Machinery of government changes
72 Machinery of government changes
The Commissioner may do any of the following, if the Commissioner is satisfied that it is necessary or desirable in order to give effect to an administrative re‑arrangement:
move APS employees to another Agency (without anyone’s consent), by a determination in writing;
determine in writing that APS employees cease to be APS employees and become non‑APS employees of a specified Commonwealth body or Commonwealth authority;
determine in writing that non‑APS employees cease to be employed as non‑APS employees and become engaged as APS employees in a specified Agency;
on behalf of the Commonwealth, engage any person as an APS employee in a specified Agency.
A determination by the Commissioner has effect according to its terms, by force of this section.
If an APS employee (the transferred employee) becomes a non‑APS employee of a Commonwealth body or Commonwealth authority under paragraph (1)(b), the employee is entitled to remuneration and other conditions of employment that are not less favourable than the terms and conditions to which the employee was entitled as an APS employee, immediately before ceasing to be an APS employee, under:
a fair work instrument; or
a WR Act transitional instrument; or
a determination under this Act; or
a written contract of employment.
Subsection (3) ceases to have effect on the next occasion when there is a relevant change in the terms and conditions of employment applicable to the transferred employee or a class of employees that includes the transferred employee. For this purpose, relevant change means a change that results from:
the making, variation or termination of a modern award, an enterprise agreement, a workplace determination or a written contract of employment; or
the variation, termination or replacement of a WR Act transitional instrument.
The regulations may prescribe arrangements for determining any variation of the terms and conditions of employment applicable to:
APS employees who are moved to another Agency under paragraph (1)(a); and
persons who become APS employees under paragraph (1)(c).
If:
an APS employee is moved from an Agency (the former Agency) to another Agency (the new Agency) under paragraph (1)(a); and
prescribed circumstances existed in relation to the employee’s employment in the former Agency before the employee moved to the new Agency;
the Commissioner may determine the measures (if any) that are to be taken in relation to those circumstances after the employee has moved to the new Agency.
In this section:
administrative re‑arrangement means any increase, reduction or re‑organisation in Commonwealth functions, including one that results from an order by the Governor‑General.
Commonwealth authority includes a company in which the Commonwealth has a controlling interest.
non‑APS employee means a person who is employed by the Commonwealth or by a Commonwealth authority, but does not include an APS employee.
workplace determination has the same meaning as in the Fair Work Act 2009.
This provision refers to the regulations (The regulations may prescribe
, prescribed circumstances
). Made under this Act:
- Prime Minister’s direction under subsection 21(1) · Legislative Instrument · under s 21(1)
- Prime Minister’s direction under subsection 21(1) – 2020 (No. 1) · Legislative Instrument · under s 21(1)
- Public Service (Commissioner's Functions) Direction 2026 · Legislative Instrument · under para 41(2)(q)
4 more instruments made under this Act are listed on the Act’s overview.
This Act’s bill:Explanatory memorandumSecond reading speech
The statute text is free to read above. View subscription options to unlock the case-law research tools for each provision.