Determination under subsection 24(3) – 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

The Determination introduces and relies on several defined concepts drawn directly from its text. A Moving Employee is a Senior Executive Service employee who has been or will be moved from a Losing Agency to a Gaining Agency under section 72(1)(a) of the Public Service Act 1999 to give effect to the Administrative Arrangements Orders of 18 September 2013 as amended on 3 October 2013. A Moving Aid Employee is a Senior Executive Service employee moved from AusAID to DFAT under the same section to give effect to the order of 17 October 2013 abolishing AusAID. The Losing Agency is the agency from which the employee is moved, and the Gaining Agency is the agency to which the employee is moved. For Moving Aid Employees, AusAID is expressly the Losing Agency and DFAT is the Gaining Agency.

The concept of terms and conditions of employment is central. Clause 6 preserves these in full, including remuneration, subject only to the substitution of references to the Losing Agency with references to the Gaining Agency. This substitution applies to any reference appearing in the preserved terms and conditions. The Determination also engages with the concept of enterprise agreements, which are addressed in clauses 4 and 5. An enterprise agreement that covers the employee and commences operation after the Determination takes effect will cause the Determination to cease applying to that employee. Prior to any such agreement, employees are not covered by other enterprise agreements.

Policies, guidelines and procedures are treated as a distinct concept in clause 8. These are instruments that applied to the employee in the Losing Agency and that are referred to in the preserved terms and conditions. They continue to apply in their current form unless incapable of meaningful operation due to the move, but they remain subordinate to the Determination in cases of inconsistency. The Determination itself is expressed to operate until replaced by another section 24(3) determination, revoked, or displaced by a section 24(1) determination, a common law agreement, an enterprise agreement or a further movement under sections 26 or 27 of the Public Service Act 1999.

The period of operation is defined by clauses 2, 3 and 4. The Determination takes effect on 18 September 2013 and remains in force until replaced or revoked, but it ceases for individual employees upon the occurrence of any of the events listed in clause 4. These concepts together ensure continuity of employment conditions during machinery of government changes while allowing for future instruments to supersede the Determination.

This Determination affects Senior Executive Service employees who are moved between APS agencies under section 72(1)(a) of the Public Service Act 1999 to implement the Administrative Arrangements Orders of 18 September 2013 as amended on 3 October 2013. It also affects Senior Executive Service employees moved from AusAID to DFAT under the order of 17 October 2013 that abolished AusAID as an Executive Agency. The employees are referred to as Moving Employees or Moving Aid Employees depending on the circumstances of their move.

The Determination directly affects the Losing Agency and the Gaining Agency. The Losing Agency is the agency from which the employee departs, and the Gaining Agency is the agency that receives the employee. For Moving Aid Employees, AusAID is the Losing Agency and DFAT is the Gaining Agency. Agency Heads of both the Losing Agency and the Gaining Agency are affected because they must apply the preserved terms and conditions with the required substitution of agency references. An Agency Head of a Gaining Agency may also make a supplementary determination under section 24(1) of the Public Service Act 1999 without inconsistency with this Determination.

The Determination affects the ongoing employment relationship by preserving pre-move terms and conditions. It ceases to affect an employee if the employee moves to an APS agency that is not the relevant Gaining Agency, whether by engagement under section 22(1) or by movement under section 26 or 27 of the Public Service Act 1999. It also ceases to affect an employee if an enterprise agreement covering the employee commences operation or if the employee and the Agency Head enter into a common law agreement expressed to replace the Determination. The instrument does not apply to employees who are not Senior Executive Service employees or who are not moved under the specific section 72(1)(a) determinations linked to the 2013 Administrative Arrangements Orders.

The Determination does not impose new duties on employees or agencies but preserves existing rights to terms and conditions of employment. Under clause 6, a Moving Employee or Moving Aid Employee has the right to the same terms and conditions, including remuneration, that would have applied if the relevant Administrative Arrangements Orders or the order abolishing AusAID had not been made. The only modification is the substitution of references to the Losing Agency with references to the Gaining Agency. This substitution creates a right for the employee to have all references in their preserved terms and conditions updated to the new agency without any reduction in entitlements.

Agency Heads have the right under clause 7 to make a determination under section 24(1) of the Public Service Act 1999 that supplements the terms and conditions preserved by clause 6. This right allows the Gaining Agency to address any matters that require clarification or addition following the move, provided the supplementary determination does not replace the Determination in its entirety. The Determination itself does not create duties for employees to perform particular tasks, but the preserved terms and conditions continue to govern the employment relationship, including any duties that were part of those terms before the move.

Clause 8 confers a limited right on employees to the continued application of policies, guidelines and procedures from the Losing Agency, provided those instruments are referred to in the preserved terms and conditions and remain capable of meaningful operation in the Gaining Agency. Where inconsistency arises, the Determination prevails, which protects the core preserved terms and conditions. Employees have no right under this Determination to coverage by enterprise agreements that were in force before the Determination took effect, as clause 5 expressly excludes such coverage.

The cessation provisions in clause 4 define the limits of these rights. An employee loses the protection of the preserved terms and conditions if any of the events in clause 4 occur, such as the commencement of an enterprise agreement or entry into a replacing common law agreement. Agency Heads have corresponding rights to initiate replacement instruments under section 24(1) or through common law agreements.

This Determination contains no provisions that impose penalties or create specific enforcement mechanisms. Compliance with the preserved terms and conditions is achieved through the continuing operation of the Public Service Act 1999, under which the Determination is made. If an Agency Head fails to apply the substitution of agency references required by clause 6, the employee may seek to enforce the preserved terms and conditions through the mechanisms available under the Public Service Act 1999 or through the Fair Work Act 2009 where an enterprise agreement is involved.

The Determination ceases to apply upon the occurrence of any event listed in clause 4, which provides a form of automatic enforcement by removing the instrument from the employment relationship. For example, once an enterprise agreement that covers the employee commences operation, the Determination no longer governs the terms and conditions. Similarly, if an Agency Head makes a section 24(1) determination expressed to replace this Determination, the new determination takes over without the need for further enforcement action.

Disputes about the application of clause 8, particularly where policies from the Losing Agency are claimed to be inconsistent with the Determination, would be resolved by reference to the express statement that the Determination prevails. The source text does not establish any penalty regime or designate a particular body for enforcement. Instead, enforcement occurs through the ordinary processes for determining and varying terms and conditions of APS employment, including the ability of Agency Heads to issue supplementary determinations under section 24(1).

This Determination interacts primarily with the Public Service Act 1999. It is made under subsection 24(3) and relies on movements effected under section 72(1)(a). It cross-references section 24(1) to allow supplementary determinations by Agency Heads. The cessation provisions in clause 4 engage sections 22(1), 26 and 27 of the Public Service Act 1999, which deal with engagement of APS employees and movement between agencies. The order abolishing AusAID is made under section 65 of the Public Service Act 1999, and the Determination expressly incorporates the consequences of that order for Moving Aid Employees.

The Determination also interacts with the framework for enterprise agreements. Clauses 4 and 5 refer to enterprise agreements that cover the employee. An enterprise agreement that commences operation after 18 September 2013 will displace the Determination for that employee. The Determination excludes coverage by enterprise agreements that were in operation before it took effect, thereby interacting with the bargaining and agreement-making provisions that apply to APS employees.

Clause 8 interacts with internal agency instruments by preserving policies, guidelines and procedures from the Losing Agency while subordinating them to the Determination in cases of inconsistency. These policies do not form part of the Determination itself. The Determination does not interact with or override the provisions in the related retrieval context concerning delegations under the Aged Care (Transitional Provisions) Act 1997 or the Australian Security Intelligence Organisation Act 1979, as those provisions address different subject matter and are not referenced in the Determination.

The instrument operates within the broader system of APS employment established by the Public Service Act 1999 and does not alter the definitions or interpretations contained in the Public Service Act 1922, which was the predecessor legislation. The substitution of agency references required by clause 6 must be applied consistently with any other legislative requirements that govern the content of terms and conditions for Senior Executive Service employees.

The source text does not record any amendments to the Determination itself since it was made. The Determination states in clauses 2 and 3 that it takes effect on 18 September 2013 and continues in force until replaced in its entirety by another determination under section 24(3) or until revoked. It has not been replaced or revoked according to the text provided. The underlying Administrative Arrangements Orders were amended on 3 October 2013, and the Determination expressly applies to those amended Orders. The additional application to the abolition of AusAID on 1 November 2013 is incorporated through clauses 1A and 1B, which were included to address that specific machinery of government change.

The absence of amendments to the Determination itself reflects its design as a transitional instrument intended to operate until displaced by later section 24(1) or section 24(3) determinations, common law agreements or enterprise agreements. Clause 4 provides the mechanisms by which the Determination ceases for individual employees, which allows for organic replacement without formal amendment of the Determination. The text indicates that the Determination will continue until one of the events in clause 3 or clause 4 occurs.

The inclusion of the AusAID to DFAT movement demonstrates that the Determination was updated at the time of drafting to cover subsequent orders made under section 65 of the Public Service Act 1999. No further changes are recorded in the source text, and the instrument remains available for application to any Senior Executive Service employee moved under the specified section 72(1)(a) determinations linked to the 2013 Orders.

The source text does not identify any court challenges or controversies concerning this Determination. No cases are named in the Determination or in the related retrieval context that would indicate litigation over its application. The instrument is framed as a machinery of government measure to preserve employment conditions during agency restructures, and its text contains no provisions that have been the subject of reported judicial consideration.

Potential areas of dispute could arise from the interaction between clause 6 and clause 8, particularly where a policy, guideline or procedure from the Losing Agency is claimed to be inconsistent with the substituted terms and conditions. In such cases, the express statement in clause 8 that the Determination prevails would determine the outcome. Disputes might also arise if an employee or Agency Head disagrees about whether a policy remains capable of meaningful operation in the Gaining Agency.

The cessation provisions in clause 4 could give rise to questions about when an enterprise agreement or common law agreement is expressed to replace the Determination in its entirety. The text requires that any replacing instrument be expressed in those terms, which provides a clear test but could lead to argument about the precise wording used in a subsequent agreement. The source text contains no record of such arguments having been resolved in court.

One gotcha is the requirement in clause 6 that references to the Losing Agency must be substituted with references to the Gaining Agency in all preserved terms and conditions. This substitution applies automatically and without exception, but it may affect references in policies, guidelines and procedures that are incorporated by reference under clause 8. If a policy refers to the Losing Agency in a way that cannot be meaningfully substituted, the policy may cease to apply under the exception in clause 8(a).

Another gotcha arises from the interaction between clause 4 and clause 5. An employee who becomes covered by an enterprise agreement that commences operation after 18 September 2013 loses the protection of the Determination, even if the enterprise agreement provides less favourable conditions in some respects. The Determination does not prevent the making of such an agreement, and once it commences, the preserved terms and conditions no longer apply.

Clause 8 creates a further gotcha because policies, guidelines and procedures from the Losing Agency do not form part of the Determination. This means they can be varied or revoked by the Gaining Agency without amending the Determination, provided the variation does not contradict the preserved terms and conditions. Where inconsistency exists, the Determination prevails, but the text does not specify a process for resolving borderline cases of inconsistency.

The cessation of the Determination upon movement to a non-Gaining Agency under clause 4(d) is a gotcha for employees who are subsequently moved again under sections 26 or 27 of the Public Service Act 1999. The new move ends the application of the preserved terms and conditions from the original 2013 restructure, and the employee must rely on whatever terms apply in the new agency.

To comply, Agency Heads of Gaining Agencies must apply the terms and conditions preserved by clause 6, including remuneration, with all references to the Losing Agency replaced by references to the Gaining Agency. This requires a review of the employee's pre-move employment contract, any applicable determinations under section 24(1) of the Public Service Act 1999, and any policies, guidelines and procedures referred to in those documents. The substitution must be implemented consistently across all documentation that governs the employment relationship.

Agency Heads should document the application of the substitution and retain records of the pre-move terms and conditions to demonstrate compliance. Where a policy, guideline or procedure from the Losing Agency cannot operate meaningfully in the Gaining Agency, the Agency Head should identify the specific provisions that are affected and confirm that the Determination continues to govern the core terms and conditions. Supplementary determinations under section 24(1) may be made to address gaps, but they must not be expressed to replace this Determination in its entirety if the intent is to preserve the operation of clause 6.

Employees should confirm with their Gaining Agency that the substitution of agency references has been applied to their terms and conditions. They should also be aware that the Determination will cease if they enter into a common law agreement expressed to replace it, if an enterprise agreement covering them commences operation, or if they move to an agency other than the Gaining Agency. Employees should review any new enterprise agreement to understand how it interacts with the preserved terms and conditions.

Compliance also requires monitoring for any replacement determination made under section 24(3) or any revocation of this Determination. Until such an event occurs, the terms preserved by clause 6 remain in force, subject only to the substitution and the possible application of supplementary section 24(1) determinations. Agencies should ensure that payroll and human resources systems reflect the substituted agency references to avoid inadvertent payment or condition errors.