Machinery of Government changes · Web viewTable of Contents Executive summary6 Overview6 Dispute...

Last updated 4 April 2019 1You should always refer to the Australian Public Service Commission website for the most current information.

http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government

Table of ContentsExecutive summary............................................................................................................................6

Overview........................................................................................................................................ 6

Dispute resolution..........................................................................................................................6

Principles........................................................................................................................................ 7

Defined terms.................................................................................................................................7

More information...........................................................................................................................7

What is a Machinery of Government change?...................................................................................9

About MoG changes.......................................................................................................................9

Administrative Arrangements Order..............................................................................................9

Enabling legislation.......................................................................................................................10

Name change................................................................................................................................10

MoG change date of effect...........................................................................................................10

Role of central agencies............................................................................................................... 10

Planning and due diligence...............................................................................................................11

Planning........................................................................................................................................11

Independent advisor.................................................................................................................... 11

Steering committee......................................................................................................................12

Due diligence................................................................................................................................12

Meeting milestones......................................................................................................................13

Dispute resolution process...........................................................................................................13

Communication strategy..............................................................................................................14

People management........................................................................................................................ 15

Legislative basis............................................................................................................................15

Identifying all employees who will be transferred.......................................................................15

Corporate employees...................................................................................................................16

Work Health and Safety............................................................................................................... 16

Delegations...................................................................................................................................16

Induction...................................................................................................................................... 16

Leaving an agency........................................................................................................................ 16

Classification and duties...............................................................................................................16

Employment type.........................................................................................................................16

Conditions of engagement...........................................................................................................17

Conditions of employment...........................................................................................................17



Flexible work arrangements.........................................................................................................17

Employees with a disability..........................................................................................................17

Outstanding employment matters...............................................................................................18

Senior Executive Service (SES) cap...............................................................................................18

Executive Remuneration Management Policy..............................................................................18

Movement of State or Territory employees.................................................................................18

Movement of statutory office holders.........................................................................................19

Unfinished recruitment action.....................................................................................................19

Merit lists:................................................................................................................................ 19

Independent Selection Advisory Committees (ISAC)....................................................................20

Movement of workers’ compensation claims..............................................................................20

Pay and conditions........................................................................................................................... 21

Legislative basis............................................................................................................................21

Pay and conditions....................................................................................................................... 21

Annual salary................................................................................................................................21

Industrial instruments..................................................................................................................22

Section 24 determinations...........................................................................................................22

SES employees..............................................................................................................................23

Transfer of business..................................................................................................................... 23

Executive Remuneration Management Policy..............................................................................23

Employee superannuation........................................................................................................... 23

Financial management—first 72 hours............................................................................................25

Delegations of powers..................................................................................................................25

Outcome statements....................................................................................................................26

Contact with Finance....................................................................................................................26

Download of Financial Management Information Systems (FMIS)..............................................26

Governance and financial management—other issues....................................................................27

Accountable Authority Instructions (AAIs)...................................................................................27

Annual appropriations..................................................................................................................27

Appropriation considerations...................................................................................................28

Annual estimates..........................................................................................................................28

Assets and liabilities..................................................................................................................... 28

Audit committees and fraud control plans...................................................................................28

Average Staffing Level (ASL).........................................................................................................28

Bank accounts.............................................................................................................................. 28

Central Budget Management System (CBMS)—access................................................................28



CBMS cash management (CM) module........................................................................................28

CBMS—changes to CBMS reference data structures (RDS)..........................................................28

CBMS—changes to estimates and actuals....................................................................................28

CBMS—third party drawing access..............................................................................................28

Charging arrangements................................................................................................................28

Competitive neutrality..................................................................................................................28

Corporate plan requirements.......................................................................................................28

Delegations of powers..................................................................................................................28

Employee leave entitlements.......................................................................................................28

Financial reporting arrangements................................................................................................28

Grants...........................................................................................................................................28

Holding a function for less than a year.........................................................................................28

Insurance......................................................................................................................................28

Outcome statements and program structures.............................................................................28

Portfolio statements.....................................................................................................................28

Procurement................................................................................................................................ 28

Property management/leasing.....................................................................................................28

Relocation costs........................................................................................................................... 28

Retained entity receipts...............................................................................................................28

Special accounts...........................................................................................................................28

Special appropriations..................................................................................................................28

Superannuation............................................................................................................................28

Movement of corporate functions and shared services...................................................................28

Corporate functions..................................................................................................................... 28

Where a MoG change is complex.................................................................................................28

Where a MoG change is small......................................................................................................28

Shared Services............................................................................................................................ 28

Records management...................................................................................................................... 28

Movement of records...................................................................................................................28

National Archives of Australia......................................................................................................28

Managing the transfer..................................................................................................................28

Privacy.......................................................................................................................................... 28

FOI requests................................................................................................................................. 28

Information Technology...................................................................................................................28

Information and communications technology strategy................................................................28

ICT checklist..................................................................................................................................28



APS agency to non-APS agency........................................................................................................28

Movement of people....................................................................................................................28

Legislative basis........................................................................................................................28

Terms and Conditions...............................................................................................................28

Returning to the APS................................................................................................................28

Excess staff............................................................................................................................... 28

Governance and financial management.......................................................................................28

Non-APS Commonwealth agency to an APS agency.........................................................................28



Terms and conditions...............................................................................................................28

Excess staff............................................................................................................................... 28

Working in the APS.......................................................................................................................28

The Public Service Act 1999......................................................................................................28

Workplace relations................................................................................................................. 28

Other matters...........................................................................................................................28


New department/APS agency..........................................................................................................28

New departments – urgent action...............................................................................................28

Transfer of funding...................................................................................................................28

Department receives functions from an abolished department..............................................28

Department receives function from an existing department...................................................28

Outcome statements and program structures.........................................................................28

Departments and APS agencies....................................................................................................28

Delegations...............................................................................................................................28

Accountable Authority Instructions..........................................................................................28

Corporate plan requirements...................................................................................................28



Terms and conditions...............................................................................................................28

Excess staff............................................................................................................................... 28

Working in the APS.......................................................................................................................28

Records management.................................................................................................................. 28


Property management and procurement....................................................................................28

..................................................................................................................................................



Machinery of Government changesExecutive summary

The Government expects Machinery of Government (MoG) changes to be implemented as quickly as possible to support the Government’s priorities, with a focus on achieving the best outcomes for the Australian community across the whole of government.

Overview

1. The Government expects MoG changes to be implemented cooperatively and in a timely manner.

2. The Prime Minister may specify a date by which a MoG change is to be completed (the completion date). However, if the Prime Minister does not specify a completion date, agencies are expected to complete MoG changes within thirteen weeks from the date of effect of the MoG change.

3. Agency heads involved in the MoG change are responsible for meeting this deadline and for implementing MoG changes in accordance with the principles outlined in this guide and other relevant guidance.

4. The Department of the Prime Minister and Cabinet (PM&C), the Department of Finance (Finance) and the Australian Public Service Commission (APSC) will set milestones within the completion date, as appropriate, to assist agencies with their planning.

5. Agencies are responsible for managing the completion of MoG changes and for negotiating and resolving contested issues.

6. Agencies are encouraged to appoint an independent advisor to manage the MoG process, facilitate negotiations and to help resolve contested issues. An independent advisor must be appointed if milestones are not being met.

7. It is good practice to complete a thorough due diligence exercise within the first five to ten days to identify complex or contested issues early. As soon as it is apparent that a MoG is complex or contested, an independent advisor should be appointed to identify potentially contentious issues and mediate a resolution.

8. The sharing of all relevant information between agencies to inform negotiations and the due diligence process is paramount to a speedy MoG change.

9. A risk management approach will be required to avoid letting relatively minor issues delay negotiations.

Dispute resolution

10. It is expected that agency heads and Secretaries of the respective portfolio departments will step in to reach a decision where agencies cannot resolve a matter at the working level.

11. Agencies must advise PM&C, Finance and the APSC of any delays in finalising negotiations and if the completion date may not be met. If appropriate, Finance and



the APSC may adjust milestones and may assist the appointed independent advisor to mediate between the affected agencies.

12. If a matter remains unresolved and meeting the completion date looks in doubt, a recommended position by the independent advisor on the matter must be escalated to a committee chaired by the Secretary of PM&C and comprising the Secretary of Finance and the Australian Public Service Commissioner (the Commissioner).

13. Affected agencies will be informed of the protocols for taking matters to the Committee once it is clear that escalation is likely.

14. If necessary, Finance may transfer funds and the Commissioner may transfer staff without the agreement of agencies.

Principles

15. The following principles apply to implementing MoG changes.

a. Taking a whole-of-government approach:

good faith negotiations open and honest identification of resource implications timely and accurate exchange of information.

b. Constructive and open communication with staff:

early advice and assistance to staff consultation—employees have opportunities to contribute to the implementation

process within the boundaries of Government decisions acting with integrity.

c. Accountability and compliance with legislation and policy:

ensure adequate records management follow established procedural frameworks, such as the ‘staff follow function’; ‘finances

follow function’; and ‘obligations follow function’ while taking account of reforms such as shared services.

16. These principles apply to MoG changes irrespective of any historical budget decisions. Staff and annual appropriations devoted to a function at the point of the MoG change are transferred to the gaining agency. Gaining agencies are to accept the obligations connected with the staff and annual appropriations transferred.

Defined terms

17. Agency/Entity—has the same meaning as corporate Commonwealth entity (CCE) and non-corporate Commonwealth entity (NCE) within the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

More information

18. More information about:

the Commonwealth Resource Management Framework is available from Finance at [email protected]



mailto:[email protected]

financial management is available from Finance at [email protected]

people management is available from the APSC at [email protected].





Machinery of Government changesWhat is a Machinery of Government change?

A MoG change occurs when the Government decides to change the way Commonwealth responsibilities are managed. It can involve the movement of functions, resources and people from one agency to another.

1. Agencies are expected to implement change in a way that is consistent with the principles outlined in the Executive Summary.

About MoG changes

2. A MoG change can be the result of:

a change to the Administrative Arrangements Order (AAO) a decision of the Prime Minister or Cabinet regarding the movement of responsibilities

and functions between agencies (where this change does not result in a change to the AAO).

3. A MoG change can lead to:

the creation of a new government agency the creation of a new portfolio the movement of agencies between portfolios the closure of an existing government agency the movement of functions and responsibilities from:

o an Australian Public Service (APS) agency to another APS agency o an APS agency to a non-APS agency o a non-APS agency to an APS agency.

4. The Department of the Prime Minister and Cabinet (PM&C) will inform agencies of Government decisions resulting in MoG changes.

Administrative Arrangements Order

5. On the advice of the Prime Minister, the Governor-General appoints Ministers, establishes Departments of State and allocates executive responsibility to Ministers through the AAO.

6. The AAO is published in the Commonwealth Gazette and posted on the PM&C website. It describes the principal matters dealt with by each Commonwealth department and the legislation administered by the relevant Minister.

7. Changes to the AAO can happen at any time. Changes are more common following a general election as a new Government puts arrangements in place to implement its priorities and programs.

8. A MoG change within a portfolio, or the movement of some functions between portfolios, may not require changes to the AAO. PM&C will advise on whether a change to the AAO is necessary.



Enabling legislation

9. Legislative change may be needed to implement new administrative arrangements, for example, to create or close an agency. Agencies are advised to seek legal advice if legislative change may be necessary. Where legislative change is required, agencies should prepare drafting instructions to issue to the Office of Parliamentary Counsel.

Name change

10. It may be necessary to change the names of departments and agencies or the title of responsible Ministers as they appear in Acts or legislative instruments. In some cases, the Acts Interpretation Act 1901 can be used to give the same effect. Further advice on the impact of a name change can be obtained from the Attorney-General’s Department.

MoG change date of effect

11. The date of effect of a MoG change will be either:

the date the change to the AAO was issued the date specified in a decision by the Prime Minister or Cabinet, or the date specified in legislation or a legislative instrument.

12. Where a MoG change is anticipated, affected agencies should prepare in advance for the expected date of the MoG change.

Role of central agencies

13. Department of the Prime Minister and Cabinet

informs agencies of the Prime Minister’s decisions on MoG changes.

14. Australian Public Service Commission

makes determinations under section 72 of the Public Service Act 1999 (the PS Act) to move staff

advises on the PS Act, remuneration policy, terms and conditions of employment and workplace arrangements.

15. Department of Finance

makes determinations under section 75 of the PGPA Act to transfer appropriation funding

advises on governance arrangements, superannuation, accounting and budgeting, reporting, banking, information and communication technology, insurance, property management issues and the Central Budget Management System (CBMS).

16. National Archives of Australia

permits the transfer of custody or ownership of records outside the Commonwealth where appropriate

advises on policy, mechanisms and standards for the transfer of information, records and data between agencies.



Machinery of Government changesPlanning and due diligence

It is good practice for agencies to start planning as early as possible.

As soon as it becomes clear that a MoG change will occur, affected agencies are expected to: - consider the appointment of an independent third party to facilitate and advise on the process - establish a cross-agency steering committee to oversee implementation - prepare for an immediate and thorough due diligence exercise, and - develop a communications strategy to keep staff informed

The extent of these actions will depend on the size and complexity of the MoG change.


Planning

2. Responsibility for the following transfers to the gaining agency on the MoG date of effect:

special appropriations in legislation special accounts to which section 80 of the PGPA Act refers revenues and expenses, which are collected or incurred under specific legislation.

3. Agencies should review their instruments of delegation and accountable authority instructions (AAIs) to ensure appropriate arrangements are in place. Where there is a delay between the date of a MoG decision and the date of transfer of agency staff and appropriations, interim delegations (under the PS Act, PGPA Act, etc.) and AAIs may need to be put in place.

4. By the completion date, the following should have transferred to the gaining agency:

the delivery of functions all staff associated with the function annual appropriations under section 75 of the PGPA Act.

Independent advisor

5. An independent advisor should be appointed by affected agencies to manage the MoG process in circumstances where:

the MoG change is sensitive or complex the MoG change involves the closure of an entity the affected agencies are having difficulty in resolving issues.

6. An independent advisor must be appointed in circumstances where milestones are not being met. Once a MoG change is announced, milestones will be set to ensure the completion date is achieved.



7. The independent advisor’s role is to manage the process of information exchange between the losing and gaining agencies. This can involve:

managing a detailed examination of all aspects of the function being transferred, including assets and liabilities and statutory, contractual and other arrangements, to identify any issues which may need to be addressed—see also Due Diligence

assisting the losing and gaining agencies to resolve outstanding issues.

8. If outstanding issues are unable to be resolved, the independent advisor is to determine and recommend a position on the matter for escalation to a committee chaired by the Secretary of PM&C and comprising the Secretary of Finance and the Commissioner—see also Dispute resolution process.

9. Finance can provide affected agencies with advice around the appointment of independent advisors.

10. Affected agencies should agree on an advisor and arrange their engagement.

11. The costs of engaging the services of an independent advisor are expected to be shared equally between the affected agencies.

Steering committee

12. Good practice supports the creation of a steering committee to oversee implementation and where required, to support an independent advisor. Such a committee would operate with:

representatives from all affected agencies—managers from corporate or enabling services as well as programs

clear lines of responsibilities for individuals and groups governance mechanisms and protocols for recording key decisions regular reporting to the executives of all affected agencies.

13. The steering committee may be assisted by smaller working groups.

Due diligence

14. Losing agencies are to provide gaining agencies with the following information as soon as possible:

information gathered from due diligence checks timely and accurate information.

15. Due diligence requires a detailed examination of all aspects of the function being transferred. Issues to be addressed include:

the statutory basis of programs and functions the Australian Government Organisations Register, accessible to assist in identifying

secondary and related bodies (committees, advisory and expert panels, boards, statutory branded functions etc.) that may be required to be moved

funding agreements, partnerships, joint ventures, taxation issues delegations and authorities assets and liabilities, intellectual property records and information management contractual arrangements for property, equipment and goods and services



transfer personal information in accordance with the Privacy Act 1988 outstanding legal action and freedom of information (FOI) requests unfinished audits resourcing allocated to the function including staffing, current and prior year annual

appropriations, special appropriations and special accounts, own source revenue, current and forward year estimates and actuals for current year (and prior years as appropriate), program reviews in progress and pending program reviews.

Meeting milestones

16. By four weeks after the date of the MoG decision, agency Chief Financial Officers (CFOs) must advise PM&C, Finance and the APSC of their progress towards meeting the completion date: including any key milestones, the status of negotiations and the existence of any contested issues.

Dispute resolution process

17. If any matters in dispute cannot be resolved at the working level, agency heads and Secretaries of the respective portfolio departments are expected to reach a resolution.

18. If at any stage it becomes clear that key milestones are not likely to be met, the affected agencies must:

advise PM&C, Finance and the APSC appoint an independent advisor to assist in finalising negotiations and resolving

contested issues. This process involves:

o the affected agencies providing the independent advisor with information supporting their respective positions

o the affected agencies meeting jointly with the independent advisor to discuss outstanding issues

o the independent advisor working with the affected agencies to reach agreement.

19. After conducting an analysis of the information provided by the affected agencies and potentially discussing contentious issues with representatives from the affected agencies, the independent advisor may support one of the positions or provide a third position for agreement.

20. If appropriate, Finance and the APSC may be able to support the independent advisor to assist the affected agencies to resolve outstanding issues relating to financial matters and staffing matters respectively.

21. If any matters remain unresolved and meeting the completion date looks in doubt, a recommended position by the independent advisor on the matter must be escalated to a committee chaired by the Secretary of PM&C and comprising the Secretary of Finance and the Commissioner for their consideration and final decision on the matter.

22. The Secretary of PM&C (as Chair) will advise the relevant agency heads and/or portfolio Secretaries of the decision in writing.

23. If necessary, Finance may transfer funds and the Commissioner may transfer staff without the agreement of agencies.



24. Where agencies have not completed a MoG change by the set date, the Secretaries of the respective portfolio departments are to write to the Secretary of PM&C, the Secretary of Finance and the Commissioner to advise them of the reason(s) for this and advise of an expected completion date.

Communication strategy

25. Section 47 of the Work Health and Safety Act 2011 requires that a business consults—so far as is reasonably practicable—with workers who are (or are likely to be) directly affected by health and safety matters.

26. During a MoG change, agencies are encouraged to conduct ongoing communication and consultation with workers about their transition to new work arrangements. It is important to communicate with affected staff early in the process to explain:

why—the reasons and objectives for change what—the impact of change what next—the timetable for specific activity relating to the change how—the mechanism for providing the input on the implementation.

27. The steering committee may decide to appoint a Communications Manager in each affected agency.



Machinery of Government changesPeople management

The Commissioner may authorise the movement of employees from one agency to another following a MoG change.

1. Agencies are expected to implement change in a way consistent with the principles outlined in the Executive Summary.

Legislative basis

2. Section 72 of the PS Act gives the Commissioner the authority to move employees following a MoG change. The Commissioner can:

move an APS employee to another APS or non-APS Commonwealth agency move an employee from a non-APS Commonwealth agency into an APS agency engage any person as an APS employee in a specified APS agency.

3. The Commissioner makes a written determination based on advice from the affected agencies.

4. The Public Service Regulations 1999 exclude decisions to move employees because of a MoG change from review by the Merit Protection Commissioner.

5. Where possible s72 transfers should take effect on a public service payday unless otherwise agreed by the affected agencies.

Identifying all employees who will be transferred

6. As a general principle, employees will transfer with their function.

7. Employees who normally perform work associated with a function that is to be moved are identified by the losing agency and moved to the gaining agency, including employees who are:

on paid or unpaid leave—these employees will normally be moved to the gaining agency on the date of the MoG change and start work there when the period of leave ends

in receipt of rehabilitation compensation—rehabilitation rights for employees and ex-employees generally continue with the gaining agency

employees performing duties associated with a transferring function, but temporarily performing duties elsewhere in the agency—these employees will transfer to the gaining agency (a temporary transfer back to the losing agency can be arranged, if appropriate)

performing duties at a higher classification—these employees will transfer at their substantive classification. The gaining agency may decide to continue the higher duties arrangement.

seconded or on temporary transfer1 to a third agency—these agreements may continue in accordance with the original terms. At the end of a temporary transfer, employees generally return to the agency where their substantive function is located.

1 The PS Act uses the term ‘temporary movement’.



seconded or on temporary transfer from a third agency—these employees would normally move with their function and return to their original agency at the end of the transfer period.

Corporate employees

8. The movement of corporate employees will be negotiated between agencies. This area can be particularly problematic—see Movement of corporate functions and shared services.

Work Health and Safety

9. Comcare has developed a tool to assist agencies to reduce the psychosocial risks of workplace change, available at the Comcare web page.

Delegations

10. Affected agencies must review their delegations under the PS Act. Delegations and authorities attached to employees from a losing agency will cease to have effect in the gaining agency.

Induction

11. It is good practice for the gaining agency to arrange for appropriate induction for all employees who transfer.

Leaving an agency

12. In most cases, the losing agency’s policies and procedures in relation to the return of property and other items will apply.

Classification and duties

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

14. The gaining agency head 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.

15. The gaining agency head 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.

Employment type

16. Employees are transferred at their existing employment status i.e. ongoing or non-ongoing.

17. Non-ongoing employees are transferred to the gaining agency 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 the existing irregular or intermittent basis.

18. Where a gaining agency extends the engagement of a non-ongoing employee, the total period of engagement is calculated as if it had been all in the gaining agency.



https://www.comcare.gov.au/

Conditions of engagement

19. A gaining agency head cannot impose a condition of engagement under section 22(6) of the PS Act on an APS employee moved as the result of a MoG change.

20. Generally, a condition of engagement that was in place for an APS employee at the losing agency will continue to apply after the employee has moved—for example a probation period. The gaining agency head can decide whether the condition has been met, or if it is no longer required. The gaining agency head cannot vary an original condition of engagement.

21. The Commissioner may make determinations in relation to conditions of engagement—see Outstanding employment matters below.

Conditions of employment

22. An agency head may impose a continuing condition of employment where it is essential for an employee to meet certain requirements in order to perform a particular set of duties. Such conditions can include level of fitness, attainment of a security clearance, a licence or a qualification.

23. Where imposition of a new condition of employment on an employee who has moved as the result of a MoG change is proposed and their duties have not changed, the agency should consult the APSC. Legal advice may be necessary.

24. The Commissioner may make determinations in relation to conditions of employment—see Outstanding employment matters below.

Flexible work arrangements

25. Where individual employees have flexible workplace arrangements in place such as approval to work remotely or for non-traditional hours, these should, wherever possible, be continued in the gaining agency.

Employees with a disability

26. MoG changes may have significant impact on employees with disability. Some things to consider include the following:

Consulting employees with disability on proposed changes and potential impacts early is likely to reduce negative impacts. Clear communication is vital.

Change can be particularly stressful for employees experiencing mental ill-health. Consider the provision of additional support services during MoG changes.

Ensure that workplace adjustments required by an employee will be available following the MoG change (this includes access to buildings, availability of accessibility technology and flexible working arrangements).

Outstanding employment matters

27. Losing agencies may choose to finalise performance appraisals and arrange payment of pro-rata performance bonuses where these apply.

28. Section 72(5A) of the PS Act provides the Commissioner with the discretion to 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 staff.

29. For example, the Commissioner may determine to extend an individual’s probation period.

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

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

Senior Executive Service (SES) cap

32. Where a MoG change results in the movement of an SES position, the SES cap for both agencies will be adjusted. However, where a gaining agency seeks additional SES positions, the increase in the SES cap must be approved by the Minister responsible for the Public Service, (through the APSC). Newly created agencies must seek approval to establish a cap.

33. Agencies should contact the APSC early when a MoG change may result in the movement or engagement of SES employees.

Executive Remuneration Management Policy

34. Agencies should contact the APSC where approval has been granted, or requested, to pay any APS employee affected by a MoG change an amount above that specified in the APS Executive Remuneration Management Policy.

Movement of State or Territory employees

35. 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.

36. 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 without considering merit.

37. Staff who are not offered an APS position, or who do not accept such an offer, will remain the responsibility of the State or Territory.

Movement of statutory office holders

38. There is no power under the PS Act to compel a statutory office holder to move 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.



Unfinished recruitment action

39. Losing agencies should advise the gaining agency of any outstanding recruitment relating to jobs in the function transferring. The following scenarios provide examples of possible situations and outcomes.

a. Scenario one

40. A decision to engage or promote an individual has been made; but the decision has not come into effect.

A function of the role is now with the gaining agency, the losing agency may continue the recruitment process to finality including the completion of any promotion reviews by the Merit Protection Commissioner.

The vacancy will remain with the losing agency until the process is complete. Once the relevant decision comes into effect, the employee will move to the gaining agency.

If a gaining agency does not wish the recruitment action to occur, it will need to ask the losing agency to stop the recruitment action before it takes effect.

b. Scenario two

41. The losing agency has not yet made the decision to engage or promote an individual.

If a relevant function of the vacancy has moved to the gaining agency then the gaining agency can choose to proceed with the recruitment process on the basis that the vacancy is a similar vacancy as defined in section 9 of the Commissioner’s Directions.

c. Scenario three

42. The losing agency is to be abolished.

Any recruitment decisions that have not taken effect, including promotions, lapse.The gaining agency head may decide to proceed with the recruitment action, based on the process undertaken to date in the losing agency. Any engagement or promotion decision will be made by the gaining agency whose terms and conditions will apply.

Merit lists:

43. Generally, the gaining agency will be able to use an existing merit list created by the losing agency to fill a similar vacancy within 12 months from the date of notification of the vacancy in the Public Service Gazette.

44. However, an engagement or promotion decision using a merit list must still be consistent with the APS Employment Principles. An agency may wish to consider whether the original Gazette notice would have given a reasonable opportunity for all potential applicants to apply for the vacancy.

Independent Selection Advisory Committees (ISAC)

45. Where an ISAC had been established to assist with recruitment processes in the losing agency:

If no recommendations have been made, the gaining agency is unable to use the ISAC for employment opportunities that exist in the gaining agency.

If recommendations have been made, the losing agency may choose to use the recommendations for employment opportunities that still exist in the losing agency.



Movement of workers’ compensation claims

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

an agency’s premium rate and amount increasing or reducing with the reassignment of staff to different agencies

a change to the rehabilitation authority for staff with workers’ compensation claims changes in administrative details such as contact information.

47. Further information is available on the Comcare website. Any ongoing employee health issues, whether or not they are compensable, should continue to be managed by the gaining agency.



Machinery of Government changesPay and conditions

Arrangements for terms and conditions for employees who transfer as the result of a MoG change are described in the PS Act and the Public Service Regulations 1999.


2. Agencies should discuss any issues relating to terms and conditions of employment with the APSC early in implementing a MoG change.

Legislative basis

3. Section 72 of the PS Act gives the Commissioner the authority to move employees in and out of the APS following a MoG change. See People Management for more information.

4. Section 24(1) of the PS Act gives agency heads the authority to vary the terms and conditions of employment for agency employees.

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

Pay and conditions

6. Where an employee from an APS agency moves to another APS agency:

Annual salary will be the greater of the salary that applied immediately before the move and the salary that would apply after the move [Public Service Regulations 1999–Regulation 8.1 (2)].

Other terms and conditions may be varied following consultation [Public Service Regulations 1999–Regulation 8.1(3)].

Most commonly, terms and conditions, other than salary for employees who transferred, will be those that apply in the gaining agency.

7. Where an employee from an APS agency moves to a non-APS Commonwealth agency:

The employee is entitled to have their pay and conditions maintained until the next amendment to the relevant industrial award or instrument [PS Act s72 (3)].

8. Where an employee from a non-APS Commonwealth agency moves to an APS agency:

Terms and conditions may be varied following consultation [Public Service Regulations 1999–Regulation 8.2(2)].

Agencies must consult with the APSC on any implications for the application of the government’s workplace bargaining policy.

Annual salary

9. In most cases affected employees are moved to the nearest equivalent, or greater, pay point in the gaining agency’s workplace agreement, relevant to the employee’s classification. If this is not possible, for example, 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 relevant agreement catches up with the employee’s salary as it was before the move. Any relevant provisions in the gaining agency’s enterprise agreement need to also be considered.

10. For non-ongoing APS employees who transfer to another APS agency, salary maintenance will apply for the duration of an existing contract. Relevant provisions of the gaining agency workplace agreement would also apply.

11. Annual salary is the employee’s salary set out in a workplace agreement. 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. Agencies are encouraged to contact the APSC for more advice.

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

13. There is no entitlement to salary increases based on the losing agency’s workplace agreement. Following a move, the gaining agency’s enterprise agreement governs pay increases for an employee.

Industrial instruments

14. In most cases, the receiving agency’s enterprise agreement will apply to non-SES employees who have moved to that agency as the result of a MoG change.

15. Exceptions include where:

there is no enterprise agreement in place at the gaining agency the gaining agency’s enterprise agreement does not include provisions essential for

the operation of the transferred functions transfer of business arrangements apply there are relevant provisions in enabling legislation instruments in the losing agency expressly preserve terms and conditions after a MoG

change there are specific provisions in the National Employment Standards or in an award

that apply an employee moves to or from a non-APS Commonwealth agency a determination is made by the Public Service Minister under section 24(3) of the

PS Act.

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

Section 24 determinations

17. 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 these terms and conditions are not covered by a workplace agreement.

18. The gaining agency head may establish terms and conditions for affected employees by making a determination under section 24(1) of the PS Act at any time, including where:



there is no enterprise agreement in place in the gaining agency, for example in a new agency. See New Department/APS Agency

the gaining agency’s enterprise agreement 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 agency to an APS agency.

19. A section 24(1) 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.

20. The gaining agency head 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 gaining agency.

21. A section 24(1) determination must be assessed against the Government's Workplace Bargaining Policy 2018 for the Commonwealth public sector.

22. Agencies should contact the APSC where they propose to make a section 24(1) determination for non-SES employees.

SES employees

23. Terms and conditions for SES employees are generally determined by:

Section 24(1) of the PS Act—the gaining agency needs to establish whether or not a new 24(1) determination is required for any SES employee who is moved

common law contracts–agencies are advised to seek legal advice in relation to these contracts. Whether they continue to apply will depend on their terms.

Transfer of business

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

25. Where the provisions do apply, the industrial instruments from the losing agency that are relevant to the employees who transfer will apply. These instruments continue to operate until they expire or are replaced by a new workplace agreement.

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

Executive Remuneration Management Policy

27. Agencies 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.

Employee superannuation

28. Where a proposed determination covers superannuation provisions and may have an impact on employee superannuation, agencies should contact Finance at [email protected].




http://www.apsc.gov.au/priorities/workplace-relations/bargaining-policy-2018


29. For information on employee superannuation arrangements for Commonwealth employees, agencies should contact Finance at [email protected].




Machinery of Government (MoG) changesFinancial management—first 72 hours

Actions for agencies within the first 72 hours of the MoG changes being announced:- funding (new department) - contact with Finance- delegations of powers- outcome statements - special appropriations and special accounts.


Delegations of powers

2. The accountable authority of an NCE agency can delegate their powers under the PGPA Act and the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) to officials in their entity, and officials of other NCEs, so that they can undertake resource management activities on behalf of the agency.

3. Entities should review their delegation instruments and AAIs to ensure appropriate arrangements are in place and that they cover all relevant matters and legislation to be administered by that agency.

4. If an agency is created, consideration should be given to what delegations, if any, will be required to be in place at the time of establishment. Similarly, staff in an agency that is losing functions should review their delegations to ensure that they no longer deal with matters that have transferred to another agency.

5. New instruments of delegation and authorisations should be made as soon as possible.

6. In addition, if, because of MoG changes, an agency gets a new Minister or accountable authority, it is good practice to provide new office-holders with the opportunity to reconsider arrangements for delegated decision-making and issue new instruments of delegation.

7. Officials (and officials in other entities who are assisting with the transfer of functions) should be advised of relevant delegations of powers. This is important for officials, particularly those who are based outside of the Australian Capital Territory or at Australia’s international posts.

8. There can be delays between the date of a MoG decision and the date of transfer of staff and appropriations. Depending on the timing of transfers of agency functions and appropriations, agencies may need to put in place interim arrangements under the PGPA Act2 to make adequate provision for transferring functions. For example:

The accountable authority of the gaining agency may provide delegations to officials in the losing agency to enable them to continue to administer functions, until officials in the gaining agency are ready to take over that role.

2 Refer to sections 20A and 110 of the PGPA Act



The losing agency may seek delegations from the accountable authority of the gaining agency to enable staff to continue to administer functions transferred until appropriations and staff are transferred from the losing agency.

Agencies may agree that staff in losing agencies continue to undertake transferred activities, using their own delegations and AAIs, until appropriations and officials are transferred.

9. It is prudent where a gaining agency is relying on a losing agency to continue to undertake transferred functions they do so with the authority of the gaining agency for future payments. This could be done via email using words similar to below:

I [name] as Accountable Authority of [agency] authorise, to the extent that such authority is necessary, including from XX XXXX 201X (date of MoG announcement), the relevant officials of the Department of XXX to continue to make payments, consistent with program obligations and other relevant policy decisions on behalf of the [program or function description] until the transfer of functions between our agencies is completed.

10. There may be value in a gaining agency picking up relevant parts of the AAIs of an agency in relation to functions that are transferred.

11. Accountable authorities may choose to apply the AAIs of an existing agency until the accountable authority is able to issue AAIs specifically for the transferred functions for the agency.

12. For information on delegations and AAIs under the PGPA Act and the current PGPA Delegation from the Minister for Finance to accountable authorities of NCEs, see http://www.finance.gov.au/resource-management/ or contact [email protected].

Outcome statements

13. Affected agencies need to review their outcome statements within the first 72 hours of the MoG being announced to determine if changes are required (see Financial Management—other issues page for more information).

Contact with Finance

14. Finance will organise a meeting with MoG affected agencies’ CFOs to discuss critical timelines and financial management issues. Topic experts from Finance will attend to address agencies’ queries and/or concerns.

15. Finance will contact the affected agencies’ CFOs once the MoG changes are announced.

Download of Financial Management Information Systems (FMIS)

16. The day after the MoG changes are announced, or as soon as practical, losing entities will be required to provide a download of their FMIS to gaining entities for the specific function they are losing and associated corporate functions.

17. For those MoG changes that transfer functions that are not entire outcomes or programs, it may be difficult for the losing entity to identify transactions relating to the function and associated corporate functions. While it may be difficult, losing agencies should provide as much information, as soon as possible, caveated to say that further analysis is required, prior to providing final information.




http://www.finance.gov.au/resource-management/

Machinery of Government changesGovernance and financial management—other issues

- Accountable Authority Instructions

- Annual appropriations

- Appropriation considerations

- Annual estimates

- Assets and liabilities

- Audit committees and fraud control plans

- Average Staffing Level cap

- Bank accounts

- CBMS—access

- CBMS—cash management module

- CBMS—changes to estimates and actuals

- CBMS—changes to structures

- CBMS—third party drawing access

- Charging arrangements

- Competitive neutrality

- Corporate plan requirements

- Delegation of powers

- Download of financial management

information systems

- Employee leave entitlements

- Financial reporting arrangements

- Grants

- Holding a function for less than a year

- Insurance

- Outcome statements and program structures

- Portfolio statements

- Procurement

- Property management/leasing

- Relocation costs

- Retained entity receipts

- Special accounts

- Special appropriations

- Superannuation


Accountable Authority Instructions (AAIs)

2. Accountable authorities can issue AAIs and associated operational guidance to assist them to meet their obligations under the PGPA Act. These instructions can form a key part of an agency’s internal controls and operational framework, focusing on the agency’s particular needs, in order to promote the efficient, effective, economical and ethical use of relevant money, relevant property and appropriations.

3. Agencies should review their AAIs (as appropriate) to ensure appropriate arrangements are in place.

4. Finance has produced model AAIs as guidance for agencies. The model AAIs cover core topics that are applicable to the majority of officials in most agencies. For further information, refer to Resource Management Guide 206: Model accountable authority instructions



https://www.finance.gov.au/resource-management/accountability/accountable-authority-instructions/ or contact [email protected].

Annual appropriations

5. Where a function is transferred between NCEs, the principle ‘finances follow function’ applies to the transfer of annual appropriations and special appropriations. Transfers of annual appropriations will be through a section 75 determination, under the PGPA Act.

6. Annual appropriations devoted to a function at the time of the change to the AAO or at the time of the decision by the Prime Minister or Cabinet, are to be transferred to the gaining agency. This means that if internal budget supplementation has been provided to a function, or internal budget reductions taken from a function as at the time of the MoG change, these are to be reflected in the transfers to the gaining agency.

7. Losing agencies are to provide gaining agencies with supporting information on decisions made on internal budget supplementation or internal budget reductions, including who made the decisions, the date of the decisions and the date of their effect.

8. Note: Section 75 of the PGPA Act applies to transfers of functions between NCEs. In relation to CCEs, as there are different situations that apply when transferring functions involving CCEs please contact the Annual Appropriations Team within Finance in the first instance ([email protected]).

Appropriation considerations

9. Agencies should identify what appropriations are affected to enable the new functions of an agency to start operating from the commencement date and how those appropriations can be accessed. This may include:

current year annual appropriations to be transferred—Appropriation Act No’s 1/3 Departmental and Administered (operating and/or capital); and Appropriation Act No’s 2/4 (Payments to States, ACT, NT and local government, New Administered Outcomes, Equity Injections and/or Administered Assets and Liabilities)

prior years’ annual appropriations, including any withheld and/or quarantined amounts

special appropriations, including special accounts payments being met for the new functions by the relevant portfolio department or another Commonwealth entity with appropriation authority that can assist the entity.

Annual estimates

10. The principles ‘staff follow function’, ‘finances follow function’ and ‘obligations follow function’ also apply to the transfer of annual estimates for the forward years. Internal budget supplementation and reductions are reflected in the transfer of annual estimates for the forward years so that no unfunded positions or activities are transferred. Affected agencies may wish to agree the transfer of annual estimates through an exchange of letters at the CFO level, or higher if appropriate.

Assets and liabilities

11. Agencies are required to record the transfer of the amount recognised in the books of the transferring agency as at the transfer date.



https://www.finance.gov.au/resource-management/accountability/accountable-authority-instructions/



12. Assets and liabilities transfer between agencies when control passes from one agency to another, or when effective administrative responsibility transfers for administered items.

13. For further information see RMG 118—Accounting for Machinery of Government Changes

Audit committees and fraud control plans

14. The accountable authority of the agency with transferred functions will need to confirm the relevant audit committee (PGPA Act Section 45 and PGPA Rule 17) to comply with resources management framework obligations and provide a forum for communication between the accountable authority, senior managers of the transferred functions, internal auditors and the Auditor-General. This may initially involve appointing and using the audit committee of an existing agency.

15. Note that the audit committee of an agency affected by a MoG transfer may need to ensure that their skills base relates to any new business and is no longer focussed on matters that have transferred to another agency.

16. For further information, see RMG 202: Audit Committees on the Finance website https://www.finance.gov.au/resource-management/audit-committees/.

17. Accountable authorities are also responsible in ensuring their agencies have appropriate fraud control arrangements, and in setting the ethical tone within their agency. Section 15 of the PGPA Act provides that an entity accountable authority must manage the affairs of the agency in a way that promotes proper use of the Commonwealth resources, the achievement and purposes and the financial sustainability of the agency for which the accountable authority is responsible.

18. PGPA Rule 10 provides that an Accountable Authority must ‘take all reasonable measures to prevent, detect and deal with fraud’, including conducting a fraud risk assessment when there is a substantial change in the structure, functions or activities of the agency and developing and implementing a fraud control plan for the agency that deals with the identified risks as soon as practicable after conducting the assessment.

19. A copy of the ‘Commonwealth Fraud Control Framework’ can be obtained from the Attorney-General’s Department website https://www.ag.gov.au/Integrity/FraudControl/Pages/FraudControlFramework.aspx.

Average Staffing Level (ASL)

20. The ASL policy applies to functions within the Commonwealth General Government Sector (GGS). Where staff are employed by an entity to undertake a function within the GGS, the ASL equivalent is included when calculating the entity’s ASL allocation and its portfolio cap.

21. MoG changes may affect individual portfolio ASL caps, which increase or decrease the cap based on the agreed transfer of ASL between agencies and/or portfolios. Where an entity takes responsibility for a new function or staff from another agency, the ASL equivalent of any person transferred is added to the gaining entity’s ASL allocation and its portfolio cap, and removed from the losing entity’s ASL allocation and its


https://www.ag.gov.au/Integrity/FraudControl/Pages/FraudControlFramework.aspx

https://www.finance.gov.au/resource-management/audit-committees/

http://www.finance.gov.au/resource-management/reporting-accounting/accounting-guidance/#rmg118



portfolio cap. Transfers within the Commonwealth GGS must result in either a net nil impact or a reduction in ASL at a whole-of-government level.

22. For further information, including methodology on calculating ASL, entities should refer to Estimate Memoranda relevant to ASL, issued as required.

Bank accounts

23. NCEs must operate bank accounts in accordance with the PGPA Act and policy guidance on managing cash. Additional advice on banking arrangements will be provided to affected agencies by Finance following the announcement of each MoG.

24. Agencies must advise both the OPA Administration and Banking Policy Team (OPA Team) within Finance and the Reserve Bank of Australia when a new bank account is opened, or if an existing bank account is amended or closed.

25. Notification to both parties is required regardless of the transactional bank used.

26. Agencies affected by a MoG, should consider the impacts to their banking arrangements. Some of those impacts may include:

a need to transfer bank accounts to the gaining agency establishing new primary accounts (i.e. a bank account that can receive drawings from

the Official Public Account) returning bank account balances to the Official Public Account changes to the bank account ‘type’ (i.e. departmental / administered).

27. For further guidance, refer to EM 2017-25—Attachment A—Commonwealth Banking and Cash Management Requirements.

Central Budget Management System (CBMS)—access

28. CBMS users in both gaining and losing agencies will need to have their CBMS access profiles reviewed and updated. Users will be required to submit a CBMS Access Form indicating on the form to Add Access or Remove Access. The form needs to reflect the total access required not just the changes. Further information can be found on Finance’s website or contact the CBMS Service Centre ([email protected] ).

29. Gaining agencies may also need to request relationships be created between new programs and existing appropriation items (see the sections ‘Special appropriations’ and ‘Special accounts’).

30. CBMS users will need to update their contact details with the OPA Team in order to receive advice on the payment status of transactions under the New Payments Platform.

CBMS cash management (CM) module

31. Agency Advice Units (AAUs) must be notified of the transfer of functions between agencies, as structural changes will be needed in CBMS to reflect the change (this is managed within Finance). This will allow agencies to submit drawing requests against appropriations that they administer. Agencies should remove any future dated drawings in the CM module they no longer retain authority to spend. Contact the OPA Team ([email protected]) if you require assistance.




https://www.finance.gov.au/central-budget-management-system/cbms-access/

https://www.finance.gov.au/central-budget-management-system/cbms-access/%20


CBMS—changes to CBMS reference data structures (RDS)

32. The Reference Data Set (RDS) provides the framework for data entry and reporting in CBMS. Finance will generally notify agencies about RDS changes required in relation to MoG changes. To ensure all relevant changes are made in CBMS, agencies must notify the relevant AAU and complete the RDS Workbook. The following changes are required to be reflected in CBMS:

changes to existing portfolios changes to existing agencies new portfolios new agencies new appropriation items (see the sections ‘Special appropriations’ and ‘Special

accounts) changes to existing outcomes and programs, noting there are separate approval

processes associated with (a) new or amended outcome statements and (b) new programs

new outcomes and programs, noting that there are separate approval processes associated with (a) new or amended outcome statements and (b) new programs.

33. In some instances, when an agency transfers to a different portfolio, its existing programs will need to be duplicated and balances in the CM module and estimates in the Annual Estimates module moved from the old programs to the new programs. Finance will arrange for these transfers in CBMS and will consult with agencies on the timing of these transfers.

CBMS—changes to estimates and actuals

34. Following the completion of any CBMS RDS changes and agreement between CFOs on appropriation transfers and forward estimates amounts to be transferred, Finance will advise agencies when they will be able to process the necessary estimates and actuals adjustments in CBMS.

35. Changes to estimates in CBMS would usually be made in the next available estimates update following the MoG change.

CBMS—third party drawing access

36. Third party drawing access is an arrangement where an appropriated agency authorises another agency (the drawing agency) to access the appropriated agency’s appropriation in CBMS for drawing, receipts and journals.

37. The agency that administers the relevant appropriation (i.e. the appropriated agency) remains responsible for entering estimates and actuals data in CBMS, and for reporting in Portfolio Budget Statements (PBS), Portfolio Additional Estimates Statements (PAES) and Annual Reports (including the amounts of cash expended by the drawing agency). Additional guidance on third party arrangements can be obtained from the OPA Team ([email protected]).

Charging arrangements

38. Changes to third party access may be required following MoG changes.



https://www.finance.gov.au/cbms/rds/


39. A gaining agency may need to implement new procedures if it gains a charging activity. There may be value in the gaining agency picking up relevant procedures from the transferring agency.

40. A losing entity should transfer any revenue retained from charging arrangements, whether for direct or indirect costs of the activity being transferred. There should not be any accumulated ‘surpluses’ resulting from a charging activity, irrespective of the classification of the activity within the Australian Government Charging Framework 2015, whether the funding is classified as departmental or administered, or the mechanism was under which revenues are retained (for example, s74, Special account etc.)—absent of specific decision by Government.

41. For information regarding charging activities (including cost recovery activities) please refer to s27(2) of the PGPA Act Rule and the Australian Government Charging Framework or contact [email protected].

Competitive neutrality

42. All government businesses are required to apply competitive neutrality policy. Competitive neutrality aims to foster competitive markets by neutralising for the potential of government businesses to distort markets and by improving the efficiency of government businesses. For information regarding the management of competitive neutrality arrangements, please refer to the Australian Government Competitive Neutrality Policy Statement at https://www.finance.gov.au/archive/publications/finance-circulars/2004/01.html.

Corporate plan requirements

43. The Accountable Authority of an agency that is subject to variations in functions and responsibilities due to MoG changes will need to consider if a variation to the agencies corporate plan is required to take account of changes.

44. For further information see:

The PGPA Rule 2014 (Rules 16E and 16F) https://www.legislation.gov.au/Details/F2018C00441

Resource Management Guide No. 132 Corporate plans for Commonwealth entities http://www.finance.gov.au/resource-management/performance/

Please contact [email protected] for further assistance with agency corporate plan requirements.

Delegations of powers

45. The Accountable Authority of an NCE with new functions will need to delegate his or her powers under the PGPA Act and Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) to other appropriate officials (such as the CFOs) so that they can undertake financial activities on behalf of the entity.

46. Further information on delegations of powers, including delegable and sub-delegable powers, promulgation and reviewing of delegations is located at https://www.finance.gov.au/resource-management/pgpa-legislation/delegations/.

Scenario: Travelling staff and credit cards


https://www.finance.gov.au/resource-management/pgpa-legislation/delegations/


http://www.finance.gov.au/resource-management/performance/

https://www.legislation.gov.au/Details/F2018C00441

https://www.finance.gov.au/archive/publications/finance-circulars/2004/01.html


https://www.finance.gov.au/resource-management/charging-framework/

https://www.finance.gov.au/resource-management/charging-framework/


Where a MoG has affected an agency, some staff may be outside of the office, such as travelling interstate or overseas.

Some issues for the gaining agency to consider will be the application of any whole-of-government delegations and the relevant internal sub-delegations for the new staff joining a new or a gaining agency.

Staff who are travelling will typically be using the whole-of-government travel card, which will continue to operate.

Agencies should seek to make contact with any staff that are travelling once there is potential of a MoG change and to inform them as soon as possible after a MoG change is announced.

Employee leave entitlements

47. The Government’s policy requires a payment for the transfer of leave entitlements when an ongoing employee of an NCE moves to another NCE, to a CCE, or to the High Court of Australia.

48. The policy does not apply to CCEs or the High Court of Australia. However, these entities are encouraged to apply the policy in the interests of promoting mobility across the Commonwealth.

49. The policy does not apply if the employee movement is a direct consequence of a transfer of a Government function, including AAO changes as the funding arrangements in these situations should be addressed as part of the annual appropriations transfer process (and usually involve prior year annual appropriations).

50. For more information on the application of the policy, contact [email protected].

51. For advice on accounting for machinery of government changes, including a method to calculate employee entitlements, please refer to RMG 118: Accounting for machinery of government changes. The effective date for calculating resources transfers is the date on which the staff transfers became effective under the PS Act or other relevant legislation.

Financial reporting arrangements

52. Accountable authorities of agencies are required under section 42 of the PGPA Act, to provide annual financial statements to the Auditor-General.

53. When a Commonwealth agency ceases to exist, Section 17A of the PGPA Rule provides for the accountable authority of an agency nominated by the Minister for Finance to prepare the annual financial statements.

54. Additional information on financial reporting in respect of restructures is available in the following documents:

Public Governance, Performance and Accountability (Financial Reporting) Rule 2015, Section 26 Restructure of administrative arrangements https://www.legislation.gov.au/Details/F2018C00194

RMG 118—Accounting for Machinery of Government Changes.

55. Please contact Finance [email protected] for more information.

Grants





https://www.finance.gov.au/resource-management/reporting-accounting/accounting-guidance/#rmg118

https://www.finance.gov.au/resource-management/reporting-accounting/accounting-guidance/#rmg118



56. An agency affected by a MoG should refer to the Finance website for information regarding MoG changes https://www.finance.gov.au/resource-management/appropriations/rmg-100-guide-to-appropriations/machinery-of-government-mog-changes/ and for the implications for grants Commonwealth Grants Rules and Guidelines—2017. In particular, an agency transferring functions should agree with the agency gaining functions as to the date of the transfer and then transfer the grants information accordingly.

57. Grants programs in-scope for the Streamlining Government Grants Administration (SGGA) program must be delivered as per applicable policy and guidance. Please contact Finance by emailing [email protected] for more information, if required.

58. Where one or more agencies involved in a MoG have Grants Hub arrangements, the transfer of staff (including ASL), assets and appropriation should initially be addressed through negotiations between the parties.

59. This also applies for entities participating in the Streamlining Government Grants Administration Program, and other MoG changes that affect Grants Hub arrangements.

60. If there are outstanding issues following MoG negotiations, agencies should seek further advice from the Public Sector Reform Branch at the Department of Finance by emailing [email protected].

61. Where grants programs are not in scope for the Streamlining Government Grants Administration Program, the gaining agency should:

determine whether the agency has the necessary appropriations and delegations to support the administration of these grants programs

have regard to the Commonwealth grants policy framework in the Commonwealth Grants Rules and Guidelines—2017 concerning the requirements that apply to Commonwealth grants.

Holding a function for less than a year

62. The finances follow function principle provides that annual appropriations devoted to a function at the point of the MoG change be transferred to the gaining agency.

63. If an agency holds a function for less than a year that is transferred to another agency before the end of the financial year, there should be a clear relationship between the funding that was received by the agency for the function and the funding that is transferred to the gaining agency.

64. However, agencies can structure themselves differently and an entity may quickly integrate the function into the organisation. This could influence the funding transferred and this should be a consideration in negotiating funding.

Insurance

65. Both the gaining and the losing agencies should contact Comcover in order to have their risk profiles reassessed and to arrange adjustment of their insurance premiums and coverage.


https://www.finance.gov.au/resource-management/grants/




https://www.finance.gov.au/resource-management/appropriations/rmg-100-guide-to-appropriations/machinery-of-government-mog-changes/

https://www.finance.gov.au/resource-management/appropriations/rmg-100-guide-to-appropriations/machinery-of-government-mog-changes/


66. A particular issue to consider would be any live claim(s) or litigation(s) that the gaining agency would inherit.

Outcome statements and program structures

67. Gaining agencies may need to create new or amend existing outcome statements when the transferring function does not fit within its current outcome statements. In a MoG context, entire outcome statements may be copied from the losing entity to the gaining entity through section 75 determinations.

68. Any new outcome statements for the gaining entity or amendments to the gaining entity’s existing outcome statements must be approved by the Minister for Finance.

69. If you are considering a new outcome statement, please contact Finance via the Annual Appropriations Team ([email protected]).

70. When assessing the requirement for outcome statement changes, agencies should also consider whether changes are necessary to the list of Government-endorsed programs in CBMS, resulting from changes either to program structures or because of movement of programs between outcomes and/or agencies. Refer to CBMS—Changes to Structures section above.

Portfolio statements

71. Entities who receive an annual appropriation impacted by MoG changes should ensure they report their new structure and current information in their PBS or PAES. Depending on when section 75 transfers are agreed, they should be reflected in either their PBS and/or PAES statements.

72. Where section 75 transfers have not been agreed in time to be reported in their PBS or PAES, entities should add a note clarifying further details of their MoG change that will be reported in their next set of PBS or PAES, whichever comes first.

73. Agencies need to ensure they reflect the correct structures and splits in their:

entity resource statement outcome, program and performance information budgeted financial statements.

74. For further information, entities should refer the relevant PBS or PAES Estimate Memorandum, issued prior to each Budget update, which will include a preparation guide that includes a section describing the correct treatment for MoG changes.

Procurement

75. There may be implications for an agency's procurement agreements, be they contracts, deeds, memoranda of understanding or some other form of agreement.

76. In the first instance, contact your agency's central procurement unit for assistance regarding gaining or transferring procurement.

77. Information regarding procurement is available at http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/.


http://www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/


78. Information regarding whole-of-government arrangements, which in some cases must be used by an agency, is available at http://www.finance.gov.au/procurement/wog-procurement/.

79. Any queries relating to AusTender transition for approaches to market and/or reporting standing offers and contracts should be directed to the AusTender Help Desk at [email protected] or 1300 651 698.

80. Any queries relating to ICT procurement contact the ICT Procurement Hotline on (02) 6120 8705 or email [email protected].

81. The Procurement Policy Team provides procurement-specific MoG advice to relevant agency procurement experts. Finance's Procurement Policy Team is available at [email protected].

82. A new or a gaining agency should consider the application of any whole-of-government delegations and relevant internal sub-delegations for the new staff joining the gaining agency.

83. Contracts involving a Department of State or agency will typically continue without any immediate action where there is a change to a department’s or an agency’s name, as that change to a contract can be recognised through the operation of Section 19C of the Acts Interpretation Act 1901.

Property management/leasing

84. Property and Construction Division in Finance (PCD) provides assistance with coordinating and aligning property needs across the Commonwealth. Finance does this through a number of policies and processes, including the Property Services Coordinated Procurement (PSCP) arrangements, and the whole-of-government Leasing Strategy. Entities need to contact PCD to determine whether MoG changes impact PSCP arrangements, particularly if an entity moves from non-APS to APS or vice-versa.

85. Newly formed entities should contact PCD to determine if there is existing suitable Commonwealth property available to facilitate the entity, and to be certain of their legislative and policy responsibilities in relation to the acquisition of property, including through leasing.

86. Conversely, entities that cease to exist because of MoG changes should also contact PCD to work through any implications on existing property-related contracts.

87. Entities should be aware of the Commonwealth Property Management Framework, which provides guidance to new and existing entities on their property requirements and responsibilities on broad range of property matters including planning, funding, the lease endorsement process, management of property and ownership and disposal of property.

88. PCD ([email protected]) can assist when entities require advice on implications of MoG changes on property.

Relocation costs

89. The general principle is that agencies should bear their own re-location costs.

90. It is reasonable to expect that a transferring agency would pay for:






http://www.finance.gov.au/procurement/wog-procurement/

http://www.finance.gov.au/procurement/wog-procurement/


physical movement of employees, furniture, equipment and files downloading information and other information technology activities relating to the

move; including FOI and Information Publication Scheme obligations (including the proactive publication of public sector information)

updating internal records.

91. Gaining agencies would be expected to pay for the costs of establishing the transferred employees in their new premises, including re-loading information, setting up access to the network, security arrangements, and updating internal records. The gaining agency should also comply with any Public Works Committee notification or referral requirements applying to the relocation project (in accordance with the thresholds) prior to commencing any fit out works.

Retained entity receipts

92. Section 74 of the PGPA Act and the accompanying PGPA Rule 27 apply to NCEs.

93. In relation to functions gained because of MoG changes, the gaining NCE is entitled to retain receipts that accord with the provisions of section 74 of the PGPA Act and section 27 of the PGPA Rule. However, the following circumstance should be noted:

If the transferring agency holds such receipts that were collected as pre-payments for departmental goods or services that are to be provided by the gaining agency, then the calculation of appropriation amounts to be transferred to the gaining agency, under section 75, must include such prepaid amounts.

Cash that forms part of a bank account balance held by a losing agency’s bank, and which was intended to be used to make payments, but at the time of a MoG change has not been paid, is to be transferred back to the OPA. In the CM module, this amount is to be remitted back to the relevant appropriation. To remit the amount back, the losing agency should contact the OPA Team ([email protected]) for assistance. This is to occur before the calculation for a related transfer of appropriations has been undertaken, so as to enable for:

o annual appropriation—that cash to be included in the amount transferred through an estimates update or by a Section 75 instrument

o special appropriation (including a special account)—the available balance in the CM module to be adjusted.

94. Section 74 receipts received after the date of the MoG change should be treated as revenue by the gaining agency in the period the cash is received, unless it is a repayment of an amount within the same financial year as the original payment. In this case, the relevant appropriation would be re-credited and the expense reduced. Section 74 of the PGPA Act and the accompanying PGPA Rule 27 apply to NCEs.

95. Further information on the operation of section 74 of the PGPA Act and section 27 of the PGPA Rule is in RMG-307: Retainable Receipts.

Special accounts

96. An NCE is the accountable authority for a special account. This is on the basis that a special account provides access to an appropriation that enables the spending of money that is within the Consolidated Revenue Fund (CRF). Given that CCEs manage


https://www.finance.gov.au/resource-management/index/rmg/rmg-307-retainable-receipts/



money outside of the CRF, CCEs can only manage a special account if it is on behalf of an NCE.

97. When an AAO transfers ‘matters dealt with by the department’ and those matters utilise a special account, the relevant special account is transferred effective of the date of the AAO. This applies to special accounts established either by a legislative instrument or by an Act.

98. The Chief Executive/accountable authority of the relevant gaining portfolio department will be responsible for the special account, unless legislation allocates the special account to a specific official or an entity other than the portfolio department. The portfolio Minister may choose to allocate management of a special account to any relevant agency in his or her portfolio and in such instances the portfolio Minister should write to advise the Minister for Finance.

99. If the establishing instrument or Act for a transferring special account requires amendment or to be extinguished, the portfolio Minister should write to the Minister for Finance to seek agreement to the amendment.

For a legislative instrument established special account (consistent with section 78 of the PGPA Act), the process is a new legislative instrument made by the Minister for Finance.

For an Act established special account (consistent with section 80 of the PGPA Act), the process is an amendment Bill introduced by the portfolio Minister.

100. In such instances, the relevant agency should contact the Special Appropriations Team in Finance ([email protected]) as soon as possible and before preparing ministerial correspondence.

101. The gaining agency will need to submit a form to set up relationships in CBMS before it is able to request cash from the OPA. Forms are available here: https://www.finance.gov.au/cbms/rds/.

102. Once Finance creates the CBMS relationship for the gaining entity, the gaining agency will need to enter budget estimates against that item in the CBMS Estimates Module and request the relevant AAU validate the estimates. The losing agency must also enter adjustments to remove the estimates for that item from the date of the MoG change onwards. Once the AAU agrees the estimates, the AAU will request the OPA Team in Finance ([email protected]) to enter the available cash amount for the gaining agency in the CM module. Finance will ensure that the CBMS adjustments net off across the losing and gaining agencies, and the item for the losing agencies deactivated.

103. Where the losing agency continues to draw amounts on behalf of the gaining agency, third party access to these appropriations may be required.

104. After the transfer of cash and estimates data Finance will deactivate these programs and items once no data remains in the losing agency’s old programs.

Special appropriations

105. Only NCEs can manage special appropriations because appropriations allow money to be spent from within the CRF. Given that CCEs manage money outside the CRF, CCEs can only manage a special appropriation on behalf of an NCE.





106. When an AAO transfers ‘matters dealt with by the department’ and those matters utilise a special appropriation, the relevant special appropriation is transferred effective of the date of the AAO.

107. The Chief Executive/Accountable Authority of the gaining portfolio department will be responsible for the special appropriation, unless legislation allocates the special appropriation to a specific official or an entity other than the portfolio department. A portfolio Minister may choose to allocate management of a special appropriation to any relevant entity in his or her portfolio and in such instances the portfolio Minister should write to advise the Minister for Finance.

108. The gaining agency will need to submit a form to set up relationships in CBMS before it is able to request cash from the OPA. Forms are available here: https://www.finance.gov.au/cbms/rds/.

109. After the creation of a CBMS relationship for the gaining agency by Finance, the gaining agency will need to enter budget estimates against that item in the Estimates Module and request the relevant AAU validate the estimates. The losing agency must also enter adjustments to remove the estimates for that item from the date of the MoG change onwards. Once AAUs agree the estimates, the AAU will request the OPA Team in Finance ([email protected]) to enter the available cash amount for the gaining agency in the CM module. Finance will ensure that the CBMS adjustments entered net off across the transferring and gaining entities.

110. Where the losing entity continues to draw amounts on behalf of the gaining entity, third party access to these appropriations may be required.

111. After the transfer of cash and estimates data Finance will deactivate these programs and items once no data remains in the losing agency’s old programs.

Superannuation

112. Where MoG changes occur, agencies will need to contact Finance at [email protected] about the implications for membership of the civilian defined benefit schemes.





Machinery of Government changesMovement of corporate functions and shared services

Agencies deliver their corporate services through different operating models. Negotiating an agreement for the transfer of corporate staff, assets and appropriation can be complex.

The underlying focus is to achieve the most efficient and effective whole-of-government outcomes in support of the Government’s objectives.


Corporate functions

2. The movement of corporate staff, assets and appropriations is for negotiation between affected agencies.

3. For a straightforward MoG change where corporate delivery models are similar and costing methods are comparable, it may be appropriate for the transfer of corporate resources to be proportionate to the number of other staff moving from one agency to another.

4. Where a MoG change affects multiple agencies, or where corporate services are delivered and/or costed in different ways, then identifying employees to transfer, and agreeing on the transfer of assets and funding is more complex.

5. Generally, decisions on the transfer of corporate staff, assets and appropriations following a MoG change should allow agencies to continue to deliver their corporate services in accordance with their existing operating models.

Where a MoG change is complex

6. Defining what make a MoG change complex is difficult. However, factors that would indicate that a MoG is complex include:

the scale and value of the functions being transferred the transfer impacting multiple outcomes, programs and business functions the transfer being geographically diverse

requirements for legislative change.

7. If the MoG change is large, the New Policy Proposal—Standard Departmental Costing template (the template) should provide a guide for the transfer of corporate functions. In this instance affected agencies should develop a methodology to cost the corporate functions to transfer that reflects the likely cost of providing corporate functions to support transferred employees, without unduly impacting on the transferring agency.

8. As MoG transfers should represent the cost of delivery, it may be inappropriate to use the template where this would result in a windfall gain to one agency from the transfer of corporate services.



9. If there is no agreement to use the template, the funding transferred should be the total expenditure that the losing agency was going to commit to the function prior to the announcement of the MoG change.

Where a MoG change is small

10. In the case of small MoG transfers, the template should be used as the default to calculate the corporate services funding to be transferred, if there is no agreement between by the affected agencies on an alternative model.

Shared Services

11. Where one or more agencies involved in a MoG have shared services arrangements, transfer of ASL, assets and appropriations should be addressed through negotiations between the parties that give consideration to the delivery models of the agencies.

12. For ASL transfers relating to shared services outside of a MoG, for example, an agency onboarding to a shared services provider hub, agencies can seek advice from the Shared Services Program team ([email protected]).

13. If a MoG requires that a change be made to a Memorandum of Understanding (MOU) covering shared services, the relevant agencies will promptly and cooperatively review and execute any consequent changes to, or termination of, the MOU.

14. If there are outstanding shared services issues following the negotiations, agencies may wish to seek further advice from the Government Business Transformation Branch at Finance by emailing [email protected].





Machinery of Government changesRecords management

Information held by agencies is a valuable national resource.

Records are a core strategic asset. The proper treatment of all forms of records is a key consideration in a MoG change.


Movement of records

2. As a general principle, records follow function. However, where a function moves into the private sector in general, the associated records must remain in the custody of the Commonwealth by law.

3. Decisions to transfer or not transfer records must be recorded in the records management systems of both the losing and the gaining agencies.

4. Records must be retained in accordance with the Archives Act 1983 and the Evidence Act 1995.

National Archives of Australia

5. Information on how to transfer records is available at http://www.naa.gov.au/records-management/agency/keep-destroy-transfer/following-admin-change/index.aspx

6. Questions relating to records management in a MoG change should be referred to National Archives’ Agency Service Centre.

7. As soon as practicable, agencies are expected to advise the National Archives on how functions have been re-allocated so that:

administrative histories and metadata maintained by the National Archives can be updated

the agency responsible for controlling records in Archives’ custody can be updated records authorities can be re-attributed to gaining agencies as necessary.

Managing the transfer

8. Deciding on what is to happen to agency information, records, data and records management systems is a key component of due diligence. See Planning and Due Diligence.

9. The losing agency needs to transfer to the gaining agency:

records held in physical form, together with the systems that control such records, such as databases, spreadsheets and records management systems

records held in digital form which means identifying appropriate mechanisms for exporting records from the losing agency's systems and importing them into the gaining agency's systems


http://www.naa.gov.au/records-management/help/index.aspx

https://www.legislation.gov.au/Details/C2018C00015




information held on the internet—this may need to be captured, archived or transferred

personnel records such as attendance records, medical certificates and leave forms.

10. Information about the Digital Service Standard, including requirements for the archiving of websites, is available from the Digital Transformation Agency.

11. Agencies must retain information not published on agency’s websites that may be required for FOI and open public sector information purposes.

Privacy

12. Personal information held by the existing agency must be assessed prior to being transferred to the new agency to ensure compliance with the Privacy Act 1988. Particular care should be given to ensure personal information transferred to the new agency is relevant to the functions or activities of the new agency.

FOI requests

13. Agencies must consider the implications for FOI and the Information Publication Scheme. Relevant FOI requests must be transferred between agencies following a MoG transfer. Further information is available from the Office of the Australian Information Commissioner.


https://www.dta.gov.au/


Machinery of Government changesInformation Technology

Information Technology (IT) matters should be addressed early in the MoG change process. This can involve significant time and resources to resolve and implement. Poor planning will increase risk and the cost of getting it wrong can be significant.


Information and communications technology strategy

2. In developing an information and communications technology strategy, consideration should be given to:

migrating databases, electronic mail and personal drives diverting electronic mail and phone calls where necessary (generally only necessary if

a function has many external stakeholders or where policy guidelines have recently been widely promulgated)

developing programs to upload personnel data from the transferring agency’s human resources system to the gaining agency’s human resources system

arranging for transfer of software (having due regard for any licensing issues) and hardware, including desktop computers, printers and file servers

whether novation of contracts relating to outsourced computer services is required arranging for employees to transfer to the gaining agency’s systems and products,

including provision of training, as required updating gaining and transferring agencies’ internet sites to reflect changes, arranging

pointers from the transferring agency’s site where needed updating gaining and transferring agencies’ intranet sites creating new logons and email addresses arranging for information in all formats including records and data to be transferred

from the transferring agency to the gaining agency or archived (note that previous website data must be retained not only for archiving purposes but also for FOI purposes)

installing cabling and outlets in new accommodation providing information on disaster recovery/business continuity plans.

ICT checklist

3. The following provides a checklist related to ICT specific aspects of MoG changes. It draws on information and advice provided by agencies that have had recent experience in implementing MoG changes.

ICT checklist items for consideration:

o assetso business and corporate systemso contracts and procurement



o directory services/email arrangementso domain names and websiteso government online serviceso network serviceso outward facing contactso parliamentary workflowo records management and archivingo securityo service deskso shared driveso shared services/hosting arrangementso social media presence.



Machinery of Government changesAPS agency to non-APS agency

A MoG change can lead to the movement of a Commonwealth function from an APS agency operating under the PS Act to a Commonwealth agency that is not an APS agency and operates under different legislation.


2. This page provides additional information for agencies where functions, staff and/or resources are moved from an APS agency to a non- APS Commonwealth agency.

Movement of people

Legislative basis

3. Section 72(1) (b) of the PS Act gives the Commissioner the authority to move an APS employee to an agency that is not an APS agency. See People Management.

4. Agencies should consider whether legislation to facilitate the movement of staff out of the APS is required.

Terms and Conditions

5. Where an employee from an APS agency moves to a non-APS Commonwealth agency, the employee is entitled to have their pay and conditions maintained until the next amendment to the relevant industrial award or instrument [PS Act s72(3)]. See Pay and Conditions.

6. As not all moves will automatically be a transfer of business, agencies should seek legal advice.

7. Agencies should be aware that the Maternity Leave (Commonwealth Employees) Act 1973 (ML Act) only automatically covers APS agencies. This means that when an agency moves out of the APS, its employees are no longer covered and maternity leave provisions are conferred by the agency’s industrial instrument. Where there are compelling arguments to maintain coverage of the ML Act, there is an option for an agency to be prescribed by the Maternity Leave (Commonwealth Employees) Regulations 2016 as an agency covered by the ML Act. The agency should commence discussions with the APSC and PM&C very early if it intends to explore this option, as the process to consider the request to amend the Regulations is a lengthy one.

8. 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 agency is in doubt about coverage under the new arrangement, it should consult with the APSC and/or seek legal advice.


http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government/pay-and-conditions



Returning to the APS

9. 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 agency operating under the Parliamentary Service Act 1999 are able to re-enter the APS under mobility provisions in the PS Act—see Movement between the Parliamentary Service and the APS

through provisions included in enabling legislation for the gaining agency.

10. Agencies should note that arrangements to facilitate the re-entry of former APS employees are rare. Agencies should contact the APSC as soon as possible if considering this.

Excess staff

11. Where the gaining agency indicates that it will require fewer staff to perform the transferred function, agencies will negotiate the management of excess staff.

12. To maximise excess employees’ opportunity to find work in the APS it may be appropriate to facilitate redeployment to other APS agencies before the administration of the MoG change is completed.

Governance and financial management

13. For governance arrangements, please email [email protected].

14. For funding arrangements, please email [email protected].

15. For banking arrangements, please email [email protected].

16. For financial reporting arrangements, please email [email protected].







Machinery of Government changesNon-APS Commonwealth agency to an APS agency

A MoG change can lead to the movement of a Commonwealth function from a Commonwealth agency that is not an APS agency (i.e. an agency that does not operate under the PS Act) to an APS agency.


2. This section provides additional information for agencies on the transfer of functions, staff and resources to an APS agency from a non-APS Commonwealth agency.

3. Organisations moving into the APS are encouraged to consult Finance and the APSC early in the process to discuss the move.

Movement of people

Legislative basis

4. Section 72(1) (c) of the PS Act gives the Commissioner the authority to move an employee from a non- APS Commonwealth agency to an APS agency. See People Management

5. Agencies should consider whether any additional legislation is required to facilitate the movement of staff into the APS, for example, in specific legislation concerning the move.

Terms and conditions

6. Where an employee from a non-APS Commonwealth agency moves to an APS Commonwealth agency, their terms and conditions of employment may be varied following consultation [Public Service Regulation 1999– Regulation 8.2(2)].

7. Section 24(1) of the PS Act gives agency heads the authority to vary the terms and conditions of employment for agency employees. See Pay and Conditions.

8. As not all moves will automatically be a transfer of business, agencies should seek legal advice.

Excess staff

9. Where the gaining agency indicates that it will require fewer staff to perform the transferred function, agencies will negotiate the management of excess staff.

Working in the APS

The Public Service Act 1999

10. The principal act governing the employment, management and leadership of the APS is the PS Act.

11. More information on subordinate legislation and other relevant legislation can be found in the Legislative Framework for the APS.


http://www.apsc.gov.au/working-in-the-aps/the-legislative-framework-for-the-aps


http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government/people-management



12. Section 20 of the Act gives an APS agency head, on behalf of the Commonwealth, all the rights, duties and powers of an employer in respect of APS employees in the agency. This includes engaging and promoting staff and terminating employment.

Workplace relations

13. APS agency heads are responsible for managing workplace relations matters with their employees consistent with the provisions of the Fair Work Act 2009. Agency agreements and other instruments setting terms and conditions of employment must be consistent with the Government’s employment and workplace relations policies, including the Government’s Workplace Bargaining Policy 2018.

14. For non-SES employees, agencies are able to adopt any form of workplace arrangement/s which suit their business needs. Where an agency is considering a change to its current arrangements, the agency should advise the Commissioner before proceeding. Agencies may implement separate workplace arrangements for Executive Level and equivalent employees that recognise their management responsibilities.

15. 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 s.24(1) of the PS Act.

Other matters

16. Gaining APS agencies 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.












Machinery of Government changesNew department/APS agency

A MoG change can lead to the creation of a new APS agency operating under the PS Act.


2. This section provides additional information for the transfer of functions, staff and resources from an APS agency, or a non-APS Commonwealth agency, to a newly created department or APS agency.

3. As soon as a new APS agency is proposed, responsible officers are encouraged to consult the APSC and Finance.

4. Newly created agencies will need the support of portfolio departments. Assistance could include lending staff to assist in the establishment of the agency, for example, staff with expertise in corporate functions.

New departments – urgent action

5. This section outlines urgent action that may be required upon the creation of a new department.

Transfer of funding

6. The timing of the transfer of funding to a newly created department will be dependent on where the department’s function has originated.

Department receives functions from an abolished department

7. The new department cannot rely on the abolished department’s appropriation.

8. Before midnight on the day a department is abolished, an interim transfer of appropriations must occur to enable valid appropriation coverage for any payments made that day, or that are required the next day.

9. Contact the Finance Annual Appropriations Team at [email protected] if your department is impacted.

Department receives functions from an existing department

10. The gaining department is able to rely on the losing agency’s appropriation.

11. The Accountable Authority of the gaining department should issue written instructions to the losing department to enable the transferring department to continue the activities on the gaining department’s behalf, drawing upon the transferring department’s appropriations.

Outcome statements and program structures

12. Generally, a new department would not require the Minister for Finance’s approval if it receives the transferring department’s outcome statement (i.e. an entire outcome statement, already approved is transferred).




13. A new outcome statement would be required if the department cannot receive the outcome statement of the losing entity (i.e. where only a small function within the losing entity’s outcome is being transferred and it would not be appropriate to copy that outcome statement to the gaining entity).

14. See Financial Management.

Departments and APS agencies

Delegations

15. If a department or agency is created out of a MoG, consideration should be given to what delegations, if any, will be required to be in place immediately at the time of establishment so that appropriate officials (such as CFOs) can undertake financial activities on behalf of the entity.

16. In deciding to delegate certain powers, functions or duties, the accountable authority should consider their duty to establish and maintain appropriate systems of risk management and internal control.

17. Further information on the delegation of powers under the PGPA Act, including delegable and sub-delegable powers, is located at https://www.finance.gov.au/resource-management/pgpa-legislation/delegations/.

Accountable Authority Instructions

18. Section 20A of the PGPA Act authorises accountable authorities to give instructions to officials in their agencies on any matter necessary or convenient for carrying out or giving effect to the finance law3.

19. To help accountable authorities develop appropriate controls, Finance has developed model AAIs. For further information, see Resource Management Guide 206: Model accountable authority instructions (https://www.finance.gov.au/resource-management/accountability/accountable-authority-instructions/).

Corporate plan requirements

20. If a new department or agency is established because of MoG changes, a corporate plan for that department must be published as soon as practicable after the plan is prepared.

21. For further information see:

the PGPA Rule 2014 (Rules 16E and 16F) https://www.legislation.gov.au/Details/F2018C00014

Resource Management Guide No. 132 Corporate plans for Commonwealth entities http://www.finance.gov.au/resource-management/performance/.

Movement of people

Legislative basis

22. Section 72 of the PS Act gives the Commissioner the authority to move employees in and out of the APS following a MoG change. The Commissioner may:

move an APS employee to another APS or non-APS Commonwealth agency3 Defined under section 8 of the PGPA Act


http://www.finance.gov.au/resource-management/performance/




https://www.finance.gov.au/resource-management/pgpa-legislation/delegations/

http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government/governance-and-financial-management


move a Commonwealth employee from a non-APS agency into an APS agency engage any person as an APS employee in a specified APS agency.

See People Management.

23. Responsible officers should determine the need for additional legislation to facilitate the movement of staff into a newly created agency.

Terms and conditions

24. The Public Service Regulations 1999 prescribe the terms and conditions for employees moved into an APS agency from another APS agency or from a non-APS Commonwealth agency. See Pay and Conditions.

25. It is likely that the newly created agency will not have a workplace agreement in place. If so, the agency head establishes terms and conditions for employees by making a determination under section 24(1) of the PS Act. This is an interim arrangement until a workplace agreement is put in place.

26. In some cases, it may be appropriate for the new agency head to preserve the conditions of employment that previously applied and are sensible to continue.

27. A section 24(1) determination made following a MoG change can preserve only some, or all, of an employee’s pre-existing terms and conditions. It cannot be used to introduce a new regime.

28. The gaining agency head 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 new agency.

29. A section 24(1) determination is subject to assessment against the Government's Workplace Bargaining Policy 2018 for the Commonwealth public sector.

30. It may also be necessary to make a separate section 24(1) determination creating interim terms and conditions for employees who are engaged by, or move to, the new agency later but before a workplace agreement is in place. [A 24(1) determination in this case is not made under Public Service Regulations 1999, Regulation 8.1].

31. Where subsection 24(1) determinations are not underpinned by an existing workplace agreement, the Australian Public Service Enterprise Award 2015 will apply.

32. Agencies are advised to contact the APSC in relation to any proposed section 24 determination, and particularly in the circumstances described in the above paragraph.

Excess staff

33. Where the newly created agency considers that it will require fewer staff to perform a function, it may be appropriate to facilitate redeployment within the current agency or to other APS agencies before the administration of the completion of the MoG change.

Working in the APS

34. See Non-APS agency to APS agency


http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government/nonaps-to-aps






Records management

35. Responsible officers must take immediate steps to establish a means to record important initial decisions about the legal warrant for the agency, its functions, policy scope and structure. The National Archives can provide specific advice and assistance with systems required for these steps, at the Agency Service Centre. See Records Management






Property management and procurement

40. For property management and leasing arrangements, please email [email protected].

41. For procurement advice, please email [email protected].

Checklist: Setting up a new APS agency–People mattersChecklist: Setting up a new APS agency–Finance Matters


http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government/new-agency/entity-checklist

http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government/new-agency/checklist-setting-up-a-new-aps-agency







http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government/records-management

http://www.apsc.gov.au/publications-and-media/current-publications/machinery-of-government/records-management


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