Circular 2002/12 - Amendments to the Public Service Regulations regarding the movement of ongoing employees from one agency to another

Last updated: 17 Dec 2012

This page is: archived

The purpose of this circular is to advise agencies of amendments to the Public Service Regulations governing the ongoing and temporary movement of ongoing employees between agencies which come into operation on 1 December 2002. Agencies are requested to incorporate these amendments into their staff selection policies and ensure that the amendments are notified to all employees.

Background

2. Section 26 of the Public Service Act 1999 provides that an Agency Head and an ongoing APS employee may enter into an agreement for the employee to move to the Agency Head's agency from another agency and that the agreement has effect according to its terms subject to the regulations. The movement of the APS employee may be ongoing or for a specified period, i.e. a temporary movement. The provision has no application in relation to a non-ongoing employee.

3. Regulation 3.9 establishes the arrangements for the taking effect of a movement and does not distinguish between an ongoing or a temporary move. The pre-move Agency Head currently has no control over an employee in his or her Agency making an agreement with another Agency Head to move to the other agency.

4. The Regulations have been amended to clarify and simplify the existing arrangements for ongoing moves between agencies (new Regulation 3.9), provide a pre-move Agency Head with some control over temporary moves by their ongoing employees to another agency (new Regulation 3.9A) and make provision for a variation of a temporary movement agreement (new Regulation 3.9B). These three regulations are reproduced in full in Attachment A.

Commencement

5. The amended Regulations come into effect on 1 December 2002. All agreements to move on an ongoing or temporary basis made on or after 1 December 2002 or variations to a temporary move made on or after 1 December 2002 must be made in accordance with the amended Regulations.

6. The amended Regulations do not apply to agreements to move made before 1 December 2002. Any request received after the commencement of these amendments to vary a temporary movement agreement made before 1 December 2002 is to be treated as a new agreement.

Effects of the changes to the Regulations

7. The new Regulation 3.9 establishes the date of effect of an ongoing move of an APS employee between agencies to be four weeks after the Agency Head is notified of the move or on an earlier or later date if one is negotiated.

8. Under Regulation 3.9A, a pre-move Agency Head now has control over temporary movements out of his or her agency. While an Agency Head has no power to prevent a movement, if he or she does not agree to the temporary move in writing, the move is treated as if it was an ongoing move. A post-move Agency Head may decide not to proceed with an agreement to move if the pre-move Agency Head does not agree to the temporary move.

9. Regulation 3.9B allows an APS employee and the post-move Agency Head to seek to vary the period of a temporary move. The variation will only have effect if the pre-move Agency Head approves the variation in writing.

10. Agencies will need to amend their staff selection policies to incorporate the requirements of the new Regulations and to determine the procedures an employee is to follow in regard to seeking agreement to move to another agency on an ongoing or temporary basis. The changes to the Regulations are discussed in more detail in Attachment B.

Cessation of a temporary movement

11. The amendments to the Regulations do not change the legal position that an employee automatically becomes re-employed in the pre-move agency at the end of a period of temporary movement.

Further inquiries

12. General enquiries in relation to temporary movement should be directed to the APS Commission's Helpline on (02) 6202 3859 or employmentadvice@apsc.gov.au.

Peter Miller
Acting Group Manager
Policy and Employment Group

12 November 2002

Attachment A

Amended regulations

3.9 Ongoing moves between Agencies (Act s 26)

  1. For subsection 26 (2) of the Act, this regulation applies if:
    1. a written agreement is entered into between an Agency Head and an ongoing APS employee for the APS employee to move to the Agency Head's Agency from another Agency; and
    2. the agreement does not specify the period of the move.
  2. If the move is associated with a promotion:
    1. the agreement has effect according to its terms; and
    2. the move takes effect as provided by regulation 3.8.
  3. If the move is not associated with a promotion:
    1. the agreement has effect according to its terms; and
    2. the move takes effect:
      1. 4 weeks after the pre-move Agency Head is told by the APS employee of the agreement; or
      2. if a different date of effect is agreed between the post-move Agency Head, the pre-move Agency Head and the APS employee - on the agreed date of effect.
  4. Paragraph (3) (b) has effect in relation to the move of an SES employee subject to any directions issued by the Commissioner under section 36 of the Act.

3.9A Other moves between Agencies (Act s 26)

  1. For subsection 26 (2) of the Act, this regulation applies if, after the commencement of this regulation:
    1. a written agreement is entered into between an Agency Head and an ongoing APS employee for the APS employee to move to the Agency Head's Agency from another Agency; and
    2. the agreement specifies the period of the move.
  2. If the pre-move Agency Head approved the period, in writing, before the agreement was entered into, the agreement has effect, according to its terms, as an agreement to move to the Agency for the specified period.
  3. If the pre-move Agency Head did not approve the period, in writing, before the agreement was entered into, the agreement has effect:
    1. as an agreement to make an ongoing move to the Agency; and
    2. as if the period were not specified.
  4. The move takes effect:
    1. 4 weeks after the pre-move Agency Head is told by the APS employee of the agreement; or
    2. if a different date of effect is agreed between the post-move Agency Head, the pre-move Agency Head and the APS employee - on the agreed date of effect.
  5. Subregulation (4) has effect in relation to the move of an SES employee subject to any directions issued by the Commissioner under section 36 of the Act.

3.9B Variation of period of agreement

  1. This regulation applies if, after the commencement of this regulation, a post-move Agency Head and an ongoing APS employee vary the length of the period specified in an agreement that:
    1. is described in subregulation 3.9A (1); and
    2. has effect in accordance with subregulation 3.9A (2).
  2. If the pre-move Agency Head approved the variation of the period, in writing, before the agreement was varied, the variation of the period of the move has effect according to its terms.
  3. If the pre-move Agency Head did not approve the variation of the period, in writing, before the agreement was varied, the variation of the period of the move has no effect.

[1] Dictionary, after definition of *ongoing APS employee

insert

post-move Agency means the Agency to which an ongoing APS employee moves in accordance with an agreement under section 26 of the Act.

post-move Agency Head means the Agency Head of a post-move Agency.

pre-moveAgency means the Agency from which an ongoing APS employee moves in accordance with an agreement under section 26 of the Act.

pre-move Agency Head means the Agency Head of a pre-move Agency.

Attachment B

Implications for Agencies of the changes to the Regulations

Regulation 3.9 Ongoing Moves between Agencies

Regulation 3.9 sets out the date of effect of an ongoing move of an APS employee between agencies and provides the post-move Agency Head, the pre-move Agency Head and the APS employee with the opportunity to agree to an earlier or later date of effect.

There is no longer a requirement to notify the pre-move Agency Head of the proposed agreement by the end of the next working day after the agreement has been made. The move takes effect 4 weeks after the Agency Head is notified of the move or on an earlier or later date if one is negotiated. The starting date in the post-move Agency cannot be earlier than the day the pre-move Agency Head is notified of the agreement to move. The onus is on the employee who has entered into an agreement to move to notify the pre-move Agency Head as quickly as possible to enable the movement to take effect.

Agencies should note that a movement cannot take effect until after the pre-move Agency Head has been notified of the move in accordance with established Agency policy.

Each agency will need to determine the procedures an employee is to follow in regard to seeking agreement to move to another agency on an ongoing basis.

Regulation 3.9A Other Moves between Agencies

Regulation 3.9A provides for temporary moves and ensures that an agreement for a temporary move has effect according to its terms only if the pre-move Agency Head approves in writing the period of the move. The Regulation also establishes the date of effect of a temporary move of an APS employee between agencies and provides the post-move Agency Head, the pre-move Agency Head and the APS employee with the opportunity to agree to an earlier or later date of effect.

If the movement to another agency is for a temporary period only, the employee must obtain the written approval of his or her pre-move Agency Head in order for the temporary nature of the agreement to be effective. If the pre-move Agency Head does not agree to the finite nature of the move and the post-move Agency Head proceeds with the temporary movement, then the move will be as if it was an agreement for an ongoing move. The post-move Agency Head will be the new employer of the employee and there is no right of return to the pre-move agency. In practice, this means that there can be no temporary movement without the agreement of the pre-move Agency Head.

Written approval for the temporary move will need to be sought by the employee from the pre-move Agency Head prior to the agreement being finalised with the post-move Agency Head. This will allow the post-move Agency Head and the employee to decide not to proceed with the agreement should the pre-move Agency Head not support the temporary move.

If an employee moves to another agency on a temporary basis, the move takes effect 4 weeks after the pre-move Agency Head is notified of the agreement, or at a specified date agreed between the pre-move and post-move Agency Heads and the employee. This is the formal notification to the pre-move Agency Head of the move. The affected employee will have previously obtained written approval from the pre-move Agency Head of the proposed move.

Each agency will need to determine the procedures an employee is to follow in regard to seeking agreement to move to another agency on a temporary basis.

Regulation 3.9B Variation of Period of Agreement

Regulation 3.9B allows an APS employee and the post-move Agency Head to seek to vary the period of a temporary move and provides that the variation will only have effect if the pre-move Agency Head approves the variation in writing. This Regulation only applies to a variation to a temporary movement agreement made on or after 1 December 2002.

The post-move Agency Head may seek to vary the terms of a temporary movement agreement once it has come into effect. The written approval of the pre-move Agency Head must be obtained for a variation to become effective. If the pre-move Agency Head does not agree to a variation of the length of the agreement, the variation cannot occur, the move will end at the original date and the employee automatically moves back to the pre-move agency.

Each agency will need to determine the procedures an employee is to follow in regard to the seeking of a variation to an agreement to move to another agency on a temporary basis.