EXPLANATORY STATEMENT
Issued by the authority of the Minister Assisting the Prime Minister for the Public Service
Public Service Act 1999
Public Service (Subsection 24(3)—Non-SES employees in the Marine Unit) Amendment Determination 2018
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.
In addition to the power to make this instrument under subsection 24(3) of the PS Act, subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Background
The terms and conditions of employment of certain employees in the Department of Home Affairs (the Department) are set by the Determination under subsection 24(3)—Non-SES employees in the Marine Unit to be moved to the Department of Immigration and Border Protection by determination under paragraph 72(1)(a) of the Public Service Act 1999 on 1 July 2015 (the Principal Determination).
Paragraph 3.1(a) of the Principal Determination provides that the Principal Determination ceases to apply to an employee if a new enterprise agreement comes into effect. The Department’s attempts to negotiate a new enterprise agreement were unsuccessful and the Fair Work Commission (FWC) commenced arbitration of matters that could not be resolved by conciliation.
The outcome of the FWC arbitration will be a workplace determination under the Fair Work Act 2009 (FW Act) setting the terms and conditions of employment of all employees in the Department. On 8 June 2018, the FWC issued a statement setting out its intentions with regards to some of the matters to be covered by the workplace determination ([2018] FWCFB 3415).
Subsection 40(1) of the FW Act provides that public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency. A consequence of this provision is that when the FWC issues a workplace determination in respect of employees in the Department, the Principal Determination will continue to apply to employees to the extent of any inconsistency with the workplace determination. It is likely this will be to the detriment of those employees as the workplace determination is expected to provide for increased remuneration (among other matters).
The purpose of the Public Service (Subsection 24(3)—Non-SES employees in the Marine Unit) Amendment Determination 2018 (the Amending Determination) is to amend the Principal Determination to ensure that it ceases to apply to employees in the Department when the FWC makes a workplace determination in respect of those employees.
Details of the Amending Determination are included in the Attachment.
The PS Act provides that the Minister must be of the opinion that it is desirable to determine the terms and conditions of employment of applying to APS employees because of exceptional circumstances.
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Amendment Determination commences on the day after registration.
The Department was consulted about the amendments to the Principal Determination.
Authority: subsection 24(3) of the Public Service Act 1999
ATTACHMENT
Details of Public Service (Subsection 24(3)—Non-SES employees in the Marine Unit) Amendment Determination 2018
Section 1—Name of Determination
This section provides that the title of the Amendment Determination is the Public Service (Subsection 24(3)—Non-SES employees in the Marine Unit) Amendment Determination 2018.
Section 2—Commencement
This section provides for the Amendment Determination to commence on the day after registration of the instrument.
Section 3—Authority
This section provides that the Amendment Determination is made under subsection 24(3) of the Public Service Act 1999.
Section 4—Schedule(s)
This section provides that each instrument that is specified in a Schedule to the Amendment Determination is amended or repealed as set out in the applicable items in the relevant Schedule, and any other item in a Schedule to the Amendment Determination has effect according to its terms.
Schedule 1—Amendments
Item [1]—clause 2
This item amends clause 2 to provide that clause 2 has effect subject to clause 3.
Item [2]—paragraph 3.1(a)
This item amends paragraph 3.1(a) to include commencement of a workplace determination as being an event that causes the Principal Determination to cease to apply to the relevant employees.