The Senior Executive Service: Selection, mobility and separation

Introduction

Under the Public Service Act 1999 (PS Act), responsibility for employment decisions affecting the employees in an agency, including at SES level, rests with the relevant agency head. Such decisions must comply with the requirements set out in the PS Act and the various instruments issued under that Act, including the Public Service Regulations 1999, the Public Service Commissioner’s Directions 1999 (the Directions) and the Public Service Classification Rules 2000.

The first section of this document deals with procedural requirements relating to Senior Executive Service (SES) selection, engagement, promotion and mobility, including involuntary assignment to a lower level. The second part addresses retirement and termination issues, including retirement with an incentive.

Note that this document replaces booklet No. 2—The Senior Executive Service (SES)—issued by the former Public Service and Merit Protection Commission in 2001. It also incorporates advice issued by the Australian Public Service Commission (the Commission) prior to the date of issue.

1. Selection, engagement, promotion and mobility

1.1 Selection

Where a requirement for work to be performed at SES level is identified, agency heads will determine the most appropriate means to meet that requirement. These may include:

• temporarily assigning the duties to an existing employee; or
• permanently assigning the duties to an existing employee already at the classification level concerned; or
• commencing a merit selection exercise to test the field of applicants.

1.2 Advertising

All employment opportunities at SES level where the outcome may be

• engagement of a person as an ongoing SES employee
• promotion of an existing APS employee
• non-ongoing employment for a specified term or specified task for more than 12 months

must be notified in the APS Employment Gazette. They must also be notified in appropriate external media (which may include, for example, newspapers, magazines and the Internet) as required by Clause 6.3.1(b) of the Directions, unless the Public Service Commissioner (the Commissioner) agrees to a variation of this requirement.

Agency heads should note that how an SES vacancy is advertised will determine how it may be filled, for example if advertised as a non-ongoing vacancy the job can only be filled on a non-ongoing basis. An agency head may make an engagement or promotion decision based on the findings of a selection exercise up to 12 months following the date of advertising in the Gazette.

Note that the Commission no longer requires agencies to forward advice of proposed SES advertising, including copies of selection documentation sent to applicants. The Commission gathers sufficient advice on current SES vacancies from examination of entries in the APS Employment Gazette.

1.3 Selection advisory committees

A selection advisory committee (which will conduct a selection process aimed at considering the claims of all applicants against the selection criteria based on equity, open competition on merit, and natural justice) will be formed at the commencement of a selection exercise.

All SES selection advisory committees must include one member who will act as the Commissioner’s representative (Clause 6.3.1(c) of the Directions). Note that it is the recruiting agency’s responsibility to identify a suitable person to take on this role.

The Commissioner requires that the representative be substantively at a level above the duties being filled, i.e. for a Band 1 vacancy, a Band 2 employee will be required; for a Band 2 vacancy, a Band 3 employee will be required; and for a Band 3 vacancy, a Secretary or other APS agency head will be required. The Commissioner will consider exceptions to this general requirement, for instance where the process is being conducted in one of the States and there is not a readily available person at the required level. Agencies should seek the Commissioner’s agreement to the proposed representative as early in the process as possible. The representative should also be from outside the portfolio of the agency in which the SES duties exist.

The representative will be required, at the conclusion of the selection process, to certify that the selection exercise complied with the PS Act and the Directions (Clauses 6.3.1(c) and (d) of the Directions).

The Commissioner also expects all SES selection advisory committees will achieve an appropriate gender balance and must be consulted if an agency proposes to establish a committee which lacks such balance.

A selection advisory committee will typically consist of:

• three or more members in total;
• male and female members; and
• at least one member from outside the portfolio, who, subject to the Commissioner’s agreement, will act as a representative of the Commissioner.

Ideally, all members of the committee will be above the level of the vacancy concerned. Note that it is possible to have a two person committee.

The Commission will write to the chair of the selection advisory committee and to the Commissioner’s representative, outlining the Commissioner’s interests in the process and the particular role of the representative. The Commissioner’s representative will also be provided with the certification form for completion at the conclusion of the process, certifying that, in his or her opinion, the exercise fulfilled all requirements in terms of the legislation and the Directions. A copy of this form is provided for information at Appendix A.

1.4 Selection criteria

The basis of assessment of applicants for SES duties is the core SES selection criteria which are derived from the Senior Executive Leadership Capability Framework. These criteria are:

• Shapes Strategic Thinking
• Achieves Results
• Exemplifies Personal Drive and Integrity
• Cultivates Productive Working Relationships
• Communicates with Influence.

The criteria, with a range of capabilities relevant to them, are set out at Appendix B.

The core SES selection criteria apply equally to both Senior Executive and Senior Executive (Specialist) classifications. Where duties are classified as Senior Executive (Specialist), there will necessarily be additional criteria specifying the particular professional or technical capabilities required.

Where an agency believes it is necessary to include additional agency or job-specific criteria, the agency may add one additional criterion with no requirement to seek the approval of the Commissioner. Where two or more additional criteria are proposed, the agency will need to seek the agreement of the Commissioner before finalising the selection documentation.

1.5 Methods of assessment

Agencies are responsible for establishing the means used to assess applicants for SES vacancies, subject to the requirements of the PS Act and the Directions. These include the APS Values and Merit in Employment (Chapter 4 of the Directions).

In assessing applicants for SES vacancies, one approach has been to establish a selection advisory committee to make an initial assessment based on consideration of the written applications, leading to interviews of those considered to be worthy of further consideration. This is followed by a referee check on those applicants regarded as being in contention, with the committee making a final judgement on which applicants warrant being recommended to the agency head for promotion, engagement or transfer.

Alternative means of assessment are available, including assessment centre methodologies, structured application forms, self-selection tools and occupational testing. All assessment processes must, however, be overseen by the selection advisory committee, which is responsible for making a recommendation to the agency head.

1.6 Outcome of selection exercise

Following the completion of a selection exercise, the agency head will consider the conclusions reached by the selection advisory committee. There are several possible decisions the agency head might reach based on the committee’s recommendation:

• to engage a person from outside the APS on either an ongoing basis or for a specified term or a specified task;
• to promote an existing APS employee to the vacancy;
• to move an existing SES employee, at level, to the vacancy either temporarily or on an ongoing basis; or
• to defer any staffing action, due either to changed operational requirements or where the field of applicants has not produced a suitable candidate.

1.7 Public Service Commissioner’s role

Where the outcome of a selection exercise is that a person should be either engaged or promoted to the SES level concerned, the Commissioner’s endorsement of his or her representative’s certification of the process must be obtained before the agency head can execute an engagement or promotion to SES level (Clause 6.3(e) of the Directions). While not a specific requirement of the Directions, a similar protocol should be followed where the outcome of the process is a movement at level of an existing SES employee.

To this end, the agency head will need to provide the following documents to the Commissioner.

• a letter from the agency head requesting endorsement of the representative’s certification and setting out the action the agency head intends to take (i.e. promotion, engagement or movement at level);
• the selection committee’s overall report on the selection exercise, which would normally include details on the field of applicants, a comparative assessment (where required) and the committee’s recommendation;
• the papers relating to the recommended person(s), including the individual assessment, referee reports and application(s); and
• the Commissioner’s representative’s certification form.

1.8 Engagement

Where the preferred applicant in an SES selection exercise is from outside the APS, the relevant agency head may engage the person under section 22 of the PS Act.

The person may be engaged as an ongoing SES employee, or as a non-ongoing employee for a specified term of up to five years or a specified task for the duration of that task. Any conditions to be imposed must be specified at the time of engagement (or earlier).

Where 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. Public Service Regulation 3.4 details the periods that an SES employee may be engaged for and provides the authority for extension of such an engagement, provided that the total term of engagement for a specified term does not exceed five years.

Where a person is to be engaged for a specified term, it is recommended that agencies include in the employee’s employment arrangement (e.g. industrial instrument, determination or contract) suitable provision covering compensation in the event of termination of the engagement before the agreed end date. A suggested formula, in the event of early termination, is that the employee will receive one-third of one month’s salary for each full month of service forgone, with the minimum amount payable being four months salary and the maximum amount being twelve months salary. This would normally only apply in cases where the early termination is outside the control of the employee (for example where the work is no longer required to be performed or is completed ahead of time). It should not apply in the event of termination due to underperformance or a breach of the Code of Conduct.  

Non-ongoing engagement for no more than 12 months

The Directions were amended in 2008 to make clear that agency heads possess the capacity to engage at SES level for 12 months or less without having to complete a full merit selection process, as they can for non-SES classifications. This capacity enables agencies to meet short term staffing requirements in a timely and efficient manner.

Limitations on the engagement of persons who have received a redundancy benefit

There are arrangements in place in the Australian Public Service (APS) which may limit the subsequent employment of people who have received a redundancy benefit from their previous employer. For more detail on these arrangements see www.apsc.gov.au/employmentpolicy/reengageredundancy.htm

1.9 Promotion

Where a successful applicant is an existing ongoing employee at a lower classification level than the vacancy being filled, the agency head may, under section 25 of the PS Act, assign to that person duties at the SES level concerned. This constitutes a promotion.

In the case of a successful applicant for promotion who is an employee in a different APS agency, the agency head may, under section 26 of the PS Act, enter into an agreement with the employee to move to the promoting agency. The agency head may then assign duties to the employee under section 25 of the PS Act to effect the promotion.

Where an agency head decides to use an existing selection process to promote or engage an SES employee, and the process has previously been endorsed by the Commissioner under Public Service Direction 6.3(1)(e),  there is no further formal role for the Commissioner under the Act or the Directions. Agency heads should still advise the Commissioner of the proposed action and consider any views the Commissioner might have. To this end, an agency head should write to the Commissioner on such proposals, and provide any relevant papers.

1.10 Reassignment and mobility

An agency head may decide that it is most appropriate to meet an SES staffing requirement through the movement of an existing SES employee already at the same classification level to those duties. This decision may be reached as the result of a selection exercise where the committee has identified an employee at the appropriate level as the most suitable candidate. Equally, it may occur as part of an agency’s regular assessment of staffing allocation and involve the movement of a number of SES employees to different SES duties within the agency.

In effectively deploying SES employees, an agency head may decide on such reassignment of duties at any time. In reaching such a decision, an agency head is required to consult with the employee concerned and seek their views (Clause 6.4(a) of the Directions).

In the case of movements between agencies, recognising the broad management functions and the central role played by SES employees in achieving organisational objectives, the agreement of the losing agency head must be obtained before the move can proceed (Clause 6.4(b) of the Directions).

To assist in monitoring SES deployment and as required by Directions Clause 6.4, agencies should send notification to the APS Employment Database (apsed@apsc.gov.au) of all SES movements once finalised.

1.11 Temporary movement

Where the outcome of a selection exercise results in the selection of an ongoing APS employee to undertake the SES duties for a temporary period, the relevant agency head would effect the action under section 25 of the Act, specifying the period involved. If the selected employee is from a different agency, action under section 26 of the PS Act would also be involved, and the head of the agency from which the employee is moving must be consulted.

If that agency head consents to the temporary movement, the agreement to allow the employee to return should be documented in writing, as agreed between the agencies concerned, to ensure the situation is clear to all parties. If the current agency head does not agree to the temporary move, it cannot proceed.

In cases where temporary movement of an employee is the result of an SES selection exercise, the Commissioner’s endorsement of the representative’s certification is not required. Agencies should, however, advise the Commissioner of the outcome.

In relation to the implications of Machinery of Government changes on employees undertaking temporary movement between agencies, reference should be made to the publication Implementing Machinery of Government Changes.

1.12 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 (including higher 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 specified task, or reassignment of the duties to another employee for the required period.

Depending on the duration of the requirement, consideration should be given to the extent to which it might be appropriate to notify the vacancy (see 1.14 below). The final decision on this aspect rests with the agency head concerned.

1.13 Redeployment or involuntary assignment to a lower level

Mobility can also include movement of SES employees 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 and in Clause 6.6 of the Directions.

These grounds include:

• the employee is excess to requirements;
• the employee lacks, or has lost, an essential qualification;
• non-performance, or unsatisfactory performance, of the employee’s duties; or
• inability to perform duties due to physical or mental incapacity.

Before actions are taken to effect a decision to reduce the classification of an SES employee, the employee must be advised on possible options for reassignment, both at level and to a lower level. The reduction action is effected by the agency head, determining under section 25 of the PS Act the new duties the employee is to perform at the lower classification.

1.14 Gazettal requirements and dates of effect

All vacancies at SES level for ongoing employment, or for non-ongoing employment for a specified term or specified task of more than 12 months, must be notified in the APS Employment Gazette. An SES selection exercise remains current for 12 months from the date the employment opportunity is notified in the Gazette.

Where an employee is to be promoted to an SES classification, that promotion must be notified in the APS Employment Gazette in order for it to become effective. A promotion becomes effective four weeks after notification in the Gazette, unless agreement is reached between the relevant parties on an earlier or later date. The Commissioner would expect a promotion decision to be finalised, and the promotion effected, as soon as possible, and at least within 12 months of the Commissioner having endorsed the representative’s certification of a selection process.

Engagements, whether ongoing or for a specified term or specified task, should also be notified in the Gazette, in order to establish the outcome of selection exercises for advertised vacancies.

Movements of SES employees at level to SES duties that have been advertised must be notified in the Gazette.

2. Retirement and termination

2.1 Age retirement

SES employees have the same options regarding age retirement as non-SES employees. That is, they may retire at any time after attaining age 55 (section 30, PS Act).

2.2 Retirement with an incentive

Section 37 of the PS Act gives agency heads the power to offer an ongoing SES employee the opportunity to retire with an incentive.

The Commissioner’s Directions on retirement with an incentive set the minimum requirements that must be met (Clause 6.7 of the Directions). These include:

• the employee has been given information about available options for reassignment, including assignment to duties at a lower classification level;
• the employee has been given access to financial advice and career counselling; and
• the Commissioner has agreed to the amount to be paid as an incentive to retire.

The amount to be paid as the incentive to retire will be a matter for negotiation between the agency head and the SES employee concerned. In general, the standard APS redundancy formula may be appropriate, namely two weeks of salary per year of service, to a maximum of 48 weeks of salary, plus an amount ‘in lieu of notice’ of 4 or 5 weeks salary.

An employment arrangement should not bind the Commissioner to a certain level of payment for redundancy or retrenchment and as such should be silent on the quantum of the payment. As this incentive to retire provision requires the agreement of the individual SES employee, industrial agreements or contracts applying to SES employees should continue to include provisions that make it clear that the employee may be redeployed to other duties, including at a lower level, or have their employment terminated without their agreement on the grounds that they are excess to an agency’s requirements. However, it is inappropriate for SES industrial agreements or contracts to include provisions which provide a redundancy benefit or similar type of payment to persons whose employment is terminated involuntarily under section 29 of the PS Act. Similarly SES industrial agreements or contracts should not include retention arrangements for excess SES employees. 

The Commissioner, in considering a request to agree to the amount proposed expects all relevant factors to be taken into account, including whether the SES employee will, on retirement, have access to significant superannuation entitlements. Where such factors are considered to be significant, it may therefore be appropriate to discount the amount derived from the formula, by up to 50%. Each case is considered on its merits, and there may be circumstances applying which could justify a different outcome, and agencies should frame requests to the Commissioner accordingly.

Sample letters are included in the appendices indicated to assist agencies:

• letter from agency head to Commissioner (Appendix C). This is an example that agency heads should adapt to the particular circumstances applying, including the amount proposed as a benefit, the calculation sheet, and the anticipated date of retirement.
• letter of offer to SES employee under section 37 of the PS Act (Appendix D)
• letter of acceptance of offer under section 37 (Appendix E). 

In cases where an offer to retire is not agreed to by the SES employee concerned, the agency head will need to assess what other options might be appropriate, such as consideration of possible reassignment of duties, reduction in classification level or termination.

2.3 Termination

An agency head may, under section 29 of the PS Act, terminate the employment of an employee, including an SES employee.

Clause 6.8 of the Directions on termination of SES employees requires that:

• an assessment be made, having due regard to procedural fairness, that the termination is justified on the basis of one or more of the grounds mentioned in subsection 29(3) of the Act; and
• the employee be provided with full information about other employment in the agency that the agency head considers could be made available to the employee.

Any decision to terminate an ongoing SES employee must be justified on one or more of the grounds mentioned in subsection 29(3) of the PS Act, which are:

1. the employee is excess to the requirements of the agency;
   • It should be noted that, given the availability of section 37 to deal with excess staffing situations at SES level, effectively providing a streamlined voluntary redundancy arrangement for the SES group, it remains the Commission’s position that SES excess staffing situations should be dealt with under that provision, rather than using the termination power under section 29(3)(a).
2. the employee lacks, or has lost, an essential qualification;
3. non-performance, or unsatisfactory performance, of duties;
4. inability to perform duties because of physical or mental incapacity;
5. failure to meet a condition imposed under section 22(6), such as satisfying probation and/or
   citizenship requirements;
6. breach of the Code of Conduct; or
7. any other ground prescribed by the Public Service Regulations 1999.
   • No other grounds have been prescribed by the Regulations

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 stating that all relevant requirements of the Directions have been satisfied in respect of the proposed termination and that the Commissioner is of the opinion that the termination is in the public interest. An agency head contemplating the termination of an SES employee should write to the Commissioner detailing the circumstances of the case and providing relevant supporting documentation, requesting that the Commissioner consider issuing the necessary certificate under section 38.

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 termination must also be notified in the Gazette in accordance with Regulation 3.12.

Appendix B
SES core selection criteria

The capabilities outlined under each of the main headings are not in themselves additional criteria and it is not intended that applications and assessments should address each and every capability. Applicants should frame their applications, and selection advisory committees should assess those applications, against the selection criteria, taking account of particular capabilities where they have been identified as relevant to the duties being filled.

Criterion: Shapes strategic thinking

Relevant capabilities:

• Inspires a sense of purpose and direction
• Strategic focus
• Ability to recognise opportunities, harness information
• Shows judgement, intelligence and common sense

Criterion: Achieves results

Relevant capabilities:

• Organisational capability
• Professional expertise
• Implements change
• Ability to clarify ambiguities
• Closure and delivery

Criterion: Exemplifies personal drive and integrity

Relevant capabilities:

• Professionalism and probity
• Risk-taking and personal courage
• Action orientation
• Resilience
• Self awareness
• Commitment to personal development

Criterion: Cultivates productive working relationships

Relevant capabilities:

• Nurtures internal and external relationships
• Facilitates co-operation and partnerships
• Values differences and diversity
• Guides, mentors and develops people

Criterion: Communicates with influence

Relevant capabilities:

• Communicates clearly
• Listens, understands and adapts to different audiences
• Negotiates persuasively