Federal Register of Legislation - Australian Government

Primary content

Determinations/Other as made
This Determination provides for the terms and conditions for Australian Public Service employees of those Departments which were abolished on 3 December 2007.
Administered by: Prime Minister and Cabinet
Exempt from sunsetting by the Legislative Instruments Act 2003 s 54(2) item 38
Registered 07 Dec 2007
Tabling HistoryDate
Tabled HR12-Feb-2008
Tabled Senate12-Feb-2008
Date of repeal 13 Mar 2008
Repealed by Public Service Act 1999 - Determination under subsection 24(3) (13/03/2008)

EXPLANATORY STATEMENT

 

Public Service Act 1999

 

Determination under subsection 24(3)

 

 

The Public Service Act 1999 (the Act) provides for the establishment and management of the Australian Public Service (APS).

 

Section 24 of the Act provides for the unilateral determination of the remuneration and other terms and conditions of employment applying to APS employees in certain circumstances.

 

Subsection 24(3) of the Act provides that the Public Service Minister may determine the remuneration and other terms and conditions of employment applying to APS employees, if the Public Service Minister is of the opinion that it is desirable to do so because of exceptional circumstances.

 

Section 7 of the Act provides that “Public Service Minister” means the Minister who administers the Act.

The Governor-General made an Order in Council on 3 December 2007 which abolished four Departments of State, established five Departments of State and renamed four others.

Section 72 of the Act provides for the movement of staff affected by machinery of government changes.  As a result of the machinery of government changes of 3 December 2007, staff moving from an abolished department to a newly created department will not be covered by a collective agreement.  In many cases, individual agreements also cease to operate.  In the absence of individual or collective agreements, APS employees are subject to the underlying industrial instrument – the APS Award.  The Award contains a number of provisions inconsistent with contemporary public service terms and conditions and does not provide for many of the terms and conditions provided to APS employees under their existing collective and individual agreements.

Under subsection 24(1) of the Act, an Agency Head may determine the terms and conditions applying to APS employees in the Agency.  However, there is some doubt about the way a determination under subsection 24(1) would interact with the terms and conditions provided by the APS Award.  Unlike a subsection 24(1) determination, a subsection 24(3) determination made by the Public Service Minister can override the award.

 

In order to restore to APS employees those terms and conditions that existed before the machinery of government change, the Determination mirrors terms and conditions for all affected employees including those on AWAs at the time their department was abolished.  It applies the terms of relevant collective agreements to non-SES APS employees who were not employed in the old departments at the time they were abolished and who commence employment in the newly created departments. The Determination is to remain in place until new workplace agreements are negotiated.  The making of the Determination under subsection 24(3) is warranted given the exceptional circumstances arising from the abolition of departments and the creation of others.  The Determination is not considered to affect the rights of any individual to the individual’s disadvantage.

 

Consultation was not required due to the need to restore terms and conditions of employment as a matter of urgency and noting that the Determination is not considered to adversely affect any individual.

 

The Determination is taken to have commenced on 3 December 2007. 

 

 

Authority:  subsection 24(3) of the Public Service Act 1999