Agencies moving into the Australian Public Service

This document provides general information for agencies moving into the Australian Public Service (APS) from non-APS Commonwealth employment. It outlines the legislative framework applying in the APS, some of the key features of APS employment, and the process involved in moving staff into the APS to give effect to an administrative re-arrangement, normally referred to as a machinery of government (MoG) change.

Organisations moving into the APS are encouraged to consult with APS central agencies early in the process to discuss the proposed move. 

• The Australian Public Service Commission provides general advice on employment in the APS and the processes involved in moving staff into the APS. The Australian Public Service Commissioner has the power under section 72 of the Public Service Act 1999 to determine that non-APS Commonwealth employees cease to be employed with their current employer and become engaged as APS employees in a specified Commonwealth agency.
• The Department of Education, Employment and Workplace Relations (DEEWR) is able to provide advice on workplace relations matters including terms and conditions for employees following MoG changes, the application of the transfer of business provisions of the Fair Work Act 2009 to such changes, and agreement making arrangements in the APS including the application of the Australian Government Employment Bargaining Framework which applies to all APS agencies. 
• The Department of Finance and Deregulation is able to provide advice on financial issues including the transfer of appropriations (where relevant, accounting, reporting, banking, governance and superannuation issues).
• The Department of the Prime Minister and Cabinet will inform agencies on the prime Minister’s decisions on MoG changes and amendments to the Administrative Arrangements Order where necessary.

Legislative framework

APS agencies employ their staff under the Public Service Act 1999 (PS Act). It provides a modern and flexible employment framework within a strong accountability regime allowing APS agency heads a significant amount of flexibility to manage their agencies to meet current and future requirements, subject to the APS Values and the Code of Conduct.

The PS Act operates together with a range of other legislation (administered by other agencies) which is relevant to the administration and management of the APS, including:

• the Fair Work Act 2009 (FW Act), which amongst other things governs the way in which terms and conditions of employment are settled and termination of employment (the FW Act is administered by DEEWR)
• the Financial Management and Accountability Act 1997 (FMA Act) or the Commonwealth Authorities and Companies Act 1997  (CAC Act) which regulate the way in which agencies manage and account for their resources (the FMA and CAC Acts are administered by the Department of Finance and Deregulation)
• a range of other legislation that either relates to conditions of employment and related issues (long service leave, superannuation, maternity leave, compensation, occupational health and safety etc.) or administrative law/anti-discrimination issues (sex, race, disability, freedom of information, privacy etc).

The PS Act is also supported by a range of subordinate legislation including the Public Service Regulations 1999, Public Service Commissioner’s Directions 1999, Public Service Classification Rules 2000 and the Prime Minister’s Public Service Directions 1999.

Some features of employment in the APS

Under s.20 of the PS Act, the agency head has (on behalf of the Commonwealth) all the rights, duties and powers of an employer in respect of the APS employees in the agency, including the power to engage staff, assign them duties and an appropriate classification, promote them and terminate their employment. 

APS agency heads are responsible for managing workplace relations matters with their employees consistent with the provisions of the FW Act and for ensuring that their agency agreements and other instruments setting terms and conditions of employment are consistent with the Australian Government Employment Bargaining Framework (AGEBF). Many non-APS Commonwealth agencies are also subject to the requirements of the AGEBF. The AGEBF and accompanying Supporting Guidance is available of DEEWR’s website at http://www.workplace.gov.au/workplace/Organisation/Government/Federal/.

It is Australian government policy that terms and conditions of employment for non-Senior Executive Service (SES) employees be negotiated at the agency level in an enterprise agreement made under the FW Act, with such agreements to include flexibility terms which allow certain parts of the agreement to be varied by an individual flexibility agreement made between an employee and their agency. 

For SES employees and their equivalents, the Government’s policy is that terms and conditions of employment are set through individual arrangements (either common law arrangements or through a determination made under s.24(1) of the PS Act) or, where the majority of SES employees in an agency agree, though a (SES specific) enterprise agreement.

Some of the key features of APS employment include:

• Compliance with the APS Values and the APS Code of Conduct (ss.10 and 13 of the PS Act). All APS employees are bound by
  • The APS Values which describe the standards and outcomes that are necessary to maintain public confidence in the integrity of the public service and the professionalism of public servants (s.10 of the PS Act) and
  • The APS Code of Conduct which provides a clear statement to those within the APS, and the public, of the conduct and behaviour expected of APS employees (s.13 of the PS Act).
• Agency heads also have certain specific responsibilities in relation to upholding and promoting the APS Values and are bound by the Code of Conduct in the same way as APS employees (see s.12 and s.14 of the PS Act).
• Two categories of employment—ongoing and non-ongoing with the latter divided into specified term, specified task and irregular and intermittent (s.22 of the PS Act).
• An expectation that ongoing employment is the usual basis for engagement (s.22) and certain limits on the use of non-ongoing employment (regulations 3.4 and 3.5 sets the limits for non-ongoing engagement and regulation 3.6 the reasons for extension).
• A requirement that employment decisions be based on merit and that members of the community be given a reasonable opportunity to apply for employment in the APS. For engagement and promotion, jobs must be advertised in the APS Employment Gazette (APSjobs) and are often advertised in the press as well, with an assessment made of the relative suitability of the candidates (s.10 of the PS Act and chapters 4 and 6 of the Commissioner’s Directions).
• Possible use of Independent Selection Advisory Committees for selections which, in most cases, results in the selection decision not being subject to review (part 4 of the PS Regulations).
• A framework for movement within and between agencies on promotion or ‘transfer’ (i.e. movement at level).
• A general expectation that persons engaged as APS employees will be Australian citizens (although this can be waived by the agency head – s.22(8) of the PS Act). Note however that not being a citizen will not normally prevent persons being moved into the APS as a result of a machinery of government change.
• Compliance with the APS Classification structure—see the APS Classification Rules.
  • This is an 11 level structure involving APS 1-6, EL1 and EL 2 and three SES levels, with some agency specific and specialist classifications grouped with these 11 levels. Training and cadet classifications are also provided.
  • Broadbanding of classifications (for other than SES levels) is possible.
• Specific role for the Public Service Commissioner in relation to the Senior Executive Service (SES) staffing matters (ss.34-38 of PS Act and Chapter 6 of Commissioner’s Directions), including the requirement to
  • use the five core selection criteria in the assessment of applicants for SES vacancies and to notify all such vacancies in the APS Employment Gazette (APSjobs) and in appropriate external media, and
  • seek the Commissioner’s endorsement of selection and termination decisions, and of retirement with financial benefit.
    For detail on these matters, refer to The Senior Executive Service: Selection, mobility and separation, available at www.apsc.gov.au/publications01/ses.htm.
• The Public Service Commissioner also has a key role in the selection of APS agency heads and statutory office holders—see www.apsc.gov.au/publications08/meritandtransparency.pdf
• Termination of employment, with specified grounds applying to the termination of ongoing employees under s.29 of PS Act. There are six grounds set out in the Act (plus a provision which allows other grounds to be set by regulations). However, the degree of process that agencies establish around these grounds is up to them. There is no specific appeal right in the APS against termination although, like most other public and private sector employers, most termination decisions may be reviewed under the unfair dismissal or unlawful termination provisions set out in the FW Act.
• A requirement for agencies to establish procedures for determining whether an employee has breached the Code of Conduct (s.15(3) of the PS Act and Chapter 5 of the Commissioner’s Directions).
• Coverage by review of actions procedures—s.33 of the PS Act and Part 5 of the Regulations. Certain promotion decisions (for those below the Executive Level 1 classification) are subject to review while non-SES employees have the ability to seek a review of any action relating to their APS employment (there are some exceptions specified in the Regulations).
• Coverage by whistleblowing provisions and a requirement for agencies to establish whistleblowing procedures (s.16 of the PS Act and regulation 2.4)
• A requirement for agencies to establish a workplace diversity program (s.18 of the PS Act and Chapter 3 of the Commissioner’s Directions).
• Certain reporting obligations in addition to the agency’s annual report—most notably for the purposes of the Commissioner’s annual State of the Service Report and inclusion in the APS Employment Database (APSED).

Movement of staff into the APS

Section 72 of the PS Act provides the authority for the Public Service Commissioner to cease the employment of persons employed by a non-APS Commonwealth agency and engage these persons as APS employees in a specified APS agency in order to give effect to an administrative re-arrangement. 

The general principle that applies in these situations is that staff follow function with their employment status (ongoing or non-ongoing) being preserved. Normal rules relating to merit selection on engagement do not apply to engagements in these circumstances.

The engagement of any persons under these provisions as an ongoing APS employee, or as a non-ongoing APS employee engaged for a specified term of more than 12 months, or the duration of a specified task that is reasonably estimated to take more than 12 months, must be notified by the employing agency in the APS Employment Gazette (see regulation 3.12(c)).

In practice, the Commission consults with the agency or agencies concerned to identify the employees who are affected by the move and the Public Service Commissioner then makes a determination under s.72 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 agency will need to identify separately the ongoing and non-ongoing employees who are to be moved and provide the APS Commission with the name, AGS number, APS classification and commencing salary of these employees.
• The determination made by the Commissioner can determine any relevant conditions of engagement (e.g. probation) that are to apply to the employees who are moved, in cases where the condition applied prior to the move into the APS.

Remuneration and conditions of employment of transferred staff

The PS Act and Regulations also describe the arrangements that apply in relation to the remuneration and other conditions of employment of persons moved into the APS as a result of an administrative re-arrangement (s.72(5) and regulation 8.2). 

• In relation to moves into the APS, regulation 8.2 provides that the gaining agency head may make a s.24(1) determination to preserve the remuneration and some, or all, of the previous conditions of employment of the transferred employees.

Where the employer changes as a result of a move into the APS, the provisions of the FW Act relating to transfer of business may apply.

• Under the FW Act, where a transfer of business occurs, the industrial instruments that applied to the ‘old’ employer continue to apply to staff transferred to the ‘new’ employer until such time as the new employer enters into a new agreement that applies to that employee's employment.
• Whether or not existing industrial instruments will apply to a gaining agency or new employer in these circumstances will be determined on a case-by-case basis. As such, agencies involved should consult with their client contact in DEEWR to discuss the possible implications with respect to the agencies and employees involved.

Transitional provisions

The s.72 determination made by the Commissioner (or delegate) will give effect to the movement of existing employees. However, agencies will need to consider whether any additional transitional staffing and related provisions are necessary to facilitate the move. If such provisions are considered necessary, relevant provisions will need to be included in the legislation relating to the move. This should be discussed with the Commission at an early stage.

Australian Public Service Commission publications

The Commission’s publication Implementing Machinery of Government Changes, while primarily dealing with changes involving moves within the APS, has some useful information to assist agencies in the transition to APS employment. The publication includes a checklist for implementing MoG changes.  See www.apsc.gov.au/publications07/machineryofgovernment.pdf.

In addition, the Foundations of Governance in the Australian Public Service resource on the Commission’s website has useful information on the obligations, responsibilities and accountability requirements of APS agency heads and the financial management, employment and workplace relations frameworks that apply in the APS. See www.apsc.gov.au/foundations/.

Checklist for non-APS agencies moving into the APS

The following list provides some suggestions about matters agencies should consider as part of their move to the APS. Most of the matters listed will need to be addressed before formal movement to the APS, while others should be addressed as soon as possible after the move takes place.  

As the circumstances of such moves can vary considerably, these suggestions may not be relevant to all agencies in all cases. Agencies’ corporate areas can obtain further information from the Commission’s Employment Policy Adviceline—by phone on (02) 6202 3859 or e-mail employmentadvice@apsc.gov.au.  It may be appropriate for more complex or sensitive queries to be dealt with in writing. Individual employees should contact the corporate area in their own agency. 

• In the case of FMA Act agencies, liaise with Department of Finance and Deregulation (Finance) regarding application of FMA Act, FMA Regulations and FMA Orders. Key issues include delegations, appropriations, details in the Central Budget Management System (CBMS), accounts and records, financial reporting, banking and investment, relevant agency receipts, special accounts, Chief Executive’s instructions, and audit committees.
• In the case of CAC Act bodies with PS Act coverage, liaise with Finance regarding application of CAC Act provisions. 
• Liaise with Department of Education, Employment and Workplace Relations (DEEWR) regarding workplace relations issues. May also need to commence negotiations for new Enterprise Agreement—seek DEEWR guidance and see the Australian Government Employment Bargaining Framework and its accompanying Supporting Guidance available on the DEEWR website at www.workplace.gov.au/workplace/Organisation/Government/Federal/AgreementMaking/.
• Liaise with other agencies as necessary—including Comcare (compensation and related issues), and the National Archives of Australia (records management issues).
• Prepare s.72 determinations to move affected staff (s.72 of PS Act)—consult with Australian Public Service Commission.
• Make arrangements for appointment of agency head (possibly through transitional legislation). See also www.apsc.gov.au/publications08/meritandtransparency.pdf for the Government’s policy on merit-based selection of APS agency heads and APS statutory office holders.
• Prepare delegations under PS Act and other legislation.
• Make s.24 determinations for transferred staff (if necessary) (s.24 of PS Act)
• Make s.24 determinations for new staff (if necessary) (s.24 of PS Act).
• Allocate approved APS classification to each employee under clause 6 of the Public Service Classification Rules.
• Assign duties to each employee under s.25 of PS Act.
• Resolve any outstanding accommodation, information technology and communication issues arising out of the move into the APS.
• Establish Corporate plan, Business plan etc.
• Establish and issue Chief Executive’s instructions.
• Establish procedures for breaches of the APS Values (s.10 and 11 of PS Act), Code of Conduct (s.15(3) of PS Act), and whistleblowing protection ( s.16 of PS Act and reg 2.4 of Public Service Regulations).
• Ensure HR system can provide data to the APS Employment Database (APSED), current EEO data and information for the Commission’s annual State of the Service Report.
• Establish a Workplace Diversity program (s.18 of PS Act) and any procedures for special programs.
• Establish recruitment policies and procedures, including in relation to conditions of engagement deemed relevant by the agency (e.g. probation, health checks, security, citizenship).
• Establish induction program, staff development plan and other policies (e.g. underperformance, fitness for continued duty, loss of qualifications, reviews of actions, IT use, receipt of gifts and hospitality, harassment, OH&S).
• Provide details of an agency contact officer to the Commission’s mailing list administrator at mastermailinglist@apsc.gov.au—this will enable the administrator to contact an agency to verify data stored on the database.