EXPLANATORY STATEMENT
Issued by authority of the Minister for the Public Service
Public Service (Terms and Conditions of Employment) (Australian Naval Nuclear Power Safety Regulator) Determination 2025
Subsection 24(3) of the Public Service Act 1999 (Public Service 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.
On 6 May 2023, the Government announced it would establish an independent statutory Regulator for Australia’s conventionally-armed, nuclear-powered submarine program. The Australian Naval Nuclear Power Safety Regulator (ANNPSR) was established pursuant to subsection 100(1) of the Australian Naval Nuclear Power Safety Act 2024 and will commence on 1 November 2025. A cohort of APS employees from the Department of Defence will permanently transfer to the ANNPSR from 1 November 2025. This move will be effected under section 72 of the Public Service Act. Further, the ANNPSR will engage APS employees following its establishment.
The purpose of the Public Service (Terms and Conditions of Employment) (Australian Naval Nuclear Power Safety Regulator) Determination 2025 (the Determination) is to apply the terms and conditions contained in the Defence Enterprise Collective Agreement 2024 (Defence Agreement) to non-SES APS employees of the ANNPSR. The Defence Agreement, as in force on 29 March 2024, is incorporated as permitted under subsection 14(1) of the Legislation Act 2003 (Legislation Act). The Defence Agreement is freely available on the Department of Defence website (www.defence.gov.au) and Fair Work Commission’s website (www.fwc.gov.au).
Details of the Determination are included in the Attachment.
The Public Service Act provides that the Public Service Minister must be of the opinion it is desirable to determine the terms and conditions of employment applying to APS employees because of exceptional circumstances. The Public Service Minister is of the opinion this Determination is necessary to ensure employees of the ANNPSR are provided terms and conditions of employment that are consistent with entitlements under the Defence Agreement. This will also provide continuity in terms and conditions for APS employees transferring to the ANNPSR from the Department of Defence.
Consultation
The Department of Defence has undertaken regular consultation with staff affected by the establishment of the ANNPSR since January 2025. This has occurred through formal and informal channels, including all staff emails and targeted meetings. The Department of Defence has responded to feedback provided during consultation.
The Community and Public Sector Union, Australian Manufacturing Workers Union and Professionals Australia have been consulted, including through the National Workplace Relations Committee. Limited consultation was undertaken on the specific instrument, as its purpose is to preserve the current terms and conditions of employment for transferring employees.
Impact Analysis
No Impact Analysis is required for the measures contained in the Determination because it does not result in more than a minor change in behaviour or impact for people, business or community organisations.
Exemption from disallowance and sunsetting
The Determination is a legislative instrument for the purposes of the Legislation Act.
Item 27 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Legislation Regulation) exempts determinations made for the purposes of subsection 24(3) of the Public Service Act from disallowance. The Explanatory Statement for the Legislation Regulation provides that instruments made under this provision are all internal management tools for Government and should continue to be exempt from disallowance.
A Statement of Compatibility with Human Rights under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is not required, as paragraph 15J(2)(f) of the Legislation Act only requires a Statement to be prepared for disallowable legislative instruments.
Item 54 of the table in section 12 of the Legislation Regulation exempts determinations made for the purposes of subsection 24(3) of the Public Service Act disallowance from sunsetting. The Explanatory Statement for the Legislation Regulation provides that instruments made under this provision are all internal management tools for Government, intended to have ongoing effect, and should continue to be exempt from sunsetting.
It is essential that an instrument made under subsection 24(3) of the Public Service Act continues to be exempt from disallowance and sunsetting, so that terms and conditions of employment can be established and maintained for affected employees, including, in most cases, where an employee’s pre-existing terms and conditions are to apply.
Commencement
The Determination commences on the day after the instrument is registered with the Federal Register of Legislation.
Authority: Subsection 24(3) of the Public Service Act 1999.
ATTACHMENT
DETAILS OF INSTRUMENT
Public Service (Terms and Conditions of Employment) (Australian Naval Nuclear Power Safety Regulator) Determination 2025
Section 1 - Name
Section 1 provides that the title of the instrument is the Public Service (Terms and Conditions of Employment) (Australian Naval Nuclear Power Safety Regulator) Determination 2025.
Section 2 - Commencement
Section 2 provides that the instrument commences on the day after it is registered with the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that the instrument is made under subsection 24(3) of the Public Service Act.
Section 4 - Definitions
Section 4 defines the terms used in the instrument.
Section 5 – Application of this Instrument
Section 5 provides that the instrument applies to all APS employees of the Australian Naval Nuclear Power Safety Regulator (ANNPSR), other than Senior Executive Service (SES) employees and equivalent levels. Subsection 118(1) of the Australian Nuclear Power Safety Act 2024 provides that the staff of ANNPSR must be engaged under the Public Service Act.
Section 6 – When this instrument ceases to apply to employees
Section 6 provides that the instrument ceases to apply to a non-SES APS employee if an enterprise agreement, or workplace determination made under the Fair Work Act 2009 applies to the employee.
Section 7 – Terms and conditions of employment
Subsection 7(1) provides that the terms and conditions of employment of a non-SES APS employee to whom the instrument applies are the terms and conditions set out in the Defence Enterprise Collective Agreement 2024 (Defence Agreement) as modified by the instrument. Enterprise agreements are approved by decision of the Fair Work Commission and are published on the Fair Work Commission’s website (www.fwc.gov.au). The Defence Agreement is available on the Department of Defence’s website.
Paragraph 7(2)(a) provides that a reference to the ‘agency’ in the Defence Agreement is a reference to the ANNPSR as applied by the instrument, unless context provides otherwise.
Paragraph 7(2)(b) provides that a reference to the term ‘Agreement’ in the Defence Agreement is a reference to the Agreement as applied by the instrument, unless context provides otherwise.
Paragraph 7(2)(c) provides that a reference to the ‘commencement of the agreement’ or ‘commencement of this agreement’ is a reference to the commencement of the instrument. This is because the commencement of the operation of the Defence Agreement is not relevant to the Determination. This has no effect on an employee’s terms and conditions of employment.
Paragraph 7(2)(d) provides that a reference to ‘Defence’ in the Defence Agreement is a reference to the ANNPSR, unless context provides otherwise.
Paragraph 7(2)(e) provides that a reference to the ‘Department’ in the Defence Agreement is a reference to the ANNPSR, unless context provides otherwise.
Paragraph 7(2)(f) provides that a reference to an ‘employee’ covered by the Defence Agreement in that agreement is a reference to an employee to whom the instrument applies.
Paragraph 7(2)(g) provides that a reference to the National Workplace Relations Committee is a reference to the ANNPSR Workforce Consultative Committee, where one is in place.
Paragraph 7(2)(h) provides clause G.4 of the Defence Agreement, which sets out procedures for Individual Flexibility Arrangements, is omitted, for the purposes of the instrument. This is because, in accordance with the Fair Work Act 2009, an individual flexibility arrangement may only be made under the Enterprise Agreement or an Award, not a determination, so this clause is not relevant to the instrument. The Director-General of the ANNPSR can make a determination under subsection 24(1) of the Public Service Act to determine terms and conditions for individual employees where it is appropriate, having regard to individual circumstances.
An employee may apply for a flexible working arrangement in accordance with the instrument under clause B13 of the Defence Agreement (see also clauses B12-B16 dealing with flexible working arrangements).
Paragraph 7(2)(i) provides clause K2 of the Defence Agreement, which specifies the organisation and administration of Group Consultative Committees, is omitted for the purposes of the instrument. That is, given the structure and size of the ANNPSR, such committees are not required, as consultation issues can be managed at the agency level by the ANNPSR Workforce Consultative Committee.
Paragraph 7(2)(j) provides that a reference to ‘Secretary’ in the Defence Agreement is a reference to the Director-General of the ANNPSR.
Paragraph 7(2)(k) provides clause A3.2 of the Defence Agreement, which specifies the nominal expiry date of that Agreement, is omitted for the purposes of the instrument. This is because the nominal expiry date of the Defence Agreement is not relevant to the instrument. This has no effect on an employee’s terms and conditions of employment.
Section 8 – Procedure for dealing with disputes
Section 8 provides that section K11 of the Defence Agreement, which deals with the dispute resolution procedure, is a term or condition of employment applying to an employee to whom this instrument applies. For the purposes of paragraph 738(d) of the Fair Work Act 2009, clause K11 of the Defence Agreement provides for a procedure for dealing with disputes arising under the instrument.
Section 9 – Interaction with other determinations made under the Public Service Act
Section 9 provides that to the extent possible, the instrument is to operate concurrently with any determination made under subsection 24(1) of the Public Service Act, and that the instrument does not prevent a determination made under subsection 24(1) of the Public Service Act increasing the amount of salaries, allowances or other monetary entitlements provided for under the instrument.
Section 10 – Interaction with the NES and the APS Award
Section 10 provides that the instrument has no effect to the extent that it would exclude the National Employment Standards provided for in Part 2-2 of the Fair Work Act 2009, and that while the instrument is in force, the Australian Public Service Enterprise Award 2015 does not apply to non-SES employees in the ANNPSR.