EXPLANATORY STATEMENT
Issued by the authority of the Minister for the Public Service
Public Service (Terms and Conditions of Employment) (Services Australia—Non-SES Employees) Determination 2020
Subsection 24(3) of the Public Service Act 1999 (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 26 October 2017, the Fair Work Commission (FWC) approved the Department of Human Services Agreement 2017-2020 (the DHS agreement). On 10 January 2019, the FWC approved the Department of Human Services Medical Officers Agreement 2018-2021 (the MO agreement).
On 29 May 2019 the Governor-General changed the name of the Department of Human Services to Services Australia[1]. On 5 December 2019 the Governor-General abolished Services Australia as a Department of State, with effect on and from 1 February 2020[2]. On 5 December 2019 the Governor-General established Services Australia as an executive agency under section 65 of the Act, with effect on and from 1 February 2020[3].
When the name of the Department of Human Services was changed to Services Australia, there was no effect on the terms and conditions of employment of APS employees in the Department. The DHS agreement continued to apply to APS employees in Services Australia because, other than the change of name, it was the same entity.
On 1 February 2020, APS employees in the Department of State named Services Australia will be moved to the executive agency named Services Australia. This move will be effected under section 72 of the Act. When APS employees are moved to the new Services Australia agency, they will cease to be covered by either the DHS agreement or the MO agreement.
The purpose of the Public Service (Terms and Conditions of Employment) (Services Australia—Non-SES Employees) Determination 2020 (the Determination) is to preserve the terms and conditions of employment of APS employees moved to the new Services Australia agency. Details of the Determination are included in the Attachment.
The Act provides that the Minister must be of the opinion that it is desirable to determine the terms and conditions of employment applying to APS employees because of exceptional circumstances. This determination is necessary to ensure that Services Australia employees continue to be supported by appropriate terms and conditions of employment for the specific operations of the Agency.
No regulation impact statement is required for the measures contained in the Determination because there is no impact on business or the not for profit sector.
Services Australia was consulted about the Determination.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Determination commences on 1 February 2020.
Authority: subsection 24(3) of the Public Service Act 1999
DETAILS OF INSTRUMENT
Public Service (Terms and Conditions of Employment) (Services Australia—Non-SES Employees) Determination 2020
Part 1 – Preliminary
Section 1
Section 1 provides that the instrument is the Public Service (Terms and Conditions of Employment) (Services Australia—Non-SES Employees) Determination 2020.
Section 2
Section 2 provides that the instrument commences on 1 February 2020.
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 terms used in the instrument.
Part 2 – Non-medical APS employees
Section 5
Section 5 provides that Part 2 of the instrument applies to a non-SES Australian Public Service (APS) employee in Services Australia other than an employee whose classification under the Public Service Classification Rules 2000 is Medical Officer Class 2, 3, 4 or 5.
Section 6
Section 6 provides that Part 2 of 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 APS employee to which Part 2 of the instrument applies are the terms and conditions set out in the Department of Human Services Agreement 2017‑2020 (the DHS Agreement).
Enterprise agreements are approved by decision of the Fair Work Commission (FWC) and are published on the FWC’s web site. The DHS Agreement is available at the following Uniform Resource Locator (URL):
- https://www.fwc.gov.au/document/agreement/AE425884
Clause A4.2 of the DHS Agreement provides that policies and guidelines do not form part of the DHS Agreement. Consequently, policies and guidelines are not terms and conditions of employment for the purposes of this instrument. However, the consultation requirements of clauses A4.2 and A4.3 of the DHS Agreement are made terms and conditions of employment by this instrument. It is expected that any pre-existing policies, guidelines and other supporting documentation will continue to operate when Services Australia is established. Services Australia will consult prior to introducing new HR policies or amendments, as provided under clause A4.3 of the DHS Agreement.
Paragraphs 7(2)(a) and (b) provide that references to the Secretary and employee of the DHS Agreement be read as references to the Chief Executive Officer and an APS employee to whom this Part applies.
The purpose of paragraph 7(2)(c) is to ensure the terms and conditions of employment specified by the instrument remain in effect following the nominal expiry date specified in the DHS Agreement.
Paragraph 7(2)(d) clarifies that any individual flexibility arrangements for APS employees to whom this Part applies do not cease because the DHS Agreement ceases to apply to the employee, rather that they are a term of the Agreement under section 202 of the Fair Work Act 2009 and preserved under this determination.
Subsection 7(3) provides that if a determination under subsection 24(1) of the Public Service Act 1999 provides for an increased amount of salary, the salary set out in Schedule 2 to the DHS Agreement ceases to have effect on the commencement of that determination.
Subsection 7(4) provides that if a determination under subsection 24(1) of the Public Service Act 1999 provides for an increased amount of allowance, the allowance set out in the DHS Agreement ceases to have effect on the commencement of that determination.
Section 8
The purpose of section 8 is to clarify that Division 2, Part 6-2 of the Fair Work Act 2009 applies in respect of disputes arising under the instrument.
Section 9
The purpose of section 9 is to clarify, for the purposes of Rule 2.2.3 of the Rules for the Administration of the Public Sector Superannuation Accumulation Plan (PSSAP), that the superannuation salary of an ordinary employer sponsored member (except a former Commonwealth ordinary employer sponsored member) will be the person’s ordinary time earnings. This provision ensures that the method for determining the superannuation salary of PSSAP members will continue to be the ordinary time earnings (OTE) method.
Part 3 – Medical APS employees
Section 10
Section 10 provides that Part 3 of the instrument applies to an APS employee in Services Australia whose classification under the Public Service Classification Rules 2000 is Medical Officer Class 2, 3 or 4.
Section 11
Section 11 provides that Part 3 of the instrument ceases to apply to an APS employee if an enterprise agreement or workplace determination applies to the employee.
Section 12
Subsection 12(1) provides that the terms and conditions of employment of an APS employee to which Part 2 of the instrument applies are the terms and conditions set out in the Department of Human Services Medical Officers Agreement 2018-2021 (the MO Agreement).
Enterprise agreements are approved by decision of the Fair Work Commission (FWC) and are published on the FWC’s web site. The MO Agreement is available at the following URL:
- https://www.fwc.gov.au/document/agreement/AE501289
Clause A4.2 of the MO Agreement provides that policies and guidelines do not form part of the MO Agreement. Consequently, policies and guidelines are not terms and conditions of employment for the purposes of this instrument. However, the consultation requirements of clauses A4.2 and A4.3 of the MO Agreement are made terms and conditions of employment by this instrument. It is expected that any pre-existing policies, guidelines and other supporting documentation will continue to operate unchanged when Services Australia is established. Services Australia will consult prior to introducing new HR policies or amendments, as provided under clause A4.3 of the MO Agreement.
Paragraphs 12(2)(a) and (b) provide that references to the Secretary and employee in the MO Agreement be read as references to the Chief Executive Officer and an APS employee to whom this Part applies.
The purpose of paragraph 12(2)(c) is to ensure the terms and conditions of employment specified by the instrument remain in effect following the nominal expiry date specified in the DHS Agreement.
Paragraph 12(2)(d) clarifies that any individual flexibility arrangements for APS employees to whom this Part applies do not cease because the MO Agreement ceases to apply to the employee, rather that they are a term of the Agreement under section 202 of the Fair Work Act 2009 and preserved under this determination.
Subsection 12(3) provides that if a determination under subsection 24(1) of the Public Service Act 1999 provides for an increased amount of salary, the salary set out in Schedule 2 to the MO Agreement ceases to have effect on the commencement of that determination.
Subsection 12(4) provides that if a determination under subsection 24(1) of the Public Service Act 1999 provides for an increased amount of allowance, the allowance set out in the MO Agreement ceases to have effect on the commencement of that determination.
Section 13
The purpose of section 13 is to clarify that Division 2, Part 6-2 of the Fair Work Act 2009 applies in respect of disputes arising under the instrument.
Section 14
The purpose of section 14 is to clarify, for the purposes of Rule 2.2.3 of the Rules for the Administration of the PSSAP, that the superannuation salary of an ordinary employer sponsored member (except a former Commonwealth ordinary employer sponsored member) will be the person’s ordinary time earnings. This provision ensures that the method for determining the superannuation salary of PSSAP members will continue to be the OTE method.
[1] https://www.legislation.gov.au/Details/C2019G00471
[2] https://www.legislation.gov.au/Details/C2019G01104
[3] https://www.legislation.gov.au/Details/C2019G01103