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Last updated: 26 November 2001

Circular No 2001/7 - Administrative re-arrangements

Note: This circular has been replaced by Implementing Machinery of Government Changes effective 30 January 2007

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Background

On 23 November 2001, the Prime Minister announced the composition of the new Ministry and the changes to the administrative arrangements that he will recommend to the Governor-General. A copy of the Prime Minister's Press Release is at http://www.pm.gov.au/news/media_releases/2001/media_release1284.htm.

2. The Department of Reconciliation and Aboriginal and Torres Strait Islander Affairs is to be abolished with its functions being absorbed into the renamed Department of Immigration and Multicultural and Indigenous Affairs. The Office of Asset Sales and Commercial Support is also to be abolished with its functions being absorbed into the Department of Finance and Administration. In addition, the functions of a number of Departments will be changed. A list of the Departments that will be renamed is at Attachment A (see below).

Introduction

3. The Public Service Act 1999 (the PS Act) provides a head of power for the movement of staff affected by an administrative re-arrangement. Under section 72 of the PS Act, the Public Service Commissioner may, if satisfied that it is necessary or desirable in order to give effect to an administrative re-arrangement:

move APS employees to another Agency (without anyone's consent) - section 72(1)(a);
determine that persons cease being APS employees and become employees of a specified Commonwealth authority - section 72(1)(b);
determine that non-APS employees cease to be non-APS employees and become engaged as APS employees in a specified Agency - section 72(1)(c); and
engage any person as an APS employee in a specified Agency - section 72(1)(d).

4. This circular is concerned with the movement of employees between APS Departments or Agencies (Agencies) within the APS as a result of administrative re-arrangement under section 72(1)(a) of the PS Act.

5. The Public Service Regulations (the PS Regulations) provide that any action taken, or not taken, under section 72 of the PS Act is not a 'reviewable action' for the purposes of section 33 of the PS Act - see regulation 5.23 and Item 5 of Schedule 1 of the PS Regulations.

6. This circular has been prepared in consultation with the Department of Employment, Workplace Relations and Small Business (DEWRSB). DEWRSB has primary responsibility for issues concerning the remuneration and other conditions of employment of persons affected by an administrative re-arrangement.

Staffing arrangements

7. As noted above, section 72(1)(a) of the PS Act is the head of power to move APS employees from one APS Agency (the losing Agency) to another APS Agency (the gaining Agency) as a result of an administrative re-arrangement. The general principle of 'staff-follow-function' will apply to any such administrative re-arrangements. Under this principle, affected employees are moved with their function and their employment status (i.e. ongoing or non-ongoing) remains the same.

8. In practice, the PSMPC consults with the losing and gaining Agencies to identify the employees who are affected by the move and the Public Service Commissioner then makes a determination under section 72(1)(a) of the PS Act to move the affected staff. The names and other relevant details of persons to be moved are set out in schedules to the determination. Generally, the losing Agency will need to identify separately the ongoing and non-ongoing employees who are to be moved and provide the PSMPC with the name, AGS number and APS classification of these employees.

9. In most cases, the identification of the employees to be moved is likely to be a reasonably straightforward exercise. Complexities can arise, however, where there is a split-up of functional or program areas. This more commonly affects support type functions (e.g. corporate services areas) and there may need to be detailed negotiations between the losing and gaining Agencies to identify the staff who are to be moved.

10. In identifying the employees who are to be moved, the losing Agency will need to include the details of any employees who normally perform work associated with the function that is to be moved but who are on paid or unpaid leave (including employees granted leave without pay to take up statutory appointments, or employment under the Members of Parliament (Staff) Act 1984 or the Governor-General Act 1974 in situations set out in Chapter 2 of the Prime Minister's Public Service Directions 1999). These staff are moved to the gaining Agency with effect from the date specified in the determination made under section 72(1)(a) of the PS Act but will not normally commence working there until their period of leave has expired.

11. The losing Agency will also need to identify and provide details of any employees who normally perform work associated with the function that is to be moved but who, at the time of the administrative re-arrangement, are performing duties in another part of the losing Agency on temporary assignment. Persons in this situation are also moved to the gaining Agency with effect from the date specified in the determination made under section 72(1)(a) of the PS Act and will commence work in the gaining Agency on that date.

12. Below is information on the effect an administrative re-arrangement will have on:

unresolved staffing action including, for example, where an employee has been declared excess, or is being investigated for a suspected breach of the Code of Conduct, or where the employee is still subject to a condition of engagement imposed under section 22(6) of the PS Act;
unresolved recruitment action, including where an Agency has requested the establishment of an Independent Selection Advisory Committee (ISAC);
employees who are on temporary movement to another APS Agency; and
an unresolved application for a review of action, employees duties and classification and the engagement of non-ongoing employees.

\ Unresolved staffing action

13. Agencies should liaise with the PSMPC on individual cases that may arise where an APS employee who is likely to be affected by an administrative re-arrangement is subject to formal action under either the PS Act or subordinate legislation, or procedures under an Agency's Certified Agreement (CA) or Australian Workplace Agreement (AWA), which involve the employee being:

dealt with under the redeployment, reduction and retrenchment provisions applying in the Agency; or
the subject of an investigation into a suspected breach of the Code of Conduct; or
assessed as to whether agreed performance standards are being met; or
dealt with in relation to non-performance of duties or a loss of an essential qualification; or
assessed as to their fitness for continued duty.

14. There are a number of possible outcomes in such cases, depending on the effect of the administrative re-arrangement, the type of action that is being undertaken and the stage reached in the process. While the general principle of 'staff follow function' will continue to apply, there may be circumstances where it is in the interests of the efficient administration of the APS, or in an employee's interests, that the action be completed in the losing Agency. Losing agencies should identify employees who might be affected by unresolved staffing action and consult with the PSMPC on the action to be taken.

Recruitment action in train (non ISAC)

15. At the time of an administrative re-arrangement, Agencies may have SES and non-SES recruitment processes underway which have not been completed.

16. The arrangements for handling such processes will depend on the stage reached in the process and the nature of the administrative re-arrangement.

Prior to a decision to exercise employment powers

17. In circumstances where:

an employment opportunity has been notified but no decision has been taken by the Agency Head under the relevant provisions of the PS Act to engage or to assign duties (including promotion) to the preferred applicant; and
the employment opportunity now exists in the gaining Agency;

the gaining Agency Head can decide either to discontinue the process or proceed with the recruitment action in relation to the particular employment opportunity.

18. In cases where the gaining Agency Head decides to proceed with the recruitment action, he/she may decide either to continue with the current process on the basis of the action taken in the Agency in which the opportunity was notified, or to renotify the employment opportunity in the Gazette and restart the recruitment process.

19. Where the gaining Agency Head decides to continue with the current process, then any decision that is ultimately taken by the gaining Agency Head to promote or engage a person will need to satisfy the requirements of sections 10(1)(b) and 10(1)(m) of the PS Act (in relation to employment decisions being made on merit and persons being given a reasonable opportunity to apply for employment). To do this, the gaining Agency Head will have to be satisfied that the action taken in the losing Agency prior to the administrative re-arrangement, and any subsequent action taken in the gaining Agency, meets the minimum requirements of Chapter 4 of the Public Service Commissioner's Directions 1999 (the Directions).

After decision to exercise employment powers and before taking effect

20. Except in situations involving the abolition of an APS Agency, where a decision has been taken by the losing Agency Head under the relevant provisions of the PS Act to either engage or assign duties to the preferred applicant (including promotion), but:

at the time of an administrative re-arrangement, the decision had not come into effect; and
as a result of the administrative re-arrangement, the function associated with the employment opportunity now exists in the gaining Agency;

the recruitment process continues to finality, including any reviews of promotion decisions undertaken in accordance with Division 5.2 of the PS Regulations.

21. Until the process is complete, the employment opportunity remains in the losing Agency. Once the relevant decision to engage, assign duties (including promotion), or move a person comes into effect, the person will, in accordance with the determination made under section 72(1)(a) of the PS Act, be immediately moved to the gaining Agency:

for example, if a decision to promote a person has been made and not come into effect when the part of the Agency in which the person will perform the duties is moved to the gaining Agency, the promotion will take effect in the losing Agency. Once the promotion takes effect, the promotee will be moved to the gaining Agency by the determination.

22. A generic clause will be included in the determination made under section 72(1)(a) of the PS Act to address this issue.

23. In relation to the engagement of persons in this situation, the losing and gaining Agencies may need to liaise on any outstanding action that needs to be taken in relation to any conditions of engagement that need to be satisfied prior to the engagement coming into effect - see paragraphs 29 and 30.

24. If, for any reason, a gaining Agency Head does not wish for the recruitment action to come into effect, he or she will need to consult with the losing Agency Head and request cancellation of the recruitment action before it takes effect.

Abolition of Agency

25. In circumstances where all functions of an Agency are moved to one or more gaining APS Agencies and the losing Agency is abolished, any decision taken by the losing Agency Head under the relevant provisions of the PS Act to either engage or assign duties to the preferred applicant (including promotion) that has not yet taken effect at the time of the administrative re-arrangement will lapse:

for example, where a decision to promote an employee has been notified in the Gazette but the decision has not yet taken effect, the promotion will lapse.

26. If, however, a gaining Agency Head wants to proceed with the recruitment action, he/she can decide to continue with the current process on the basis of the action taken in the Agency in which the employment opportunity was notified. A gaining Agency Head may exercise powers under the relevant sections of the PS Act to promote or engage a person but will need to be satisfied that any action taken in the losing and gaining Agencies meets the minimum requirements of Chapter 4 of the Directions:

where a promotion decision has lapsed, and the gaining Agency Head decides to continue with the process and promote the preferred employee on the basis of the selection process undertaken in the losing Agency, the promotion should be renotified in the Gazette.

Subsequent and recurring opportunities

27. A gaining Agency Head cannot use an order of merit which was finalised in the losing Agency to fill a subsequent or recurring employment opportunity in the gaining Agency, even if it is within 12 months from the date of the Gazette notification.

Non-ongoing employment

28. A gaining Agency cannot use a register or panel arrangement created by a losing Agency to select non-ongoing employees for employment in the gaining Agency. The gaining Agency may, however, wish to encourage people on the losing Agency's list to apply for non-ongoing employment opportunities in line with the procedures or arrangements that apply in the gaining Agency.

Conditions of engagement

29. In circumstances where an employee who is to be moved to a gaining APS Agency is still subject to a condition of engagement that was imposed under section 22(6) of the PS Act at the time of the employee's original engagement in the APS, that condition will continue to apply to the employee's employment in the gaining Agency.

30. It will then be up to the gaining Agency Head to be satisfied that the condition has been met. The gaining Agency Head may not, however, vary a section 22(6) condition that was originally imposed in the losing Agency, or impose a new condition of engagement under section 22(6) of the PS Act, on an employee moved to the Agency under section 72(1)(a) of the PS Act.

Independent Selection Advisory Committees (ISACs)

31. Where there has been a request for an ISAC in relation to employment opportunities in an Agency that is subject to an administrative re-arrangement, but the ISAC has not been established, the Merit Protection Commissioner will consider the request in consultation with the relevant Agency Heads.

32. Where:

an ISAC has been established to make recommendations to an Agency Head about the suitability of candidates for engagement, promotion, or assignment to duties in connection with employment in the Agency; and
that ISAC has not yet made a recommendation to the Agency Head as to which candidate(s) is considered to be most suitable for the relevant employment; and
as a result of an administrative re-arrangement, some or all of the employment opportunities in relation to which the ISAC was established to recommend candidates now exist in the gaining Agency;

the ISAC may continue its function in relation to the employment opportunities which still exist in the losing Agency. If the gaining Agency Head wishes to take any further action in relation to the particular employment opportunities that now exist in the gaining Agency, he/she will need to restart the selection process, and may ask the Merit Protection Commissioner to establish a new ISAC.

33. Where:

an ISAC has made recommendations to an Agency Head about the suitability of candidates for engagement, promotion, or assignment to duties in connection with employment in the Agency; and
as a result of an administrative re-arrangement, some or all of the employment opportunities in relation to which the ISAC has made its recommendations now exist in a gaining Agency;

the losing Agency Head may choose to use the recommendation of the ISAC in deciding the most suitable candidates for the employment opportunities which still exist in the losing Agency. The gaining Agency Head is unable to use the original ISAC in relation to employment opportunities that now exist in the gaining Agency.

34. In circumstances where all functions of an Agency are moved to one or more gaining APS Agencies and the losing Agency is abolished, an ISAC established to make recommendations to the losing Agency Head will lapse.

35. Agencies wishing to seek advice on ISAC procedures should contact the Merit Protection Commissioner.

Temporary movements

36. A determination made by the Public Service Commissioner under section 72(1)(a) of the PS Act will deal, among other things, with the situation of persons who are on temporary movement from their home Agency (the pre-temporary move Agency) to another APS Agency (the post-temporary move Agency) at the time of an administrative re-arrangement.

Changes in the post-temporary move Agency

37. The following arrangement applies where an APS employee has temporarily moved to a post-temporary move Agency under section 26 of the PS Act and the part of the post-temporary move Agency in which the employee is working is moved to another APS Agency (the gaining Agency) as a result of an administrative re-arrangement.

38. The determination under section 72(1)(a) of the PS Act will provide that the employee will move with the function to the gaining Agency for the remainder of the temporary movement agreement. The temporary movement agreement will continue in accordance with its original terms as if it had been made with the Agency Head of the gaining Agency. At the expiration of the temporary movement agreement, the employee will, in accordance with the terms of the temporary movement agreement, return to their pre-temporary move Agency, except in the circumstances outlined below.

39. If the employee's pre-temporary move Agency is also affected by the administrative re-arrangement, and the part of the pre-temporary move Agency where the employee worked prior to entering into the temporary movement agreement is moved to another APS Agency (the successor Agency), the Commissioner's determination under section 72(1)(a) of the PS Act will move the employee to the successor Agency with effect from the next working day following the expiry of the temporary movement agreement.

40. If, however, the function being performed by the APS employee in the post-temporary move Agency is moved to the employee's pre-temporary move Agency, the temporary movement agreement lapses.

41. A losing Agency will need to establish if there are any employees who are on temporary movement from another APS Agency and are working in parts of the losing Agency affected by the administrative re-arrangement. If so, the determination to be made by the Commissioner will move these employees in accordance with the arrangements outlined above. The PSMPC will liase with the losing Agency on an appropriate set of words for inclusion in the determination to cover these employees.

Changes in the pre-temporary move Agency

42. The following arrangement applies where an APS employee has temporarily moved from the pre-temporary move Agency to the post-temporary move Agency under section 26 of the PS Act and the part of the pre-temporary move Agency that the person was working in prior to entering into the temporary movement agreement is affected by an administrative re-arrangement which involves the functions being moved to a to a successor Agency.

43. In these circumstances the temporary movement is not affected by the administrative re-arrangement. The Commissioner's determination under section 72(1)(a) of the PS Act will provide that the employee will become employed in the successor Agency with effect from the next working day following the expiry of the temporary movement agreement.

44. Where the part of the pre-temporary move Agency a person was working in prior to entering into the temporary movement agreement is moved to the same Agency as the employee is working in as a result of the temporary movement agreement, then the temporary movement agreement lapses.

45. A losing Agency will need to establish if there are any employees who are on temporary movement to another APS Agency but who, prior to entering into the temporary movement agreement, were performing duties in the part of the losing Agency affected by the administrative re-arrangement. If so, the determination to be made by the Commissioner will move these employees with effect from the end of the temporary movement agreement. The PSMPC will liase with the losing Agency on an appropriate set of words for inclusion in the determination to cover these employees.

Review of actions

46. The PS Regulations do not provide for the transfer between Agencies of applications for reviews of actions made under Division 5.3 of the Regulations. Where such an issue arises in relation to an APS employee, Agencies are encouraged to contact the PSMPC to seek further advice about whether the application may be continued with, or whether the employee should be advised to lodge a new application with the gaining Agency.

Classification, duties and the place duties are to be performed

47. Under subrule 6(1) of the Public Service Classification Rules, an Agency Head must allocate an approved classification to each employee in the Agency. Under section 25 of the PS Act, an Agency Head may, from time to time, determine the duties of an APS employee and the place at which those duties are to be performed.

48. A gaining Agency Head will need to take action under the Classification Rules to allocate an approved classification to any employee who is moved to the Agency under section 72(1)(a) of the PS Act.

49. It will be sufficient for a gaining Agency Head to execute a global instrument assigning all employees who are moved under section 72(1)(a) of the PS Act to the Agency to the same approved classification as applied to them in their previous Agency or a corresponding classification in the same group. Pending any action by the gaining Agency Head, the previous classification and duties should be regarded as continuing.

50. Section 23(4) of the PS Act does not allow an Agency Head to reduce the classification of an APS employee without their consent, except in specified circumstances. An employee cannot be assigned duties at a higher classification except in accordance with clause 4.6 of the Directions.

Engagement/re-engagement - non ongoing employees

51. Where non-ongoing employees are moved between APS Agencies as a result of an administrative re-arrangement, the circumstance that led to the engagement of a person as a non-ongoing SES employee (as set out in PS Regulation 3.4), or as a non-ongoing non-SES employee (as set out in PS Regulation 3.5) is taken to be the circumstance under which the person is employed in the gaining Agency.

52. Similarly, any provision of the PS Regulations relating to the extension of an engagement of a SES or non-SES non-ongoing employee applies to any extension of the engagement by the gaining Agency Head as if the total period of engagement was in the gaining Agency.

Delegations and authorisations

53. The Australian Government Solicitor (AGS) addresses the issue of delegations and authorisations after a General Election in its Legal Briefing No. 61 of 14 November 2001 entitled 'After a General Election - Some Legal Issues'. A copy of the Legal Briefing available in the 'For Clients' section of AGS's website: http://ags.gov.au/forclients.html.

54. The Briefing advises that the changes in Ministers, Ministers Assisting, Departments and Secretaries which occur following an election make it essential that each Agency review its instruments of delegation and authorisation.

55. The AGS advice notes that an instrument of delegation made by a Minister or Agency Head will continue to have effect following a general election if the only substantive administrative change is the person who holds the office of Minister or Agency Head. Similarly, a delegation continues in effect where there has simply been a change in the designation of the Minister, Agency Head or Agency. In both cases, however, it is clearly good administrative practice to provide new office-holders with the opportunity to reconsider arrangements for delegated decision-making, and issue new instruments of delegation. Delegations cease to have effect, however, where functions are moved between Agencies, or where an Agency is abolished.

56. The AGS advice also indicates that the position is different in relation to instruments of authorisations that provide for specified persons to exercise relevant powers for and on behalf of an office-holder. All authorisations of that kind cease to have effect when the person holding the relevant office changes and all such instruments of authorisation should be re-made without delay. For example an authorisation by an Agency Head for another person to enter into AWAs under s.170WK of the WR Act on his or her behalf will need to be reviewed immediately if there is a change in the Agency Head of an Agency.

Remuneration and other conditions of employment

57. The PS Act and PS Regulations describe the arrangements that apply in relation to the remuneration and other conditions of employment of persons moved within the APS as a result of an administrative re-arrangement (sections 72(5) and regulation 8.1). These provisions apply in circumstances both where APS employees are moved to an existing APS Agency and where employees are moved to a newly established APS Agency.

58. PS Regulation 8.1(2) provides that the annual salary that applies to the APS employee on the day on which the move occurs is the greater of the annual salary that applied to that employee immediately before the move or the annual salary that would otherwise apply to the employee after the move (e.g. under any industrial instrument that applies to that employee in the new Agency).

59. PS Regulation 8.1(3) enables the gaining Agency Head to preserve some or all of the previous conditions of employment of the APS employee through a determination under section 24 of the PS Act (a section 24 determination).

60. The following advice on the operation of these regulations provides broad guidance only and, especially if there is any uncertainty, it is recommended that Agencies obtain their own legal advice.

Scenario 1 - Where APS employees are moved to an existing APS Agency

61. Where an APS employee is moved to an existing APS Agency, there are three steps in working out how PS Regulation 8.1 operates in a particular case.

Step 1: Identify what industrial instruments apply to the employee in the new situation.
Step 2: Apply PS Regulation 8.1(2) to determine the annual salary upon the date of the move.
Step 3: The gaining Agency Head decides whether it is necessary or appropriate to preserve particular conditions of employment from the losing Agency, pending the entering into of a new CA or AWA under the WR Act, and, if so, makes an appropriate section 24 determination.

Step 1: Identify what industrial instruments apply to the 'moved' employee

62. The first task is to identify what industrial instruments, that is CAs, AWAs, awards and section 24 determinations, will apply to the employee following the administrative re-arrangement.

63. This involves looking both at the industrial instruments that applied to the employee in the losing Agency, to see if they continue to apply, and at the terms of any industrial instruments of the gaining Agency to see if they apply. In interpreting such instruments, it is important to note that where, as part of the administrative re-arrangement, there is a change to the name of a department, references in a CA or AWA to the old Department should be read as references to the renamed Department.

General approach

64. Legal advice is that the provisions of the WR Act relating to transmission of awards, CAs and AWAs do not apply in the case of movements between APS Agencies. This is because the employer remains the Commonwealth at all times where employment is under the PS Act.

65. The question of whether CAs, AWAs or awards would apply to employees moving from a losing to a gaining Agency depends primarily upon the precise terms of the particular industrial instrument and on the intentions of the parties, usually as reflected in the 'parties bound', 'coverage' or 'application' clause of the relevant instrument.

66. Even if a CA or AWA continues to apply to an employee after a move, it may not always be possible to give effect to a particular provision in the new situation. For example, a CA may refer to consultative mechanisms or a staff development scheme that only existed in the losing Agency.

Certified agreements

67. It is necessary to look both at whether any CA that applied to the employee before the move continues to apply, and at whether there is a CA in the gaining Agency that applies to the employee.

68. In the most common cases:

if the losing Agency's CA expressly refers to employees employed in a particular Agency, that CA will cease to apply to employees who are moved under section 72(1)(a) of the PS Act to another APS Agency; and/or
if the gaining APS Agency has a CA expressed to apply to all non-SES employees of that Agency, it will apply to any non-SES employees moved to that Agency under section 72(1)(a) of the PS Act.

69. In other cases:

if the CA in the gaining Agency does not apply to employees at a particular level, it may exclude from coverage some employees previously covered by the losing Agency's CA (e.g. Executive Level 2 employees); or
if a CA is expressed to apply to employees who are engaged to perform a particular function or employed in a specified operational unit, the CA will usually continue to apply to the relevant employee if that function or unit is moved from one APS Agency to another.

70. However a situation may arise where an employee is covered both by the CA that applied in the losing Agency and the gaining Agency CA. In this circumstance, section 170LY(1) of the WR Act governs interaction between the two CAs. This has the effect that, if neither CA has reached its nominal expiry date, the CA that was certified first will prevail to the extent of any inconsistency.

Example

71. In 1998 the employment function of the then Department of Employment, Education and Training (DEETYA) was moved to the then Department of Workplace Relations and Small Business (DWRSB) which was at the same time renamed as the Department of Employment, Workplace Relations and Small Business.

72. Legal advice was that:

the DEETYA agreement ceased to apply to the staff of the employment function who were transferred to DWRSB as this was framed to apply to employees of DEETYA (subject to specified exceptions);
the Network Agreement, which was framed to apply to the staff of the then Commonwealth Employment Service and other named business units, continued to apply when these business units were moved intact to DEWRSB;
where staff transferred to DEWRSB were not covered by the Network Agreement they became covered by the DWRSB agreement, as this was framed to apply to all employees of DWRSB (subject to specified exceptions); and
the DWRSB agreement continued to apply to the renamed DEWRSB;
- the agreement was subsequently varied to incorporate conditions of employment essential for the effective operation of the areas

AWAs

73. Generally, an AWA will continue to operate where an employee is moved under section 72(1)(a) of the PS Act to another APS Agency as part of an administrative re-arrangement. This is because in such a case it is likely that the nature of their employment will not change. The employee's duties and responsibilities are likely to be the same as those which applied before the movement. The only major difference will be that the employee, although still employed by the Commonwealth, is employed in a different Agency. This will, of course, be affected by the precise wording of the AWA. In cases of doubt, legal advice should be sought.

74. Where an AWA continues, PS Regulation 8.1 will have no work to do, as the salary and conditions under the AWA continue to apply.

75. Where an employee is covered both by an AWA entered into with the Agency Head of the losing Agency and the CA of the gaining Agency, section 170VQ(6) of the WR Act will govern the interaction between the two instruments. In most cases the AWA will operate to the exclusion of the gaining Agency's CA, but this depends on the wording of the relevant CA and the dates of operation and expiry of the two instruments. One case where a CA will prevail (to the exclusion of any inconsistency) is if the CA came into operation prior to the AWA and does not expressly allow for a subsequent AWA to operate to the exclusion of the CA.

76. An employee may have a non-comprehensive AWA which is drafted by reference to the losing Agency's CA or relies on references to other documents e.g. the losing Agency's HR procedures or manuals. In such a case, the AWA should be interpreted to give effect as far as possible to the intentions of the parties. If this is impractical, consideration may need to be given to varying the AWA, terminating it and/or entering a replacement AWA.

Awards

77. The Australian Public Service Award 1998 (APS Award) binds all Ministers of the Crown for the Commonwealth in respect of APS employees employed under the PS Act. The APS Award, apart from various Agency-specific provisions, applies to all APS employees (except where it has been specifically displaced (see below). The movement of APS employees from one Agency to another does not therefore affect its application.

78. Most APS employees are covered by comprehensive CAs or AWAs, which displace the APS Award in its entirety. Situations could arise, however, where as a result of an administrative re-arrangement, an employee is no longer covered by a comprehensive agreement and so the APS Award applies for some purposes. Agencies should consult their client contact in DEWRSB if they have any enquiries.

79. Whether an Agency-specific award made under section170MX of the WR Act (e.g. the Australian Protective Service) would continue to apply after a move would depend upon its precise terms, e.g. parties bound or coverage clauses. In the event that both a section170MX award and a CA applied then, under section 170LY(2) of the WR Act, the CA does not operate at any time while the award operates.

Determinations under section 24 of the PS Act

80. In rare cases, the terms and conditions of employees in the losing or gaining Agency may be governed by section 24 determinations e.g. where a newly created Agency has not yet entered a CA or AWAs. Agencies should consult DEWRSB if such a situation arises.

Step 2: Apply PS Regulation 8.1(2) to determine annual salary

81. PS Regulation 8.1(2) provides that, where an APS employee is moved between APS Agencies, the annual salary that applies to the employee on the day when the move occurs will be the greater of:

the salary that the person was entitled to before the move; and
the annual salary that would, apart from PS Regulation 8.1, apply to the APS employee after the move.

82. The general policy approach that underpins this regulation is that, while employees should not suffer a loss in salary as the result of a move, they should move as quickly as possible to the salary regime of the gaining Agency. In many cases, this simply means translating affected employees to the equivalent salary level or the nearest salary point specified in the gaining Agency's CA as applying to their classification. However, if on the day of the move, the industrial instruments that now apply would result in the employee receiving a lower annual salary, PS Regulation 8.1(2) preserves the previous salary.

83. At a later date the employee may become entitled under the gaining Agency's CA to a higher salary (for example under a salary advancement provision or as a result of an across-the-board salary increase). At that point, PS Regulation 8.1(2) ceases to apply.

84. It should be noted that PS Regulation 8.1(2) does not create an entitlement to any further increases that would have become available under a losing Agency CA that has ceased to apply to the employee. Rather, the gaining Agency's CA will, in so far as it applies to the employee, govern any future salary increases.

Step 3: Gaining Agency Head to make a section 24 determination, if necessary, to preserve some or all conditions of employment

85. PS Regulation 8.1(3) gives the gaining Agency Head the power to make a determination under section 24(1) of the PS Act so as to carry across some or all of the 'other conditions of employment' that applied to the APS employee immediately before the move. This is particularly likely to be necessary where the gaining Agency's CA does not include conditions of employment essential for the operational requirements associated with the transferred functions (e.g. shift work or remote locality provisions).

86. A number of conditions apply to the making of a section 24 determination pursuant to PS Regulation 8.1(3), namely:

the Agency Head must consult affected employees before making such a determination;
the determination must be to the effect that some or all of the conditions of employment are to be the same as those that applied to the APS employee immediately before the move;
the determination cannot take effect any sooner than the date the employee(s) are moved to the new Agency (although it can be made after the move, but retrospective to that date); and
as with all section 24 determinations, a determination is of no effect to the extent that it would reduce the benefit to an employee of any individual term or condition applicable to the employee under an award, CA or AWA. In particular, a section 24 determination cannot reduce the benefit to an employee of any individual term or condition in the gaining Agency's CA.

87. It should be noted that the gaining Agency Head is not obliged to carry across any or all of the terms and conditions that previously applied where they are not considered appropriate to the needs of the gaining Agency. In some cases, it may not be practicable to preserve particular conditions, e.g. access to work-based childcare may not be available in the gaining Agency.

88. PS Regulation 8.1(4) provides that such a determination ceases to apply if a CA, AWA or award comes into effect after the move that applies to the relevant employee(s).

89. Government policy is that the terms and conditions of APS employees should be established through agreements under the WR Act. In line with this policy, gaining Agencies should replace section 24 determinations as soon as practicable by varying existing agreements or by entering into replacement agreements. Varying or entering into new CAs or AWAs will also enable the gaining Agency to integrate all of its employees into a common HR framework.

90. There are a number of points of detail relating to the making of section 24 determinations. Some are set out in DEWRSB Advice No 2000/9, others have arisen in advising on more recent cases. Agencies are thus encouraged to seek advice on the drafting of section 24 determinations from DEWRSB and/or obtain legal advice.

Scenario 2 - Creation of a new APS Agency

91. Special issues arise where a new APS Agency is created, whether it is a new Department, an Executive Agency or a Statutory Agency staffed under the PS Act.

92. The process for determining the terms and conditions of APS employees who are moved to the new Agency is similar to that which applies where APS employees are moved to an existing APS Agency. As any section 24 determination made in accordance with PS Regulation 8.1 only applies to existing APS employees moved to the new Agency, it will generally also be necessary to make a separate section 24 determination creating interim remuneration and conditions for other employees who may be engaged by, or move to, the new Agency at a later date (see Step 4 below).

Step 1: Identify what industrial instruments apply in the new situation

93. The position is as set out in Step 1 of Scenario 1, except in relation to CAs.

94. In some cases, where a separate business unit with its own CA has been given Agency status, the existing CA continues to apply.

95. The most usual situation, however, is that the newly created Agency will not have a CA. In that case, unless an employee is covered by an AWA or a CA that carried across from the losing Agency, the Continuous Improvement in the APS Enterprise Agreement 1995- 96 (the APS Agreement) will apply.

96. It should be noted that, even if it is known in advance that a new Agency will be created and an employee will move to it, section 170WK of the WR Act does not authorise the gaining Agency Head to offer an AWA until the person is an employee of the gaining Agency.

Step 2: Apply PS Regulation 8.1(2) to determine annual salary

97. In most cases, there will be no CA that applies to the new Agency or a previous CA will continue to apply. The effect of PS Regulation 8.1(2), therefore, will almost always be to preserve the salary that the employee was entitled to before the move.

Step 3: Gaining Agency Head can make a section 24 determination to preserve some or all conditions of employment

98. The same principles as set out in Step 3 of Scenario 1 generally apply. The main difference is that it is likely that an Agency will wish to preserve nearly all of the conditions of employment that previously applied.

99. The easiest way to do this will be to draft a simple determination providing that the conditions of employment of the transferred employees are the same as they enjoyed under the CA of the losing Agency, subject to specified qualifications.

100. Such qualifications might include interpretational changes so that particular references (e.g. as to the Agency, Agency Head, Minister and Agreement) continue to work in the new context, or to exclude certain clauses that are not relevant to the new Agency.

101. There may also be terms and conditions in the losing Agency's CA that the gaining Agency Head does not wish to continue to apply. It is important to note that the section 24 determination will form part of the benchmark for the purpose of the 'no-disadvantage test' (NDT) when negotiating future agreements. Thus, any terms and conditions that the gaining Agency Head does not want to form part of the benchmark for the NDT should be specifically excluded from the operation of the determination.

102. There is a proviso in section 24(1) of the PS Act that a section 24 determination is of no effect to the extent that it would reduce the benefit to an employee of any individual term or condition applicable to the employee under an award, CA or AWA. If the salary in the losing Agency's CA included a component in lieu of annual leave loading or other allowances in the APS Award or the APS Agreement, it is desirable that the section 24 determination include a recital that it provides an equivalent benefit in lieu of such conditions. Otherwise such conditions may be held to apply alongside the salary provided in the determination, with both forming part of the benchmark for the purpose of the NDT when negotiating future agreements.

103. Agencies should note that section 24 determinations made pursuant to PS Regulation 8.1(3) can only preserve some or all of the previous terms and conditions of an employee - they cannot be used to introduce a new regime. Thus, where employees have been moved to the gaining Agency from several different APS Agencies, the gaining Agency will generally be required to preserve separate terms and conditions for the employees from each losing Agency. It will only be at the point that the gaining Agency negotiates a new CA and/or enters AWAs with the transferred employees that it will be in a position to harmonise the terms and conditions of all its employees into a single conditions framework.

Step 4: Gaining Agency Head makes a section 24 determination to set remuneration and other conditions for employees who are engaged by, or move to, the Agency at a later date

104. Where no CA applies to the newly created Agency, it may also be necessary to determine interim remuneration and other conditions of employment under section 24 of the PS Act for persons who are engaged by, or who move voluntarily to, that Agency at a later date.

105. In these circumstances, when determining interim remuneration and conditions, it is important to have regard to the fact that such a determination will form part of the NDT test for future agreements under the WR Act. Accordingly, it is desirable:

not to compromise the ability to negotiate future agreements under the WR Act that comply with the Government's Policy Parameters for Agreement Making in the APS, by including inconsistent provisions in a section 24 determination; and
to include a recital that the base salary includes a benefit in lieu of any conditions in the APS Award or APS Agreement that have been rolled into base pay.

106. Further, Agencies should note that there are some minor technical differences that apply to the making of such a determination under section 24 of the PS Act, due to the fact that it is not made in accordance with the process requirements of PS Regulation 8.1(3). In this situation, the following applies:

it is necessary to determine the employee's remuneration as well as other conditions of employment;
it is not necessary to consult the employee(s) before the making of such a determination; and
as PS Regulation 8.1(4) does not apply, it may be desirable to state that the determination will cease once it is displaced by a CA or AWAs.

107. Where staff have been moved to a new APS Agency from several different APS Agencies, the new Agency Head will face a more difficult practical choice as to what is the most appropriate interim conditions framework for employees who are later engaged by the new Agency, pending the negotiation of new CAs and/or AWAs.

108. PS Regulation 8.1 is only intended to provide interim arrangements and it is important to move as quickly as possible to enter into agreements under the WR Act as well as to develop new HR policies and procedures. This will also overcome any unforseen difficulties in interpreting interim section 24 determinations that were drafted by reference to the CA of a different Agency as well as to harmonise the terms and conditions of employees who came to the new Agency from different Agencies.

109. Once all the employees of a new Agency are covered either by a CA or an AWA, it is desirable to formally revoke any section 24 determinations made.

Scenario 3 - Abolition of an APS Agency

110. Where an APS Agency is abolished, its staff and any residual functions could be transferred to another APS Agency, which would manage the windup of the functions and any associated excess staffing situations. The situation would therefore be as described in Scenario 1.

Contacts

111. The general contact officer in the PSMPC for administrative re-arrangements is Richard Collis, telephone (02) 6202 3809, e-mail address richard.collis@apsc.gov.au. Enquiries on the following specific issues should be directed to the nominated contact:

recruitment action in train and temporary movement agreements - 02 6202 3859;
SES recruitment issues and possible displaced SES employees - Peter Labrum, PSMPC, telephone (02) 6202 3815;
review of actions and ISACs - 02 6202 3859;
effect of administrative re-arrangements on excess employees - Richard Collis, PSMPC, telephone (02) 6202 3809;
effect of administrative re-arrangements on other unresolved staffing action (suspected breaches of code of Conduct, assessment of performance etc) -02 6202 3859; and
remuneration and other conditions of employment - Ann Pickering, DEWRSB, telephone (02) 6121 7782, or Selena Allen, DEWRSB, telephone (02) 6121 5417.

Jeff Lamond
Team Leader
Staffing Structures and Performance Team

26 November 2001

Attachment A

OLD DEPARTMENT	RENAMED DEPARTMENT
Education, Training and Youth Affairs	Education, Science and Training
Employment, Workplace Relations and Small Business	Employment and Workplace Relations
Health and Aged Care	Health and Ageing
Immigration and Multicultural Affairs	Immigration and Multicultural and Indigenous Affairs
Industry, Science and Resources	Industry, Tourism and Resources