Public Service Act 1999 - Determination under subsection 24(3) (13/03/2008)

The Determination rests on a small set of statutory and contractual concepts. The governing statutory authority is subsection 24(3) of the Public Service Act 1999, under which the Minister may determine terms for public servants; the instrument itself is made under that subsection (preamble and cl 1). Several definitional and structural concepts control operation and interaction.

Minimum standard: Clause 3 states the Determination “determines minimum remuneration and conditions of employment.” That means the instrument is designed to set floor-level entitlements. Clause 3 expressly allows those minima to be supplemented or provided by either a s24(1) determination or an employee’s contract of employment, provided the overall result is “no less favourable” to the employee than the Determination.

Scope and exceptions: Clause 4 limits the Determination’s reach by excluding effects on conditions contained in, or derived from, legislation other than the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, and it preserves any agreement between the Commonwealth and employees about salary for superannuation purposes. The clause gives examples of other legislation that may contain conditions (Public Service Act 1999; various Superannuation Acts; Long Service Leave; Maternity Leave Acts), signalling that those statutory regimes remain operative and are not displaced by this Determination.

Enterprise agreements as override: Clause 6 provides a bright-line exit for individual employees , once an enterprise agreement starts to operate for the Department in which the employee works, the Determination “ceases to apply” to that employee. The Determination therefore functions as a transitional bridge pending enterprise bargaining outcomes.

Dispute referral updating: Clause 2 re-reads any reference in the Determination to the Australian Industrial Relations Commission as a reference to Fair Work Australia. The instrument therefore imports the new institutional name and jurisdictional shift into its dispute resolution references; the Table of Amendments confirms clause 2 was amended (F2009L04108).

Interpretation and defined terms: Clause 7 supplies definitions that align the Determination with the Fair Work transitional vocabulary: ‘agreement’ includes an AWA, collective agreement, pre-reform AWA, pre-reform certified agreement or enterprise agreement; AWA and related terms take their definitions from the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; ‘APS employee’ and ‘SES employee’ mirror definitions in the Public Service Act 1999; and ’enterprise agreement’ follows the Fair Work Act 2009. These definitional cross-references tie the instrument tightly to the Fair Work reform architecture and to the Public Service Act terminology.

Schedule operation: Schedule 1 implements the instrument for the named Department. For non-SES employees it imports the terms of a named collective agreement (Dept of Communications, IT and the Arts’ Collective Agreement 2007-2010) (Schedule 1 cl 1). For SES employees it leaves terms to be provided by s24(1) determinations or contracts (Schedule 1 cl 2). Schedule 1 also contains an AWA carve-in and continuity mechanism (cll 3-4) that preserves AWAs and pre-reform AWAs for employees who were covered before the Department’s establishment or who have had AWAs commence since then.

Temporal operation: Clause 5 makes commencement contingent on registration under the Legislative Instruments Act 2003. The Notes and Table of Instruments show the registration date as 13 March 2008 (F2008L00797) and record a later amendment instrument (29/10/2009; registered 2 November 2009, F2009L04108). The Table of Amendments lists clause-level amendments and the repeal of Schedule 2 (F2009L04108).

Taken together, the main concepts are minimum-floor determinations, cross-reference to Fair Work transitional terminology, departmental adoption of an external collective agreement for non-SES employees, SES determination by separate means, preservation of certain AWAs, and displacement by any later enterprise agreement when it starts to operate. Those mechanics determine who decides, what is required of agencies and employees, and the instruments that will supersede this Determination (see cll 1-7; Schedule 1 cll 1-4).

Primary subjects are APS employees of the Department of Broadband, Communications and the Digital Economy, as identified in Schedule 1. The instrument distinguishes two principal cohorts: non-SES APS employees and SES employees.

Non-SES employees: Schedule 1 clause 1 states that remuneration and conditions of APS employees of the Department “who are not SES employees shall be the same as the remuneration and conditions of employment in the Department of Communications, Information Technology and the Arts’ Collective Agreement 2007-2010.” That means the Determination imports the terms of an external collective agreement to set minimums for this cohort. Practically, identifying whether an employee is non-SES is determined by the Public Service Act 1999 definition referenced in clause 7.

SES employees: Schedule 1 clause 2 places SES employees in a different category. Their remuneration and conditions are to be provided by a determination under subsection 24(1) of the Public Service Act 1999, by the employee’s contract of employment, or both. In effect the Determination does not impose a one-size-fits-all floor for SES staff; it recognises the separate statutory mechanism (s24(1) determinations) and contract negotiation as the supply mechanisms for those terms (Schedule 1 cl 2; cl 7 definition of ‘SES employee’).

Employees covered by AWAs or pre-reform AWAs: Schedule 1 clauses 3 and 4 protect continuity where individual Australian Workplace Agreements (AWAs) or pre-reform AWAs apply. Clause 3 provides that if an employee’s employment was subject to an AWA or pre-reform AWA immediately before the Department’s establishment on 3 December 2007, or an AWA has commenced operation since the Department’s establishment, then the employee’s remuneration and conditions shall be the same as those in the relevant AWA or pre-reform AWA. Clause 4 establishes the duration of that protection: Clause 3 operates for so long as the AWA or pre-reform AWA is capable of applying to the duties performed (despite references in the AWA to an abolished Department) or until the AWA is terminated, whichever is earlier. Thus employees with AWAs occupy a potentially enduring carve-out from the collective-agreement baseline.

Employees who transition to enterprise agreements: Clause 6 creates a dynamic effect: the Determination “ceases to apply to an employee if an enterprise agreement starts to operate for the Department in which the employee works.” That means affected employees will leave the Determination’s regime once their employing Department is covered by an enterprise agreement that has started to operate. The Determination therefore primarily affects employees during the transition to enterprise bargaining and while AWAs remain in force.

Employing authority and decision-makers: The Minister made the Determination (cl 1); employing departments and their delegated decision-makers are required to implement the clauses for their employees. For SES employees, decision-making about terms sits with s24(1) determinations and contractual parties (Schedule 1 cl 2). For non-SES employees, applying the terms requires reference to the external collective agreement adopted by the Determination (Schedule 1 cl 1).

Excluded or unaffected parties: Clause 4 clarifies that the Determination does not affect conditions set by other legislation (with exceptions for the Fair Work Acts) and does not affect agreements on salary for superannuation purposes. Therefore employees whose entitlements arise primarily from other statutory regimes (for example, superannuation or long service leave statutes) are not displaced by this instrument.

In sum, the Determination primarily affects non-SES and SES employees of the Department as defined, with continued operation for certain AWA-covered staff and displacement where an enterprise agreement comes into operation. The legal status of employees (SES vs non-SES) and the presence of an AWA or enterprise agreement determine whether and how the Determination applies (see Schedule 1 cll 1-4; cll 5-7).

The Determination sets out rights and duties in the form of minimum entitlements, referral rights for disputes, and the interaction of multiple instruments. Rights for employees primarily arise as minimum remuneration and conditions imported from the cited collective agreement or preserved AWAs, and duties sit largely with departments to apply and not provide conditions worse than the Determination.

Employee rights under the Determination: Clause 3 frames the Determination as establishing minimum remuneration and conditions. For non-SES employees this right is operationalised through Schedule 1 clause 1, which secures for them the same remuneration and conditions as the Department of Communications, Information Technology and the Arts’ Collective Agreement 2007-2010. For employees held under AWAs or pre-reform AWAs, Schedule 1 clause 3 grants them the right to continue to receive the remuneration and conditions in those agreements so long as those agreements are capable of applying (Schedule 1 cll 3-4).

SES employee rights are mixed: Schedule 1 clause 2 does not itself fix a ceiling or floor; it directs that SES terms are to be set by s24(1) determinations or by contracts. Hence SES employee rights depend on those separate instruments rather than the body of the Determination itself.

Dispute resolution: Clause 2 changes any dispute-resolution references to the Australian Industrial Relations Commission into references to Fair Work Australia. Where the Determination provided for referral of disputes to the AIRC, parties must instead treat those references as directing referral to Fair Work Australia. This creates a procedural right for employees to access the institutional mechanism named in any dispute referral clause embedded in the conditions of employment the Determination imports.

No-implied diminution duty: Clause 3 places a duty on anyone supplying remuneration and conditions by s24(1) determination or contract to ensure the result is “no less favourable overall” than this Determination. That duty sits on agencies and contracting parties: if a contract or s24(1) determination is used to supply terms, the overall package must be at least as favourable as the Determination.

Temporal duties: Clause 5 requires agencies to note commencement is tied to registration under the Legislative Instruments Act 2003; agencies must ensure that steps taken to comply coincide with that registration date. Clause 6 creates a duty to stop applying the Determination to an employee once an enterprise agreement starts operating for the Department in which the employee works.

Preservation of statutory rights: Clause 4 is a right-protecting provision for employees whose entitlements arise under other statutes. It stipulates that the Determination does not affect conditions of employment contained in or derived from specified other legislation, thereby preserving statutory rights relating to matters such as superannuation, long service leave and maternity leave.

Employer duties in practice: The Determination requires employers to identify which instrument governs an employee (the adopted collective agreement, an AWA/pre-reform AWA, an enterprise agreement, or an s24(1)/contract for SES staff) and to implement entitlements accordingly. Non-compliance with the “no less favourable overall” requirement would create an internal legal tension given the Determination is a legislative instrument.

What the Determination does not do: It does not contain express statutory penalties, disciplinary rules, or enforcement mechanisms; nor does it itself set particular monetary rates (for non-SES staff it imports rates by reference to the collective agreement). Those absences mean enforcement of duties will arise through the ordinary machinery for compliance with employment instruments and through dispute processes such as referral to Fair Work Australia, as contemplated in clause 2.

In short, the key duties are departmental obligations to apply the adopted collective agreement terms to non-SES staff, to respect continuing AWAs where applicable, to ensure any contract or s24(1) determination is no less favourable overall, and to discontinue the Determination’s application when an enterprise agreement starts operating. Key rights for employees are the minima so fixed, continued application of AWAs where preserved, and access to dispute referral pathways redirected to Fair Work Australia (see cll 2-6; Schedule 1 cll 1-4).

The Determination itself does not create a regime of specified criminal or civil penalties within its text. It is primarily a legislative instrument that sets minima and cross-references other instruments and statutory frameworks that contain enforcement mechanisms. The text contains no express monetary fines, suspension powers, or administrative penalty provisions. Therefore enforcement and penalties must be understood through implication and cross-reference to existing statutory enforcement regimes and dispute resolution pathways.

Dispute resolution as enforcement conduit: Clause 2 provides for the re-reading of any Australian Industrial Relations Commission referral provision in the Determination as a referral to Fair Work Australia. That creates an intended procedural route for disputes about terms covered by the Determination to be brought before an industrial tribunal (Fair Work Australia). The Determination thus relies on institutional adjudication and remedies available under industrial law and the Fair Work architecture (cl 2). The Determination does not itself recast or expand Fair Work Australia’s powers; it simply redirects referral language.

Administrative compliance and oversight: The Determination operates under the Public Service Act 1999 and is a legislative instrument registered under the Legislative Instruments Act 2003 (cl 5). Failure by an employing Department to give effect to the Determination could therefore raise administrative law issues and potential internal public service disciplinary or corrective steps, though the Determination does not supply explicit sanctions. Agencies are obliged to administer employment terms consistent with statutory instruments; the normal consequences of non-compliance would be engagement of industrial processes, departmental corrective action, or litigation in relevant forums , none of which are specified in the Determination text itself.

Interaction with enterprise agreements and AWAs: Clause 6 provides that the Determination ceases to apply once an enterprise agreement starts operating for the Department in which the employee works. That is an automatic displacement rule rather than an enforcement sanction. Similarly, Schedule 1 clauses 3-4 maintain AWAs where applicable. Enforcement questions about termination or applicability of AWAs, or about whether an enterprise agreement has started to operate, will be matters for the applicable industrial framework and potentially for Fair Work Australia to resolve, not for the Determination to sanction.

Legal remedies external to the Determination: Because the Determination expressly cross-references the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in definitions and exceptions (cl 4; cl 7), statutory remedies, penalties and contraventions in those Acts will continue to be available where relevant. The Determination does not itself create or adjust those statutory remedies.

Practical enforcement risk and compliance burden: Agencies must maintain records and systems to ensure the Determination’s minima are observed, to identify the operative instrument governing any given employee (collective agreement, AWA, s24(1) determination, contract, or enterprise agreement) and to manage the transition when an enterprise agreement starts operating. The absence of express penalties in the Determination increases reliance on external enforcement mechanisms and on administrative compliance; agencies therefore bear the compliance cost of ensuring legal alignment with the Determination and of being ready to defend or resolve disputes through Fair Work Australia.

Amendments and repeal: The Table of Amendments shows an Amendment Determination registered 2 November 2009 (F2009L04108) that amended clause 2 and other clauses and repealed Schedule 2. Changes to the instrument itself may affect enforcement pathways (for instance, the textual update to dispute referral), and agencies must track registration dates and operative versions to ensure compliance (see Notes and Table of Instruments).

In summary, the Determination relies on existing industrial adjudicative mechanisms for enforcement rather than creating new penalty provisions. The principal enforcement channel is dispute referral to Fair Work Australia where dispute clauses import that institution, and practical enforcement is achieved by agency compliance with the Determination’s minima and by the operation of the Fair Work and Public Service statutory frameworks (see cll 2-6; Schedule 1 cll 1-4).

The Determination is tightly cross-referenced to multiple statutes and industrial instruments, and its operation is defined in relation to those laws. The text itself provides the primary pointers to interaction.

Public Service Act 1999: The Determination is made under subsection 24(3) of the Public Service Act 1999 (preamble and cl 1). Clause 3 also contemplates remuneration and conditions being provided by a determination under subsection 24(1) of the Public Service Act 1999, giving effect to the dual role of s24(1) determinations and s24(3) determinations within the Public Service Act framework. Clause 7 adopts the definitions of ‘APS employee’ and ‘SES employee’ from the Public Service Act 1999, embedding the instrument within that primary Act (cl 7).

Fair Work Act 2009 and Fair Work transitional provisions: Clause 4 makes an explicit carve-out: the Determination does not affect conditions of employment contained in, or derived from, legislation other than the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. In plain terms, this instrument sits alongside the Fair Work Acts and does not displace conditions created by other legislative regimes (cl 4). Clause 7 adopts transitional definitions such as ‘AWA’, ‘pre-reform AWA’, and similar terms from the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, so the Determination aligns its vocabulary and scope with the Fair Work reform architecture.

Collective agreements and enterprise agreements: The Determination operates by importing the Department of Communications, Information Technology and the Arts’ Collective Agreement 2007-2010 for non-SES employees (Schedule 1 cl 1). It also explicitly yields to enterprise agreements: clause 6 states the Determination ceases to apply to an employee if an enterprise agreement starts to operate for the Department in which the employee works. Therefore there is a hierarchical and temporal relationship: the Determination is a transitional instrument that is displaced by an operative enterprise agreement.

Australian Workplace Agreements and pre-reform certified agreements: Schedule 1 cl 3 protects AWAs and pre-reform AWAs that applied immediately before the Department’s establishment, or AWAs that have commenced since then, ensuring such agreements continue to govern those employees. Clause 4 confirms Schedule 1 cl 3 remains in operation while the AWA is capable of applying or until terminated. The Determination therefore accommodates contractual instruments established under pre-Fair Work arrangements and under the transitional architecture.

Legislative Instruments Act 2003: Clause 5 states the Determination takes effect from the day it is registered under the Legislative Instruments Act 2003. That integration means the Determination is a statutory instrument subject to the registration, publication and any disallowance or scrutiny regimes that apply to legislative instruments under the Legislative Instruments Act.

Other statutes protecting employee conditions: Clause 4 lists examples of other legislation that set conditions of employment (Public Service Act 1999, Long Service Leave (Commonwealth Employees) Act 1976, Maternity Leave (Commonwealth Employees) Act 1973, Superannuation Acts of various years). The Determination expressly does not affect conditions contained in or derived from those statutes. This is an important interaction rule that preserves statutory rights outside the Determination’s scope.

Inter-instrument consistency requirement: Clause 3 requires that remuneration and conditions provided by a s24(1) determination or a contract must be “no less favourable overall” than those in this Determination. This creates a cross-instrument consistency requirement, compelling s24(1) determinations and contracts to be benchmarked against the minima here.

Amendments and repeal interactions: The Table of Amendments shows an Amendment Determination registered 2 November 2009 (F2009L04108) that amended clause 2 and other clauses and repealed Schedule 2. The Determination therefore operates within the dynamic of amendment instruments; agencies must ensure they rely on the current registered version (cl 5 and Notes).

In sum, the Determination interfaces with the Public Service Act as its parent authority, sits within the Legislative Instruments Act registration regime, adopts Fair Work transitional terminology and redirects dispute referral to Fair Work Australia, imports an external collective agreement for non-SES employees, preserves certain AWAs, and is displaced when an enterprise agreement starts operating. The instrument is deliberately designed to coexist with other statutory entitlements rather than to supplant them (see cll 2-7; Schedule 1 cll 1-4).

The compilation includes the original Determination dated 13 March 2008 (registered as F2008L00797) and records at least one subsequent amendment instrument. The Notes and Table of Instruments identify:

• Public Service Act 1999 - Determination under subsection 24(3) (13/03/2008), registered 13 March 2008 (F2008L00797), commencement 13 March 2008 (Notes: Table of Instruments).
• Public Service Act 1999 - Amendment Determination under subsection 24(3) (29/10/2009), registered 2 November 2009 (F2009L04108), commencement 2 November 2009 (Notes: Table of Instruments).

The embedded Table of Amendments itemises clause-level changes attributed to F2009L04108. The Table lists the following provisions as amended by that instrument: Clause 2, Clause 4, Clause 6, Clause 7, and Schedule 1 Clause 4. The Table also records that Schedule 2 was repealed by F2009L04108. The Table uses shorthand (ad., am., rep., rs.), and indicates “am.” adjacent to the listed clauses, as well as “rep.” opposite Schedule 2.

What the compilation does not include is the textual pre-amendment versions of the affected clauses. The Table of Amendments records the existence and identification of amendments but does not reproduce the earlier text or show the exact wording differences in-line. It therefore supplies a map of amendment activity but not the delta in legislative drafting.

The Notes accompanying the Determination specify that the compilation was prepared on 11 December 2009 taking into account amendments up to the Amendment Determination dated 29 October 2009 (F2009L04108). That indicates the version in this compilation incorporates the 2009 amendments as registered on 2 November 2009.

The formal metadata also indicates that the instrument adopted by the Department of Broadband, Communications and the Digital Economy applied from its registration date (13 March 2008), and that the 2009 amendment took effect from its registration date (2 November 2009) as per the Table of Instruments.

Practically, the amendment history means parties relying on the Determination must ensure they use the consolidated, post-2 November 2009 registered instrument. Of particular note from the Table of Amendments are the amendments to clause 2 (the dispute referral clause), clause 4 (the non-displacement clause), clause 6 (the enterprise agreement displacement clause), clause 7 (definitions), Schedule 1 clause 4 (AWA duration clause), and the repeal of Schedule 2. These items signal that the instrument’s dispute-resolution references, definitions, interaction with other legislation, scope and duration of AWA protections, and the existence of a Schedule 2 were subject to revision.

No further amendment instruments are listed in the Notes table. The compilation therefore shows an initial Determination in March 2008 and a consolidating amendment registered November 2009, with clause-level amendments and the repeal of Schedule 2 effected by F2009L04108, and the compiled instrument reflecting those changes as of 11 December 2009.

Users should note that the Table of Amendments indicates affected clause numbers but does not itself provide the prior wording versus current wording; to trace the precise drafting changes, one must compare the registered instruments (F2008L00797 and F2009L04108) or consult the consolidation record held by the registering agency or the Federal Register of Legislative Instruments.

The Determination as compiled contains no case law, judicial decisions, or references to litigation arising under it. The text does not cite any decisions, and the Notes and Table of Instruments record only administrative amendment instruments (F2008L00797 and F2009L04108). There are therefore no reported proceedings, appeals, or tribunal determinations included within this compilation.

Because the Determination relies on external dispute resolution mechanisms (clause 2 redirects disputes to Fair Work Australia), litigation or tribunal history, if any exists, would appear in the records of Fair Work Australia, courts or other adjudicative bodies rather than in the Determination text itself. The compilation does not reproduce or summarise any such adjudications.

For practitioners seeking litigation history or precedent for interpretation of the Determination’s provisions (for example, disputes about whether a contract or s24(1) determination is “no less favourable overall,” or about the continuity or application of AWAs under Schedule 1 clauses 3-4), the compilation indicates no such material is included here. Therefore, to establish litigation precedent or to assess how tribunals have construed the Determination’s language, an external search of Fair Work Australia decisions and relevant court reports would be required.

The absence of litigation material in the compilation also means that interpretive uncertainty present in the Determination (for instance, what constitutes “no less favourable overall,” or how to determine the moment an enterprise agreement “starts to operate” for purposes of clause 6) is not clarified by the text. Absent decisions recorded in this instrument, parties must anticipate that disputes would be resolved by Fair Work Australia or the relevant judicial authorities under the Fair Work and Public Service statutory frameworks.

In short, this compilation records no litigation or tribunal history. Those who need an authoritative interpretation or precedent should consult Fair Work Australia determinations, published court judgments, or other records outside this instrument; the Determination itself provides the standards and cross-references but not adjudicative history (see cll 2-6; Schedule 1 cll 1-4).

This Determination contains several drafting features and interaction rules that may create practical traps if unexamined. The following are concrete items to watch, each grounded in the text.

“No less favourable overall” standard (clause 3): Clause 3 permits remuneration and conditions to be supplied by a s24(1) determination or by contract so long as they are “no less favourable overall” than the Determination. That comparative, overall test is aggregate and potentially ambiguous. It does not specify methodology for aggregation, nor does it provide measurement rules where some elements of remuneration are higher and others lower. Agencies relying on contracts or s24(1) determinations must document the comparison and rationale that the aggregate package is not less favourable; the Determination itself does not supply a reconciliation method.

Reference-by-adoption of an external collective agreement (Schedule 1 cl 1): For non-SES employees the Determination imports the Department of Communications, Information Technology and the Arts’ Collective Agreement 2007-2010. The Determination does not reproduce that agreement’s text. Practically this requires agencies and employees to obtain and reconcile the collective agreement’s terms with departmental practice. Differences in interpretation of the adopted agreement will be resolved on the terms of that external document, not the Determination, so practitioners should ensure they are working from the exact collective agreement text.

AWA continuity and applicability (Schedule 1 cll 3-4): The Determination protects AWAs and pre-reform AWAs that applied immediately before the Department’s establishment or commenced thereafter, and continues them “for so long as the AWA or pre-reform AWA is capable of applying to the duties performed by the employee (despite any references in the AWA or pre-reform AWA to an abolished Department) or until the AWA or pre-reform AWA is terminated.” This clause can produce uncertainty in the following ways: (a) determining when an AWA is “capable of applying” to current duties may require legal analysis; (b) AWAs referring to abolished departments might contain out-of-date definitions or referral clauses that require practical adjustment; (c) termination mechanics and interaction with enterprise bargaining require careful timing analysis.

Enterprise agreement cut-off (clause 6): The Determination “ceases to apply to an employee if an enterprise agreement starts to operate for the Department in which the employee works.” That raises precise timing questions: what constitutes the moment an enterprise agreement “starts to operate”? Is it the date of approval, the nominal operation date in the agreement, or another milestone? The Determination does not define “starts to operate,” so parties must look to the Fair Work Act and the enterprise agreement itself. Misreading this could lead to double-coverage or gaps in entitlements.

Dispute referral re-drafting (clause 2 and Table of Amendments): Clause 2 instructs that references to the Australian Industrial Relations Commission are to be read as references to Fair Work Australia. The Table of Amendments records an amendment to clause 2 by F2009L04108. Practitioners relying on prior wording or on older dispute referral pathways must ensure they use the updated institutional reference. Failure to apply the updated referral pathway could misroute disputes.

Superannuation salary agreements (clause 4): Clause 4 says the Determination does not affect agreements between the Commonwealth and employees as to the salary for superannuation purposes. Practically, this means that salary packaging arrangements or superannuation salary agreements may remain intact even if contract terms change. Employers must preserve such agreements and be careful about calculating “no less favourable overall” when superannuation salaries are separately agreed.

Registration and commencement (clause 5): The Determination takes effect when it is registered under the Legislative Instruments Act 2003. Agencies must work from the registered instrument’s operative date rather than signature or announcement dates. The compilation shows registration on 13 March 2008, but agencies should check the Federal Register of Legislative Instruments for the current registered wording and any subsequent amendments (Notes and Table of Instruments).

Amendment tracking and Schedule 2 repeal: The Table of Amendments shows Schedule 2 was repealed by the 2009 amendment. The compiled instrument reflects that repeal but does not show the former Schedule 2 text. Parties should verify whether any transitional obligations previously in Schedule 2 have been migrated elsewhere or require action.

No express penalties in the Determination: The lack of explicit penalty provisions or enforcement clauses within the Determination itself means enforcement will be achieved through other statutory or industrial mechanisms. That can produce practical risk: non-compliance may not trigger an immediate statutory fine under this Determination, but can still give rise to disputes, tribunal applications, or administrative consequences under broader labour law.

In short, the principal gotchas are the ambiguous aggregate comparison test in clause 3, reliance on external instruments (the collective agreement and AWAs), timing uncertainties about enterprise agreement operation, residual technicalities around superannuation salary agreements, and the need to use the registered consolidated text (including amendments). Each of these is grounded in the Determination’s text and the Table of Amendments (see cll 2-6; cl 3; Schedule 1 cll 1-4; Notes).

Compliance requires administrative identification of which instrument governs each employee, documentation of comparative assessments where contracts or s24(1) determinations are used, and readiness to transition staff when an enterprise agreement becomes operative. Below are concrete steps grounded in the Determination’s clauses.

1. Confirm operative instrument version and commencement date

   • Obtain the registered, consolidated Determination from the Federal Register of Legislative Instruments and note its registration date (cl 5; Notes: F2008L00797; amendment F2009L04108). Work only from the registered text, including the 2009 amendments recorded in the compilation.

2. Classify employees by status

   • For each employee in the Department, determine whether they are an APS employee and whether they are SES or non-SES, using the Public Service Act 1999 definitions referenced in clause 7. Record status in master payroll/HR records.

3. Apply the appropriate instrument to non-SES employees

   • For non-SES APS employees, implement remuneration and conditions that are the same as those in the Department of Communications, Information Technology and the Arts’ Collective Agreement 2007-2010, as imported by Schedule 1 clause 1. Obtain the exact text of that collective agreement and map the terms to current payroll, leave, classification and rostering systems.

4. Implement SES employee terms via s24(1) determinations or contracts

   • For SES employees, ensure there is a s24(1) determination in place or a contract of employment (or both) that supplies remuneration and conditions (Schedule 1 cl 2). Where terms are supplied by contract, ensure the total package is documented and assessed against the “no less favourable overall” test in clause 3.

5. Test “no less favourable overall”

   • When remuneration and conditions are supplied by contract or s24(1) determination, produce a written comparative assessment showing that the overall package is not less favourable than the Determination (cl 3). The assessment should compare salary, allowances, leave entitlements, redundancy terms, superannuation salary agreements, hours and any other material employment conditions. Keep records of the comparison methodology and the supporting calculations.

6. Identify and preserve AWAs and pre-reform AWAs

   • For employees whose employment was subject to an AWA immediately before 3 December 2007 or where an AWA has since commenced (Schedule 1 cl 3), identify the applicable AWA, confirm it remains capable of applying to the employee’s duties, and maintain records of its status. If the AWA references an abolished Department, document the analysis that the AWA remains capable of applying to current duties per Schedule 1 clause 4.

7. Monitor enterprise agreement operation and apply clause 6

   • Track enterprise bargaining activity. If an enterprise agreement “starts to operate” for the Department in which an employee works, implement the procedural change required by clause 6: the Determination ceases to apply to that employee. Ensure HR systems switch the governing instrument to the enterprise agreement from the operative date specified or as determined by the Fair Work Act. Document the date and basis for the transition.

8. Update dispute referral procedures

   • Where employment conditions include a provision for referral of disputes to the Australian Industrial Relations Commission, apply clause 2’s instruction to treat such provisions as referral to Fair Work Australia. Update internal dispute referral policies and staff communication to reflect Fair Work Australia as the relevant body.

9. Preserve superannuation salary agreements

   • Clause 4 preserves any agreement between the Commonwealth and employees about salary for superannuation purposes. Ensure such agreements are documented and that payroll calculations respect those arrangements when reconciling salary for superannuation contributions and for awarding entitlements.

10. Recordkeeping and audit trail

    • Maintain a clear audit trail that shows how each employee’s remuneration and conditions are derived (collective agreement, AWA, s24(1) determination, contract, enterprise agreement). Keep the comparative analyses required by clause 3, records of AWA applicability per Schedule 1 clause 4, and documentation of the enterprise agreement transition per clause 6.

11. Legal and industrial advice

    • Where ambiguity exists (for instance, in assessing whether a contract is “no less favourable overall” or whether an AWA remains capable of applying to duties), obtain contemporaneous legal or industrial relations advice and record the basis of the decision. Such advice will be relevant should a dispute be referred to Fair Work Australia under clause 2.

12. Monitor amendments and register changes

    • The Table of Amendments shows the Determination was amended on 2 November 2009 (F2009L04108). Ensure ongoing compliance by monitoring the Federal Register of Legislative Instruments for further amendments and by updating internal processes when newer registered versions take effect (cl 5).

13. Communication with employees

    • Communicate to employees clearly which instrument governs their terms, the implications of AWAs or enterprise agreements, and the route for dispute resolution (Fair Work Australia). For SES staff, explain whether terms are by contract or s24(1) determination and provide copies or summaries where appropriate.

By following these steps, an employing Department aligns administrative practice with the Determination’s mechanics: adoption of the collective agreement where specified, preservation of AWAs where applicable, contractual/s24(1) determinations for SES staff, documentation of the “no less favourable overall” test, and transition to enterprise agreements when they start to operate (see cll 1-7; Schedule 1 cll 1-4).