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Last updated: 24 November 1999

Public Service Act 1999 Advice No. 6: Staffing Actions: relating to non-SES ongoing employees

Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts

It has been replaced by the documents referred to in Circular 2004/9

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.

2 Under the Public Service Act 1999 (the new PS Act), Agency Heads are responsible for the following staffing actions in relation to ongoing employees: selection, engagement, movement, promotion, assignment of duties and allocation of classification levels. The purpose of this advice is to assist agencies in developing policies in regard to non-SES staffing actions relating to ongoing employees.

3 This advice focuses on the legislative requirements and transitional arrangements for: merit and staff selection; engagement of ongoing APS employees; assignment of duties to ongoing APS employees; movement of ongoing APS employees; and promotion of ongoing APS employees.

4 This Advice should also be read in conjunction with separate advices on

Terminology

5 The new PS Act uses different terminology to describe most staffing actions, The words below in brackets are the corresponding staffing actions under the old PS Act:

6 Agencies should note that:

  1. an employee who moves to another agency must also be assigned duties; and
  2. promotion is still an "ongoing" movement to a higher classification.

The Legislative Framework

7 The formal framework which applies to non-SES staffing actions is contained in:

8 Other legislation which still applies to employment actions and decisions includes:

Ongoing Employment Status

9 Section 22 of the new PS Act provides for the engagement of APS employees and determines the categories of employment in which persons can be engaged (s22(2)). The usual basis for engagement is as an ongoing employee (s22(3)).

10 An APS employee will be an employee of the Agency in which the employee is working.

11 The PECTA Act converts non-SES officers and continuing employees to ongoing APS employees on the commencement of the new Act.

12 Existing short-term and fixed-term employees will be converted to the relevant non-ongoing APS employment category on the same date. Agencies should refer to the Miscellaneous Issues Advice (No.24) for more details on conversion of employees.

Merit

13 Merit remains a fundamental principle of APS employment. This is articulated in the APS Values in section 10(1)(b) of the new Act which states that: "the APS is a public service in which employment decisions are based on merit".

14 Merit based decisions, as defined in Clause 10(2) for promotion and engagement, require, as a primary consideration, a competitive assessment of the relative suitability of the candidates against the genuine requirements of the duties having regard to the capacity of candidates to achieve outcomes relevant to the duties.

15 Under the new PS Act and the Public Service Commissioner's Directions 1999 (the Commissioner's Directions), all selection decisions made by an Agency Head (or delegate) on the engagement or promotion of an ongoing employee must be made on the basis of a merit selection exercise following the notification of the employment opportunity in the Gazette except in specific circumstances set out in paragraph 17 below.

16 For other employment decisions, the Commissioner's Directions on APS Value 10(1)(b) require that the decision is made on the basis of an objective assessment of the person's work-related qualities and the work-related qualities required for efficient and effective organisational performance.

17 The Commissioner's Directions (Schedule 1) will also specify circumstances where ongoing engagements which can be made without a merit selection. These circumstances, which are similar to current arrangements, include:

Patronage and Favouritism

18 A person exercising powers under the new PS Act or Regulations in relation to the engagement of APS employees or otherwise in relation to APS employees must do so without patronage or favouritism (s17 of new PS Act).

Selection of Ongoing APS employees

19 Agencies will need to determine the method for selecting employees which conforms with the new legislative framework, including the APS Values, and which meets their operational requirements.

20 As under the old PS Act, agencies are free to choose the selection tools (eg interviews, workbased tests, referee comments, assessment centres) to be used to assess people for engagement, promotion, reassignment of duties and movement. However, for engagements and for promotions, the selection processes must reflect merit based decision making as specified in Clause 10(2) of the new PS Act.

21 Agencies may choose to impose mandatory qualifications or other conditions that must be met for promotion, assignment of duties or engagement of ongoing employees. This is discussed in greater detail below under the heading Conditions of Engagement.

22 Agencies should note that existing notifications of mandatory qualifications and other conditions that must be met will need to be reissued after 5 December 1999 (see Paragraphs 42-45).

23 Agencies may choose to use an Independent Selection Advisory Committee (ISAC) which replaces the old Joint Selection Committee (JSC). See separate advice No.15 on ISACs.

Engagement of ongoing APS employees

Engagement power

24 Agency Heads (or their delegates) can engage ongoing APS employees under s22 of the Act.

25 It is proposed that the Commissioner's Directions (Chapter 4) will set out restrictions placed on Agency Heads in relation to the engagement of a person who has received a redundancy benefit from an APS agency or a non-APS Commonwealth employer for twelve months following the end of the person's employment. Separate advice is being issued on this matter.

Notification of Employment Opportunities

26 It is intended that the Commissioner's Directions (Chapter 4) will require that all employment opportunities for ongoing employment be notified in the Commonwealth of Australia Public Service Gazette (the Gazette). This reflects the importance the Government places on open access to APS employment opportunities and is a practical measure to promote APS Value 10(1)(m) which states "the APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment". The decision whether any additional advertising is required, and the form it should take (eg Internet or press), will need to be made by the Agency Head or delegate.

27 Agencies may restrict Gazette access on the grounds of cost and operational efficiency for employment opportunities other than training offices and those with APS1 or equivalent classifications. However, there are a number of groups of people who are eligible to apply for restricted employment opportunities, including:

28 A full list of these groups will be included in Schedule 2 to the Commissioner's Directions.

29 Agency Heads may engage as an ongoing employee a person from an order of merit established from a Gazette notification provided that the opportunity was notified within 12 months of the decision to engage (eg if a delegate makes the decision to engage a person on 6 December 1999 the employment opportunity must have been notified in the Gazette on or after 7 December 1998). This arrangement, which mirrors the provisions of the old PS Regulation 112, provides agencies with the flexibility to use orders of merit for similar employment opportunities for up to 12 months.

30 Agency Heads are not bound to use existing orders of merit and may choose to notify individual employment opportunities in the Gazette.

Conditions of engagement

31 The engagement of an APS employee may be made subject to conditions notified to the employee. These conditions would normally be specified in the Gazette notification of the employment opportunity and/or in supporting selection documentation and would be included in the offer of employment that is given to the employee.

32 If an Agency Head does not specify any conditions in the notice of engagement then no conditions will apply as there is no power to impose these conditions after engagement. The most common conditions are listed in s22(6) and are discussed below.

Probation

33 Agency Heads have the discretion to apply a period of probationary employment to any new employee and to prescribe the manner in which probation is managed. The new PS Act does not prescribe any minimum or maximum periods of probation.

34 Decisions of the Australian Industrial Relations Commission concerning applications under the Workplace Relations Act 1996 (WR Act) against unfair or unlawful dismissal provide useful guidance as to what constitutes a reasonable period of probation.

35 Probationers are excluded from the termination of employment provisions of the WR Act where the period or maximum period of probation is determined in advance and:

36 The issue of whether the maximum probationary period of 2 years in the old PS Act is reasonable having regard to the nature and circumstances of the employment, has been the subject of detailed consideration and comment.

37 Some decisions in that regard are:

38 These decisions indicate that consideration would be given to a range of factors in determining what is a reasonable maximum period of probation determined in advance for the purposes of the WR Act. This may include the nature of employment, type of duties and classification of the engagement.

39 To ensure that new employees understand the probationary arrangements that will apply to them, it is important that agencies clearly advise them of the nature of these arrangements prior to their engagement. The nature of the arrangements will be important should agencies need to terminate an employee on probation. Termination of probation on the grounds specified at engagement will not be considered "harsh, unjust or unreasonable" or "unfair or unlawful" under the WR Act. Agencies should also refer to Advice No 9 on Termination of Employment.

40 There is no concept in the new PS Act of confirmation of engagement. A person is an ongoing employee subject to a probationary period. Agencies will need to advise such employees when the probationary period has formally ended.

Australian Citizenship

41 A person who is not an Australian citizen cannot be engaged, unless the Agency Head considers it appropriate to do so (s22(8) and s22(6)(b)). This would need to be done on a case-by-case basis. If the Australian citizenship requirement is waived, an Agency will need to ensure that the person has the necessary visa and work rights appropriate to the employment being offered by the Agency Head.

Qualifications

42 There are no mandatory qualifications prescribed in the new PS Act. Agency Heads may prescribe mandatory qualifications if they are considered appropriate (s22(6)(c)). Unlike the arrangements that were introduced by the Administrative Reforms in March 1998, there is no requirement to Gazette mandatory qualifications. Any mandatory qualifications imposed will, however, need to be clearly linked to the sets of duties (or positions if used) to which they apply. This could be achieved through the Gazette notification and/or in supporting selection documentation.

43 Agencies should note that the employment power of Agency Heads in section 20 will also allow the imposition of mandatory qualifications (and other conditions eg health requirements) on sets of duties to be assigned to existing ongoing employees (at or below level or on promotion).

44 Agency Heads, or delegates, will need to issue policy advice under the employer power after 5 December 1999 if they wish to reproduce any existing arrangements covering mandatory conditions that must be met for eligibility for engagement, promotion or assignment of duties that were notified in the Gazette under the provisions of the old PS Act.

45 Agencies are currently using either the qualifications issued by the Public Service Commissioner published in the P14 Gazette of 24 July 1998 or qualifications issued by their Agency Heads in the Gazette following the delegation of the power to determine qualifications from 15 March 1998 (See PSMPC Circular 1998/2). These qualifications will have no legal basis once the old PS Act is repealed and the new PS Act comes into operation on 5 December 1999.

Security and character clearances

46 Agency Heads can require security and character clearances based on the needs of their agencies (s22(6)(d)).

Health clearances

47 Agency Heads can specify health clearances based on the needs of their agencies (s22(6)(e)) and the Regulations will provide that persons can be directed to undergo a medical examination for the purposes of meeting the relevant conditions of engagement.

Notification

48 The Agency Head or delegate will need to advise the successful candidate of the proposed engagement and any conditions that have been imposed on the engagement, including any period of probation, and negotiate a starting date.

49 The PSMPC has asked the Australian Government Solicitor to develop a proforma/template to use for the engagement of ongoing employees. This will be issued separately as soon as it is finalised.

50 The new PS Regulations will require Agency Heads to notify all engagements of ongoing employees in the Gazette. This is to meet the Government's requirements for openness and accountability.

Transitional Provisions for Engagement and Conditions of Engagement

51 Where an appointment or reappointment instrument has been signed by the delegate before 5 December 1999 but has not become effective, the appointment is deemed to be made as an ongoing engagement under s22(2)(a) of the new PS Act.

52 Where an appointment or reappointment instrument has not been signed by the delegate before 5 December 1999, it is intended that any conditions imposed on the selection under s33A of the old PS Act undertaken before 5 December 1999 will be preserved for the purposes of satisfying engagement requirements under the new PS Act.

53 In the case of an officer who is still on probation on 5 December 1999, it is intended that a transitional regulation will determine that the officer will remain subject to the same terms and conditions in relation to probation as applied under s47 of the old PS Act. The provisions of s47 will continue to apply to the person until the appointment is confirmed or terminated.

54 Where an instrument has been signed prior to 5 December 1999 to terminate an officer on probation, but the termination has not come into effect, it is intended that a transitional regulation will allow the termination action to continue until finalised under the old PS Act.

55 Where an Agency Head has required an officer to undergo a medical examination under Regulation 45 of the old PS Act prior to 5 December, a transitional regulation will deem this to be a direction by the Agency Head under the new Public Service Regulations.

Assignment of duties to ongoing APS employees

56 An Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed (s25 of the new PS Act). This will be known as "assignment of duties".

No declination provisions

57 There is no provision in the new PS Act for an APS employee to apply to decline an assignment of duties or a determination that duties are to be performed in a different place. Good management practice would suggest, however, that major changes to an employee's duties, or work location, should be discussed with the employee concerned and suitable notice should be provided. Agencies should note that s23(4) of the Act prohibits an Agency Head from reducing an employee's classification without consent, except in the circumstances outlined in that section.

Nature of assignments

58 The assignment of duties within an Agency may be on an ongoing or temporary basis and to the same, lower or higher classifications (the old transfer, temporary transfer, transfer on reduction or HDA arrangements).

Selection for duties at the same or lower classification

59 For both the temporary and ongoing assignment of duties at the same or lower classification levels, there are no requirements for merit selection as outlined in s10(2), but Agency Heads or delegates must take into account the merit basis for employment in the APS (APS value 10(1)(b)) ie the need for employment decisions to be based on an assessment of a person's work-related qualities and the work-related qualities required to effectively perform the duties.

Temporary assignment to duties of a higher classification

60 If the assignment of duties is to be temporary and the duties are at a higher classification, the Commissioner's Directions will require Agency Heads to have taken into account the following factors (APS value 10(1)(b)):

61 The above factors are similar to the provisions for the performance of higher duties which were contained in old PS Regulation 116A.

Notification of assignment of duties

62 Agencies will need to have processes in place that will inform ongoing employees of their assigned duties and, if appropriate, the length of any temporary assignment of duties.

63 Prior to the engagement, promotion or movement of an ongoing APS employee, an Agency Head will need to establish a set of duties at a particular classification which can then be assigned to the employee.

64 If the assignment of duties results from an ongoing employment opportunity notified in the Gazette, agencies will be required to notify the assignment of duties in the Gazette. This is similar to the requirement to notify transfers to advertised positions under the old PS Act.

Transitional Provisions for Transfer and Temporary Performance Directions within an Agency

65 Where a transfer instrument has been signed by the delegate before 5 December 1999 (whether the transfer has been notified in the Gazette or not) but has not come into effect on 5 December 1999, the transitional provisions will allow the transfer process to continue to finality and be subject to all relevant provisions of the old PS Act (including the right to decline, appeals and related Merit Protection (Australian Government Employment) Act 1984 (the MP(AGE)) Act processes where appropriate). Once finalised, the transfer will be deemed to be an assignment under s25 of the new PS Act.

66 Where a transfer instrument has not been signed by the delegate before 5 December 1999, it is intended that any conditions imposed on the selection exercise under s33A of the old PS Act will be preserved for the purposes of satisfying any conditions applying to the assignment of duties requirements under the new PS Act.

67 Where a temporary performance direction has been signed by a delegate before 5 December 1999, but the period of temporary performance has not expired on 5 December 1999, the temporary performance direction will continue for the unexpired part of the direction and deemed to be made as a temporary assignment under section 25 of the new PS Act.

68 Where a temporary performance direction has been notified within 14 days prior to 5 December 1999, the transitional provisions will allow appeal arrangements to continue to finalisation under old PS Regulations 116C, 116D and 116E.

Movement of ongoing APS employees

69 Section 26 of the new PS Act provides the power for an Agency Head to enter into a written agreement with an ongoing employee from another Agency to move to their Agency. The agreement of the losing Agency Head is not required for the move to take effect.

70 Such movements can be at the same, lower or higher classification. If the movement is to a higher classification than the one held by the ongoing employee before moving agencies, it must be handled as a promotion under the arrangements discussed separately in this Advice.

Selection

71 For both temporary and ongoing movements at the same or lower classification levels, there are no requirements for merit selection as outlined in s10(2) but an Agency Head or delegate must take into account the merit basis of employment in the APS (APS value 10(1)(b)) ie the need for employment decisions to be based on an assessment of a person's work-related qualities and the work-related qualities required to effectively perform the duties.

Notification of Agreement to Current Agency Head

72 The new Regulations will provide that, once an employee enters into a written agreement with another Agency Head to move, the employee must notify his or her current Agency Head of the arrangement before the end of the next working day.

73 Agencies will need to develop procedures to handle this requirement including specifying who the employee must notify and the format the notification must take.

Date of Effect of the Movement

74 The regulations will provide for voluntary movements to duties at the same or lower classifications to take effect four weeks after notifying the losing Agency Head of the agreement to move to another Agency. There is provision for all parties to agree to a different starting date.

75 Once agreement is reached no further formal notice is required. If the move is the result of an employment opportunity notified in the Gazette, however, then the outcome must be notified in the Gazette.

76 Agencies will need to determine procedures to handle the negotiation of release dates within the Agency eg who is authorised to negotiate an earlier or later date of effect. This is not dissimilar to current arrangements for transfer between agencies.

Temporary Movement

77 If the movement to another agency is for a temporary period only, the employee must obtain the agreement of his or her current Agency Head to return on completion of the temporary movement. If the current Agency Head does not agree to a return, then the temporary movement cannot occur. Good practice should suggest that this advice be in writing to clarify the situation for all parties.

78 If the movement is to a higher classification, the gaining Agency Head must take into account the factors listed above in the section on temporary assignment to duties of a higher classification.

Transitional Provisions for Transfers and Temporary Performance Directions between agencies.

79 Where a transfer instrument has been signed by the delegate before 5 December 1999 (whether gazetted or not) but has not come into effect on 5 December 1999, the transitional provisions will allow the transfer process to continue to finality and be subject to all relevant provisions of the old PS Act to finality (including the right to apply to decline, appeals and related MP(AGE) Act processes where appropriate). Once finalised, the transfer will be deemed to be assignment under s25 of the new PS Act and a movement under s26 of the new PS Act.

80 Where a transfer instrument has not been signed by the delegate before 5 December 1999, it is intended that any conditions imposed on the selection process under s33A of the old PS Act will be preserved for the purposes of satisfying any conditions imposed on assignment and movement requirements under the new PS Act.

81 Where a temporary performance direction has been signed by a delegate before 5 December 1999, but the period of temporary performance has not expired on 5 December 1999, the temporary performance direction will continue for the unexpired part of the direction and will be deemed to be made as an assignment under section 25 of the new PS Act and a movement under s26 of the new PS Act. The direction will also be deemed to be an agreement between the employee and the home agency that the employee will return to the home agency at the expiration of the direction, unless alternative arrangements are agreed under s26 of the new PS Act.

82 Where a temporary performance direction has been notified within 14 days prior to 5 December 1999, the transitional provisions will allow appeal arrangements to continue to finalisation under the old PS Regulations 116C, 116D and 116E.

Promotion of ongoing APS employees

Power to promote

83 Section 10(2) of the new PS Act requires the application of merit for promotion decisions, but the new PS Act does not define promotion.

84 It is proposed that Chapter 4 of the Commissioner's Directions will define promotion as an "ongoing" assignment of duties to an ongoing employee at a higher classification than the employee's current classification (whether or not the employee moves to another agency).

85 A promotion is made using the assignment provisions of section 25 of the new PS Act and, if there is a movement between agencies, section 26 of the new PS Act.

86 Actions which are not promotions are;

Notification of Promotion Opportunities in the Gazette

87 It is proposed that the Commissioner's Directions (Chapter 4) will require that, if an ongoing employee is to be promoted, the opportunity to apply for the relevant employment or similar employment must have been notified in the Gazette.

88 An Agency Head may promote an ongoing employee from an order of merit established from a Gazette notification provided that the opportunity was notified within 12 months of the decision to promote and the duties, classification and location are similar. This provides agencies with the flexibility to use orders of merit for similar employment opportunities for up to 12 months or to advertise individual employment opportunities as required.

Selection

89 An Agency Head must apply the conditions for merit selection as outlined in s10(2).

Notification of Promotions and Rights of Review

90 The Commissioner's Directions will require Agency Heads to notify all promotions of ongoing employees in the Gazette. Promotions will need to be gazetted to enable them to take effect.

91 As is the case under the old PS Act, promotion at the APS1-6 levels is subject to a right to a determinative review (see separate advice on Promotion Reviews).

Date of Effect of Promotions

92 For promotions which do not have a right to a determinative review or which do not attract any applications for review, the date of effect is 4 weeks after the promotion is notified in the Gazette or on an earlier or later date if all parties come to an agreement. If the promotion is within the Agency, the employee and the Agency Head or delegate would be required to reach agreement to an earlier or later date. If the promotion is to another agency, the current Agency Head (or delegate) would also need to be party to the agreement on a different date.

93 If there is an application for review, the date of effect is 4 weeks after the decision of the Promotion Review Committee (PRC) is notified to the Agency Head, or another date of effect if one can be agreed between all parties to the promotion. It is intended that the Regulations will provide for the cancellation of a promotion decision should the PRC decide in favour of the appellant.

94 Agencies will need to have measures in place to handle such negotiations.

Transitional Provisions

95 Where a promotion instrument has been signed by the delegate before 5 December 1999 (whether gazetted or not) but the promotion has not come into effect before 5 December 1999, the promotion process will continue to finality and be subject to all relevant provisions of the old PS Act (including appeals and related MP(AGE) Act processes). Once finalised, the promotion will then be deemed to be an assignment under s25 of the new PS Act (and a movement under s26 if between agencies). The exception to this is a promotion decisions arising from a JSC.

96 In relation to JSCs, where either a written request from an agency to establish a JSC has been received by MPRA or where a vacancy using a JSC has been advertised prior to 5 December 1999, the JSC processes (including under MP(AGE) Act) will continue to finality and be subject to all the relevant provisions of the old PS Act. Once finalised, the promotion will be deemed to be an assignment under s25 of the new PS Act and, if the promotion is to another agency, a movement under s26 of the new PS Act.

97 Where a promotion instrument has not been signed before 5 December 1999, it is intended that any conditions imposed on the selection process under s33A of the old PS Act will be preserved for the purposes of satisfying any conditions imposed on promotion under the new PS Act.

Further Advice

98 Urgent enquiries from Comnet members and their senior staff should be made by E-mail to psact@apsc.gov.au or the PSMPC's Helpline on (02) 6202 3859. APS staff who contact the PSMPC will be asked to direct their enquiries to the appropriate area of their own agency.

99 Advice from DEWRSB is accessible through the government employment web sites at www.dewrsb.gov.au or through the PSMPC's web site.

 

Jeff Lamond
Team Leader
Staffing, Structures and Performance Team

24 November 1999