EXPLANATORY STATEMENT
Public Service Act 1999
Determination under subsection 24(3) – Non-SES employees - amendment of determination of 18 September 2013 (No.1)
Subection 24(3) of the Public Service Act 1999 (PS Act) provides that the Public Service Minister may, by legislative instrument, determine the terms and conditions of employment applying to Australian Public Service (APS) employees, if the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances.
Background
On 18 September 2013, the Governor-General in Council made new Administrative Arrangements Orders in which a number of functions were transferred from an existing APS Agency (Losing Agency) to a new or existing APS Agency (Gaining Agency).
Section 72 of the PS Act provides for the movement of APS employees to give effect to Machinery of Government change, 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 has made and will make further determinations pursuant to section 72 of the PS Act moving a number of APS employees between APS Agencies.
On 18 September 2013, the Minister Assisting the Prime Minister for the Public Service made a determination (the Determination) under subsection 24(3) of the PS Act in respect of those employees moved to another APS Agency to give effect to the Administrative Arrangements Orders of that date.
On 3 October 2013, the Governor-General in Council made an order amending the Administrative Arrangements Orders made on 18 September 2013. As a result of these amendments, APS employees have been, or will be, moved pursuant to section 72 of the PS Act between APS Agencies.
On 17 October 2013, the Administrator of the Commonwealth of Australia acting with the advice of the Federal Executive Council made an order pursuant to section 65 of the Public Service Act 1999, which has the effect of abolishing the Australian Agency for International Development (AusAID) as an Executive Agency on 1 November 2013 (Order). To give effect to the Order, employees will be moved pursuant to section 72 of the PS Act from AusAID to the Department of Foreign Affairs and Trade (DFAT).
Effect of Amendments to the Determination
The present determination (the Amendment Determination) will have the effect of amending the determination made by the Minister Assisting the Prime Minister for the Public Service on 18 September 2013 to:
- cover an employee who has been, or will be, moved pursuant to section 72 of the PS Act to give effect to the amendments to the Administrative Arrangement Orders made on 3 October 2013;
- cover an employee of AusAID who will be moved to DFAT to give effect to the Order made by the Administrator of the Commonwealth of Australia on 17 October 2013;
- clarify that the determination will cease to apply to an employee if he or she moves voluntarily to another APS agency.
Period of operation
The Amendment Determination will commence on and from 31 October 2013 and will have no retrospective impact on any APS employee.
The Determination (as amended by the Amendment Determination) will continue in force until it is replaced in its entirety by another determination made under section 24(3) of the PS Act, or it is revoked.
The Determination (as amended by the Amendment Determination) will cease to apply to a particular employee (or group of employees) if:
- a new Fair Work Act 2009 enterprise agreement that covers the employee(s) commences operation; or
- the employee commences employment in an APS agency that is not a Gaining Agency to which the employee was moved pursuant to section 72 of the Public Service Act 1999.
Reasons for making the Determination
The Public Service Minister was of the opinion that it was desirable to make the Amendment Determination under subsection 24(3) because of exceptional circumstances as a result of the following circumstances:
- The Machinery of Government (MoG) changes arising from the recent change of Government are of an unusually large scale, potentially affecting the terms and conditions of tens of thousands of employees;
- The current MoG changes are of an unusually large scope, and some further time may be required to accurately establish the destination agency of some employees; and
- The current MoG changes involve the abolition of existing agencies and the creation of new ones, with potentially no terms and conditions in place other than the safety net for employees moving to new agencies until each individual has been allocated to a new agency.
Consultation
In the circumstances, consultation was not necessary because of a requirement to preserve employees' terms and conditions of employment as a matter of urgency following the making of new Administrative Arrangements Orders.
Authority: Subsection 24(3) of the Public Service Act 1999
Overview
The Public Service Act 1999 was enacted by the Australian Parliament to provide a framework for the management of the Australian Public Service (APS). This legislation aims to ensure efficient and effective public administration, with a particular focus on the terms and conditions of employment for APS employees. The Act allows the Public Service Minister to make determinations under exceptional circumstances, as specified in subsection 24(3), to address significant changes such as those arising from Machinery of Government (MoG) reforms. On 18 September 2013, the Minister Assisting the Prime Minister for the Public Service made a determination to address the terms and conditions of APS employees following the transfer of functions between agencies, necessitated by new Administrative Arrangements Orders. The subsequent amendments to these Orders, and the abolition of AusAID leading to its integration with DFAT, required further adjustments to the initial determination to ensure continuity and clarity in the terms and conditions of affected employees. The policy objective of these amendments is to preserve the terms and conditions of employment for APS employees during the transition period, ensuring stability and predictability for those involved.
Scope and Application
The Public Service Act 1999 (PS Act) is a pivotal piece of Australian legislation governing the terms and conditions of employment for Australian Public Service (APS) employees. Under subsection 24(3) of the PS Act, the Public Service Minister is empowered to determine the terms and conditions of employment for APS employees in exceptional circumstances, a power exercised in this case due to the significant scale and complexity of recent Machinery of Government changes. These changes, involving the transfer of functions between APS agencies and the abolition of certain agencies, necessitate urgent and specific adjustments to employee terms and conditions to ensure continuity and stability. The Amendment Determination, which amends the original determination made on 18 September 2013, applies to APS employees who are moved to other agencies as a result of subsequent amendments to the Administrative Arrangements Orders and the abolition of AusAID. This determination clarifies that it will cease to apply to an employee if they voluntarily move to another APS agency or if a new Fair Work Act 2009 enterprise agreement commences operation. The Amendment Determination operates from 31 October 2013 and will remain in effect until it is replaced or revoked, but will not have any retrospective impact.
Key Provisions
The key operative sections of the legislation (subsection 24(3) of the Public Service Act 1999) empower the Public Service Minister to determine the terms and conditions of employment for Australian Public Service (APS) employees in exceptional circumstances. This authority is exercised when there are significant changes in the machinery of government, such as the transfer of functions between APS agencies. The amendment determination under consideration addresses employees moved due to recent administrative changes, clarifying their employment terms until new agreements or allocations are made. It is important to note that the amendment determination does not have retrospective effect and will cease to apply if a new Fair Work Act 2009 enterprise agreement takes effect or if the employee moves to a different APS agency not involved in the transfers.
The obligations and requirements imposed by the Act are primarily on the Public Service Minister, who must make determinations that safeguard the terms and conditions of APS employees during significant government restructuring. The Minister must ensure that these determinations are made promptly to maintain continuity in employees' employment terms, especially during periods of rapid change. The Public Service Commissioner, under section 72 of the Public Service Act 1999, has the responsibility to execute the movements of APS employees as dictated by the Minister's determinations. Additionally, the Administrator of the Commonwealth of Australia, in consultation with the Federal Executive Council, may make orders affecting the structure and operation of APS agencies, which in turn necessitate adjustments to the employment terms of affected employees.
The legislation outlines several consequences for breaches or non-compliance with the terms set out in the determinations. The Public Service Act 1999 does not specify particular offences or penalties within the explanatory statement itself. However, any failure to comply with the terms and conditions set by the Minister under subsection 24(3) could potentially lead to disputes or legal challenges under employment law, where affected employees might seek remedies through the Fair Work Commission or the courts. It is essential for all parties to adhere to the determinations to avoid any legal ramifications that may arise from non-compliance.