Public Service Act 1999 - Determination under subsection 24(3)

Administered by Department of the Prime Minister and Cabinet

Legislation au F2007L04274 In force Legislative Instrument

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EXPLANATORY STATEMENT

PUBLIC SERVICE ACT 1999

SUBSECTION 24(3)

DETERMINATION UNDER SUBSECTION 24(3)

Subsection 24(3) of the Public Service Act 1999 (the Act) allows the Public Service Minister, by notice in the Gazette, to 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.

Background

A Heads of Agreement was executed on 24 September 2007 between the Minister for Health and Ageing on behalf of the Commonwealth and the Minister for Health and Human Services on behalf of Tasmania which sets out the terms by which the Tasmanian government will transfer ownership of the Mersey Campus of the North West Regional Hospital of Tasmania to the Commonwealth on

1 November 2007.

The Heads of Agreement relevantly provide that:

from 1 November 2007 until 30 June 2008, Tasmania will, at the Commonwealth’s cost, second all consenting staff of the Mersey Campus of the North West Regional Hospital to the Commonwealth (subject to the provisions of the State Service Act 2000 (Tas)); and
the Commonwealth or its nominee will offer employment to the seconded employees for employment commencing on 1 July 2008, on the same financial terms, and with recognition of past service, continuity of service and assumption of liability for accrued leave entitlements.

Under this Determination, the Public Service Minister has set out the mechanism to allow for the remuneration and other conditions of employment of staff engaged as APS employees in what is now the Mersey Campus of the North West Regional Hospital, to be on the same financial terms as existed prior to 1 November 2007.

This Determination is being made due to exceptional circumstances.

The exceptional circumstances arise because Tasmania and the Commonwealth could not agree on secondment arrangements in time for 1 November 2007. As a result, with the prospect of having to engage some 400 staff as APS employees, a mechanism to regulate pay and conditions had to be found and that mechanism had to provide for salaries and conditions of employment on the same financial terms as existed prior to 1 November 2007.

Additionally, the Department of Health and Ageing’s current certified agreement does not contain classifications, salary and conditions that suit the type of employment in the Mersey Campus of the North West Regional Hospital (which involves shift work arrangements).

Due to the timing pressures and difficulty in reaching agreement with the Tasmanian government on the transitional employment arrangements, the Public Service Minister was of the opinion that exceptional circumstances were present and that the situation could be resolved by making this Determination.

Consultation

The Determination has been developed in consultation with the Department of Employment and Workplace Relations and the Australian Public Services Commission. Pursuant to caretaker conventions, the Shadow Minister has been consulted. Unions with coverage of staff at the Hospital have also been consulted.

The Determination commences on the day following the date of registration on the Federal Register of Legislative Instruments.

Details of the Determination are provided in Attachment A.

The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

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

ATTACHMENT A

NOTES ON CLAUSES OF THE DETERMINATION

Clause 1

This clause sets out the mechanism to allow for the remuneration and other conditions of employment of the Mersey Hospital APS employees to be on the same financial terms as existed prior to 1 November 2007.

Clause 2

This clause defines the term ‘Mersey Hospital APS Employees’ as those APS employees in the Department of Health and Ageing who perform duties in the Mersey Hospital, Tasmania.

Clause 3

This clause provides that a reference in clause 1(b) of the Determination to ‘same remuneration and other conditions of employment that the employee enjoyed as a Tasmanian State Service employee performing duties at Mersey Campus of the North West Regional Hospital, Tasmania’ shall be taken as including a reference to any additional, increased or improved remuneration and conditions of employment that the employee would otherwise be entitled to had the employee remained as an employee of the Tasmanian State Service or been engaged as an employee of the Tasmanian State Service any time up until and including 30 June 2008.

Overview

The Public Service Act 1999 was enacted by the Commonwealth Parliament to regulate the employment terms and conditions of Australian Public Service (APS) employees, aiming to ensure efficiency, accountability, and effectiveness in the public sector. A significant aspect of this Act is subsection 24(3), which empowers the Public Service Minister to determine the remuneration and other employment terms under exceptional circumstances. This legislative provision was introduced to address the need for flexibility in managing workforce transitions and ensuring continuity of service during significant organisational changes. The explanatory statement outlines a specific instance where the Public Service Minister exercised this power due to the transfer of the Mersey Campus of the North West Regional Hospital from the Tasmanian government to the Commonwealth. Exceptional circumstances arose due to the inability to agree on secondment arrangements in time for the transfer date, necessitating a swift resolution to maintain consistent employment terms for approximately 400 staff members. The determination was made to ensure that the APS employees' financial terms and conditions remained unchanged from their previous employment as Tasmanian State Service employees, thereby facilitating a smooth transition and maintaining service continuity.

Scope and Application

The Public Service Act 1999 under subsection 24(3) allows the Public Service Minister to determine the remuneration and other terms and conditions of employment for Australian Public Service (APS) employees when deemed necessary due to exceptional circumstances. This legislation applies to APS employees who were seconded from the Tasmanian government's North West Regional Hospital, specifically those working at the Mersey Campus. These employees are to be offered employment by the Commonwealth from 1 July 2008, maintaining the same financial terms as prior to 1 November 2007, including recognition of past service, continuity of service, and assumption of liability for accrued leave entitlements. The determination is necessitated by the inability of the Tasmanian and Commonwealth governments to agree on secondment arrangements in time for the transfer date, and the lack of suitable classifications, salary, and conditions in the Department of Health and Ageing’s certified agreement for the shift work arrangements at the Mersey Campus. The determination was made in consultation with relevant departments and unions and comes into effect on the day following its registration on the Federal Register of Legislative Instruments.

Key Provisions

The primary operative sections of this Determination (F2007L04274) under Subsection 24(3) of the Public Service Act 1999 are Clauses 1 to 3. Clause 1 establishes the mechanism to allow the remuneration and other conditions of employment of the APS employees at the Mersey Hospital to be on the same financial terms as they existed prior to 1 November 2007. Clause 2 defines the term ‘Mersey Hospital APS Employees’ as those APS employees in the Department of Health and Ageing who perform duties in the Mersey Hospital, Tasmania. Clause 3 clarifies that any reference to ‘same remuneration and other conditions of employment’ includes any additional, increased or improved remuneration and conditions of employment that the employee would otherwise be entitled to if they had remained as a Tasmanian State Service employee. The Determination imposes specific obligations on the Public Service Minister, the Department of Health and Ageing, and the APS employees affected by this legislation. The Public Service Minister must determine the remuneration and other terms and conditions of employment for the Mersey Hospital APS employees in line with the provisions of Clauses 1 to 3. The Department of Health and Ageing must ensure that these terms are applied to the relevant employees. The APS employees must accept the remuneration and conditions of employment as determined under this Determination. There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of this Determination. However, failure to comply with the terms and conditions of employment determined by the Public Service Minister could potentially lead to disputes or legal actions between the employees and the Department of Health and Ageing. It is important for all parties to adhere to the provisions set out in this Determination to avoid any potential conflicts or legal issues.

Area of Law: Public Service Law
Instrument: Legislative Instrument
Concepts: Definitions & Interpretation; Commencement Provisions; Regulatory Standards

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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.

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