Employee movement between APS agencies

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Overview

Section 26 of the Public Service Act 1999 (PS Act) allows an Agency Head to enter into a written agreement with an ongoing Australian Public Service (APS) employee in another agency to move the employee to their agency. This is commonly referred to in the APS as a section 26 transfer.

A section 26 transfer may be temporary or ongoing. The transfer occurs by written agreement between the ongoing employee and the relevant Agency Heads:

Prior to entering into a written agreement, the Agency Head should:

  • confirm whether the employee is still subject to any conditions of engagement including any conditions that have been waived and
  • determine whether there are any conditions of employment required for the role or agency.

For example, where there is a requirement to have a specific qualification to undertake a role, it would be advisable to seek confirmation that the employee holds the qualification prior to entering into a written agreement for a section 26 transfer. Further information on managing conditions of engagement is on the Conditions of Engagement page.

Section 26 transfers facilitate mobility across the APS. Mobility of APS employees across the APS is a key element of a future-fit APS that fosters diversity of thinking, the contestability of ideas and capability development. Further information on mobility is on the APS Mobility Framework page and current mobility opportunities are published on the APS mobility jobs board.

Section 46 of the Directions provides further detail on the operation of section 26 transfers. A section 26 transfer:

  • is available to ongoing APS employees, including ongoing APS employees engaged in a training classification
  • is not a promotion, but can be associated with one
  • is not considered an engagement under section 22 of the PS Act
  • may be deferred where an APS employee is alleged to have breached the APS Code of Conduct. Further information on handling employee movement in this circumstance is available on the Handling misconduct - a human resource manager's guide page.

Where the movement is not associated with a promotion, the date of effect for an ongoing section 26 transfer is by agreement between the two Agency Heads and the employee. If a date is not agreed, the employee movement will occur 4 weeks after the employee informs their current Agency Head in writing.

There are specific arrangements for the movement of employees between the Parliamentary Service and the APS, and the intelligence agencies and the APS. Further information is on the Movement between the Commonwealth and the APS webpage.

In some circumstances, a movement between agencies may be cancelled. Further information on cancelling a move prior to it taking effect is on the Cancelling Employment Decisions page.

New agency becomes the employer

When an APS employee moves to a new agency under section 26 of the PS Act, the new agency becomes their employer, even if the move is on a temporary basis. The employee is covered by the new agency’s terms and conditions (for the term of the transfer), and their accrued leave entitlements and service history will be transferred to the new agency, subject to any requirements in the agency’s employment instrument.

APS employees may be moved between APS agencies at the direction of the Australian Public Service Commissioner (the Commissioner) under sections 27 and 72 of the PS Act. For more information refer to the compulsory transfer section on this page. 

Temporary section 26 transfers

Section 46 of the Directions provides that a temporary move requires the written agreement of the ongoing APS employee, the Agency Head of the original agency, and the Agency Head of the new agency. The date of effect of the move and duration must be agreed to by all parties in the written agreement.

The Directions do not prescribe minimum or maximum terms for a temporary move.

At the end of the term of the transfer, the employee will return to the original agency unless:

  • an extension has been agreed in accordance with section 46(3) of the Directions
  • an ongoing move to the agency or another agency, is agreed or
  • the employee resigns.

Where the original agency does not agree to the temporary transfer, but the employee commences duties at the new agency, the move will be considered ongoing as outlined in subsection 46(2)(b)(ii) of the Directions. If the employee has not commenced duties, the new agency and the employee may decide not to proceed with the move.

Further information on varying or cancelling a temporary move is on the Cancelling Employment Decisions page. Further information on the resignation of an APS employee while on a temporary move is on the Resignation page.

Moves between agencies on promotion

Promotion in the APS is defined in section 6 of the Directions, which specifies that a promotion is the ongoing assignment of duties to an ongoing employee at a higher classification. Importantly, a promotion is not considered a new engagement under section 22 of the PS Act, which is reserved for engaging individuals who are external to the APS.

Where an ongoing APS employee accepts a promotion in another agency, the employee will:

  • permanently transfer to the new agency in accordance with section 26 of the PS Act and
  • be assigned duties at a higher level in accordance with section 25 of the PS Act and Subdivision B of the Directions.

The date of effect for the promotion will be in accordance with section 42 of the Directions.

Further information on the engagement or promotion of an APS employee is on the Merit Principle and Promotions pages.

Moves between agencies to a lower classification

Permanent Movement

An employee may make a request for an ongoing reduction in classification to facilitate their permanent movement to another APS agency where the new role is at a lower classification level than their current classification.

Where a permanent movement to a lower classification occurs at the employee’s request, the permanent movement will be a reduction in classification. In this circumstance, the reduction in classification should be facilitated by the gaining agency and is usually undertaken in conjunction with a movement in accordance with section 26 of the PS Act.

A reduction in classification is permanent and the employee remains at that the reduced classification unless they are subsequently promoted through a merit-based selection process. Agencies should ensure that employees fully understand the impact of accepting a reduction in classification in these circumstances before proceeding.

Temporary Movement

An employee may seek to undertake a temporary opportunity at another agency that is at a lower classification level. If an employee moves to a lower classification at another agency on a temporary basis, this is effected through a temporary movement under section 26 of the PS Act and a temporary assignment of duties at the lower level by the gaining agency under section 25 of the PS Act.

The temporary movement between agencies would occur at the employee’s substantive classification and the gaining agency would action an assignment of duties at the lower classification effective from the day the employee commences with them. In practice both of these actions occur at the same time and all parties should understand the impact of the temporary movement before proceeding.

Where an employee is temporarily assigned duties at a lower classification under section 25 of the PS Act this is not a reduction of the employee to the lower classification level and the higher classification remains the employee’s substantive classification. On cessation of the temporary assignment period the employee will return to duties at their substantive classification at their home agency.

An employee who is temporarily assigned duties at a lower classification level will receive the salary determined in accordance with the applicable industrial instrument such as an Enterprise Agreement, a determination made by an Agency Head under section 24 of the PS Act (that determines the terms and conditions of employment of employment applying to an APS employee or APS employees in an agency) or a contract of employment. This means that the employee will continue to receive salary at their substantive classification, unless a provision in an industrial instrument enables payment at the lower temporary classification.

Further information on movements to a lower classification is available on the Assignment of Duties within an APS agency webpage.

Moves to another agency while on temporary transfer

Accepting an ongoing offer in another agency while on a temporary transfer

Where an employee who is on a temporary transfer accepts an ongoing role at level in another agency, a new section 26 transfer takes place. The transfer will take effect in accordance with subsection 46(2) of the Directions as follows:

  • on the agreed date of effect. The agreed date of effect requires agreement from the Agency Head of the agency the employee is moving to, the Agency Head of the agency the employee is currently working for (the employer) and the employee or
  • if a date of effect has not been agreed—4 weeks after the APS employee informs the employer in writing.

It is expected that the employer and the employee notify the original agency of the employee’s acceptance of an ongoing move to the new agency.

Example

Sarah is an ongoing APS employee on a temporary transfer at the Department of Finance (current employer). Prior to the transfer, Sarah was working at the Department of Health (original agency). During Sarah’s time with the Department of Finance, she secured an ongoing position at the Department of Social Services.

To gain agreement for the date of effect of the ongoing move, the two Agency Heads in this instance are the Secretaries (or their delegates) of the Department of Finance and the Department of Social Services. If a date of effect is not agreed between the Agency Heads, Sarah will need to inform the Agency Head of the Department of Finance of her move date, which would then occur 4 weeks following written notice.

It is expected that Sarah and Department of Finance inform the Department of Health of the ongoing move as she will no longer be returning to the Department of Health.

Promotion at another agency while on a temporary transfer

Where an ongoing APS employee who is on a temporary transfer accepts a promotion in another agency, the employee will permanently transfer to the new agency in accordance with section 26 of the PS Act and the promotion decision will take effect in accordance with section 42 of the Directions.

The agreement for the date of effect will be between the employee, the Agency Head offering the promotion (new agency) and the Agency Head of the agency the employee is currently working.

It is expected that the employee and the new agency notifies both the original and the current agency of the employee’s intended ongoing move. Further information on enacting a promotion is on the Promotions page.

Written offers of transfer

The PS Act, Public Service Regulations 2023 and the Directions do not prescribe what must be included in a letter of offer for a section 26 transfer (at level or below). Agencies may consider what to include in a written offer on a case by case basis, but should as a minimum include:

  • the employee name
  • the title and duties of the position
  • the classification level
  • the employee’s pay on commencement
  • the agency name
  • date of effect
  • any relevant agency policies.

Agencies are encouraged to confirm whether the employee transferring has met all conditions of their engagement prior to agreeing to a section 26 transfer. If a condition of engagement has not been met, the receiving agency needs to decide whether or not to proceed with the transfer.

Agencies may also need to confirm whether a condition of engagement has been waived, or if conditions of engagement are still outstanding, for example Australian citizenship. Where conditions of engagement have been waived or are outstanding, the agency will need to decide:

  • whether to proceed with the transfer and
  • if the employee will remain subject to the conditions of engagement.

Where the agency decides that the employee will remain subject to the original conditions of engagement, they should make it clear to the employee in the written offer of transfer that they will remain subject to the conditions of engagement, and their employment can be ended by the new agency if the condition is not met. Further information on managing conditions of engagement is on the Conditions of Engagement page.

Compulsory transfer

Excess employees

Section 27 of the PS Act allows the Commissioner to move an APS employee to another APS agency without anyone’s consent, where the employee is excess to requirements and the Agency Head has notified the Commissioner.

Consultation, redundancy and redeployment arrangements for employees identified as excess to requirements in an Agency are outlined in an agency’s employment instrument.

Machinery of government

Subsection 72(1)(a) of the PS Act allows the Commissioner to move an APS employee to another APS agency without anyone’s consent to give effect to an administrative re-arrangement, often referred to as a machinery of government change. Further information is in the Machinery of Government changes – A guide for entities publication on the Machinery of Government (MoG) page or the Department of Finance website.

Further information

HR practitioners seeking more information on the movement of ongoing APS employees between APS agencies can contact the Employment Policy team via employmentpolicy@apsc.gov.au or call the advice line on (02) 6202 3857.

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