EXPLANATORY STATEMENT
Issued by the authority of the Minister for the Public Service
Public Service Act 1999
Public Service (Terms and Conditions of Employment) (Department of Employment and Workplace Relations) Determination 2023
AUTHORITY
The Public Service (Terms and Conditions of Employment) (Department of Employment and Workplace Relations) Determination 2023 (Determination) is made under subsection 24(3) of the Public Service Act 1999 (PS Act). Subsection 24(3) of the 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.
PURPOSE AND OPERATION
The purpose of the Determination is to determine the terms and conditions of employment that apply to non-SES employees of the Department of Employment and Workplace Relations (the Department).
The Department was created as a new entity through Machinery of Government changes on 1 July 2022. On 7 July 2022, the terms and conditions of employment applying to non-SES employees in the Department were determined by the Secretary for the Department pursuant to subsection 24(1) of the PS Act, being the Department of Employment and Workplace Relations Determination 2022/1 (Non-SES Employees) pursuant to s 24(1). This determination was subsequently replaced by the Department of Employment and Workplace Relations Determination 2022/2 (Non-SES Employees) pursuant to s 24(1) (2022 Determination) on 17 August 2022. These determinations supplemented the Australian Public Service Enterprise Award 2015 (APS Award) by preserving, as far as possible, conditions that were bargained for prior to the Machinery of Government change (for the majority of employees transferring into the Department following its creation) in the Department of Education and Training Enterprise Agreement 2016-2019 (Education EA). The 2022 Determination was amended on 16 March 2023 by the Public Service (Section 24(1)—Department of Employment and Workplace Relations Non-SES Employees) Determination 2023/1 to provide for adjustments to salaries and certain allowances (2023 Determination).
The provisions of a section 24(1) determination are of no effect to the extent that they reduce the benefit of an individual term or condition applicable under the APS Award (see section 24(1A) of the PS Act). Due to the interaction between the 2022 Determination and the APS Award, the Department has identified that certain provisions of the 2022 Determination may operate to reduce the benefit of an individual term or condition applicable under the APS Award or to provide for terms and conditions that were not intended, nor bargained for, under the Education EA. It would not be possible to remove the uncertainty that currently exists under the 2022 Determination through a new section 24(1) determination, without substantively changing the terms and conditions of employment applying to the Department’s non-SES employees.
Accordingly, the Public Service Minister is of the opinion that it is desirable to determine the terms and conditions applying to non-SES employees of the Department because of exceptional circumstances. The Determination will provide certainty as to the terms and conditions of employment for non-SES employees of the Department until replaced by a bargained enterprise agreement. The terms and conditions of the 2022 Determination and the 2023 Determination (as modified by this Determination) are incorporated in accordance with subsection 14(1) of the Legislation Act 2003 (the Legislation Act). The Determination will commence the day after it is registered.
EXEMPTION FROM SUNSETTING AND DISALLOWANCE
The Determination is a legislative instrument for the purposes of the Legislation Act. A note to subsection 24(3) of the PS Act clarifies the disallowance and sunsetting provisions of the Legislation Act do not apply to a determination made pursuant to that provision.
The Determination is exempt from sunsetting pursuant to item 54(b) of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Legislation Regulations). The explanatory statement to the Legislation Regulations 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.
The Determination is also exempt from disallowance pursuant to item 27(b) of section 10 of the same regulation. The explanatory statement to 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 only requires such a statement to be prepared for disallowable instruments.
Section 72 of the PS 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 PS 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 non-SES employees of the Department 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 PS 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 where employees’ pre-existing terms and conditions are to be preserved.
REGULATORY IMPACT
An Impact Analysis is not required for 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.
CONSULTATION
The Australian Public Service Commission consulted the Department in the making of the Determination. The Department consulted with non-SES employees and the Community and Public Sector Union (CPSU) on the scope, purpose and operation of the proposed Determination. The Department has responded to feedback provided by employees and the CPSU during consultation.
Authority: Subsection 24(3) of the Public Service Act 1999
EXPLANATION OF PROVISIONS
Public Service (Terms and Conditions of Employment) (Department of Employment and Workplace Relations) Determination 2023
Section 1: Name
- This is a formal provision specifying the name of the instrument to be the Public Service (Terms and Conditions of Employment) (Department of Employment and Workplace Relations) Determination 2023 (Determination).
Section 2: Commencement
2. Section 2 provides that the Determination commences on the day after it is registered.
Section 3: Authority
3. Section 3 makes clear that the instrument is made under subsection 24(3) of the Public Service Act 1999 (PS Act).
Section 4: Definitions
4. This section defines the terms used in the Determination.
5. The definitions of the 2022 Determination and the 2023 Determination make clear that these are the determinations made pursuant to section 24(1) (of the PS Act) as they are in force immediately before the commencement of this Determination. The 2022 Determination sets out the terms and conditions of employment for the non-SES employees as they applied prior to the commencement of this Determination; the 2023 Determination provided for a pay increase to the employees which came into effect on 9 April 2023.
Section 5: When this instrument ceases to apply
6. Section 5 provides that this Determination ceases to apply to a non-SES employee in the Department if an enterprise agreement is made under the Fair Work Act 2009 (FW Act) that applies to the employee and commences operation. A note to this section also highlights the power of the Minister for the Public Service to revoke or amend the Determination through a further instrument made under subsection 24(3) of the PS Act.
7. This instrument is intended to only be transitional to enable certainty of terms and conditions of employment for non-SES employees until a new enterprise agreement commences. Australian Public Service-wide bargaining has been underway since 30 March 2023 and the Department commenced agency level bargaining on 7 September 2023.
Section 6: Continued application of the 2022 and 2023 Determinations
8. This section provides that the terms and conditions of employment for non-SES employees of the Department, as provided by the 2022 Determination and 2023 Determination, continue to apply to those employees unless modified by Schedule 1 to the Determination. While this provision makes clear the employee’s existing terms and conditions continue to apply (subject to the modifications in Schedule 1), the legal basis of the employee’s terms and conditions of employment will stem from this Determination. The terms and conditions of both the 2022 Determination and the 2023 Determination as in force immediately before the commencement of the Determination are incorporated in accordance with subsection 14(1) of the Legislation Act 2003. The 2022 Determination and the 2023 Determination are available via the Department’s website at https://www.dewr.gov.au/about-department/work-us.
Section 7: Interaction with other determinations made under the PS Act
9. Subsection 7(1) provides this Determination operates concurrently, to the extent possible, with any determination made under subsection 24(1) of the PS Act. This includes the 2022 Determination and the 2023 Determination as they remain in force after the commencement of the Determination. Subsection 24(5) of the PS Act provides that a determination made pursuant to subsection 24(3) will override a determination made under subsection 24(1) to the extent of any inconsistency.
10. Without limiting subsection 7(1), subsection 7(2) makes clear that the Secretary of the Department may make a determination under subsection 24(1) of the PS Act to increase the amount of salaries, allowances or other monetary entitlements of the non-SES employees. This provision explicitly provides a mechanism for the Secretary of the Department to facilitate wage increases should they be required.
Section 8: Interaction with the NES and the APS Award
11. Subsection 8(1) limits the operation of the Determination to the extent that it excludes the National Employment Standards (NES). Ordinarily, a determination made under subsection 24(3) of the PS Act will override the NES to the extent of any inconsistency in accordance with subsection 24(5) of the PS Act. However, this provision alters this position to reflect the approach taken by the Secretary of the Department in the 2022 Determination. It is also consistent with part of the rationale for making this Determination which is to restore the previously bargained for employment terms and conditions in the Department of Education and Training Enterprise Agreement 2016-19 (Education EA) and it is a requirement under section 55 of the FW Act that an enterprise agreement must not exclude the NES or any provision of the NES. The Education EA is available at https://www.education.gov.au/about-department/work-us.
12. Subsection 8(2) makes clear that the Australian Public Service Enterprise Award 2015 (APS Award) does not apply to non-SES employees of the Department while the Determination is in force. The interaction between the 2022 Determination (as affected by subsection 24(1A) of the PS Act) and the APS Award has resulted in uncertainty in the terms and conditions that apply to the Department’s non-SES employees. Disapplying the APS Award will provide greater clarity to the employees’ terms and conditions. As highlighted in the Note underneath subsection 8(2), this approach is consistent with the interaction rules set out in section 57 of the FW Act which displace modern awards when an enterprise agreement applies to an employee.
Schedule 1 – Modifications of 2022 Determination and 2023 Determination
13. This schedule sets out the modifications that are made to the 2022 Determination and the 2023 Determination in accordance with section 6 of this Determination.
2022 Determination
Item 1 – Clause 3
14. Item 1 modifies the 2022 Determination by omitting clause 3 which sets out the period for when the 2022 Determination operates. Since the legal basis for the terms and conditions of employment now stem from the Determination and this Determination provides for the 2022 Determination to continue to apply (subject to the modifications in Schedule 1), it is no longer necessary to specify a period for when the 2022 Determination operates.
Item 2 – Clause 4
15. This item modifies the 2022 Determination by omitting the reference in clause 4 to that determination not being of effect to the extent it reduces the benefit to an employee under the NES or the APS Award. This reference is no longer necessary as the interaction between the Determination, the NES and the APS Award has been provided for in section 8 as explained in paragraphs 11 and 12 above.
Item 3 – Annexure A, subclause 30(b)
16. Item 3 modifies the 2022 Determination by omitting the pay increase specified in subclause 30(b) which was to take effect on 9 April 2024. It is anticipated that this pay increase will be superseded by the enterprise agreement negotiations that are currently underway. If necessary (and as explicitly provided for in subsection 7(2) of the Determination), the Secretary for the Department may determine a pay increase pursuant to subsection 24(1) of the PS Act.
Item 4 – Annexure A, clause 33
17. This item modifies the 2022 Determination by omitting clause 33 – which provides for any entitlement under the APS Award to be calculated by reference to the employee’s rate of pay under the Award. Clause 33 is no longer necessary given the APS Award does not apply to the Determination.
Item 5 – Annexure A, clause 52
18. This item modifies the 2022 Determination by omitting clause 52. This clause dealt specifically with the interaction between the determination and the Award for casual loading and is no longer necessary given the APS Award does not apply to the Determination.
Item 6 – Annexure A, clause 83
19. Item 6 modifies the 2022 Determination by omitting the phrase at the end of clause 83. This phrase dealt specifically with the interaction between the determination and the Award for payment of a languages allowance and is no longer necessary given the APS Award does not apply to the Determination.
Item 7 – Annexure A, clause 92
20. This item modifies the 2022 Determination by omitting clause 92. This clause dealt specifically with the interaction between the determination and the Award for higher duties allowances and is no longer necessary given the APS Award does not apply to the Determination.
Item 8 – Annexure A, clauses 122, 123 and 124
21. This item modifies the 2022 Determination by substituting clauses 122, 123 and 124 (which provided for the working hours of the employees and the default span of hours (bandwidth) during which an employee may work their ordinary hours) with new clauses. The substitute clauses restore the previously bargained for conditions that applied under the Education EA. Consistent with that enterprise agreement, the ordinary hours for full-time employees are 150 hours per four week settlement period which equates to 7 hours and 30 minutes per day. For all non-shiftworker employees, the bandwidth during which an employee may work their ordinary hours is 7am to 7pm. The new clause 124 makes clear that the bandwidth may be varied to another 12-hour period where an employee and their manager agree in writing to the change.
Item 9 – Annexure A, clause 133
22. Clause 133 of the 2022 Determination – which provides for when an employee is a part-time employee – is amended by omitting the phrase “(being made up of 147 ordinary hours plus the additional time referred to a clause 122(b)”. This modification is a consequence of the changes made to the employees’ working hours arising from item 8 above.
Item 10 – Annexure A, at the end of clause 141
23. Clause 141 of the 2022 Determination enables employees to accumulate flex time working between the hours of 7am to 7pm. Item 10 modifies clause 141 by providing flexibility for an employee and their manager to agree to an alternate bandwidth.
Item 11 – Annexure A, clause 142
Item 12 – Annexure A, clause 144
Item 13 – Annexure A, clause 145
24. Items 11 to 13 modify clauses 142, 144 and 145 of the 2022 Determination by omitting the cross-reference to clause 122(b) (which provided for the additional 9 minutes in a working day). This modification is a consequence of the changes made to the employees’ working hours arising from item 8 above.
Item 14 – Annexure A, Definitions, definition of ‘Shiftworker’
25. This item amends the definition of ‘shiftworker’ for increased consistency with the definition under the Education EA and the changes made to the default span of hours because of the modifications made to clause 124 in item 8 above.
2023 Determination
Item 15 – Section 5, at the end of the definition of ‘DEWR Determination 2022/2 (Non-SES Employees)’
26. Item 15 modifies the definition of ‘DEWR Determination 2022/2 (Non-SES Employees)’ at section 5 of the 2023 Determination to make clear that the reference to the 2022 Determination is the determination that continues to apply because of section 6 of this Determination.
Item 16 – Section 7
27. This item modifies the 2023 Determination by omitting section 7 which sets out the period for which the 2023 Determination operates. Since the legal basis for the terms and conditions of employment for the employees now stem from the Determination and this Determination provides for the 2023 Determination to continue to apply (subject to the modifications in Schedule 1), it is no longer necessary to specify a period for which the 2023 Determination operates.
Item 17 – Subsection 8(3)
28. This item modifies the 2023 Determination by omitting subsection 8(3) (which refers to the future pay increase provided for in clause 30.b of the 2022 Determination). This change is a consequence of clause 30(b) being omitted from the 2022 Determination in accordance with item 3 above.