EXPLANATORY STATEMENT
Public Service Act 1999
Determination under subsection 24(3)
The Public Service Act 1999 (the Act) provides for the establishment and management of the Australian Public Service (APS).
Section 24 of the Act provides for the unilateral determination of the remuneration and other terms and conditions of employment applying to APS employees in certain circumstances.
Subsection 24(3) of the Act provides that the Public Service Minister may determine the remuneration and other terms and conditions of employment applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances.
Section 7 of the Act provides that “Public Service Minister” means the Minister who administers the Act.
The Governor-General made an Order in Council on 3 December 2007 which abolished four Departments of State, established five Departments of State and renamed four others.
Section 72 of the Act provides for the movement of staff affected by machinery of government changes. As a result of the machinery of government changes of 3 December 2007, staff moving from an abolished department to a newly created department will not be covered by a collective agreement. In many cases, individual agreements also cease to operate. In the absence of individual or collective agreements, APS employees are subject to the underlying industrial instrument – the APS Award. The Award contains a number of provisions inconsistent with contemporary public service terms and conditions and does not provide for many of the terms and conditions provided to APS employees under their existing collective and individual agreements.
Under subsection 24(1) of the Act, an Agency Head may determine the terms and conditions applying to APS employees in the Agency. However, there is some doubt about the way a determination under subsection 24(1) would interact with the terms and conditions provided by the APS Award. Unlike a subsection 24(1) determination, a subsection 24(3) determination made by the Public Service Minister can override the award.
In order to restore to APS employees those terms and conditions that existed before the machinery of government change, the Determination mirrors terms and conditions for all affected employees including those on AWAs at the time their department was abolished. It applies the terms of relevant collective agreements to non-SES APS employees who were not employed in the old departments at the time they were abolished and who commence employment in the newly created departments. The Determination is to remain in place until new workplace agreements are negotiated. The making of the Determination under subsection 24(3) is warranted given the exceptional circumstances arising from the abolition of departments and the creation of others. The Determination is not considered to affect the rights of any individual to the individual’s disadvantage.
Consultation was not required due to the need to restore terms and conditions of employment as a matter of urgency and noting that the Determination is not considered to adversely affect any individual.
The Determination is taken to have commenced on 3 December 2007.
Authority: subsection 24(3) of the Public Service Act 1999
Overview
The Public Service Act 1999 governs the establishment and management of the Australian Public Service (APS). This legislation provides mechanisms for the unilateral determination of remuneration and other employment terms and conditions under specific circumstances. The Act, enacted by the Parliament of Australia, aims to ensure the effective administration of public service affairs. Section 24 of the Act allows the Public Service Minister to determine employment terms under exceptional circumstances, such as significant changes in departmental structures. Following the 2007 machinery of government changes that abolished and established various departments, there was a need to address the discontinuity in employment terms for affected APS employees. The Determination under subsection 24(3) was introduced to restore the terms and conditions of employment that existed before these changes, ensuring that employees were not disadvantaged by the transition. This Determination applies the terms of relevant collective agreements to affected employees and remains in effect until new workplace agreements are negotiated.
Scope and Application
The Public Service Act 1999 governs the establishment and management of the Australian Public Service (APS), and under subsection 24(3) of the Act, the Public Service Minister can determine the remuneration and other terms and conditions of employment for APS employees due to exceptional circumstances. Following a significant restructuring on 3 December 2007, where several departments were abolished and new ones created, the Act was invoked to address the abrupt loss of applicable collective and individual agreements for APS employees transitioning to new departments. This determination, effective from 3 December 2007, aims to reinstate the terms and conditions that were in place prior to the departmental changes. The Determination applies to non-Senior Executive Service (SES) APS employees who were not part of the abolished departments at the time of abolition and who begin employment in the newly formed departments. It ensures these employees are covered by the terms of relevant collective agreements until new workplace agreements are negotiated. The Determination overrides the underlying industrial instrument, the APS Award, which contains provisions inconsistent with contemporary public service terms and conditions. This action was deemed necessary and urgent to prevent any adverse effects on employees' rights and did not require consultation due to the exceptional circumstances.
Key Provisions
The Public Service Act 1999, specifically under section 24(3), allows the Public Service Minister to unilaterally determine the remuneration and other terms and conditions of employment for Australian Public Service (APS) employees in situations deemed to involve exceptional circumstances. This provision was exercised on 3 December 2007 following a significant reorganisation of government departments, which abolished four departments, established five new ones, and renamed four others. Given these changes, many APS employees found themselves without the benefit of collective or individual employment agreements, thus reverting to the terms of the APS Award. However, the APS Award did not align with contemporary public service conditions and was insufficient to cover the terms previously enjoyed by these employees.
Under the Determination, the Public Service Minister has established terms and conditions for APS employees that mirror those in place prior to the departmental reorganisation. This ensures continuity for employees moving from abolished departments to newly created ones, as well as for those starting employment in the new departments. The Determination applies the terms of relevant collective agreements to non-Senior Executive Service (SES) APS employees, ensuring that they receive the same terms and conditions they were entitled to before the departmental changes. This action was taken to mitigate any adverse effects on employees resulting from the machinery of government changes and to ensure that the rights of individuals are not negatively impacted.
The obligations imposed by this Determination are primarily on the Public Service Minister and the affected APS employees. The Public Service Minister is obligated to ensure that the terms and conditions set out in the Determination are applied fairly and accurately to all relevant employees. On the other hand, APS employees must comply with these terms and conditions as they are now the governing framework for their employment until new workplace agreements are negotiated. The Determination is designed to provide immediate relief and stability to employees affected by the departmental changes, and it remains in effect until new agreements are established.
There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of this Determination. However, any failure to comply with the terms and conditions set out in the Determination could potentially lead to disputes that may need to be resolved through the Fair Work Commission or other relevant industrial bodies. The Determination itself does not detail specific penalties but refers back to the general compliance frameworks under the Fair Work Act 2009 and other relevant industrial relations legislation.