Human Services Legislation Amendment Act 2011 (32 of 2011)

Schedule 2   Amendment of the Commonwealth Services Delivery Agency Act 1997

Part 2   Transitional provisions

Division 5   Employees

67   Transitional - employment agreements and determinations

Transferring employees

(1) For the purposes of this item, a person is a transferring employee if:

(a) the person was an APS employee in Centrelink immediately before the transition time; and

(b) the person is covered by a determination that:

(i) is made under section 72 of the Public Service Act 1999; and

(ii) causes the person, at the transition time, to become an APS employee in the Department.

(2) If:

(a) a person is a transferring employee (other than an SES employee); and

(b) immediately before the transition time, a designated agreement applied to the person’s employment in Centrelink; and

(c) there is no enterprise agreement that:

(i) commences at the transition time; and

(ii) was made by the Secretary on behalf of the Commonwealth; and

(iii) covers the Commonwealth and the transferring employee in relation to the transferring employee’s employment in the Department;

then:

(d) the designated agreement (as in force immediately before the transition time):

(i) covers the Commonwealth and the transferring employee in relation to the transferring employee’s employment in the Department; and

(ii) applies to the transferring employee’s employment in the Department; and

(e) while the designated agreement covers the Commonwealth and the transferring employee in relation to the transferring employee’s employment in the Department, no other enterprise agreement, modern award or award-based transitional instrument covers the transferring employee in relation to the transferring employee’s employment in the Department; and

(f) the designated agreement has effect after the transition time, in relation to the transferring employee’s employment in the Department, as if it had been made by the Secretary on behalf of the Commonwealth; and

(g) if the transferring employee becomes an SES employee after the transition time - paragraphs (d), (e) and (f) cease to apply in relation to the transferring employee; and

(h) if:

(i) an enterprise agreement commences after the transition time; and

(ii) the enterprise agreement was made by the Secretary on behalf of the Commonwealth; and

(iii) apart from paragraphs (d), (e) and (f), the enterprise agreement covers the Commonwealth and the transferring employee in relation to the transferring employee’s employment in the Department;

paragraphs (d), (e) and (f) cease to apply in relation to the transferring employee when the enterprise agreement commences.

(3) If:

(a) a person is a transferring employee; and

(b) immediately before the transition time, an individual agreement-based transitional instrument applied to the person’s employment in Centrelink;

the individual agreement-based transitional instrument has effect after the transition time, in relation to the transferring employee’s employment in the Department, as if it had been made with the Secretary on behalf of the Commonwealth.

(4) If:

(a) a person is a transferring employee (other than an SES employee); and

(b) immediately before the transition time, an individual agreement-based transitional instrument applied to the person’s employment in Centrelink; and

(c) at a time (the cessation time ) during the period:

(i) beginning at the transition time; and

(ii) ending immediately before the commencement of an enterprise agreement made after the transition time by the Secretary on behalf of the Commonwealth, where (apart from the individual agreement-based transitional instrument) the enterprise agreement covers the Commonwealth and the transferring employee in relation to the transferring employee’s employment in the Department;

the individual agreement-based transitional instrument ceases to cover the person’s employment; and

(d) a designated agreement covers the Commonwealth because of subitem (2); and

(e) the Secretary, by written notice given to the transferring employee before or within 14 days after the cessation time, determines that the designated agreement is applicable to the transferring employee for the purposes of this subitem from the cessation time;

then:

(f) the designated agreement (as in force immediately before the transition time):

(i) covers the Commonwealth and the transferring employee in relation to the transferring employee’s employment in the Department; and

(ii) applies to the transferring employee’s employment in the Department; and

(g) while the designated agreement covers the Commonwealth and the transferring employee in relation to the transferring employee’s employment in the Department, no other enterprise agreement, modern award or award-based transitional instrument covers the transferring employee in relation to the transferring employee’s employment in the Department; and

(h) the designated agreement has effect after the cessation time, in relation to the transferring employee’s employment in the Department, as if it had been made by the Secretary on behalf of the Commonwealth; and

(i) if the transferring employee becomes an SES employee after the cessation time - paragraphs (f), (g) and (h) cease to apply in relation to the transferring employee; and

(j) if:

(i) an enterprise agreement commences after the transition time; and

(ii) the enterprise agreement was made by the Secretary on behalf of the Commonwealth; and

(iii) apart from paragraphs (f), (g) and (h), the enterprise agreement covers the Commonwealth and the transferring employee in relation to the transferring employee’s employment in the Department;

paragraphs (f), (g) and (h) cease to apply in relation to the transferring employee when the enterprise agreement commences.

(5) If:

(a) a person is a transferring employee; and

(b) immediately before the transition time, a determination under subsection 24(1) of the Public Service Act 1999 applied to the person’s employment in Centrelink;

then:

(c) the determination (to the extent to which it relates to the transferring employee) has effect after the transition time, in relation to the transferring employee’s employment in the Department, as if:

(i) the determination had been made by the Secretary; and

(ii) the determination were applicable to the person’s employment in the Department; and

(d) paragraph (c) does not prevent the variation or revocation of the determination.

New employees

(6) For the purposes of this item, a person is a new employee if:

(a) the person is an APS employee (other than an SES employee) in the Department; and

(b) the person is not a transferring employee.

(7) If:

(a) a designated agreement covers the Commonwealth because of subitem (2); and

(b) after the transition time, a person becomes a new employee; and

(c) the Secretary, by written notice given to the new employee before or within 14 days after the person becomes a new employee, determines that the designated agreement is applicable to the new employee for the purposes of this subitem from the time when the person becomes a new employee;

then:

(d) the designated agreement (as in force immediately before the transition time):

(i) covers the Commonwealth and the new employee in relation to the new employee’s employment in the Department; and

(ii) applies to the new employee’s employment in the Department; and

(e) while the designated agreement covers the Commonwealth and the new employee in relation to the new employee’s employment in the Department, no other enterprise agreement, modern award or award-based transitional instrument covers the new employee in relation to the new employee’s employment in the Department; and

(f) the designated agreement has effect after the transition time, in relation to the new employee’s employment in the Department, as if it had been made by the Secretary on behalf of the Commonwealth; and

(g) if the new employee becomes an SES employee after the transition time - paragraphs (d), (e) and (f) cease to apply in relation to the new employee; and

(h) if:

(i) an enterprise agreement commences after the transition time; and

(ii) the enterprise agreement was made by the Secretary on behalf of the Commonwealth; and

(iii) apart from paragraphs (d), (e) and (f), the enterprise agreement covers the Commonwealth and the new employee in relation to the new employee’s employment in the Department;

paragraphs (d), (e) and (f) cease to apply in relation to the new employee when the enterprise agreement commences.

Section 58 of the Fair Work Act 2009

(8) Paragraphs (2)(h), (4)(j) and (7)(h) have effect subject to section 58 of the Fair Work Act 2009.

Delegation

(9) The Secretary may, in writing, delegate the powers conferred by paragraphs (4)(e) and (7)(c) to an SES employee in the Department.

Legislative instrument

(10) A determination made under paragraph (4)(e) or (7)(c) is not a legislative instrument.

Definitions

(11) In this item:

award-based transitional instrument has the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

collective agreement-based transitional instrument has the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

commence , in relation to an enterprise agreement, means begin to operate.

designated agreement means:

(a) the Centrelink Agreement 2009-2011; or

(b) a collective agreement-based transitional instrument.

enterprise agreement has the same meaning as in the Fair Work Act 2009.

individual agreement-based transitional instrument has the same meaning as in Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

modern award has the same meaning as in the Fair Work Act 2009.