Non-APS Commonwealth Entity to an APS Entity

Legislative basis

The PS Act under section 72(1)(c) provides that the Commissioner may determine in writing that non-APS employees cease to be employed as non-APS employees and become engaged as APS employees in a specified an APS entity. See People Management. 

Entities should consider whether any additional legislation is required to facilitate the movement of employees into the APS.
 

Classifications and duties

In accordance with section 6 of the Public Service Classification Rules 2000, non-APS employees must be allocated an approved APS classification and duties on transfer to the receiving APS entity.

Entities, in consultation with the APSC, must provide assurance that proposed classifications are appropriate for the roles the employees will be performing in the receiving APS entity. This will involve completing role evaluation(s) to determine the relative work value of a job role. Entities must use the APS Role Evaluation Tool for this purpose. 
 

Terms and conditions

Where an employee from a non-APS Commonwealth entity moves to an APS Commonwealth entity, their terms and conditions of employment may be varied following consultation (section 86(2) of the Public Service Regulations 2023).

The PS Act gives agency heads/accountable authorities under section 24 the authority to vary the terms and conditions of employment for entity employees. See Pay and Conditions.

Entities should seek legal advice in this circumstance as there may be Fair Work Act 2009 implications where the move is a transfer of business.
 

Excess employees

Where the receiving entity indicates that it will require fewer employees to perform the transferred function, entities will negotiate the management of excess employees.

Workplace relations

APS agency heads/accountable authorities are responsible for managing workplace relations matters with their employees consistent with the provisions of the Fair Work Act 2009. Entity agreements and other instruments setting terms and conditions of employment must be consistent with the Government’s employment policies, including the Government’s current workplace relations policy for the Commonwealth public sector.

Where an entity is considering a change to its current workplace arrangements, the entity should contact the APSC to discuss before proceeding.

For SES employees and their equivalents, terms and conditions of employment are set through individual arrangements, either common law arrangements or through a determination made under section 24 of the PS Act.
 

Other matters

Receiving APS entities are expected to conduct a detailed induction program for employees new to the APS, to cover key features of working in the APS, including:

• APS Values, Employment Principles and Code of Conduct
• APS employment framework described in the PS Act
• obligations under the PGPA Act.

This information is relevant to entities that perform regulatory functions. The Australian Government Regulatory Policy, Practice and Performance Framework provides six principles for regulatory policy makers and regulators. The Framework is supported by RMG-128 which provides guidance on regulator performance reporting.

Entities that perform regulatory functions should develop Ministerial Statements of Expectations and responding Regulator Statements of Intent as soon as practicable following completion of a MoG change. Statements should be developed using a consultative approach through engagement with portfolio policy teams and Ministers’ offices as appropriate.

A Statement of Expectations is issued by the responsible Minister to a regulator’s accountable authority to provide greater clarity about government policies and objectives relevant to the regulator in line with its statutory objectives, and the priorities the Minister expects it to observe in conducting its operations. A Regulator Statement of Intent responds to the expectations set out in a Ministerial Statement of Expectations. It outlines how the regulator intends to meet those expectations including how it will demonstrate progress.

For advice on:

• governance, funding, banking and financial arrangements, please contact Finance
• transfer requirements for the management of information assets, please contact the National Archives of Australia.