Commission Advice 2013/04: The new APS Values and Employment Principles. Changes to the Code of Conduct.

Last updated: 25 Jun 2013

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The new APS Values and Employment Principles
Changes to the Code of Conduct

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consequence the Public Service Regulations 1999 have been amended and the Public Service Commissioner’s Directions 1999 repealed and replaced with the Australian Public Service Commissioner’s Directions 2013 (the Directions).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) is developing 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 the new APS Values and Employment Principles, and changes to the Code of Conduct.

The commencement date for the changes is 1 July 2013. The changes to the Act will become Commonwealth law on that date. Agencies will need to take action to prepare for these changes before the commencement date, including by promoting the Values and Employment Principles within the agency.

Why are these changes being made?

In 2010 the Government adopted the recommendation made by the Advisory Group on Reform of Australian Government Administration to revise the APS Values to comprise ‘a smaller set of core values that are meaningful, memorable and effective in driving change’. A compact, clearly articulated set of Values is intended to be more readily integrated into employees’ day-to-day work and behaviour, enabling the Values to underscore every aspect of APS employment.

The Values are complemented by a set of Employment Principles that deal with employment and workplace relationships in the APS.

Together, the new APS Values and Employment Principles are intended to shape the organisational culture of the APS. They are core components of positive cultural change, building stewardship, high performance, and leadership—and fostering ‘one APS’.

APS agency heads and employees are required to uphold the APS Values and Employment Principles. Additionally, agency heads are required to promote the Values and Employment Principles. Senior Executive Service (SES) employees are required to uphold the Values and Employment Principles, and promote them by personal example and other appropriate means.

A small number of amendments have been made to the Code of Conduct to clarify the level of connectedness between the Code and APS employment; to ensure that the APS Employment Principles are binding in the same way as the APS Values; and to strengthen the Code so that employees are required to uphold the integrity and good reputation of their agency as well as the APS. This latter amendment is intended to assist those agencies that require particular standards of integrity at all times from their employees, for example, agencies with functions relating to law enforcement.

Changes have also been made to the handling of misconduct that are aimed improving their effectiveness, while at the same time safeguarding the rights of APS employees. The current framework for handling misconduct is essentially sound, and the amendments will clarify and strengthen it further in key areas.

The changes are the result of agencies’ and the Commission’s experience in dealing with misconduct matters since the last major change to the legislation in 1999.

What changes are being made?

Changes in summary

The Amendment Act introduces new APS Values and Employment Principles, as follows:

  • Section 10 of the original Act has been repealed and replaced with a new section 10 setting out the new APS Values.
  • The existing Values dealing with working relationships have substantially been replicated in the Employment Principles.
  • Section 17 of the Act, dealing with the prohibition on patronage and favouritism, has been repealed, and a replacement provision included as an Employment Principle.

The Amendment Act makes changes to the APS Code of Conduct, as follows:

  • The first four elements of the Code of Conduct will now apply in connection with rather than in the course of APS employment.
  • Employees will be required to behave in a way that upholds the integrity and good reputation of their agency as well as the APS.
  • Employees will be required to behave in a manner that upholds the Employment Principles as well as the APS Values.

In addition, the Amendment Act makes changes that will allow for:

  • misconduct action to be taken where a person has provided false or misleading information in connection with their engagement as an APS employee (i.e. pre-commencement misconduct); and
  • a determination of a breach of the Code to be made after an employee separates from the APS (i.e. the amendment clarifies that determinations may be made in relation to former employees).

Changes in detail

The new APS Values

Section 10 of the Act has been repealed and replaced with a new section 10 setting out the new APS Values. Each Value is supported by a short statement that expands and clarifies its intent. The new Values are as follows:

  • Impartial: The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.
  • Committed to service: The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government.
  • Accountable: The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
  • Respectful: The APS respects all people, including their rights and their heritage.
  • Ethical: The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.

The Values are supported by binding Directions that are issued by the Australian Public Service Commissioner under section 11 of the Act. Section 11 allows the Commissioner to issue Directions for the purpose of ensuring that the APS incorporates and upholds the APS Values, and for determining, where necessary, the scope or application of the APS Values.

Directions issued by the Commissioner in relation to the new APS Values are at Attachment A.

The Employment Principles

The Act has been amended to include a new section 10A which provides for the Employment Principles. The Employment Principles are largely those of the existing APS Values that relate to employment and workplace relationships.

The new Employment Principles are as follows:

The APS is a career-based public service that:

  1. makes fair employment decisions with a fair system of review;
  2. recognises that the usual basis for engagement is as an ongoing APS employee;
  3. makes decisions relating to engagement and promotion that are based on merit;
  4. requires effective performance from each employee;
  5. provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued;
  6. provides workplaces that are free from discrimination, patronage and favouritism; and
  7. recognises the diversity of the Australian community and fosters diversity in the workplace.

The Employment Principles in full are at Attachment B.

New section 11A of the Act provides for the Commissioner to issue directions on employment matters, including in relation to any of the Employment Principles. Directionshave been made about:

Amendments to the Code of Conduct and handling misconduct

The Amendment Act:

  • amends the first four elements of the Code of Conduct so that they apply ‘in connection with’ the employee’s employment, rather than only ‘in the course of employment’;
    • this is designed to give agencies greater clarity and confidence when considering suspected breaches of the Code which occur outside work hours and away from the conventional workplace. For example, the amendment should provide more certainty when dealing with suspected breaches that occur on work-related travel or training, and will reinforce the need for APS employees to remember the Code of Conduct when they are, for example, posting comments about their workplace or colleagues on social media forums;
    • however, at the same time employees are entitled to a private life and the amendments are not intended to allow the Code to regulate every aspect of that private life. The phrase ‘in connection with’ would need to be interpreted to mean that the Code provisions apply only when there is, in fact, a real connection between a person’s employment and the act being considered;
  • broadens the Code to require employees to behave in a way that upholds the integrity and good reputation of their agency, as well as the APS, as currently required;
  • allows action to be taken in relation to APS employees who have, before engagement, provided false or misleading information, failed to provide relevant information or otherwise failed to act with honesty or integrity in connection with their engagement.

The Amendment Act also:

  • amends the Act to provide for the Regulations to set out how the Code is to be applied to statutory office holders (see Advice 15);
  • clarifies that a finding of breach of the Code may be made after an employee has separated from the APS (see Advice 7);
  • amends the Act to require agency heads to establish procedures for determining the sanction to be applied to an APS employee who is found to have breached the Code, as well as existing provisions requiring procedures for determining a breach (see Advice 7);
  • amends the Act to make clear that agency heads are not subject to Ministerial direction in relation to action taken under the Code (as is already the case in relation to other staffing powers); and
  • allows the Australian Public Service Commissioner and the Merit Protection Commissioner to determine breaches of the Code by APS employees in certain circumstances (see Advice 5 and Advice 6 respectively).

What do agencies need to do?

Agencies must do the following before the legislation commences on 1 July 2013:

1. Revise their policies and procedures to reflect the changes to the Act

Agencies are advised to review and revise their policies, procedures and publications as appropriate to ensure they reflect the new APS Values and Employment Principles, changes to the Code of Conduct and the handling of misconduct.

Agencies must update their Code of Conduct procedures to ensure they comply with the new legislative requirements on 1 July 2013 and establish procedures for determining sanctions from that date (see Advice 7 – Handling misconduct).

Agencies are also advised to review and revise their policies, procedures and publications as appropriate for merit-based employment decisions (see Advices 9, 10 and 13); performance management (see Advice 11) and safe workplaces.

Agencies that have an existing diversity program must have the program published on the agency’s website by 1 July 2013 (see Advice 12).

2. Communicate the changes to their employees

Agencies are advised to promote the Values and Employment Principles to their employees. The Commission will release updated bookmarks for the Values, Employment Principles and Code of Conduct close to implementation, together with a Values embedding plan as a guide for agencies on embedding the Values in all their work.

A breach of the Code of Conduct can lead to the application of sanctions under s 15 of the Act. It is important that agencies communicate the changes to the Code, revised agency procedures for determining breaches of the Code of Conduct, and new procedures for determining sanctions, to their employees. From 1 July 2013, agencies are required to publish their procedures for determining whether an employee has breached the Code of Conduct and for imposing sanctions, for example on agency websites.

What transitional arrangements need to be put in place?

The new Values come into effect on 1 July 2013 and no transitional arrangements are required.

Refer to individual Advices for any transitional arrangements required for merit-based employment decisions (Advice 9), applications for review of an action (Advice 13), Code of Conduct and sanction procedures (Advice 7), and APS whistleblowing (Advice 8).

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.

Agencies may care to refer to the following Advices:

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.

 

Karin Fisher
Group Manager, Ethics
Australian Public Service Commission

May 2013

Attachment A: Australian Public Service Commissioner’s Directions 2013

Chapter 1 APS Values

The importance of the APS Values

The APS aspires to be among the best in the world—a Service that is recognised and valued because its people:

  • take the extra steps necessary to ensure that the needs of the Australian community are identified and met
  • are forward looking and innovative
  • work together and with the community to meet community needs
  • deliver effective programs and excellent service with maximum efficiency, and so provide great value for money.

Fundamental to the achievement of these goals is the set of attitudes and behaviours that APS employees bring to their work. The APS Values, together with the APS Employment Principles, define the APS as an institution, and guide it in its dealings with everyone and in everything it does. Behaviour consistent with the APS Values strengthens public trust and confidence in public administration, and provides a secure foundation to guide the APS into the future.

The requirements of the law

The responsibilities of APS employees (including SES employees) and Agency Heads are set out inthe Public Service Act 1999 (the Act).

APS employees must at all times behave in a way that upholds the APS Values and APS Employment Principles (Act, s 13(11)).

Members of the SES must also promote the APS Values and APS Employment Principles by personal example, and other appropriate means (Act, s 35(3)(c)).

Agency Heads must uphold and promote the APS Values and APS Employment Principles (Act, s 12).

APS employees and Agency Heads must also comply with all applicable laws, the APS Code of Conduct and any other requirements prescribed by the Public Service Regulations 1999 or these Directions (Act, s 13(4), s 13(13), s 14 and s 42(2)).

Directions about employment matters relating to APS employees, including the scope and application of the APS Employment Principles, are dealt with in Chapters 2 to 5 of these Directions.

The application of the APS Values

The APS Values, and these Directions, set out standards and outcomes that are required of APS employees and Agency Heads, taking account of an individual’s duties and responsibilities. In this context, Agency Heads have an additional responsibility to take steps to ensure that the APS Values are promoted in their Agency (Direction 1.7).

The APS Values can be applied to the variety of functions undertaken across agencies. For example, being Committed to Service applies when service is provided to external clients and the wider community, to other APS agencies, to clients within an Agency, or to Ministers and Government.

The APS Values can overlap, and actions can involve the application of more than one APS Value.

For example, the concept of collaboration is relevant to being Committed to Service as well as to being Respectful. This overlap is reflected in Direction 1.2, which provides that being Committed to Service requires supporting collaboration and teamwork, both internally and externally, and Direction 1.4, which provides that being Respectful requires collaborating and being open to ideas in policy development and implementation.

Each of the Values is of equal importance. There is no hierarchy of Values. There may be particular situations where there is tension between the different APS Values that are to be applied. In such cases, good judgment will need to be exercised to find the appropriate balance between competing demands.

How the APS Values are enforced

The APS Code of Conduct (Act, s 13) requires APS employees at all times to behave in a way that upholds the APS Values, the APS Employment Principles and the integrity and good reputation of the employee’s Agency and the APS (Act, s 13(11)).

An Agency Head must establish procedures for determining whether an APS employee, or former employee, in the Agency has breached the Code of Conduct (Act, s 15(3)).

An Agency Head may impose the following sanctions on an employee who is found to have breached the Code of Conduct (Act, s 15(1)):

  1. termination of employment
  2. reduction in classification
  3. re-assignment of duties
  4. reduction in salary
  5. deductions from salary, by way of fine
  6. a reprimand.

Not every failure to act consistently with the APS Values needs to be dealt with by implementing misconduct procedures. Misconduct action is part of a range of people management practices that agencies have available to support high quality performance. When deciding whether to start a misconduct investigation, an Agency Head should consider, for example, whether the matter could be better dealt with under the Agency’s performance management framework.

The functions of the Australian Public Service Commissioner include promoting the APS Values, the APS Employment Principles and the Code of Conduct (Act, s 41(2)(e)). The Australian Public Service Commissioner issues standards and guidance material for APS employees and Agency Heads on the practical application of the APS Values, APS Employment Principles and the Code of Conduct.

1.1 Purpose of Chapter 1

The purpose of this Chapter is:

  1. to ensure that the APS incorporates and upholds the APS Values; and
  2. to determine, where necessary, the scope or application of the APS Values.

1.2 Committed to Service: The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government

Having regard to an individual’s duties and responsibilities, upholding the APS Value in subsection 10(1) of the Act requires:

  1. engaging effectively with the community and working actively to provide responsive, client-focussed service delivery;
  2. providing appropriate information to clients and the community about rights and entitlements, and the process for gaining access to them;
  3. ensuring that decisions and interactions with clients are objective and impartial, and in accordance with Government policy;
  4. encouraging innovative thought and supporting innovative solutions;
  5. supporting collaboration and teamwork, both internally (within an Agency), and externally (with other agencies and the wider community);
  6. promoting continuous improvement and managing change effectively;
  7. contributing to a culture of achievement;
  8. identifying and managing areas of potential risk;
  9. supporting a unified APS that is determined to serve the Government of the day and the Australian community;
  10. pursuing and supporting training and development to improve capability;
  11. planning time and priorities to deliver intended results;
  12. being responsive to Ministers (taking account of resource and time constraints), including being knowledgeable about the Government’s policies and understanding the relevant issues and options, the Government’s objectives and the environment in which it operates.

1.3 Ethical: The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does

Having regard to an individual’s duties and responsibilities, upholding the APS Value in subsection 10(2) of the Act requires:

  1. acting in a way that models and promotes the highest standard of ethical behaviour;
  2. following through on commitments made;
  3. having the courage to address difficult issues;
  4. complying with all relevant laws, appropriate professional standards and the APS Code of Conduct;
  5. acting in a way that is right and proper, as well as technically and legally correct or preferable;
  6. reporting and addressing misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way;
  7. supporting the strategic objectives of the Agency;
  8. providing leadership in policy development, implementation, program management and regulation;
  9. taking account of whole of government issues and concerns in developing and implementing policies and programs;
  10. supporting systems that give APS employees appropriate opportunities to develop and demonstrate leadership qualities.

1.4 Respectful: The APS respects all people, including their rights and their heritage

Having regard to an individual’s duties and responsibilities, upholding the APS Value in subsection 10(3) of the Act requires:

  1. treating all people with dignity and recognising that all people have value;
  2. dealing with all people honestly and with integrity;
  3. recognising the importance of human rights and understanding Australia’s human rights obligations;
  4. recognising and fostering diversity;
  5. collaborating and being open to ideas in policy development, implementation, program management and regulation;
  6. complying with all relevant anti-discrimination laws.

1.5 Accountable: The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility

Having regard to an individual’s duties and responsibilities, upholding the APS Value in subsection 10(4) of the Act requires:

  1. being answerable to Ministers for the exercise of delegated authority, and, through them, to Parliament;
  2. being open to scrutiny and being transparent in decision making;
  3. being able to demonstrate that actions and decisions have been made with appropriate consideration;
  4. being able to explain actions and decisions to the people affected by them;
  5. being accountable for actions and decisions through statutory and administrative reporting systems;
  6. being able to demonstrate clearly that resources have been used efficiently, effectively, economically and ethically;
  7. being answerable for individual performance through performance management systems.

1.6 Impartial: The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence

Having regard to an individual’s duties and responsibilities, upholding the APS Value in subsection 10(5) of the Act requires:

  1. serving the Government of the day, providing the same standard of high quality policy advice and implementation, and the same high quality professional support, irrespective of which political party is in power and of personal political beliefs;
  2. ensuring that the individual’s actions do not provide grounds for a reasonable person to question the ability of the individual to serve the Government of the day;
  3. ensuring that management and staffing decisions are made on a basis that is independent of the political party system, free from political bias and not influenced by the individual’s political beliefs;
  4. understanding the needs of the Government and providing it with the best objective, non-partisan advice based on the best evidence available;
  5. providing advice that is relevant and comprehensive, is not affected by fear of consequences, and does not withhold important facts or bad news;
  6. providing advice that takes account of the context in which policy needs to be implemented, the broader policy directions set by Government and, where appropriate, implications for the longer term;
  7. implementing Government policies in a way that is free from bias, and in accordance with the law.

1.7 Promoting the APS Values—Agency Heads

An Agency Head must take steps to integrate the APS Values into the Agency’s culture and decision-making processes and support employees to take decisions based on the APS Values. An Agency Head must also consistently reflect the APS Values in his or her behaviour.

Note: Section 12 of the Public Service Act 1999 requires Agency Heads to uphold and promote the APS Values.

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.

Attachment B: Public Service Amendment Act 2013

10A APS Employment Principles

APS Employment Principles

  1. The APS is a career-based public service that:
    1. makes fair employment decisions with a fair system of review; and
    2. recognises that the usual basis for engagement is as an ongoing APS employee; and
    3. makes decisions relating to engagement and promotion that are based on merit; and
    4. requires effective performance from each employee; and
    5. provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued; and
    6. provides workplaces that are free from discrimination, patronage and favouritism; and
    7. recognises the diversity of the Australian community and fosters diversity in the workplace.

Decisions based on merit

  1. For the purposes of paragraph (1)(c), a decision relating to engagement or promotion is based on merit if:
    1. all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and
    2. an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and
    3. the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and
    4. the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and
    5. the assessment is the primary consideration in making the decision.

Note: Commissioner’s Directions may determine the scope or application of the APS Employment Principles (see subsections 11A(2) and (3)).