Research Paper Index

Research Paper no. 26 2008-09

Note: this paper has been udated on 3 August 2009

The Members of Parliament (Staff) Act 1984 framework and employment issues

Dr Nicholas Horne
Politics and Public Administration Section

Contents

Glossary

Acknowledgements

The author would like to thank Ian Holland, Chris Lawley, Cathy Madden, Deirdre McKeown, Anne Tiernan, and Guy Woods for their assistance in preparing this paper.

Introduction

This research paper provides comprehensive information on the Members of Parliament (Staff) Act 1984 (Cth) (MoPS Act) employment framework, including recent developments, staff figures, and staffing trends.

The paper also updates and expands a previous Parliamentary Library publication on employment issues associated with the MoPS Act, [1] and complements a 2002 Research Note on the background to the Act. [2] The arrangements applying to Australian Public Service (APS) employees working temporarily as staff under the MoPS Act are not considered in this paper. A future paper will consider accountability issues associated with the Act.

Employment framework

The Members of Parliament (Staff) Act 1984

The MoPS Act regulates the employment of staff (MoPS staff) by senators and members of the House of Representatives. [3] The Act is divided into five Parts:

• Part I—short title, commencement, and interpretation information
• Part II—regulates the employment of consultants by ministers
• Part III—regulates the employment of staff by office-holders
• Part IV—regulates the employment of staff by senators and members more generally, and
• Part VI—prescribes annual report requirements pertaining to the employment of ministerial consultants; enables office-holders, senators and members to authorise others to exercise their powers under the Act; and provides for the making of regulations. [4]

‘Office-holder’ is defined in section 3 of the MoPS Act to mean ministers, the Leader and Deputy Leader of the Opposition in the House of Representatives and the Senate, the leaders and deputy leaders of other recognised political parties, and former Prime Ministers. [5] Staff of office-holders employed under Part III and staff of senators and members more generally employed under Part IV are commonly categorised as personal staff and electorate staff respectively. [6] As the Australian National Audit Office (ANAO) has noted, however, an exception to this categorisation is the employment of electorate staff by office-holders under Part III of the Act:

In general, Senators and Members employ their electorate staff under Part IV… The exceptions are the electorate staff of Ministers, Parliamentary Secretaries, the Leader and Deputy Leader of the Opposition, the Leader and Deputy Leader of the Opposition in the Senate, and the Leader and Deputy Leader of the Australian Democrats. Those staff are employed under Part III of the Act. [7]

The ranks of the personal staff include ministerial staff, which are the personal staff employed by ministers and parliamentary secretaries. While individual office-holders, senators and members are the employers of their staff under Parts III and IV of the Act, [8] the Act gives a wide discretion to the Prime Minister to determine the employment arrangements for MoPS staff. Subsections 13(2) and 20(2) of the Act provide that the power of office-holders, senators and members to employ staff:

… is not exercisable otherwise than in accordance with arrangements approved by the Prime Minister, and the exercise of that power is subject to such conditions as are determined by the Prime Minister. [9]

Under the Rudd Government a staffing committee of three, called the Government Staffing Committee, considers government staffing matters such as classifications (particularly regarding more senior staff) and makes recommendations to the Prime Minister. [10] Previous governments have had similar committees.

The Prime Minister also has the ability to vary the terms and conditions of MoPS staff employed under Parts III and IV, excepting certain terms and conditions relating to superannuation determined by the employing office-holder, senator or member and the terms and conditions prescribed by the Act relating to termination of employment. [11]

While there are individual variations, currently a typical cabinet minister’s personal staff will comprise a senior adviser/chief of staff, a senior media adviser, three to five advisers, two assistant advisers, an executive assistant/office manager, and a secretary/administrative assistant. A junior (i.e. non-cabinet) minister’s personal staff will consist of a senior adviser/chief of staff, a media adviser, an adviser, an assistant adviser, an executive assistant/office manager, and a secretary/administrative assistant. A parliamentary secretary’s personal staff will consist of an assistant adviser and an executive assistant/office manager. All ministers and parliamentary secretaries will also have either four or five electorate staff in their offices (see further below). The various personal staff classifications as at 1 February 2009 are set out at Appendix A.

In addition to staff employed under the MoPS Act, there will be staff working in the offices of office-holders, senators and members who do not come under the MoPS Act framework. Examples include interns, volunteers, and the Departmental Liaison Officers (DLOs), who are APS officers employed by departments and who are located in ministers’ offices in order to assist communication between ministers and departments.

Determinations and the Collective Agreement

Under the MoPS Act the Prime Minister has the power to make various determinations relating to the employment of staff and the terms and conditions of employment. [12] In recent years the Special Minister of State has made a range of determinations for and on behalf of the Prime Minister under the MoPS Act in relation to MoPS staffing arrangements; in 2003 the Senate Finance and Public Administration References Committee (SFPARC) noted that ‘most of the powers [under the MoPS Act] are delegated to the Special Minister of State (other than for the staff of ministers and parliamentary secretaries)’. [13] In the past determinations have generally not been publicly available; in 2003 the Department of Finance and Administration (DoFA) informed the SFPARC that ‘It is not usual practice to make copies of Determinations publicly available because they relate to terms and conditions of employment’. [14] Some information regarding MoPS staffing and remuneration, however, has periodically been made publicly available through the Senate Estimates process, including one recent significant determination made by Prime Minister Rudd. In addition, as of December 2008 the Determinations made over 2007–2008, together with a range of other information, have been made publicly available in the new MoPS Act 2007–08 Annual Report (see further below).

Up to a certain level (media adviser (non-Cabinet minister)/adviser), the terms and conditions of employment for MoPS staff (including electorate staff) are set out in a Collective Agreement that is due to expire in 2009. [15] Under the Howard Government after December 1998, senior personal staff above the media adviser (non-Cabinet minister)/adviser level were employed according to terms and conditions set out in Australian Workplace Agreements (AWAs), the details of which were not publicly available. [16] Under the Rudd Government AWAs are no longer offered for senior personal MoPS staff. Instead, a Determination made by the Prime Minister in December 2007 sets out the terms and conditions for senior staff employed under Part III of the Act. [17] The Determination, which is intended to be an interim arrangement, [18] covers a range of matters including salary ranges, leave, allowances, and severance benefits. In January 2009 it was reported that the government was considering the development of a ‘longer–term employment framework for senior staff which will incorporate remuneration and other terms and conditions of employment’. [19]

Remuneration and allowances

The remuneration of MoPS staff has three components: base salary, extra duties allowance, and other applicable allowances and entitlements such as study assistance and travel and relocation allowances. Up to the level of media adviser (non-Cabinet minister)/adviser (including electorate staff), salaries are determined by the current Collective Agreement. For senior personal staff, individual salaries are set either by the employing office-holder (for non-government staff) or by the Prime Minister (for government staff) within the salary ranges specified by the Prime Minister’s Determination. [20] Current salary ranges for MoPS staff are reproduced at Appendices B and C.

As the ANAO noted in 2003, it is also possible for staff to be paid at rates outside specified salary ranges by means of ‘personal classifications’:

Individual staff members may, with the approval of the Prime Minister, be assigned a personal classification that is higher or lower than the substantive classification of the position they hold and, accordingly, be paid at a rate applicable to another classification. Personal classifications are not additional positions. They are assigned to recognise the particular skills and responsibilities of individual staff. [21]

The ANAO further noted that in March 2003 the availability of personal classifications was extended to ‘non-Government office holders’ by the Howard Government. [22] As at 17 February 2009, nine government staff, four Opposition staff, and one non-government staff member were assigned personal classifications. [23]

There are three categories of the extra duties allowance for MoPS staff: an electorate staff allowance (ESA) for electorate staff; a parliamentary staff allowance (PSA) for personal staff up to the media adviser/adviser level; and a ministerial staff allowance (MSA) for senior personal staff paid ‘in recognition of the long and irregular hours required in addition to the ordinary hours of duty and other special features of employment’. [24] ESA is payable at the discretion of the employing office-holder, senator or member and varies according to employee classification. The current maximum total ESA allocation per employing parliamentarian is $39 313 ($45 865 for those with a second electorate office). [25] The current PSA for the media adviser/adviser classification is $18 678 per annum and the current MSA is $17 719 per annum. [26] In addition, personal staff at the highest classifications—principal advisers, chiefs of staff and senior advisers—are entitled to the use of a private-plated vehicle or cash-in-lieu to the value of $18 540 per annum. [27]

Recent developments

2003 SFPARC inquiry and ANAO performance audit

In 2003 the SFPARC, chaired by Senator Michael Forshaw, conducted an inquiry into staff employed under the MoPS Act. [28] The Committee inquired into a range of matters including ‘the adequacy and appropriateness of the framework for employment and management of staff’ under the Act, the ‘remuneration and conditions of employment of MoPS staff’, appropriate amendments to the MoPS Act, and ‘suitable means by which the accountability of MoPS staff could be enhanced’. [29] In its October 2003 report a majority of the Committee made a total of 21 recommendations relating to the MoPS Act employment framework including:

• the restructuring of the MoPS Act in order to ‘define the different categories of MOPS employment’ [30]
• the preparation of a comprehensive annual report on MoPS staffing
• the introduction of a code of conduct for ministerial staff, and
• the eventual introduction of a code of conduct for non-ministerial staff . [31]

While there has been no formal government response to the SFPARC’s report to date, [32] the Rudd Government has implemented some of the measures recommended by the SFPARC including introducing a code of conduct for ministerial staff and MoPS Act annual reporting (see further below). [33] In 2003 also, the ANAO conducted a performance audit of the administration of MoPS staff by DoFA. The Audit Office made a number of recommendations to improve the administration of MoPS staff. [34]

Rudd Government initiatives

Ministerial staff reduction

In August 2007 the Australian Labor Party (ALP) announced its intention to reduce ministerial staff numbers by 30 per cent in order to equate with 1996 staffing levels (the effect of this reduction on staff numbers is detailed below). [35] A reduction of staff in this vein is not a new concept; in May 1996 the Howard Government, for example, employed 17.5 per cent fewer personal staff than had been employed by the Keating Government a year earlier in April 1995. [36]

Since the ALP took office and implemented the reduction, a number of media reports have commented on the pressure, workload and long working hours experienced by the new ministerial staff cohort, particularly in the Prime Minister’s office. [37] Concern has also been expressed in the media about the potential for the staff reduction to have adverse effects on policy and decision-making. [38] In March 2008 the National Secretary of the Community and Public Sector Union was reported as suggesting that the 30 per cent reduction was ‘short-sighted’ and that, if it is not re-examined, the government ‘will have a steady stream of people falling over’. [39]

In July 2008 it was reported that staff turnover in ministerial offices was very high and that a review of ministerial staffing arrangements and levels was underway within the government. [40] In August 2008 there was speculation that the government was planning to increase ministerial staff numbers, but in the same month the government stated that it had no plans to alter the current ministerial staffing arrangements. [41] Notably, in December 2008 the Department of the Prime Minister and Cabinet (DPMC) engaged a consultant to review ‘matters relating to the allocation of staff employed under the Members of Parliament (Staff) Act’. [42] It is unclear whether this review, which was scheduled to be completed in late February 2009, will also consider the 30 per cent reduction, although media comment has suggested that this is so. [43]

Also in December 2008 Department of Finance and Deregulation (DoFD) figures indicated that between December 2007 and October 2008 24 per cent of personal staff (at various levels) engaged by ministers had ceased employment, with a cessation rate of 41 per cent in the Prime Minister’s office. [44] The DoFD stated that these figures:

… include employees who were engaged on an ongoing, non-ongoing or temporary transfer basis to enable a smooth transition to government, as well as employees who were promoted/transferred from or to electorate officer positions. The figures do not include employees who were promoted/transferred from non-government personal to government personal staff positions following the election. [45]

In 2003 the SFPARC observed that, while the ‘greatest turnover’ of MoPS staff will be at elections, the cessation rate ‘At other times … is also relatively high’. [46]

It remains to be seen whether the Rudd Government’s reduction in the number of ministerial staff is maintained in the longer term, particularly in light of the DPMC review. Any imperative for the government to increase ministerial staff numbers would face a competing imperative to observe the pre-election commitment and maintain the reduction.

Code of conduct and MoPS Act annual reporting

After the 2007 federal election it was reported in the media that the Rudd Government would introduce a code of conduct for ministerial staff; this was confirmed by the government during Senate Estimates hearings in February 2008. [47] The code was subsequently released on 26 June 2008 and took effect on 1 July 2008. [48] The code of conduct will be considered further in the future paper on MoPS Act accountability issues.

In October 2008 the government announced the introduction of annual reporting ‘on Ministerial and Parliamentary staffing’. [49] The government stated that the annual reports will ‘provide an overview of the numbers of Ministerial staff and the costs of their employment’ and will ‘enhance the transparency of employment arrangements for all MOP(S) Act employees’. [50] The first Annual Report, covering the 2007–08 financial year, was released in December 2008 and contains a range of information including:

• MoPS staff home bases, staff numbers, salary ranges, allowances ranges, and personal classifications
• payroll, travel and support costs
• information on professional development, training, occupational health and safety, fraud prevention and control, and unfair dismissal
• the code of conduct for ministerial staff, and
• Determinations made under the MoPS Act over the period 2007–08.

The MoPS Act annual reports will be convenient as consolidated information sources and beneficial from a transparency standpoint.

MoPS staff figures

Personal staff

The Prime Minister determines the government personal staff complement and also the personal staff complement of any minor parties/independents. [51] For the Opposition, a convention has been in place for some years whereby the Opposition personal staff complement is set at 21 per cent of that of the government. [52]

Information regarding personal staff complements has periodically been made publicly available by DoFA (more recently DoFD) for a number of years during Senate Estimates rounds. [53] The SFPARC noted in 2003 that ‘information about the numbers, remuneration and so on of staff is only forthcoming if questions are asked in parliament or through a parliamentary committee’. [54] This has now changed with the introduction MoPS Act annual reporting, which will make tracing such information easier, at least on an annual basis.

While MoPS staffing arrangements can be fluid, the information made available has provided periodic ‘snapshots’ of personal staff figures and classifications. Based on this information, the following table shows:

• MoPS personal staff figures for the government, Opposition, Australian Democrats, Australian Greens, other minor parties and independents at the same or nearest point over the period 2003–09 (1 February 2003 and 2009 and 1 May each year for 2004–08) and
• government personal staff figures at the nearest point over the period 2000–02 (1 March 2000, 20 February 2001, and 1 May 2002).

Table 1. Personal staff figures 2000–2009

Sources: see Appendix D.

The figures above are as provided by DoFA/DoFD and are based on the groupings used by the Department. The figures include the personal staff of, as applicable:

• ministers and parliamentary secretaries
• the Cabinet Policy Unit
• the Government Members’ Secretariat (Coalition)
• the Caucus Committee Support and Training Unit (ALP)
• ‘pool positions’
• government whips
• government taskforces
• government consultants
• former government office-holders
• the President of the Senate and the Deputy President of the Senate (2006 onwards)
• the Speaker of the House of Representatives, the Deputy Speaker of the House of Representatives, and the Second Deputy Speaker of the House of Representatives (2009)
• the Leader and Deputy Leader of the Opposition in the House of Representatives and the Senate
• the Leader and Deputy Leader of the Nationals in the House and the Leader of the Nationals in the Senate
• Opposition shadow ministers
• Opposition whips
• former Opposition office-holders
• former leader personal positions, and
• minor parties and independents.

The figures may include vacant positions and span the full range of personal staff classifications from principal adviser down to secretary/administrative assistant and whips clerk. [55] The figures do not include:

• DLOs and
• the personal staff of former Prime Ministers. [56]

One problem with measuring personal staff figures is the ability to arrive at different measurements depending on the staff categories and classifications included in, or excluded from, the data. As the SFPARC observed in 2003, ‘Just how many MOPS staff provide the government with advice depends on how they are counted’. [57] The Committee also noted that the different ways of calculating staff figures ‘mean that figures are regularly quoted that seem mutually incompatible’. [58] The MoPS Act annual reports may serve to establish a standard measure of personal staff figures over time.

Ministerial staff

The ministerial staff complement—that is, personal staff employed by ministers and parliamentary secretaries—over the same period covered in Table 1 is as follows:

Table 2. Ministerial staff figures 2000–2009

Sources: as for Table 1 (Appendix D). [59]

Again, figures are as provided by DoFA/DoFD (except for the percentages) and may include vacant positions.

As with personal staff figures, it is possible when calculating ministerial staff figures to arrive at different measurements depending on the staff categories and classifications included in or excluded from the data. For example, totals different to those above would be yielded by excluding the staff of parliamentary secretaries or by excluding personal staff classifications below adviser level in order to focus on staff fulfilling an advisory role. [60]

Electorate staff

Senators and members are allocated a set number of full-time electorate staff positions. In 2003 the SFPARC noted that:

Until 1985 there were two electorate staff for each Member and Senator. This was then increased to three. This meant the total numbers of electorate staff rose from 414 to around 680. Members serving large electorates are permitted a fourth electorate officer to staff a second electorate office. [61]

In January 2007 senators and members were allocated an additional electorate staff position making a total of four full-time staff positions for each senator and member. [62] Members in certain geographically large electorates are also provided with a second electorate office and a further electorate staff position. [63] The maximum aggregate number of full-time electorate staff employable by senators and members under the MoPS Act currently, therefore, is 924. As at 30 June 2008 there were 961 ongoing electorate staff, 198 non-ongoing electorate staff, and 58 casual electorate staff—a grand total of 1 217 electorate staff. [64] Of these, excluding casual staff, 793 electorate staff were full-time and 366 staff were part-time. [65]

Totals

As at June 2008, the maximum possible number of MoPS staff positions, as allocated by the Prime Minister under the MoPS Act, was 1 374. [66] This comprised maximum allocations of 924 full-time electorate staff and 450 personal staff. [67] As at 30 June 2008 the actual totals for all MoPS staff employed under the Act, including ongoing, non-ongoing, and casual staff, were 1 217 electorate staff and 441 personal staff—a grand total of 1 658 staff. [68] In the 2007–08 MoPS Act Annual Report DoFD stated that ‘At any given time the actual number of MOP(S) Act employees may differ from the number of staffing allocations if, for example, not all positions are filled or one position is filled by two or more part-time employees’. [69]

Of note also are the costs of MoPS staff. MoPS staff salaries and associated costs over the 2007–08 financial year totalled $148.21 million, while staff travel and other administrative costs amounted to $25.35 million—an overall total cost of $173.56 million. [70]

Staffing trends

Aggregate minor party and independent personal staff figures were virtually static from 2003 to 2005 before falling by 41.6 per cent in 2005–06 due to a sharp contraction in the Australian Democrats’ staffing complement. From 2006 to 2008 aggregate minor party and independent personal staff figures held fairly steady, followed by a slight increase (despite the departure of the Democrats) into 2009 due to an expansion of the staffing numbers of the Australian Greens and other minor parties/independents. Growth in electorate staff figures has been widely spaced and episodic, with significant increases in 1985 and again in 2007 due to increases in staff allocations for senators and members. [71]

Research has suggested that, overall, the numbers of MoPS staff rose considerably over the two decades to 2003. In 2003 the DPMC informed the SFPARC that, from 1983 to 2003, government personal staff figures rose by 79.5 per cent, Opposition personal staff figures rose by 84 per cent, and electorate staff figures rose by 72 per cent. [72] It has also been suggested that ministerial staff figures have grown over the past 20–30 years. In 2003 the SFPARC stated that ‘The data shows a steady growth in ministerial staffing’ over the 1983–2003 period, [73] and Holland has suggested that, excepting the years 1996–97, ministerial staff figures maintained an upwards trend over the 1976–2001 period. [74] More recently, Tiernan has stated that, again excepting 1996–97, ‘the total number of ministerial staff has risen consistently’ from 1983 to 2006. [75]

Employment issues

The main issues relating to employment under the MoPS Act are the adequacy of the MoPS Act framework and institutional arrangements; base salary value; employment security; and staff management and professional development.

Adequacy of the MoPS Act framework and institutional arrangements

Adequacy of the MoPS Act framework

The adequacy of the current MoPS Act employment framework has come under some scrutiny in recent years, mainly in relation to ministerial staff. In 2003 the SFPARC observed that ministerial staff are different from other MoPS staff due to ‘their attachment to the executive arm’, and concluded that ‘a clear distinction should be drawn between ministerial staff and other MOPS staff … the distinctive role of ministerial staff should be reflected in a reorganisation of the MOPS Act’. [76] The Committee accordingly recommended that the MoPS Act should be restructured so as to:

… define the different categories of MOPS employment, in such a way as to distinguish between government staff (particularly ministerial staff), non-government office-holder staff, and electorate staff. [77]

Tiernan and Weller have gone further, suggesting that ‘the ministerial staffing system requires its own regulatory framework’ due to the particular roles and responsibilities of ministerial staff, and for accountability reasons, rather than a framework ‘enmeshed within a broader set of arrangements for Electorate Office and other staff’. [78] Tiernan and Weller also suggest that the administration of ministerial staff is ‘fragmented and ambiguous’ and could be better managed by a single agency under a single minister appointed for the purpose. [79]

Tiernan has also suggested that the ‘institutional framework is inadequate for a political institution of the ministerial staffing system’s size and complexity’, [80] and that the MoPS Act has not provided a ‘robust operating framework for the ministerial staffing institution’ or ‘management structures or systemic guidance’ for MoPS staff. [81] It has also been argued, however, that there is a longstanding trend against including comprehensive employee management provisions in other Commonwealth legislation, and that ‘Ministers should have at least equal flexibility about the management of their staff’. [82]

One other matter that can be raised in relation to the MoPS Act framework is the appropriateness of the wide discretion that the Act confers upon the Prime Minister with regard to MoPS staff employment arrangements and conditions, including for electorate staff and the staff of non-government party leaders. It may be more appropriate for further employment terms and conditions to be enshrined in the MoPS Act, particularly with regard to senior personal staff not covered by collective agreements. A related measure would be to amend the Act so as to further limit the ability of the Prime Minister to vary employment terms and conditions. Another possibility would be to involve the Parliament in MoPS staff determinations, for example by way of committee consideration.

Institutional arrangements

As noted above, the Opposition personal staff complement is set at 21 per cent of that of the government. The disadvantage of this approach is that a fixed staff complement may restrict the ability of employing senators, members and office-holders to structure their staffing profiles with more of an emphasis on classification. Perhaps a more functional approach would be to set the ratio in terms of the total MoPS staff salary cost, thereby providing greater flexibility in deciding staffing arrangements.

In its 2003 report the SFPARC considered the institutional arrangements for the provision of MoPS staff information to the Parliament and noted that:

Parliament’s only access to information about staffing establishment levels and staff classifications is through the Senate Legislation Committee hearings … the Australian Parliament has less of a role in the staffing arrangements of its members than is the case in many jurisdictions. [83]

The Committee concluded that there should be greater reporting of MoPS staffing arrangements, and recommended the institution of an annual report containing a range of information including instruments issued under the MoPS Act, numerical and salary data, salary and non-salary costs of MoPS employment, and existing information required under section 31 of the Act. [84] As noted above, the Rudd Government has recently acted in this area with the introduction of MoPS Act annual reporting.

Base salary value

Some caution must be exercised when interpreting MoPS staff remuneration data. It is difficult to meaningfully interpret the data across the classifications over time due to the presence of a number of significant variables. Changes in classifications and the assigning of personal classifications are unpredictable factors, and there may not be parity between government and non-government classifications or salary ranges. For example:

• government personal MoPS staff generally earn more than their non-government counterparts, [85] and
• the government personal staff classification of adviser is currently not present in the Opposition personal staff establishment, and the top of the salary range for the higher of the two equivalent Opposition classifications does not match the top of the salary range for the government adviser classification. [86]

Given these sorts of variables and differences, MoPS staff remuneration data are more usefully interpreted in relation to individual classifications, although even here there are limitations such as gaps appearing in the data where information has not been made publicly available.

Despite these limitations, available data do suggest that the value of MoPS staff base salaries is an issue. Taking the top of the salary range for two of the more densely-populated government personal staff classifications—the high-level senior adviser/senior adviser (1) Cabinet classification and the mid-level adviser classification—as samples, [87] it can be seen that, in real terms over the 1990 to 2007 period, advisers’ salaries have been uneven and senior advisers’ salaries have decreased in value (Figure 1).

Sources: see Appendix D.

Advisers’ salaries experienced a period of modest and uneven growth over the 11 years from 1990 to 2001 before declining slightly into 2002 and then commencing more regular increases from 2003 onwards. Senior advisers’ salaries rose slightly between 1990 and 1993 before declining in value over the nine years from 1993 to 2002 and then commencing a short period of growth from 2004 to 2006. In 2006, however, this growth had still not made up for the long decline (the top of the salary range at that point was still lower in real terms than the top of the range in 1992), and salaries then declined in real terms from 2006 to arrive, in December 2007, at a point below the December 1990 level. When compared against average weekly earnings growth of 30 per cent over 1990 to 2007, [88] advisers’ salaries have been slightly off the pace, growing in real terms by 28 per cent over the period, while senior advisers’ salaries have declined by 3 per cent.

While it is true that salaries for MoPS staff are supplemented by the extra duties allowances (ESA, PSA or MSA) and other applicable allowances and entitlements, it is still of note that base salary values for two of the more densely-populated government personal staff classifications have been uneven or have actually decreased over time. This should also be viewed in the context of the high level of responsibility that MoPS staff have along with low employment security (see below). In January 2009 it was reported that the government was considering implementing a 5.6 per cent salary increase for senior staff. [89]

Under the new framework introduced by the Rudd Government the salary ranges for the higher classifications are very broad. The range for the government senior adviser (1) Cabinet classification, for example, commences at $85 500 and reaches $129 700 (a range of $44 200), and the range for the highest government classification, principal adviser, commences at $132 800 and reaches $192 400 (a range of $59 600). [90] Salary ranges for the higher classifications in the non-government MoPS staff ranks are also of considerable breadth. MoPS Act salaries for the higher classifications have long been flexible. Under the Howard Government after December 1998, AWAs provided flexibility regarding salaries and conditions for personal staff above the adviser level. Prior to the introduction of AWAs, senior personal staff were remunerated with reference to the APS Senior Executive Service (SES) salary ranges with variations within the ranges. [91]

Employment security

MoPS staff have virtually no employment security beyond the legal protections available to employees generally. [92] Under Parts III and IV of the MoPS Act, employing senators, members and office-holders may terminate the employment of their MoPS staff at any time. [93] In addition, under Parts III and IV the employment of MoPS staff is terminated if the employing senator or member ceases to be a senator or member, if the employing officer-holder ceases to hold the office, or if the employing senator, member or office-holder dies. [94] As the SFPARC noted in 2003:

… MOPS staff, consistent with the situation of their employers, have little job security. A MOPS employee loses their job automatically if their employer dies or loses office, and can readily be terminated by the employing Member or Senator. [95]

The current Collective Agreement for MoPS staff up to the level of media adviser (non-Cabinet minister)/adviser states that the ‘sole and exhaustive rights and remedies of an Employee in relation to termination of employment’ are those contained in the Workplace Relations Act 1996 (Cth), other Commonwealth laws, and at common law. [96] The Agreement also states that termination of employment or a decision to terminate employment ‘cannot be reviewed under the dispute prevention and resolution procedures’ set out elsewhere in the Agreement. [97]

Employment can be particularly insecure for ministerial staff given the uncertainty of ministerial tenure and the demands of the role. As Tiernan has observed, ‘The employment framework for ministerial staff ties the fortunes of the individual staffer to those of their minister … Their tenure lasts as long as they are of value to their minister.’ [98] In addition, commentators have identified a scapegoat or sacrificial function for ministerial staff that can also abbreviate their employment:

… some advisers have become the “junk-yard attack dogs” of the political system: the hard men and the hit men. They are politically dispensable, convenient scapegoats who will take the bullet for their ministers and protect them from political fallout. At different times, staffers from the prime minister’s office and the deputy prime minister’s office have resigned as a means of preventing scandal from touching their masters. [99]

The ability of senators, members and office-holders to easily dismiss MoPS staff, it can be argued, is necessary to the political nature of MoPS staff employment and the stakes involved, particularly in the ministerial context. If a staff member does not have the full confidence of their employer then they can be of little use to their employer. [100] In this respect at least their situation seems little different to that of departmental secretaries, as the 1999 Barratt case demonstrated. [101] It is rare for MoPS staff to successfully claim unfair treatment given the straightforwardness of the dismissal provisions in the MoPS Act. [102]

Severance benefits

In the event of a MoPS staffer losing his/her employment, certain severance benefits are payable. For MoPS staff coming under the current Collective Agreement, severance benefits are payable for loss of employment under Parts III and IV of the MoPS Act other than through resignation and are determined on the basis of length of continuous service. [103] Exclusions apply, for example to public service employees, non-ongoing or casual staff, and staff re-employed under the MoPS Act without a break. [104] The minimum severance benefit is two weeks’ pay (salary plus parliamentary or ministerial allowance) for up to one year of continuous service, and the maximum benefit is 12 weeks’ pay for seven or more years of continuous service with an additional two weeks’ pay for every completed year of service in excess of six years up to a maximum of 48 weeks’ additional pay. [105] There is also provision in the Collective Agreement for severance benefit entitlements to be increased by 30 per cent if termination of employment occurs due to an employing office-holder losing office and if certain taxation requirements are met. [106] The same scheme applies for senior staff with some variation to the exclusions. [107]

A comparison of the severance benefit scheme in the MoPS staff Collective Agreement with the severance/redundancy benefit schemes in a range of APS/parliamentary agency agreements suggests that the severance benefits for MoPS staff are not unusually generous. The agency agreements typically provide for a severance benefit of two weeks’ remuneration (salary plus applicable allowances) for each completed year of continuous service, with a minimum benefit of four weeks’ salary and a maximum benefit of 48 weeks’ salary. [108] Pro-rata amounts for service since the last competed year are also payable. The number of weeks of salary benefit payable to MoPS staff per completed service period is greater than that payable to APS/parliamentary agency staff up to the six-year service mark; after this point the two scales align. This, along with the potential 30 per cent benefit increase for certain MoPS staff, can be placed against certain beneficial aspects of the APS/parliamentary agency severance schemes that are lacking in the MoPS staff severance scheme. The agency severance schemes operate within a context of greater job security than the MoPS staff scheme and apply to voluntary redundancy rather than involuntary termination of employment. Unlike the MoPS staff scheme also, provision is made in the agency agreements for a range of service experience (e.g. service with the Australian Defence Force) to be counted as service in the calculation of severance benefits.

Ministerial staff management and professional development

Concern has been expressed by commentators regarding the levels of ministerial staff management and professional development. Walter , for example, has stated that:

Given staff numbers, and the many competing demands on ministers, appropriate management is often lacking—a great deal is left to depend on staff agreements that are said to require staff ‘to act with skill, discretion and integrity’. [109]

Tiernan and Weller have suggested that ‘a lack of induction, professional development and performance management systems’ are among the ‘Key weaknesses’ of the ministerial staffing system. [110] Tiernan has also indicated that surveys of ministerial staff have revealed formal induction programs for ministerial staff to be ‘rudimentary or absent in most ministerial offices’ and that:

Staff may have no handover with the person they are replacing; there is simply no time for induction and perhaps no recognition of its importance. New staff just have to learn as they go. My respondents have identified a serious lack of training and other professional development opportunities as an important weakness of the current system. … In contrast to the highly developed systems of performance management that characterise the APS, my respondents report there is no comparable framework for ministerial staff. Staff receive no structured feedback about their performance, and have very limited access to performance planning and appraisal—the usual frameworks within [sic] discussions about professional development needs and opportunities can be canvassed. [111]

In 2003 the SFPARC stated that both it and the ‘children overboard’ inquiry had ‘received evidence that the management structure for ministerial staff has weaknesses that should be rectified’, [112] and that:

A systematic structure of management responsibility should exist within ministerial offices. … there must be genuine performance management processes, particularly for senior staff and office managers who can be expected to have responsibility for key information flows and for implementing codes of conduct. [113]

The SFPARC also stated that ‘there appears to be no training provided specifically for ministerial advisers’, and that ‘the absence of senior staff training, or communication protocols, may affect staff’s confidence in dealing with ministers offices’. [114] The Committee went on to express the view that:

… the training of MOPS staff is vital. It seems clear that this training needs to be radically boosted at the ‘top end’. Training should be increased for senior staff, and there should be an increased emphasis on high-level skills and professional development. [115]

In accordance with these observations the SFPARC made a number of recommendations concerning management and professional development including:

• that ‘responsibility for ensuring proper record keeping in ministers’ offices should be allocated to a senior staff member, and that record keeping should be identified in that staff member’s duties and relevant performance review procedures’
• that the government should ‘develop and implement a new management framework for ministerial staff’
• that all departments should ‘provide written guidance to staff regarding interactions with minister’s offices, and that all senior staff receive adequate training in this area’, [116] and
• that ‘the level and intensity of training for ministerial staff be increased, and be given a significantly higher priority by ministers’ along with the introduction of a ‘mandatory induction training process for staff commencing in ministers’ offices, which focuses on political ethics, relationships with the APS, and record keeping responsibilities’. [117]

As noted above, there has been no formal government response to the SFPARC report to date. Other measures have also been suggested such as the involvement of the Public Service Commissioner (in the capacity of Parliamentary Service Commissioner) in the provision of professional development for ministerial staff, and a ‘non-partisan forum’ for ministerial staff to discuss staffing matters. [118]

Apart from providing for study assistance and associated leave, the 2007 Determination introduced by the Rudd Government for senior personal staff makes no specific provision for professional development or induction. For MoPS staff at the media adviser (non-Cabinet minister)/adviser level and below, the current Collective Agreement makes provision for staff induction, professional development opportunities, and studies assistance. [119] The Agreement specifies that development opportunities include ‘a professional development programme, sponsored by the Minister and arranged by the Department, which provides focussed and tailored training designed to enhance Employees’ skills and knowledge’. [120] The 2007–08 MoPS Act Annual Report indicates that training, including induction, was undertaken by 88 MoPS staff over the 2007–08 period under the professional development programme, and that a range of additional training was also available. [121]

Past research has suggested that ministerial staff can find it difficult to access development opportunities provided under the Collective Agreement framework due to workload—a feature of employment in ministers’ offices that presumably still applies. [122] Certainly, some formal provision for induction and professional development for senior staff would be desirable.

Conclusion

The MoPS Act employment framework is now in its 25^th year of operation, and the introduction of new measures by the Rudd Government—the 30 per cent ministerial staff reduction, the code of conduct, and MoPS Act annual reporting—made 2008 an eventful year for MoPS staffing matters.

MoPS staffing will continue to be of interest to the Parliament, commentators and the media, particularly in the context of the Rudd Government’s changes. One issue which has had considerable media coverage, the workload of ministerial staff, will warrant continued monitoring.

A number of employment issues associated with the MoPS Act would merit attention from the government. Base salary value, aspects of the MoPS Act framework and institutional arrangements, and professional development for ministerial staff all warrant further examination with a view to improving current arrangements.

Appendix A: MoPS personal staff classifications as at 1 February 2009

Appendix B: base salary ranges for MoPS staff above the media adviser (non-Cabinet minister) / adviser level

Source: Department of Finance and Deregulation, Answer to question on notice: Additional Estimates Hearing—February 2008, Senate Standing Committee on Finance and Public Administration, Canberra, 2008, pp. 11–14,

Appendix C: base salary ranges for MoPS staff at the media adviser (non-Cabinet minister) / adviser level and below

Appendix D: sources for Tables 1 and 2 and for Figure 1

Sources for Tables 1 and 2

Department of Finance and Deregulation, Government Personal Positions as at 1 February 2009, Senate Standing Committee on Finance and Public Administration, Canberra, 2009, pp. 1–9, http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/add_0809/finance/tabled_documents/
government_personal_positions_as_at_1_february_2009.pdf, accessed on 2 April 2009.

Department of Finance and Deregulation, Government Personal Positions as at 1 May 2008, Senate Standing Committee on Finance and Public Administration, Canberra, 2008, pp. 1–6, http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/bud_0809/finance/tabled_documents/
Government_Personal_Positions_28-05-09.pdf, accessed on 2 April 2009.

Department of Finance and Administration, Government Personal Positions as at 1 May 2007, Senate Standing Committee on Finance and Public Administration, Canberra, 2007, pp. 1–4, http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/bud_0708/
finance/dofa_gov_positions_td.pdf, accessed on 2 April 2009.

Department of Finance and Administration, Government Personal Employees as at 1 May 2006, Senate Finance and Public Administration Legislation Committee, Canberra, 2006, pp. 1–4, http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/bud_0607/finance/fpa2.pdf, accessed on 2 April 2009.

Department of Finance and Administration, Government Personal Staff as at 1 May 2005, Senate Finance and Public Administration Legislation Committee, Canberra, 2005, pp. 1–5, http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/bud_0506/finance/fin_td_1.pdf, accessed on 2 April 2009.

Department of Finance and Administration, Government Personal Staff as at 1 May 2004, Senate Finance and Public Administration Legislation Committee, Canberra, 2004, pp. 1–5, http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/bud_0405/finance/tab-doc1-260504.pdf, accessed on 2 April 2009.

Department of Finance and Administration, Government Personal Staff as at 1 February 2003, Senate Finance and Public Administration Legislation Committee, Canberra, 2003, pp. 1–5, http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/add_0203/finance/f-air5.pdf, accessed on 2 April 2009.

Department of Finance and Administration, Answers to questions on notice: Budget Estimates 2002–2003—29 & 30 May 2002, Senate Finance and Public Administration Legislation Committee, Canberra, 2002, pp. 23–25, http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/reports/2002/bud_0203/dofa/dofa_d.doc, accessed on 2 April 2009.

Department of Finance and Administration, Answers to questions on notice: Additional Budget Estimates 2000–2001, 19–23 February 2001, Senate Finance and Public Administration Legislation Committee, Canberra, 2001, pp. 1–5,
http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/reports/2001/answers1/dofa/qon_b.doc, accessed on 2 April 2009.

Department of Finance and Administration, ‘Answers to questions on notice’ in Senate Finance and Public Administration Legislation Committee, Examination of Additional Estimates 1999–2000: Additional Information Received, vol. 2, Canberra, June 2000, pp. 454–56.

Sources for Figure 1

Department of Finance and Deregulation, Answer to question on notice: Additional Estimates Hearing—February 2008, Senate Standing Committee on Finance and Public Administration, Canberra, 2008, p. 11,
http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/add_0708/finance/F71.pdf, accessed on 2 April 2009.

Commonwealth Members of Parliament Staff Collective Agreement 2006–2009, p. 41,
http://www.workplaceauthority.gov.au/docs/CAs/CAEN061326923.pdf, accessed on 2 April 2009.

Department of Finance and Administration, Answers to questions on notice: Supplementary Budget Estimates Hearing—October 2006, Senate Finance and Public Administration Legislation Committee, Canberra, 2006, pp. 1–2,
http://www.aph.gov.au/Senate/committee/fapa_ctte/estimates/sup_0607/finance/f24_attach.pdf, accessed on 2 April 2009.

Department of Finance and Administration, Staffing, Senate Finance and Public Administration Legislation Committee, Canberra, 2002, vol. 1, pp. 37–38.

Senator Nick Minchin, Special Minister of State, ‘Questions on Notice: Government Member Secretariat’, Senate, Debates, 22 June 1998, p. 3711.

Senator Bob McMullan, Minister for the Arts and Administrative Services, ‘Answers to Questions: Members of Parliament: Staff’, Senate, Debates, 25 May 1993, p. 1280.

Senator John Button, Minister Representing the Prime Minister, ‘Answers to Questions: Prime Minister and Cabinet: Employment Contracts’, Senate, Debates, 17 September 1992, p. 1107.

Senator Nick Bolkus, Minister for Administrative Services, ‘Answers to Questions: Hawke Government: Staff’, Senate, Debates, 15 May 1991, p. 3453.

Senator Nick Bolkus, Minister for Administrative Services, ‘Answers to Questions: Senators and Ministers: Staff’, Senate, Debates, 21 December 1990, pp. 6398–99.

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