86Employment conditions after machinery of government changes—engagement of non‑APS employees

#### 86 Employment conditions after machinery of government changes—engagement of non‑APS employees (1) For the purposes of paragraph 72(5)(b) of the Act, this section prescribes arrangements for determining variations of the terms and conditions of employment applicable to a person who ceases to be employed as a non‑APS employee and becomes engaged as an APS employee in accordance with a determination under paragraph 72(1)(c) of the Act. (2) Before or after the engagement, the terms and conditions of employment of the person may be varied: (a) after consultation by the Agency Head with: (i) the person; or (ii) the person and any other persons who are to be, or who have become, engaged as APS employees; or (iii) a class of persons who are to be, or who have become, engaged as APS employees that includes the person; and (b) in accordance with a determination under subsection 24(1) of the Act to the effect that some or all of the terms and conditions of employment are to be the same as those that applied to the person immediately before the person ceased to be employed as a non‑APS employee; and (c) to have effect no sooner than the day the person becomes engaged as an APS employee. > Note: A determination by an Agency Head under subsection 24(1) of the Act is of no effect to the extent that it would reduce the benefit to an APS employee of a term or condition of employment applicable to the employee under: (a) a fair work instrument; or (b) a transitional instrument; or (c) a transitional minimum wage instrument; or (d) the National Employment Standards. > Note: See subsection 24(1A) of the Act. (3) However, if: (a) a determination mentioned in paragraph (2)(b) applies to the APS employee; and (b) an employment arrangement: (i) commences on or after the day the person becomes engaged as an APS employee; and (ii) applies on its face to the person as an APS employee or a class of APS employees that includes the person; the determination mentioned in paragraph (2)(b) ceases to apply to the APS employee, and the terms and conditions of employment under the employment arrangement apply to the APS employee.