Public Service (Terms and Conditions of Employment) (Australian Submarine Agency) Determination 2023

This determination is a legislative instrument made under subsection 24(3) of the Public Service Act 1999 (Cth). It establishes the terms and conditions of employment for Australian Public Service (APS) employees of the Australian Submarine Agency (ASA) who are not in the Senior Executive Service (SES) or equivalent. The determination applies from 1 July 2023, with a built-in 3 per cent salary increase effective from 17 August 2023. It operates as a transitional employment framework: rather than creating a completely new set of rules, it imports the Defence Enterprise Agreement 2017-2020 (the Defence Agreement) and modifies it for ASA use. In doing so, it expressly excludes the Australian Public Service Enterprise Award 2015 (the APS Award) from applying to those employees. The determination sets out salary scales in Schedule 1, allowance rates in Schedule 2, and includes a dispute resolution procedure. It also provides that if an enterprise agreement or a workplace determination under the Fair Work Act 2009 later starts to apply to an employee, this determination ceases to apply to that employee. The instrument is finite in that sense: it is a bridging arrangement until ASA staff are covered by a bespoke enterprise agreement or a workplace determination. The determination also preserves the salary progression of employees transferred from the Department of Defence by recognising their 2022/2023 performance cycle. Mechanically, the determination replaces the salary tables and allowance rates in the Defence Agreement with new ones, deletes the nominal expiry date clause of that agreement, and removes clauses about pay adjustments under the Defence Agreement’s original terms. It then substitutes a 3 per cent salary increase effective 17 August 2023 for most employees, with carve-outs for those under certain provisions of the Defence Agreement that restrict pay rises. A further operational detail is that any later determination under section 24(1) of the Public Service Act 1999 that sets a higher salary or allowance rate for an ASA employee will override the rates in this instrument for the period that determination is in force. This means the government retains the ability to adjust individual or class salaries and allowances outside the path set by this determination.

The central concept is the method by which the determination sets terms: it picks up an existing enterprise agreement (the Defence Agreement) and applies it as the base set of employment conditions for ASA employees, with specific amendments (s 7(1)). The source of authority is subsection 24(3) of the Public Service Act 1999, which allows the Minister for the Public Service to determine terms and conditions for APS employees who are not covered by an enterprise agreement or workplace determination. The determination defines key terms: APS employee means a person engaged under section 22 or 72 of the Public Service Act; Agency Head means the head of the ASA; the Defence Agreement means the Defence Enterprise Agreement 2017-2020 as it stood immediately before commencement; and the APS Award is the Australian Public Service Enterprise Award 2015. The determination applies only to APS employees of the ASA below SES and equivalent, and not to locally engaged employees overseas (s 5). The concept of application of the Defence Agreement is modified: references to the Department of Defence or Defence become references to the ASA; references to the Secretary of Defence become references to the Agency Head; and references to employees under that agreement become references to employees covered by this determination (s 7(2)). The nominal expiry date of the Defence Agreement is deleted (so it does not expire under its own terms). Pay adjustment clauses G2.1 and G2.2 are omitted, removing the original enterprise agreement’s wage increase mechanisms, and instead the determination provides its own increase (3 per cent from 17 August 2023). The determination introduces two sets of salary scales: one for standard classifications (Table 1) and one for job-specific classifications (Table 2), with a third table for retained pay points for legacy classifications that cannot be used for new positions (Table 3). The salary ranges include both a base and a top rate, with the 17 August 2023 rates reflecting the 3 per cent increase. Allowances are set out in Schedule 2 across four categories: per annum (e.g., Departmental Liaison Officer Allowance, Language Proficiency Allowance), per week (e.g., First Aid, Fire Fighting, Potentially Hazardous Material), per day (e.g., Storage and Plant, Duty at Sea), and per hour (e.g., Overtime for duty at sea, Artificial Environments Disability). The rates are given for commencement and for 17 August 2023. There is a transitional provision for employees transferred from Defence: their 2022/2023 performance cycle in Defence is taken into account for eligibility under the Defence Agreement’s clause G6.3 (performance-based progression). The dispute resolution clause in the Defence Agreement (clause A8) is preserved and expressly made a term of the determination, and is also designated as a procedure for purposes of section 738(d) of the , giving it a statutory underpinning for Fair Work Commission involvement.

The determination applies directly to all APS employees of the Australian Submarine Agency who are below the Senior Executive Service (SES) or equivalent, but not to locally engaged employees overseas (s 5). This covers a defined cohort of public servants working for a new Commonwealth agency established to oversee Australia’s nuclear-powered submarine program under the AUKUS partnership. The determination does not apply to SES employees or to persons engaged under other arrangements (such as contractors or consultants). It also does not apply to employees covered by an enterprise agreement or workplace determination under the Fair Work Act 2009; indeed, such coverage automatically causes the determination to cease applying to that employee (s 6). Therefore, the determination affects employees in a transitional period until a future enterprise agreement is made specifically for ASA staff. The determination also affects the Agency Head, who is the decision-maker under the imported Defence Agreement terms, for instance in relation to performance assessments, classification decisions, and application of exclusions from pay rises under clauses G2.3 and G3.3 of the Defence Agreement as applied. Employees who were transferred from the Department of Defence to the ASA by a determination under section 72 of the Public Service Act 1999 on 1 July 2023 are specifically affected by the transitional provision in new clause G6.3A (s 7(2)(9)), which ensures their Defence performance cycle is counted for eligibility purposes. This matters for progression within salary bands. The determination also affects the Department of Defence indirectly: the Defence Agreement was originally designed for Defence employees, and its terms are now being applied to a separate agency, which may create inconsistencies or anomalies as the ASA develops its own culture and operational needs. The determination also has implications for the Fair Work Commission because the dispute resolution clause is designated for purposes of section 738(d) of the Fair Work Act 2009, potentially giving the Commission jurisdiction over disputes arising under the instrument. Union members and employee representatives will be affected insofar as the determination displaces the APS Award and imposes the Defence Agreement’s terms without the same bargaining process that produced that agreement. Finally, the Minister for the Public Service is the maker of the determination and may later issue determinations under section 24(1) of the Public Service Act that override the salary and allowance rates set out in this instrument, affecting the pay and conditions of these employees without their direct input.

The determination confers a right on each employee to receive the salary and allowances set out in Schedules 1 and 2, subject to the conditions and adjustments specified. Specifically, employees are entitled to a 3 per cent salary increase on 17 August 2023 (s 7(4)), unless they are excluded by clause G2.3 of the Defence Agreement (which relates to unsatisfactory performance or conduct) or are subject to clause G3.3 (which applies to employees on a salary maintenance or special arrangement). For those subject to clause G3.3, if their salary would be below the maximum for their classification on 17 August 2023, their salary is increased to that maximum (s 7(7)). Employees also have the right to have their terms and conditions be those set out in the Defence Agreement as amended, which includes provisions on hours of work, leave, performance management, redeployment, and other conditions not detailed in this determination itself. The determination imports the entire Defence Agreement (400+ pages) by reference, subject only to the listed amendments. Employees have the right to access the dispute resolution procedure under clause A8 of the Defence Agreement (as applied) for disputes arising under the instrument, and that procedure is enforceable via the Fair Work Act 2009 (s 8). The duties of employees include complying with all lawful directions of the Agency Head and with the terms and conditions imported from the Defence Agreement, including any conduct and performance obligations. The Agency Head has the duty to apply the correct salary and allowance rates, to decide exclusions from pay rises, and to determine performance eligibility under clause G6.3. The Agency Head also has the power, under section 24(1) of the Public Service Act 1999, to make subsequent determinations that override the salary and allowance rates in this instrument (s 7(9)-(11)). This creates a right of the Agency Head (or the Minister) to unilaterally increase or vary pay and allowances outside the framework of this determination, subject to the Public Service Act. Employees do not have a right to bargain collectively under this instrument; it is imposed unilaterally by the Minister. However, the determination contemplates future enterprise bargaining, as it ceases to apply when an enterprise agreement covers an employee (s 6). The transitional right for transferred Defence employees to have their 2022/2023 performance cycle recognised is a specific right granted by new clause G6.3A. On the duty side, employees must also comply with any exclusions from pay rises; if they are caught by clause G2.3, they are not entitled to the 17 August increase. The determination itself does not create any new disciplinary powers; those come from the and the Defence Agreement provisions on code of conduct.

This determination does not itself prescribe penalties or create criminal offences. Enforcement of the terms arises through several mechanisms. First, because the determination is a legislative instrument made under the Public Service Act 1999, a failure to comply with its terms by the Agency Head (such as paying incorrect salary rates) could be challenged by an employee through the dispute resolution procedure in clause A8 of the Defence Agreement as applied. That procedure is expressly designated for purposes of section 738(d) of the Fair Work Act 2009, which means the Fair Work Commission can deal with disputes about terms of the instrument as if it were an enterprise agreement. The Commission may make orders or recommendations, though penalty provisions under the Fair Work Act for breach of an enterprise agreement (civil penalties) do not directly apply to a determination under the Public Service Act. However, a dispute may lead to a determination by the Commission that is enforceable. Second, the terms and conditions imported from the Defence Agreement become part of the contract of employment, and an employee could pursue a breach of contract claim in a court, although this would be unusual for APS employees. Third, the Public Service Act 1999 imposes a code of conduct and provides for sanctions for breach (such as termination, reduction in classification, fines). While this determination itself does not mention the code, the Defence Agreement as applied likely incorporates relevant PS Act obligations, and the Agency Head can take disciplinary action. Fourth, there is a specific exclusion from the 3 per cent pay increase for employees to whom clause G2.3 of the Defence Agreement applies; that clause relates to employees who have not met performance expectations or have been subject to remedial action. This acts as an indirect penalty: an employee may be denied the pay rise if they are under a performance management process. The determination also removes the APS Award, so employees cannot rely on award-based enforcement. The only remedy for non-compliance with the determination’s salary and allowance rates (other than the dispute resolution procedure) is likely a complaint to the Commonwealth Ombudsman or a judicial review under the Administrative Decisions (Judicial Review) Act 1977 if the Agency Head makes a decision that is not consistent with the determination. There is no express power in the determination for the Minister to impose financial penalties for breach. Enforcement is thus largely internal or through the dispute resolution process, with ultimate resort to the Fair Work Commission for disputes. The practical enforcement risk is low for most employees, but the denial of the pay rise for underperformers could be a significant consequence.

The determination operates under the Public Service Act 1999 (Cth), specifically subsection 24(3), which empowers the Minister to determine terms and conditions of employment for APS employees not covered by an enterprise agreement or workplace determination. It is a subordinate legislative instrument. It does not repeal or amend any primary legislation, but it alters the employment framework for ASA staff. Critically, it displaces the Australian Public Service Enterprise Award 2015 (the APS Award) for employees to whom it applies (s 7(1)(b)). This means that the APS Award’s conditions (which are the minimum safety net for APS employees) do not apply; instead, the imported Defence Agreement and the determination provide the baseline. However, the Fair Work Act 2009 still applies generally, and the determination expressly preserves the dispute resolution procedure for purposes of s 738(d) of that Act, which allows the Fair Work Commission to deal with disputes. The Fair Work Act also governs enterprise agreements: if a new enterprise agreement is approved by employees and the Fair Work Commission, that agreement will override the determination for those employees (s 6). Similarly, a workplace determination made by the Commission could also override it. The determination also interacts with any subsequent determination made under s 24(1) of the Public Service Act 1999. Such a determination can apply to all APS employees (or a class) and set salary or allowance rates; the instrument provides that if a s 24(1) determination applies to an ASA employee and covers the same salary or allowance, the s 24(1) determination prevails over the determination’s rates for the period it is in force (s 7(9)-(11)). This allows the government to implement across-the-board pay increases for the APS without amending this specific determination. The Public Service Act also provides for mobility and transfer provisions under s 72, which is relevant for the transitional recognition of performance cycles for employees transferred from Defence. The determination expressly does not interact with the Defence Enterprise Agreement 2017-2020 as a separate instrument; it simply uses it as a source document, and employees are not covered by that agreement as a matter of law. The determination also does not affect other Commonwealth laws such as the Work Health and Safety Act 2011, the Fair Work (Registered Organisations) Act 2009, or the Australian Human Rights Commission Act 1986, although those laws apply independently to the employment relationship. The interaction with the (Comcare) is also unaffected. Notably, because the determination excludes the APS Award, it removes the award safety net for these employees, which could be significant if the Defence Agreement is later found to have gaps or if employees become award-covered again if the determination ceases. The instrument is designed as a transitional measure, so its interaction with other laws is essentially provisional until a permanent enterprise agreement is put in place.

This determination was made by the Minister for the Public Service, Katy Gallagher, on 14 June 2023, and commenced on 1 July 2023. As of the text provided, there are no amendments to the instrument. It is a standalone instrument that has not been varied or revoked. The commencement table indicates that the whole of the instrument commenced on 1 July 2023 (column 2). There is no information in the source about any amending instruments. However, it is possible that subsequent determinations under s 24(1) of the Public Service Act have overridden parts of this determination, but those are not amendments to this instrument itself; they operate separately and concurrently. The determination does not include a sunset clause, but it will effectively cease to apply to individual employees when they become covered by an enterprise agreement or workplace determination (s 6). There is no set expiry date for the whole instrument. The determination’s authority is under s 24(3), which is a power that can be exercised from time to time, so the instrument could be amended or replaced by a new determination at any time. The absence of amendment history does not mean the instrument is static; the government may issue a new determination under s 24(1) (which applies broadly) or amend this instrument via a later legislative instrument. The note at the end of the commencement table states that information in column 3 is not part of the instrument, and the table relates only to provisions as originally made; it will not be amended to deal with later amendments. Therefore, any future amendments would be published separately. In practice, the instrument has been in force for about 18 months as of the current date, and no amendments are disclosed in the provided source. The instrument is relatively new and specific to a single agency, so amendment history is sparse.

Based solely on the source text, there is no reference to any litigation history concerning this determination. The instrument itself does not mention any court cases or tribunal decisions. As a relatively recent and specific determination applying to a small cohort of employees (APS staff of the Australian Submarine Agency, below SES), it is unlikely to have generated significant litigation. However, there may have been disputes arising under the imported dispute resolution clause (clause A8) that were dealt with by the Fair Work Commission, but the source does not record those. The determination’s dispute resolution procedure is expressly designated for purposes of section 738(d) of the Fair Work Act 2009, so it is possible that matters have been taken to the Commission, but no details are provided. The determination’s terms, including the exclusion of the APS Award and the application of the Defence Agreement, could theoretically give rise to legal challenges, for instance if an employee claimed that the determination does not meet the safety net requirements of the Fair Work Act or that the Agency Head misapplied the pay rise exclusions. However, no such cases are cited. The lack of litigation history does not imply that the instrument is without legal risk; it may simply reflect that the Agency was only recently established and that employees have not yet tested the boundaries of the determination. It is also possible that any disputes have been resolved internally without public record. In the absence of named cases, it is safe to state that there is no recorded litigation history arising directly from this determination in the public domain as per the source provided. The instrument’s short life and narrow scope make significant litigation less likely than for a larger APS-wide determination.

Several provisions in the determination could catch out the unwary. First, the 3 per cent pay rise on 17 August 2023 does not apply to all employees. Section 7(6) excludes employees who are excluded from receiving pay rises by clause G2.3 of the Defence Agreement (which covers employees on performance improvement plans or who have been found to have unsatisfactory performance) and employees to whom clause G3.3 applies (which covers employees on salary maintenance due to reclassification or broadbanding). This means an employee who was under a performance process on 30 June 2023 or who is on a salary maintenance arrangement may not receive the increase, or may only receive a limited increase to the maximum of their classification (s 7(7)). The determination is silent on any eventual catch-up for those employees. Second, the salary scales in Schedule 1 include a table of “retained pay points” (Table 3) which cannot be used to create new positions or movements. Those pay points are only available to employees who already held those classifications at the time the points were retained. A manager who tries to move an employee into a retained pay point classification could be non-compliant. Third, the determination explicitly excludes the APS Award. This is a significant departure from the standard APS arrangement, where the APS Award provides a safety net of conditions. If the Defence Agreement (as applied) does not cover a particular condition (e.g., certain leave types) and the Award would normally fill the gap, there may be a regulatory gap. Employees may not be aware that the Award does not apply. Fourth, the dispute resolution procedure is the one from the Defence Agreement, but it has been modified by the substituted references. However, the notice requirements and timeframes under that procedure may not be well understood by ASA management or employees. Fifth, if a determination under s 24(1) of the Public Service Act is made that provides for a different salary scale or increased allowance, that determination will override the rates in this instrument for the period it is in force (s 7(9)-(11)). This could create confusion if multiple overlapping determinations exist. Sixth, the definition of “Employee” in s 4 includes APS employees engaged under s 72 of the PS Act (which covers transfers from other agencies). That means employees transferred from Defence without a break in service are covered, but their pay history from Defence is relevant for the transitional performance provision. An employee who moves from Defence to ASA mid-cycle may not realise that their Defence performance rating will be used for eligibility in the ASA. Seventh, the instrument does not specify what happens if an employee is promoted or reclassified after the 17 August increase; the salary tables provide ranges but no automatic progression mechanism beyond what is in the Defence Agreement. Eighth, the allowance rates for certain categories (e.g., Language Proficiency) have multiple grades and levels; errors in applying the correct grade could lead to underpayment. Ninth, the determination is silent on the effect of future bargaining: if a majority of employees vote for an enterprise agreement under the , the determination will cease to apply to them individually, but the process for transitioning could be complicated if the agreement is not made for some time. Finally, the instrument is a legislative instrument, and a failure by the Agency Head to comply with it may be justiciable under administrative law, but there is no express right of review.

For employees covered by this determination, compliance is largely a matter of understanding that their employment conditions are those set out in the Defence Enterprise Agreement 2017-2020 as modified by the determination. Employees should obtain a copy of both the determination and the Defence Agreement (as it stood on 30 June 2023) and familiarise themselves with key provisions on hours, leave, performance, and conduct. The determination itself is short but the incorporated Defence Agreement is detailed. Practical steps include: checking that their salary is paid at the correct rate from Schedule 1 (commencement rates from 1 July 2023, and the increased rates from 17 August 2023). For those who were transferred from Defence, they should ensure that their 2022/2023 performance cycle has been taken into account for eligibility under clause G6.3 (performance-based progression). Employees should also check whether they are excluded from the 3 per cent increase under clause G2.3 or G3.3; if they believe they have been wrongly excluded, they should use the dispute resolution procedure. For the Agency Head and ASA management, compliance requires: applying the correct salary rates as per the tables, adjusting allowances at the specified dates, and maintaining records of employee classifications to ensure retained pay points are not used for new hires or movements. The Agency Head must also apply the transitional provision for transferred employees. When paying allowances, the rates in Schedule 2 replace those in Annex D of the Defence Agreement, and the two-stage rates must be implemented correctly. Management should ensure that payroll systems are updated to reflect both the commencement rates and the 17 August rates. The dispute resolution procedure under clause A8 must be made available to employees, and managers should be trained on its operation. The Agency Head should also monitor any determinations under s 24(1) of the Public Service Act 1999 that may affect ASA employees, as those will override the rates in this determination. If the Agency Head intends to make a s 24(1) determination, they must follow the correct process under the PS Act. For ongoing compliance, the Agency Head should prepare for the eventual negotiation of an enterprise agreement, as this determination is a temporary measure. In the meantime, the Agency Head should also ensure that the exclusion of the APS Award is understood and that workers are not inadvertently given Award conditions that are inconsistent with the determination. Payroll staff must be particularly careful with the multiple classification tables (standard, job-specific, retained pay points) and with allowances that have multiple grades (e.g., Language Proficiency). Finally, the Agency Head should document any decisions to exclude an employee from the pay rise under clause G2.3 or G3.3, as those decisions could be challenged.