• Section I - Technical and general

    Technical and general

    146 Name of the Agreement

    146.1

    This Agreement is called the ATO Enterprise Agreement 2011.

    147. Who does the Agreement cover?

    147.1

    This Agreement covers and is binding on:

    Employer
    The Commissioner of Taxation

    Employees
    All employees of the ATO, including the Australian Valuations Office, who are employed under the Public Service Act 1999 in classifications at and below APS Executive Level 2, except:

    a. any employee who is engaged overseas only to perform duties overseas; or

    b. any employee who is employed on an AWA.

    148. When does the Agreement start and end?

    148.1

    The Agreement takes effect 7 days after approval by FWA under section 54 of the Fair Work Act 2009.

       

    148.2

    The nominal expiry date of the Agreement is 30 June 2014.

    149. Definitions

    149.1

    For the purposes of clauses 97 and 98 "another person" means a person with whom the employee does not reside and for whom the employee has caring responsibilities.

    "APS" means the Australian Public Service.

    "ATO" means the Australian Taxation Office.

    "AVO" means the Australian Valuation Office.

    "BSL" means Business and Service Line.

    "Commissioner" means the Commissioner of Taxation, or a person who is delegated or authorised to act on his or her behalf.

    "Consultation" means the sharing of information and providing a genuine opportunity for employees and their representatives to put their views to the appropriate decision maker and for those views to be considered before a final decision is made.

    "Director" means the person to whom an employee's manager reports, or an EL2 to whom a General Employee reports, or an SES to whom an EL2 reports. For the purposes of this definition, an EL2 includes an employee temporarily assigned duties at the EL2 classification level.

    "Eligible salary" for the purposes of Sabbatical Leave in clause 95 means salary, excluding allowances (except higher duties allowance) before adjustments for salary packaging or purchased leave.

    "EL2 employee" means an employee employed at the substantive EL2 classification.

    "Emergency wardens" means floor wardens and wardens of the Emergency Control Organisation.

    "Employment" means the current period of engagement with the APS.

    "FAC ATOP" means First Assistant Commissioner, ATO People.

    "FMA Act" means Financial Management and Accountability Act.

    "FWA" means Fair Work Australia.

    "General employee" means an employee covered by this Agreement other than an employee substantively at the EL2 classification.

    "General Manager" means the General Manager of the Australian Valuation Office or a person who is delegated or authorised to act on his or her behalf.

    "HDA" means higher duties allowance.

    "Household" is defined as the residence in which the employee normally resides;

    "HWVA" means higher work value allowance.

    "Immediate family" includes:

    a. a spouse, child, parent, grandparent, grandchild or sibling of the employee; or

    b. a child, parent, grandparent, grandchild or sibling of a spouse of the employee.

     

    where "spouse" includes the following:

    i. a former spouse;

    ii. a de facto spouse;

    iii. a former de facto spouse; and where

    "de facto spouse", of an employee, means a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis (whether the employee and the person are of the same sex or different sexes).

    "Manager" means the person to whom an employee reports.

    "Misconduct" means a breach of the APS code of conduct.

    "Negotiation" means conferring in good faith, with a view to reaching agreement. However, it is recognised that agreement will not always be possible.

    "NES" means National Employment Standards, as defined in the Fair Work Act 2009.

    "NPM" means National Program Manager.

    "Overtime salary barrier" means the minimum salary payable at the Executive Level 1 classification level.

    "Promotion" has the same meaning as under the Public Service Act 1999.

    "Regular part-time employment" means employment of less than 147 hours over a 4-week settlement period which has a regular pattern such that hours of duty are capable of being specified in accordance with sub-clause 85.12 of this Agreement.

    "Representatives" - in the context of phrases 'employees and, where they choose, their representatives', the term 'representatives' means a person elected or chosen by an employee, or elected or chosen by employees in a workplace, to represent the collective views of those employees in relation to the matter under this Agreement.

    "Service" means both the current period of employment with the APS and prior periods of employment with recognised organisations for the purposes of the Long Service Leave (Commonwealth Employees) Act 1976.

    "Skills Barrier" means the salary barrier through which a Valuer cannot proceed until they satisfy the requirements for progression.

    "Union" has the same meaning as 'Industrial Association' under the Fair Work Act 2009.

    "VIT" means Valuer in Training.

    "Viva Voce barrier" means the salary barrier through which a Valuer in Training cannot proceed until they satisfy the requirements for progression to the Valuer broad banded structure.

    150. Relationship to other Agreements and Awards

    150.1

    This workplace agreement is a comprehensive agreement.

       

    150.2

    However, any right, obligation or liability that was already accrued or incurred under the provisions of a superseded award or agreement shall be preserved. Any benefits accrued shall be subject to the operation of this Agreement.

    151. Safety net clause

    151.1

    If, within 6 months of the commencement of this Agreement, it can be shown to the satisfaction of the Commissioner that:

    i. a condition in the ATO (General Employees) Agreement 2009 or the ATO (Executive Level 2) Agreement 2009 was inadvertently displaced; and

    ii. that displaced condition was significantly advantageous to employees,

    the Commissioner will convene a meeting with organisations covered by this agreement to consult and agree on appropriate remedies.

    152. No extra claims clause

    152.1

    From the commencement of this Agreement, a person or organisation covered by the Agreement will not pursue further claims for terms and conditions of employment that would have effect during the period of operation of this Agreement, except where consistent with the terms of this Agreement.

    153. Authority of the Commissioner

    153.1

    This Agreement does not reduce the general authority and responsibility of the Commissioner under the various taxation, superannuation and child support laws and Public Service legislation.

       

    153.2

    This Agreement does not prevent the implementation of Government initiatives and directions, or Machinery of Government changes.

       

    153.3

    Where a power or authority under this Agreement does not refer to a nominated person, it shall be read to be a power or authority of the Commissioner.

       

    153.4

    Where this Agreement has given a power or authority to a manager or team coach, that power and authority has also been given to Directors for employees under their control, NPMs and SES for employees in their Line and/or under their control and Second Commissioners.

       

    153.5

    Where this Agreement has given a power or authority to a Director, that power or authority has also been given to NPMs and SES for employees in their Line and/or under their control and Second Commissioners.

       

    153.6

    The Commissioner may delegate any of his or her powers under this Agreement or authorise a person to exercise any of those powers on his or her behalf.

       

    153.7

    The Commissioner may delegate any of his/her powers under this Agreement, including the power of delegation, to the FAC ATOP.

    154. Individual Flexibility Arrangements

    154.1

    The ATO and an employee covered by this Agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

    a. the arrangement deals with 1 or more of the following matters:

     

    i. arrangements about when work is performed;

    ii. overtime rates;

    iii. penalty rates;

    iv. allowances;

    v. remuneration; and/or

    vi. leave; and

    b. the arrangement meets the genuine needs of the ATO and the employee in relation to one or more of the matters mentioned in paragraph (a);

    c. and the arrangement is genuinely agreed to by the Commissioner and the employee.

       

    154.2

    The ATO must ensure that the terms of the individual flexibility arrangement:

    a. are about permitted matters under section 172 of the Fair Work Act 2009; and

    b. are not unlawful terms under section 194 of the Fair Work Act 2009; and

    c. result in the employee being better off overall than the employee would be if no arrangement was made.

       

    154.3

    The ATO must ensure that the individual flexibility arrangement:

    a. is in writing; and

    b. includes the name of the employer and employee; and

    c. is signed by the Commissioner and the employee, and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and

    d. includes details of:

     

    i. the terms of the enterprise agreement that will be varied by the arrangement; and

    ii. how the arrangement will vary the effect of the terms; and

    iii. how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

    e. states the day on which the arrangement commences and, where applicable, when the arrangement ceases.

       

    154.4

    The ATO must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

       

    154.5

    The ATO or the employee may terminate the individual flexibility arrangement:

    a. by giving no more than 28 days written notice to the other party to the arrangement; or

    b. if the Commissioner and employee agree in writing - at any time.

       

    154.6

    In relation to Flexibility Arrangements:

    a. discussions on a Flexibility Arrangement can be initiated by the Commissioner or an employee;

    b. employees may have an employee representative to represent them in any discussions;

    c. the ATO will report to the National Consultative Forum on the number of Flexibility Agreements in operation by classification, the general nature of each Flexibility Agreement and the reasons for their operation without compromising the privacy arrangements below.

       

    154.7

    There will be no restriction on an employee disclosing arrangements under a Flexibility Arrangement to any party. However the ATO will treat Flexibility Arrangements as personal information subject to relevant privacy provisions.

      Last modified: 02 Dec 2011QC 24167