Senior Executive Service: an HR practitioner’s guide to engagement, promotion, mobility and separation
Last updated: 08 Dec 2016
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- SES employees are employed under the Public Service Act 1999 (the PS Act). For the purpose of carrying out the function of the SES, each SES employee:
- provides one or more of the following at a high level:
- professional or specialist expertise
- policy advice
- program or service delivery
- regulatory administration, and
- promotes cooperation within and between Agencies, including to deliver outcomes across Agency and portfolio boundaries, and
- by personal example and other appropriate means, promotes the APS Values, the APS Employment Principles and compliance with the Code of Conduct.
- provides one or more of the following at a high level:
- These guidelines provide APS agencies with information to assist them to manage selection, mobility and separation matters for SES employees.
2. SES Engagement and Promotion
- Employment decisions, including engagement and promotion decisions, must comply with the PS Act, the Public Service Regulations 1999 (the Regulations) and the Australian Public Service Commissioner's Directions 2016 (the Commissioner's Directions), as well as Managing the size of the Australian Public Service. In summary:
- decisions relating to engagement and promotion in the APS are based on merit
- promotion and engagement decisions are made using a competitive selection process
- agency heads must develop selection processes that are fair and transparent.
- Following the end of the interim recruitment arrangements, revised staffing arrangements for recruitment in the APS came into effect from 1 July 2015. Before considering any recruitment action, agencies are expected to:
- undertake a careful and objective analysis of the position to identify whether it needs to be filled
- be satisfied that filling the position can be accommodated within the agency's estimated Average Staffing Level, and
- ensure that the position is classified correctly against the appropriate work level standards.
- Priority in staffing decisions must be given first to displaced employees from within the agency and on the SES Redeployment Register. Agencies must continue to consider employees on the Redeployment Register prior to commencing any recruitment action.
- Where an agency has considered the CVs of displaced employees on the SES redeployment register without finding a suitable candidate the agency head may advertise a vacancy to all eligible members of the community.
- Section 20 of the Commissioner's Directions outlines the requirements for notification of vacancies in the Public Service Gazette (the Gazette). If a vacancy is notified in the Gazette, the vacancy may then also be advertised externally, for example on a recruitment website, within four weeks of the Gazette notification (section 20(6) of the Commissioner's Directions).
- All vacancies that result in a promotion or engagement must be notified in the Gazette. A selection exercise remains current for 12 months from the date the employment opportunity is notified in the Gazette and can be used to fill subsequent, similar vacancies during that time.
- How an SES vacancy is advertised will determine how it may be filled. If a vacancy is advertised as a non-ongoing employment opportunity, the role can only be filled on a non-ongoing basis. If there is a possibility that a non-ongoing vacancy may become ongoing within 12 months, the vacancy may be advertised as one that may be filled on either an ongoing or non-ongoing basis.
- The closing date for applications for vacancies notified in the Gazette should be at least seven calendar days after the notification or a shorter period if the agency head is satisfied that special circumstances apply section 20(1)(c) of the Commissioner's Directions).
- Agencies are bound by the requirements of the Department of Finance's Recruitment Advertising Policy which applies to all non-corporate Commonwealth entities covered by the Public Governance, Performance and Accountability Act 2013. In general, this policy prohibits advertising in major daily newspapers unless an exemption is approved by the agency head. However, agencies may place recruitment advertising in print media such as Indigenous, local, regional or rural media without seeking an exemption. The policy also applies where agencies engage external assistance to conduct the selection process.
- Where a similar position is to be filled using an order of merit from a previous selection exercise, section 9 of the Commissioner's Directions applies. This clause clarifies the meaning of 'similar vacancy'.
- Where an agency chooses to use the services of an external provider, such as an executive search/recruitment company, it is important for the agency to ensure that the provider is aware of, and complies with, both the legislative framework and any agency-specific policies or guidelines throughout the selection process. In particular, any process must satisfy the requirements of section 10A(2) of the PS Act (Employment Principle on merit) and Part 3 of the Commissioner's Directions (Recruitment and Selection).
- The advertised position may be offered under RecruitAbility, a scheme which provides an opportunity for people with disability to progress to further assessment stages in APS recruitment processes, if they declare they have a disability; apply under the scheme; and meet the minimum requirements for the position.
Selection advisory committees
- A selection advisory committee is to be formed at the commencement of a selection exercise to consider the claims of all applicants.
- All committees must contain the Australian Public Service Commissioner (Commissioner), or a representative of the Commissioner. The Commissioner's representative is expected to be an APS employee from outside the portfolio.
- The Commissioner's representative is expected to be substantively above the level of the vacancy concerned. It is possible to have a two person committee, where one will be the external Commissioner's representative. Gender balance is desirable on a committee.
- It is the responsibility of the agency to identify a suitable person to be the representative. Requests for approval of representatives who do not fulfil the requirements set out above should be sent to email@example.com as early in the process as possible prior to the first meeting of the selection advisory committee.
- As with all selection committees, care needs to be taken to avoid any conflict of interest, perceived bias, negative or positive, or patronage or favouritism. In particular, if a committee member is asked for a reference on an applicant, it is desirable for that panel member to provide those comments before accessing information on other applicants. In addition, if a committee member has a working or personal relationship with an applicant that might give rise to a conflict of interest, real or perceived, it must be declared to all committee members, or to the delegate if the chair is making the declaration. The committee can then decide whether the panel member should stand aside from the whole process or from consideration of the particular candidate.
- Section 21of the Commissioner's Directions provides additional requirements for SES engagement or promotion decisions, including that:
- the Commissioner or a representative of the Commissioner, is a full participant in the selection process, and
- at the end of the process the representative certifies that the selection process complied with the PS Act and Commissioner's Directions (Appendix A).
- The representative's certification is to be obtained before the agency head can proceed with a promotion or engagement action.
- Agencies are expected to invite the Commissioner to participate on all selection committees for SES Band 3 roles. Should the Commissioner be unavailable, the agency will be advised and would, at that point, seek to identify a suitable representative. For an SES Band 3 selection this will generally be another secretary or agency head.
- The representative brings to a selection committee an external perspective to assist the committee in considering the broader range of management and leadership capabilities required at SES level and avoid a narrower focus only on the particular requirements of the role concerned. This helps to ensure individuals selected to perform SES duties will possess the full range of skills required to operate at the SES level in the APS.
- The representative has a key role in assisting the selection committee in upholding merit and in ensuring that decisions are consistent with relevant APS Values, APS Employment Principles and the legislative framework.
- The representative is expected to be fully independent and impartial. On this basis they should not be a referee for any of the applicants, unless this is unavoidable. In addition, it is preferred that agencies nominate a different individual to represent the Commissioner on each occasion. This will help to maintain the independence of the representative, and to ensure this role is spread evenly across the APS.
- The Commission's website provides guidance for representatives of the Commissioner on the role of the Commissioner's representative in SES selection processes.
Outcome of selection exercise
- Following the completion of a selection exercise, the agency head will consider the conclusions reached by the selection committee, as outlined in a written report. There are several possible decisions the agency head might reach on the basis of the committee's recommendation:
- promote an existing APS employee
- move an existing SES employee, at level, either temporarily or on an ongoing basis
- engage a person from outside the APS on either an ongoing basis or for a specified term of up to five years, or
- defer any staffing action, due to either changed operational requirements or where the field of applicants has not produced a suitable candidate.
- An agency head is not bound by the recommendations of the selection committee. However, any variation would need to be justified having regard to the requirements of the PS Act in respect of merit.
- Consideration must be given to the SES cap i.e. whether filling the role can be managed within the agreed SES cap for the agency. In addition, the selection outcome, i.e. promotion, engagement or movement, is expected to be accommodated within the agency's estimated Average Staffing Level.
- Where a successful applicant is an existing ongoing APS employee at a lower substantive classification level than the vacancy being filled, the outcome will be a promotion. The agency head will need, under section 25 of the PS Act, to assign to that person the duties at the SES level concerned.
- Where the successful applicant for promotion is an employee in a different APS agency, the agency head must, under section 26 of the PS Act, enter into an agreement with the employee to move to the promoting agency.
Reassignment and movement
- An agency head may decide to move an existing SES employee within the agency at any time, at the same classification level. Without limiting an agency head's responsibility for the effective and appropriate deployment of staffing resources, in reaching such a decision it would be appropriate for the agency head to take into account the views of the employee.
- Section 26 of the PS Act enables an agency head to offer an SES employee the opportunity to transfer between agencies, at level, without the requirement for a full merit selection process.
- Section 37 of the Commissioners Directions stipulates that an ongoing transfer takes effect four weeks after the employee notifies the losing agency, in writing, of the move unless an alternative date is agreed between the employee and both agency heads.
- In recognition of the important role that SES employees perform in the operations of agencies, an agency head proposing to offer an employee a transfer under section 26 may wish to discuss the proposal with the losing agency before making an offer to the employee.
Temporary assignment of duties
- Where a short term requirement exists for a set of SES duties to be performed, there are several options that an agency head might consider. These include:
- temporary assignment of duties to an existing employee, whether currently at the SES level concerned or below
- engagement of a person from outside the APS for a specified term, or
- reassignment of the duties to another employee for the required period.
- Depending on the duration of the requirement, it might be appropriate to notify the vacancy in the Gazette.
- It should be noted that for SES cap reporting purposes, all SES roles which are staffed for three months or more are to be included. This means that where an SES role is performed for at least three months, whether or not by the same employee, it is expected that the role will be reported as an active SES role against the agency's SES cap. Please note the general principle that the agency funding a role is expected to report the role against their SES cap.
- Where the preferred applicant is from outside the APS, the outcome will be engagement under section 22 of the PS Act.
- Depending on how the SES vacancy was advertised, the person may be engaged as:
- an ongoing SES employee, or
- a non-ongoing SES employee for a specified term of up to five years.
- The usual basis for engagement of an SES employee is as an ongoing APS employee.
- Any conditions to be imposed, such as probation, must be specified before the employee is engaged as such conditions cannot be imposed after the engagement has commenced.
- Under Regulation 3.4, if an engagement is made for a specified term, and the initial term is less than five years, the agency head may extend the specified term, but only to the extent that the term of engagement is no more than five years in total.
- Where a person is to be engaged for a specified term, it is recommended that agencies include in the employee's employment arrangement, a suitable provision covering compensation in the event of early termination of the engagement. This would apply only in cases where the early termination is outside the control of the employee e.g where the work is no longer required to be performed or is completed ahead of time. It would not be appropriate to apply in the event of termination due to underperformance or a breach of the APS Code of Conduct and APS Employment Principles.
Restrictions on engaging redundancy benefit recipients
- There are arrangements in place in the APS which may limit the subsequent employment of people who have received a redundancy benefit. For more detail on these arrangements refer to section 48of the Commissioner's Directions.
Notifying outcomes in the Gazette
- The following outcomes must be notified in the Gazette:
- engagement of an ongoing Parliamentary Service employee at a higher classification.
- Details of employment decisions that must be notified in the Gazette within 3 months after the decision is made can be found at Section 34 of the Commissioner's Directions.
- Remuneration for SES employees is determined by agency heads as part of their employer powers under section 20 of the PS Act. Such decisions are to be made in accordance with government policy as outlined in the Workplace Bargaining Policy and the APS Executive Remuneration Management Policy.
- Under the Executive Remuneration policy agency heads are required to seek the agreement of the Commissioner before offering remuneration above a certain amount to an APS employee (SES or non-SES). This amount is set at 65% of the base of the Secretaries classification structure as recommended by the Remuneration Tribunal.
3. SES Mobility
SES Redeployment Register
- The SES Redeployment Register facilitates the inter-agency redeployment of SES employees identified as displaced, or potentially displaced, who have expressed interest in continuing to work in the APS. The register is managed by the APSC Staffing Policy team.
- The register is a source of experienced SES employees available to transfer at level or to be considered for opportunities at lower classifications. Agencies can access CVs on the register and quickly make an initial assessment of whether the employee has the work-related qualities needed to fill the vacancy.
- Any information provided to the APSC is treated confidentially and affected SES, or agencies with an SES vacancy, may contact the APSC regarding the register (firstname.lastname@example.org).
- These arrangements complement the mechanisms set out in the APS Redeployment Policy and Guidelines.
Arrangements for agencies seeking to redeploy displaced SES employees
- Establish whether an employee wishes to participate in the process. If so, advise them that their details/CV will be provided to the APSC and may be made available to other APS agencies seeking to fill SES vacancies.
- Complete the Displaced SES Employee form (Appendix B), ensuring it is signed by both the employee and the agency head. This form asks for relevant personal details, an indication of recent relevant experience and an indication of the types of roles suitable for the displaced employee.
- Forward the form, together with the employee's CV, by email to email@example.com.
- Discuss with the employee the likely outcomes should redeployment not prove possible. These might include an incentive to retire payment under section 37 or ultimately termination under section 29 of the PS Act. In the latter context, it should be noted that participation in these redeployment arrangements would provide a firmer basis for the Commissioner to make an appropriate judgement, in accordance with section 38 of the PS Act, as to whether the termination of employment is in the public interest.
- Please advise the APSC by email to firstname.lastname@example.org when the employee is to be removed from the register.
Arrangements for agencies seeking to fill SES vacancies
- Where an agency seeks to fill a vacancy, they initially need to check the SES redeployment register for suitable candidates. To do this, they need to complete an SES Vacancy form (Appendix C) and send it with a duty statement, where available, to email@example.com.
- The APSC will assess the requirements of the vacancy against the skills and experience of any displaced employees who have been referred to the APSC, and forward the details of any potentially suitable employees to the agency undertaking the recruitment action.
- The agency will determine the potential suitability of any individual. An employee referred in these circumstances must be considered in isolation to establish their possible suitability.
- If an employee is considered potentially suitable, the agency may contact the employee and undertake an appropriate assessment of their claims (via appropriate interview or referee checks as necessary).
- If an employee is assessed as suitable and is willing to accept the position, the losing and gaining agencies may progress the movement in accordance with section 26 of the PS Act, section 37 of the Commissioner's Directions and the considerations in terms of reassignment and movement of SES employees.
- If an agency has considered the CVs of displaced employees on the SES redeployment register without finding a suitable candidate, the vacancy may be advertised on APSJobs.
- The general expectation is that SES employees will have a broad range of management and leadership capabilities and will possess the full range of skills required of most SES roles in the APS. The assessment of an individual's suitability for a role should be based on their skills, qualifications and/or their capacity to be trained to satisfactorily perform the required duties of the role, after a reasonable period of adjustment.
Assignment to a lower level
- In some circumstances SES employees can be moved to duties at a lower level in the SES or to a non-SES classification, either with or without the agreement of the employee. Consideration of such a move must be based on one or more of the reasons set out in section 23(4) of the PS Act.
- Consideration may need to be given to adjusting the agency's SES cap, particularly when the reclassified role is as a result of the SES role being abolished.
4. SES Separation
Termination of Employment
- An agency head may, under section 29 of the PS Act, terminate the employment of an employee, including an SES employee.
- Any decision to terminate an ongoing SES employee must be justified on one or more of the grounds set out in subsection 29(3) of the PS Act, which are:
- the employee is excess to the requirements of the agency;
- the employee lacks, or has lost, an essential qualification;
- non-performance, or unsatisfactory performance, of duties;
- inability to perform duties because of physical or mental incapacity;
- failure to meet a condition imposed under section 22(6), such as satisfying probation and/or citizenship requirements;
- breach of the APS Code of Conduct and APS Employment Principles; or
- any other ground prescribed by the Regulations (Note that no other grounds have been prescribed).
- It should be noted that section 37 deals with excess staffing situations at SES level, effectively providing a streamlined voluntary redundancy arrangement for the SES group. The APSC's position is that SES excess staffing situations are best dealt with under section 37, rather than using the termination power under section 29(3)(a).
- Under section 38 of the PS Act, an agency head cannot issue a notice of termination of an ongoing or non-ongoing SES employee unless the Commissioner has issued a certificate. That certificate will state that all relevant requirements of the Commissioner's Directions have been satisfied in respect of the proposed termination and the Commissioner's view that termination is in the public interest. An agency head contemplating termination of an SES employee must write to the Commissioner detailing the circumstances of the case and providing relevant support documentation.
- Section 29 of the PS Act requires a notice of termination to be in writing and, for ongoing employees, to specify the ground or grounds relied on for the termination.
- The Fair Work Act 2009 sets out entitlements that apply to termination of employment. Section 119 of that Act specifies the minimum entitlements payable to an employee whose services are no longer needed on the grounds that they are excess to requirements.
- With the exception of terminations that are as a result of a breach of the APS Code of Conduct, terminations are no longer to be notified in the Gazette. If a termination decision is on Code of Conduct grounds, it must be notified in the Gazette within three months after the decision is made in accordance with section 34(1)(e) of the Commissioner's Directions.
- SES employees may retire at any time after reaching age 55 by notice in writing to the agency head (section 30 of the PS Act).
Retirement with an incentive
- Section 37 of the PS Act allows an agency head to retire an SES employee with an incentive to retire payment. It is not an entitlement and is to be used only where the employee is genuinely excess or, due to changing job requirements, is no longer considered to have the skills required to perform at this level.
- Agency heads will need to ensure a balance between providing an offer that gives the employee sufficient incentive to retire and the need for responsible use of Commonwealth resources.
- Further guidance about incentive to retire payments is found on the Commission's website.
The following appendices are available as a MS Word document:
- Representative Certificate
- Displaced or potentially displaced SES employee form
- SES Vacancy form
Please submit the completed form(s), along with the employee's CV to firstname.lastname@example.org