Public Service Act 1999 - Determination under subsection 24(3) – SES employees - amendment of determination of 18 September 2013 (No. 1)

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Legislation au F2013L01868 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Public Service Act 1999

Determination under subsection 24(3) – SES employees - amendment of determination of 18 September 2013 (No.1)

 

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

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 affected by an administrative re-arrangement, 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 determinations pursuant to section 72 of the PS Act moving a number of APS employees between APS Agencies, including Senior Executive Service (SES) employees.

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 SES 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, SES 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 and from 1 November 2013 (Order).   To give effect to the Order, SES 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 SES 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 SES 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 SES 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 SES 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:

  • an Agency Head makes a determination pursuant to section 24(1) of the Public Service Act 1999 setting out the terms and conditions of employment that apply to the employee(s), and that determination is expressed to replace the Determination in its entirety; or
  • an Agency Head and the employee enter into a written common law agreement which sets out the terms and conditions of employment that apply to the employee, and that common law agreement is expressed to replace the Determination in its entirety; or
  • 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 (PS Act) is a fundamental piece of legislation that governs the Australian Public Service (APS). Enacted in 1999, the PS Act was introduced to provide a clear framework for the management of the APS, ensuring that it operates efficiently, effectively, and in accordance with the principles of merit and accountability. The Act was enacted by the Parliament of Australia and its policy objective is to ensure that the public service is capable of delivering high-quality public services to the Australian community. The Explanatory Statement outlines amendments made to the terms and conditions of employment for Senior Executive Service (SES) employees as a result of significant changes in the machinery of government following a recent change in the federal government. These amendments, made under subsection 24(3) of the PS Act, were necessitated by the large scale and scope of the administrative re-arrangements, including the transfer of functions between agencies and the abolition of existing agencies. The urgency and exceptional circumstances of these changes required swift action to preserve the terms and conditions of employment for affected SES employees.

Scope and Application

The Amendment Determination under subsection 24(3) of the Public Service Act 1999 (PS Act) applies to Senior Executive Service (SES) employees within the Australian Public Service (APS) who are affected by recent administrative re-arrangements. These re-arrangements include the transfer of functions from one APS Agency to another, the abolition of the Australian Agency for International Development (AusAID), and the subsequent movement of its SES employees to the Department of Foreign Affairs and Trade (DFAT). The determination aims to maintain the continuity of employment terms for these employees during the transition period. The Amendment Determination, which commenced on 31 October 2013, modifies the original determination made on 18 September 2013 to accommodate changes in the Administrative Arrangements Orders and the abolition of AusAID. It specifies that the determination will cease to apply to an SES employee if they voluntarily move to another APS agency. The jurisdictional reach of this determination is within the Commonwealth of Australia, as it pertains to the terms and conditions of employment of APS employees. It will remain in force until replaced by another determination under section 24(3) of the PS Act, revoked, or superseded by an Agency Head’s determination, a written common law agreement, or a new enterprise agreement under the Fair Work Act 2009.

Key Provisions

The main sections of this determination (F2013L01868) amend the terms and conditions of employment for Senior Executive Service (SES) employees within the Australian Public Service (APS), as established under subsection 24(3) of the Public Service Act 1999 (PS Act). This amendment, referred to as the Amendment Determination, updates the original determination made on 18 September 2013, to reflect the new administrative arrangements resulting from changes to the Administrative Arrangements Orders on 3 October 2013, and the abolition of the Australian Agency for International Development (AusAID) on 1 November 2013. The Amendment Determination applies to SES employees who are moved between APS agencies as a result of these changes, and it clarifies that the determination will cease to apply if an SES employee voluntarily moves to another APS agency. The obligations imposed by this Amendment Determination are primarily on the Australian Public Service Commissioner and the relevant agency heads, who are required to ensure that the terms and conditions of employment for affected SES employees are accurately updated to reflect the new administrative arrangements. The determination also specifies the conditions under which it will cease to apply to a particular employee, such as when a new determination is made, a common law agreement is entered into, a new enterprise agreement commences, or the employee moves to a different APS agency. Breach of the terms set out in the Amendment Determination could have civil or administrative consequences. The Public Service Act 1999 does not specify particular offences or penalties for non-compliance with the determination itself; however, actions that contravene the terms of employment could result in disciplinary action under the Public Service Regulations 1999. Additionally, failure to comply with the provisions of the PS Act could lead to legal action under the Administrative Appeals Tribunal Act 1975 or the Judicial Review Act 1990. The maximum penalties for breaches of the PS Act or its regulations are not explicitly stated in the Amendment Determination but would generally depend on the nature and severity of the breach, as well as any applicable regulations or guidelines.

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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.