87MRight to re‑enter Service by way of transfer or promotion

##### 87M Right to re‑enter Service by way of transfer or promotion (1) Division 4 of Part III applies, subject to this section and to such modifications (if any) as are prescribed, in relation to a person to whom this Division applies as if the person were an officer and: (a) unless paragraph (b) applies—were the holder of an office the classification of which is equivalent, or is as nearly as possible equivalent, to the classification of the office held by him immediately before he ceased, or last ceased, to be an officer; or (b) if he was an unattached officer immediately before he ceased, or last ceased, to be an officer—were the holder of an office the classification of which corresponds, or corresponds as nearly as possible, to his classification as an unattached officer immediately before he ceased, or last ceased, to be an officer. (2) Subject to subsection (7), where a person to whom this Division applies commences to perform the duties of an office in the Service to which he has been transferred or promoted: (a) he shall be deemed to have been re‑appointed to the Service as an officer on the day on which he commences to perform those duties; (b) he shall be deemed to have been so re‑appointed to the Service without probation unless the Board, by instrument in writing, otherwise determines; and (c) he is entitled to be paid salary and allowances as the holder of the office from and including that day, and not otherwise. (3) Subject to subsections (4) and (6), where a person to whom this Division applies who has been transferred or promoted to an office in the Service: (a) does not commence to perform the duties of that office within the period of 30 days after the day on which the transfer or promotion takes effect; or (b) notifies the Board, in writing, before the expiration of that period, that he declines the transfer or promotion; the transfer or promotion, as the case may be, is of no force or effect. (4) Where a person to whom this Division applies is transferred or promoted to an office in the Service, the Board may, on application made by the person before the expiration of the period of 30 days after the day on which notice of the transfer is published in the Gazette or the promotion takes effect, determine that subsection (3) shall have effect in relation to the transfer or promotion as if the reference in that subsection to a period of 30 days were a reference to such longer period as is specified in the determination. (5) An application under subsection (4) shall be: (a) in writing; (b) addressed to the Secretary of the Department in which the office is included; and (c) lodged at, or sent by post to, any office of the Department. (6) Where: (a) a person to whom this Division applies is transferred or promoted to an office in the Service; (b) at the time when the transfer or promotion takes effect, the person is absent from the eligible public employment in which he is employed on leave granted before that time; and (c) the Board has not made a determination under subsection (4) in relation to the transfer or promotion; the reference in subsection (3) to the period of 30 days after the day on which the transfer or promotion takes effect shall be read as a reference to the period of 30 days after the expiration of the period of the leave so granted to him. (7) Where: (a) by virtue of the operation of subsection (1), a person to whom this Division applies: (i) has been promoted to fill a vacant office in the Service; or (ii) has appealed under section 50B against the promotion of another person to fill such an office; and (b) the person ceases to be a person to whom this Division applies before the promotion takes effect or is cancelled; then, subject to subsections (8) and (8A): (c) the preceding provisions of this section continue to apply to and in relation to the promotion or appeal as if he had not ceased to be a person to whom this Division applies; and (d) if he commences to perform the duties of the office as a result of his promotion to the office having taken effect: (i) he shall be deemed to have been re‑appointed to the Service as an officer on the day immediately following the day on which he ceased to be a person to whom this Division applies and to have been absent from the Service on leave of absence without pay from the day on which he is to be deemed to have been so re‑appointed until he commences to perform the duties of the office; and (ii) the period during which he is to be deemed to have been absent from the Service on leave of absence without pay shall form part of his period of service under this Act for all purposes of this Act and of the Long Service Leave (Commonwealth Employees) Act 1976. (8) Subsection (7) does not apply to a person who ceased to be a person to whom this Division applies upon the termination of his employment by reason of: (a) his resignation, invalidity or misconduct; (b) the annulment of his appointment while he was a probationary employee; or (c) his having attained the age of 65 years. (8A) Subsection (7) does not apply to a person who ceased to be a person to whom this Division applies because of subsection 87SA (2). (9) A reference in this section (other than in subsection (7)) to a promotion is a reference to a promotion that has taken effect.