This scenario provides additional information for entities where functions, employees and/or resources are moved from an APS entity to a non-APS Commonwealth entity. It should be read in conjunction with all Key Topics in this guide.
A Machinery of Government (MoG) change can lead to the movement of a Commonwealth function from an APS entity operating under the Public Service Act 1999 (PS Act) to a Commonwealth entity that is not an APS entity and operates under different legislation.
Entities are expected to implement the MoG change in a way consistent with the MoG principles and operational protocols outlined in the Executive Overview.
Movement of people
Legislative basis
The PS Act gives the Commissioner, under section 72(1)(b), the authority to move an APS employee to an entity that is not an APS entity. See People Management.
Entities should consider whether legislation to facilitate the movement of employees out of the APS is required.
Terms and conditions
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). See Pay and Conditions.
Entities should seek legal advice about whether the move is a transfer of business.
Entities should be aware that the Maternity Leave (Commonwealth Employees) Act 1973 (ML Act) only automatically covers APS entities. This means that when an entity moves out of the APS, its employees are no longer covered and maternity leave provisions are conferred by the entity’s industrial instrument. The APSC can be contacted for further advice.
Coverage of the Long Service Leave (Commonwealth Employees) Act 1976 (LSL Act) is not usually affected by movement out of the APS. The LSL Act generally covers persons employed under a law of the Commonwealth. If an entity is in doubt about coverage under the new arrangement, it should consult with the APSC and/or seek legal advice.
Returning to the APS
Generally, employees who have moved out of the APS as the result of a MoG change cannot apply for positions in the APS advertised as available to APS employees only.
Exceptions include:
- employees who transfer to an entity operating under the Parliamentary Service Act 1999 are able to re-enter the APS under mobility provisions in the PS Act
- where provisions are included in enabling legislation for the receiving entity.
Entities should note that arrangements to facilitate the re-entry of former APS employees are rare. Entities should contact the APSC as soon as possible if considering this.
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.
To maximise excess employees’ opportunity to find work in the APS it may be appropriate to facilitate redeployment to other APS entities before the administration of the MoG change is completed.
Governance & financial management
For advice on:
- governance, funding, banking and financial arrangements, please contact Finance.
- transfer of custody and ownership of information assets, please contact the National Archives of Australia.
