23Classification Rules

#### 23 Classification Rules (1) The Commissioner may, by legislative instrument, make rules about classifications of APS employees. > Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the Classification Rules (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act). (2) The Classification Rules may apply, adopt or incorporate, with or without modification, any of the provisions of: (a) a modern award, as in force at a particular time or as in force from time to time; or (b) a transitional APCS, as in force at a particular time or as in force from time to time. (3) Agency Heads must comply with the Classification Rules. (4) An Agency Head may reduce the classification of an APS employee, without the employee’s consent, only in the following circumstances: (a) as a sanction under section 15; (b) in the case of an SES employee—in accordance with Commissioner’s Directions issued under subsection 11A(1); (c) on the ground that the employee is excess to the requirements of the Agency at the higher classification; (d) on the ground that the employee lacks, or has lost, an essential qualification for performing duties at the higher classification; (e) on the ground of non‑performance, or unsatisfactory performance, of duties at the higher classification; (f) on the ground that the employee is unable to perform duties at the higher classification because of physical or mental incapacity; (g) in other circumstances prescribed by the regulations. (5) If a relevant industrial instrument, determination under this Act or written contract of employment contains procedures to be followed when reducing the classification, then a reduction is of no effect unless those procedures are followed. (6) In this section: > industrial instrument means: (a) a modern award; or (b) an enterprise agreement; or (c) a workplace determination; or (d) a WR Act transitional instrument; or (e) a transitional APCS. > transitional APCS has the meaning given by Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. > workplace determination has the same meaning as in the Fair Work Act 2009.