Determination under subsection 24(3)—Non-SES employees moved between APS agencies to give effect to the Administrative Arrangements Orders made by the Governor-General in Council on 18 September 2013

made under section 24(3) of the

Public Service Act 1999

Compilation No. 3

Compilation date:                             1 June 2015

Includes amendments up to:           Determination under subsection 24(3)—Non-SES employees—amendment of determination of 18 September 2013 (No.3)

Registered:                                        2 June 2015

About this compilation

This compilation

This is a compilation of the Determination under subsection 24(3)—Non-SES employees moved between APS agencies to give effect to the Administrative Arrangements Orders made by the Governor-General in Council on 18 September 2013 that shows the text of the law as amended and in force on
1 June 2015 (the compilation date).

This compilation was prepared on 2 June 2015.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Determination under subsection 24(3)—Non-SES employees moved between APS agencies to give effect to the Administrative Arrangements Orders made by the Governor-General in Council on 18 September 2013

I, Eric Abetz, Minister Assisting the Prime Minister for the Public Service, being of the opinion that it is desirable to do so because of exceptional circumstances, hereby determine pursuant to section 24(3) of the Public Service Act 1999 the terms and conditions of employment of employees to whom this Determination applies.

Application of Determination

1.       This Determination applies to an APS employee (other than a Senior Executive Service employee) who has been, or will be, moved from an APS Agency (Losing Agency) to another APS Agency (Gaining Agency) by determination in writing under section 72(1)(a) of the Public Service Act 1999 in order to give effect to the Administrative Arrangements Orders made by the Governor-General in Council on 18 September 2013 as amended on 3 October 2013 (Moving Employee).

2.       This Determination also applies to an APS employee (other than a Senior Executive Service employee) who:

              (a)        is not a Moving Employee; and

              (b)       after the date of this Determination:

                          (i)      commences employment in a Gaining Agency (whether by engagement as an APS employee pursuant to section 22(1) of the Public Service Act 1999 or by movement from another APS agency pursuant to section 26 or 27 of the Public Service Act 1999); and 

                          (ii)     performs a function that was transferred to that Gaining Agency from a Losing Agency by the Administrative Arrangements Orders made by the Governor-General in Council on 18 September 2013 as amended on 3 October 2013 (New Employee).

2A.    This Determination applies to an APS employee (other than a Senior Executive Service employee) who will be moved from the Australian Agency for International Development (AusAID) to the Department of Foreign Affairs and Trade (DFAT) by determination in writing under section 72(1)(a) of the Public Service Act 1999 to give effect to the order made by the Administrator of the Commonwealth of Australia acting with the advice of the Federal Executive Council on 17 October 2013, pursuant to section 65 of the Public Service Act 1999, which has the effect of abolishing AusAID as an Executive Agency on 1 November 2013 (Moving Aid Employee).

2B.    This Determination will also apply to an APS employee (other than a Senior Executive Service employee) who:

              (a)        is not a Moving Aid Employee;

              (b)       on or after 1 November 2013:

                          (i)      commences employment in DFAT (whether by engagement as an APS employee pursuant to section 22(1) of the Public Service Act 1999 or by movement from another APS agency pursuant to section 26 or 27 of the Public Service Act 1999); and

                          (ii)     performs a function that was transferred from AusAID to DFAT as a result of the order made by the Administrator of the Commonwealth of Australia acting with the advice of the Federal Executive Council on 17 October 2013 (New Aid Employee).

2C.    For the purposes of this Determination, in relation to a Moving Aid Employee or New Aid Employee:

              (a)        AusAID is the employee’s Losing Agency; and

              (b)       DFAT is the employee’s Gaining Agency.

Period of operation

3.       This Determination takes effect on and from 18 September 2013.

4.       This Determination will continue in force until:

              (a)        it is replaced in its entirety by another determination made under section 24(3) of the Public Service Act 1999; or

              (b)       it is revoked.

When the Determination ceases to apply to an employee

5.       This Determination ceases to apply to an employee if:

              (a)        an enterprise agreement that covers the employee commences operation; or

              (b)        the employee commences employment in an APS agency that is not a Gaining Agency to which the employee was moved by determination in writing under section 72(1)(a) of the Public Service Act 1999 (whether by engagement as an APS employee pursuant to section 22(1) of the Public Service Act 1999 or by movement from another APS agency pursuant to section 26 or 27 of the Public Service Act 1999).

5A.    This Determination ceases to apply to an employee with effect from 30 January 2014 if the employee is an employee in:

              (a)        the Attorney-General’s Department; or

              (b)        the Australian Trade Commission; or

              (c)        the Department of the Environment; or

              (d)        the Department of Foreign Affairs and Trade; or

              (e)        the Department of Industry; or

              (f)        the Department of the Treasury.

5B.    However, the annual salary that applies to the employee on 30 January 2014 is the greater of:

              (a)        the annual salary that applied to the employee immediately before 30 January 2014; and

              (b)        the annual salary that would, apart from this clause, apply to the employee on 30 January 2014.

5C.    The annual salary worked out under clause 5B ceases to apply when the salary of the employee is increased by:

              (a)        a fair work instrument within the meaning of the Fair Work Act 2009; or

              (b)        a transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or

              (c)        a determination under subsection 24(1) or (3) of the Public Service Act 1999; or

              (d)        a written contract of employment.

5D.    This Determination ceases to apply to an employee with effect from 1 June 2015 if the employee is an employee in the Department of Infrastructure and Regional Development.

5E.    However, the annual salary that applies to the employee on 1 June 2015 is the greater of:

              (a)        the annual salary that applied to the employee immediately before 1 June 2015; and

              (b)        the annual salary that would, apart from this clause, apply to the employee on 1 June 2015.

5F.     The annual salary worked out under clause 5E ceases to apply when the salary of the employee is increased by:

              (a)        a fair work instrument within the meaning of the Fair Work Act 2009; or

              (b)        a transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or

              (c)        a determination under subsection 24(1) or (3) of the Public Service Act 1999; or

              (d)        a written contract of employment.

Operation of other instruments

6.       Employees to whom this Determination applies will not be covered by:

              (a)        any enterprise agreement (other than an enterprise agreement that commences operation after the date on which this Determination takes effect);

              (b)        the Australian Public Service Award 1998; or

              (c)        any other fair work instrument or WR Act transitional instrument (as those terms are defined in the Public Service Act 1999) that would otherwise cover the employee.

Terms and conditions applying to employees

7.       The terms and conditions of employment (including remuneration) of:

              (a)        a Moving Employee shall be the same as they would have been if the Governor-General in Council had not made the Administrative Arrangements Orders on 18 September 2013;

              (b)        a New Employee shall be the terms and conditions (including remuneration) contained in the enterprise agreement that, immediately before the Governor-General in Council made the Administrative Arrangements Orders on 18 September 2013, applied to employees in the Losing Agency performing the function to be performed by the New Employee;

              (c)        a Moving Aid Employee shall be the same as they would have been if the Administrator of the Commonwealth of Australia had not made the order on 17 October 2013 abolishing AusAID as an Executive Agency;

              (d)       a New Aid employee shall be the terms and conditions contained in the AusAID Enterprise Agreement 2011 – 2014,

                          except that any reference in the terms and conditions to the relevant Losing Agency is substituted with a reference to the relevant Gaining Agency.

8.       It is not inconsistent with this Determination for an Agency Head to make a determination pursuant to section 24(1) of the Public Service Act 1999 supplementing the terms and conditions of employment that apply to an employee by operation of this Determination.

Policies, guidelines and procedures that applied to the employee in the Losing Agency

9.       This clause 9 applies where the terms and conditions of employment preserved by operation of clause 7 refer to various policies, guidelines and procedures (however described) which applied to the employee’s employment in the Losing Agency.  Any such policies, guidelines and procedures:

              (a)        will continue to apply to the employee in their current form, except to the extent that a policy, guideline or procedure is not capable of meaningful operation because of the movement of the employee to the Gaining Agency; and

              (b)        do not form part of this Determination and this Determination prevails over any policies, guidelines or procedures to the extent of any inconsistency.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the amendment is set out in the endnotes.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history