Commission Advice 2013/03: Legislative changes to matters relating to SES employment

Last updated: 23 Apr 2013

This page is: archived

The Australian Public Service Commission has developed a series of Advices to assist APS agencies implement the changes made by the Public Service Amendment Act 2013 (the Amendment Act) to the Public Service Act 1999 (the Act) and subordinate legislation. The Advices are available on the Circulars and advices page of the Commission’s website.

This Advice informs agencies of changes to the Act and the Australian Public Service Commissioner’s Directions 2013 (the Directions) which relate to Senior Executive Service (SES) employment matters.

The commencement date for the changes is 1 July 2013. The changes to the Act will take effect on that date.

Why are these changes being made?

The changes to the Act relating to the role of the SES are aimed at reinforcing the importance of whole-of-government working. The SES work level standards, which have been in place since September 2012, take into account the revised definition of the role of the SES.

SES employees are expected to contribute to an effective and cohesive APS, to promote cooperation within and between agencies and to work collaboratively to deliver outcomes across agency and portfolio boundaries.

Changes to the Directions relating to SES matters have been made to remove redundant requirements in the previous Directions and to place the remaining SES‑specific requirements into the appropriate areas of the new Directions.

What changes are being made?

A detailed summary of these changes to the Act and to the Directions relating to SES employment matters is set out in the Appendix to this Advice.

Changes made by the Amendment Act

The Amendment Act redefines the constitution and role of the SES in section 35, emphasising that the SES is to provide APS-wide strategic leadership of the highest quality that contributes to an effective and cohesive APS.

The changes expand on the nature of the function of the SES and each SES employee to encompass the provision of one or more of the following:

  • Professional or specialist expertise
  • Policy advice
  • Program or service delivery
  • Regulatory administration.

In addition, the SES are required to promote cooperation within and between agencies, including to deliver outcomes across agency and portfolio boundaries and, by personal example and other appropriate means, promote the APS Values, the APS Employment Principles and compliance with the Code of Conduct.

Two other amendments, both to section 37 ‘Incentive to Retire’, clarify that:

  • a notice under section 37 can be given to an SES employee whether or not the employee has reached the minimum retirement age specified in section 30; and
  • a retirement under section 37 means that the SES employee has been ‘retired involuntarily’, rather than has been ‘compulsorily retired’.

Australian Public Service Commissioner's Directions 2013

Changes to the layout and presentation of the Directions include the removal of the previous SES‑specific Chapter. There are several changes where redundant, ambiguous or unused provisions in the Directions relating to SES employment matters have been deleted, clarified or simplified. These are:

  • Movement at level between agencies: there is no longer a separate clause dealing with SES movement at level and the previous requirement in relation to SES movements between agencies that the ‘losing’ agency head must be consulted and agree to the movement has been removed. Clauses 2.24 and 2.27 of the new Directions set out requirements applying to movements within or between agencies applicable to all APS employees, including SES employees.
  • Involuntary assignment to a lower classification: there is no longer a separate clause relating to an assignment of an SES employee to a lower classification. The same principles apply to all APS classifications, and this is now covered in clause 2.24 of the Directions.
  • SES (Specialist) arrangements: an agreed outcome of the SES Review was that the Senior Executive (Specialist) classifications should be abolished. This has been effected through an amendment to the Public Service Classification Rules 2000, and all references to Senior Executive (Specialist) employment matters have therefore been deleted from the Directions.
  • Assignment from a non-SES classification to an SES classification: it continues to be possible for an APS employee holding an APS classification which is listed in the same Classification Rules Group as an SES classification to be assigned to the SES classification on an ongoing basis (i.e. 9 to 11). The process has been simplified to require the Commissioner’s agreement before the assignment is finalised. See clause 2.26 of the Directions. (As an example, the classifications of Chief of Division Grade 1 and Senior Executive Band 1 are included in Group 9 of the Classification Rules.)
  • Termination of employment: there is no longer a separate clause relating to termination of employment at SES level. Clause 7.2 of the Directions sets out procedures applicable to termination of employment, including a note highlighting that an SES employee’s employment cannot be terminated unless the Commissioner has issued a certificate under section 38 of the PS Act.

The Appendix lists the amendments made to the relevant SES sections of the Act, as well as the specific references to SES employment matters in the new Directions.

What do agencies need to do?

Agencies are advised to communicate the changes to the role of the SES to their SES employees.

Agencies are advised to familiarise themselves with SES employment requirements as set out in the Directions and to update any policies, procedures and guidance that relate to the role of the SES and to take account of the changed legislative references.

What transition arrangements need to be put in place?

There are no transitional arrangements required as a result of these changes.

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.

The Commission will prepare revised SES staffing guidelines taking these changes into account. Those guidelines will be finalised and available by the time that the changes to the PS Act come into effect.

Enquiries from Central Office corporate staff can be made by email at ethics@apsc.gov.au or by phone 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 and Participation Policy
Australian Public Service Commission

April 2013

Appendix

Schedule 1 of the Public Service Amendment Act 2013

Part 3 - Amendments to sections relating to SES employees and SES employment matters

Amendment Act section Act subsection Change
5 35(2)

Repeal the subsection, substitute:

(2) The function of the SES is to provide APS‑wide strategic leadership of the highest quality that contributes to an effective and cohesive APS.

(3) For the purpose of carrying out the function of the SES, each SES employee:

  1. provides one or more of the following at a high level:
    1. professional or specialist expertise;
    2. policy advice;
    3. program or service delivery;
    4. regulatory administration; and
  2. promotes cooperation within and between Agencies, including to deliver outcomes across Agency and portfolio boundaries; and
  3. by personal example and other appropriate means, promotes the APS Values, the APS Employment Principles and compliance with the Code of Conduct.
6 37(1A)

After subsection 37(1), insert:

(1A) A notice may be given to an SES employee under subsection (1) whether or not the employee has reached the minimum retiring age under section 30.

7 37(2)(b) Omit “been compulsorily retired”, substitute “retired involuntarily”.

Australian Public Service Commissioner’s Directions 2013

Specific references to SES responsibilities employment matters

1.8 Promoting the APS Values—SES employees

Having regard to an individual’s duties and responsibilities, an SES employee must take steps to integrate the APS Values into the Agency’s culture and decision-making processes, guide employees to take decisions based on the APS Values, and consistently reflect the APS Values in his or her behaviour.

Note: Section 35(3)(c) of the Public Service Act 1999 requires each SES employee to promote the APS Values by personal example and other appropriate means.

2.4 Meaning of Senior Executive Service (SES) vacancy

For these Directions, SES vacancy means a vacancy at a SES classification as set out in the Classification Rules.

2.9 Notification of vacancy in the Public Service Gazette
Basic requirement for notification of vacancy
  1. Subject to this clause, a selection process for a decision to fill a vacancy meets the requirements of this Division only if:
    1. the vacancy, or a similar vacancy, in the Agency was notified in the Public Service Gazette within a period of 12 months before the written decision to engage or promote the person; and
    2. the vacancy was notified as open to all eligible members of the community; and
    3. the vacancy was notified with a closing date for applications of at least 7 calendar days after the notification (unless otherwise approved by the Commissioner).

Note: Part 2.2 provides modifications of and exceptions to the requirements in this Part for certain kinds of engagement and promotion decisions.

Notification of SES vacancies—external advertising

(2) A vacancy at an SES classification must be notified in the Public Service Gazette and advertised externally (for example on a recruitment website) as open to all eligible members of the community.

Note: The Department of Finance and Deregulation has issued a policy on non-campaign recruitment advertising.

2.10 Additional requirements for SES engagement or promotion decisions

A selection process that results in a decision to engage or promote a person as an SES employee meets the requirements of this Division only if the following also apply:

  1. a representative of the Commissioner was a full participant in the selection process;
    1. the representative certified that the selection process complied with the Act and these Directions; and
    2. the Commissioner endorsed the representative’s certification of the process.
  2. at the end of the process:

Note: Clause 2.9 requires the decision to be made within 12 months after the vacancy notification in the Public Service Gazette on which the selection process was based, including in relation to the same, or similar, vacancies. In relation to SES engagement or promotion decisions, the Commissioner must have endorsed the certification of that process before any engagement or promotion action may proceed.

2.14 Engagement of ongoing SES employee as non-ongoing SES employee

An Agency Head may engage a person who is an ongoing SES employee to perform duties as a non-ongoing SES employee without complying with Part 2.1 if:

  1. the person is to be engaged for a specified term or specified task; and
  2. the person resigns as an ongoing SES employee in order to commence the engagement as a non-ongoing SES employee for a specified term or specified task; and
  3. the engagement as a non-ongoing SES employee for a specified term or specified task is at the same classification as the person’s current SES classification or at a lower SES classification.

Note: Engagement of non-ongoing SES employees is subject to the provisions of the Regulations (regulation 3.4).

2.26 Assignment from non-SES classification to SES classification

A decision may be made to assign duties on an ongoing basis at an SES classification to an employee who is not an SES employee, provided that the employee’s classification is in the same classification group as the SES classification. Such a decision may be made only with the agreement of the Commissioner, whether or not the decision is part of a move to another Agency.

Note: The Classification Rules, which contain the SES Band 1, 2 and 3 classifications, also include a number of classifications in the same Groups as the SES classifications which are not within the SES.

2.29 Decisions that must be notified in the Gazette

(1) An Agency Head must notify an employment decision of any of the following kinds in the Public Service Gazette within 3 months after the decision is made:

(j) the retirement of an SES employee with the payment of an incentive under section 37 of the Act.

7.2 Termination of employment of non-ongoing APS employees
  1. This clause sets out procedures applicable to the termination of the employment of a non-ongoing APS employee.
    1. if the employment arrangement is a fair work instrument—are an unlawful term; or
    2. if the employment arrangement is a transitional instrument that is not an award—are prohibited content; or
    3. if the employment arrangement is not a fair work instrument or a transitional instrument—would be an unlawful term if the employment arrangement were a fair work instrument.
  2. If an employment arrangement sets out procedures applicable to the termination of the employment of the non-ongoing APS employee, the procedures apply to the termination of the employment unless the procedures:

Note 1: The engagement of a non-ongoing APS employee may be terminated on the grounds of a breach of the APS Code of Conduct only in accordance with procedures established by an Agency Head under subsection 15 (3) of the Act.

Note 2: The Fair Work Act 2009 has rules and entitlements that apply to termination of employment.

Note 3: An Agency Head cannot terminate the employment of an SES employee unless the Commissioner has issued a certificate under section 38 of the Act that the termination has satisfied the requirements of these Directions and is in the public interest.

Note 4: The Dictionary defines employment arrangement.

7.3 Incentive to retire—SES employee

An Agency Head must not give a notice to an SES employee under section 37 of the Act unless the Commissioner is satisfied that the following requirements have been met:

  1. the employee is an ongoing SES employee; and
  2. the employee is advised of possible options for assignment, including assignment to a group of duties at a lower classification; and
  3. the employee is given reasonable access to independent financial advice and career counselling; and
  4. the Commissioner has agreed to the amount to be paid to the employee by the Agency Head if the employee retires within the period specified in the notice.

Note 1: A notice given to an SES employee under subsection 37 (1) of the Act must be in writing and must state that the employee will become entitled to a payment of a specified amount if the employee retires within a period specified in the notice.

Note 2: Under clause 2.29, the retirement of an SES employee within the period specified in a notice given under section 37 of the Act must be notified in the Public Service Gazette.