Machinery of Government changes: A guide
Arrangements for terms and conditions for employees who are moved as the result of a MoG change are described in the Public Service Act 1999 and the Public Service Regulations 1999.
1. Agencies are expected to implement change in a way that is consistent with the principles outlined in the Executive Summary.
2. Agencies are asked to discuss any issues relating to terms and conditions of employment with the Australian Public Service Commission (APSC) early in a Machinery of Government (MoG) change.
3. Section 72 of the Public Service Act 1999 (the PS Act) gives the Australian Public Service Commissioner (the Commissioner) the authority to move employees in and out of the APS following a MoG change. See People Management for more information.
4. Section 24(1) of the PS Act gives agency heads the authority to vary the terms and conditions of employment for agency employees.
5. In exceptional circumstances the Public Service Minister can determine conditions of employment for APS employees under section 24(3) of the PS Act.
Pay and Conditions
6. Where an employee from an APS agency moves to another APS agency:
- Annual salary will be the greater of the salary that applied immediately before the move and the salary that would apply after the move [Public Service Regulations 1999–Regulation 8.1 (2)].
- Other terms and conditions may be varied following consultation [Public Service Regulations 1999–Regulation 8.1(3)].
- Most commonly, terms and conditions, other than salary for employees who are moved, will be those that apply in the gaining agency.
7. Where an employee from an APS agency moves to a non-APS Commonwealth agency:
- the employee is entitled to have their pay and conditions maintained until the next amendment to the relevant industrial award or instrument. [PS Act s72(3)].
8. Where an employee from a non-APS Commonwealth agency moves to an APS agency:
- terms and conditions may be varied following consultation [Public Service Regulations 1999– Regulation 8.2(2)].
9. In most cases affected employees are moved to the nearest equivalent, or greater, pay point in the gaining agency's workplace agreement, relevant to the employee's classification. If this is not possible, for example, the employee's salary is more than the highest pay point available at the relevant classification, then salary maintenance applies. Salary protection continues until the salary in the relevant agreement catches up with the employee's salary as it was before the move.
10. For non-ongoing APS who are moved to another APS agency, it is expected that salary maintenance will apply for the duration of an existing contract. Relevant provisions of the gaining agency workplace agreement would also apply.
11. Annual salary is the employee's salary set out in a workplace agreement, including consideration of individual flexibility arrangements. It does not include such things as higher duties allowance, travel and other expenses or bonuses.
12. Salary maintenance does not apply to new employment contracts, including new non-ongoing contracts.
13. There is no entitlement to salary increases based on the losing agency's workplace agreement. Following a move, the gaining agency's enterprise agreement governs pay increases for an employee.
14. In most cases, the receiving agency's enterprise agreement will apply to non-Senior Executive Service (SES) employees who have moved to that agency as the result of a MoG change.
15. Exceptions include where:
- there is no enterprise agreement in place at the gaining agency
- the gaining agency's enterprise agreement does not include provisions essential for the operation of the transferred functions
- transfer of business arrangements apply
- there are relevant provisions in enabling legislation
- instruments in the losing agency expressly preserve terms and conditions after a MoG change
- there are specific provisions in the National Employment Standards or in an award that apply
- an employee moves to or from a non-APS Commonwealth agency
- a determination is made by the Public Service Minister under section 24(3) of the PS Act.
16. Agencies are asked to contact the APSC for advice in relation to these or any other exceptions.
Section 24 determinations
17. A determination under section 24 of the PS Act is the industrial instrument that provides terms and conditions for non-SES employees who have been moved as the result of a MoG change, where these terms and conditions are not covered by a workplace agreement.
18. The gaining agency head may establish terms and conditions for affected employees by making a determination under section 24(1) of the PS Act at any time, including where:
- There is no enterprise agreement in place in the gaining agency, for example in a new agency. See New APS Agency
- The gaining agency's enterprise agreement does not include provisions essential for the operation of the transferred functions, for example, shift work or remote locality provisions.
- It is agreed to vary terms and conditions for an employee who moves from a non-APS Commonwealth agency to an APS agency
19. A section 24(1) determination made following a MoG change should only be used to preserve an employee's pre-existing terms and conditions. It should not be used to introduce new arrangements.
20. The gaining agency head is not obliged to carry across any, or all,of the terms and conditions that previously applied. In some cases, it may not be practical to preserve particular conditions, for example, access to work-based childcare may not be available in the gaining agency.
21. A section 24(1) determination must be assessed against the Government's Workplace Bargaining Policy 2018 for the Commonwealth public sector.
22. Agencies are asked to contact the APSC where they propose to make a section 24 (1) determination for non- SES employees.
23. Terms and conditions for SES employees are generally determined by:
- section 24(1) of the PS Act—the gaining agency needs to establish whether or not a new 24(1) determination is required for any SES employee who is moved
- common law contracts–agencies are advised to seek legal advice in relation to these contracts. Whether they continue to apply will depend on their terms.
Transfer of Business
24. In general, provisions of the Fair Work Act 2009 relating to a transfer of business do not apply to movements between APS agencies.
25. Where the provisions do apply, the industrial instruments from the losing agency that are relevant to the employees who are moved will apply. These instruments continue to operate until they expire or are replaced by a new workplace agreement.
26. Agencies are asked to contact the APSC for advice in relation to a proposed transfer of business.
Executive Remuneration Management Policy
27. Agencies are asked to contact the APSC where approval has been granted, or is requested, to pay an APS employee an amount above that specified in the APS Executive Remuneration Management Policy.
28. Where a proposed determination may have an impact on employee superannuation, agencies shold contact the Department of Finance at SuperBranch [at] finance.gov.au (. )
29. For information on employee superannuation arrangements for Commonwealth employees, contact SuperBranch [at] finance.gov.au.