Circular 2014/3 - Amendments to the Australian Public Service Commissioners Directions 2013

Last updated: 30 Oct 2014

This page is: current

This circular is to advise agencies of amendments to the Australian Public Service Commissioner’s Directions 2013 (Commissioner’s Directions) that will come into effect on 1 November 2014.

2. The Commissioner’s Directions are being amended to:

  • remove the requirement that certain employment decisions need to be notified in the Public Service Gazette (the Gazette); and
  • make a number of unrelated technical amendments.

Changed gazettal requirements

3. Following concerns expressed to the Australian Public Service Commission (the Commission) about the requirement to notify certain employment-related decisions, and in particular termination of employment decisions, in the Gazette, the Commission undertook a review of the requirement, which included seeking the views of APS agencies on this issue.

4. As a result of the review, subclause 2.29(1) of the Commissioner’s Directions has been amended to remove the requirement to notify, in the Gazette, Senior Executive Service (SES) retirement decisions and termination of employment decisions (for SES and non-SES ongoing employees), other than where the termination is on the grounds of a breach of the APS Code of Conduct (paragraph 29(3)(g) of the Public Service Act 1999 (PS Act)). Aggregate information on termination of employment of ongoing Australian Public Service (APS) employees will continue to be published annually in the APS Statistical Bulletin.

5. Consequential amendments have also been made to subclause 2.30(1) of the Commissioner’s Directions, which deals with the requirement to notify certain cancellation of employment decisions, to reflect the changes made to subclause 2.29(1).

6. The changed arrangements affect retirement or termination of employment decisions with a date of effect on or after 1 November 2014. It is the date of effect of the termination of employment that will determine whether gazettal is required.

  • For example a decision to terminate an ongoing employee’s employment which is made on 24 October 2014 but does not take effect until 21 November 2014 will no longer need to be notified in the Gazette, unless the termination is on misconduct grounds.
  • However, in circumstances where a decision was made on 24 October to terminate the employment, payment in lieu of notice was provided, and the employee’s termination took effect from that date, the termination decision will need to be notified in the Gazette.

7. Transitional provisions have been included in the amendments to the Commissioner’s Directions in relation to the changed notification requirements. These transitional provisions provide that:

  • SES retirement or termination of employment decisions for both SES and non-SES ongoing employees that take effect before 1 November 2014, but have not been gazetted by that date, will continue to require notification in the Gazette.
  • Similarly, where an agency head has made a decision to terminate the employment of an APS employee and that decision was notified in the Gazette prior to 1 November 2014, and the agency head subsequently cancels that termination of employment decision, then, notwithstanding the changed notification requirements, the cancellation decision is required to be notified in the Gazette.

8. Subclause 2.29(2) of the Commissioner’s Directions provides that a decision that requires Gazette notification must be notified within 3 months of the decision being made, unless the Commissioner agrees to a different arrangement.

Termination on misconduct grounds

9. A decision to terminate an APS ongoing employee on the grounds that the employee has been found to have breached the APS Code of Conduct will continue to require Gazette notification.

10. In accordance with current arrangements, such notifications will include the name of the employee whose employment has been terminated and the grounds for termination. There will continue to be flexibility for an agency head to seek the Commissioner’s approval for the name of an employee not to be published because of the person’s work-related or personal circumstances – see subclauses 2.29(4) and (5) of the Commissioner’s Directions.

Other amendments

11. The other amendments to the Commissioner’s Directions are technical changes that have been made for consistency with current drafting conventions and will not impact on agencies’ operations.

12. One exception is in relation to clause 6.8 of the Commissioner’s Directions which has been removed from Chapter 6. Division 2 of Chapter 6 deals with basic procedural requirements with which an agency head must comply when establishing Code of Conduct procedures under subsection 15(3) of the Act.

13. Clause 6.8 has been repealed and the requirements of that clause moved to new clause 2.27A. There are no changes to the substance of the provision, although the drafting has been simplified.

14. Former clause 6.8 was included in the Commissioner’s Directions in 2013 to address a perception that an employee could avoid or frustrate a misconduct inquiry by moving to another agency. The policy intent behind that clause (and new clause 2.27A) is to prevent the movement of an employee from one APS agency to another APS agency where a Code of Conduct inquiry has commenced in respect of that employee. Under clause 2.27A, as with former clause 6.8, the movement to another agency is suspended until the matter is ‘resolved’ (as defined) or the agency heads of the original agency and the new agency agree otherwise. In other words, the employee is unable to move between agencies while the matter is unresolved, without the new agency being aware of the matter.

15. Agencies are no longer required to refer to the requirements of clause 6.8 (or new clause 2.27A) in their misconduct procedures established under subsection 15(3) of the PS Act.

Further information

16. Further information about the changed gazettal requirements is available by contacting the Commission’s Staffing Policy Group at staffingpolicy@apsc.gov.au.

17. Further information about Code of Conduct matters can be obtained from the Commission's Ethics Advisory Service (EAS) on (02) 6202 3737 or by email at ethics@apsc.gov.au.