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Last updated: August 2008

Employment framework

Agency head employment related obligations under the Public Service Act, the Public Service Regulations, the Commissioner's Directions, the Prime Minister's Public Service Directions and the Public Service Classification Rules

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The Public Service Act 1999 , provides for the establishment and management of the Australian Public Service. The main objectives of the Act are:

• to establish an apolitical public service that is efficient and effective in serving the Government, the Parliament and the Australian public
• to provide a legal framework for the effective and fair employment, management and leadership of APS employees
• to define the powers, functions and responsibilities of agency heads, the Public Service Commissioner and the Merit Protection Commissioner
• to establish rights and obligations of APS employees.

The Public Service Act is underpinned by the Public Service Regulations 1999 (Public Service Regulations), Public Service Commissioner's Directions 1999 and the Prime Minister's Public Service Directions 1999 (PM’s Directions) and the Public Service Classification Rules 2000.

While the legal employer of APS employees is the Commonwealth, staffing powers under the Public Service Act are vested in agency heads. Section 20 of the Public Service Act gives agency heads all the rights, duties and powers of an employer in respect of APS employees in the agency, subject to the statutory framework.

Within this framework agency heads have a range of obligations relating to APS employment matters.

This section covers:

• APS Values and Code of Conduct
• Workplace diversity
• Merit in employment and reasonable opportunity to apply for APS employment
• Public Service Classification Rules
• Engagement of APS employees
• Extension of engagement of APS employee engaged for a specified term
• Promotion of ongoing APS employees
• Assignment of duties
• Voluntary moves between agencies
• Engagement of trainees
• Re-engagement
• Remuneration and other terms and conditions of employment
• Senior Executive Service employment
• Heads of Mission
• Locally engaged employees
• Termination of employment
• Review of actions
• Prime Minister's Public Service Directions—mandatory leave without pay
• Delegations

APS Values and Code of Conduct

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Agency heads must observe the APS Code of Conduct in the same way as APS employees (section 14 of the Public Service Act 1999 ). They must uphold and promote the APS Values (section 12 of the Public Service Act), including those with particular relevance to the employment relationship:

• employment decisions based on merit (See: Merit in employment and reasonable opportunity to apply for APS employment
• workplaces free from discrimination that recognise and utilise the diversity of the Australian community (See: Workplace diversity)
• consultative and cooperative workplace relations that value communication and input from employees on matters affecting their workplace
• fair, flexible, safe and rewarding workplaces
• achieving results and managing performance
• equity in employment
• a fair system of review of decisions taken in respect of APS employees (See: Review of actions)
• leadership of the highest quality
• a career-based service to enhance the effectiveness and cohesion of Australia’s democratic system of Government.

Workplace diversity

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An agency head must establish a workplace diversity program to assist in giving effect to the APS Values (section 18 of the Public Service Act 1999).

Chapter 3 of the Public Service Commissioner's Directions 1999 (the Directions) provides that a workplace diversity programme must include measures directed at ensuring that:

• the corporate, business and human resource plans of the agency demonstrate that it values the diverse background of its employees and values and uses the diverse skills and experience of its employees
• workplace structures, systems and procedures assist employees to balance work family and other caring responsibilities effectively
• engagement decisions take into account the diversity of the Australian community as well as the goals of the agency and skill required to perform the relevant duties
• equity in employment is promoted and upheld.

Chapter 3 of the Directions requires agency heads to:

• put in place measures to help prevent all forms of discrimination, consistent with Commonwealth law
• put in place measures to recognise the positive advantages of, and help make best use of, the diversity available in the workplace and the Australian community
• assist employees to balance their work, family and other caring responsibilities effectively by encouraging the development of mutually beneficial work practices in the agency
• give the Public Service Commissioner a copy of the workplace diversity program or any revision of it
• develop performance indicators for, and evaluate and report annually on, the effectiveness and outcomes of the workplace diversity program
• give information required by the Public Service Commissioner so the Commissioner can evaluate and assess the effectiveness of agencies’ workplace diversity programs for the State of the Service Report
• review the Agency’s workplace diversity program at least once every four years.

In addition, clause 2.13(1)(b) of the Directions requires agency heads to put measures in place to eliminate any employment-related disadvantage in the agency on the basis of:

• being an Aboriginal or Torres Strait Islander
• gender
• race or ethnicity
  or
• physical or mental disability.

In addition, an agency head must put in place measures directed at ensuring that all Commonwealth anti-discrimination laws are complied with (clause 2.4(1)(a) of the Public Service Commissioner's Directions).

Merit in employment and reasonable opportunity to apply for APS employment

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The Public Service Act 1999 includes the following Values which are particularly relevant to agency head obligations in respect of staffing:

• The APS is a public service in which employment decisions are based on merit.
• The APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment.

The Public Service Act also specifically provides:

• at section 17 of the Public Service Act that agency heads (and other persons) exercising powers under the Public Service Act or regulations in relation to APS employees, must do so without patronage or favouritism
• at section 19 that an agency head is not subject to direction by any Minister in exercising their employer powers under the Public Service Act in relation to particular individuals.

Merit-based decision making

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Under the Public Service Commissioner's Directions 1999 (the Directions), agency heads must meet minimum requirements in relation to upholding and promoting the values relating to merit and a reasonable opportunity to apply for vacancies.

Section 10(2) of the Public Service Act 1999 states that an engagement or promotion decision is based on merit if:

• it involves an assessment of the relative suitability of candidates for the duties using a competitive selection process
• the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required for the duties
• the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties
• the assessment is the primary consideration in making the decision.

Clause 2.3 of the Directions requires an agency head to put in place measures directed at ensuring that, in relation to decisions on engagement or promotion:

• the aim and purpose of the selection process is determined in advance
• the selection process is transparent and applied fairly in relation to each eligible applicant
• the matters mentioned in section 10(2) of the Public Service Act concerning merit-based decision making are taken into account.

Agency heads are also required to put in place measures directed at ensuring that other employment decisions are made on the basis of an assessment of a person’s work-related qualities and the work-related qualities required for efficient and effective organisational performance (see clause 2.3 of the Directions).

There are additional requirements that must be taken into consideration for decisions involving temporary assignment to duties at a higher classification under clause 4.7 of the Commissioner’s Directions.

Reasonable opportunity to apply

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Clause 2.14 and Chapter 4 of the Public Service Commissioner's Directions 1999 (the Directions) set out minimum requirements that an agency head must meet in relation to upholding and promoting the APS Values relating to providing a reasonable opportunity to apply for employment opportunities.

Clause 2.14 requires an agency head to put in place measures directed at ensuring that, taking into account operational requirements, employment opportunities are brought to the notice of the community in such a way as to give eligible members of the community a reasonable opportunity to apply.

Under clause 4.2 of the Directions, an agency head must put in place measures to ensure that if a person is to be:

• engaged as an ongoing APS employee
  or
• engaged as an non-ongoing APS employee for a specified term of more than 12 months, or for the duration of a specified task that is reasonably estimated to take more than 12 months

the opportunity to apply for the relevant employment, or similar employment in the agency, must be notified in the Gazette and must be open to all eligible members of the community during the period of 12 months before the engagement decision.

All ongoing opportunities to be filled by promotion of an ongoing APS employee must be advertised in the Gazette (Clause 4.6A of the Directions).

Generally, an agency head may, on the ground of cost or operational efficiency, open an employment opportunity only to APS employees. However, opportunities for training classifications and APS 1 or equivalent classifications cannot be closed to non-APS employees on the grounds of cost or operational efficiency (see clause 4.2 of the Directions).

An agency head may choose to use an existing selection exercise to fill an employment opportunity by engagement or promotion. However, the new employment opportunity must be similar (that is similar duties and location at the same classification) and the decision to engage or promote the person must be made within 12 months from the date of the Gazette notification of the existing selection exercise.

Special provisions consistent with Commonwealth anti-discrimination law

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Under Clause 4.2, 4.3 and 4.6A of the Public Service Commissioner's Directions 1999, an agency head may put into place special measures, consistent with Commonwealth anti-discrimination law, to identify opportunities at any classification as open to:

• Indigenous persons
  or
• persons with an intellectual disability.

These provisions override the requirements to provide a reasonable opportunity to all eligible members of the community to apply for the APS employment.

Public Service Classification Rules

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The Public Service Classification Rules 2000 (Classification Rules) provide the framework for classification management arrangements in the APS. The purpose of the Classification Rules is to enable employees and duties to be classified under a common APS-wide classification system.

An agency head must comply with the Classification Rules (section 23(3) of the Public Service Act 1999 . The Classification Rules require an agency head to allocate an approved classification to each APS employee in the agency and allocate an approved classification to each set of duties in the agency. Approved classifications are listed in Schedule 1 of the Classification Rules.

If a training classification is allocated to a group of duties, the agency head must ensure that the duties include a requirement to undergo training. Schedule 2 of the Classification Rules provides the mandatory classification that is to be allocated to a trainee on successful completion of training.

An agency head cannot reduce the classification of an APS employee without the employee’s consent, except in certain prescribed circumstances. These circumstances include where there has been a sanction for a breach of the Code of Conduct and where the employee is excess to the requirements of the agency at the higher classification (see section 23(4) of the Public Service Act).

Engagement of APS employees

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Under section 22 of the Public Service Act 1999 , an agency head has the power, on behalf of the Commonwealth, to engage APS employees for the purposes of the agency as either:

• an ongoing APS employee
• a non-ongoing APS employee either for
  • a specified term
    or
  • the duration of a specified task
• a non-ongoing APS employee for duties that are irregular or intermittent.

The Public Service Act provides that the usual basis for engagement is as an ongoing APS employee (section 22(3)). Regulations 3.5 and 3.6 of the Public Service Regulations 1999 (Public Service Regulations) limits the circumstances in which a person may be engaged as a non-ongoing employee for a specified term or for the duration of a specified task and the extension of such engagements. An agency head should ensure that any delegates observe these limits, as non-compliance can raise complex legal and workplace relations issues.

See:

• Extension of engagement of APS employee engaged for a specified term.

An agency head may engage a person as an ongoing APS employee in an ongoing training classification. The Public Service Regulations also provide for an agency head to engage a person on a non-ongoing basis for a specified term or for the duration of a specified task to undertake training. Such non-ongoing engagements do not result in ongoing employment on the successful completion of training.

See:

• Engagement of trainees

All decisions on selecting persons for engagement are subject to merit and reasonable opportunity to apply for employment.

See:

• Merit in employment and reasonable opportunity to apply for APS employment.

Section 22(6) of the Public Service Act enables an agency head to impose conditions upon engagements dealing with probation, citizenship, formal qualifications, security and character clearances, health clearances or other matters.

Under section 22(8) of the Public Service Act an agency head must not engage, as an APS employee, a person who is not an Australian citizen, unless the agency head considers it appropriate to do so. Where a person is engaged who is not an Australian citizen, the agency head should ensure that he or she has appropriate work rights.

Additional requirements apply in relation to the engagement of SES employees.

See:

• Senior Executive Service employment.

Extension of engagement of APS employee engaged for a specified term

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Under the Public Service Regulations 1999 (Public Service Regulations), the maximum initial engagement for a specified term is generally 18 months. There is no maximum time specified for an engagement for a specified task - the maximum period is the duration of the specified task.

Under certain circumstances an engagement for a specified term may be extended up to a total term of 3 years (regulation 3.6 of the Public Service Regulations). Under clause 4.5 of the Public Service Commissioner's Directions 1999, an agency head must put in place measures to ensure that if a specified term employee’s engagement is to be extended so that the total period of engagement is more than 12 months:

• the opportunity to apply for the initial employment had been notified in the Gazette as open to all eligible members of the community; or
• the opportunity to apply for the extended period of the engagement is notified in the Gazette as open to all eligible members of the community, whether or not they were APS employees.

Promotion of ongoing APS employees

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In clause 4.6 of the Public Service Commissioner's Directions 1999 (the Directions) a promotion is defined as the ongoing assignment of duties to an ongoing APS employee at a higher classification than the employee’s current classification. A promotion may also involve an employee entering into a written agreement with the agency head to move to that agency.

Clause 2.3 of the Directions requires that an agency head must put in place measures directed at ensuring that for a promotion decision:

• the aim and purpose of the selection process is determined in advance
• the selection process is transparent and applied fairly in relation to each eligible applicant
• the matters mentioned in section 10(2) of the Public Service Act concerning merit-based decision making are taken into account.

Under clause 4.6A of the Directions an agency head must put in place measures to ensure that, subject to considerations of costs and operational efficiency, if an ongoing APS employee is to be promoted in the agency, the opportunity to apply for the relevant employment, or similar employment in the agency, was open to all eligible members of the community. The employment opportunity or a similar opportunity must have been notified in the Gazette during the period of 12 months before the decision to promote the ongoing employee.

Assignment of duties

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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 (section 25 of the Public Service Act 1999). While this power appears to give an agency head an unfettered right to assign new duties to an ongoing employee or change the place where duties are performed, actions take under the Act must be consistent with the APS Values, chapter 2 of the Commissioner’s Directions and any provisions in a CA or AWA.

Clause 2.3 (1)(b) of the Public Service Commissioner's Directions 1999 (the Directions) requires that an agency head put in place measures in the agency directed at ensuring that a decision regarding an assignment of duties, whether on a temporary or ongoing basis, is made on the basis of an assessment of a person’s work-related qualities and the work-related qualities required for efficient and effective organisational performance.

In addition, clause 4.7 of the Directions requires that these measures must also ensure that before any temporary assignment of duties at a higher classification the following factors are taken into account:

• the efficiency of the employee
• the relative importance to the agency of the duties to be performed at the higher classification and the other duties to be performed in the agency
• the length of the period in which the employee is to perform duties at the higher classification
• the expected cost of the employee performing duties at the higher classification
• the need for APS employees to be given the opportunity to gain experience in performing the duties at a higher classification.

If a proposed change of duties or relocation has not been sought by the employee, to ensure compliance with the APS Values it is advisable that the employee be consulted before a final decision is made.

The extent of consultation and the degree to which an agency takes into account the needs of the employee must be balanced against the operational efficiency of the agency. In the end, the agency head will need to decide the appropriate action given the merits of the individual case.

If the assignment of duties involves a reduction in classification or a relocation or if the person could not reasonably be expected to perform the new duties, the employee may have a right of review.

Voluntary moves between agencies

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An agency head may enter into an agreement in writing with an ongoing APS employee for the employee to move on an ongoing basis to the agency head’s agency from another agency (section 26(1) of the Public Service Act 1999). Such a move may result from a competitive selection exercise following a Gazette notification of the employment opportunity. If the move is not the result of a competitive merit selection exercise, clause 2.3 of the Public Service Commissioner's Directions 1999 requires an assessment of a person’s work-related qualities and the work-related qualities required for efficient and effective organisational performance.

A pre-move agency head is not able to prevent an ongoing move occurring. If the move is not associated with a promotion, the move comes into effect 4 weeks after the pre-move agency head is told by the APS employee of the agreement to move unless an earlier or later release date is agreed between the employee and the pre-move and post-move agency heads (regulation 3.9 of the Public Service Regulations 1999).

A non-ongoing APS employee may seek employment in another APS agency but their employment in the new agency would be effected by an engagement.

If an agency head seeks to enter into an agreement for an employee to move to the agency on a temporary basis, regulation 3.9A requires that the pre-move agency head must approve the move in writing for it to proceed as a temporary move. Should the pre-move agency head not approve the temporary move, and the post-move agency head still wishes to proceed with the agreement to move, the move would be considered to be made on an ongoing basis, irrespective of any term set out in the agreement.

Engagement of trainees

An agency head may engage a person as an ongoing APS employee in an ongoing training classification. On successful completion of training determined by the agency head, the trainee must be allocated an appropriate operational classification. The approved training classifications and associated operational classifications are listed in Schedule 2 of the Public Service Classification Rules 2000.

The Public Service Regulations also provide for an agency head to engage a person on a non-ongoing basis for a specified term or for the duration of a specified task to undertake a training scheme for the purpose of gaining skills and experience (regulation 3.5(4)) or a qualification/accreditation (regulation 3.5(5)) or to provide required occupational experience (regulation 3.5(6)). Such non-ongoing engagements do not result in ongoing employment on the successful completion of training.

An agency head may choose to use an approved APS-wide scheme (for example New Apprenticeships) as set out in the Prime Minister's Public Service Directions 1999 or may approve an agency-specific scheme (regulation 3.3 of the Public Service Regulations) that meets the agency’s particular requirements. Notice of the approval of any specific training scheme must be notified in the Gazette.

Re-engagement

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Special provisions apply to the re-engagement of a person who has previously received a redundancy benefit from Commonwealth employment or who has resigned from the APS to contest an election.

Redundancy benefit recipients

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Clauses 4.4 of the Public Service Commissioner's Directions 1999 (the Directions) sets out the arrangements applying to the subsequent employment in the APS of a person who has received a redundancy benefit from an APS agency or a non-APS Commonwealth employer in the previous 12 months (a redundancy benefit recipient).

The Directions set out the prerequisites that an agency head must comply with before re-engaging a redundancy benefit recipient as either an ongoing or non-ongoing employee at a SES or non-SES classification. The process makes clear that re-engagement within 12 months is to be the exception rather than the rule.

The Directions also include provisions which apply to the employment of redundancy benefit recipients as locally engaged employees under section 74 of the Public Service Act 1999. See clause 4.4A of the Directions.

There are no formal arrangements in place which limit the engagement in the APS of a person who has received some form of separation payment from the Commonwealth as an independent contractor (including as a consultant), although Australian Public Service Commission advice (Australian Public Service Commission Circular 2003/5) stresses that agencies should ensure that their policies and procedures on the engagement of independent contractors are consistent with the spirit of the Government’s policy as expressed in the Directions and with relevant Government guidelines (for example, Commonwealth Procurement Guidelines issued by the Department of Finance and Deregulation and individual agency Chief Executive Instructions).

Election candidates

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Section 32 of the Public Service Act 1999 and regulations 3.13, 3.14 and 3.15 of the Public Service Regulations 1999 (Public Service Regulations) set out the arrangements that apply when an APS employee who resigns from the APS to contest an election (as defined in the Public Service Regulations), and who fails to be elected, applies to be again engaged in the APS (a failed election candidate).

An agency head must engage an election candidate who failed to gain election provided certain conditions (as set out in the Public Service Act and Public Service Regulations) are satisfied. These conditions establish certain time limits in relation to the resignation and subsequent application for re-engagement and specify a person’s entitlements on return to the APS.

The engagement of an election candidate who failed to gain election in these circumstances is not subject to normal APS merit selection requirements.

Remuneration and other terms and conditions of employment

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In the APS, Agency Heads are responsible for workplace relations matters within their particular agency. The policy of the Australian Government is for the remuneration and other terms and conditions of employment of non-SES APS employees to be established at the agency level through collective bargaining, and for terms and conditions of SES employees to be established through s.24(1) determinations made under the Public Service Act 1999 or common law agreements, with collective agreements available where a majority of SES employees in an agency so choose.  In this context, Agency Heads must ensure that all instruments setting out terms and conditions are consistent with Australian Government policies. These policies are set out in the Australian Government Employment Bargaining Framework, the associated Supporting Guidance, and the various Workplace Relations Advices which are issued from time to time by the Department of Education, Employment and Workplace Relations. 

Agencies should note that as of 13 February 2008, it is against Australian Government policy for agencies to offer new Australian Workplace Agreements to employees under any circumstances.

Agencies should contact the Department of Education, Employment and Workplace Relations directly for further advice on workplace relations matters specific to their particular circumstances.

Senior Executive Service employment

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In general, the same legal framework that applies to non-SES employment also applies to SES employment. However, the Public Service Act 1999 includes a number of provisions applying specifically to SES employees.

Sections 34 to 35 define the constitution and role of the SES.

Section 36 of the Public Service Act requires the Public Service Commissioner to issue directions on SES employment matters. These directions can be found in Chapter 6 of the Public Service Commissioner's Directions 1999 (the Directions), which establish minimum requirements that agency heads must satisfy in reaching various decisions affecting the employment of SES employees (see below).

Section 37 makes provision for an agency head to offer a SES employee an incentive to retire, with a specified monetary benefit. Under clause 6.7 of the Directions the amount must be agreed to by the Public Service Commissioner.

Section 38 requires an agency head to obtain certification of the Public Service Commissioner in relation to any decision to terminate an SES employee.

Under the Directions, an agency head must exercise his or her employer powers in relation to the SES in a way that seeks to maintain and develop the leadership role and capabilities of the SES (clause 6.1 of the Directions).

An agency head must put in place measures:

• to ensure that SES employees are effectively deployed in the agency
• to monitor the skills required at the SES level in the agency (clause 6.2 of the Directions).

The minimum requirements that an agency head must ensure are met in relation to a range of decisions affecting SES employees are specified in clauses 6.3 to 6.8 of the Directions. The decisions include:

• promoting or engaging a person as an SES employee
• decisions in relation to the mobility of an SES employee
• redeploying an SES employee with the employee's agreement
• assigning an SES employee to duties at a lower classification (whether or not in the SES) without the employee's agreement
• assigning (except on a temporary basis) an SES employee whose classification is a specialist classification to duties at the corresponding non-specialist classification
• assigning (except on a temporary basis) an employee at an SES equivalent classification to duties at an SES classification within the same group set out in the Public Service Classification Rules 2000
• giving a notice to an SES employee under Section 37 of the Public Service Act (Incentive to retire)
• terminating the employment of an SES employee under section 29 of the Public Service Act (Termination of employment).

In relation to engagement of persons at SES level, as with all levels, the usual basis for engagement is on an ongoing basis.  Where an engagement is to be on a non-ongoing basis, it should be noted that a a specified term engagement at SES level can be for a maximum period of 5 years, including any extensions.  It is also possible to engage at SES level for a specified task, where the end date is unable to be determined.  Care should be taken that such an engagement does in fact relate to a specified task, and not to an ongoing employment requirement in the agency.

SES employees should be aware that there is an SES Adviser, a function undertaken by a Group Manager in the Australian Public Service Commission, who is able to provide general advice on issues they may be facing. The SES Adviser has no authority to review or overturn decisions and all issues dealt with by the SES Adviser are treated on a confidential basis. For current details of the SES Adviser see the Senior Executive Adviser web link on the Australian Public Service Commission homepage.

Heads of Mission

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The appointment of a Head of Mission (HoM) cannot take place unless the person is an APS employee.

An agency head must comply with any written direction of the agency Minister that (i) a prospective Head of Mission be appointed as an APS employee and (ii) particular duties be assigned to a Head of Mission (section 39 of the Public Service Act 1999 .

After agreement from the Prime Minister, the Minister for Foreign Affairs recommends to the Governor-General the appointment of a HoM:

• The HoM is paid a salary as an APS employee and is subject to the provisions of the Public Service Act.
• In practice, the terms and conditions of appointment of HoMs, which may differ from those applying to APS employees serving overseas in other capacities, will be set by the employing agency head at the direction of the Minister for Foreign Affairs.
• Determinations of the Remuneration Tribunal will not apply to such an appointment.

Locally engaged employees

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Under section 74 of the Public Service Act 1999 an agency head may also engage persons overseas (that is, outside Australia and its Territories) to perform duties overseas as employees. Such persons are known as ‘locally engaged employees’. They are not APS employees (section 7 of the Public Service Act). Any relevant matters such as standards of conduct should be dealt with in their contract of employment at the time of engagement, and/or in accordance with the law of the overseas country in which they are employed.

Subject to the Public Service Act, an agency head has all the rights, duties and powers of an employer in respect of locally engaged employees in the agency. An Agency is not subject to direction by any Minister concerning the exercise of these powers in relation to particular individuals. These provisions do not limit any other power of an agency head to engage persons to work overseas (section 74(4) of the Public Service Act). All locally engaged staff employed under the Public Service Act  are to be engaged by the agency responsible for management of the post (2007 Prime Ministerial Directive on Management of the Australian Government Presence Overseas) except AusAID and Austrade staff.  AusAID and Austrade are the legal employers of their staff and are responsible for all legal and management issues related to that employment.

Termination of employment

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Under the Public Service Act 1999, an agency head may at any time, by notice in writing, terminate the employment of an APS employee in the agency (section 29(1)).

Such decisions must comply with other relevant requirements including those set out in the Public Service Act, the Workplace Relations Act 1996, the administrative law framework and the common law of employment.

In particular, for an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination (section 29(2)).

Under section 29(3) of the Public Service Act, the following are the only grounds for termination for an ongoing APS employee:

• the employee is excess to the requirements of the agency
• the employee lacks, or has lost, an essential qualification for performing his or her duties
• non-performance, or unsatisfactory performance, of duties
• inability to perform duties because of physical or mental incapacity;
• failure to satisfactorily complete an entry-level training course
• failure to meet a condition imposed under section 22(6) in relation to probation, citizenship, formal qualification, security and character clearances and health clearances)
• breach of the Code of Conduct
• any other ground prescribed by the regulations.

As at the date of publication of this site no other ground for termination of ongoing APS employees has been prescribed by Regulation.

Minimum requirements in relation to non-ongoing employees are set out in regulation 3.11 of the Public Service Regulations 1999.

Review of actions

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The Public Service Act 1999 provides the statutory framework to review certain actions affecting an APS employee’s employment. An agency head has certain responsibilities in relation to this framework, including the upholding and promoting a fair system of review in their own agency (see section 10 (1)(o) of the Public Service Act and clause 2.16 of the Public Service Commissioner’s Directions 1999).

Section 33 of the Public Service Act and the Public Service Regulations 1999 (Public Service Regulations) provide that a non-SES APS employee is entitled to review of a range of employment-related actions, excluding termination decisions. A number of other actions are not reviewable and these are detailed in Schedule 1 to the Public Service Regulations.

In addition, an agency head or the Merit Protection Commissioner may decide that an action ceases to be reviewable if it satisfies grounds specified in the Public Service Regulations.

Other specific agency head responsibilities in the Public Service Regulations include those set out below:

• Under regulation 5.17, a Promotion Review Committee (PRC) may require the agency head to give the PRC stated information or documents relevant to the review. The agency head must give the information or documents in the way, and at or within the time, stated in the notice.
• Under regulation 5.20 the decision of a PRC is binding on an agency head.
• Under regulation 5.25, if the agency head refers an application for review of a reviewable action to the Merit Protection Commissioner, the agency head must tell the employee in writing.
• Under regulation 5.26 where the agency head does not refer the application for review to the Merit Protection Commissioner, the agency head must then review the action and attempt to resolve the employee’s concerns about the action.
• Under regulation 5.27 the agency head must advise the employee in writing of any decision reached on an application for review, reasons for the decision, and action taken as a result, and the review rights available.
• Under regulation 5.30 the agency head must give the affected employee a copy of any documents given to the Merit Protection Commissioner for the purposes of a secondary review and the review rights available.
• Under regulation 5.32, if an agency head receives a recommendation by the Merit Protection Commissioner in relation to a review, the agency head must as soon as possible consider the recommendation and make a decision on such. The agency head must tell the employee and the Merit Protection Commissioner of the decision and the reasons for it.
• Under regulation 5.35, the agency head must give information or documents to a person or committee carrying out a review in the way, and at or within the time, stated in the notice.

Prime Minister’s Public Service Directions—mandatory leave without pay

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Section 21 of the Public Service Act 1999 allows the Prime Minister to issue general directions to agency heads about the management and leadership of APS employees.

Clause 2.1 of the Prime Minister's Public Service Directions 1999 (PM’s Directions) provides that where an ongoing APS employee applies for leave without pay to undertake certain employment under the Members of Parliament (Staff) Act 1984, or the Governor-General Act 1974, an agency head must approve the application.

Under clause 2.2 of the PM's Directions, where an APS employee who has been granted leave without pay under these provisions notifies the agency head that he/she wishes to return to the agency, the agency head must arrange for this to occur as soon as practicable. The employee is entitled to be assigned duties at the classification the employee held immediately before being granted leave without pay (or at an equivalent classification should that classification no longer exist).

As a result of amendments that came into effect on 19 October 2005 granting leave without pay is no longer mandatory for APS employees taking up a full time statutory appointment. Australian Public Service Commission Circular 2005/5 provides further advice about the amendments to the PM’s Directions, including on the transitional arrangements for APS employees granted leave without pay prior to 19 October 2005 to take up a statutory appointment.

Delegations

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The Public Service Act 1999 , Public Service Regulations 1999 (Public Service Regulations), the Public Service Commissioner's Directions 1999, and the Public Service Classification Rules 2000 confer powers and functions on agency heads that may be delegated. An agency head may, in writing, delegate a power or function to one or more persons (the first delegate). An agency head may give directions to the first delegate. The first delegate may in writing delegate any of those powers or functions to another person (the second delegate). However, if the first delegate is subject to directions, the first delegate must give corresponding directions to the second delegate.

The consent of the Public Service Commissioner must be obtained if an agency head wishes to delegate, or a delegate wishes to further delegate, a power or function under the Public Service Framework to an outsider (that is, a person other than an APS employee or a person appointed to an office by the Governor-General or by a Minister, under a law of the Commonwealth).

Workplace Authority

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The Workplace Authority has a role under the WR Act to assist employers and employees to make all types of workplace agreements which are available under that Act. The Workplace Authority is responsible for:

• accepting lodgement and issuing receipts after lodgement of all workplace agreements, including in accordance with transmission of business provisions under the WR Act;
• assisting employers and employees with content in workplace agreements;
• providing agreement making advice to employers, employees and industrial organisations; and
• providing advice appropriate to an employer’s specific needs.

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This page can be found at www.apsc.gov.au/foundations/employmentagencyhead.htm