Public Service Act 1999 Advice No. 3: Special employment measures

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Note: This advice is an amended version of Public Service Act 1999 Advice Number 3: Special Employment measures originally issued on 15 November 1999. It has been reissued to include references to the specific sections of the Public Service Commissioner's Directions which authorise special employment measures and which were promulgated on 5 December 1999.

Introduction

This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation. The new legislation came into operation on 5 December 1999 and the information contained in this advice took effect on that date.

2 The purpose of this advice is to provide information on the operation of special employment programs for the recruitment under the new Act of Indigenous Australians and people with intellectual disabilities.

Background

3 Section 33(4)(b) of the Public Service Act 1922 (the old PS Act) permitted the declaration of approved programs under regulation to encourage the appointment to the Australian Public Service of persons in one of the EEO groups. These arrangements were consistent with the special measures provisions of Commonwealth anti discrimination legislation and allowed recruitment without a full merit selection. Because of the fundamental importance of merit in recruitment to the APS, these arrangements have only been used in cases of disadvantage or difference. The old regulations approved:

programs to encourage the recruitment of Indigenous Australians; and
the Intellectual Disability Access Program (IDAP) for the recruitment of people with intellectual disabilities.

4 People recruited under these programs are required to compete on a full merit basis for subsequent promotion.

5 As part of the Government's administrative reforms, regulation 71B was amended in March 1998 to give agencies greater flexibility to establish their own recruitment programs as well as to use centralised base grade recruitment programs.

Changes under the new legislation

6 There will be little practical change to the operation of the current arrangements. It is expected that the Public Service Commissioner's Directions on Merit in Employment will provide that an Agency Head is not taken to have breached the merit value by identifying an engagement opportunity as open to: a person who is an Aboriginal or Torres Strait Islander within the meaning of the Racial Discrimination Act 1975; a person with an intellectual disability; or a person in a category approved by the Public Service Commissioner. (If such a category were to be approved, separate advice would be issued.)

New arrangements

Indigenous Recruitment

7 The arrangements set out in Circular 1998/13: Special Recruitment Programs to the Australian Public Service (APS) for Indigenous Australians continue to be valid except in relation to how the vacancies are to be advertised. References to special programs under Regulation 71B(1) will need to be replaced by references to an opportunity for employment as open to an Indigenous Australian under clause 4.2(6)(b)(i) of the Public Service Commissioner's Directions 1999 or, for the engagement of employees for a specified term or the duration of a specific task, by clause 4.3(3)(b)(i) of the Public Service Commissioner's Directions 1999.

8 These arrangements can be used to recruit for single or multiple vacancies, for training positions and for cadetships. They can be applied to ongoing or non-ongoing employment, although their main aim continues to be to encourage Indigenous careers in the APS.

Recruitment of People with an Intellectual Disability

9 Consistent with the need to maintain maximum agency flexibility, there will be no specific reference to the IDAP in the new legislative framework. The IDAP guidelines, which were published in 1992, will, however, continue to provide the basis for recruitment of, and support for, people with intellectual disabilities and a revised document will be developed. In the meantime, references in the guidelines to Public Service regulation 71(B)(2) should be replaced by references to clause 4.2(6)(b)(ii) of the Public Service Commissioner's Directions 1999 or, for the engagement of employees for a specified term or the duration of a specific task, by clause 4.3(3)(b)(ii) of the Public Service Commissioner's Directions 1999.

Recruitment and promotion

10 Indigenous Australians and people with intellectual disabilities can be recruited to any level under these arrangements. However, subsequent promotion will continue to be on the basis of a merit selection.

Further advice

11 This advice should be read in conjunction with the related advice, Workplace Diversity Programs and Discrimination in APS Employment.

12 PSMPC contact is Employment Policy Adviceline on 02 6202 3859.

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

17 November 1999