Pay & Conditions

The Commissioner has the authority under section 72 of the PS Act to move employees in and out of the APS following a MoG change. See People Management for more information.

Agency heads/accountable authorities have the authority under section 24(1) of the PS Act to vary the terms and conditions of employment for entity employees.

In exceptional circumstances, the Minister for the Public Service can determine conditions of employment for APS employees under section 24(3) of the PS Act.

Where an employee from an APS entity moves to another APS entity:

• annual salary will be the greater of the salary that applied immediately before the move and the salary that would apply after the move (section 85(2) of the PS Regulations)
• other terms and conditions may be varied following consultation (section 85(4) of the PS Regulations)
• most commonly, terms and conditions, other than salary for employees who transferred, will be those that apply in the receiving entity.

Where an employee from an APS entity moves to a non-APS Commonwealth entity:

• the employee is entitled to have their pay and conditions maintained until the next amendment to the relevant industrial award or instrument (section 72(3) of the PS Act).

Where an employee from a non-APS Commonwealth entity moves to an APS entity:

• terms and conditions may be varied following consultation (section 86(2) of the PS Regulations)
• entities must consult with the APSC on any implications for the application of the Government's current workplace relations policy.

In most cases affected employees are moved to the nearest equivalent, or greater, pay point in the receiving entity’s industrial instrument, relevant to the employee’s classification. Some industrial instruments also provide for salary matching within a salary span or pay points on movement. Where the employee’s salary exceeds the highest pay point available at the relevant classification, then salary maintenance applies. Salary protection continues until the salary in the receiving entity’s industrial instrument catches up with the employee’s salary as it was before the move. Any relevant provisions in the receiving entity’s industrial instrument need to be considered.

For non-ongoing APS employees who transfer to another APS entity, salary maintenance will apply for the duration of an existing contract. Relevant provisions of the receiving entity’s industrial instrument would also apply.

Annual salary is the employee’s salary set out in an industrial instrument. It does not include such things as higher duties allowance, travel and other expenses or bonuses. Any individual flexibility arrangement should be considered on a case-by-case basis. 

Entities are encouraged to contact the APSC for more advice.

Salary maintenance does not apply to new employment contracts, including new non-ongoing contracts.

There is no entitlement to future salary increases based on the transferring entity’s industrial instrument. Following a move, the receiving entity’s industrial instrument governs pay increases for an employee.

An industrial instrument can include an enterprise agreement, a determination made under section 24 of the PS Act, a Fair Work Commission determination, or an award.

In most cases, the receiving entity’s industrial instrument will apply to non-SES employees who have moved to that entity as the result of a MoG change.

Entities should contact the APSC for advice in relation to these or any other exceptions.

A determination under section 24 of the PS Act is the industrial instrument that provides terms and conditions for non-SES employees who have transferred as the result of a MoG change, where terms and conditions are not covered by an existing industrial instrument.

The receiving entity’s agency head/accountable authority or the Minister may establish terms and conditions for affected employees by making a determination under section 24 of the PS Act at any time, including where:

• there is no industrial instrument in place in the receiving entity, for example in a new entity (see New APS Entity)
• the receiving entity’s industrial instrument does not include provisions essential for the operation of the transferred functions, for example, shift work or remote locality provisions
• it is agreed to vary terms and conditions for an employee who moves from a non-APS Commonwealth entity to an APS entity.

A section 24 determination should only be made following a MoG change to preserve an employee’s pre-existing terms and conditions and not to introduce new arrangements.

The receiving entity’s agency head/accountable authority or the Minister is not obliged to carry across any, or all, of the terms and conditions that previously applied. In some cases, it may not be practical to preserve particular conditions, for example, access to work-based childcare may not be available in the receiving entity.

Entities should contact the APSC as soon as possible where they propose to make a section 24 determination for non-SES employees. Particular approval processes may apply under the Government’s current workplace relations policy.

Terms and conditions for SES employees are generally determined by:

• section 24(1) of the PS Act - the receiving entity needs to establish whether or not a new section 24(1) determination is required for any SES employee who is moved, or
• common law contracts - entities are advised to seek legal advice in relation to these contracts. Whether they continue to apply will depend on their terms.

In general, provisions of the Fair Work Act 2009 relating to a transfer of business do not apply to movements between APS entities.

Where the provisions do apply, the industrial instruments from the transferring entity that are relevant to the employees who transfer will apply. These instruments continue to operate until they expire or are replaced by a new industrial instrument.

Entities should contact the APSC for advice in relation to a proposed transfer of business.

Entities should contact the APSC where approval has been granted, or is requested, to pay an APS employee an amount above that specified in the APS Executive Remuneration Management Policy.

Where a proposed determination covers superannuation provisions and may have an impact on employee superannuation, entities should contact the Electoral and Superannuation Policy Branch in Finance. The branch can also provide information on superannuation arrangements for Commonwealth employees.