Home Affairs Non-SES Moving Employees Determination 2017

Overview

The Public Service Act 1999 was enacted to provide a legislative framework for the management of the Australian Public Service (APS). This Act was introduced to address the administrative and logistical challenges that arise during significant organisational changes within the public service, ensuring that the transition of employees to new departments is both smooth and legally compliant. The Public Service Minister, under subsection 24(3) of the Act, has the authority to make determinations that affect the terms and conditions of employment for APS employees during such transitions. In late-December 2017, the Department of Immigration and Border Protection transitioned into the Department of Home Affairs, necessitating the immediate transfer of numerous APS employees from various departments. This transition, occurring close to the Christmas holiday period, created exceptional circumstances that made the usual processes for transferring employee terms and conditions unfeasible. Consequently, the Public Service Minister made a determination to maintain the existing terms and conditions of employment for these transferring employees until new payroll arrangements could be established within the Department of Home Affairs. This determination was made to ensure that employees could continue to exercise necessary legislative powers and that critical government functions were not disrupted.

Scope and Application

The Public Service Act 1999 Determination applies to Australian Public Service (APS) employees who are being transferred from various departments, including the Attorney General’s Department, Department of Infrastructure and Regional Development, Department of the Prime Minister and Cabinet, and Department of Social Services, to the newly established Department of Home Affairs. This determination is necessitated by the exceptional circumstances surrounding the administrative re-arrangement and the urgency of ensuring these employees can continue to lawfully exercise important legislative powers immediately upon transfer. The Determination preserves the terms and conditions of employment, including remuneration, for these transferring employees until a new Workplace Determination by the Fair Work Commission takes effect in the Department of Home Affairs. It applies nationally, as it concerns federal public service employees and the administrative re-arrangement of departments under Commonwealth jurisdiction. The Determination does not apply once an employee ceases to be part of the Department of Home Affairs or if they are promoted within the department, with 'promoted' defined as an ongoing assignment of a higher classification. This legislative instrument is a temporary measure and is subject to the jurisdictional reach of the Commonwealth, applying to federal public service employees across multiple agencies. Subordinate instruments may further define or extend the application of this Determination, but no such extensions or restrictions are explicitly mentioned in the explanatory statement.

Key Provisions

The main operative sections of this legislation are section 24(3) and section 72 of the Public Service Act 1999 (PS Act). Section 24(3) allows the Public Service Minister to make a determination regarding the terms and conditions of employment for Australian Public Service (APS) employees if deemed necessary due to exceptional circumstances. Section 72, on the other hand, provides for the movement of APS employees as a result of administrative re-arrangements. In this instance, the Public Service Minister has determined that it is necessary to move certain APS employees to the Department of Home Affairs, effective from the issuing of the associated Administrative Arrangements Order (AAO). This is due to the creation of the Department of Home Affairs from the Department of Immigration and Border Protection and the subsequent transfer of employees from other departments. The obligations and requirements imposed by this legislation primarily fall upon the Public Service Minister, the Australian Public Service Commissioner, and the relevant APS employees. The Public Service Minister must make the determination under section 24(3) of the PS Act, while the Australian Public Service Commissioner is responsible for making the determinations pursuant to section 72. The affected APS employees must transfer to the Department of Home Affairs as per the determinations, ensuring they can continue to lawfully exercise legislative powers and maintain the effective delivery of critical government functions. Furthermore, the legislation stipulates that the terms and conditions of employment for these employees, including remuneration, will remain the same as prior to their transfer until a new Workplace Determination is made by the Fair Work Commission. In terms of offences, penalties, or consequences for breach, the legislation does not explicitly outline any specific criminal or civil penalties. However, failure to comply with the terms and conditions set out in the Determination may result in the affected employee ceasing to be an employee of the Department of Home Affairs or losing their position if they are promoted within the Department. Additionally, if the terms and conditions are not maintained for the affected employees as per the Determination, it may lead to legal challenges or disputes regarding their employment rights. The determination of any penalties or consequences for breach would be subject to the applicable laws and regulations in force at the time.