Legislative and policy framework

Conditions of engagement are covered under section 22(6) of the PS Act. Under the PS Act, agency heads have all the rights, duties and powers of an employer. Their decisions must, of course, comply with the requirements of the PS Act and the various instruments issued under the Act including the Public Service Regulations 1999 (the Regulations) and the Public Service Commissioner's Directions (the Directions). Employment decisions must also take account of the requirements of the Fair Work Act 2009, administrative law and the common law of employment.

The Act allows an agency head to delegate to another person many of the agency head’s powers or functions under the Act. An agency head may choose to delegate powers under the Act relating to recruitment and selection to an APS employee within the agency. These powers can also be delegated, with the consent of the Public Service Commissioner, to an 'outsider'—a person who is not an APS employee. Any delegation of these powers by the agency head must be in writing. A reference in this document to the agency head can also mean their delegate.

The PS Act is interpreted and applied by all APS agencies. It is therefore important that the Australian Public Service Commission (the Commission) be kept fully informed of current legal thinking on the interpretation of the Act so that this can inform the advice provided by the Commission to agencies. Agencies are therefore requested to liaise with the Commission when obtaining advice and forward copies of any legal advice that they obtain regarding the PS Act framework to the Commission, in line with Clause 10 of the Legal Services Directions.