Home Affairs Non-SES Moving Employees Determination 2017

The Determination is built around a small number of defined concepts and structural rules. The core definitional concept is “Moving Employee” (cl 3(e)). A Moving Employee is an APS employee, not an SES employee, moved from one of four source agencies (AGD, DIRD, PM&C, DSS) to the Department of Home Affairs by a determination under paragraph 72(1)(a) of the Public Service Act 1999 (cl 3(a)-(e), cl 3(e)). The Determination then creates named subcategories: Moving AGD Employee, Moving DIRD Employee, Moving DSS Employee and Moving PM&C Employee (cl 3(a)-(d). These definitions determine which enterprise agreement will furnish the operative terms and conditions while the Determination applies (cl 5.1).

“Terms and conditions of employment” in the Determination expressly include remuneration (cl 5.1 introduction). The instrument makes those terms temporally bounded: for the period prior to 8 February 2018, the source-agency enterprise agreement terms (including the specific AGD undertaking attached to decision [2017] FWCA 613 for AGD employees) are carried across, with references to the original agency substituted with references to the Department of Home Affairs (cl 5.1(a)-(d)). The substitution mechanism is mechanical: any reference in the source terms to the source agency is replaced with a reference to the Department of Home Affairs (cl 5.1, last line).

A second key concept is the relationship between the Determination and other instruments. Clause 5.2 differentiates between enterprise agreement terms and policies, guidelines and procedures: policies continue to apply in their current form except where they cannot meaningfully operate because of the move, but they do not form part of the Determination and the Determination prevails in any inconsistency (cl 5.2(a)-(b)). Clause 5.3 establishes a temporary hierarchy for the relevant employees: while the clause 5.1 terms apply they operate instead of any other enterprise agreement, the Australian Public Service Enterprise Award 2015, and annual salary items prescribed by subregulation 8.1(2) of the Public Service Regulations 1999 (cl 5.3).

Temporal staging is a third core idea. The Determination commences on the day after registration (cl 2.1), is intended to remain in force until displaced by a new FWC Workplace Determination for the Department of Home Affairs (cl 2.2), and carries a specific internal transition date of 8 February 2018 (cl 6.1-6.2). On 8 February 2018, all Moving Employees except those from AGD will move to the prevailing Home Affairs enterprise agreement and cease to be covered by this Determination (cl 6.1). Moving AGD Employees will also become subject to the prevailing Home Affairs enterprise agreement on that date, but the Determination preserves their salary as at 7 February 2018 (cl 6.2).

Finally, the Determination recognises continuing agency-level discretion. Clause 7.1 states that an Agency Head may make a determination under subsection 24(1) of the Public Service Act 1999 that supplements the terms and conditions applied by this Determination, and that such a determination is not inconsistent with this Determination. That creates an authorised route for agency-level variation or supplementation while the instrument is in operation (cl 7.1).

These concepts together produce a temporal, hierarchical mapping of industrial terms for a defined cohort of non‑SES staff moved into Home Affairs, with specific savings, substitution mechanics and an authorised path for agency supplementation.

Primary cohort: The Determination applies to non‑SES Australian Public Service employees who are moved, by determination under paragraph 72(1)(a) of the Public Service Act 1999, from any one of these four agencies to the Department of Home Affairs: Attorney‑General’s Department, Department of Infrastructure and Regional Development, Department of Social Services, and Department of the Prime Minister and Cabinet (cl 3(a)-(e); cl 4.1). The instrument explicitly excludes SES employees (see the definition “Moving Employee means an APS employee (other than an SES employee)” at cl 3(e)).

Labelled subsets: The Determination identifies four sub‑sets by immediately prior employer: Moving AGD Employee, Moving DIRD Employee, Moving DSS Employee and Moving PM&C Employee (cl 3(a)-(d)). The sub‑sets determine which source enterprise agreement’s terms will be carried over while the Determination applies (cl 5.1).

Temporal scope and cessation: Coverage is not permanent. The Determination ceases to apply to an employee if the employee ceases to be employed in the Department of Home Affairs, or if they are promoted to a different position in the Department of Home Affairs (cl 4.2(a)-(b)). This creates a concrete condition: continued application depends on continued employment at the Department of Home Affairs in the same position. Any promotion to a different position within Home Affairs is therefore a trigger that removes the employee from the Determination’s coverage (cl 4.2(b)).

Transition on 8 February 2018: The instrument alters coverage on a fixed date. On 8 February 2018, all Moving Employees other than Moving AGD Employees will become subject to the prevailing enterprise agreement in the Department of Home Affairs, and the Determination will cease to apply to those employees (cl 6.1). Moving AGD Employees will also become subject to the prevailing Home Affairs enterprise agreement on 8 February 2018, but will retain the salary that applied to them on 7 February 2018 (cl 6.2). The practical effect is that only up to 7 February 2018 do the source-agency enterprise agreement terms apply in full to the Moving AGD cohort with salary protection administered on 8 February 2018 thereafter.

Replacement by a Fair Work Commission workplace determination: The Determination as a whole will remain in effect until a new Workplace Determination by the Fair Work Commission for the Department of Home Affairs comes into operation (cl 2.2). That external instrument, when it comes into force, will displace this Determination. The Determination therefore affects employees only so long as it remains in force, which could be shorter than the AGD‑salary protection timeline for particular individuals if a new FWC Workplace Determination is implemented before 8 February 2018, although the text ties the Determination’s end explicitly to the FWC instrument (cl 2.2).

Agency discretion and supplementation: Agency Heads retain a pathway to alter or supplement the terms by subsection 24(1) determinations (cl 7.1), which means that affected employees may have additional, agency‑level determinations applied to them while the Ministerial Determination operates.

In short, the Determination directly affects a defined set of non‑SES employees moved to Home Affairs from the four named source agencies, governs their industrial terms for a temporary period, and removes coverage on promotion or resignation and at specified transition and replacement events (cl 3, cl 4.2, cl 6, cl 2.2).

The Determination itself primarily allocates entitlements and prescribes which industrial instrument supplies the operative terms; it does not create novel statutory criminal offences or enumerated employee duties. The key rights and duties observable within the text are administrative and contractual in nature.

Rights preserved from source agency agreements

• Continuity of previous enterprise agreement terms, including remuneration, is a right expressly conferred for the period prior to 8 February 2018: Moving AGD Employees are to have the terms in the Attorney‑General’s Department Enterprise Agreement 2016 (including the undertaking dated 27 January 2017 attached to decision [2017] FWCA 613); Moving DIRD Employees the Department of Infrastructure and Regional Development Enterprise Agreement 2016; Moving DSS Employees the Department of Social Services Enterprise Agreement 2015 to 2018; and Moving PM&C Employees the Department of the Prime Minister and Cabinet Enterprise Agreement 2017-2020 (cl 5.1(a)-(d)). The Determination substitutes references to the source agencies with references to the Department of Home Affairs so that the source EA terms operate in the new employer context (cl 5.1 last sentence).

• For Moving AGD Employees there is an express salary protection right: although on 8 February 2018 they will come under the prevailing Home Affairs enterprise agreement, they will retain the salary that applied to them on 7 February 2018 (cl 6.2).

Rights and primacy over other instruments

• While the clause 5.1 terms apply, they operate instead of any other enterprise agreement, the Australian Public Service Enterprise Award 2015, and any annual salary prescribed by subregulation 8.1(2) of the Public Service Regulations 1999 (cl 5.3). This establishes a temporary hierarchy that protects the source-agency entitlements against other industrial instruments and specified salary regulations for the covered employees during the relevant period.

Policy continuation with limitation

• Policies, guidelines and procedures that are referred to in the source terms will continue to apply to Moving Employees in their current form, except to the extent that a policy, guideline or procedure is not capable of meaningful operation because of the movement (cl 5.2(a)). Those policies do not form part of the Determination and the Determination prevails over any inconsistency (cl 5.2(b)). This preserves access to supporting operational instruments, but limits their effect where the movement makes them inoperable.

Duties arising from continued employment status

• The Determination’s coverage depends on the employee remaining employed in the Department of Home Affairs and in the same position; the Determination ceases to apply if the employee ceases to be employed at Home Affairs or is promoted to a different position in Home Affairs (cl 4.2). Those conditions place an administrative duty on employing managers and HR to monitor status changes that affect coverage.

Agency Head discretion to supplement

• Clause 7.1 enables an Agency Head to make a determination under subsection 24(1) of the Public Service Act that supplements the Determination’s terms. That is framed as not inconsistent with the Determination, and therefore permits agency-level augmentation of conditions that apply to employees, subject to the limits of the Public Service Act itself.

Absence of express statutory enforcement mechanisms and individual procedural rights

• The Determination does not itself create a set of statutory enforcement procedures, internal appeal rights or penalties. It is an industrial mapping instrument: it prescribes which terms apply and their interaction with other instruments (cl 5.2, cl 5.3), and it ties its own expiry to a Fair Work Commission workplace determination (cl 2.2). Any enforcement of entitlements under the enterprise agreements or related policies will therefore arise under the normal industrial and administrative channels applicable to those instruments, not via new enforcement provisions in this Determination.

In sum, the Determination confers continuation and primacy rights to source-agreement entitlements (including pay), conditions their continuation on employment status in Home Affairs, allows agency‑level supplementation, and establishes a temporal endpoint for the instrument’s operation, while not adding an express statutory enforcement regime within the Determination itself (cl 5.1-5.3; cl 4.2; cl 7.1; cl 2.2).

The Determination does not set out penalties, pecuniary sanctions or a specialised enforcement regime within its text. It is an instrument that prescribes applicable terms and conditions and the hierarchy of instruments; enforcement of those terms remains within the ordinary administrative and industrial frameworks applicable to enterprise agreements and public service employment.

Textual observations about enforcement and practical consequences:

• No contraventions or offences are specified. The Determination focuses on which terms and conditions apply to a defined cohort, precedence over other instruments (cl 5.3), and the temporal limits of the Determination (cl 2.1-2.2; cl 6.1-6.2). There is no clause creating penalties for non‑compliance with the Determination itself.

• The Determination expressly states that policies, guidelines and procedures “do not form part of this Determination and this Determination prevails over any policies, guidelines or procedures to the extent of any inconsistency” (cl 5.2(b)). That is an internal hierarchy statement that gives the Determination precedence over contradictory policies, but it does not provide a statutory enforcement mechanism; rather, it gives clear instruction to the Department of Home Affairs that its administrative instruments must yield where inconsistent.

• Clause 5.3 declares that the clause 5.1 terms apply instead of any other enterprise agreement, the Australian Public Service Enterprise Award 2015, and any annual salary prescribed by subregulation 8.1(2) of the Public Service Regulations 1999. The practical effect is that payroll, human resources and industrial relations teams must apply the preserved terms in preference to those other instruments for covered employees. Failure by the employer to do so would be an administrative breach of the Determination and could give rise to claims under the relevant industrial instruments or under public service employment law processes. The Determination itself, however, does not set out the remedies nor the forum for those claims; the usual industrial channels applying to enterprise agreements and public service law would be the pathway for enforcement.

• The Determination is explicitly tied to the Fair Work Commission by reference to a future workplace determination: it will remain in effect until a new Workplace Determination, made by the Fair Work Commission, comes into operation in the Department of Home Affairs (cl 2.2). The Determination therefore anticipates that the incoming Fair Work Commission instrument will re‑order applicable industrial arrangements and that disputes or legal questions about enterprise agreement terms are ultimately within the FWC’s sphere of workplace regulation. The Determination, however, does not itself prescribe how disputes about the Determination’s own application are to be litigated or arbitrated.

• Agency-level supplementation under cl 7.1: an Agency Head may make a determination under subsection 24(1) of the Public Service Act 1999 that supplements the terms applied by this Determination. Such supplementary determinations must be lawfully made under the Public Service Act; any challenge to a supplementary determination’s legality would proceed under the usual administrative law and public service mechanisms (cl 7.1).

Practical enforcement implication: compliance is administrative and industrial rather than punitive within the Determination. Departments and their industrial relations and payroll units are the operational enforcers. If an employer fails to apply the preserved terms, affected employees’ remedies must be sought under the enterprise agreements, industrial law or public service employment mechanisms; the Determination itself is an authoritative statement of which terms should have been applied while in force (cl 5.1-5.3; cl 2.2).

The Determination is expressly made under subsection 24(3) of the Public Service Act 1999 and refers to movements effected by determinations under paragraph 72(1)(a) of the same Act (preamble; cl 3(e)). It therefore situates itself as an instrument created within the Public Service Act framework.

Direct interactions specified in the text:

• Substitution and primacy over other industrial instruments: Clause 5.3 states that the terms and conditions set out in clause 5.1 apply instead of (a) any other enterprise agreement; (b) the Australian Public Service Enterprise Award 2015; and (c) any annual salary prescribed by subregulation 8.1(2) of the Public Service Regulations 1999. That is an explicit cross‑instrument hierarchy: while the clause 5.1 terms apply to a Moving Employee, those other instruments do not operate to supply terms (cl 5.3). The Determination therefore temporarily displaces relevant provisions of the APS Award and certain prescribed salary rules in the Public Service Regulations for the covered employees.

• Relationship to Fair Work Commission workplace determination: Clause 2.2 ties the Determination’s overall duration to the point at which a new Fair Work Commission Workplace Determination for the Department of Home Affairs comes into operation. The Determination will remain in effect until that event occurs, at which point the Fair Work Commission workplace determination will operate instead. This creates a sequential interaction between the Ministerial Determination and any later Fair Work Commission instrument (cl 2.2).

• Interaction with source enterprise agreements: For the pre‑8 February 2018 period, the Determination imports the terms of the source enterprise agreements (AGD, DIRD, DSS, PM&C) and applies them in the Home Affairs context by replacing references to the source agency with references to the Department of Home Affairs (cl 5.1). The Determination therefore temporarily establishes a cross‑jurisdictional application of enterprise agreement terms from one agency to another within the APS industrial architecture.

• Agency head determinations under subsection 24(1): Clause 7.1 permits Agency Heads to make determinations under subsection 24(1) of the Public Service Act 1999 that supplement the terms applied by this Determination. That means the Determination coexists with, and may be supplemented by, lawful subsection 24(1) determinations at the agency level (cl 7.1). Supplementary determinations must nonetheless operate within the Public Service Act framework.

• Policies, guidelines and procedures: Clause 5.2 preserves policies, guidelines and procedures referred to in the source terms, but makes clear they “do not form part of this Determination” and that the Determination “prevails over any policies, guidelines or procedures to the extent of any inconsistency” (cl 5.2(b)). This establishes an internal primacy rule between this Determination and the operational instruments which support enterprise agreements.

Limits to interaction:

• The Determination does not itself purport to amend or suspend other statutory regimes beyond those expressly mentioned (the APS Award and the specific subregulation mentioned at cl 5.3). It does not declare that other laws outside the Public Service Act, enterprise agreement framework or the specified regulations are suspended or altered.

• The Determination does not create a new regulatory enforcement regime nor does it invoke criminal sanctions; enforcement and remedy mechanisms remain those ordinarily associated with enterprise agreements, public service employment law and the Fair Work Act processes where applicable.

Net effect in legal architecture:

• Temporarily, for the Moving Employees covered and while clause 5.1 terms apply, the Determination superimposes source-agency enterprise agreement terms in the Home Affairs employment context, displacing the normal operation of other enterprise agreements, the APS Award, and certain salary regulation prescriptions for those employees (cl 5.1, cl 5.3).

• On 8 February 2018 the Determination anticipates that most of the cohort will transition to the prevailing Home Affairs enterprise agreement, and the Determination’s primacy will end for those employees; the Determination itself is also to remain until a Fair Work Commission workplace determination for Home Affairs comes into operation (cl 6.1, cl 6.2, cl 2.2).

All cross‑instrument effects and hierarchical statements are explicitly set out in the Determination text; there are no other statutory interactions articulated in the instrument.

The text of the Determination provides the date it was signed (13 December 2017) and its effectivity rule (it “takes effect on and from the start of the day after registration” (cl 2.1)). The Determination states its intended duration in two ways: (1) it contains a fixed internal transition date of 8 February 2018 for moving employees to be brought onto the Department of Home Affairs prevailing enterprise agreement (cl 6.1-6.2); and (2) it remains in force until a new Fair Work Commission Workplace Determination for the Department of Home Affairs comes into operation (cl 2.2).

The instrument does not contain any recorded amendments within the text supplied. There are no amendment clauses, no schedules showing amendments, and no later dates or variations included in the provided document. The only modulating provisions are the transition and expiry mechanisms already noted (cl 6.1-6.2; cl 2.2).

Practical reading of lifecycle features:

• Commencement: the Determination commences the day after registration (cl 2.1). The text does not provide the registration date, only the signature date (13 December 2017). The signature and the commencement rule together indicate immediate operational effect upon registration.

• Sunset triggers: two separate triggers are built in. The first is the internal transition date of 8 February 2018, which changes the operative enterprise agreement coverage for the Moving Employees (cl 6.1-6.2). The second is replacement by a Fair Work Commission Workplace Determination for the Department of Home Affairs (cl 2.2), an external instrument which, when it comes into effect, will end this Determination’s operation.

• No textual subsequent amendments or revocations appear in the supplied text. The Determination does not record earlier versions or prior determinations on the same subject in the provided excerpt.

If later amendments were to have been made after the signature date, they are not contained in the supplied document. The Determination as supplied should be treated as the operative instrument with the lifecycle features described above (commencement, internal transition date and replacement by a Fair Work Commission workplace determination) until such time as a formal amendment or replacement is recorded.

The Determination itself does not record litigation concerning its validity, operation or enforcement. The only reference in the instrument to an external decision is a specific inclusion within the description of the AGD source enterprise agreement: clause 5.1(a) states that the terms and conditions applicable to a Moving AGD Employee shall be the terms contained in the Attorney‑General’s Department Enterprise Agreement 2016, “including the undertaking dated 27 January 2017 attached to decision [2017] FWCA 613” (cl 5.1(a)). That is the only named decision or tribunal reference contained in the Determination.

Practical implications of the single tribunal reference:

• The Determination incorporates into the applicable AGD terms an undertaking attached to a Fair Work Commission decision identified as [2017] FWCA 613 (cl 5.1(a)). The Determination therefore imports not only the written enterprise agreement terms but that specific undertaking as part of the AGD package of terms to be applied to Moving AGD Employees while the Determination operates.

• Outside that incorporation, the Determination does not cite any litigation involving the Determination itself, nor does it record any judicial review, challenge, or arbitration specific to the Determination in the text supplied.

Consequently, a search for litigation history beyond the single decision referenced in cl 5.1(a) would require sources outside the Determination text. Within the Determination as supplied, litigation history is limited to the AGD enterprise agreement reference to the Fair Work Commission decision quoted by number.

Several concrete operational and legal pitfalls arise from reading the Determination’s terms and mechanics; these are matters that departments, HR, payroll and industrial relations practitioners should flag and manage.

1. Temporary displacement of other instruments is specific and partial (cl 5.3).

• While clause 5.1 terms apply, they “apply instead of” any other enterprise agreement, the Australian Public Service Enterprise Award 2015, and any annual salary prescribed by subregulation 8.1(2) of the Public Service Regulations 1999 (cl 5.3). If payroll or HR teams fail to apply that displacement correctly they may inadvertently apply award rates or other enterprise agreement entitlements that the Determination displaces. The displacement is instrument‑specific and applies only to the cohort covered.

2. Name substitution can mask contextual inconsistencies (cl 5.1).

• The Determination substitutes references to the source agency with references to the Department of Home Affairs in the carried-over enterprise agreement terms (cl 5.1). Source-agency enterprise agreements and their policies may be structured around agency‑specific organisational arrangements, allowances, security arrangements or locality‑based provisions. Mechanical substitution of the employer name can create clauses that are incoherent unless critically reviewed. Clause 5.2 recognises this by permitting policies to continue “except to the extent that a policy, guideline or procedure is not capable of meaningful operation because of the movement” (cl 5.2(a)), but this requires an administrative assessment. Failing to identify inoperable clauses risks misapplication of entitlements.

3. Policies and procedures continue but are not part of the Determination (cl 5.2).

• Policies, guidelines and procedures will continue to apply “in their current form” unless inoperable (cl 5.2(a)). However they “do not form part of this Determination” and the Determination prevails to the extent of inconsistency (cl 5.2(b)). Practically that means HR must maintain copies of source policies relevant to Moving Employees, assess their ongoing operation, and document any inconsistencies, because the Determination will preempt those policies where inconsistent. That status distinction matters when advising employees about their rights.

4. Promotion within Home Affairs removes coverage (cl 4.2).

• The Determination ceases to apply if the employee is promoted to a different position in the Department of Home Affairs (cl 4.2(b)). That is an operational trigger that requires HR and managers to review whether a promotion event will change the employee’s industrial coverage immediately. It is not a delayed transition; promotion is a categorical cessation of coverage under this instrument.

5. Salary protection for AGD cohort limited to pay‑rate preservation, not other terms (cl 6.2).

• Moving AGD Employees will “retain the salary that applied to them on 7 February 2018” when they become subject to the prevailing Home Affairs enterprise agreement on 8 February 2018 (cl 6.2). The text preserves the salary but does not say it preserves other AGD-specific terms beyond 8 February 2018. Practitioners should not assume comprehensive preservation of all AGD conditions past 8 February 2018; only the salary preservation is explicit.

6. Two separate end‑points require careful sequencing (cl 6, cl 2.2).

• The Determination has an internal transition date (8 February 2018) and a separate sunset event tied to a Fair Work Commission workplace determination (cl 6.1-6.2; cl 2.2). The internal transition reassigns most Moving Employees to the prevailing Home Affairs enterprise agreement. The Determination as a whole, however, remains in force until the FWC Workplace Determination takes effect (cl 2.2). Confusion can arise if practice treats the 8 February internal transition as the determinant of the Determination’s expiry; administratively the two events are distinct.

7. Agency Head determinations can layer terms (cl 7.1).

• Clause 7.1 authorises Agency Heads to make determinations under subsection 24(1) of the Public Service Act 1999 that supplement terms applied by this Determination. That can create multiple layers of applicable determinations and requires careful tracking to ensure that supplementary determinations do not conflict with the Ministerial Determination or exceed the Agency Head’s statutory powers.

8. No express enforcement clause in the Determination itself.

• The instrument contains no new enforcement procedures or penalties. If disputes arise about the Determination’s operation, remedial pathways will be those applicable to enterprise agreements, public service employment law and the Fair Work framework , not a bespoke enforcement mechanism in the Determination.

9. Reference to FWCA decision may carry supplementary obligations for AGD employees (cl 5.1(a)).

• The inclusion of the AGD undertaking attached to decision [2017] FWCA 613 into the AGD terms carried across (cl 5.1(a)) means that pausing or ignoring that undertaking could leave employers exposed to claims that the incorporated undertaking was not applied. Practitioners must identify and apply any obligations contained in that undertaking.

10. Detail gaps: registration date and administrative steps are not specified in the text.

• The Determination states it takes effect “on and from the start of the day after registration” (cl 2.1), but the document as supplied does not state the registration date. Administrative practice must therefore confirm the registration date and ensure alignment with payroll, HR and entitlements.

These “gotchas” are concrete points where the Determination’s limited text requires administrative judgement and careful sequencing. Each involves a rule stated in the Determination (cl 2.1; cl 4.2; cl 5.1-5.3; cl 6.1-6.2; cl 7.1) and practical follow‑through by HR, payroll, legal and industrial relations teams.

Compliance under this Determination is administrative and contractual. The Determination specifies which terms apply to which employees, and the employer (Department of Home Affairs) is the operational actor responsible for applying those terms. The following steps, tied to the relevant clauses, form a practical compliance checklist for HR, payroll, legal and industrial relations units.

1. Confirm registration and commencement (cl 2.1).

• Verify the Determination’s registration date and confirm that the Determination took effect “on and from the start of the day after registration” (cl 2.1). Document the registration date and confirm the first day of operation for record‑keeping and payroll timelines.

2. Identify the covered cohort precisely (cl 3, cl 4.1).

• Produce a definitive list of Moving Employees by immediately prior employing agency (AGD, DIRD, DSS, PM&C) and confirm they were moved by a determination under paragraph 72(1)(a) of the Public Service Act 1999 (cl 3(e)). Exclude SES employees. Ensure personnel records reflect the “Moving” status.

3. Map source enterprise agreement entitlements to individual employees (cl 5.1).

• For each Moving Employee, identify the relevant source enterprise agreement: AGD Enterprise Agreement 2016 (including the undertaking dated 27 January 2017 attached to decision [2017] FWCA 613) for AGD staff; DIRD Enterprise Agreement 2016 for DIRD staff; DSS Enterprise Agreement 2015-2018 for DSS staff; and PM&C Enterprise Agreement 2017-2020 for PM&C staff (cl 5.1(a)-(d). Map each employee’s applicable classification, allowances, leave entitlements, remuneration rates and any other contractually relevant items drawn from their source agreement.

4. Apply substitution of employer references where necessary (cl 5.1).

• When applying the source-agreement terms, replace references to the source agency with references to the Department of Home Affairs as the Determination requires (cl 5.1). Do a clause‑by‑clause review to ensure substituted references make sense operationally and legally. Where a clause becomes incoherent because of organisational differences, flag it for legal and industrial relations advice.

5. Maintain and review policies, guidelines and procedures (cl 5.2).

• Gather the policies, guidelines and procedures referred to by the source enterprise agreements. Apply them “in their current form,” but assess whether any such policy is “not capable of meaningful operation because of the movement of the employees to the Department of Home Affairs” (cl 5.2(a)). Where a policy is inoperable, document the assessment and the rationale. Remember that these policies do not form part of the Determination and that the Determination prevails where inconsistent (cl 5.2(b)).

6. Ensure the clause 5.1 terms displace specified instruments as required (cl 5.3).

• For the covered employees, ensure that during the clause 5.1 period the source-agreement terms are applied instead of any other enterprise agreement, instead of the Australian Public Service Enterprise Award 2015, and instead of any annual salary prescribed by subregulation 8.1(2) of the Public Service Regulations 1999 (cl 5.3). Adjust payroll and classification systems to avoid automatic application of the APS Award rates or prescribed salaries where the Determination displaces them.

7. Prepare for the 8 February 2018 transition (cl 6.1-6.2).

• Implement a migration plan for 8 February 2018: all Moving Employees except Moving AGD Employees will become subject to the prevailing Home Affairs enterprise agreement and the Determination will cease to apply to them (cl 6.1). For Moving AGD Employees, document and preserve the salary that applied to them on 7 February 2018 so that on 8 February 2018 they are moved to the prevailing Home Affairs enterprise agreement while retaining that salary (cl 6.2). Ensure payroll systems record salary protection for the AGD cohort and that any subsequent pay processing respects that preserved salary.

8. Track promotion and cessation events (cl 4.2).

• Implement processes whereby promotions, transfers out of the Department of Home Affairs, resignations and terminations are flagged immediately in HR systems. The Determination ceases to apply if the employee ceases to be employed in the Department of Home Affairs or is promoted to a different position in the Department (cl 4.2). HR must therefore update entitlements the moment a qualifying event occurs.

9. Record and manage any subsection 24(1) determinations (cl 7.1).

• If the Agency Head makes any determinations under subsection 24(1) of the Public Service Act 1999 to supplement the Determination’s terms (cl 7.1), ensure that those are documented, legally assessed for consistency, communicated to affected employees and applied in payroll and HR. Keep a register of any such supplementary determinations and their expiry conditions.

10. Coordinate industrial relations and legal oversight.

• Because the Determination interacts with enterprise agreements and the Fair Work Commission framework (cl 5.1; cl 2.2), coordinate with industrial relations specialists and legal counsel to ensure compliance with enterprise agreement terms, particularly where the Determination imports undertakings attached to tribunal decisions (cl 5.1(a)). Where uncertainties arise about whether a clause in a source agreement remains operable after substitution, obtain legal advice and document the reasoning.

11. Document communications with employees.

• Prepare written communications for affected employees that set out: (a) which source enterprise agreement supplies their terms while the Determination applies; (b) the substitution mechanism; (c) the policy continuation rule and any policies identified as inoperable; (d) the 8 February 2018 transition and what it means for their coverage; and (e) the promotion/cessation triggers for the Determination ceasing to apply (cl 5.1; cl 5.2; cl 6.1-6.2; cl 4.2). Place these communications on personnel files.

12. Monitor for the Fair Work Commission workplace determination (cl 2.2).

• Track developments in relation to any new Fair Work Commission Workplace Determination that applies to the Department of Home Affairs, because the Determination will remain in effect “until a new Workplace Determination, made by the Fair Work Commission, comes into operation in the Department of Home Affairs” (cl 2.2). Plan for a potential replacement event that will change the industrial landscape for the Department’s workforce.

13. Audit and recordkeeping.

• Maintain an audit trail of decisions, pay calculations, substituted clauses and supplementary determinations. Given that policies continue to apply but do not form part of the Determination (cl 5.2), retain copies of the source policies and decisions on how they were interpreted and applied to individual employees.

Applying these steps,with explicit cross‑references to the Determination’s clauses,will operationalise the instrument in payroll, HR and industrial relations practice and reduce the risk of misapplication when the Determination’s temporary arrangements are implemented and ultimately wound down (cl 2.1; cl 5.1-5.3; cl 6.1-6.2; cl 4.2; cl 7.1).