Indigenous employment—Affirmative measure and identified positions

Last updated: 20 Apr 2017

This page is: current

1. Introduction

There are two key provisions relevant to Indigenous employment in the APS. The first is the Affirmative measure—Indigenous employment which allows agencies to restrict vacancies as open only to persons who are Aboriginal and/or Torres Strait Islander. The second is the 'Identified Position' provision where specific selection criteria/job requirements are used to recruit people, who may or may not be Indigenous, with the appropriate skills, attributes and experience to work effectively on Indigenous issues.

2. Affirmative measure—Indigenous employment

The Australian Public Service Commissioner's Directions 2016 (the Directions)work with the provisions of the Racial Discrimination Act 1975 to enable agency heads or their delegates to put in place affirmative measures (previously known as special measures) to identify particular vacancies as open only to Aboriginal and/or Torres Strait Islander applicants. The affirmative measure is set out in Section 26 of the Directions. Further information on the Indigenous affirmative measure can be found in these guides.

It is important for agencies to consider and record their justification for using the affirmative measure provision. Key factors justifying its legality include the inequitable employment outcomes experienced by Aboriginal and Torres Strait Islander people as a group, and the fact that this situation is not improving. It can therefore be argued that the necessity for the use of the affirmative measure has been demonstrated.

It is also good practice for agencies to be explicit about the legal basis for the decision to restrict a vacancy to Aboriginal and/or Torres Strait islander applicants. This could be done by including in the vacancy notice and selection documentation that 'the filling of this vacancy is intended to constitute an affirmative measure under subsection 8(1) of the Racial Discrimination Act 1975'.

Eligibility

Agency heads or their delegates must ensure that for vacancies advertised under this measure, eligible applicants are persons:

  • of Aboriginal and/or Torres Strait Islander descent; and
  • who identify as Aboriginal and/or Torres Strait Islander; and
  • who are accepted by their community as being Aboriginal and/or Torres Strait Islander.

Applicants are required to provide evidence to confirm that they are Aboriginal and/or Torres Strait Islander. Acceptable evidence includes:

  • a letter signed and executed by the Chairperson of an incorporated Aboriginal or Torres Strait Islander organisation confirming that they are recognised as an Aboriginal or Torres Strait Islander person, or
  • a confirmation of Aboriginal or Torres Strait Islander descent form executed by an Aboriginal or Torres Strait Islander organisation.

See also the Frequently Asked Questions at the end of this page.

3. Identified positions

An 'identified position' is a vacancy with specific selection criteria/job requirements that signify that the role has a strong involvement in issues relating to Aboriginal and/or Torres Strait Islander people. Typically, these roles will involve the development of policies or programs targeted at Aboriginal and/or Torres Strait Islander peoples, or which involve direct interaction with Aboriginal and/or Torres Strait Islander communities.

Historically, two selection criteria have been used when advertising these vacancies. They are not legislated—their use is based on long-standing APS policy, and best practice in the careful consideration and determination of appropriate selection criteria for particular jobs.

The selection criteria/job requirements are designed to attract applicants with the appropriate skills, attributes and experience that enable them to work effectively and sensitively on Indigenous issues and/or with Indigenous Australians. There is no set wording for these criteria; however, the key requirements should be:

  • an understanding of the issues affecting Aboriginal and/or Torres Strait Islander people, and
  • an ability to communicate sensitively and effectively with Aboriginal and/or Torres Strait Islander people.

These criteria are consistent with the merit and reasonable opportunity principles under the Public Service Act 1999 and do not raise issues of discrimination under the Racial Discrimination Act 1975.

Vacancies advertised in this manner are open to all eligible applicants—they are not restricted to Aboriginal and/or Torres Strait Islander applicants.

See also the Frequently Asked Questions at the end of this page.

4. FAQs: Affirmative measure—Indigenous employment

Should a record of the justification for recruiting under the affirmative measure be made?

Yes. Recruiting under the affirmative measure should be documented as an employment strategy to increase Indigenous representation in the APS, and address inequitable employment outcomes experienced by Indigenous Australians.

Can the affirmative measure be used even though the job does not require working with Indigenous Australians and/or working on Indigenous issues (e.g. policy)?

Yes. Application of the affirmative measure is a strategy to employ more Indigenous Australians. However, if an understanding of Indigenous issues is required, then 'identified position' criteria should also be used in the recruitment process.

Are affirmative measure—Indigenous employment vacancies restricted to Indigenous Australian applicants?

Yes. The affirmative measure is used to restrict vacancies to Aboriginal and/or Torres Strait Islander applicants.

What classifications and categories of employment can the affirmative measure be applied to?

The affirmative measure can be applied to all classifications. It can be applied for all ongoing and non-ongoing engagements, including specified term employment, employment for the duration of a specified task, or work that is irregular or intermittent. It can be applied to vacancies that may be filled by promotion or movement of existing APS employees.

Are the location of the job or labour market factors relevant to the affirmative measure?

No.

Should the affirmative measure vacancy be advertised in the Gazette?

Normal advertising rules apply. If the vacancy is ongoing or it is a longer term non-ongoing vacancy, it needs to be advertised. See the Public Service Gazette requirements webpage.

Are there requirements when advertising vacancies under the affirmative measure in the media/Gazette?

Yes. Although it is not a legal requirement, agencies should be explicit about the basis for the decision to restrict selection to Indigenous Australians to minimise the risk of complaints that recruitment under the affirmative measure is discriminatory.

All advertisements and selection documentation for affirmative measure vacancies should state that the filling of the vacancy is intended to constitute an affirmative measure under section 8(1) of the Racial Discrimination Act 1975.

Do selection criteria/job requirements for affirmative measure vacancies have to be worded in a particular way?

Selection criteria/job requirements should state that the job is open only to Indigenous applicants. No other special selection criteria need to be included unless it is also an 'identified position'.

Does the APS merit process apply?

Yes. For ongoing vacancies and non-ongoing vacancies for longer than 18 months, applicants must demonstrate their relative suitability for the job, and the usual competitive merit selection process should be followed.

Can my agency share a merit list of suitable applicants that has been created by another agency?

Yes. Merit lists allow subsequent vacancies to be filled provided the vacancy is 'similar'. A vacancy is similar where it is at the same classification, same category of employment (ongoing or non-ongoing), comprises similar duties and is in a similar location. or vacancies at the Senior Executive Service level, agencies may draw on a merit list created by another agency, provided the merit list is still current and the vacancy meets all other relevant criteria.

For centrally-coordinated entry level programs, such as Indigenous Pathways, agencies may draw on a merit list created by the coordinating agency.

For all other vacancies, agencies may draw on a merit list on a case-by-case basis where there is agreement from the agency that notified the original vacancy, the agency with the subsequent vacancy, and the relevant candidate.

When accessing an existing merit list created by a different agency, agencies should be mindful to follow the order of the merit list. For example, where candidates are ranked on a merit list, they must be offered a role in that same order. Similarly, where candidates are rated as suitable or not suitable by selection committee in one agency, a different agency cannot change that rating.

Can we apply both the Indigenous employment affirmative measure and the disability affirmative measure to the same vacancy?

Yes, This measure can be used in conjunction with the disability employment affirmative measure—Section 27 in the Australian Public Service Commissioner's Directions 2016—to employ Indigenous people with disability. See Affirmative measure for recruiting people with disability: A guide for agencies.

Can we apply RecruitAbility to Indigenous employment affirmative measure vacancies?

Yes. See RecruitAbility scheme: A guide for agencies. By applying RecruitAbility, Indigenous applicants with disability can progress to further assessment stages in the recruitment process if they declare they have a disability, opt into RecruitAbility, and meet the minimum requirements for the vacancy.

Is there a scheme similar to RecruitAbility that allows agencies to advance an Indigenous applicant to further stages in the recruitment process?

No. The RecruitAbility scheme is an affirmative measure introduced by legislation—Section 28 in the Australian Public Service Commissioner's Directions 2016—and can only be applied to people with disability.

Can the affirmative measure for employing Indigenous staff be used for other purposes, e.g. gender-specific requirements?

No, however there is a separate affirmative measure for disability employment—see Affirmative measure for recruiting people with disability: A guide for agencies.

5. FAQs: Identified positions

What is the legislative basis for 'identified positions'?

The application of the 'identified positions' provision has no legislative basis, but it meets the merit requirements under the Public Service Act 1999. It is a long-standing APS policy and best practice in determining appropriate selection criteria/job requirements for particular jobs.

Should a record of the justification for recruiting under the 'identified positions' provision be made?

Yes. It is good practice to document the inherent requirements of all positions.

When some or all of the duties include working with Indigenous Australians and/or working on Indigenous topics (e.g. policy), should 'identified positions' be used?

Yes. Agencies are encouraged to use 'identified positions' to recruit or promote suitably experienced and qualified staff.

Note that the impact of any (i.e. not just Indigenous-specific) Government policies/programs on Indigenous Australians should always be considered.

Are 'identified positions' open to all members of the community?

Yes. Recruiting to 'identified positions' does not restrict the field to Indigenous Australians, nor does it preclude them from applying.

Is proof of Indigenous heritage required for 'identified positions'?

No.

To which classifications and categories of employment can 'identified positions' be applied?

The 'identified positions' provision can be applied to all classifications. It can be applied for all ongoing and non-ongoing engagements, including specified term employment, employment for the duration of a specified task, or work that is irregular or intermittent. It can be applied to vacancies that may be filled by promotion or movement of existing APS employees.

Should the 'identified positions' vacancy be notified in the Gazette?

Normal advertising rules apply. If the vacancy is ongoing or it is a longer term non-ongoing vacancy, it needs to be advertised. See the Public Service Gazette requirements webpage.

Are there special requirements when advertising 'identified positions' in the media/ Gazette?

Although there are no legal requirements, advertisements should clearly specify when a job is an 'identified position'. As with all job advertisements, it is advisable to include a statement like 'Aboriginal and/or Torres Strait Islander people are encouraged to apply.'

Should the selection process include particular considerations?

Yes. The usual merit selection process must be followed, and members of the selection panel must be competent to assess applicants against the identified selection criteria/job requirements'. Where possible, an Indigenous Australian should be on the selection panel.

Applicants should be asked to provide a reference, where possible, from an Indigenous Australian to confirm they have relevant experience and meet the identified selection criteria/job requirements.

Can my agency share a merit list of suitable applicants that has been created by another agency?

Yes. See response to FAQ under section 4 above.

Can we apply both the 'identified positions' provision and the disability affirmative measure to the same vacancy?

Yes, The 'identified positions' provision can be used in conjunction with the disability employment affirmative measure—Section 27 in the Australian Public Service Commissioner's Directions 2016—to employ people with disability who meet the specified selection criteria/job requirements. See Affirmative measure for recruiting people with disability: A guide for agencies.

Can we apply RecruitAbility to 'identified positions'?

Yes. See RecruitAbility scheme: A guide for agencies. By applying RecruitAbility, applicants with disability can progress to further assessment stages in the recruitment process if they declare they have a disability, opt into RecruitAbility, and meet the minimum requirements for the vacancy.