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Electorate employees are generally employed under Part IV of the Members of Parliament (Staff) Act 1984 (MOP(S) Act), and are responsible to the employing Senator or Member. Personal employees and, in some cases, electorate employees, are employed under Part III of the MOP(S) Act.
MOP(S) Act employees are covered by the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (the Enterprise Agreement) which sets out the employees’ terms and conditions of employment. The Enterprise Agreement, relevant guidelines and policies, and determinations made pursuant to the MOP(S) Act form the employment framework.
- Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019
- Enterprise Agreement Guidelines
The employment of all staff under the MOP(S) Act is also subject to the following Acts:
- Fair Work Act 2009
- Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
- Long Service Leave (Commonwealth Employees) Act 1976
- Maternity Leave (Commonwealth Employees) Act 1973
- Safety, Rehabilitation and Compensation Act 1988
- Superannuation Act 1976
- Superannuation Act 1990
- Superannuation Act 2005
- Superannuation Benefits (Supervisory Mechanisms) Act 1990
- Superannuation Guarantee (Administration) Act 1992
- Work Health and Safety Act 2011.
Senators and Members are prohibited from entering into employment agreements under the MOP(S) Act with their following family members:
- a spouse, de facto partner, child, parent or sibling of the Senator or Member
- a child of the spouse or de facto partner of the Senator or Member
- a spouse or de facto partner of a child of the Senator or Member, or
- a spouse or de facto partner of a sibling of the Senator or Member.
Senators and Members are not prohibited from employing a family member of another Senator or Member.
- Determination 2013/12: Determination of condition on exercise of power of Office-Holders, Senators and Members of the House of Representatives to employ staff
Where a Senator or Member enters into an employment arrangement with an above-listed family member, the employment will not be employment under the MOP(S) Act. As a result, the employee’s terms and conditions of employment will not be governed by arrangements under the MOP(S) Act.
The employing Senator or Member is responsible for:
- drafting recruitment advertisements for vacant positions
- selecting employees and making a written employment agreement with each employee
- ensuring that, consistent with good employment practice, completed employment agreements and associated documentation are submitted without delay to Ministerial and Parliamentary Services
- allocating duties to individual employees
- nominating employees for work health and safety roles
- allocating electorate staff allowance (ESA) to electorate positions, in consultation with employees
- informing Ministerial and Parliamentary Services as soon as practicable after ESA allocations or changes to ESA allocations are made, as some changes must be notified within certain timeframes and/or only take effect from the date Ministerial and Parliamentary Services receives written notice of the change
- approving certain employee training and leave in accordance with the Enterprise Agreement and travel in accordance with the staff travel determination
- ensuring good employment practices are followed (for example: providing induction for new employees, work health and safety, freedom from discrimination and harassment, contingency plans for dealing with constituents)
- Workplace Practices
- consulting with employees about any major changes in the workplace in accordance with clause 6 of the Enterprise Agreement
- resolving issues which may arise in relation to workplace practices
- terminating the employment of employees.
Ministerial and Parliamentary Services is responsible for:
- arranging payment of salary, electorate staff allowance, parliamentary staff allowance, and other allowances
- placing online recruitment advertisements
- providing a safe workplace for employees in accordance with its duties under the Work Health and Safety Act 2011 (Cth) (WHS Act)
- providing certain training for employees, including ‘MOP(S) Act Employment – Terms and Conditions’ and ‘Office Management’ information sessions
- maintaining personnel and other records associated with employment
- providing advice to Senators and Members on workplace practices and employment matters (including performance management and termination)
- providing advice to employees on employment matters.
The Independent Parliamentary Expenses Authority is responsible for:
- arranging payment of travelling allowance and administration of travel expenses
- providing advice to Senators and Members and employees on travel matters.
Employees are responsible for:
- their own performance and conduct in the workplace
- Training and Professional Development
- Workplace Practices
- taking reasonable care for their own health and safety
- taking reasonable care that their acts or omissions do not adversely affect the health and safety of other persons
- ensuring they report any potential WHS hazards in a timely manner
- undertaking duties assigned by the Senator or Member
- treating all constituents, other staff and other persons, legitimately entering the workplace, with respect and courtesy
- using facilities and benefits provided to the Senator or Member appropriately (for example, not for private or commercial purposes)
- complying with all relevant Commonwealth/State/Territory legislation in the workplace.
A Senator or Member may, in writing, authorise another person to exercise certain powers under the MOP(S) Act on his or her behalf. This can be done by completing the Authorisation to Exercise Powers under the Members of Parliament (Staff) Act 1984 form (Form 7).
Valid authorisations under the MOP(S) Act include powers such as employing other employees and approving leave or travel for other employees.
Authorisations are to be made prospectively, that is, in advance of the authorised person exercising the relevant powers.
A person so authorised cannot exercise those powers on his or her own behalf or authorise another person to exercise those powers. A Senator or Member remains personally responsible and accountable for the exercise of those powers.
There are three levels of Electorate Officer: A, B and C. Electorate Officer C is the highest level.
Senators and Members must choose either of the two following combinations, although it is also open to a Senator or Member to substitute a position at a lower classification for any Electorate Officer B or C position:
|2 x Electorate Officer A positions
1 x Electorate Officer B position
1 x Electorate Officer C position
|OR||1 x Electorate Officer A positions
3 x Electorate Officer B position
Where a Member has a second or third electorate office at Commonwealth expense, the additional Electorate Officer positions are at the Electorate Officer B level.
Ministerial and Parliamentary Services can organise the placement and will meet the cost of online advertisements for ongoing vacancies on recruitment websites. This provides for up to three online advertisements for each vacant Electorate Officer position and up to four online advertisements for each vacant personal employee position.
Senators and Members may advertise vacant positions in print media. Senators and Members who wish to advertise using print media can use their printing and communications work expense from their office budget to meet the cost of the advertisement or alternatively meet the cost of the advertisement personally.
Senators and Members who wish to outsource the recruitment of vacant positions to a private employment agency must meet the cost of these services personally.
Further information on recruiting employees, including sample advertisements, is available.
Senators and Members employ their employees on behalf of the Commonwealth. Employees may be employed on an ongoing basis, a non-ongoing basis for a period of not more than 12 months, or a casual basis for no more than four weeks. A written employment agreement between the Senator or Member and the employee is required and should be completed prior to commencement.
- Employment Agreement Bundle
Senators and Members are required to complete a new employment agreement:
- when a new employee (including a relief employee engaged under the electorate support budget) is employed
- for each engagement of a non-ongoing employee (including multiple short-term engagements of the same employee where there is a break in employment)
- for each engagement of a casual employee that is not covered by a previous employment agreement
- when the Senator or Member:
- becomes a relevant office-holder under section 3 of the MOP(S) Act, thus engaging electorate employees under Part III of the MOP(S) Act rather than Part IV, or
- ceases to be a relevant office-holder, and must engage electorate employees under Part IV of the MOP(S) Act, rather than Part III, or
- when the employee is subject to a termination of employment under the terms of the MOP(S) Act and the Senator or Member wishes to re-employ that employee.
Employees are paid by Ministerial and Parliamentary Services. Salary payments cannot be processed until Ministerial and Parliamentary Services receives the completed and signed employment agreement and accompanying documentation.
To ensure employees receive timely payment of their salary and access to other arrangements, Senators and Members should enter into an agreement of employment in writing prior to, or immediately upon, commencement of employment and promptly submit these documents to Ministerial and Parliamentary Services. The same practice should apply to variations to existing employment agreements. For the protection and benefit of Senators and Members and their employees, it is essential that the employment relationship is formed in writing under the MOP(S) Act, and is clear and unequivocal from the outset.
It is preferred that completed, signed and scanned employment agreements, together with all relevant supporting documentation, are submitted to Ministerial and Parliamentary Services by email. Alternatively, completed and signed original employment agreements can be provided by mail. Where documents are emailed, Senators and Members are required to retain all original employment agreements and supporting documentation until either an audit is conducted or the employing Senator or Member leaves Parliament, whichever occurs sooner.
Risks of not submitting employment documentation
Delays in the submission of employment documentation carry grave risks for employees, the employing Senator or Member and the Commonwealth. The longer the delay in submitting employment documentation, the greater the risk to which each party is exposed. These risks are outlined below, to assist Senators and Members and office managers to formulate appropriate risk reduction strategies that are suitable for the circumstances of their office. New and prospective MOP(S) Act employees should be advised of these risks at the earliest opportunity, to reduce the potential for disappointment or legal action connected with the consequences of their employment agreements being delayed.
Risks to employees
Without a written employment agreement, employees are not employed under the MOP(S) Act, and until their completed employment agreements are submitted to Ministerial and Parliamentary Services, they will not be able to:
- be paid salary and allowances
- accrue and access superannuation benefits
- accrue and/or take leave
- travel at Commonwealth expense
- attend training
- access work health and safety (WHS) services, and/or
- be issued with a Parliament House security pass.
Even small variations to employment arrangements that are not submitted to Ministerial and Parliamentary Services promptly can have significant consequences for an employee seeking to manage his or her financial commitments. This is particularly so where an employee’s hours of work are reduced, resulting in an overpayment to the employee, which will be recovered as a debt due to the Commonwealth. Also, through no fault of their own, an employee could face an additional tax burden, should an employment agreement covering work performed in one financial year not be lodged with Ministerial and Parliamentary Services until the next financial year.
Risks to the employing Senator or Member
Where an employing Senator or Member purports to employ a person as a MOP(S) Act employee, but does not do so under an agreement in writing, the person is not validly employed by the Senator or Member on behalf of the Commonwealth.
A person invalidly employed in this way may be entitled to seek a remedy from the Senator or Member who purported to employ them, on the basis that the person has provided the Senator or Member with services which the Senator or Member has requested and accepted.
A person in this situation:
- may not be covered by Commonwealth workplace relations legislation, but by the relevant State or Territory legislation, and there could be considerable confusion as to what industrial instrument(s) would apply
- may be disadvantaged in his or her remuneration, WHS and workers’ compensation coverage, superannuation, and long service and maternity leave entitlements.
In addition, there are lesser risks attached to the late submission of employment agreements that compromise the efficient administration of the employing Senator or Member’s office. For example, employment against the electorate support budget, and expenditure from that budget, will be more difficult to track if employment forms are not submitted promptly. This could leave a Senator or Member liable for costs related to services performed but not covered by the electorate support budget.
Risks to the Commonwealth
As Senators and Members employ MOP(S) Act staff on behalf of the Commonwealth, the Commonwealth is exposed to legal and financial risks if a Senator or Member adopts or allows poor administrative and management practices within their office, including late submission of employment agreements. Such risks include responsibility for work health and safety matters and the risk of financial loss from overpayments to employees if those overpayments are unable to be recovered as a debt due to the Commonwealth.
If a Senator or Member personally employs a person, the employee’s terms and conditions of employment are not governed by arrangements under the MOP(S) Act and the employee is not covered by the Enterprise Agreement.
If an employee is employed personally by the Senator or Member, the Senator or Member as the employer, is responsible for:
- the employee’s remuneration, superannuation and taxation arrangements
- other employment matters including, but not limited to, long service leave, maternity leave, workers’ compensation and work health and safety.
In this situation, State or Territory legislation and relevant industrial instruments may apply rather than Commonwealth legislation.
A Senator or Member is strongly advised to appoint each ongoing employee on probation and to advise the employee accordingly, subject to the following conditions:
- the probationary arrangement, including the possibility of an extension to the probationary period, should be discussed and agreed before employment commences, preferably when the offer of employment is being discussed
- the standard probationary period is three months, which may be extended by a maximum of two months (that is, five months in total)
- before the end of the probationary period, the Senator or Member, or a person they have authorised, must advise the employee and Ministerial and Parliamentary Services if:
- the probationary period will be extended (for a maximum of two months), subject to the Senator or Member providing written notice to the employee before the expiration of the initial probationary period, or
- the probationary period will not be extended and the employment will cease.
Otherwise, the probationary period will not be extended and the employment will be confirmed.
It is highly desirable that the Senator or Member, or authorised person, take care to review the performance of an employee before the completion of the initial or extended probationary period. If employment is not going to be confirmed, the employee must be carefully counselled and given adequate notice. Further information may be obtained from the relevant Ministerial and Parliamentary Services Advice and Support Director.
An employee who is transferred or promoted from another office (or other Commonwealth employment) without a break in employment, and has completed a probationary period, cannot generally be subject to a further period of probation.
It is strongly recommended that Senators and Members require all new ongoing employees to undertake a National Police History Check. The employing Senator or Member must indicate on the employment agreement if the employee is required to undertake a National Police History Check.
Employees who are required to undertake a National Police History Check must complete the National Police History Check (NPHC) Application/Consent form (Form 78) as part of the employment process. This form is included in the employment agreement packs. Form 78 must be completed in full and returned to Ministerial and Parliamentary Services with the completed employment agreement.
Results of the National Police History Check are not retained by the Department of Finance and are only forwarded to the employing Senator or Member by their Ministerial and Parliamentary Services Advice and Support Director if an adverse result is returned. Advice and Support Directors will be available to provide further guidance if adverse findings are reported, or where employees fail to undertake a National Police History Check or fail to provide consent for the results to be disclosed.
There may be implications in relation to continued employment if an employee who is required to undertake a National Police History Check fails to do so, or if the National Police History Check reveals an adverse result that was not previously disclosed to the employing Senator or Member. A Senator or Member who is considering action in relation to a person’s employment, including because of any adverse National Police History Check result, should contact their Ministerial and Parliamentary Services Advice and Support Director.
Ordinary Hours of Duty
The ordinary hours of duty for a full-time employee are 38 hours per week (an average of 7 hours and 36 minutes per day). These hours will generally be worked between the hours of 8.00am and 6.00pm, Monday to Friday.
Additional hours of work, over and above the ordinary hours of duty are recognised through the payment of electorate staff allowance, parliamentary staff allowance or, where those allowances are not paid, time off in lieu.
This allows a degree of flexibility about when an employee works their ordinary hours of duty during the week. For example, if an employee is required to work a number of hours over the weekend, this could be agreed to be part of the employee’s ordinary hours of duty for that week. This means that the employee might not be required to work on another day that they would normally work within that week.
Hours of Duty for Part-time Employees
A part-time employee is an employee whose ordinary hours of duty are less than the ordinary hours for full-time employees (i.e., an employee who regularly works less than 38 hours per week). Part-time hours will be as agreed with the employing Senator or Member and specified in the employment agreement. Where more than one employee is employed against a full-time position, the total ordinary hours worked against the position must not exceed 38 hours per week.
- Enterprise Agreement clause 31: Ordinary hours of duty
- Enterprise Agreement Guideline: Part-time Work
On appointment, employees are required to nominate, as agreed by the employing Senator or Member or authorised person, a work base. The work base will be the place of work where the employee spends most time on duty, and may be distant from an employee’s home.
Electorate Officer positions are to be located in a Senator or Member’s electorate office, except for a maximum of one full-time Electorate Officer position which may be located in Canberra (or other office provided at Commonwealth expense within the State or Territory of their electorate, if applicable).
The additional Electorate Officer positions allocated to Members with second or third electorate offices at Commonwealth expense may be located in any of their electorate offices subject to a minimum of one full-time position and a maximum of two full-time positions in each of the second and third electorate offices.
The Special Minister of State may approve an alternative work base for an Electorate Officer in special circumstances. The approval of the Special Minister of State is required for employees to be based in a privately-funded and/or privately-leased electorate office.
For a Senator or Member allocated personal employee positions, those positions may have a work base of either the electorate office or Canberra (or other office provided at Commonwealth expense, if applicable). The Special Minister of State may approve an alternative work base. Where such approval is given, any travelling allowance paid in respect of travel to any of the employer’s offices is deducted from the Canberra 120 overnight stay limit.