Commission Advice 2013/12: Legislative changes affecting diversity in the APS

Last updated: 23 Apr 2013

This page is: archived

The Public Service Amendment Act 2013 (the Amendment Act) made significant changes to the Public Service Act 1999 (the Act). As a consequence the Public Service Regulations 1999 have been amended and the Public Service Commissioner’s Directions 1999 repealed and replaced with the Australian Public Service Commissioner’s Directions 2013 (the Directions).

The Australian Public Service Commission (the Commission) has developed a series of ‘Advices’ to assist Australian Public Service (APS) agencies implement the changes in the amended legislation and the new Directions. The Advices are available on the Circulars and advices page of the Commission’s website.

This Advice informs agencies of changes to the Act relating to workplace diversity and the actions agencies need to take to implement the changes. This advice also informs agencies of the new Directions on workplace diversity.

The commencement date for the changes is 1 July 2013. The changes to the Act will become part of the law on that date. Agencies will need to take action to prepare for these changes before the commencement date.

Why are these changes being made?

The Act currently contains several provisions to support an APS workforce that reflects the diversity of the Australian community. To strengthen the framework further the APS Values have been amended to introduce a new Value of ‘Respectful—The APS respects all people, including their rights and heritage.’ (See Advice 4: APS Values, Employment Principles and revisions to the Code of Conduct.)

Changes are consequential on the introduction of APS Employment Principles. Behavioural requirements currently set out in the APS Values will be contained within the APS Employment Principles.

To assist in giving effect to the Employment Principles, agency heads must, from 1 July, publish their workplace diversity programs on their agency website.

What changes are being made?

Public Service Act 1999

Section 18 of the Act has been amended to require an agency head to establish a workplace diversity program to assist in giving effect to the APS Employment Principles, rather than the APS Values as is currently the case.

The APS Employment Principles in section 10A of the Act, as amended, provides, among other things, that ‘The APS is a career-based public service that…provides workplaces that are free from discrimination, patronage and favouritism; and recognises the diversity of the Australian community and fosters diversity in the workplace.’

Australian Public Service Commissioner’s Directions 2013

The changes in the Directions will require agency heads to publish their workplace diversity program on the agency’s website.

It is acknowledged that some agencies, by virtue of their small size and limited capacity, may be unable to develop a comprehensive workplace diversity program. In these circumstances, the Commissioner expects that, in the absence of a comprehensive workplace diversity program, small agencies publish a commitment to workplace diversity that includes a commitment to fostering a diverse workforce; to attracting and recruiting people from diverse backgrounds; and, wherever possible, participating in whole of APS recruitment programs. It is expected that measures to foster workplace diversity in these agencies will be progressively strengthened.

The Commission intends to undertake further analysis of agency compliance and practices regarding workplace diversity plans, with consideration given to identifying and promoting best practice in this area.

The new Workplace Diversity chapter of the Directions—Chapter 3—is provided at Attachment A.

What do agencies need to do?

Agencies that have an existing diversity program must have the program published on the agency’s website by 1 July 2013.

If agencies revise their diversity program in any way the agency head must, as soon as practicable after revising the program, publish the revised program on the agency’s website.

Agencies are advised to review their workplace diversity programs to ensure that any legislative references are consistent with the amended Act. For example, to ensure the program reflects the revised APS Values and the introduction of Employment Principles.

What transitional arrangements need to be put in place?

No transitional arrangements are required.

Further information

The Amendment Act, the Public Service Amendment Regulation 2013 and the Australian Public Service Commissioner’s Directions 2013 are available on the Comlaw website. This Advice should be read in conjunction with

  • APSC Advice 4 (APS Values, Employment Principles and revisions to the Code of Conduct)

Enquiries from agencies’ corporate services staff can be made by email at ethics@apsc.gov.au or by telephone on 02 6202 3737.

APS employees who have queries about how the changes will affect them are asked to contact the HR area in their agency.

 

Owen Livermore
Group Manager, Employment Policy and Participation
Australian Public Service Commission

April 2013

Attachment A: Australian Public Service Commissioner’s Directions 2013

Chapter 3 Workplace Diversity

The non-discrimination and diversity principles in employment

This Chapter provides for some specific actions to give effect to APS Employment Principles 10A(1)(f) and (g), which read:

  1. The APS is a career-based public service that:
  2. ….

    1. provides workplaces that are free from discrimination, patronage and favouritism; and
    2. recognises the diversity of the Australian community and fosters diversity in the workplace.

It is expected that an Agency workplace diversity program will include measures directed at eliminating employment-related disadvantages in the Agency on the basis of:

  • being Aboriginal and/or Torres Strait Islander;
  • gender;
  • race or ethnicity;
  • disability; or
  • being a member of a group that, from time to time, is identified as having an employment-related disadvantage.

3.1 How an Agency Head upholds APS Employment Principle 10A(1)(f) (non-discrimination)

In upholding and promoting APS Employment Principle 10A(1)(f), an Agency Head must put in place measures in the Agency directed at ensuring that all relevant anti-discrimination laws are complied with.

3.2 How an Agency Head upholds APS Employment Principle 10A(1)(g) (diversity)

In upholding and promoting APS Employment Principle 10A(1)(g), an Agency Head must put in place measures in the Agency directed at ensuring that:

  1. the diversity of APS employees is recognised, fostered and made best use of within the workplace, taking into account the organisational and business goals of the Agency and the skills required to perform the relevant duties; and
  2. APS employees are helped to balance their work, family and other caring responsibilities effectively.

3.3 Measures for workplace diversity programs

Note: Section 18 of the Act requires an Agency Head to establish a workplace diversity program to assist in giving effect to the APS Employment Principles. The content and scope of a workplace diversity program may vary with the kind of agency and with its size and resources. The Commissioner will provide guidance for agencies in deciding what is appropriate.

A workplace diversity program for an Agency must include measures directed at ensuring that:

  1. the corporate, business and human resource plans of the Agency demonstrate that the Agency values the diverse backgrounds of its employees and values, and is able to access and make use of, the diverse skills and experience of its employees; and
  2. workplace structures, systems and procedures assist employees in balancing their work, family and other caring responsibilities effectively; and
  3. the diversity of the Australian community is reflected in strategies to attract, recruit and retain employees, in line with the organisational and business goals of the Agency and the skills required to perform the relevant duties.

3.4 Workplace diversity program to be published

  1. As soon as practicable after establishing a workplace diversity program for an Agency, the Agency Head must publish the program on the Agency’s website.
  2. If the Agency Head revises the workplace diversity program in any way, the Agency Head must, as soon as practicable after revising the program, publish the revised program on the Agency’s website.

3.5 Evaluation and assessment of effectiveness and outcomes of workplace diversity program

  1. An Agency Head must:
    1. develop performance indicators to evaluate the effectiveness and outcomes of the Agency’s workplace diversity program; and
    2. evaluate and report on the effectiveness and outcomes of the program annually.
  2. An Agency Head must give the Commissioner the information the Commissioner requires to enable the Commissioner to:
    1. evaluate and make an assessment of the effectiveness of Agencies’ workplace diversity programs; and
    2. make the assessment for the purpose of the Commissioner’s report under section 44 of the Act.

Note: This requirement is in addition to the Agency Head’s duty to give the Commissioner information for the Commissioner to prepare an annual report — see s 44 of the Act.

3.6 Review of workplace diversity program

At least once every 4 years, an Agency Head must review the Agency’s workplace diversity program to ensure that it continues:

  1. to assist in giving effect to the relevant APS Employment Principles; and
  2. to achieve the outcomes mentioned in clause 3.3.