Public Service Act 1999 - Determination under subsection 24(3) – Non-SES employees - amendment of determination of 18 September 2013 (No. 2)

Administered by Department of the Prime Minister and Cabinet

Legislation au F2014L00106 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Public Service Act 1999

Determination under subsection 24(3) – Non SES employees-amendment of determination of 18 September 2013 (No. 2)

 

Authority

Subsection 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

Section 72 of the PS Act provides a power for the Australian Public Service Commissioner (the Commissioner) to move APS employees to give effect to Machinery of Government changes, including an administrative re-arrangement resulting from a change to the Administrative Arrangements Orders (AAOs).

On 18 September 2013, the Governor-General in Council made AAOs in which a number of functions were effectively transferred from an existing APS Agency (Losing Agency) to a new or different existing APS Agency (Gaining Agency).  On 3 October 2013 the AAOs were further amended.

As a result of the reallocation of a number of functions on 18 September 2013 the Commissioner made determinations pursuant to section 72 of the PS Act moving a number of APS employees between agencies (transferring non SES employees).

On 18 September 2013, the Minister Assisting the Prime Minister for the Public Service made a determination (the Principal Determination) under subsection 24(3) of the PS Act in respect of transferring non SES APS employees. 

The purpose of the Principal Determination was to preserve the terms and conditions applying to the affected non SES employees that applied to them in the Losing Agency (ie their former agency).  Without the determination their terms and conditions, generally speaking, would have been those of their Gaining Agency.

On 17 October 2013, the Administrator of the Commonwealth of Australia made an order pursuant to section 65 of the PS Act which had the effect of abolishing the Australian Agency for International Development (AusAID) as an Executive Agency on 1 November 2013 (the Order).

As a result of the administrative re-arrangements after 18 September 2013 including the Order, the Commissioner made determinations pursuant to section 72 of the PS Act moving a number of APS employees between agencies.

On 31 October 2013, the Minister Assisting the Prime Minister for the Public Service amended the Principal Determination to determine terms and conditions of employment for further classes of employees affected by the administrative rearrangements and to clarify that the Principal Determination ceases to apply to an employee if he or she moves voluntarily to another agency.

Purpose of Amendments to the Principal Determination

The present determination (the Amendment Determination No. 2) amends the Principal Determination of 18 September 2013 (as amended on 31 October 2013) in order to remove certain classes of employees from coverage. Notes in relation to amending clauses are at attachment A.

The determination provides

  • effective from 30 January 2014, the Principal Determination ceases to apply to transferring non-SES employees who are employed in the following agencies:
  • The Treasury
  • The Attorney-General’s Department
  • The Department of Industry
  • The Department of Foreign Affairs and Trade
  • The Department of Environment; and
  • The Australian Trade Commission (Austrade).

Transferring non SES employees in these agencies will cease to have their terms and conditions from their Losing Agency preserved, and will become covered by the enterprise agreement that applies in their Gaining Agency.

The Principal Determination (as amended) will continue to apply to transferring non SES employees employed in the following agencies:

  • The Department of the Prime Minister and Cabinet
  • The Department of Health
  • The Department of Infrastructure and Regional Development
  • The Department of Social Services
  • The Department of Employment; and
  • The Department of Education.

The Determination will have no retrospective application.

Reasons

The Public Service Minister was of the opinion that it was desirable to make the Amendment Determination No. 2 under subsection 24(3) because:

  • As the effects of the Machinery of Government changes have become clear, the agencies removed from scope by the Amendment Determination No.2 have identified that terms and conditions of employment of transferring non SES employees in those agencies are more appropriately determined by those agencies’ enterprise agreements; and
  • The Public Service Minister was of the opinion that exceptional circumstances still apply in respect of the agencies which remain covered by the Determination.

 Consultation

 

All agencies with APS employees covered by the principal Determination were consulted.

 

Authority:  Subsection 24(3) of the Public Service Act 1999


Attachment A

Notes on Clauses

The instrument sets out amendments to the Principal Determination in the Schedule.

Item 1 to the Schedule inserts 3 new clauses into the Principal Determination.

Clause 5A provides that the Principal Determination ceases to apply to employees of certain named APS agencies from 30 January 2014.

Clause 5B provides that where an employee is removed from coverage under the Principal Determination by virtue of Amendment Determination No. 2 the annual salary that applies to the employee on 30 January 2014 is the greater of the annual salary that applied to the employee immediately before 30 January and the annual salary that would otherwise apply to the employee on 30 January 2014.  This clause is necessary because when an employee ceases to be covered by the Principal Determination their terms and conditions are generally determined by the enterprise agreement of their employing agency.  In some cases, in the absence of this clause, salary under the relevant enterprise agreement could be lower than salary preserved under the Principal Determination.

Clause 5C provides that the salary provided under clause 5B ceases to apply on the occurrence of a range of events, for example a new agency enterprise agreement.

 

Overview

The Public Service Act 1999, enacted by the Australian Parliament, provides the framework for the employment of Australian Public Service (APS) employees, with specific provisions for terms and conditions of employment under exceptional circumstances. This Act was introduced to ensure that the public service operates efficiently and effectively, addressing the need to adapt to changes in government functions and structures. Under the authority of subsection 24(3) of the Act, the Public Service Minister can determine the terms and conditions of employment for APS employees when exceptional circumstances warrant it. The objective is to ensure that employees' terms and conditions remain fair and appropriate, particularly during significant administrative re-arrangements such as those resulting from changes to the Administrative Arrangements Orders. This legislative instrument, in the form of a determination, aims to preserve the terms and conditions of employment for non-Senior Executive Service (SES) employees affected by such changes, ensuring continuity and stability in their employment arrangements. The 2013 amendments to the Public Service Act 1999, specifically the Amendment Determination No. 2, were introduced to address the evolving needs of APS employees following significant administrative re-arrangements. These amendments aimed to tailor the terms and conditions of employment to better suit the specific circumstances of different agencies. The determination removed certain classes of employees from coverage, allowing their terms and conditions to be governed by their new employing agency's enterprise agreement, while retaining coverage for other classes of employees where exceptional circumstances still applied. The purpose was to ensure that the terms and conditions of employment were appropriate and reflective of the particular needs and circumstances of the agencies involved.

Scope and Application

The Public Service Act 1999 Determination under subsection 24(3) – Non SES employees-amendment of determination of 18 September 2013 (No. 2) applies to Australian Public Service (APS) employees who were transferred between agencies as a result of administrative rearrangements following changes to the Administrative Arrangements Orders on 18 September 2013 and further amendments on 3 October 2013. The Act specifically addresses the terms and conditions of employment for these non Senior Executive Service (SES) employees. The amendment determination ceases to apply to transferring non-SES employees employed in specific agencies such as the Treasury, the Attorney-General’s Department, the Department of Industry, the Department of Foreign Affairs and Trade, the Department of Environment, and the Australian Trade Commission (Austrade) effective from 30 January 2014. Conversely, it continues to apply to employees in agencies like the Department of the Prime Minister and Cabinet, the Department of Health, the Department of Infrastructure and Regional Development, the Department of Social Services, the Department of Employment, and the Department of Education. This Act does not apply retrospectively and is subject to further adjustments through subordinate instruments as deemed necessary by the Public Service Minister under subsection 24(3) of the PS Act.

Key Provisions

The main operative sections of this determination are clauses 5A, 5B, and 5C, which are inserted into the Principal Determination of 18 September 2013 (as amended on 31 October 2013). Clause 5A specifies that the Principal Determination ceases to apply to transferring non-SES employees in certain agencies from 30 January 2014. Clause 5B ensures that the annual salary for employees removed from coverage by this Amendment Determination No. 2 is the greater of the salary they received immediately before 30 January 2014 or the salary that would otherwise apply from that date. Clause 5C states that the salary determined under clause 5B ceases to apply upon the occurrence of specified events, such as a new enterprise agreement being adopted by the agency. The obligations and requirements imposed by this Act on the parties it governs primarily concern the preservation of terms and conditions for transferring non-SES APS employees. It mandates that the Principal Determination ceases to apply to employees in specified agencies, allowing them to be governed by the enterprise agreements of their new agencies. It also requires that these employees receive a salary that is at least the same as they were receiving before the changes, until certain events trigger a change to the terms of their employment under the new agency's enterprise agreement. The determination outlines consequences for breaches of its provisions, although specific penalties are not detailed in the text. Generally, under the Public Service Act 1999, breaches of employment determinations could lead to civil consequences, such as financial penalties or legal actions. Additionally, if the breaches involve criminal conduct, such as fraud or corruption, they could lead to criminal penalties, including fines and imprisonment, depending on the severity and nature of the breach. The exact penalties would be determined in accordance with relevant laws governing public service employment and administrative law.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.