Machinery of Government changes: A guide
The Australian Public Service Commissioner may authorise the movement of employees from one agency to another following a MoG change.
1. Agencies are expected to implement change in a way that is consistent with the principles outlined in the Executive Summary.
2. Section 72 of the Public Service Act 1999 (the PS Act) gives the Australian Public Service Commissioner (the Commissioner) the authority to move employees following a MoG change. The Commissioner can:
- move an Australian Public Service (APS) employee to another APS or non- APS Commonwealth agency
- move an employee from a non-APS Commonwealth agency into an APS agency
- engage any person as an APS employee in a specified APS agency.
3. The Commissioner makes a written determination based on advice from the affected agencies.
4. The Public Service Regulations 1999 exclude decisions to move employees as a consequence of a MoG change from review by the Merit Protection Commissioner.
Identifying all employees who will be moved
5. As a general principle, employees are moved with their function.
6. Employees who normally perform work associated with a function that is to be moved are identified by the losing agency and moved to the gaining agency, including employees who are:
- On paid or unpaid leave–these employees will normally be moved to the gaining agency on the date of the MoG change and start work there when the period of leave ends.
- In receipt of rehabilitation compensation—rehabilitation rights for employees and ex-employees generally continue with the gaining agency.
- Normally performing duties associated with a function being transferred, but temporarily performing duties elsewhere in the agency–these employees are moved to the gaining agency. A temporary transfer back to the losing agency can be arranged, if appropriate.
- Performing duties at a higher classification–these employees will be moved at their substantive classification. The gaining agency may decide to continue the higher duties arrangement.
- Seconded or on temporary transfer to a third agency–these agreements may continue in accordance with the original terms. At the end of a temporary transfer, employees generally return to the agency where their substantive function is located.
- Seconded or on temporary transfer from a third agency–these employees would normally move with their function and return to their original agency at the end of the transfer period.
7. The movement of corporate employees is negotiated between agencies. This area can be particularly problematic—see Corporate functions and shared services .
Work Health and Safety
8. Comcare has developed a tool to assist agencies to reduce the psychosocial risks of workplace change, available on the Comcare website.
9. Affected agencies must review their delegations under the PS Act. Delegations and authorities attached to employees from a losing agency will cease to have effect in the gaining agency.
10. It is good practice for the gaining agency to arrange for appropriate induction for all employees who are moved.
Leaving an agency
11. In most cases, the losing agency's policies and procedures in relation to the return of property and other items will apply.
Classification and duties
12. APS employees are moved at their existing classification level and duties.
13. The gaining agency head must allocate an approved classification under the Public Service Classification Rules 2000 and assign duties to all employees who have moved following a MoG change.
14. The gaining agency head can execute a global instrument allocating the same approved classification as previously applied to an employee or a corresponding classification in the same APS classification group.
15. Employees are moved at their existing employment status i.e. ongoing or non-ongoing.
16. Non-ongoing employees are moved to the gaining agency for:
- a period equal to the unexpired part of their existing term of engagement; or
- for the remainder of the duration of the task, or
- the existing irregular or intermittent basis.
17. Where the engagement of a non-ongoing employee is extended by the gaining agency, the total period of engagement is calculated as if it had been all in the gaining agency.
Conditions of engagement
18. A gaining agency head cannot impose a condition of engagement under section 22(6) of the PS Act on an APS employee moved as the result of a MoG change.
19. Generally a condition of engagement that was in place for an APS employee at the losing agency will continue to apply after the employee has moved–for example a probation period. The gaining agency head can decide whether the condition has been met or if it is no longer required. The gaining agency head cannot vary an original condition of engagement.
20. The Commissioner may make determinations in relation to conditions of engagement–see outstanding employment matters below.
Conditions of employment
21. An agency head may impose a continuing condition of employment where it is essential for an employee to meet certain requirements in order to perform a particular set of duties. Such conditions can include level of fitness, attainment of a security clearance, a licence or a qualification.
22. Where it is proposed to impose a new condition of employment on an employee who has moved as the result of a MoG change, in circumstances where their duties have not changed, the agency is advised to consult the APSC. Legal advice may be necessary.
23. The Commissioner may make determinations in relation to conditions of employment–see outstanding employment matters below.
Employees with a disability
24. Machinery of Government changes will have significant impact on employees with disability. Some things to consider include:
- Consulting employees with disability on proposed changes and potential impacts early is likely to reduce negative impacts. Clear communication is vital.
- Change can be particularly stressful for employees experiencing mental ill health. Consider the provision of additional support services during MOG changes.
- Ensure that workplace adjustments required by an employee will be available following the MOG change. This includes access to buildings, availability of accessibility technology (such as Zoomtext and Jaws) and flexible working arrangements.
25. A reasonable adjustment passport is a good way to capture employee requirements.
26. Most APS agencies have an agreement in place so that workplace adjustment equipment that is specific to an individual will travel with that person following a move.
Outstanding employment matters
27. Losing agencies may choose to finalise performance appraisals and make arrangements to pay pro-rata performance bonuses where these apply.
28. Section 72(5A) of the PS Act provides the Commissioner with the discretion to determine how certain outstanding employment-related matters for APS employees will be handled, including:
- conditions of engagement
- conditions of employment
- APS Code of Conduct investigations and resultant sanctions
- suspension for a suspected breach of the Code of Conduct
- processes relating to performance management; fitness for duty; loss of an essential qualification and excess staff.
29. For example, the Commissioner may determine to extend an individual's probation period.
30. An application for a Review of Action under section 33 of the PS Act cannot be transferred between agencies.
31. In some cases it may be in the interests of all parties that an employee not be moved until an outstanding employment matter is resolved.
Senior Executive Service (SES) Cap
32. Where a MoG change results in the movement of an SES position, the SES cap will be adjusted for both the losing and gaining agencies. However, where a gaining agency seeks additional SES positions, the increase in the SES cap must be approved by the Minister responsible for the Public Service, through the APSC. Newly created agencies must seek approval to establish a cap.
33. Agencies are asked to contact the APSC early when a MoG change may result in the movement or engagement of SES employees.
Executive Remuneration Management Policy
34. Agencies are asked to contact the APSC where approval has been granted, or requested, to pay any APS employee affected by a MoG change an amount above that specified in the APS Executive Remuneration Management Policy.
Movement of State or Territory employees
35. There is no power under the PS Act to compel State or Territory employees to move into the APS, or for APS employees to move to State or Territory jurisdictions.
36. Where the Commonwealth takes responsibility for State or Territory functions, the Commissioner has the authority to engage a person as an APS employee under section 72(1)(d) of the PS Act. This is not a compulsory transfer. It allows a person to be engaged as an APS employee without considering merit.
37. Staff who are not offered an APS position, or who do not accept such an offer, will remain the responsibility of the State or Territory.
Movement of statutory office holders
38. There is no power under the PS Act to compel a statutory office holder to move as the result of a MoG change. The Commissioner has the authority to engage a person as an APS employee under section 72(1)(d) of the PS Act if this is appropriate in the circumstances.
Unfinished recruitment action
39. Losing agencies are asked to advise the gaining agency of any outstanding recruitment relating to jobs in the function being moved.
a. Scenario one
- a decision to engage or promote an individual has been made; but the decision has not come into effect; and
- the function of the role is now with the gaining agency
then the losing agency may continue the recruitment process to finality including the completion of any promotion reviews by the Merit Protection Commissioner
The vacancy will remain with the losing agency until the process is complete. Once the relevant decision comes into effect the employee will move to the gaining agency.
If a gaining agency does not wish the recruitment action to come into effect it will need to ask the losing agency to stop the recruitment action before it takes effect.
b. Scenario two
- the losing agency has not yet made the decision to engage or promote an individual; and
- the relevant function of the vacancy has moved to the gaining agency
then the gaining agency can choose to proceed with the recruitment process on the basis that the vacancy is a similar vacancy as defined in section 9 of the Australian Public Service Commissioner's Direction 2016.
c. Scenario three
- the losing agency is to be abolished
then any recruitment decisions that have not taken effect, including promotions, lapse.
The gaining agency head may decide to proceed with the recruitment action, based on the process undertaken to date in the losing agency. Any engagement or promotion decision will be made by the gaining agency whose terms and conditions will apply.
Orders of Merit:
40. Generally, the gaining agency will be able to use an order of merit created by the losing agency to fill a similar vacancy within 12 months from the date of notification of the vacancy in the Public Service Gazette.
41. However, an engagement or promotion decision using an order of merit must still be consistent with the APS Employment Principles. An agency may wish to consider whether the original Gazette notice would have given a reasonable opportunity for all potential applicants to apply for the vacancy.
Independent Selection Advisory Committees (ISAC)
42. Where an ISAC had been established to assist with recruitment processes in the losing agency:
- if no recommendations have been made, the gaining agency is unable to use the ISAC for employment opportunities that exist in the gaining agency
- if recommendations have been made, the losing agency may choose to use the recommendations for employment opportunities that still exist in the losing agency.
Movement of workers compensation claims
43. MoG changes can affect arrangements with Comcare. Changes may result in:
- an agency's premium rate and amount increasing or reducing with the reassignment of staff to different agencies,
- a change to the rehabilitation authority for staff with workers' compensation claims,
- changes in administrative details such as contact information.
44. Further information is available on the Comcare website.