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Last updated: 5 July 1999
Circular 1999/7: Invalidity retirement - Notice of termination
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
This Circular replaces advice contained in PSC Circular 1995/21 concerning the taking effect of a notice of retirement on the grounds of invalidity, specifically Attachment D, paragraph 3 where it states "except where the officer has consented to action being taken as specified in PS Regulation 120C(2) in which case the notice takes effect on the day specified in the notice." Updated advice on the remaining elements of that circular will be provided in due course.
Background
2. PSC Circular 1995/21 provided advice on changes to APS termination of employment provisions following certification of the Continuous Improvement in the Australian Public Service Enterprise Agreement: 1995-96. In relation to invalidity retirement, that circular advised that, where a person consents to the issuing of a notice of retirement on the grounds of invalidity, as provided for under Public Service Regulation 120C(2), the notice takes effect on the day specified in the notice, regardless of any period of notice that might apply to the person.
3. Under section 76W of the Public Service Act 1922 a Secretary has power to retire an officer on various grounds including that of physical or mental incapacity, commonly referred to as invalidity retirement. The retirement is considered to be termination of employment at the initiative of the employer. The retirement can only actually occur at the initiative of the Secretary, by taking action under a statutory power.
4. Under section 170CM of the Workplace Relations Act 1996, except in limited circumstances, an employee whose employment is terminated is required to be given either a period of notice or a payment in lieu of notice.
Legal advice
5. The Australian Government Solicitor has advised that when a Secretary takes action under section 76W of the Public Service Act 1922 to retire an officer from the APS, the retirement is termination at the initiative of the employer for the purposes of section 170CM of the Workplace Relations Act 1996. The opinion also states that if a notice of retirement is expressed to take effect before the statutory period of notice in section 170CM would run out, then a payment in lieu of notice should be paid to the retiring officer.
6. The Public Service Regulations also set out some requirements that are relevant to the giving of the notice under section 76W of the Public Service Act 1922. Regulation 120C(2) allows for an invalidity retirement notice under section 76W to be retrospective in effect, or in other cases, a notice may take effect only from the date that it is given to the officer. The legal view is that where an officer consents to a Secretary issuing a retirement notice, the notice takes effect on the date agreed. Under section 170CM of the Workplace Relations Act 1996, if the agreed date does not meet the minimum notice requirements, then a payment in lieu of notice will need to be paid to the officer.
7. Any queries regarding this matter should be directed to the PSMPC's Hotline at (02) 6202 3859.
Jenny Harrison
Team Leader
Values, Conduct and Diversity Team
June 1999
