EXPLANATORY STATEMENT
Issued by the authority of the Prime Minister
Public Service Act 1999
Public Service (Commissioner’s Functions) Direction 2026
PURPOSE AND OPERATION OF THE INSTRUMENT
The Public Service Act 1999 (the Act) establishes the position of Australian Public Service Commissioner (section 40). Section 41 of the Act enumerates the Commissioner’s functions, which include, under paragraph 41(2)(q), “such other functions as the Prime Minister, by legislative instrument, directs the Commissioner to perform”.
The Public Service (Commissioner’s Functions) Direction 2026 (the Direction) regularises the functions of the Commissioner by directing the Commissioner to:
- provide advice and assistance on workplace relations matters to Australian Public Service (APS) Agencies, non-APS Agencies, and the Public Service Minister;
- develop and administer policies and guidance related to remuneration and terms and conditions of employment of APS employees and employees of non-APS Agencies; and
- conduct centralised bargaining for Agencies, and other participating non-APS Agencies.
This ensures that the Australian Public Service Commission (APSC) is the Commonwealth’s central agency for workplace relations matters and can support APS Agencies and non-APS Agencies through setting terms and conditions for employees. The direction to perform these functions only applies as and when the Commissioner considers appropriate, consistently with Government policy.
The Direction is a legislative instrument for the purposes of the Legislation Act 2003. However, it is not subject to disallowance or sunsetting under the Legislation Act 2003 pursuant to the Legislation (Exemptions and Other Matters) Regulation 2015.
Details of the Direction are included in Attachment A. A Statement of Compatibility with Human Rights is included in Attachment B.
Commencement
The Direction commences on the day after it is registered.
Consultation
The APSC was consulted on the Direction.
Attachment A
NOTES ON SECTIONS
Section 1 – Name
This section provides that the name of the instrument is the Public Service (Commissioner’s Functions) Direction 2026.
Section 2 – Commencement
This section provides that the instrument commences on the day after it is registered.
Section 3 – Authority
This section provides that the instrument is made under section 41(2)(q) of the Public Service Act 1999 (the Act).
Section 4 – Definitions
This section states that “Commonwealth entity” and “Commonwealth company” have the same meanings as in the Public Governance, Performance and Accountability Act 2013. These organisations constitute the bulk of the non-APS Commonwealth public sector.
Section 5 – Direction
This section specifies the functions that the Prime Minister directs the Australian Public Service Commissioner to perform. The Commissioner is directed to:
- provide advice and assistance on matters related to remuneration and terms and conditions of employment of APS employees and other employees of Commonwealth entities and Commonwealth companies, including to:
- Agencies, Commonwealth entities and Commonwealth companies; and
- the Public Service Minister;
- develop and administer policies and guidance related to remuneration and terms and conditions of employment of APS employees and other employees of Commonwealth entities and Commonwealth companies; and
- conduct centralised enterprise bargaining for Agencies, and other participating Commonwealth entities and Commonwealth companies.
These functions are consistent with the Commissioner, supported by the Australian Public Service Commission, being the central official and agency with responsibility for workplace relations and employment conditions across the Commonwealth public sector.
The direction to perform these functions only applies as and when the Commissioner considers appropriate, consistently with Government policy. This reflects that policy can change from time-to-time that affects whether it is appropriate for a function to be exercised. For example, it would be inappropriate for the Commissioner to conduct centralised bargaining on behalf of APS and non-APS Agencies if Government policy does not support such arrangements.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Public Service (Commissioner’s Functions) Direction 2026
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Public Service Act 1999 (the Act) establishes the position of Australian Public Service Commissioner. Section 41 of the Act enumerates the Commissioner’s functions, which includes under paragraph 41(2)(q) “such other functions as the Prime Minister, by legislative instrument, directs the Commissioner to perform”.
The Public Service (Commissioner’s Functions) Direction 2026 (the Direction) regularises the functions of the Commissioner by directing the Commissioner to:
- provide advice and assistance on workplace relations matters to Australian Public Service (APS) Agencies, non-APS Agencies, and the Public Service Minister;
- develop and administer policies and guidance related to remuneration and terms and conditions of employment of APS employees and employees of non-APS Agencies; and
- conduct centralised bargaining for Agencies, and other participating non-APS Agencies.
This ensures that the Australian Public Service Commission is the Commonwealth’s central agency for workplace relations matters and can support APS Agencies and non-APS Agencies through setting terms and conditions for employees.
Human rights implications
This Legislative Instrument engages the right to the enjoyment of just and favourable conditions of work, which includes a right to fair wages and equal remuneration and safe and health working conditions in Article 7 of the International Covenant on Economic, Social and Cultural Rights.
The Legislative Instrument promotes the realisation of this right by ensuring that the Commissioner can:
- centrally coordinate workplace relations matters for employees across the Commonwealth public sector to help make the Commonwealth and its agencies an employer of choice; and
- develop and administer policies and programs that benefit employees in the Commonwealth public sector.
Conclusion
This Legislative Instrument is compatible with human rights because it promotes the right to the enjoyment of just and favourable conditions of work.