Premier & Cabinet

Type:
Department of Premier and Cabinet Circular
Identifier:
C1994-12
Status:
Archived

C1994-12 Guidelines for Chief Executive Officers Ses Officers Electing Right of Return

Description

This Circular provides guidelines for SES officers electing Right of Return.

Detailed Outline

Right of Return

Where an SES officer has paid for a right, legal advice has indicated that:

  • The right to return is a statutory right, and cannot be defeated by the provision of the contract employment, or by any statement made in an official publication. The right is legally enforceable against the State.
  • The right is not to be defeated by confining the range of possible engagements to a particular part of the public sector and treating the officer as surplus to the needs of that part. It is an obligation, at the Ieast, to search the whole of the public sector, if necessary, for an office or position which is expected to provide enduring employment in the public sector to the officer.
  • Nor is the right to be defeated by placing the officer in an office or position about to be abolished, or, even worse, abolishing the office or position for the purpose of getting rid of the officer from the public sector.
  • If, despite all good intentions, the office or position to which the officer is initially appointed unexpectedly is abolished or becomes redundant, the officer must suffer that misfortune. The right of return does not mean a right to be kept in whatever succession of offices or positions in the public sector might be necessary to keep him or her continuously and indefinitely engaged in that sector.

There are two scenarios for SES officers to exercise the right of return:

(a) When the contract comes to an end and another SES position is not won; or

(b) Contract is terminated by the employer before the expiry date for reasons other than poor performance or misbehaviour.

If a position was found in another agency to which the person was appointed but circumstances were such that the position ceased to exist within the salary maintenance period, then the original agency i.e. the agency to whom the officer had been paying the right of return payments, would still be liable to meet the redundancy costs.

Col Gellatly,
Director General.

Contact Officer: Dr Gaye Rosen
Telephone: 228 5510
Branch: SES Unit
Date: 20 May 1994

 

Attachment A

Circular 94/12
(Date: 20 May 1994)

SENIOR EXECUTIVE SERVICE — APPLICATIONS FOR COMPENSATION AND THE RIGHT OF RETURN

When an SES contract is terminated for reasons other than misbehaviour the officer is entitled to seek, pursuant to Section 42S of the Public Sector Management Act 1988, compensation from the Statutory and Other Officers Remuneration Tribunal (the Tribunal).

For those SES officers who have a Right of Return option in their contracts, applications for compensation are made pursuant to Section 42T of the PSM Act. To date such officers have indicated that in seeking compensation they would waive their Right of Return. By taking this action the officer is excluding this option before knowing what compensation, if any, is likely to be determined.

To overcome this situation the Tribunal has decided that an applicant need not forfeit his/her right of return before applying for compensation. Upon receipt of an application for compensation, the Tribunal will make a report and determination, based on the merits of each case. Copies of the determination will be forwarded to the officer and the relevant CEO. The officer is then in a position to make an informed decision on whether to take the compensation determined or exercise the Right of Return. If the officer chooses the former then the election must be made in writing to the CEO. Only at that point does the officer forfeit the right of return.

To ensure the revised procedure works effectively it is essential that the following measures be adopted:

Applications for compensation should continue to be made as per current procedures. In addition to the normal information, applications MUST now indicate whether the officer has a Right of Return option in his/her contract. This will allow the Tribunal to word the Report appropriately.

It is essential that applications are forwarded to the Tribunal promptly to ensure a determination is made prior to officer ceasing to be an executive officer, at which time the right of return also lapses (Section 42R (4) and (10) of the PSM Act refers).

Please bring this matter to the attention of all SES officers of your administration. Should you have any further inquiries please contact the Tribunal's Executive Officer on tel (02) 266 8404.

Overview

Compliance

Not Mandatory

AR Details

Date Issued
May 20, 1994
Review Date
Dec 31, 2014
Replaces
Replaced By

Contacts

Contact
Contact us
Phone
02 9228 5555
Publishing Entity
Department of Premier and Cabinet
Issuing Entity
Department of Premier and Cabinet