Treasury Laws Amendment (Enhancing ASIC's Capabilities) Act 2018 (122 of 2018)

Schedule 2   Amendments relating to engagement of ASIC staff

Part 1   Main amendments

Australian Securities and Investments Commission Act 2001

12   In the appropriate position

Insert:

Part 25 - Transitional provisions relating to the Treasury Laws Amendment (Enhancing ASIC's Capabilities) Act 2018

309 Definitions

In this Part:

APS employee has the meaning given in section 7 of the Public Service Act 1999.

commencement day means the day on which Schedule 2 to the Treasury Laws Amendment (Enhancing ASIC's Capabilities) Act 2018 commences.

staff member has the meaning given in subsection 5(1) as in force on and from the commencement day.

310 Staff members engaged under former subsection 120(3)

Each person who, immediately before the commencement day, was a staff member employed under a written agreement under subsection 120(3) continues to be employed under that agreement. That agreement is taken to be an agreement under section 120 as in force on and from that day.

311 APS employees in ASIC

(1) This section applies to a person who, immediately before the commencement day, was a staff member (as defined in subsection 5(1) as in force immediately before the commencement day) engaged under the Public Service Act 1999.

(2) On and from the commencement day, the person is taken:

(a) to cease to be engaged under the Public Service Act 1999; and

(b) to be employed by ASIC under a written agreement under section 120 as in force on and from the commencement day; and

(c) except as provided by this Act:

(i) to be employed on the same terms and conditions as those that applied to the person immediately before the commencement day; and

(ii) to have accrued an entitlement to benefits, in connection with that employment by ASIC, that is equivalent to the entitlement that the person had accrued, in connection with his or her employment, immediately before the commencement day.

(3) The person's service as an employee of ASIC is taken, for all purposes, to be continuous with his or her service as an APS employee.

(4) This Part does not affect any promotion, performance management or disciplinary actions (however described) in relation to the person that had been started before the commencement day.

(5) A staff member who ceases to be an APS employee because of subsection (2) is not entitled to receive any payment or other benefit merely because he or she ceased to be an APS employee.

312 ASIC Enterprise Agreement

(1) In this section:

Enterprise Agreement means the Australian Securities & Investments Commission Enterprise Agreement 2016-2019 approved under the Fair Work Act 2009 on 20 May 2016, as in force immediately before the commencement day.

(2) The Enterprise Agreement:

(a) continues, on and from the commencement day, to cover and apply to employees whom it covered and applied to immediately before the commencement day; and

(b) covers and applies to employees at the classification levels covered by the Enterprise Agreement whose employment with ASIC commences on or after the commencement day.

(3) On and after the commencement day, the Enterprise Agreement covers and applies to the Chairperson as the employing authority but on behalf of ASIC under section 120.

(4) This section does not prevent the variation or termination of the Enterprise Agreement in accordance with law.

(5) This section does not affect the operation of section 58 of the Fair Work Act 2009.

313 Variation of terms and conditions of employment

(1) This Part does not prevent the terms and conditions of a staff member's employment after the commencement day from being varied:

(a) in accordance with those terms and conditions; or

(b) by or under a law, award, determination or agreement.

(2) In this section:

vary , in relation to terms and conditions, includes:

(a) omitting any of those terms and conditions; and

(b) adding to those terms and conditions; and

(c) substituting new terms or conditions for any of those terms and conditions.

314 Transitional rules

(1) In this section:

transitional rule means an instrument made under subsection (2) or (4).

(2) The Minister may make a written instrument prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to sections 310 to 313 in relation to a particular person.

(3) An instrument made under subsection (2) is not a legislative instrument.

Note: Subsection 33(3) of the Acts Interpretation Act 1901 provides for the repeal, variation etc. of instruments.

(4) The Minister may, by legislative instrument, prescribe matters of a transitional nature (including prescribing any saving or application provisions) relating to sections 310 to 313 in relation to a class of persons.

(5) Without limiting subsection (2) or (4):

(a) a transitional rule made under subsection (2) may declare that a specified provision of sections 310 to 313 is to have effect, in relation to a particular person, as if it were modified as specified in the transitional rule; and

(b) a transitional rule made under subsection (4) may declare that a specified provision of sections 310 to 313 is to have effect, in relation to a class of persons, as if it were modified as specified in the transitional rule.

The provision has effect accordingly.

(6) A transitional rule:

(a) must not be made after 12 months after the commencement day; and

(b) if it is a legislative instrument - takes effect from the later of:

(i) the day after the day it is registered; or

(ii) a later day specified in the rule; and

(c) if it is not a legislative instrument - takes effect from the later of:

(i) the day after the day it is made; or

(ii) a later day specified in the rule; and

(d) unless revoked earlier, remains in effect for 12 months from the day the rule takes effect, or a shorter period specified in the rule.

(7) To avoid doubt, a transitional rule may not do any of the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(c) impose a tax;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.