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PUBLIC SERVICE REGULATIONS (AMENDMENT) 1994 NO. 147

PUBLIC SERVICE REGULATIONS (AMENDMENT) 1994 NO. 147

EXPLANATORY STATEMENT

STATUTORY RULES 1994 No. 147

Issued by the authority of the Prime Minister

Public Service Act 1922

Public Service Regulations (Amendment)

Paragraphs 97(1)(aa) and 97(1)(ab) of the Public Service Act 1922 (the Act) provide that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Paragraph 97(1)(n) of the Act provides that in particular the GovernorGeneral may make regulations for regulating the granting of leave of absence to officers and employees.

Subsection 25(2) of the Act provides that the Secretary of a Department shall, under the Minister, be responsible for the general working of the Department.

Subsection 47(11) of the Act provides that the Public Service Commissioner or the relevant Secretary may in certain circumstances terminate an officer's appointment to the Australian Public Service on the ground that he or she is not satisfied, after receiving a report from an authorised medical practitioner, as to the officer's health and physical fitness.

Section 70 of the Act provides that the relevant Secretary may grant leave of absence to an officer on account of illness in certain circumstances and that the regulations may empower the relevant Secretary to direct that an officer who is ill shall absent himself from duty and shall comply with such conditions as are prescribed.

Division 8C of Part III of the Act makes provision for the redeployment and retirement of officers of the Service.

Regulations 54 to 60 of the Public Service Regulations (the Regulations) make provision in relation to aspects of leave on account of illness (sick leave) and in relation to the fitness of an officer who is absent to resume duty and the fitness of an officer who is on duty to continue those duties (fitness for continued duty). The fitness for continued duty regulations are supported by the powers in sections 25,70 and Division 8C of Part III of the Act.

The purpose of the amending regulations is twofold:

(1)       to specifically state what is implicit in subsection 47(11) of the Act that a Secretary may require a person to attend a medical examination for the purposes of section 47 of the Act and that a medical examination is not complete until a person has been examined or reexamined to the satisfaction of the Secretary; and

(2)       to re-organise the sick leave and fitness for continued duty regulations so that they fall into different Divisions of the Regulations, to clarify the situations in which the relevant Secretary may or must give notice to an officer to attend a medical examination for the purposes of assessing fitness for continued duty and to ensure that the provisions of Division 8C of Part III of the Act are not rendered unworkable by officers failing to attend medical examinations or attending at work when unfit to attend.

Details of the Regulations are attached.

The Regulations will commence on gazettal.

ATTACHMENT

Regulation 1 of the Regulations provides that the Public Service Regulations are amended as set out in the Regulations.

Regulation 2 of the Regulations inserts new Divisions 1A and 1B of Part II in the Regulations.

New Division 1A of Part II of the Regulations contains new regulation 45 which provides that a Secretary may require a person appointed on probation to attend a medical examination for the purposes of assessing health and physical fitness prior to confirmation or termination of appointment to the Service. In order to overcome the problems which arise when a probationer refuses to submit to a medical examination subregulation 45(2) provides that a medical examination is not complete until the person has been examined by the practitioner to the satisfaction of the Secretary and undergone further medical examination as required.

New Division 1B of Part II of the Regulations contains new regulations 46 to 51 which concern fitness for continued duty.

Regulation 46 is an interpretation provision which provides a definition of "officer", "relevant medical practitioner", and of "illness".

Regulation 47 precludes a medical examination for the purpose of assessing fitness for continued duty by a medical practitioner who has previously attended or advised the officer in respect of that illness (ie. the officer's treating doctor).

Regulation 48 contains a number of subregulations which prescribe situations where a Secretary may or must require an officer to submit to a medical examination by a relevant medical practitioner nominated by the Secretary.

Subregulation 48(1) enables a Secretary to require an officer to submit to a medical examination by a relevant medical practitioner where the officer has been absent because of illness for a continuous period of 4 weeks, or periods totalling 4 weeks if those absences relate to the same illness.

Subregulation 48(2) requires a Secretary to require an officer to submit to a medical examination by a relevant medical practitioner where the officer has been absent because of illness for a total of 13 weeks in a 26 week period, or continuously absent for a period of 13 weeks, and the officer has not already submitted to a medical examination during the absence.

Subregulation 48(3) enables a Secretary to require an officer to submit to a medical examination by a relevant medical practitioner where another medical practitioner (usually the officer's treating doctor) has indicated that an officer is unfit for duty and is likely to so remain for an extended or indefinite period.

Subregulation 48(4) enables a Secretary to require an officer to submit to a medical examination by a relevant medical practitioner where an officer returns to duty after an absence from duty because of illness of 4 weeks or more and the Secretary is of the opinion that the officer is not fit to return to duty. Such an examination may be requested within 2 weeks of the officer's return to duty.

Regulation 49 provides that an officer must not fail, without reasonable excuse, to submit to a medical examination required by a Secretary under Division 1B of Part II of the Regulations. Proposed regulation 49 also provides that a medical examination is not complete until the person has been examined by the practitioner to the satisfaction of the Secretary and submitted to any further medical examination recommended by the relevant medical practitioner.

Regulation 50 provides that where an officer has been absent from duty for 13 weeks or more the officer must not return to duty until a suitable medical practitioner certifies that the officer is fit to resume duty.

Regulation 51 provides that where a Secretary believes that an officer's state of health is affecting the officer's work performance or is a dancer to the officer or is such that the officer is a danger to others, the Secretary may require the officer to submit to a medical examination by a relevant medical Practitioner nominated by the Secretary or provide a report by the officer's treating doctor as to the officer's condition.

Regulation 3 of the Regulations inserts new regulation 53 in Division 2 of Part II of the Regulations which relates to sick leave. Proposed regulation 53 is an interpretation provision similar to regulation 46.

Regulation 4 of the Regulations omits regulation 56 and substitutes a new regulation 56 which precludes an officer from being granted further leave of absence after an absence of 13 weeks or more unless the officer submits to a medical examination.

Regulation 5 of the Regulations omits regulation 57 and substitutes a new regulation 57 which provides that a Secretary may grant an officer leave of absence to the extent that a medical examination conducted under Division 1B indicates that the officer is unfit for duty and the Secretary may direct an officer to absent himself or herself on leave of absence because of illness where a report of the examination so indicates.

Regulation 6 of the Regulations omits regulation 58 as the content of regulation 58 is now contained in new regulations 51 and 57.

Regulation 7 of the Regulations amends regulation 60 in order to bring the language into line with the other amended provisions and to replace references to "the Board" with references to "the Secretary to the Department of Industrial Relations".

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