People Management

Section 72 of the Public Service Act 1999 (PS Act) gives the Commissioner the authority to move employees following a MoG change. The Commissioner can:

• move APS employees to another APS 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 APS agency
• on behalf of the Commonwealth, engage any person as an APS employee in a specified APS agency.

The Commissioner (or their delegate) makes a written determination based on advice from the affected entities:

• as early as possible following the confirmed MoG decision, the Australian Public Service Commission (APSC) will provide affected entities with advice on responsibilities and timeframes for the completion of the draft section 72 determination
• the APSC is responsible for drafting the determination
• the transferring entity is responsible for providing the employee list and both entities must agree to the employee list before the Commissioner (or their delegate) will make the determination
• the section 72 determination will provide for continuity of employment circumstances and outstanding employment decisions in the receiving entity, see Outstanding Employment Matters below
• the section 72 determination will be executed by the Commissioner (or their delegate) on the business day prior to the agreed movement date.

Actions taken in accordance with section 72 of the PS Act are not reviewable actions for the purpose of the review of actions scheme provided by the Public Service Regulations 2023.

Where possible, section 72 determinations should take effect on a public service payday unless otherwise agreed by the affected entities. This is to reduce administration resulting from the calculation of partial pay-fortnight salary and entitlements for employees.

Entities should ensure that their HR areas or shared service providers have received signed copies of section 72 determinations with sufficient notice to enable them to include movement of employees in the proposed pay run.

The established protocol of ‘employees follow function’ will apply and employees will transfer with their function/activity. This includes ongoing and non-ongoing APS employees. Entities may agree to a function to be moved without employees. In such cases, vacant average staffing level (ASL) positions attached to the function would move to the receiving entity unless otherwise agreed.

While not included in the section 72 determination, any contractors associated with the function/activity being transferred are to be identified.

Once all employees to be transferred have been identified, the transferring entity is to provide the receiving entity with all relevant information of the transferring employees such as payroll data (for example, length of service, leave records, salary sacrifice and superannuation contributions).

Entities are encouraged to share this information as soon as practicable, noting that this can occur prior to executing the section 72 instrument.

The movement of corporate employees will be negotiated between entities. Where corporate employees are considered ASL, the movement of these employees should follow the requirements of transferring ASL.

This can be particularly challenging, see Movement of corporate functions and shared services and Average Staffing Levels for further information.

Comcare has developed tools and guidance to assist entities to reduce the psychosocial risks of workplace change, available from their page on Poor organisational change management.

The transferring entity should review and assess the organisational safety management system including any component that makes up the system such as policies, procedures, risk assessment methodologies, incident reporting and training to determine the relevant components that will need to be transferred to the receiving entity. Once determined, the transferring entity should transfer all relevant information and components.

The transferring entity should also review work health and safety (WHS) unit records to determine whether any specialist and ergonomic equipment has been provided to employees that will be transferring to the receiving entity. Both entities should review the needs of the transferring employees to determine how best to accommodate any specialist WHS equipment that they will need.

The transferring and receiving entities must consult on any WHS matters that could have an impact on the employees being transferred to the receiving entity. The transferring entity must also consult with employees who will be or are likely to be affected by the transfer. Employees being transferred, and in particular those with specialist requirements, may need to be provided with support.

Affected entities must review their delegations, including delegations under the PS Act. Delegations and authorisations attached to employees from a transferring entity will cease to have effect in the receiving entity

The receiving entity should provide an appropriate induction for all employees joining the receiving entity. It should also be noted that visible senior sponsorship of the MoG change is important for employee morale.

In most cases, the transferring entity’s policies and procedures in relation to the return of assets and other items will apply.

The transferring entity should undertake an appropriate exit or cessation process for employees moving to the receiving entity to ensure the:

• return of assets including credit cards, mobile phones, computers/laptops/tablets and vehicles,
• transfer of security clearances and entitlements,
• resolution of any under or overpayments, and 
• changes to system and building access can be finalised.

APS employees are transferred at their existing substantive classification level and duties.

Where there are differences in classification structures between transferring and receiving entities, entities, in consultation with the APSC, should develop a strategy for addressing these differences.

If the receiving entity is an APS agency for the purposes of the PS Act, the agency head/accountable authority must allocate an approved classification under the Public Service Classification Rules 2000 and assign duties to all employees who have moved following a MoG change.

The receiving entity’s agency head/accountable authority can execute a global instrument allocating the same approved classification as previously applied to an employee or a corresponding classification in the same APS classification group.

Non-APS employees transferring to an APS entity must be allocated an approved APS classification and duties on transfer to the receiving APS entity.

See the MoG Scenario on Non-APS Commonwealth Entity to an APS Entity for more information.

Employees can only be transferred at their existing employment status (that is, ongoing or non-ongoing), or where the employee is a non-APS employee, an equivalent employment status (for example, permanent to ongoing). 

Non-ongoing employees do not require a renewed letter of offer and are transferred to the receiving entity:

• for a period equal to the unexpired part of their existing term of engagement, or
• for the remainder of the duration of the task, or
• on an existing irregular or intermittent basis.

Where a receiving entity extends the engagement of a non-ongoing employee, the total period of engagement, and total number of contract terms, is calculated as if it had all been in the receiving entity.

Where individual employees have flexible working arrangements in place, such as approval to work remotely or for a non-standard work pattern, these may be reviewed and should, wherever practicable, be continued in the receiving entity.

Understanding, communicating with and supporting a diverse workforce during a MoG change is critical. A diverse workforce may include employees with any of the following identity dimensions:

• age 
• disability 
• mental ill health 
• gender
• Aboriginal and/or Torres Strait Islander heritage 
• culturally and linguistically diverse (CALD), and
• Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning/Queer + (LGBTIQ+).

It is important to understand the impact of change on different groups of people and the support that may be required when implementing a MoG change to ensure psychological, psychosocial and physical safety.

A receiving entity’s agency head/accountable authority cannot impose or vary a condition of engagement under section 22(6) of the PS Act for an APS employee who has moved as the result of a MoG change.

However, an agency head/accountable authority may impose a continuing condition of employment where it is essential for an employee to meet certain requirements to perform a particular set of duties. Such conditions could include: fitness for duty or health clearances, attainment or upgrade of a security clearance, a licence or a qualification. The receiving entity is responsible for managing employees who are unable to meet a condition of employment.

Where imposition of a new condition of employment is proposed for an employee who has moved as the result of a MoG change and where the duties have not altered, the entity should consult the APSC. Obtaining legal advice may also be necessary. 

In accordance with section 72(5A) of the PS Act, the Commissioner may determine how certain outstanding employment related matters for APS employees will be handled, including:

• conditions of engagement
• conditions of employment
• APS Code of Conduct investigations and resultant sanctions
• suspension for a suspected breach of the APS Code of Conduct
• processes relating to performance management, fitness for duty, loss of an essential qualification and excess employees.

Conditions of engagement that are yet to be fulfilled by an employee will generally continue to apply at the receiving entity. For example, an individual’s probationary period will continue as if it had commenced at the receiving entity.

An application for a Review of Action under section 33 of the PS Act cannot transfer between entities.

In some cases, it may be in the interests of all parties that an employee not transfer until an outstanding employment matter is resolved.

Clauses for facilitating the continuation of outstanding employment matters are included in the draft section 72 determination. 

Transferring entities may choose to finalise performance appraisals and arrange payment of pro-rata performance bonuses, where these apply.

For more information on security clearances, see Security Clearances.

Generally, excess employees remain in the transferring entity unless the transfer of function means they would no longer be excess to requirements at the receiving entity.

This is not possible where the transferring entity is to be abolished. In this case, all employees must be moved and section 72(5A) provisions should be included in the determination that detail how their situation is to be managed. For example, whether previous processes continue or cease to apply.

Unfinished recruitment actions are not included in the section 72 determinations.

Transferring entities are responsible for advising the receiving entity of any outstanding recruitment relating to positions in the function transferring as soon as possible.
 

Where a decision to engage or promote an individual has been made by the transferring entity but not yet come into effect

Entities are encouraged to ensure that decisions to engage or promote an employee are only made where the individual is able to commence in the role prior to the MoG change taking effect. Where an engagement or promotion decision has not taken effect prior to a MoG change, the decision may lapse when the MoG change comes into effect.

1. Where the transferring entity ceases to exist, any decision the transferring entity’s agency head/accountable authority took to engage or promote a preferred applicant that has not yet taken effect at the time of the MoG change will lapse.
2. Where the transferring entity continues to exist, but the function associated with the employment opportunity now exists in the gaining entity: 
   1. The receiving entity’s agency head/accountable authority may seek to fill a vacancy using a recruitment process undertaken by the transferring entity where the transferring entity agrees to share the resulting merit list, merit pool, or single successful candidate from that process. This is provided for on the basis that the vacancy being filled meets the criteria of a ‘similar vacancy’ as defined in the Commissioner’s Directions. In this case, an engagement or promotion decision is finalised and approved by the new agency head/accountable authority. Alternatively, the transferring entity could seek to bring the engagement/promotion forward to before the MoG change; or
   2. The transferring entity will need to decide whether to cancel the employment decision or engage/promote the candidate into a different similar vacancy.

Where the receiving entity will proceed with the engagement or promotion, the individual should be notified as soon as possible that the position is now with another entity, which may have different terms and conditions of employment. The receiving entity is responsible for ensuring the individual is made aware of potential differences in terms and conditions.

Where the engagement or promotion will not proceed, then the transferring entity must notify the candidate that the engagement or promotion decision will not take effect.
 

Where a decision to engage or promote has not yet been made

The receiving entity’s agency head/accountable authority may seek to proceed with a recruitment action based on the recruitment process undertaken by the transferring entity. This is provided for on the basis that the recruitment process has concluded, a merit list or merit pool has been created and the transferring agency agrees to share it, and the vacancy is a ‘similar vacancy’ as defined in the Commissioner’s Directions. In this case, engagement or promotion decisions would be made by the receiving entity’s agency head/accountable authority.
 

Where a recruitment process in a transferring entity has not been completed

Partially completed recruitment processes relating to transferring functions cannot be continued in the receiving entity after the MoG change comes into effect.

It is recommended that entities complete recruitment activities prior to a MoG change. Where this is not possible, the entity conducting the recruitment process should notify candidates that the process has been discontinued.
 

Reassignment of duties under section 26 of the PS Act (permanent or temporary)

In instances where a section 26 transfer (either temporary or permanent) for an employee, who is subject to a MoG change to move to a third entity, has been agreed by the transferring entity but not yet taken effect, a new agreement between the parties will need to be reached.

Where an employee was to move via section 26 transfer to a MoG affected function in the transferring entity from a third entity, a new transfer arrangement will need to be negotiated between the receiving and third entities.

A pragmatic approach should be taken in these circumstances to negotiate a solution which represents a balance of the best interests of all parties involved.

Merit pools or lists created by transferring entities may continue to be used to fill similar vacancies within 18 months from the original date of notification of the vacancy in the Public Service Gazette, except where the transferring entity has been abolished.

Any decisions using these merit pools or lists must still be consistent with the relevant legislative requirements, and are subject to the agreement of the transferring entity.

The APSC administers the Government’s Senior Executive Service (SES) Cohort policy, which supports the approval and monitoring of SES numbers in APS entities.

If a new APS entity is created, the agency head should write to the Commissioner to establish the approved size of its SES cohort.

If a MoG change results in the movement of SES employees and/or positions between entities, the respective agency heads must agree, in writing, on the number of SES positions that will be transferred and whether they are permanent or temporary. The agency heads should also note how the transfer of SES employees and/or positions would affect the approved size of their respective SES cohorts. Each entity should advise the APSC of the agreed arrangements once the transfer has concluded.

If a MoG change results in the transfer of non-APS employees into an APS SES role, the receiving entity will not receive an equivalent increase to its SES cohort. The receiving entity will be required to seek approval for any associated increase to its SES cohort.

More information about pathways to increasing an entity’s SES cohort can be found on the APSC’s SES Cohort policy.

There is no power under the PS Act to compel state or territory employees to move into the APS, or for APS employees to move to state or territory public services.

Where the Commonwealth takes responsibility for state or territory functions, the Commissioner has the authority to engage a person as an APS employee under section 72(1)(d) of the PS Act. This is not a compulsory transfer. It allows the engagement of a person as an APS employee outside of the usual merit requirements.

Employees who are not offered an APS position, or who do not accept such an offer, will remain the responsibility of the state or territory.

There is no power under the PS Act to compel a statutory office holder to move to the transferring entity as the result of a MoG change. The Commissioner has the authority to engage a person as an APS employee under section 72(1)(d) of the PS Act if this is appropriate in the circumstances.

Where an AAO change results in the transfer of administrative responsibility for legislation establishing a statutory office holder from one portfolio to another, the office holder would move with the legislation.

Where an Independent Selection Advisory Committee (ISAC) had been established to assist with recruitment processes in the transferring entity:

• if no recommendations have been made, the receiving entity is unable to use the ISAC for employment opportunities that exist in the receiving entity
• if recommendations have been made, the transferring entity may choose to use the recommendations for employment opportunities that still exist in the transferring entity.

MoG changes can affect arrangements with Comcare. Changes may result in:

• an entity’s premium rate and amount increasing or reducing with the reassignment of employees to different entities
• a change to the rehabilitation authority for employees with workers’ compensation claims
• changes in administrative details such as contact information.

Further information is available from Comcare or you can contact your Comcare Account Manager at eam@comcare.gov.au. 

Any ongoing employee health issues, whether or not they are compensable, should continue to be managed by the receiving entity.