EXPLANATORY STATEMENT
Issued by authority of the Minister for the Public Service
Public Service (Terms and Conditions of Employment) (Australian Submarine Agency) Determination 2023
Subsection 24(3) of the Public Service Act 1999 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 27 April 2023, the Governor-General acting on advice of the Federal Executive Council, made an order to establish a new agency under section 65 of the Public Service Act 1999, the Australian Submarine Agency. The Australian Submarine Agency will commence on 1 July 2023. A cohort of APS employees from the Department of Defence will permanently transfer to the Australian Submarine Agency from 1 July 2023. This move will be effected under section 72 of the Public Service Act 1999.
The purpose of the Public Service (Terms and Conditions of Employment) (Australian Submarine Agency) Determination 2023 (Determination) is to apply the terms and conditions contained in the Defence Enterprise Agreement 2017-2020 (Defence Agreement) to non-SES APS employees of the Australian Submarine Agency, other than locally engaged employees overseas, with amendments to preserve the pay rise provided by the Defence Public Service Determination (salary adjustment) made under Subsection 24(1) of the Public Service Act 1999 on 13 December 2019 (Salary Adjustment Determination) and provide for the pay increase contemplated by the Public Sector Interim Workplace Arrangements 2022. The Defence Agreement is incorporated under subsection 14(1) of the Legislation Act 2003.
Details of the Determination are included in the Attachment.
The Public Service Act 1999 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 Australian Submarine Agency are provided terms and conditions of employment that are consistent with their current entitlements under the Defence Agreement and Salary Adjustment Determination and provide the salary increase contemplated by the Public Sector Interim Workplace Arrangements 2022. This will provide continuity in terms and conditions for transferring employees and will negate the need for extensive payroll systems changes which could not be safely delivered by commencement of the Determination.
Consultation
Defence has undertaken consultation with staff affected by the Machinery of Government change and their representatives. 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 Public Service (Terms and Conditions of Employment) (Australian Submarine Agency) Determination 2023 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 Public Service (Terms and Conditions of Employment) (Australian Submarine Agency) Determination 2023 is a legislative instrument for the purposes of the Legislation Act 2003.
The note contained under subsection 24(3) of the Public Service Act 1999 clarifies that the disallowance and sunsetting provisions of the Legislation Act 2003 do not apply to a determination.
Item 2 of section 9 and item 27(b) of Section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Legislation Regulations) provides the source of exemption from disallowance. The Explanatory Statement for the Legislation Regulations provide 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, prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is not required, as paragraph 15J(2)(f) of the Legislation Act 2003 only requires a Statement to be prepared for disallowable legislative instruments.
Item 3 of section 11 and item 54 of Section 12 of the Legislation Regulations provides the source of exemption from sunsetting. The Explanatory Statement for the Legislation Regulations provide that instruments made under this provision are all internal management tools for effective operation of the Parliamentary Service, and are therefore not appropriate for sunsetting.
It is essential that an instrument made under subsection 24(3) of the Public Service Act 1999 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.
Section 72 of the Public Service Act 1999 gives the Australian Public Service Commissioner the authority to move employees within the APS to another Agency following a machinery of government change.
Subsection 24(3) of the Public Service Act 1999 gives the Public Service Minister power, in exceptional circumstances, to determine conditions of employment for affected staff.
Commencement
The Determination commences on 1 July 2023.
Authority: Subsection 24(3) of the Public Service Act 1999
ATTACHMENT
DETAILS OF INSTRUMENT
Public Service (Terms and Conditions of Employment) (Australian Submarine Agency) Determination 2023
Section 1
Section 1 provides that the title of instrument is the Public Service (Terms and Conditions of Employment) (Australian Submarine Agency) Determination 2023.
Section 2
Section 2 provides that the instrument commences on 1 July 2023.
Section 3
Section 3 provides that the instrument is made under subsection 24(3) of the Public Service Act 1999.
Section 4
Section 4 defines the terms used in the instrument.
Section 5
Section 5 provides that the instrument applies to all APS employees of the Australian Submarine Agency, below the SES and equivalent levels, other than locally engaged employees overseas.
Section 6
Section 6 provides that the instrument ceases to apply to an APS employee if an enterprise agreement, or workplace determination applies to the employee.
Section 7
Subsection 7(1) provides that the terms and conditions of employment of an employee to whom the instrument applies are the terms and conditions set out in the Defence Enterprise Agreement 2017-2020 (Defence Agreement) as amended by this Determination.
Enterprise agreements are approved by decision of the Fair Work Commission and are published on the Fair Work Commission’s website. The Defence Agreement is available here.
Clause A3.1 of the Defence Agreement provides that Department of Defence APS People Policies (Policy Statement and Policy Guidance) do not form part of the Defence Agreement. However, it is expected that the pre-existing policies, guidelines and procedures that applied in the Department of Defence will continue to operate in the Australian Submarine Agency to enable the effective operation of the instrument. If the Australian Submarine Agency seek to establish any new policies or propose substantive changes to any pre-existing policies after 1 July 2023, staff will be consulted at that time.
Paragraph 7(2)(a) provides that a reference to the ‘Department of Defence’ in the Defence Agreement is a reference to the Australian Submarine Agency, unless context provides otherwise.
Paragraph 7(2)(b) provides that a reference to ‘Defence’ in the Defence Agreement is a reference to the Australian Submarine Agency, unless context provides otherwise.
Paragraph 7(2)(c) provides that a reference to an employee covered by the Defence Agreement in that agreement is a reference to an Employee to whom this instrument applies.
Paragraph 7(2)(d) provides that a reference to ‘Secretary’ in the Defence Agreement is a reference to the Agency Head of the Australian Submarine Agency.
Paragraph 7(2)(e) provides that a reference to the ‘Agreement’ in the Defence Agreement is a reference to the Agreement as applied by this instrument, unless context provides otherwise.
Paragraph 7(2)(f) provides clause A1.4 of the Defence Agreement, which specifies the nominal expiry date of that Agreement, is omitted. This is to ensure the terms and conditions of this instrument are not affected by the Defence Agreement nominal expiry date.
Paragraph 7(2)(g) provides clauses G2.1 and G2.2 of the Defence Agreement, which refer to adjustments of rates of pay, are omitted. This is to ensure the salary rates included at Schedule 1 of the Instrument are the salary rates that apply to Employees.
Paragraph 7(2)(h) omits the following words from clause G9.1 of the Defence Agreement, relating to allowances, “The rates specified in Annex D come into effect on the dates determined in paragraph G2.1”. This is to ensure the allowance rates included at Schedule 2 of this instrument are the allowance rates that apply to Employees.
Paragraph 7(2)(i) adds a new clause at G6.3A of the Defence Agreement (as applied by this instrument) to provide that where an employee was transferred to the Australian Submarine Agency from the Department of Defence by determination under section 72 of the Public Service Act 1999 on 1 July 2023, the employee's employment in the Department of Defence during the 2022/2023 performance cycle will be taken into account for the purpose of determining whether the employee has met the eligibility criteria under clause G6.3 in 2023. Clause G6.3 of the Defence Agreement sets out the eligibility criteria for performance progression.
Subsection 7(3) omits Table 1, Table 2 and Table 3 of Annex C of the Defence Agreement and substitutes Table 1, Table 2 and Table 3 in Schedule 1 to this instrument.
Subsection 7(4) provides that subject to subsection (6) and (7), the rate of an Employee’s salary will be increased by 3% on 17 August 2023. This is to provide a 3% increase to Employees in accordance with the Public Sector Interim Workplace Arrangements 2022. Department of Defence employees will receive a scheduled 3% increase pursuant to the Public Sector Interim Workplace Arrangements effective on 17 August 2023 under the Public Service (Section 24(1) – Defence Non-SES Employees) Determination 2023 (No.1). This subsection ensures an equivalent increase will also apply to eligible employees of the Australian Submarine Agency.
Subsection 7(5) provides that the adjustment of an Employee’s salary under subsection 7(4) is to be calculated based on the Employee’s salary immediately before the adjustment.
Paragraph 7(6)(a) provides that subsection 7(4) does not apply to an Employee who is excluded from receiving pay raises by clause G2.3 of the Defence Agreement (which relates to non-participation in the Performance Feedback Assessment and Development Scheme).
Paragraph 7(6)(b) provides that subsection 7(4) does not apply to an Employee to whom clause G3.3 of the Defence Agreement applies. Clause G3.3 of the Agreement provides that the salary of a new employee moving from another Agency, where their salary at that Agency exceeds the current maximum for the relevant classification or broadband in the Agreement, may be maintained at the discretion of the Secretary until such time as their salary is commensurate with the relevant Defence salary. This is to ensure the 3% increase does not apply to Employees with a maintained salary that exceeds the current maximum of the relevant classification or broadband in the Defence Agreement.
Paragraph 7(6)(c) provides that subsection 7(4) does not apply to an Employee to whom clause G3.3 applied on 30 June 2023. This is to ensure the 3% increase does not apply to Employees with a maintained salary that exceeded the current maximum of the relevant classification or broadband in the Defence Agreement before transferring to the Australian Submarine Agency.
Subsection 7(7) provides that if clause G3.3 of the Defence Agreement (as applied by the Determination) applies to the Employee, or G3.3 of the Defence Agreement applied to the Employee at 30 June 2023, and the Employee’s salary would be below the maximum salary provided for their classification following movement of the salary bands on 17 August 2023, the Employee’s salary is increased to the maximum salary for their classification on 17 August 2023.
Subsection 7(8) provides that the terms of Annex D of the Defence Agreement are amended for each allowance described in Schedule 2 of this instrument, by omitting the rate of the allowance and any reference to the date from which that rate will apply, and substituting the rates and references to the application dates in Schedule 2 of this instrument.
Subsection 7(9) provides that if a determination under section 24(1) of the Public Service Act 1999 provides for an increased rate of salary, the Employee's rate of salary under this instrument does not apply in respect of that Employee during the period that the determination is in effect.
Subsection 7(10) provides that if a determination under section 24(1) of the Public Service Act 1999 provides for a different salary scale for a classification set out in Schedule 1 to this instrument in relation to an Employee, the salary scale in Annex C of the Defence Agreement as applied by this instrument for that classification does not apply in relation to the Employee during the period that the determination is in effect.
Subsection 7(11) provides that if a determination under section 24(1) of the Public Service Act 1999 is made which applies to an Employee to whom this instrument applies and provides for an increased amount of an allowance set out in Schedule 2 to this instrument, the allowance rate that applies under subsection 7(8)does not apply in relation to the Employee during the period that the determination is in effect.
Section 8
Section 8 provides that Clause A8 of the Defence Agreement (Dealing with Disputes) (as applied by the Determination) is a term or condition of employment applying to an employee to whom this Determination applies and, for the purposes of section 738(d) of the Fair Work Act 2009, is a term that provides for a procedure for dealing with disputes arising under this instrument.
Schedule 1
Schedule 1 provides the salary rates applicable to each classification on commencement of the instrument and on 17 August 2023.
Schedule 2
Schedule 2 provides the allowance rates applicable on commencement of the instrument and on 17 August 2023.