Interpretation
3. Section 4 of the Principal Act is amended:
(a) by omitting “of Education” from the definition of “Secretary” in subsection (1); and
(b) by inserting in subsection (1) the following definitions:
“ ‘Commonwealth authority’ means:
(a) a body corporate incorporated, whether before or after the commencement of section 11 of the Commonwealth Teaching Service Amendment Act 1988, for a public purpose by an Act, by regulations made under an Act or by or under a law of a Territory (other than the Northern Territory), being a body employing staff otherwise than under this Act; or
(b) an authority or body, not being a body corporate, established, whether before or after the commencement of section 11 of the Commonwealth Teaching Service Amendment Act 1988, for a public purpose by, or in accordance with the provisions of, an Act, regulations made under an Act or law of a Territory (other than the Northern Territory), being an authority or body employing staff otherwise than under this Act;
‘relevant staff organisation’, in relation to a position, means an organisation:
(a) that is registered under the Conciliation and Arbitration Act 1904; and
(b) for membership of which a person holding the position would be eligible;
‘returned soldier’ has the same meaning as in the Public Service Act 1922;
‘specified defence service’ has the same meaning as in the Public Service Act 1922”.
Establishment of Commonwealth Teaching Service
4. (1) Section 19 of the Principal Act is amended by omitting paragraphs (3) (b) and (5) (b).
(2) Section 19 of the Principal Act is amended by omitting from paragraph (5) (a) “the office of Chief Education Officer of the Australian Capital Territory Schools Authority” and substituting “the office for the time being designated for the purposes of that component by the Secretary by writing signed by the Secretary”.
5. (1) Section 28 of the Principal Act is repealed and the following section is substituted:
Selection of officers for promotion or transfer
“28. (1) Where 2 or more officers have applied for promotion or transfer to a vacant position, the relevant authority shall, for the purpose of exercising the power under subsection 27 (1) or section 31 to promote or transfer an officer to fill that vacant position, select from those officers the officer who is, in the opinion of the relevant authority, the more or most efficient of those officers.
“(2) For the purpose of forming an opinion as to the more or most efficient of the officers who have applied for promotion or transfer to a vacant position, the relevant authority shall have regard to:
(a) the abilities, qualifications, experience, standard of work performance and personal qualities of each officer, to the extent that the relevant authority considers that those matters are relevant to the performance of the duties of the position; and
(b) the potential of each officer for further career development in the Service, and the ability of each officer to perform the duties of other positions of the same or equal classification in the component of the Service in relation to which the authority is the relevant authority, to the extent (if any) that the relevant authority considers that those matters are relevant to the selection of an officer to hold the position.
“(3) For the purposes of subsection (2), an officer who is a returned soldier or who is or has been absent on specified defence service shall be treated as having the abilities, qualifications, experience, standard of work performance, personal qualities, potential for future career development in the Service, or ability to perform the duties of the positions concerned that, in the opinion of the relevant authority, the officer would have had but for the absence of the officer on active service or on specified defence service.”.
(2) Notwithstanding the repeal of section 28 of the Principal Act made by subsection (1), where the interviewing of applicants for promotion to a vacant position began before the commencement of this Act, section 28 of the Principal Act as in force immediately before the commencement of this section continues to apply to the filling of the vacant position.
Appeals against promotion
6. (1) Section 29 of the Principal Act is amended:
(a) by inserting in subsection (1) “under section 27” after “The promotion”; and
(b) by omitting subsections (2) and (3) and substituting the following subsections:
“(2) Subject to subsection (3), an officer who considers that he or she should have been promoted to a vacant position in preference to the officer provisionally promoted may appeal against the provisional promotion.
“(3) Except in prescribed circumstances, an officer is not entitled to appeal against the promotion of another officer to a particular position unless the officer applied for promotion to that position.
“(3a) The only ground of appeal under subsection (2) shall be the greater efficiency of the officer making the appeal.
“(3b) Where an appeal or appeals are made under subsection (2) in respect of a promotion, a Promotions Appeal Board specified by the relevant authority shall make such inquiries as it considers necessary to enable it to form an opinion as to the more or most efficient of the officers concerned, namely the officer promoted and the officer or officers who have appealed.
“(3c) For the purpose of forming an opinion as to the more or most efficient of the officers concerned, the Promotions Appeal Board shall have regard to:
(a) the abilities, qualifications, experience, standard of work performance and personal qualities of each officer, to the extent that the Board considers that those matters are relevant to the performance of the duties of the position; and
(b) if and only if the relevant authority who made the promotion has indicated that, for the purpose of forming an opinion under section 28, the relevant authority had regard to the potential of officers for further career development in the Service, or the ability of officers to perform the duties of other positions of the same or equal classification in the component of the Service in relation to which the authority is the relevant authority—that matter.
“(3d) For the purposes of subsection (3c), an officer who is a returned soldier or who is or has been absent on specified defence service shall be treated as having the abilities, qualifications, experience, standard of work performance, personal qualities, potential for future career development in the Service, or ability to perform the duties of the positions concerned that, in the opinion of the Promotions Appeal Board, the officer would have had but for the absence of the officer on active service or on specified defence service.
“(3e) Where the Promotions Appeal Board has formed an opinion as to the more or most efficient of the officers concerned, the Board shall:
(a) unless paragraph (b) applies—allow or disallow the appeal or appeals so as to give effect to its opinion; or
(b) if the Board has formed the opinion that none of the officers concerned is capable of efficiently performing the duties of the office—disallow the appeal or appeals and the relevant authority shall cancel the promotion.
“(3f) A Promotions Appeal Board shall refuse to consider or further consider an appeal if each member of the Board is satisfied that the appeal is frivolous or vexatious or was not made in good faith.
“(3g) Where a Promotions Appeal Board refuses to consider or further consider an appeal, the appeal shall thereupon be deemed to have been withdrawn.”.
(2) Notwithstanding the amendments of section 29 of the Principal Act made by subsection (1), where an officer had, before the commencement of this Act, been provisionally promoted to fill a vacant position in the Service, section 29 of the Principal Act as in force immediately before the commencement of this section continues to apply to that provisional promotion.
7. After section 30 of the Principal Act the following Divisions are inserted in Part III:
“Division 4—Joint Selection Committees
Transfer or promotion on advice of Joint Selection Committee
“31. (1) Subject to subsection (5), a relevant authority may, instead of transferring or promoting an officer to fill a vacant position under section 27, transfer or promote an officer to fill the vacant position under this section.
“(2) A transfer or promotion of an officer under this section shall be a transfer or promotion made in accordance with the advice of a Joint Selection Committee constituted under section 32.
“(3) Subject to subsection (4), where a relevant authority proposes that a vacant position be filled by a transfer or promotion under this section, the relevant authority shall give notice in writing of the proposal to the organisation that is the relevant staff organisation in relation to the position.
“(4) Where more than one organisation is a relevant staff organisation in relation to the position, the relevant authority shall ascertain which of those organisations has the greater or the greatest number of members occupying positions of the class of the vacant position and shall give notice in writing of the proposal to that organisation.
“(5) Where the relevant staff organisation to which a notice has been given under subsection (3) or (4) consents to the proposal, the relevant authority shall:
(a) cause notification of the vacancy, being a notification indicating that the relevant authority proposes that the vacancy be filled by a transfer or promotion under this section, to be given in the Gazette, and
(b) arrange for the establishment of a Joint Selection Committee for the purpose of giving advice to the relevant authority with respect to the filling of the vacancy.
Joint Selection Committee
“32. (1) Subject to subsection (2), a Joint Selection Committee shall be constituted for the purposes of this Division by:
(a) a Chairperson appointed by the Minister; and
(b) not fewer than 2 and not more than 3 other persons appointed by the relevant authority.
“(2) A person shall not be appointed under paragraph (1) (b) unless the relevant authority and the relevant staff organisation have first agreed that the person is suitable for appointment.
“(3) Where:
(a) a Joint Selection Committee has been constituted under subsection (1) for the purpose of giving advice to the relevant authority with respect to the filling of a vacancy under section 31; and
(b) before the Committee gives such advice, a member of the Committee ceases to take part in the deliberations of the Committee;
the Committee shall be reconstituted by the remaining members and another member appointed in accordance with subsection (1).
“(4) Where the members of a Joint Selection Committee are divided in opinion as to the advice to be given to a relevant authority with respect to the filling of a vacancy under section 31:
(a) if a majority of members are of the same opinion—the advice of the majority shall be deemed to be the advice of the Committee;
(b) if the members are equally divided in opinion—the advice of the Chairperson shall be deemed to be the advice of the Committee; and
(c) if 2 members only are of the same opinion and the remaining members are divided in opinion—the advice of the first-mentioned 2 members shall be deemed to be the advice of the Committee.
“(5) The Chairperson may be referred to as the Chairman or the Chairwoman, as the case requires.
Procedure of Joint Selection Committee
“33. (1) A Joint Selection Committee established for the purpose of giving advice to a relevant authority with respect to the filling of a vacant position under section 31 shall assess the claims of the applicants for promotion or transfer to the office in such manner as the Committee considers necessary to establish their relative efficiency.
“(2) A Joint Selection Committee shall conduct its proceedings with as little formality and technicality, and as quickly, as a proper consideration of the applications permits.
“(3) Where a Joint Selection Committee is reconstituted under subsection 32 (3), the Committee as reconstituted may have regard to the evidence given, the argument adduced and the reasons for any decision given during proceedings before the Committee as previously constituted.
“(4) A transfer or promotion made under section 31 is not invalidated by a defect or irregularity in connection with the nomination of a member of the Joint Selection Committee.
“(5) A member of a Joint Selection Committee, while acting as such, is not subject to direction by any other person or by any body or authority other than a court.
Arrangements where no Joint Selection Committee or where advice of Committee not accepted
“34. If, for any reason, a relevant authority:
(a) is unable to arrange for the establishment of a Joint Selection Committee for the purpose of giving advice to the relevant authority with respect to the filling of the vacancy; or
(b) having arranged for the establishment of a Joint Selection Committee for such a purpose, is unwilling to transfer or promote an officer in accordance with the advice of the Committee;
the relevant authority may transfer or promote an officer to fill the vacancy under section 27.
Promotion and transfer on advice of Joint Selection Committee not subject to appeal
“34a. (1) The promotion of an officer under section 31 in accordance with the advice of a Joint Selection Committee:
(a) shall be notified in the Gazette as a promotion made in accordance with the advice of a Joint Selection Committee; and
(b) is not subject to appeal.
“(2) An officer who is transferred under this Division shall be given notice in writing of the transfer.
“Division 5—Forfeiture of Office
Forfeiture of office
“34b. (1) Where an officer is absent from duty without permission, and has been so absent for a continuous period of not less than 4 weeks, the relevant authority may send by security post to the officer, at the officer’s address last known to the relevant authority, a notice informing the officer that unless, within a period of 2 weeks from and including the day on which the notice was sent, the officer:
(a) returns to duty; or
(b) explains his or her absence and seeks the permission of the relevant authority for any further period of absence that may be necessary having regard to that explanation;
the officer will be deemed to have retired from the Service at the end of that period of 2 weeks.
“(2) Where:
(a) an officer to whom a notice under subsection (1) has been sent does not comply with the requirements of the notice; and
(b) the notice has not been revoked under subsection (5);
the officer shall be deemed to have retired from the Service on the day following the end of the period of 2 weeks specified in the notice.
“(3) Where a notice has been sent to an officer under subsection (1) and, within the period of 2 weeks after that notice was so sent, the officer explains his or her absence and seeks the permission of the relevant authority for a further period of absence, the relevant authority shall, as soon as practicable, consider the matter and may, by notice in writing sent by security post to the officer at the officer’s address last known to the relevant authority, inform the officer:
(a) that he or she has been granted leave of absence for such period and on such conditions as are specified in the notice; or
(b) that he or she is required to return to duty and that, unless he or she returns to duty within a specified period (being a period of at least 2 weeks from and including the date on which the notice is sent) he or she will be deemed to have retired from the Service at the end of the period so specified.
“(4) Where:
(a) an officer who is required by a notice under subsection (3) to return to duty does not return to duty within the period specified in the notice; and
(b) the notice is not revoked under subsection (5);
the officer shall be deemed to have retired from the Service on the day following the end of that period.
“(5) The relevant authority may, at any time before an officer is to be deemed to have retired from the Service under this section, by notice in writing sent by security post to the officer at the officer’s address last known to the relevant authority, revoke a notice previously sent to the officer under this section, and the notice has no effect.
“(6) In this section, ‘officer’ includes a temporary employee engaged under section 23.
Re-appointment of officers and temporary employees deemed to have retired under section 34b
“34c. (1) A person who is deemed to have retired from the Service in accordance with subsection 34b (2) or (4) may apply to the relevant authority, in writing, for re-appointment to the Service.
“(2) A relevant authority to whom an application is made under subsection (1) shall:
(a) if the relevant authority is satisfied that the applicant had, in all the circumstances, reasonable grounds for being absent, re-appoint the applicant to the Service to fill:
(i) the position occupied by the applicant immediately before the applicant was deemed to have retired from the Service, or an equivalent position;
(ii) if such a position is not available—an available position as nearly as possible equivalent to the position occupied by the applicant as mentioned in subparagraph (i); or
(iii) with the consent in writing of the applicant—another position; or
(b) if the relevant authority is not so satisfied—refuse the application.
“(3) Where a relevant authority refuses an application:
(a) the relevant authority shall notify the applicant in writing accordingly, and furnish to the applicant the reasons for the refusal; and
(b) the applicant may apply in the prescribed manner for review of the decision of the relevant authority to refuse the application.
“(4) Where a person who is deemed to have retired from the Service in accordance with subsection 34b (2) or (4) is re-appointed to the Service under this section:
(a) the person shall be deemed, during the period commencing on the day immediately following the day on which the person is so deemed to have retired from the Service and ending on the day immediately preceding the day on which the person was so re-appointed, to have continued in the Service and to have been absent from duty on leave of absence without pay; and
(b) the relevant authority shall determine whether that period, or any part of that period, is to form part of the officer’s period of service for any purposes under this Act or any other Act (other than the Superannuation Act 1976) and, if so, the purposes for which it is to form part of the officer’s period of service.
“(5) In this section, ‘officer’ includes a temporary employee engaged under section 23.
“Division 5a—Attachment of Salaries
Attachment of salaries of officers
“34d. (1) Where judgment has been given by a court against an officer for the payment of a sum of money, the person in whose favour judgment was given (in this section called the ‘judgment creditor’) may serve on the paying officer of the component of the Service in which the officer is employed:
(a) a copy of the judgment, certified under the hand of the Registrar or other appropriate officer of the court; and
(b) a statutory declaration that:
(i) states that the judgment has not been satisfied by the officer; and
(ii) sets out the amount due by the officer under the judgment.
“(2) The paying officer shall, as soon as practicable after service of the copy of the judgment and the statutory declaration, by notice in writing given to the officer:
(a) inform the officer of the service on the paying officer of the copy of the judgment and the statutory declaration; and
(b) require the officer:
(i) to inform the paying officer, in writing, within such time as is specified in the notice, whether the judgment has been satisfied; and
(ii) to furnish to the paying officer:
(a) if the officer claims that the judgment has been satisfied—evidence in support of the claim; or
(b) if the officer admits that the judgment has not been satisfied—a statement of the amount then due under the judgment.
“(3) If the officer:
(a) fails, within the time specified for the purpose in the notice, to satisfy the paying officer that the judgment has been satisfied; or
(b) admits that the judgment has not been satisfied;
the paying officer shall, subject to subsection (12), cause to be deducted from the salary payable to the officer on each pay-day in relation to the officer:
(c) an amount equal to the normal deduction in relation to the officer in relation to the pay-day; or
(d) such lesser amount as is, in the opinion of the paying officer, sufficient to satisfy the amount then due under the judgment.
“(4) The paying officer shall, subject to subsection (6), cause an amount equal to each amount deducted under subsection (3) to be paid to the judgment creditor.
“(5) There is payable to the Commonwealth by the judgment creditor an administration fee, calculated at the prescribed rate, in respect of the making of deductions under subsection (3) in relation to the judgment debt.
“(6) Where an amount is deducted under subsection (3) and the whole or a part of the administration fee payable in respect of the making of deductions in relation to the judgment debt has not been paid by the judgment creditor, the paying officer shall:
(a) apply, in or towards payment of the administration fee or the part of the administration fee that remains unpaid, the amount of the deduction or so much of the amount of the deduction as is equal to the administration fee or that part of the administration fee; and
(b) if the whole of the amount of the deduction is not applied in accordance with paragraph (a), pay an amount equal to the balance to the judgment creditor.
“(7) Where an amount (in this subsection called ‘the relevant amount’), being the whole or a part of an amount deducted under subsection (3) from the salary of the officer on a pay-day, is applied in accordance with subsection (6) in or towards payment of the administration fee payable by the judgment creditor:
(a) the judgment creditor shall be deemed to have paid the relevant amount to the Commonwealth in satisfaction or partial satisfaction, as the case requires, of the administration fee;
(b) an amount equal to the relevant amount shall be deemed to have been paid by the Commonwealth to the officer on account of the salary of the officer on that pay-day; and
(c) an amount equal to the relevant amount shall also be deemed to have been paid by the officer to the judgment creditor in respect of the judgment debt.
“(8) Upon payment being made to the judgment creditor under subsection (4) or (6) of an amount (in this subsection called the ‘relevant amount’) that is equal to the whole or a part of the amount deducted under subsection (3) from the salary of the officer on a pay-day:
(a) an amount equal to the relevant amount shall be deemed to have been paid by the Commonwealth to the officer on account of the salary of the officer on that pay-day; and
(b) an amount equal to the relevant amount shall also be deemed to have been paid by the officer to the judgment creditor in respect of the judgment debt.
“(9) If the amounts deemed, by virtue of paragraphs (7) (c) and (8) (b), to have been paid by the officer to the judgment creditor exceed, in the aggregate, the amount due under the judgment, the excess is repayable by the judgment creditor to the officer, and, in default of repayment, may be recovered, by action in a court of competent jurisdiction, as a debt due by the judgment creditor to the officer.
“(10) When the judgment debt has been satisfied, the judgment creditor shall forthwith notify the paying officer accordingly.
Penalty: $1,000 or imprisonment for 6 months, or both.
“(11) Where a paying officer has been served under subsection (1) with copies of 2 or more judgments given against an officer, the paying officer shall take such action as is necessary under this section to satisfy the
judgment debts payable by the officer in the order in which the copies of the judgment debts were served on the paying officer.
“(12) Where an officer ceases to be employed in a component of the Service after a copy’ of a judgment given against the officer has been served on the paying officer of that component or has been forwarded to the paying officer under a previous application of this subsection and before the paying officer of that component has been notified that the judgment debt has been satisfied:
(a) the paying officer shall forthwith inform the judgment creditor, in writing, of the fact that the officer has ceased to be so employed and the date on which the officer ceased to be so employed; and
(b) if the officer, upon ceasing to be employed in that component of the Service, becomes employed in another component of the Service:
(i) the paying officer shall also inform the judgment creditor of the component in which the officer has become employed, of the fact that deductions will be made, in respect of the judgment debt, by the paying officer of that component, and of the address of the paying officer in order that the judgment creditor may comply with any obligation imposed by subsection (10); and
(ii) the paying officer of the first-mentioned component shall forward to the paying officer of the other component all documents held by him or her in relation to the judgment debt, together with a statement containing particulars of the deductions (if any) made in relation to the judgment debt.
“(13) Where documents relating to a judgment given against an officer are forwarded to the paying officer of a component (in this subsection called the ‘relevant paying officer’) in accordance with subsection (12):
(a) if the time specified in the notice given to the officer under subsection (2) in respect of the judgment had expired before the documents were so forwarded and the officer had failed, within that time, to satisfy the paying officer concerned at that time that the judgment debt had been satisfied:
(i) the relevant paying officer shall, subject to subsection (14), cause to be deducted from the salary payable to the officer on each pay-day in relation to the officer an amount equal to the normal deduction in respect of the officer and the pay-day or such lesser amount as is, in the opinion of the relevant paying officer, sufficient to satisfy the balance of the judgment debt; and
(ii) subsections (4), (5), (6), (7) and (8) apply to those deductions in the same manner as they apply to deductions made in accordance with subsection (3); or
(b) in any other case—subsections (3), (4), (5), (6), (7) and (8) apply as if the copy of the judgment and the statutory declaration
concerned had been served on the relevant paying officer and any notice given to the officer in relation to that judgment under subsection (2) had been given by the relevant paying officer.
“(14) If, under subsection (12), copies of 2 or more judgments given against an officer are, together with the relevant statutory declarations, forwarded to the paying officer of a component of the Service, the paying officer forwarding them shall indicate to the paying officer to whom they are forwarded the order in which they were served under this section, and, for the purposes of subsection (9), they shall be treated as if they had been served upon the first-mentioned paying officer in that order.
“(15) If the paying officer is satisfied that the deduction of the amount that the paying officer would, but for this subsection, be required to deduct from the salary payable to the officer on a pay-day would cause severe hardship to the officer, the paying officer may deduct a lesser amount in relation to the pay-day.
“(16) Subsections (1) to (15) (inclusive) do not apply to an officer:
(a) who is a bankrupt; or
(b) in relation to whom a deed of assignment, a deed of arrangement or a composition is in force under the Bankruptcy Act 1966.
“(17) In this section, unless the contrary intention appears:
‘judgment’ does not include an order made under the Family Law Act 1975;
‘net salary’, in relation to an officer and to a pay-day, means the amount of salary payable by the Commonwealth to the officer on the pay day after deductions have been made from his or her salary:
(a) under Division 2 of Part VI of the Income Tax Assessment Act 1936;
(b) under Part IV of the Superannuation Act 1976; and
(c) for any prescribed purposes;
‘normal deduction’, in relation to an officer and to a pay-day, means an amount equal to 20% of the net salary of the officer on that payday or such greater amount as the officer has, by instrument in writing delivered to the paying officer, specified as the normal deduction for the purposes of this section;
‘officer’ includes a temporary employee engaged under section 23;
‘pay-day’, in relation to an officer, means a day on which salary becomes payable to the officer;
‘paying officer’, in relation to a component of the Service, means such officer as the relevant authority of that component appoints as paying officer for the purposes of this section;
‘salary’, in relation to an officer, means any money payable by the Commonwealth to the officer by way of salary or wages, and includes any money payable by the Commonwealth to the officer by way of an allowance that is a prescribed allowance for the
purposes of this definition, but does not include any money payable to the officer by way of a weekly payment of compensation under the Compensation (Commonwealth Government Employees) Act 1971.”.
Repeal of Division 8 of Part III
8. Division 8 of Part III of the Principal Act is repealed.
Right to re-enter Commonwealth Teaching Service by way of transfer or promotion
9. Section 43u of the Principal Act is amended:
(a) by adding at the end of paragraph (1) (a) “and”;
(b) by omitting from paragraph (1) (b) “and”; and
(c) by omitting paragraph (1) (c).
Rights of officers upon re-appointment
10. Section 43x of the Principal Act is amended by omitting subsection (3).
11. After section 50 of the Principal Act the following section is inserted:
Transfer of persons where functions to be performed by Commonwealth authority
“50a. (1) Where the Minister certifies in writing that a function that has been performed by persons appointed or engaged under this Act is to be performed by a Commonwealth authority, the Secretary to the Department of Industrial Relations may, by declaration in writing published in the Gazette, declare that officers specified in the declaration are in the employment of the Commonwealth authority.
“(2) An officer specified in a declaration under subsection (1):
(a) on the day specified in the declaration for the purposes of this subsection, ceases to be an officer; and
(b) from and including that day, is employed by the Commonwealth authority specified in the declaration.
“(3) For the purpose of facilitating a transfer of persons into the employment of a Commonwealth authority, the Commonwealth authority may, notwithstanding anything in any other law (other than an industrial award), determine any special terms and conditions of employment that are to apply to the persons.
“(4) In this section, ‘officer’ includes a temporary employee engaged under section 23.”.
NOTE
1. No. 13, 1972, as amended. For previous amendments, see No. 98, 1973 (as amended by No. 23, 1976); No. 216, 1973 (as amended by No. 20, 1974); No. 23, 1976; No. 26, 1977; No. 177, 1980; Nos. 5, 61 and 74, 1981; No. 26, 1982; Nos. 92 and 115, 1983; and Nos. 63 and 165, 1984.
[Minister’s second reading speech made in—
House of Representatives on 10 December 1987
Senate on 23 February 1988]
