EXPLANATORY STATEMENT
Issued by authority of the Minister of the Public Service
Public Service (Terms and Conditions of Employment) (Department of Climate Change, Energy, the Environment and Water) Determination 2022
Subsection 24(3) of the Public Service Act (the 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 23 June 2022, the Governor-General acting on advice of the Federal Executive Council, made an Administrative Arrangements Order to commence on 1 July 2022.[1] This Order included the creation of a new agency, the Department of Climate Change, Energy, the Environment and Water (DCCEEW).
On 15 September 2022, there are APS employees from four different agencies that will permanently transfer to DCCEEW. This move will be effected under section 72 of the Act. Where employees are moved to DCCEEW, they will cease to be covered by any legacy agency enterprise agreements.
The purpose of the Public Service (Terms and Conditions of Employment) (Department of Climate Change, Energy, the Environment and Water) Determination 2022 (the Determination) is to apply to non-SES APS employees of DCCEEW the terms and conditions of the Department of the Environment and Energy Enterprise Agreement 2016-2019, as supplemented by the terms of the Department of the Environment and Energy Determination under Subsection 24(1) of the Public Service Act 1999 Determination 2019/01) made on 30 September 2019. These documents are incorporated under subsection 14(1) of the Legislation Act 2003.
Details of the Determination are included in the Attachment.
The Act provides that the 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 Minister is of the opinion this determination is necessary to ensure DCCEEW employees, including National Park Rangers and Antarctic Expeditioners, continue to be supported by appropriate terms and conditions of their employment.
Consultation
Information sessions were facilitated, recorded, and made available to all affected staff before the Determination was made. These sessions were tailored to each staff cohort transferring from different agencies to DCCEEW, and set out key differences between the Determination and existing enterprise agreements that applied to staff in those former agencies.
Detailed guidance materials on key changes to employment conditions were made available to affected staff and employee representatives. Staff had channels by which to raise written queries about the Determination before it was made, and DCCEEW engaged with those queries throughout the consultation process.
Additional consultation was not undertaken on the specific instrument due to the exceptional circumstances requiring the instrument to be made, and the extensive consultation already undertaken with affected staff.
Regulatory Impact Statement (RIS)
No RIS is required for the measures contained in the Determination because there is no impact on business or the not-for-profit sector.
Exemption from disallowance and sunsetting
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The note contained under subsection 24(3) of the Act clarifies 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 48 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.
Section 72 of the Act gives the Australian Public Service Commissioner the authority to move employees within the Australian Public Service to another Agency following a machinery of government change.
Subsection 24(3) of the Act gives the Public Service Minister power, in exceptional circumstances, to determine conditions of employment for affected staff. In this circumstance it is necessary to ensure DCCEEW employees, including National Park Rangers and Antarctic Expeditioners, continue to be supported by appropriate terms and conditions of their employment.
It is essential that an instrument made under subsection 24(3) of the 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 be preserved.
Commencement
The Determination commences the day after it is registered.
Authority: Subsection 24(3) of the Public Service Act 1999
ATTACHMENT
DETAILS OF INSTRUMENT
Public Service (Terms and Conditions of Employment) (Department of Climate Change, Energy, the Environment and Water) Determination 2022
Section 1
Section 1 provides that the instrument is the Public Service (Terms and Conditions of Employment) (Department of Climate Change, Energy, the Environment and Water) Determination 2022.
Section 2
Section 2 provides that the instrument commences the day after it is registered.
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 an Australian Public Service (APS) employee in the Department of Climate Change, Energy, the Environment and Water (DCCEEW), other than an SES (or equivalent) employee. The Public Service Classification Rules 2000 relevantly provide the following levels as equivalent to that of an SES employee: Antarctic Medical Practitioner Level 3, Chief of Division Grades 1, 2, and 3, Chief Research Scientist Grades 1 and 2, and Medical Officer Class 5 and 6.
Section 6
Section 6 provides that the instrument ceases to apply to an APS employee if an enterprise agreement, other than the Department of the Environment and Energy Enterprise Agreement 2016-2019 (the DEE Agreement), or workplace determination applies to the employee.
Section 7
Subsection 7(1) provides that the terms and conditions of employment of an APS employee to whom this instrument applies are the terms and conditions set out in the DEE Agreement.
Enterprise agreements are approved by decision of the Fair Work Commission (FWC) and are published on the FWC’s website. The DEE Agreement is available here.
Clause 1.6 of the DEE Agreement provides that departmental policies, guidelines and procedures do not form part of the DEE Agreement. However, it is expected that the pre-existing policies, guidelines and procedures that applied in the Department of Agriculture, Fisheries and Forestry will continue to operate in DCCEEW to enable the effective operation of the instrument. This has been communicated to affected staff throughout the consultation process. If DCCEEW seeks to establish any new policies or propose substantive changes to any pre-existing policies after 15 September 2022, staff will be consulted at that time.
Paragraph 7(2)(a) provides that references in the DEE Agreement to the Department or the Department of Environment and Energy (DEE) be read as a reference to the DCCEEW.
Paragraph 7(2)(b) provides that references in the DEE Agreement to an employee covered by that Agreement be read as a reference to an APS employee covered by this instrument.
Paragraph 7(2)(c) provides that references in the DEE Agreement to the Secretary of the Department of the Environment and Energy be read as a reference to the Secretary of the DCCEEW.
The purpose of paragraph 7(2)(d) is to ensure the terms and conditions of employment specified by the instrument remain in effect following the nominal expiry date specified in the DEE Agreement.
Subsections 7(3) and (4) incorporate the first salary and allowance rates increase that was provided to DEE employees under the Determination under subsection 24(1) of the Public Service Act 1999 made on 30 September 2019. Additional increases to salary and allowance rates may be provided through a subsequent subsection 24(1) determination.
Subsection 7(5) provides that if a determination under subsection 24(1) of the Public Service Act 1999 provides for an increased amount of salary for a classification set out in a table in Schedule 1, 3 or 4 to the DEE Agreement, the pay rate that applies under subsection (3) does not apply during the period that the determination is in effect.
Subsection 7(6) provides that if a determination under subsection 24(1) of the Public Service Act 1999 provides an increased amount of salary for an individual employee, the pay rate that applies under subsection (3) does not apply during the period that the determination is in effect.
Subsection 7(7) provides that if a determination under subsection 24(1) of the Public Service Act 1999 is made in relation to a group of employees to whom the instrument applies, and provides for an increased amount of allowance set out in the table in Schedule 2 to the DEE Agreement, the allowance rate that applies under subsection (4) does not apply during the period that the determination is in effect.
Subsection 7(8) provides that if a determination under subsection 24(1) of the Public Service Act 1999 is made in relation to an individual employee to whom the instrument applies, and provides for an increased amount of allowance set out in the table in Schedule 2 to the DEE Agreement, the allowance rate that applies under subsection (4) does not apply during the period that the determination is in effect.
Section 8
The purpose of section 8 is to clarify that clauses 2.24 to 2.31 of the DEE Agreement and paragraph 738(d) of the Fair Work Act 2009 apply in respect of disputes arising under the instrument.
[1] https://www.legislation.gov.au/Details/C2022Q00007