Australian Capital Territory
Legislative Assembly (Members’ Staff) Deemed Date Of Termination Of Employment Of Members’ Staff 2009
Disallowable instrument DI2009-48

Legislative Assembly (Members’ Staff) Act 1989, s 13 (5) (Termination of employment)

EXPLANATORY STATEMENT

Legislative Context

The Legislative Assembly (Members’ Staff) Act 1989 (“the Act”) provides for the employment of staff by members of the Legislative Assembly.  Subsection 10(1) of the Act gives members the authority to employ staff.  Section 13 of the Act sets out the time when the employment of such persons terminates.

Subsection 13(5) of the Act provides that the Chief Minister may, by written instrument, direct that the employment of a person whose employment is terminated by the operation of subsection 13(1) shall be deemed not to have terminated and to have continued until a specified date.  Such a direction is a disallowable instrument.

Outline

At a general election the employment of part 3 employees under the Act is terminated by a combination of the operation of subsection 13(1) of the Act and section 10 of the Australian Capital Territory (Self-Government) Act 1988.

A direction was made on 16 December 2005 under subsection 13(5) of the Act, DI2005-291, which provides for the deemed continued employment of part 3 employees where the employing member has nominated for re-election at a general election.  Under DI2005-291 the employment of part 3 employees is deemed to continue until the date of the declaration of the poll or the date that is two weeks after polling day, whichever date is later.  The purpose of the direction is to provide for the continuity of employees’ employment between successive Assemblies.  While the current direction is sufficient for most circumstances, a break in employment could arise where a new Government is not formed within the aforementioned period of deemed continued employment, and employees are subsequently re-employed under the Act.

This Instrument revokes DI2005-291 and substitutes a new direction that extends the period of deemed continued employment of part 3 employees from the present two weeks to four weeks after polling day.  The purpose of this amendment is to minimise the potential for a break in employment arising in the above circumstances.

To avoid unintentionally increasing termination payments to part 3 employees who are not subsequently re-employed, a clause has been inserted which deems the period of deemed continued employment to constitute notice for the purpose of the Workplace Relations Act 1996 and payment for the purpose of any termination payments made under an applicable collective agreement.

	Direction

Numbered clauses 1 to 4 contain technical provisions.

Numbered clause 5 revokes direction DI2005-291.

Numbered clause 6 directs that the employment of persons employed under part 3 of the Act is deemed to continue until a specified date.

Numbered clause 7 specifies the class of persons to whom the direction applies as persons whose employment would have ceased by the operation of subsection 13(1) of the Act.

Numbered clause 8 specifies the date on which the deemed continued employment ceases.  The period of deemed continued employment in clause 8(1) has been amended by replacing “two weeks after polling day” with “four weeks after polling day”.  

A new provision, numbered clause 8(3), has been inserted which deems the period of deemed continued employment to constitute notice for the purpose of the Workplace Relations Act 1996 and payment for the purpose of any termination payments made under an applicable collective agreement, in respect to part 3 employees who are not subsequently re-employed.