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Last updated: 25 November 1999
Public Service Act 1999 Advice No. 8: Senior Executive Service (SES) employment arrangements
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
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.
Background
2 Under the new PS Act, Agency Heads will exercise the employment powers affecting Senior Executive Service (SES) employees taking account of the requirements of the new PS Act, the Public Service Regulations and the Public Service Commissioner's Directions on SES employment matters required by section 36 of the new PS Act. This advice outlines what these requirements are and how they should be handled.
3 The advice is divided into two parts. The first part deals with procedural requirements relating to selection, engagement, promotion and mobility, including involuntary assignment to a lower level. The second part addresses retirement and termination issues, including retirement with an incentive.
Transitional arrangements
4 It is proposed that transitional arrangements will be put in place that will have the effect of allowing employment actions in train before 5 December 1999 to continue to completion after that date. This includes provision for SES selection exercises, commenced before 5 December 1999, to be concluded after that date, with persons being promoted, engaged or moved under the provisions of the new PS Act.
5 Promotion, appointment and transfer actions executed by the Commissioner or Agency Heads before 5 December 1999 under the provisions of the Public Service Act 1922, but scheduled to come into effect after that date, will come into effect on the day prescribed, at which stage they shall be deemed to be promotion, engagement or movement/assignment of duties actions taken under the new PS Act.
6 In cases where the Commissioner has given agreement in principle to an SES appointment before 5 December 1999, but the appointment instrument is not executed before that date, the agreement in principle will be regarded as the Commissioner having certified the Commissioner's representative's certification (see paragraphs 12-13 and 18). This will allow the Agency Head to proceed with an engagement under section 22 of the new PS Act. 7 In relation to SES retirement under section 76R of the Public Service Act 1922, it is proposed that transitional arrangements will be put in place to allow a process that has reached the stage of having a section 82D Determination made by the Commissioner (or delegate), with the related offer to retire having been made to the SES employee concerned, to continue to finalisation under the provisions of the old Act, notwithstanding that the actual retirement date will be after 5 December 1999.
Part 1 - Selection, engagement, promotion and mobility
Selection
8 Where a requirement for work to be performed at SES level is identified, Agency Heads will determine the most appropriate means to fulfil that requirement.
Advertising
9 Ongoing employment opportunities at SES level must be notified in the Gazette and in appropriate external media (eg newspapers, magazines, the Internet), as required by Commissioner's Directions Chapter 6.3.1(b). A selection resulting from such an advertised opportunity will remain current for 12 months from the date of advertising.
10 In order to assist the Commissioner in monitoring SES selection exercises and in maintaining the Senior Executive Management System (SEMS) database, agencies are asked to forward the form at Attachment A, detailing proposed advertising of SES employment opportunities and movement details of existing SES employees. This is similar to arrangements currently in place.
Selection advisory committees
11 The membership of a selection advisory committee formed to consider applications for SES employment opportunities will be for the recruiting agency to determine, bearing in mind that one member will be the Commissioner's representative. A committee will normally have:
- three or more members in total;
- at least one female member if there are female applicants; and
- at least one member from outside the portfolio, who, subject to the Commissioner's agreement, will act as her representative.
12 All SES selection exercises must include, on the selection advisory committee formed to assess applicants, one member who will act as the Commissioner's representative (Commissioner's Directions Chapter 6.3.1(c)). The representative will normally be an APS employee at an appropriate level from outside the portfolio of the recruiting agency. The representative will be required, at the conclusion of the selection process, to certify that the selection exercise complied with the new PS Act and the Commissioner's Directions (Commissioner's Directions Chapter 6.3.1(c) and (d)).
13 As the Commissioner will need to write to both the chair of a selection advisory committee and to the Commissioner's representative at an early stage in the selection exercise, agencies will need to advise the Commission of the committee's membership at an early stage of the process. The Commission will at this time provide the Commissioner's representative with the certification form they will require at the conclusion of the process (a copy of this form is provided for information at Attachment B).
Selection criteria
14 The basis of assessment of applicants for SES duties will remain the core SES selection criteria, derived from the Senior Executive Leadership Capability Framework and in use since September 1999. These criteria are:
- Shapes Strategic Thinking
- Achieves Results
- Exemplifies Personal Drive and Integrity
- Cultivates Productive Working Relationships
- Communicates with Influence.
15 Where an agency believes it is necessary to include, in addition, agency-specific criteria, such as particular qualifications or mobility requirements, it will be able to do so with the approval of the Commissioner.
16 The criteria, with a range of capabilities relevant to them, are expanded upon at Attachment C.
Outcome of selection exercise
17 Following the completion of a selection exercise, the Agency Head will consider the conclusions reached by the selection advisory committee. There are a number of possible decisions the Agency Head might reach based on the committee's recommendation:
- to engage a non-APS employee on either an ongoing basis or for a specified term;
- to promote an existing APS employee to the vacancy;
- to move an existing SES employee to the vacancy; or
- to defer filling the position, due either to changed operational requirements or where the field of applicants has not produced a sufficiently strong contender.
Public Service Commissioner's role
18 Where the outcome of a selection exercise is that a person should be either engaged or promoted to the SES level concerned, the Commissioner must endorse the Commissioner's representative's certification of the process as having complied with the new PS Act and Directions before the Agency Head can execute an engagement or promotion to SES level (Commissioner's Directions, Chapter 6.3(e)).
19 To this end, the Agency Head will need to provide details of the selection process to the Commissioner including:
- advertising details;
- selection committee membership;
- information on the field of applicants, such as gender, whether currently APS or non-APS and whether there were any transfer applicants; and
- the Commissioner's representative's certification.
Engagement, Promotion and Mobility Engagement
20 Where the preferred applicant in an SES selection exercise is not an ongoing APS employee, the relevant Agency Head may engage the person under section 22 of the new PS Act. Agencies should note that 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 12 months following the end of the person's employment. Separate advice is being issued on this matter.
21 The person may be engaged as an ongoing SES employee, or for a specified term of up to five years. Where an engagement is made for a specified term, and the initial term is less than five years, the Agency Head may extend the specified term, but only to the extent that the total term of engagement is no more than five years in total. Public Service Regulation 4 details the availability of engagement for a specified term of SES employees and provides for the possibility of extension of such an engagement, provided that the total term of engagement does not exceed five years.
22 Where a person is to be engaged for a specified term, it is recommended that agencies include in the matters to be dealt with in the employee's Australian Workplace Agreement suitable provision covering compensation in the event of termination of the engagement before the agreed end date. The formula that has been applied by the Commissioner in relation to fixed-term appointments under the Public Service Act 1922 has been that, in the event of early termination, the employee will receive one-third of one month's salary for each full month of service foregone, with the minimum amount payable being four month's salary and the maximum amount being twelve month's salary.
Promotion
23 Where a successful applicant is an existing ongoing employee, at a lower classification level, within the agency concerned, the Agency Head may, under section 25 of the new PS Act, assign to that person duties at the SES level concerned. This constitutes a promotion.
24 In the case of a successful applicant who is an ongoing employee in a different APS agency, the Agency Head may, under section 26 of the new PS Act enter into agreement with the employee to move to the recruiting agency. The Agency Head may then assign duties to the employee under section 25 to effect the promotion. (See Advice Number 6 Staffing Actions - Ongoing Employees (Non-SES) for further advice on the definition of a promotion.)
Mobility
25 An Agency Head may decide that it is most appropriate to fulfil an SES staffing need through the movement of an existing SES employee at the same classification level to those duties. This decision may be reached as the result of a selection exercise where the committee has identified an employee at the appropriate level as the most suitable candidate.
26 In effectively deploying SES employees, an Agency Head may decide on such mobility requirements at any time. In reaching such a decision, an Agency Head will be required to consult with the employee concerned and seek their views.
27 In the case of movements between agencies, recognising the broad management functions and the central role played by SES employees in achieving organisational objectives, the timing of the movement should be agreed between the SES employee, the "gaining" Agency Head and the "losing" Agency Head.
28 Again, to assist the Commissioner in monitoring SES deployment, agencies should notify the Commission of all SES movements, once finalised.
Redeployment or involuntary assignment to a lower level
29 Mobility can also include movement of SES employees to duties at a lower level, either with or without the agreement of the employee. Consideration of such a move must be based on one or more of the reasons set out in section 23(4) of the new PS Act and in the Commissioner's Directions Chapter 6.5.2. These grounds include:
- the employee is excess to requirements;
- the employee lacks, or has lost, an essential qualification;
- non-performance, or unsatisfactory performance, of the employee's duties;
- inability to perform duties due to physical or mental incapacity; or
- changes to the operational requirements of the agency.
30 Mobility based on these grounds may be made with or without the consent of the employee. Mobility based on other reasons will require the consent of the employee.
31 Before actions are taken to effect a decision to reduce an SES employee, the employee must be advised on possible options for reassignment, both at level and to a lower level. The reduction action is effected by the Agency Head, determining under section 25 of the new PS Act the new duties the employee is to perform.
Part 2 - Retirement and termination
Age Retirement
32 SES employees have the same options regarding age retirement as non-SES employees. That is, they may retire at any time after attaining age 55. There is no longer any specified upper age limit by which an employee must retire.
Retirement with an incentive
33 Section 37 of the new PS Act gives Agency Heads the power to offer an ongoing SES employee the opportunity to retire with an incentive. This is similar to the arrangements applied under section 76R of the Public Service Act 1922, but with Agency Heads, rather than the Public Service Commissioner, executing the employment decision.
34 The Commissioner's Directions on retirement with an incentive sets the minimum requirements that must be met (Commissioner's Directions Chapter 6.7). These include:
- the employee has been given information about available options for reassignment, including assignment to duties at a lower classification level;
- the employee has been given access to financial advice and career counselling; and
- the Commissioner has agreed to the amount to be paid as an incentive to retire.
35 In regard to the specified amount to be paid as the incentive to retire, it is anticipated that, in normal circumstances, similar levels of benefit will be paid as applied under section 76R of the Public Service Act 1922. This is a benefit calculated at the rate of two weeks of salary for each year of service, up to a maximum of 48 weeks of salary, plus an amount of four or five weeks "in lieu of notice". The normal maximum specified amount will therefore be no more than 53 weeks of salary. This is in accordance with the Policy Parameters for Agreement Making in the APS. A pro forma calculation sheet is at Attachment D for agencies' use.
36 Retirement with an incentive will be dealt with on a case by case basis by Agency Heads. A possible outline of the process is set out below:
- an SES employee becomes displaced. "Displacement" may occur in a number of ways - for instance, it may occur where an agency restructures, reducing its overall SES staffing levels or where, due to the changing environment in which an agency operates and the range of capacities required, the SES employee is no longer able to provide the skills mix required;
- the agency advises the employee on options for reassignment, both at level or to a lower classification level;
- where the agency is unable to identify suitable duties which might be assigned to the employee, the Agency Head may raise with the employee the possibility of them retiring from the APS with a specified amount as an incentive to do so;
- the employee is provided with the opportunity to obtain financial advice as well as career counselling;
- in discussing the proposed specified amount, it should be noted that it is subject to the agreement of the Commissioner;
- the employee indicates in principle agreement to considering such an offer;
- the Agency Head writes to the Commissioner, outlining the circumstances of the case and seeking agreement to the proposed specified amount to be paid as an incentive to retire;
- where the Commissioner provides agreement to the amount to be paid, the Agency Head should then write formally to the SES employee, giving them notice pursuant to section 37 of the new PS Act that, if they retire on or before a later date specified in the notice, they will receive a specified amount as an incentive to retire;
- the SES employee, if they consider the formal offer to retire acceptable, should write to the Agency Head accepting the arrangements proposed;
- the agency should then process the payment of the specified amount in order that it be paid on the separation date agreed upon, or as soon thereafter as possible; and
- the retirement should be notified in the Gazette at a suitable opportunity.
37 In cases where an offer to retire is not agreed to by the SES employee concerned, the agency will need to consider whether to pursue other options, such as reconsideration of possible reassignment of duties, reduction in classification level or termination.
38 The following sample letters are attached by way of guidance (Attachment E):
- Letter from Agency Head to Commissioner (E1);
- Letter of offer to SES employee under section 37 (E2);
- Letter of acceptance of offer under section 37 (E3); and
- Letter of advice to Comsuper (E4).
Termination
39 An Agency Head may, under section 29 of the new PS Act, terminate the employment of an employee, including an SES employee.
40 Any decision to terminate an SES employee must be justified on one or more of the grounds mentioned in subsection 29(3) of the new PS Act, which include:
- the employee is excess to the requirements of the Agency;
- the employee lacks, or has lost, an essential qualification;
- non-performance, or unsatisfactory performance, of duties;
- inability to perform duties because of physical or mental incapacity;
- failure to meet a condition imposed under section 22(6), such as satisfying probation and/or citizenship requirements;
- breach of the Code of Conduct; or
- any other ground prescribed by the regulations.
41 Commissioner's Directions Chapter 6.7 on termination of SES employees requires that the SES employee be provided with full information about other employment opportunities in the Agency that the Agency Head considers could be made available to the employee.
42 Section 29 of the new PS Act requires a notice of termination to be in writing and to specify the ground or grounds relied on for the termination. The termination must also be notified in the Gazette.
43 In relation to the termination of an SES employee, section 38 of the new PS Act prevents an Agency Head issuing a notice of termination unless the Commissioner has issued a certificate stating that all relevant requirements of the Commissioner's Directions have been satisfied in respect of the proposed termination and that the Commissioner is of the opinion that the termination is in the public interest. To that end, an Agency Head contemplating the termination of an SES employee should write to the Commissioner outlining the circumstances of the case and requesting that the Commissioner consider issuing the necessary certificate under section 38.
Further advice
44 Urgent enquiries from Comnet members and their senior staff should be made by E-mail to psact@apsc.gov.au or to Peter Labrum, Staffing, Structures and Policy Team on (02) 6202 3815.
Jeff Lamond
Team Leader
Staffing, Structures and Performance Team
25 November 1999
Attachment A
SES movements and advertising - notification PDF
Attachment B: Public Service Commissioner's representative's certification of SES selection exercise
In relation to the selection exercise for Senior Executive Band __, in the Department of _______________, I participated in the following processes associated with this selection. Pursuant to Commissioner's Directions Chapter 6.3.1(d), I hereby certify that the selection process complied with the Public Service Act 1999 and the Commissioner's Directions. (Please tick as appropriate)
Selection Advisory Committee
- The committee included a member from outside the portfolio of the recruiting agency
- The committee included a female member, as there were female applicants
Shortlisting of applicants
- I was fully involved in considering applications and deciding the shortlisting
- Applicants shortlisted on the basis of merit and with regard to equity in employment considerations
- Adequate field obtained
- Reasons for non-interview provided against the selection criteria
Interviews
- Questions asked against the selection criteria
- Applicants given fair opportunity to state claims
- Equity in employment considerations met
Referees
- References obtained for applicants in contention
- Referee reports, including oral references, properly documented
Individual assessments
- Individual assessments address the selection criteria and take account of interview performance, referee comments and application etc.
- Assessment made of individuals' overall suitability
Comparative assessment
- Top ranked applicants compared systematically against the selection criteria
Quality of field
- The quality of the field of applicants is best described as very good/good/fair/poor
Comments on process
............................
Public Service Commissioner's Representative
Date
Attachment C: SES core selection criteria
The capabilities outlined under each of the main headings are not in themselves additional criteria and it is not intended that applications and assessments should address each and every capability. Applicants should frame their applications, and selection advisory committees should assess those applications, against the selection criteria, taking account of particular capabilities where they have been identified as relevant to the duties of the position being filled.
Criterion: Shapes Strategic Thinking
Relevant capabilities:
- Inspire a Sense of Purpose and Direction
- Strategic Focus
- Ability to Recognise Opportunities,
- Harness Information
- Shows Judgement, Intelligence and Common Sense
Criterion: Achieves Results
Relevant capabilities:
- Organisational Capability
- Professional Expertise
- Implements Change
- Ability to Clarify Ambiguities
- Closure and Delivery
Criterion: Exemplifies Personal Drive and Integrity
Relevant capabilities:
- Professionalism and Probity
- Risk-taking and Personal Courage
- Action Orientation
- Resilience
- Self Awareness
- Commitment to Personal Development
Criterion: Cultivates Productive Working Relationships
Relevant capabilities:
- Nurtures Internal and External Relationships
- Facilitates Co-operation and Partnerships
- Values Differences and Diversity
- Guide, Mentor and Develop People
Criterion: Communicates with Influence
Relevant capabilities:
- Communicates Clearly
- Listens, Understands and Adapts to Different Audiences
- Negotiates Persuasively
Attachment D
Section 37: Calculation of possible specified amount to be paid PDF
Attachment E1: Letter to Public Service Commissioner from agency head seeking agreement to specified amount to be paid as an incentive under Section 37
STAFF - IN - CONFIDENCE
Public Service Commissioner
Australian Public Service Commission
16 Furzer Street
PHILLIP ACT 2606
Dear Commissioner
I am writing to seek your agreement to the amount I propose to pay to one of my SES employees as an incentive to retire under section 37 of the Public Service Act 1999.
[SES NAME] is a Senior Executive Band [1,2 or 3] employee in my agency currently performing the duties of [eg Corporate Branch/Division Head]. Following a restructure/review of the agency, the requirement for those duties to be performed no longer exists. I have carefully considered whether [SES NAME] can be usefully employed in other duties at his level, but have concluded that following the restructure [SES NAME] is essentially excess to my agency's requirements, and I will be unable to provide him with ongoing duties at an appropriate level. I believe that it would similarly prove difficult for [SES NAME] to find an ongoing placement elsewhere in the APS.
I have discussed the situation with [SES NAME], advising him/her on the prospects for placement elsewhere in the Agency. He/she has accepted this advice and advised that he/she does not wish to consider movement to a lower classification level, but would be willing to consider an offer to retire with an incentive, pursuant to section 37. I consider that such a course would be in the best interests of both the APS and [SES NAME].
I am proposing to set the specified amount in [SES NAME] case at $XX,XXX, reflecting 2 weeks of salary for each year of service plus an amount of [4 OR 5] weeks of salary in lieu of notice. I believe this level of incentive is appropriate in this case, and, in accordance with Commissioner's Directions Chapter 6.7(d), I now seek your agreement to that amount. Should you agree, I will then issue [SES NAME] a notice under section 37, formally offering him/her the opportunity to retire.
Should you require further information, the contact officer is .......... who can be contacted on ........ .
Yours sincerely
[AGENCY HEAD]
DD MM 2000
[This is an example only - agencies should incorporate the actual reasons applying to each case]
Attachment E2: Letter of offer to SES employee to consider retirement with a specified amount to be paid as an incentive under Section 37 - To be issued only where the Commissioner has given agreement to the amount to be paid as an incentive to retire
STAFF - IN - CONFIDENCE
[SES NAME]
[Address]
Dear [SES NAME]
I refer to our recent discussions concerning the options available to you regarding redeployment within this Agency and the APS more generally and the possibility of your retirement under section 37 of the Public Service Act 1999.
Under the provisions of subsection 37(1) of the Public Service Act 1999, I hereby give you notice that if you retire from the Service between today's date and no later than DD MM 2000, you will be entitled to be paid a specified amount of $XX,XXX.
If you retire during the specified period, you will be deemed for all purposes to have been compulsorily retired from the Service. The Commonwealth Superannuation Administration will be able to advise you on matters relating to your superannuation entitlements. If you agree, I shall advise the Commissioner of your intention to assist in the payment of your entitlements under the Superannuation Act.
In accepting this offer you should be aware that the Public Service Commissioner's Directions Chapter 4.4 on Persons who receive a severance payment has the effect of preventing a person who has accepted a specified amount under section 37 being applying for engagement as an APS employee for 12 months after the retirement takes effect.
Would you please advise in writing that these arrangements are acceptable to you.
Yours sincerely
[AGENCY HEAD]
DD MM 2000
Attachment E3: Letter of acceptance of offer under Section 37
STAFF - IN - CONFIDENCE
[AGENCY HEAD]
Department of XXX
[ADDRESS]
Dear [AGENCY HEAD]
I refer to your letter of DD MM 2000 concerning retirement under section 37 of the Public Service Act 1999 and advise that the arrangements outlined therein are acceptable to me.
I understand that in accepting this offer of early retirement I will become ineligible to apply for engagement in the APS for 12 months from the date of my retirement.
I will retire on DD MM 2000.
Yours sincerely
[SES NAME]
Dated:
Attachment E4: Letter of advice to COMSUPER of SES employee retiring under Section 37
STAFF - IN - CONFIDENCE
Commissioner for Superannuation
Commonwealth Superannuation Administration
PO Box 22
BELCONNEN ACT 2616
RETIREMENT UNDER SECTION 37 OF THE PUBLIC SERVICE ACT 1999
[SES NAME] is to retire from the Service under section 37 of the Public Service Act 1999. Under subsection 37(2), he/she shall be deemed for all purposes to have been compulsorily retired from the Service. His personal particulars are:
Full name: [SES NAME]
AGS No: 999-99999
SES Level: Band 1
Retirement date: DD MM 2000
Agency: Department of XXXX
I attach a copy of my letter to [SES NAME] which contains the notice under subsection 37(1) of the Public Service Act 1999 which sets out the conditions attaching to his/her retirement, and to assist in the payment of his/her entitlements under the Superannuation Act.
Yours sincerely
[AGENCY HEAD]
DD MM 2000
