87NApplication for re‑appointment to the Service

##### 87N Application for re‑appointment to the Service (1) Where a prescribed condition of re‑appointment is fulfilled in respect of employment in which a person to whom this Division applies is engaged, the person may, while he is a person to whom this Division applies or, subject to subsection (3), after he ceases to be such a person, make application to the Commissioner for re‑appointment to the Service on the ground that that condition has been so fulfilled. (2) Each of the following conditions is a prescribed condition of re‑appointment in respect of employment in which a person is engaged: (a) that his employment in a public office is to be, or has been, terminated, otherwise than on the ground of his invalidity, before the expiration of the term for which he was appointed; (b) that his employment in a public office has been terminated upon the expiration of the term for which he was appointed and he has not been: (i) re‑appointed, or offered re‑appointment, to that office; (ii) appointed, or offered appointment, to another public office; or (iii) employed, or offered employment, by a public authority; (c) that his employment by a public authority is to be, or has been, terminated otherwise than on the ground of his invalidity or by reason of his resignation; (d) that, in the case of a person whose employment in a public office or by a public authority was terminated by reason of his having been found by a court to have committed a criminal offence: (i) the finding of the court has been nullified; and (ii) if the person was employed by a public authority, he has made application for re‑appointment to the service of that authority but has been refused re‑appointment; (e) that, in the case of a person to whom this Division became applicable, in accordance with subsection 87K(2), when he became an eligible person in relation to a declared Commonwealth function: (i) he is employed by a statutory authority, by a State or in the Public Service of a Territory other than the Northern Territory and is, and has, at all times since he became such a person, continued to be, an eligible person in relation to that declared Commonwealth function; and (ii) his career in employment declared to be connected with a prescribed function corresponding to that declared Commonwealth function has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the activities of the body by or in which he is employed connected with the performance of that prescribed function; (f) that, in the case of a person to whom this Division became applicable, in accordance with subsection 87K(2) or (2A), when he became engaged in employment by a Commonwealth authority in accordance with a declared offer of employment within the meaning of section 87ZC or became employed by a Commonwealth authority by force of subsection 81C(2): (i) the person is, and has at all times since becoming engaged in that employment or becoming so employed, as the case may be, continued to be, engaged in that employment or so employed; and (ii) his career in employment connected with the performance of the functions of that authority has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the functions or activities of that authority; (g) that, in the case of a person to whom this Division became applicable, in accordance with subsection 87K(3) or (4), when he became an employee of the Public Service of the Northern Territory: (i) he is, and has, at all times since he became such an employee, continued to be, engaged in employment in that Public Service that is connected with the performance of the function in connexion with the performance of which he performed duties immediately after he became such an employee; and (ii) his career in that Public Service in employment that is connected with the performance of that function has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the activities of that Public Service connected with the performance of that function; (h) that, in the case of a person to whom this Division became applicable in accordance with subsection 87K(5) when he became engaged in employment by the Australian Postal Commission or the Australian Telecommunications Commission: (i) he is, and has, at all times since he became engaged in that employment, continued to be, engaged in employment by such a commission; and (ii) his career in employment that is connected with the performance of the functions of the commission by which he is employed has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the functions or activities of that commission; and (j) that, in the case of a person to whom this Division became applicable, in accordance with subsection 87K(9) or (10), when he became an eligible person within the meaning of the Commonwealth Legal Aid Commission Act 1977: (i) he is, and has, at all times since he became such a person, continued to be, such a person; and (ii) his career in employment that is connected with the performance of the functions of the body by which he is employed has been adversely affected by reason of a reduction or reductions in, or an alteration or alterations to, the functions or activities of that body. (2A) If this Division applies to a person because of subsection 87K(2A), this section has effect, in relation to the person, as if the expression Commonwealth authority had the same meaning in this section as in section 7. (3) A person is not entitled to make application under subsection (1) on the ground that a prescribed condition of re‑appointment has been fulfilled: (a) if he has attained the age of 65 years; or (b) if the employment in respect of which that condition has been fulfilled is to be terminated and he will attain the age of 65 years on or before the day on which employment is to be terminated; or (c) if the employment in respect of which that condition has been fulfilled is to be, or has been, terminated by reason of his resignation or invalidity; or (d) if the person has ceased to be a person to whom this Division applies because of subsection 87SA(2) or 87SB(2). (4) Where a person to whom this Division applies: (a) has made an application under subsection (1); and (b) attains the age of 65 years while engaged in the eligible public employment in respect of which a prescribed condition of re‑appointment is specified in the application as having been fulfilled; the application lapses, and this section ceases to apply to and in relation to him, upon his attaining that age. (4A) If: (a) a person to whom this Division applies has made an application under subsection (1); and (b) the person ceases to be a person to whom this Division applies because of subsection 87SA(2); the application lapses, and this section ceases to apply to and in relation to the person, upon his or her so ceasing to be a person to whom this Division applies. (5) An application by a person under subsection (1): (a) shall be in writing; (b) shall be made: (i) if his application is on the ground that a prescribed condition of re‑appointment referred to in paragraph (2)(a), (b) or (c) has been fulfilled in relation to him—before, or within the period of 30 days, or such further period as the Board allows, after, the day on which his employment is terminated; (ii) if his application is on the ground that the prescribed condition of re‑appointment referred to in paragraph (2)(d) has been fulfilled in relation to him—within the period of 30 days, or such further period as the Board allows, after the day on which his application for re‑appointment is refused; or (iii) if his application is on the ground that the prescribed condition of re‑appointment referred to in paragraph (2)(e), (f), (g), (h) or (j) has been fulfilled in relation to him—within the period of 30 days, or such further period as the Board allows, after the day on which the reduction or last reduction in, or the alteration or last alteration to, the functions or activities concerned occurs; (c) shall specify the prescribed condition of re‑appointment that he alleges has been fulfilled in relation to him and, if he specifies the prescribed condition of re‑appointment referred to in paragraph (2)(a) or (c), state whether his employment is to be terminated, or was terminated, on the ground of his misconduct; (d) shall specify the kind of employment in the Service in which he seeks to be engaged; and (e) shall, in a case where, by virtue of the operation of subsection 87M(1): (i) he had been promoted under section 50 to fill a vacant office in the Service, or had appealed under section 50B against the promotion of another person to fill such an office, before the day on which his employment is terminated; and (ii) the promotion had not taken effect or had not been cancelled before that day; set out particulars of the promotion or of the appeal, as the case may be. (6) The Board shall refer an application made to it under subsection (1) to a Re‑appointment Review Committee. (7) The Re‑appointment Review Committee to which an application under subsection (1) is referred shall inquire into the application and: (a) if it is satisfied that a prescribed condition of re‑appointment has been fulfilled in relation to the applicant: (i) determine that the applicant is eligible for re‑appointment to the Service with a specified classification and at a specified rate of salary; (ii) determine whether, having regard only to the period of the applicant’s service in the Service and in eligible public employment, the applicant should, in its opinion, be re‑appointed on probation; and (iii) if that prescribed condition is the condition referred to in paragraph (2)(d)—determine whether the period commencing on the day immediately following the day on which his employment was terminated and ending on the day immediately preceding the day on which he reports for duty in the Service or, if he furnishes a notification under paragraph 87Q(4)(b), on the day on which he attains the age of 65 years, or any part of that period, is to form part of his period of service for any purposes under this Act or any other Act (other than the Superannuation Act 1976 or the Superannuation Act 1990) and, if so, the purposes for which it is to form part of his period of service; and (b) if it is not so satisfied—determine that the applicant is not eligible for re‑appointment to the Service. (8) Where the Re‑appointment Review Committee that inquires into an application under subsection (1) is satisfied that the employment of the applicant was terminated on the ground of his misconduct, it shall not determine that he is eligible for re‑appointment to the Service unless it is satisfied that: (a) if the applicant had committed that misconduct while employed as an officer in the Service, it is likely that he would not have been dismissed from the Service; or (b) if the applicant had been dismissed from the Service by reason of that misconduct and had made application under section 63F for re‑appointment to the Service or under section 63G for the review of his dismissal from the Service, as the case may be, it is likely that a Disciplinary Appeal Committee would recommend his re‑appointment to the Service. (9) The Re‑appointment Review Committee that inquires into an application under subsection (1) by an applicant whose employment is to be, or has been, terminated in consequence of the annulment, for any reason, of his appointment while he is or was a probationary employee shall not determine that the applicant is eligible for re‑appointment to the Service unless it is satisfied that, if the applicant had been serving as an officer in the Service on probation, it is likely that his appointment to the Service would not have been annulled for that reason. (10) In making a determination under subsection (7), the Re‑appointment Review Committee shall have regard to: (a) the classification of the office occupied by the officer; or (b) in a case where the officer was an unattached officer—the classification of the officer as an unattached officer; immediately before he ceased, or last ceased, to be an officer and to all other relevant matters. (11) The Re‑appointment Review Committee that inquires into an application referred to it under subsection (6) may, under subsection (7): (a) determine that the applicant is eligible for re‑appointment to the Service whether or not the applicant is eligible for appointment to the Service under section 34; and (b) determine that the applicant is eligible for re‑appointment with a specified classification whether or not he has the academic or other qualifications (if any) applicable, in accordance with a notification in force under paragraph 33A(1)(d), to an office having that classification. (12) A determination of a Re‑appointment Review Committee shall be reduced to writing and a copy of the determination shall be furnished to the Board. (13) Where a Re‑appointment Review Committee determines, under subsection (7), that an applicant is not eligible for re‑appointment to the Service, the Board shall, as soon as practicable after it receives a copy of the determination, furnish a copy of the determination to the applicant.