Members of Parliament (Staff) Amendment Act 2023 (71 of 2023)

Schedule 1   Main amendments

Members of Parliament (Staff) Act 1984

13   Parts II, III and IV

Repeal the Parts, substitute:

Part II - Principles, roles and responsibilities

5 Simplified outline of this Part

This Part sets out employment principles which establish expectations for the workplace in relation to employment under this Act.

This Part also describes roles and responsibilities in relation to employment under this Act.

With one exception (requiring recruitment to be based on capability), a description in this Part does not create a role or responsibility, but is intended to provide an overview of roles and responsibilities created elsewhere in this Act or by other laws.

6 Employment principles

The workplace for people employed under this Act:

(a) is safe and free from all forms of bullying and harassment; and

(b) is free from discrimination and fosters diversity; and

(c) is one in which decisions relating to employment are based on capability; and

(d) is one in which parliamentarians, office-holders and employees foster a culture of professionalism and integrity; and

(e) requires effective performance from each employee against expectations defined by the parliamentarian or office-holder; and

(f) supports the training and professional development of all employees (including those with managerial responsibilities); and

(g) facilitates consultation with employees about matters that affect the workplace.

7 Roles of parliamentarians, office-holders and Prime Minister under this Act

(1) This section describes the role of parliamentarians, office-holders and the Prime Minister under this Act.

Parliamentarians and office-holders

(2) Parliamentarians and office-holders have powers to employ people on behalf of the Commonwealth, to assist them in carrying out their duties (see section 11).

(3) Parliamentarians and office-holders are responsible for the day-to-day management of their employees. Among other things they:

(a) make decisions about who to employ and enter into employment agreements (see section 11); and

(b) have powers to terminate or suspend employment (see sections 16 and 18).

The Prime Minister

(4) The Prime Minister can:

(a) make determinations that affect what kind of employees a parliamentarian may employ (see section 4); and

(b) approve arrangements and determine conditions that affect how parliamentarians and office-holders can exercise their powers to employ (including determining how many employees parliamentarians and office-holders may have) (see section 12); and

(c) make determinations that vary some terms and conditions of employment (see section 13).

8 Responsibilities of parliamentarians and office-holders

(1) This section:

(a) describes certain responsibilities of parliamentarians and office-holders under other laws (see subsection (2)); and

(b) creates a responsibility that parliamentarians and office-holders are required to comply with (see subsection (3)).

Compliance with workplace laws

(2) Parliamentarians and office-holders have obligations under other Australian laws. Some of the key laws that impose obligations are the following:

(a) the Age Discrimination Act 2004;

(b) the Disability Discrimination Act 1992;

(c) the Fair Work Act 2009;

(d) the Racial Discrimination Act 1975;

(e) the Sex Discrimination Act 1984;

(f) the Work Health and Safety Act 2011.

Recruitment to be based on capability

(3) A parliamentarian or office-holder must, before employing a person to perform a particular role, assess whether the person has the capability to perform the role.

9 Responsibilities of employees

(1) This section describes certain responsibilities of persons employed under this Act.

Compliance with workplace laws

(2) Employees have obligations under other Australian laws. Some of the key laws that impose obligations are the following:

(a) the Age Discrimination Act 2004;

(b) the Disability Discrimination Act 1992;

(c) the Fair Work Act 2009;

(d) the Racial Discrimination Act 1975;

(e) the Sex Discrimination Act 1984;

(f) the Work Health and Safety Act 2011.

Authorisations

(3) When exercising a function or power under an authorisation, employees must comply with any directions given by the person authorising the exercise of the function or power.

Note: See section 31 (powers may be exercised by authorised person).

Part III - Employment arrangements

10 Simplified outline of this Part

Parliamentarians and office-holders can employ people to assist them to carry out their duties.

Parliamentarians and office-holders can suspend and terminate the employment of their employees, and in certain circumstances the termination of employment is automatic.

The power to employ, and the terms and conditions of employment, may be affected by arrangements and determinations made by the Prime Minister under this Part.

11 Employment of electorate employees and personal employees

Electorate employees

(1) A parliamentarian may, on behalf of the Commonwealth, employ a person, under a written agreement, as an electorate employee.

Note: The power to employ a person under this subsection is subject to section 12.

Personal employees (Ministerial)

(2) A Minister may, on behalf of the Commonwealth, employ a person, under a written agreement, as a personal employee (Ministerial).

Note 1: The power to employ a person under this subsection is subject to section 12.

Note 2: A person who is both a Minister and a parliamentarian may employ persons under both subsections (1) and (2).

Personal employees (non-Ministerial)

(3) An office-holder other than a Minister may, on behalf of the Commonwealth, employ a person, under a written agreement, as a personal employee (non-Ministerial).

Note 1: The power to employ a person under this subsection is subject to section 12.

Note 2: A person who is both an office-holder other than a Minister and a parliamentarian may employ persons under both subsections (1) and (3).

12 Arrangements and conditions affecting power to employ under section 11

(1) A power to employ a person under section 11 must be exercised:

(a) in accordance with any arrangements approved under paragraph (2)(a) of this section; and

(b) subject to any conditions determined under paragraph (2)(b) of this section;

that apply to the parliamentarian or office-holder, and to the power.

(2) The Prime Minister may, in writing, do either or both of the following:

(a) approve arrangements in accordance with which a parliamentarian or office-holder is to exercise a power under section 11;

(b) determine conditions subject to which a parliamentarian or office-holder is to exercise a power under section 11.

(3) An instrument made under subsection (2) is not a legislative instrument.

13 Terms and conditions of employment

Terms and conditions

(1) The terms and conditions of employment for a person employed under this Act include the terms and conditions set out in:

(a) the agreement under which the person is employed; and

(b) any fair work instruments (within the meaning of the Fair Work Act 2009) that apply to the person; and

(c) any determination made under subsection (2) or (3) that applies to the person.

Note: This Act has effect subject to the Fair Work Act 2009: see section 3A of this Act.

Variation of terms and conditions for all or a class of employees

(2) The Prime Minister may, by notifiable instrument, determine that the terms and conditions of employment of either of the following (as specified in the instrument) are varied in accordance with the determination:

(a) all persons employed under this Act;

(b) all persons included in a specified class or classes of persons employed under this Act.

Variation of terms and conditions for individual employees

(3) The Prime Minister may, in writing, determine that the terms and conditions of employment of a specified person employed under this Act are varied in accordance with the determination.

Other matters affecting determinations

(4) Subsections (2) and (3) do not authorise the making of a determination that varies a matter expressly provided for by section 14, 16 or 17 (termination of employment) or 18 (suspension from duties).

(5) A determination may vary terms and conditions by varying specified terms and conditions or by including new terms and conditions.

(6) A determination that applies to a person prevails over the agreement under which the person is employed, to the extent of any inconsistency.

14 Automatic termination of employment

(1) A person's employment under this Act terminates if an event specified in the table occurs and the person is the kind of employee specified for the event.

Note 1: The employing individual is the parliamentarian or office-holder who employed the person on behalf of the Commonwealth (see the definition of employing individual in section 3).

Note 2: The effect of this subsection may be altered by a direction under section 15.

(2) For the purposes of table item 2 in subsection (1), a person is taken not to have ceased to be a parliamentarian at any time while remuneration is to be paid to the person in accordance with section 49 of the Parliamentary Business Resources Act 2017.

(3) For the purposes of table items 3 and 4 in subsection (1), a person ceases to hold the office of Minister at the time the person ceases to be appointed to administer any Departments (even if the person is immediately after that time appointed to administer one or more Departments).

Example: If a person is appointed to administer 2 Departments and then ceases to be appointed to administer one of those Departments, the person will not cease to hold the office of Minister. However, if the person ceases to be appointed to administer both Departments, the person ceases to be a Minister even if the person is immediately appointed to administer another Department.

(4) For the purposes of the table in subsection (1), the Prime Minister may, by legislative instrument, determine any of the following:

(a) circumstances, not inconsistent with subsection (2), in which an event specified in table item 2 is taken to occur, or taken not to occur;

(b) circumstances, not inconsistent with subsection (3), in which an event specified in table item 3 or 4 is taken to occur, or taken not to occur.

Subsection (1) has effect in accordance with the determination.

(5) If more than one event specified in the table in subsection (1) occurs at the same time, the event listed first in the table is the only event that is taken to have occurred.

15 Directions in relation to automatic termination

Direction in relation to class of persons

(1) The Prime Minister may, by legislative instrument, direct that the employment of the persons included in a specified class or classes of persons, whose employment would, but for this subsection, be terminated by subsection 14(1), is taken:

(a) not to have been terminated; and

(b) to continue, or to have continued, until a specified date.

Direction in relation to specified person

(2) The Prime Minister may, in writing, direct that the employment of a specified person whose employment would, but for this subsection, be terminated by subsection 14(1), is taken:

(a) not to have been terminated; and

(b) to continue, or to have continued, until a specified date.

(3) A direction made under subsection (2) is not a legislative instrument.

Effect of direction

(4) If the Prime Minister gives a direction under subsection (1) or (2), then, despite subsection 14(1), the employment of the persons included in the specified class or classes, or the employment of the specified person, is taken for all purposes to continue, or to have continued, until the specified date.

16 Termination by notice

(1) The employing individual for a person employed under this Act may at any time, by notice in writing given to the person, terminate the person's employment.

Note: The employing individual is the parliamentarian or office-holder who employed the person on behalf of the Commonwealth (see the definition of employing individual in section 3).

(2) The notice must specify the ground or grounds that are relied on for the termination.

Note 1: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment. See, for example, Parts 3-1 (general protections) and 3-2 (unfair dismissal) of that Act.

Note 2: Additional rules or procedures to be followed in terminating the employment of a person may be set out in:

(a) the agreement for the employment of the person; or

(b) fair work instruments (within the meaning of the Fair Work Act 2009); or

(c) arrangements approved or determinations made under section 12 or subsection 13(2) or (3) of this Act.

Note 3: Termination of employment may be unlawful under anti-discrimination laws in certain circumstances.

17 Resignation

A person employed under this Act may at any time, by notice in writing given to the employing individual, terminate the person's employment.

Note: The employing individual is the parliamentarian or office-holder who employed the person on behalf of the Commonwealth (see the definition of employing individual in section 3).

18 Suspension from duties

Suspension

(1) The employing individual for a person employed under this Act may suspend the person from duties if the employing individual considers that it is appropriate to do so.

Note 1: The employing individual is the parliamentarian or office-holder who employed the person on behalf of the Commonwealth (see the definition of employing individual in section 3).

Note 2: The Fair Work Act 2009 may limit the circumstances in which an employing individual may lawfully suspend a person from duties. See, for example, Part 3-1 (general protections) of that Act.

Note 3: Additional rules or procedures to be followed in suspending a person from duties may be set out in:

(a) the agreement for the employment of the person; or

(b) fair work instruments (within the meaning of the Fair Work Act 2009); or

(c) arrangements approved or determinations made under section 12 or subsection 13(2) or (3) of this Act.

Note 4: Suspension of employment may be unlawful under anti-discrimination laws in certain circumstances.

Period of suspension

(2) The suspension is for the period determined by the employing individual, which must not exceed 30 days.

(3) Subsection (2) does not prevent the employing individual from suspending the person again under subsection (1).

With pay unless exceptional circumstances

(4) The suspension is with pay, unless the employing individual is satisfied that exceptional circumstances exist to justify suspension without pay.

End of suspension

(5) The employing individual may end the suspension at any time before the end of the period determined under subsection (2).