This information is provided to support the transitional arrangements for employees affected by the Machinery of Government (MoG) changes arising from the Administrative Arrangements Orders (AAOs)[i] made on 18 September 2013.
Section 72 of the Public Service Act 1999 (PS Act) provides for the movement of APS employees affected by an administrative re-arrangement, including an administrative re-arrangement resulting from a change to the Administrative Arrangements Orders. As a result of the re-allocation of a number of functions, the Australian Public Service Commissioner, or a delegate, will make determinations pursuant to section 72 of the PS Act moving a number of APS employees (including Senior Executive Service (SES) employees) between APS agencies.
In order to support the orderly transfers of employees and to avoid uncertainty regarding terms and conditions of employment, the Minister Assisting the Prime Minister on the Public Service, Senator the Hon Eric Abetz, has made two Determinations under section 24 (3) of the PS Act (one covering SES employees, and one covering non-SES).
Who is covered by the Determinations?
The section 24 (3) Determinations cover employees transferring from one APS agency or Department to another one as a result of the MoG changes arising from the AAOs made on 18 September 2013.
The section 24(3) Determination in relation to non-SES employees also covers some non-SES employees who:
- commence employment in an APS agency after the section 24(3) Determination commences operation; and
- perform a function that was transferred to that APS agency by the AAOs made on 18 September 2013.
What do these Determinations mean?
The Determinations provide that as an interim measure, all employees who are to be transferred because of the Machinery of Government changes announced on 18 September 2013 will continue to have the same terms and conditions of employment (including remuneration) as they had immediately before the making of the AAOs on 18 September 2013. In effect, this means that there will be no immediate change to the terms and conditions which apply to these employees as the provisions of Public Service Regulation 8.1 will not apply. In the case of an agency that has been abolished this will mean that terms and conditions of its former employees will continue to be preserved even though the agency itself has been abolished.
This will give agencies time to work through the implications of receiving employees covered by agreements with potentially significantly different terms and conditions to those of the gaining agency. As these implications are worked through in the coming weeks, arrangements will be made to release employees from the operation of the determination. There may, for example, be a replacement Determination to narrow the scope of employees covered (so that some employees may move to the enterprise agreement which covers their new agency, or a section 24(1) determination incorporating the terms and conditions of a previously existing enterprise agreement). Agencies should consult the APSC at an early stage so that the appropriate way forward can be determined..
There will be a period during which some employees working in a single agency or Department (particularly new agencies combining functions of a number of former agencies) may have different terms and conditions of employment in comparison to other employees.
Affected agencies may need to manage multiple sets of terms and conditions of employment for a transitional period. It may be most efficient for losing agencies to continue to support transferred employees for a time. Gaining and losing agencies are encouraged to collaborate to minimise transactions costs to the maximum extent possible.
Why are these determinations necessary?
The scope and scale of the simultaneous MoG changes represent exceptional circumstances and could result in unintended consequences detrimental to employees. These include, in the case of:
- an agency being abolished, there is no EA coverage for the individual employees of that agency until each individual has been assigned to another agency. Where the identity of an employee’s destination agency is not yet clear, and the employee is not moved immediately, there would be no terms and conditions other than those provided by the APS Award 1998 safety net, which would significantly disadvantage those employees;
- an agency being created, there is no EA, and therefore no terms and conditions for employees (again, other than those provided by the APS Award 1998);
- a gaining agency not having appropriate terms and conditions in its EA, a situation where the gaining agency’s EA cannot appropriately deal with the nature of work performed by the transferring employees; and
- employees not working in distinct policy or implementation functions, potential uncertainty about the identity of the gaining agency. It usually takes some time to precisely map and allocate each individual employee to a new agency, particularly in corporate areas.
Where can I access the Determinations?
The section 24(3) Determinations are available on the Comlaw website at www.comlaw.gov.au.
How long will the Determinations be in place?
The Determination covering non-SES employees will cease to apply to an employee where a new enterprise agreement that covers the employee(s) commences operation.
These Determinations are intended to operate on an interim basis. As the transitional arrangements are bedded down groups of employees could be ‘released’ from the coverage of the determination (by issuing a new s24(3) determination which excludes them) so that they would become covered by the gaining agency’s enterprise agreement. Agencies should consult the APSC at an early stage so that the appropriate way forward can be determined. The APSC will provide further advice to agencies in the coming weeks.
The Determination covering SES employees will continue to apply to an employee until it is replaced in its entirety by another determination made under section 24(3) or section 24(1) of the PS Act, or a common law agreement; or is revoked.
This means that, if an SES employee is engaged to work in a function subject to the MoG change, and the agency makes a new individual arrangement with that employee, then the section 24(3) determination will no longer apply to that employee.
How will this affect Individual Flexibility Arrangements (IFAs)?
The Determination preserves the remuneration and terms and conditions of employment that an employee was subject to on the day prior to the MoG change. An IFA will technically cease to be in operation where there is no longer an active enterprise agreement underpinning it. However, if an employee had an IFA on the day prior to the MoG change, the arrangements set out in that IFA will be preserved.
It will not be possible to make a new IFA under the terms of the non-SES determination. However, the non-SES determination does provide capacity to make a supplementary s.24(1) determination should that be necessary. We would ask that agencies consult with the APSC before making any supplementary s.24(1) determinations.
How will this affect people who do not have a current enterprise agreement?
The Determination works in the same way as described above. If an employee’s salary, terms and conditions of employment are currently set out in an individual determination, common law agreement or a legacy industrial instrument (for example an Australian Workplace Agreement), those terms and conditions of employment will be preserved until they are replaced by a new arrangement.
What arrangements will newly engaged employees be subject to after the Machinery of Government change?
After the MoG change, any newly engaged non-SES employees will be subject to an agency’s enterprise agreement (if one continues to operate) or, if they are being engaged in a work unit that was transferred into the agency as a result of the MoG change, then the terms and conditions that applied to that work unit in its former agency will apply to the new employee.
As outlined above, an agency can make individual arrangements with any new SES employees engaged in a function that was transferred to the agency as a result of the MoG change.
It is also possible for an Agency Head to make a determination under section 24(1) of the PS Act to supplement the terms and conditions of employment that apply to an employee by operation of the Determination.
Advice for agencies
Agencies should contact the APSC if there is uncertainty about the interaction of Determinations with existing agreements and determination. Contact the APSC by email: workplacebargaining [at] apsc.gov.au
Where can I access the Determinations?
The section 24(3) Determinations are available on the Comlaw website at:
- http://www.comlaw.gov.au/Details/F2013L01727 (SES)
- http://www.comlaw.gov.au/Details/F2013L01728 (non-SES)
[i] The Administrative Arrangements Order specifies the Departments of State, the principal matters they deal with and the legislation administered by each Minister of State. The new Administrative Arrangements Order is available on the Department of the Prime Minister and Cabinet website at: http://www.dpmc.gov.au/parliamentary/index.cfm