for a first-tier person ends at the end of the relevant period (as defined in subsection 87D(5) of the old Act), then the person becomes a second-tier person at the end of that relevant period. For reference, the definitions of first-tier person and transitional period are as follows: first‑tier person means: (a) a person to whom Division 2 of Part IV of the old Act applied immediately before the commencing time; and (b) a person to whom the Officers’ Rights Declaration Act 1928 applied immediately before the commencing time because of section 87TA of the old Act. transitional period, in relation to a first‑tier person, means the period that starts at the commencing time and ends at the earliest of the following times: (a) the period prescribed by the regulations for the purposes of this paragraph; (b) the time when the person ceases to be engaged in eligible public employment; (c) the time when the person resigns or retires as an APS employee; (d) the end of the relevant period (as defined in subsection 87D(5) of the old Act). 3.1 Mobility rights of first-tier persons (1) Section 6 of the Act sets out rights of a first-tier person, under Division 2 of Part IV of the old Act, after the commencing time. (2) These Regulations set out additional rights. (3) A first-tier person has no other rights under Division 2 of Part IV after the commencing time. Subdivision 3.1.2 End of first-tier status 3.2 Ceasing to be a first-tier person (1) A first-tier person who: (a) has given notice in writing to the Agency Head in accordance with paragraph 6 (3) (a) of the Act; and (b) resumes duties on the first working day after the end of the transitional period; ceases to be a first-tier person at the end of the transitional period. (2) A first-tier person who has been granted leave: (a) for the purposes of paragraph 6 (3) (b) of the Act; and (b) for a period that consists of, or includes, the first working day after the end of the transitional period; ceases to be a first-tier person at the start of that first working day. (3) A first-tier person who is taken to have resigned from the APS because neither of paragraphs 6 (3) (a) and (b) of the Act has been complied with ceases to be a first-tier person at the end of the transitional period. (4) A first-tier person who is taken to have resigned from the APS in accordance with subsection 6 (4) of the Act ceases to be a first-tier person at the end of the first working day after the end of the transitional period. (5) A first-tier person who is taken to have resigned from the APS in accordance with subsection 6 (5) of the Act ceases to be a first-tier person at the time described in the subsection. (6) If: (a) the transitional period for a first-tier person is described in subsection 6 (6) of the Act; and (b) the person resigns from the APS, or is taken to have resigned, before the end of that transitional period; the person ceases to be a first-tier person when the resignation takes effect. (7) A first-tier person who: (a) has given notice in writing to the Agency Head, stating that the person intends to resume duties as an APS employee before the end of the transitional period; and (b) resumes duties before the end of the transitional period; ceases to be a first-tier person when the person resumes duties. > Note See r 3.5. (8) A first-tier person who resigns from the APS in a way that is not described in section 6 of the Act ceases to be a first-tier person when the resignation takes effect. (9) A first-tier person who retires from the APS ceases to be a first-tier person when the retirement takes effect. Subdivision 3.1.3 Leave entitlements 3.3 Leave A first-tier person retains all recreation leave credits and sick leave credits that the person accrued in the period: (a) starting when the person started the employment that gave him or her the status of first-tier person; and (b) ending immediately before the commencing time. Subdivision 3.1.4 Return to APS while first-tier person 3.4 Transitional period For the purposes of paragraph (a) of the definition of transitional period in section 4 of the Act, the period of 3 years is prescribed. > Note 1 In accordance with the definition of transitional period, the transitional period starts at the commencing time. > Note 2 While the 3 year transitional period is in effect, first-tier persons have the right to resume duties in the APS, and to apply for employment opportunities advertised in the Gazette. 3.5 Notice of return (1) A first-tier person may, at any time while the person is a first‑tier person, give notice in writing, stating that the person intends to resume duties as an APS employee: (a) before the end of the transitional period; or (b) on the first working day after the end of the transitional period. (2) The notice must be given to: (a) the Agency Head of the person’s corresponding Agency for the purposes of section 5 of the Act; or (b) if the person’s duties are no longer performed in the Agency that was the corresponding Agency — the Agency Head of the Agency where the duties are currently performed. (3) Subject to subregulation (4), the first-tier person is entitled to resume duties in the appropriate Agency described in subregulation (2). (4) The first-tier person is not entitled to resume duties in the appropriate Agency if the person: (a) has ceased the employment that gave him or her the status of first-tier person because the person has reached the maximum age for that employment; or (b) is to cease the employment that gave him or her the status of first-tier person because the person will reach the maximum age for that employment. > Note If a maximum employment age applies to a type of employment, it is likely to be set out in the legislation creating the type of employment. (5) The first-tier person is entitled to resume duties at the person’s corresponding classification for the purposes of section 5 of the Act. (6) The Agency Head must make arrangements for: (a) the person’s return to the Agency; and (b) the person’s resumption of duties; and (c) the acceptance of all of the person’s accrued recreation leave credits and sick leave credits. Division 3.2 Second-tier persons Subdivision 3.2.1 General rights Outline of second-tier concept Section 7 of the Act makes arrangements for second-tier persons.