Public Service (Terms and Conditions of Employment) (Services Australia—Non-SES Employees) Determination 2020

Incorporated agreement as statutory term‑set. The central mechanism is that the DHS Agreement and the DHS Medical Officers Agreement are not applied as enterprise agreements (which would have expired or been inapplicable due to employer change) but are given force as a determination under the Public Service Act. Sections 7(1) and 12(1) state that the terms and conditions are those set out in the respective agreements “as that Agreement has effect under this section”. This means the content of the old agreements becomes the binding terms of employment, but subject to the modifications in subsections (2), (3) and (4).

Modified application of the old agreements. Four textual modifications are made to each incorporated agreement (s7(2) for Part 2; s12(2) for Part 3). First, references to the DHS Secretary are replaced with the Services Australia Chief Executive Officer - this formal change ensures management authority is correctly assigned. Second, references to DHS employees become references to the relevant Services Australia APS employees, which is necessary because the coverage clause in the original agreement would otherwise be inoperative. Third, the nominal expiry date clause (A3.3 in both agreements) is omitted, meaning the terms do not automatically lapse on a specified date. Fourth, individual flexibility arrangements (IFAs) made under s202 of the Fair Work Act that are taken to be terms of the agreement do not cease to apply simply because the underlying agreement ceases to apply to the employee. This last modification is significant: it preserves bespoke individual arrangements even after the determination supersedes the original agreement.

Override by salary determination. Sections 7(3) and 12(3) allow a determination under subsection 24(1) of the Public Service Act to increase salary amounts in Schedule 2 of each incorporated agreement. Similarly, subsections 7(4) and 12(4) allow increases to allowances. Importantly, this is a one‑way ratchet: the determination can only provide for increased amounts, and on commencement that new amount replaces the agreement figure. The instrument does not empower the agency to reduce salary or allowances via the same mechanism.

Cessation triggers. Part 2 ceases to apply to an employee (s6) and Part 3 ceases to apply (s11) if either an enterprise agreement starts to apply to that employee under the Fair Work Act, or a workplace determination covers the employee. The cessation provisions ensure the determination does not block collective bargaining; once a new agreement is made, the determination’s terms are displaced for that employee. A note clarifies that a workplace determination operates from the day it is made, per s276 of the Fair Work Act.

Dispute resolution. Sections 8 and 13 preserve the dispute resolution procedure (clause A10) from each incorporated agreement as a term of employment and specifically state that it is a term providing a procedure for dealing with disputes arising under the instrument, for the purposes of paragraph 738(d) of the Fair Work Act. This means the Fair Work Commission can deal with a dispute under the determination if the relevant procedural requirements of the clause are met.

Superannuation salary for PSSap members. Sections 9 and 14 define the superannuation salary for an employee in the PSSap as the employee’s ordinary time earnings. This is a specific override of any different definition in the Superannuation (PSSAP) Trust Deed paragraph 2.2.3(fa), ensuring consistency of employer contribution calculations regardless of the incorporated agreement’s provisions.

The determination directly covers all non‑SES APS employees of Services Australia, except medical officers classified as Medical Officer Class 5 (who are presumably covered by a separate instrument). Non‑medical staff captured by Part 2 include the bulk of agency employees: call centre staff, administrative officers, program managers, ICT personnel, and field officers. Medical officers covered by Part 3 are those in Classes 2, 3 and 4 - health professionals who assess medical evidence for disability support and other claims. SES employees are explicitly excluded, as are those covered by an enterprise agreement or workplace determination while that instrument applies.

Services Australia, as the employing entity, bears the compliance obligation to administer the terms of the incorporated agreements, process the dispute resolution procedure, and adjust salary and allowances when a s24(1) determination is made. The Chief Executive Officer replaces the DHS Secretary in all administrative roles under the old agreements (e.g., approving leave, determining duty statements, authorising allowances).

The Fair Work Commission may be affected indirectly: the dispute resolution clauses preserved under ss8(b) and 13(b) give the Commission jurisdiction to deal with disputes arising under the instrument, via the gateway in s738(d) of the Fair Work Act. Employees and the agency can access the Commission for conciliation or arbitration if the internal procedure is exhausted.

The determination also affects the negotiation dynamics for any future enterprise agreement for Services Australia. Because the old agreements are frozen without expiry, there is no legal deadline to replace them. Employees retain the terms they had under DHS, but cannot bargain for improvements through the enterprise agreement pathway unless and until a new agreement is genuinely negotiated. The determination removes the sunset pressure that normally drives bargaining; the agency can unilaterally increase salary under s24(1) but cannot be forced to the table by an expiring instrument. This creates a curious incentive: the agency may prefer to keep the determination in place rather than enter a new agreement, particularly if the old terms are considered manageable. For employees, the lack of a renewal trigger may weaken bargaining leverage, unless they can persuade the Fair Work Commission to make a workplace determination (which requires a bargaining order, protected industrial action, or a low‑paid authorisation - none of which are straightforward for APS employees who are prohibited from striking).

Contractors and labour‑hire staff performing work for Services Australia are not affected, as the determination only applies to APS employees. The instrument does not extend to casual employees not engaged under the Public Service Act, though the incorporated agreements may have provisions dealing with casual conversion that would now apply as statutory terms.

The determination itself imposes few direct duties; it operates by reference to the two incorporated agreements. Consequently, the substantive duties and rights derive from those agreements, but the determination modifies how they function.

Duty to apply the agreement terms. Services Australia must apply the DHS Agreement or DHS Medical Officers Agreement, as modified, as the binding terms for each employee. This includes obligations to pay salary at the rates in Schedule 2 (unless overridden by a s24(1) determination), to make superannuation contributions based on ordinary time earnings for PSSap members, and to observe conditions on hours of work, leave, allowances, classifications, and performance management.

Right to dispute resolution. Employees have the right to access the clause A10 procedure from the applicable agreement. The determination expressly preserves that clause as a term for the purposes of the Fair Work Act, meaning the Fair Work Commission can deal with the dispute. Clause A10 generally requires steps such as raising the matter with the manager, then escalating to senior management, and ultimately to the Commission for mediation or arbitration. The determination does not alter that process.

Right to individual flexibility arrangements. A significant modification (s7(2)(d) and s12(2)(d)) provides that an IFA taken to be a term of the agreement under s202 of the Fair Work Act does not cease merely because the agreement ceases to apply. Normally, when an enterprise agreement is terminated or replaced, IFAs that were made under that agreement also lapse. This modification ensures that individual arrangements (varying how certain terms apply, e.g., to accommodate flexible work hours) survive the transition from DHS to Services Australia and continue even if a new agreement is later made. This protects employees with tailored arrangements from losing them.

Right to salary and allowance increases. The determination does not itself grant increases, but it allows the agency to implement increases via a s24(1) determination without needing to renegotiate or reach agreement with employees. The incorporated agreement salary rates remain in force unless and until replaced by a higher amount. The determination does not permit reduction via this mechanism; any downward variation would require a new enterprise agreement, a workplace determination, or an individual flexibility arrangement with the employee’s consent.

Duty to comply with dispute resolution procedure. Employees and the agency must follow the clause A10 procedure before external arbitration. The determination states that the clause is a term and condition of employment; failure to comply could lead to a finding of breach by the Fair Work Commission or a court in an enforcement action.

No duty to bargain. The determination does not impose any obligation on the agency to negotiate a new enterprise agreement. It removes the nominal expiry date, so there is no deadline. The practical right of employees to bargain is not extinguished (they can still initiate bargaining for a replacement agreement under the Fair Work Act), but the structure of the determination removes the legal trigger of expiry that usually compels commencement of negotiations.

The determination does not create its own penalty provisions. Instead, enforcement relies on the existing mechanisms under the Public Service Act 1999 and the Fair Work Act 2009. Breach of a term or condition of employment that is incorporated by the determination can be pursued through several avenues.

Fair Work Act civil remedy provisions. Because the determination is made under the Public Service Act and imports the old agreement terms, those terms are likely to be enforceable as “terms and conditions of employment” within the meaning of the Fair Work Act. An employee could bring an action under s45 of the Fair Work Act for contravention of a term of a “workplace instrument” - though the determination is not itself an enterprise agreement, it may be treated as a “common law agreement” or “other written instrument” under s42? More directly, s44 prohibits contravention of the National Employment Standards (NES), and the incorporated agreement terms may supplement or exceed NES; any failure to pay wages or provide leave could be pursued as a breach of NES plus a term of the determination. The Fair Work Ombudsman can investigate and issue compliance notices or seek penalties for breaches of the Fair Work Act.

Public Service Act sanctions. The Public Service Act provides for breaches of the Australian Public Service (APS) Code of Conduct, which includes a requirement that APS employees comply with all applicable laws and with lawful directions. A failure to implement the determination’s terms (e.g., refusing to process a dispute under clause A10) could constitute a breach of the Code by the agency or a senior officer. Consequences for the agency are less direct; individual employees who contravene the Code may face sanctions ranging from a reprimand to termination under s15 of the Public Service Act.

Dispute resolution under clause A10. The determination explicitly preserves the dispute resolution procedure. If the agency fails to comply with a step in that procedure, an employee could ask the Fair Work Commission to deal with the dispute under its powers in s739 of the Fair Work Act. While the Commission cannot impose penalties for non‑compliance with the determination, it can make orders to resolve the dispute, including orders requiring compliance with the terms of the incorporated agreement. Failure to comply with an order of the Commission can itself attract penalties under s44 of the Fair Work Act (contravention of an order).

Enforcement of salary and allowance determinations. If the agency makes a s24(1) determination increasing salary or allowances but then fails to pay the increased amount, an employee could enforce the determination as a statutory entitlement. The Public Service Act does not specifically penalise non‑payment, but the Fair Work Act general protections or underpayment provisions (s45, s44, s323) would apply.

The practical difficulty in enforcement is the complexity of identification: the determination incorporates by reference a 100‑page agreement, and the relevant terms are not set out in the instrument itself. An employee would need to locate the original DHS Agreement or DHS Medical Officers Agreement and establish that the determination applies. The Fair Work Ombudsman or a court may have to interpret the savings and modification provisions. This opacity increases the cost of enforcement for an individual employee, making collective dispute resolution (e.g., through a union) more likely.

Public Service Act 1999. The determination is made under subsection 24(3) of that Act, which allows the Minister to determine terms and conditions for APS employees not covered by an enterprise agreement or workplace determination. Section 24(1) also allows the agency head (or Minister) to determine salary and allowances for specified classifications; the determination explicitly defers to such determinations by allowing them to override the incorporated schedules (ss7(3), 7(4), 12(3), 12(4)). The determination operates within the broader framework of the Public Service Act, which sets out the APS Employment Principles, the Code of Conduct, and the merit principle for engagement. Terms imported from the DHS agreements must be consistent with these principles; for example, classification rules under the Public Service Act determine which employees are covered, and the determination does not alter classification structures.

Fair Work Act 2009. The relationship is intricate. The determination is not an enterprise agreement under that Act - it is made under the Public Service Act to fill the gap when no enterprise agreement applies. However, the dispute resolution provisions (ss8 and 13) are expressed to be for the purposes of paragraph 738(d) of the Fair Work Act, which is the gateway for the Fair Work Commission to deal with disputes under a “fair work instrument”. The Commission can therefore exercise its model procedural powers under that Act. The determination also preserves IFAs made under s202 of the Fair Work Act, and explicitly continues them beyond the cessation of the agreement. This means that the Fair Work Act’s general protections, unfair dismissal, and National Employment Standards all continue to apply to these employees in addition to the determination terms. The determination does not displace any NES; it only supplements them.

Superannuation legislation. Section 9 and 14 set superannuation salary as ordinary time earnings for the PSSap. This interacts with the Superannuation (PSSAP) Trust Deed and the Superannuation Guarantee (Administration) Act 1992. By defining express salary for the trust deed purposes, the determination ensures consistency of employer contribution calculations. It overrides any potentially different definition in the trust deed for these employees until a new enterprise agreement or workplace determination takes effect.

Enterprise agreements and workplace determinations. The cessation clauses (s6, s11) ensure that the determination yields to any future enterprise agreement or workplace determination covering the employee. This prevents overlap between multiple instruments - the determination is always subordinate to a later collective instrument. It also means the determination cannot be varied by mutual agreement between the agency and an employee; the only way to replace its terms is through a collective bargaining process under the Fair Work Act or a workplace determination from the Commission.

Classification Rules. The determination uses the Classification Rules made under the Public Service Act to define which medical officers are covered (s5(b), s10). Excluded from Part 2 are Medical Officer Classes 2-5; Part 3 includes Classes 2-4. The Classification Rules are a separate instrument that sets out the structure of APS classifications; the determination merely references them.

Anti‑discrimination laws. The incorporated agreements may contain equal employment opportunity provisions, but the determination itself does not. The Fair Work Act’s general protections (s351) and state/territory anti‑discrimination laws continue to apply. The determination does not, on its face, exclude any category of employee from that protection.

The instrument is made on 30 January 2020 and commences on 1 February 2020. The commencement table shows only the original making; there are no provisions listed for amendments. As of the text provided, no amendment history is recorded. This is consistent with a recent instrument that has likely not been amended in the first few months of its life. The lack of amendment information in the source text suggests it has been stable since enactment.

However, the practical “amendment history” of the determination might include subsequent s24(1) determinations that increase salary and allowances (which, by operation of ss7(3) and 7(4), automatically override the schedules). Those are separate instruments and do not formally amend this determination; they operate by statutory override. Users should therefore check the Federal Register of Legislation for any s24(1) determinations made after 1 February 2020 affecting Services Australia classifications, as those will alter the applicable salary rates.

If a new enterprise agreement for Services Australia is made and approved by the Fair Work Commission, the determination automatically ceases to apply to employees covered by that agreement (s6(a), s11(a)). Again, this is not an amendment to the determination; it is a termination of its application. So the legal effect of the instrument can shrink over time without any change to its text.

The source text contains no references to any litigation, court proceedings, or decisions of the Fair Work Commission involving this determination. Given its recent commencement (1 February 2020) and its nature as a transitional instrument, litigation is unlikely to have occurred by the time of this analysis. The absence of litigation is itself notable: the determination is designed to preserve business as usual, reducing the likelihood of disputes that require judicial resolution.

That said, potential areas for future litigation include: disputes over whether the incorporated agreement terms have been correctly interpreted, particularly around clauses that refer to the DHS Secretary or DHS employees (the modifications in ss7(2) and 12(2) may not catch every textual reference; a court might need to decide how to read certain clauses that are not automatically adapted). Also, the interaction with the Fair Work Act’s individual flexibility arrangement provisions could be tested: does the modification in s7(2)(d) effectively extend the life of an IFA beyond what the Fair Work Act otherwise allows? If a new enterprise agreement is made, can an IFA made under the old DHS Agreement continue to vary terms of the new agreement? The determination says the IFA does not cease “if that Agreement ceases to apply to the employee” - which implies it survives the transition from this determination to a new agreement, but that interpretation might be challenged.

Another potential litigation point: whether the Fair Work Commission has jurisdiction to deal with a dispute under clause A10 of the incorporated agreements when the determination itself is not a “fair work instrument” under the Fair Work Act. Section 8(b) provides that clause A10 is a term for the purposes of paragraph 738(d) of the Fair Work Act, which refers to “a procedure for dealing with disputes… under a fair work instrument or another law”. The determination is not a “fair work instrument” as defined in s8 of the Fair Work Act (which lists enterprise agreements, modern awards, workplace determinations, etc.), but paragraph 738(d) also extends to “another law” that provides such a procedure. The determination, being a legislative instrument under the Public Service Act, may qualify as “another law”. Litigation could test this construction - if it fails, then the dispute resolution clause may not be enforceable through the Commission.

Dispute resolution clause is preserved but not necessarily effective. The determination preserves clause A10 of the DHS Agreement, but that clause was drafted for the DHS enterprise agreement context. It may refer to steps that assume the parties are the DHS Secretary and DHS employees; while the modifications in s7(2) replace those references for general purposes, the dispute clause may contain specific phrases that are not automatically adapted. An employee trying to use the procedure may face confusion about whether their complaint has been properly processed. More fundamentally, s8(b) states clause A10 is a term for the purposes of paragraph 738(d) of the Fair Work Act - but that paragraph only applies if the procedure requires the dispute to be dealt with by the Fair Work Commission. If clause A10 does not explicitly permit Commission involvement, then s8(b) may not achieve its goal. Each incorporated agreement’s clause A10 must be checked.

No nominal expiry date means indefinite application. The omission of subclause A3.3 (nominal expiry date) is a double‑edged sword. For employees, it provides continuity and removes the threat of agreement termination. But it also removes the legal catalyst for renegotiation. The agency can wait years before entering a new agreement, and there is no obligation to bargain. This could lead to stagnation of terms if the old agreement becomes outdated. For example, if the APS community introduces new flexible working provisions or higher parental leave standards, employees under this determination may not receive them until a new agreement is negotiated or a s24(1) determination is made - and the latter only covers salary and allowances, not conditions.

Salary increases are unilateral and selective. The s24(1) determination mechanism allows the agency to increase salaries and allowances without employee agreement, but only for specific classifications. This could create inequities: a classification that the agency prioritises may receive an increase, while others remain on frozen 2017‑2020 rates. There is no requirement to increase all classifications. Employees in lower‑priority roles may effectively be locked into the old rates indefinitely.

Individual flexibility arrangements are preserved but may conflict with a new agreement. If a new enterprise agreement is later made, s7(2)(d) says an IFA does not cease just because the agreement ceases to apply. This could lead to a situation where an IFA made under the old DHS agreement continues to vary terms of the new agreement, but the new agreement itself may have its own terms that conflict. The Fair Work Act allows IFAs to vary enterprise agreements only if the IFA is genuinely agreed and the variation does not reduce the employee’s overall terms. If a new agreement has a term that would otherwise override an earlier IFA, the determination may preserve the IFA, creating confusion about which prevails. The Fair Work Act does not normally allow IFAs to survive a new agreement; this determination attempts to do so, but its effectiveness may be challenged.

Superannuation definition may create unintended consequences. Section 9 and 14 set the superannuation salary for PSSap members as ordinary time earnings (OTE) for the purposes of the trust deed. However, the OTE definition in the Superannuation Guarantee (Administration) Act 1992 is complex and excludes some payments (e.g., overtime, bonuses). If the incorporated agreement provides for allowances or bonuses that are not OTE, those amounts will not be included in the superannuation salary base. This could reduce employer contributions relative to what a different definition would produce. Employees should check whether all elements of their remuneration are captured by OTE; if they receive significant shift penalties or allowances, they may be disadvantaged compared to a customised superannuation definition in a new enterprise agreement.

Disputes must follow the incorporated procedure before the Commission can act. An employee cannot go straight to the Fair Work Commission with a dispute under the determination. Clause A10 typically requires internal steps: raising the matter with the manager, then a formal dispute notice, then possible mediation by the agency, and only after that can the Commission be approached. If an employee skips steps, the Commission may dismiss the application for failure to comply with the procedure. This can cause delay and frustration, especially if the internal process is slow or unresponsive.

For Services Australia management, compliance means treating the DHS Agreement or DHS Medical Officers Agreement as the operative industrial document for the relevant employee groups. Practical steps include: (1) ensuring payroll systems are configured with the correct salary scales from Schedule 2 of each agreement, and updating those scales promptly after any s24(1) determination is made; (2) applying the same leave accrual, rostering, classification, and allowance rules as were in force under DHS; (3) communicating to managers that references to the “Secretary” in any policy or form derived from the agreement should now read “Chief Executive Officer of Services Australia”; (4) training HR staff on the dispute resolution procedure (clause A10) and ensuring that internal escalation processes match the steps required; (5) maintaining records of any individual flexibility arrangements made under the old DHS agreement, as these survive; (6) monitoring for the making of any new enterprise agreement or workplace determination that would trigger s6 or s11 cessation.

For employees, compliance primarily means understanding that their employment conditions are defined by the incorporated agreement, not by a current enterprise agreement. They should: (1) obtain a copy of the DHS Agreement or DHS Medical Officers Agreement as in force immediately before 1 February 2020 (the determination does not reproduce it); (2) check that any IFA they held under DHS is still operative; (3) follow the clause A10 procedure if a dispute arises, starting with their immediate manager; (4) verify that their salary matches the Schedule 2 rate for their classification, and check whether any s24(1) determination has increased that rate (these can be found on the Federal Register of Legislation); (5) review their payslips to confirm superannuation contributions are based on ordinary time earnings, and query the payroll department if they receive allowances that are not OTE.

For external advisers (lawyers, union representatives, compliance consultants), the key document to consult is the original DHS Agreement or DHS Medical Officers Agreement. The determination itself is short but critical for understanding the legal basis. When advising on disputes, check whether the Fair Work Commission has jurisdiction - the determination provides that clause A10 is a term under paragraph 738(d) of the Fair Work Act, so the gateway should be open, but careful analysis of the clause’s text is needed. When bargaining for a new enterprise agreement, the determination’s existence affects the timeline: there is no expiry pressure, so a notified industrial dispute or bargaining order may be necessary to force negotiations. The determination also means that unless the new agreement explicitly deals with IFAs, the s7(2)(d) modification may preserve existing IFAs, which could complicate the new agreement’s operation.

Compliance with the determination also requires vigilance about its interaction with future legislative changes. The Public Service Act and Fair Work Act are frequently amended; changes that affect the definition of “APS employee”, “enterprise agreement”, or the powers of the Fair Work Commission could alter how the determination functions. For instance, if the Fair Work Act is amended to treat such determinations as enterprise agreements for certain purposes, the dispute resolution gateway might change. The determination itself cannot be amended except by a new instrument under s24(3); management should monitor for any such amending instruments.

Finally, recordkeeping is essential: the determination applies terms as in force immediately before commencement. If the DHS Agreement was varied between 2017 and 2020, the correct version is the one just before 1 February 2020. Services Australia should preserve a certified copy of that version for each agreement. Without it, employees would struggle to know their entitlements, and the Fair Work Commission may have difficulty determining disputes.