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Last updated: 25 February 1998

Advice to Agencies: APS employment reform - setting the framework (Circular No. 1998/2)

Please note: These documents are for reference purposes only and are no longer considered by the APS Commission to be current. They may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

Introduction

On 8 December 1997, the then Public Service Commissioner wrote to the Heads of all agencies staffed under the Public Service Act 1922 advising that the Government had rejected outright the amendments passed by the Opposition parties in the Senate to the Public Service Bill 1997 and associated legislation. The Commissioner advised that he had been instructed by the Minister Assisting the Prime Minister for the Public Service, the Hon. Dr David Kemp MP, to seek the continuation of the reform process by other means and he foreshadowed some of the reforms which would be proceeding.

Purpose of Circular

2. The purpose of this circular is to advise agencies of changes which are being made to implement aspects of the Government's policy as set out in the Public Service Bill 1997. In particular, the changes are seeking:

1. to improve the accountability framework;
2. to remove central control and prescription to the maximum extent; and
3. to devolve more management powers to Agency Heads.

3. Where relevant, the circular also draws attention to some of the flexibilities already available under the current employment framework.

Workplace Relations Act 1996

4. The Minister also encouraged APS agencies to use the flexibilities available under the Workplace Relations Act 1996 (WR Act) to continue to pursue workplace reform. The then Secretary of the Department of Workplace Relations and Small Business (DWRSB) wrote to all Agency Heads on 18 December 1997 about this matter, indicating that much has already been achieved in those agencies where agreements have been finalised.

5. The changes advised in this circular complement the flexibilities available under the WR Act, and provide increased scope for agencies to tailor provisions in their agreements to their own needs.

Summary of Changes

6. The changes set out in this circular have been achieved by a range of measures including:

• amendments to the Public Service Regulations made under the Public Service Act 1922 and the repeal of certain regulationsthese changes are subject to s.48 of the Acts Interpretation Act 1901;
• the revocation of Commissioner's instructions under s-sec 76X(1) of the Public Service Act 1922;
• the variation of certain s.33A Notices under that Act (full text in a special Gazette dated 25 February 1998); and
• the delegation of further powers under that Act to Agency Heads.

7. While these changes cannot achieve all the changes to the employment framework that would have been possible had the Public Service Bill 1997 become law they nevertheless represent a significant step in the Government's reform agenda.

8. The changes (as well as some of the flexibilities currently available) are set out under the following subject matter headings:

1. APS values
2. APS Code of Conduct
3. Public interest whistleblowing
4. State of the Service report
5. Workplace diversity
6. Appointment and probation (non-SES)
7. Advertising of non-SES vacancies
8. Temporary performance of higher duties

10. Qualifications and base grade recruitment
11. Promotion and transfer
12. Short-term employment
13. Managing poor performance
14. Senior Executive Service (SES)
15. Compulsory age 65 retirement for non-SES staff
16. Part IV mobility
17. Discretionary payments to APS staff
18. Simplification of terms and conditions
19. Agreement-making
20. Human resource benchmarking
21. Other issues

Parliamentary Departments

9. Consistent with the proposed separate legislation for the Parliamentary Departments, none of the changes outlined in this circular apply to those Departments.

Attachments

10. Attachments are:

A APS values
B APS Code of Conduct
C Public interest whistleblowing
G1 Notification and determination under section 33A
G2: Eligibility to apply for vacancies notified for officers only in the Gazette
J1: Advancement provisions for new APS classification structure training offices
J2: Training classifications where centralised recruitment arrangements apply
L: PSMPC instructions on selection of short-term employees and for keeping of registers
M1: Direction under section 76X(1) of the Public Service Act 1922
M2: Direction under section 76X(2) of the Public Service Act 1922
P1: List of Commonwealth offices to be excluded from Part IV of the Public Service Act 1922
P2: List of Commonwealth authorities to be excluded from Part IV of the Public Service Act 1922
Q: Special payments to staff
T: Human resource benchmarking additional guidance material
U: Regulations repealed .

A. APS Values

11. The Public Service Regulations have been amended to incorporate the APS Values (r.5) as they were set out in the Public Service Bill 1997 (third reading in the House of Representatives).

12. The text of the APS Values is at Attachment A. These Values replace those that were contained in the publication Building a Better Public Service published in July 1993 by the Management Advisory Board (MAB).

13. An APS employee will be required to behave at all times in a way that upholds the APS Values (s-reg 7(11) in the APS Code of Conduct).

14. In addition, Agency Heads will be required to uphold and promote the new APS Values (r.6) and will be required to report to the Public Service Commissioner on the extent to which they are being upheld within their agency. These reports will be evaluated in the Commissioner's annual State of the Service Report (see Part D of this circular).

15. There is also the separate obligation on those Agency Heads who are subject to the Financial Management and Accountability Act 1997 (FMA Act) to manage the affairs of the Agency in a way that promotes the efficient, effective and ethical use of Commonwealth resources (s-sec 44(1)of the FMA Act). This Act and other reform initiatives highlight the need to manage risks and shape internal control systems to help maximise performance (see ANAO report The Better Practice Guide to Effective Control).

16. The definition of merit that was added to the Values in the third reading version of the Bill has not been included in these amendments. There are already, in effect, a number of definitions of merit in the 1922 Act and none of these definitions can be superseded by the regulations.

Additional guidance material

17. Essentials Booklet No 3: APS Values and Standards of Conduct should be read subject to the changes set out above.

18. A new booklet is being prepared on the application of the APS Values it is expected to be available in April 1998.

Contact Officer

19. Contact officer: Mary Reid, Values, PSMPC, (02) 6272 3669.

B. APS Code of Conduct

20. The Public Service Regulations have also been amended to incorporate the APS Code of Conduct (r.7) as it was set out in the Public Service Bill 1997 (third reading in the House of Representatives). The text of the APS Code of Conduct is at Attachment B.

21. The new Code of Conduct reproduces the 12 operative sub-clauses of the Code of Conduct contained in the Public Service Bill 1997. In addition the new Code in the Regulations

• omits the final sub-clause in the Bill which allowed for further requirements to be added in the regulations
• but adds another sub-regulation that is to the same effect as the repealed r.35, (prohibiting the unauthorised disclosure of official information)this new s-reg will support the operation of s.70 of the Crimes Act 1914.

22. Secretaries are bound by the Code in the same way as officers and employees. Except for Locally Engaged Staff overseas, all officers and employees will be covered by the Code.

23. A number of existing regulations have been repealed which are superseded by the new Code. These are regulations: 8A, 8B, 13, 35, 36, 37, 38, 39.

24. The power that was formerly available to Agency Heads under repealed s-regs 37(2)-(7) to allow certain gifts to be received under particular circumstances will now be exercisable under the general management power of Agency Heads in s-sec.25(2) of the 1922 Act (see also new r.5).

25. The introduction of an identifiable Code of Conduct provides a more straight forward way of establishing whether or not misconduct may have occurred, in terms of ss.55 and 56 of the 1922 Act. While a discipline process will not be triggered until a person appears to have failed to fulfil their duty, the definition of misconduct in para 56(f) of the 1922 Act includes the contravention of, or failure to comply with, 'a provision...of the regulations'. This paragraph of s.56 of the 1922 Act allows a breach of the Code of Conduct to be a sufficient basis on which to commence a discipline process. This does not, of course, preclude the use of any other paragraph of s.56 as the basis on which to commence discipline proceedings, if that is considered appropriate in the circumstances.

Transitional Arrangements

26. Any discipline proceeding in relation to conduct before the commencement of the new Code of Conduct must be based on the law as in force at the time of the conduct, ie, s.56 of the 1922 Act and the regulations that are now repealed.

Additional Guidance Material

27. Essentials Booklet No.3: APS Values and Standards of Conduct should be read subject to the changes set out above.

28. A booklet with frequently asked questions and answers about the new Code will be issued in April 1998.

29. In addition, there will be a revision of the Guidelines on Official Conduct, taking into account the new arrangements. This is expected to be available in final form in May (following consultations). The 'overseas' chapter is expected to be available earlier.

Contact Officer

30. Contact officer: Mary Reid, PSMPC, (02) 6272 3669.

C. Public Interest Whistleblowing

31. Another amendment of the Public Service Regulations will provide a legal framework within which APS officers and employees can raise allegations that the APS Code of Conduct (as set out in new regulations) has been breached.

32. The new regulations provide protection against victimisation and discrimination for officers and employees reporting breaches (or alleged breaches) of the Code and set minimum requirements for the procedures that an Agency Head must establish for the reporting and investigation of breaches (or alleged breaches) of the Code.

Agency Procedures

33. The Agency procedures must (new r.11):

1. have due regard to procedural fairness and comply with the Privacy Act 1988;
2. provide that officers or employees may report breaches (or alleged breaches) of the Code of Conduct to the Agency Head (or to a person authorised by the Agency Head for the purposes of the regulation);
3. provide that, if the Public Service Commissioner agrees that a report relates to an issue that would be inappropriate to report to the Agency Head, the officer or employee may make the report to the Public Service Commissioner (or to a person authorised by the Commissioner for the purposes of the regulation);
4. ensure that all reported breaches (or alleged breaches) of the Code made by officers or employees are investigated, unless the Agency Head or the Public Service Commissioner considers that a particular report is frivolous or vexatious;
5. provide information about the protection available to persons making reports under this regulation;
6. enable officers and employees who are not satisfied with the outcome of an investigation by the agency to refer the issue to the Public Service Commissioner (or to a person authorised by the Commissioner for the purposes of the regulation); and
7. ensure that the findings of an investigation are dealt with as soon as practicable.

Role of Inspector-General of Intelligence and Security

34. The Inspector-General of Intelligence and Security is able, among other things, to investigate complaints from employees of the Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Defence Signals Directorate (DSD), Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA) about corrupt or unethical behaviour in those organisations.

35. Any complaints of breaches(or alleged breaches) of the APS Code of Conduct relating to illegality or impropriety in any agencies which the Inspector-General oversees should be referred to that Office. Matters relating to APS staffing or employment should be dealt with as outlined above (paras 30 to 32 of this circular).

Transitional Arrangements

36. The framework provided by the new regulations will apply to any allegation raised in accordance with the regulations, after their commencement, in relation to conduct that is alleged to be a breach of the APS Code of Conducti.e, the conduct must have occurred after the commencement of the new Code. Additional Guidance Material

37. The PSMPC publication, Provisional Advice to Agencies: No.1 Public Interest Whistleblowing, which was distributed in November 1997, has been updated to assist Agency Heads in establishing procedures for investigation of complaints/disclosures within their agency (see Attachment C).

Contact Officers

38. Contact officers:

- Mary Reid, PSMPC, (02) 6272 3669.
- for matters relating to the role of the Inspector-General of Intelligence and Security: Office of the Inspector-General of Intelligence and Security, (02) 6271 5692.

D. State of the Service report

39. A key part of the improved accountability arrangements in the Public Service Bill 1997 was to be an annual report by the Public Service Commissioner to the Parliament on the state of the APS. The Government has decided to proceed with this report, and the Public Service Regulations are being amended accordingly (new r.12).

Purpose of Report

40. The overall purpose of the State of the Service Report is:

1. to maintain public confidence in the integrity and accountability of the APS;
2. to nurture a culture of performance and continuous improvement within APS agencies;
3. to encourage agencies to take pride in their achievements; and
4. to contribute to a more positive image of the APS as one which is composed of creative and high performing organisations which work together to add value to the government of the day.

Content of Report

41. It is intended that the State of the Service Report include:

• an evaluation of the extent to which the APS has maintained the appropriate standards of public administration, including in the area of managing workplace diversity;
• distinct themes from year to year which may serve to highlight significant issues for the future of the APS;
• recognition of good practice initiatives in the management of APS staff, in particular illustrating and supporting any themes adopted in any year; and
• a statistical analysis of trends in the size, structure and composition of the APS.

42. The qualitative and quantitative performance information collected for the first report will establish a baseline against which we will measure and track performance over time.

43. The first State of the Service Report will be produced in October 1998, covering the 1997-98 financial year.

Additional Statistical Material

44. Over recent years statistical information on APS employment has been produced at six monthly intervals, in printed form. From this year the PSMPC will produce limited data on a more regular basis:

1. This will be published, initially quarterly, in leaflets entitled APS at a Glance providing a brief statistical overview of the APS.
2. As well, the annual State of the Service Report will include detailed statistical information of the kind previously published each six months.

45. As a part of its continuous improvement process, the PSMPC is moving towards disseminating statistical information in different formats.

• The PSMPC now publishes quarterly statistical information on the internet.
• The PSMPC will also be trialing the publication of data on APS employment on CD ROM, which will allow agencies to undertake their own analyses using PSMPC data.

Contact officers

46. Contact officers:

• for the State of the Service Report: PSMPC, (02) 6272 3411.
• for clarification of the PSMPC's data requirements for the Report: PSMPC, (02) 6272 4587.
• for statistical information on APS employment: Michael Hassett, PSMPC (02) 6272 5038.

E. Workplace diversity

47. The Public Service Commissioner's Guidelines Managing Workplace Diversity were launched by the Minister, the Hon. Dr David Kemp MP, on 10 February 1998. These Guidelines require each APS agency to establish a Workplace Diversity Program for that agency.

Importance of workplace diversity

48. The diversity of those who work in the APS is one of its great strengths.

49. To manage that workplace diversity well we will have to create an inclusive environment that recognises the benefits of, and utilises, the contributions of people of different backgrounds, experiences and perspectives:

• Diversity relates to gender, age, language, ethnicity, cultural background, age, sexual orientation, religious belief and family responsibility.
• Diversity also refers to the myriad ways we are different in other respects such as educational level, job function, socio-economic background, personality profile, geographic location, marital status and whether or not one has carer responsibilities.
• All organisational policies, practices and processes that impact on the lives of employees need to recognise the potential benefits that can be derived from having access to a diversity of perspectives and to take account of that diversity when managing the workplace.
• Work systems, organisational structures, performance appraisal schemes, recruitment and selection practices and career development opportunities all impact upon the management of diversity.

50. The Commissioner's Guidelines Managing Workplace Diversity will include maintenance of the basic principles of the Equal Employment Opportunity (EEO) provisions of the Public Service Act 1922. Workplace Diversity Programs will include current EEO requirements. To that end, Workplace Diversity Programs will need to include measures to remedy any employment related disadvantages of women, Aboriginal and Torres Strait Islander people, people of non-English speaking background and people with disabilities.

51. Workplace diversity goes beyond rectifying disadvantage by emphasising the positive contribution a diverse workforce, one that broadly reflects the Australian community that the APS serves, can make to improving productivity and generating new ideas and ways of doing things.

Role of the Public Service Commissioner

52. It is proposed that the Public Service Commissioner will:

• develop an analytical framework for the purpose of making a comparative assessment of agency performance;
• make the comparative assessment of the effectiveness and outcomes of agency Workplace Diversity Programs on the basis of centrally collected data as well as information which Agency Heads must provide; and
• report annually on this assessment in the Commissioner's annual State of the Service Report (see material at Part D of this circular).

Role of the Agency Head

53. Agency Heads will be required to establish Workplace Diversity Programs by August 1998. They will be required to evaluate and report on the effectiveness of their Programs through their annual reports as well as to provide information to the Commissioner for the annual State of the Service Report.

Legislative Framework

54. The key elements of the legislative framework underpinning EEO are s.22B of the Public Service Act 1922 concerning EEO programs, and ss.33 and 50A of that Act concerning the application of the merit principle. In particular, s.22B of the 1922 Act requires agencies to put in place EEO programs for four EEO groups: women, Aboriginal and Torres Strait Islander people, people with disabilities and people from non-English speaking backgrounds.

55. The APS is also bound by the Human Rights and Equal Opportunity Commission Act 1986, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 which, among other things, prohibit discrimination:

• in employment;
• in access and opportunities for promotion, transfer, training or other employment associated benefits; and
• in the terms or conditions on which employment is offered.

56. The WR Act also aims to help prevent and eliminate discrimination

• in the making of awards and agreements; and
• in the termination of employment on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

57. The development and implementation of programs to manage workplace diversity effectively will continue through:

• s.22B of the 1922 Act on EEO matters;
• the other legislation referred to above; and
• the Government's policy decision on workplace diversity matters that extend beyond EEO (see above).

58. To draw on the legal support that is available from s.22B the new instructions have been issued by the Public Service Commissioner as 'Guidelines', the term used in s.22B of the 1922 Act.

59. The EEO Guidelines issued in January 1990 have been revoked for APS agencies other than the Parliamentary Departments. Special Measures

60. Paragraph 33(4)(b) of the Public Service Act 1922 permits the declaration by regulation of special programs to encourage the appointment to the Service of women and members of the designated groups. Subregulation 71B(1) previously prescribed four specific recruitment programs for Indigenous Australians:

• the Aboriginal Cadetship program,
• the Aboriginal Technical Traineeship program,
• the Graduate Administrative Assistant (Aboriginal Services) program, and
• the Administrative Services Office (Aboriginal Services) Class 1 program.

61. The replacement s-reg.71B(1) does not prescribe specific programs. Rather, it enables agencies to develop their own special programs to recruit Indigenous Australians, taking into account their particular organisational structure, labour market and business goals. While the new reg 71B(1) will continue to encompass the specific service-wide programs listed in the previous subregulation, agencies will need to establish their own indigenous base grade and graduate recruitment programs as they move to the new classification structure under a Certified Agreement. However, they will continue to be able to access the centralised base grade and graduate recruitment system, administered by Recruitment Services Australia, to fill their new programs.

62. Indigenous recruitment programs are consistent with the 'special measures' provisions of the Racial Discrimination Act 1975. They will continue to be subject in all other respects to the merit principle as it relates to appointment to the APS, including the prohibition of patronage and favouritism, the requirement for eligible applicants to be given a reasonable opportunity to apply and the requirement for appointments to be made on the basis of an assessment of the relative suitability of applicants.

Transitional Arrangements

63. Transitional arrangements were foreshadowed in a PSMPC flyer dated 15 September 1997.

64. As was then mentioned, all substantive legal obligations under the 1922 Act must continue to be met. Within that context:

• Current EEO programs should continue in agencies until they are replaced by Workplace Diversity Programs.
• Agencies should maintain their monitoring and reporting systems so that they can meet their current responsibilities, preserve continuity of support for EEO and provide a basis for diversity reporting under the new guidelines.
• Agencies which implement a Workplace Diversity Program prior to the required date (August 1998) should adjust their monitoring and reporting systems to enable them to report on the Program in their Annual Report.

Application of Reforms to Non-APS Commonwealth Agencies

65. Some non-APS Commonwealth agencies have EEO arrangements that involve the Public Service Commissioner: under s-secs.22B(13) or (14) of the Public Service Act 1922 (see also Schedule 1AA of the Public Service Regulations); or under s.8 of the Equal Employment Opportunity (Commonwealth Authorities) Act 1987.

66. The question of the application of the workplace diversity reforms to these agencies is to be the subject of separate consultations between the PSMPC and the agencies concerned.

Additional Guidance Material

67. The Public Service Commissioner's Guidelines, Managing Workplace Diversity were launched on 10 February 1998.

68. A practitioner handbook will be issued in March. The handbook will provide more detail to agencies in developing, implementing, reviewing and reporting on Workplace Diversity Programs.

69. See also Workplace Diversity: http://www.apsc.gov.au/employmentpolicy

Contact Officers

70. Contact officers:

• for general workplace diversity issues: PSMPC, (02) 6272 3041.
• for their application to non-APS Commonwealth agencies:PSMPC, (02) 6272 3315.
• for indigenous recruitment policy: PSMPC, (02) 6272 3315.
• for the role of Recruitment Services Australia in indigenous recruitment: DEETYA (02) 6240 7337.

F. Appointment and probation (non-SES)

71. No changes have been made to the appointment and probation arrangements set out in the Essentials Booklet No 5: Appointment and Probation, PSMPC, May 1997, which is still current.

Current Flexibilities

72. Agency Heads are currently fully empowered by delegation from the Public Service Commissioner to make appointment and probation decisions about all their staff, except in relation to:

• SES appointments (see Part N of this circular); or
• situations where applicants for positions have received a voluntary redundancy from the Commonwealth within the past 12 monthssee PSMPC Circular 1992/18.

73. This means that, subject to any Agency Head guidance, managers in APS agencies are able to make decisions on the following:

• whether to apply a period of probation to someone being appointed;
• how long any period of probation should be (within the maximum set out in the Act and subject to decisions of the Australian Industrial Relations Commission (AIRC) (see paras 74 and 75 below), having regard to the type and level of position; and
• the most appropriate medical examination arrangements for new appointees.

74. The appointment of new staff and the management of the probationary arrangements that apply are key steps in ensuring the successful recruitment and integration of new staff into the organisation.

Length of Probation Period

75. A major issue that arises is how long should the probationary period be? Good practice suggests that six months may in most cases be a reasonable period in which to assess a person's suitability for employment. However, this will vary depending on the circumstances of each individual case.

76. One factor that is relevant in deciding the appropriate length of a probationary period is that, under the Workplace Relations Regulations (r.30B), a probationary period will not be covered by the termination of employment provisions of the WR Act where the maximum duration of such a period is determined in advance and:

• is 3 months or less, or
• where longer than 3 months, is reasonable having regard to the nature and circumstances of the employment.

Communication with Employees

77. In managing probation flexibly, it is important that the probationary arrangements are clearly communicated to new employees. This ensures that both staff and managers understand what is involved. Managers can determine how regularly probationary assessments are made.

Additional Guidance Material

78. The current PSMPC guidance material in relation to probation is:

• Essentials publication No 5: Appointment and Probation, PSMPC, May 1997; and
• Principles, Guidelines and Good Practice: Probation, PSC, 1995.

79. Two particularly relevant cases on probation heard under the termination of employment provisions of the WR Act are:

• Fischer v Commonwealth of Australia, (1995) 631R401; and
• Potter v ACT (1997) 968FCA.

Contact Officers

80. The contact officer for probation issues other than the termination provisions of the WR Act is Leon Sewell, Managing Performance Team, PSMPC, (02) 6272 3528.

81. The contact officer regarding the termination of employment provisions of the WR Act is Elen Perdikogiannis, Legal Services Group, DWRSB, (02) 6243 7574.

G. Advertising of non-SES vacancies

82. The advertising of vacancies to be filled by appointment and promotion is governed by the Public Service Act 1922 and instruments made under that Act:

• Section 50 of the 1922 Act requires advertising in the Gazette of vacancies to be filled by promotion subject to the prescribed circumstances listed in r.112.
• In accordance with s.33A of the 1922 Act, the Public Service Commissioner can, by publication in the Gazette, notify, among other things the manner in which applications for appointment to the APS will be invited.

83. The notification made under s.33A of the Act on 26 September 1996 in relation to advertising requirements has been revoked and replaced by a new notification which comes into effect on 15 March 1998. The relevant notice is being gazetted on 25 February 1998 and the substance of the text is reproduced at Attachment G1. This notice also replaces the notification under s.33A of 3 February 1998 gazetted on 12 February 1998.

Advertising by Agencies

84. Each agency is responsible for advertising and filling its own vacancies.

85. There is no longer a requirement for agencies to use the centralised recruitment programs conducted by Recruitment Services Australia (RSA) for Trainee Administrative Service Officers (TASO), Administrative Service Officers (ASO) Grade 1 and Graduate Administrative Assistants (GAA) or the equivalent classifications in the new APS classification structure. However, if agencies choose to use RSA, appropriate advertising will need to be negotiated with RSA. (See Part J of this circular for amendments to base grade recruitment).

86. Agencies are now only required to advertise vacancies in the Gazette:

• Any other advertising (including overseas advertising) is subject to agency discretion, bearing in mind the Government's intention to make the widest range of APS jobs open to outside applicants.
• If a decision is made to advertise outside in addition to the Gazette notice, then all advertising must be, as far as possible, concurrent (eg Thursday Gazette notice with other advertising on following Saturday).

87. With the introduction of the new APS eight level classification structure, agencies are able to use their own titles to describe local adaptations of the structure, or better target recruitment. While there are no restrictions regarding the use of local titles, the appropriate formal APS classification level must appear in all advertising material, eg 'Customer Service Manager (APS 6)', or, in the case of a broadbanded classification, 'Accountant (APS 4/5)'.

88. Agencies may indicate in the advertisement that there are mandatory qualifications or conditions (see Part J of this circular dealing with changes to qualifications and other requirements) if such qualifications or conditions:

• have been prescribed by the Public Service Commissioner; or
• have been gazetted by the advertising agency.

Access to Vacancies and Closing Dates

89. From 15 March 1998, in line with Government policy to open up entry to the APS, and thus ensure that all appointments are based on merit, all permanent positions advertised in the Gazette will be open to all Australians subject to the current eligibility requirements, relating to citizenship, health, security clearance etc.

90. The only exception to this is if the Agency Head decides on the grounds of cost or operational efficiency that the positions should be restricted to APS officers. The effect of this decision is that access to the vacancy is then limited to:

• existing APS officers; and
• the persons listed as able to apply for such vacancies in Attachment G2 the substantive requirements of this access list will appear in the Gazette preamble each week.

91. The major change to the access list is to allow any staff currently employed under ss.82AC, 82AD, 82AE and 82AG of the Public Service Act 1922 to apply for any vacancies in the Gazette. This change will replace the old '6 month' rule.

92. Employees and the other groups in the access list at Attachment G2 are only able to apply for vacancies which do not involve temporary transfer under the provisions of r.116A.

93. An Agency Head cannot restrict access to vacancies in accordance with para 90 in relation to base grade positions and training offices, which must be open to all Australians subject to the current eligibility requirements.

94. Until the Gazette Office can amend its software, all vacancies that are open to all Australians should continue be indicated with an asterisk/double asterisk.

95. Closing dates for positions will now be determined by agencies and will need to be stated in the body of the advertisement if the date is different from the 14 days indicated by a single asterisk or 21 days indicated by a double asterisk. In setting closing dates, agencies will need to consider the requirements under s.33 of the 1922 Act that there be reasonable opportunity to apply.

Currency of Advertising

96. Regulation 112 of the Public Service Regulations lists the prescribed circumstances in which an Agency Head may fill a vacant non-SES office by promotion without the separate advertising of that office in the Gazette.

97. The provisions of r.112 have been amended so that, with effect from 15 March 1998, agencies will be able to fill vacancies that have recurred, and similar vacancies, without further advertising in the Gazette provided that the filling is within twelve months from the date of the initial advertisement. This replaces the current provision which allows filling within six months of the initial advertisement. At the same time, this flexibility has now been extended to Senior Officer and equivalent classifications.

98. This means that, once a position with a non-SES classification has been advertised, agencies will, if they wish, be able to fill recurring or similar vacancies without further advertising for up to 12 months:

• Recurring vacancies occur where a position is filled and then becomes vacant again with the classification, duties and location remaining the same.
• Similar vacancies occur where the classification, duties and location of a vacant position are the same as those of a position already advertised in the Gazette.

99. If a vacancy is filled using the provisions of r.112:

• for appellable promotions, the Gazette notification will still need a note indicating this and advising that any eligible officer may appeal.
• non-appellable promotions must indicate that the promotion has been made under the provisions of r.112.

100. These amendments to r.112 provide agencies with greater flexibility in filling non-SES vacancies within 12 months of advertising:

• Agencies are under no obligation to use the provisions and using the r.112 provisions for one vacancy does not commit an agency to using r.112 provisions for other vacancies.
• The decision whether or not to use the provisions of r.112 in a particular case should be made when vacancies occur. Employment of Persons who have taken Voluntary Redundancy

101. A person who has:

• been retired from the APS under s.76W of the Public Service Act 1922 and has received either a retrenchment severance benefit calculated under the General Employment Conditions Award (GECA) or a similar payment under a Certified Agreement (CA) or Australian Workplace Agreement (AWA); or
• retired from the APS following a notice under s.76R and the receipt of a specified benefit in accordance with a determination under s.82D of the Act:

is ineligible to apply for appointment within a twelve month period following the retirement (see also PSMPC Circular 1996/13 and Part L of this circular dealing with short-term employment para 145).

Transitional Arrangements

102. The changed advertising arrangements will apply to all advertisements notified in the Gazette after 15 March 1998.

103. The amendment of r.112 will apply from 15 March 1998 in relation to any selection exercise that was conducted before or after that date if the selection exercise otherwise meets the tests set out in r.112.

Additional Guidance Material

104. Essentials Booklet No 2: Recruitment and Selection, PSMPC, 1996 is to be read subject to the above.

105. All notifications concerning advertising and eligibility to apply for Gazette vacancies have been revoked (except in relation to the Parliamentary Departments) and replaced by the notification set out in Attachment G1 and the full 'access list' in Attachment G2.

Contact Officers

106. Contact officers:

- Lorna Kunz, Managing Performance Team, PSMPC, (02) 6272 3782.
- for information on Recruitment Services Australia: DEETYA, (02) 6240 7377.
- for advice about employment of persons who have taken voluntary redundancy: PSMPC (02) 6272 4220.

H. Temporary performance of higher duties

107. Section 51A of the Public Service Act 1922 enables the making of regulations about the temporary performance of duties.

108. Regulations 116B and 116C currently provide appeal rights in relation to the temporary performance of higher duties for continuous periods totalling over 6 months or a single period in excess of 6 months. Subregulation 116B(2) has been amended with effect from 15 March 1998 to increase the time period to 12 months.

109. This amendment to r.116B will have no effect in those agencies still covered by GECA, as sub clause 19.1.13 of that Award includes the six month provision. The amendment does mean that agencies will be able to override this part of GECA in their certified agreements or AWAs. Such agreements cannot remove appeal periods for periods longer than 12 months as they cannot override the Public Service Regulations (except those prescribed under rr.30ZE or 30ZJ of the Workplace Relations Regulations).

Transitional Arrangements

110. The transitional arrangements for paragraph 116B(2)(a) (new r.178) in the amended regulation mean that for temporary performance decisions made before 15 March 1998, the appeal period remains at six months. Additional Guidance Material

111. The information on temporary performance contained in Essentials Booklet No 2: Recruitment and Selection, is still relevant for agencies that have not introduced certified agreements.

Contact Officers

112. The contact officer for temporary performance issues generally is Lorna Kunz, Managing Performance Team, PSMPC, (02) 6272 3782.

113. The contact officer for GECA HDA issues DWRSB, (02) 6243 7824.

J. Qualifications and base grade recruitment

Qualifications for appointment, transfer or promotion: s.33a powers

114. Under s.33A of the Public Service Act 1922, the Public Service Commissioner is able to notify certain matters relating to appointment, transfer, promotion or advancement.

115. The existing notifications with respect to qualifications, accelerated advancement provisions and other conditions to be satisfied for promotion, appointment and transfer made under s.33A of the Act contained in the P15 APS Conditions of Entry and Advancement Gazette of 31 May 1994 as amended from time to time will continue in force for agencies which do not notify their own arrangements.

116. The Public Service Commissioner is delegating to Agency Heads, with effect from 15 March 1998:

• the powers under sub-s.33A(1)(d) to determine qualifications and other conditions to be satisfied for appointment, transfer or promotion; and
• the powers under s.33A(1A) to determine accelerated advancement.

117. Where agencies have not moved to the new APS classification structure:

• Agency Heads may use these delegated powers to vary, in relation to their own agency, existing notifications made by the Commissioner under s.33A with regard to qualifications, accelerated advancement provisions and other provisions to be satisfied for appointment, promotion and transfer.
• The 1922 Act requires that this be done by notification in the Gazette.

118. Once agencies move to the new APS classification structure:

• The Commissioner's existing s.33A notifications covering the older established APS classifications will no longer apply.
• The Agency Heads of such agencies will be able to use the delegated s.33A powers to determine new qualifications, accelerated advancement and other provisions they wish to apply within their agency in relation to the new classification structure.
• In using these delegated powers Agency Heads will need to have regard to the advice set out in paragraph 33 of Workplace Relations Advice No 1998/2, New APS Classification Structure issued by DWRSB on 20 January 1998.

Training Offices: s.53a powers

119. Section 53A of the Public Service Act 1922 deals with the promotion of officers who complete a course of training for positions that are determined to be training offices. Where a position is determined to be a training office its occupant is entitled to automatic promotion to a specified higher office once the required training course has been satisfactorily completed.

120. While the Public Service Commissioner has not delegated her powers under para 53A(1)(a) of the Public Service Act 1922 to notify that certain officers are training offices, she has amended the existing notices under s.53A to give the employing Agency Head the right to specify the relevant course of training.

121. In addition, the power under para 53A(1)(b) of the 1922 Act to determine that an officer has completed a course of training satisfactorily has been delegated to Agency Heads. This formalises the existing arrangements for advancement of trainees by agencies.

122. The new APS classification structure includes the following training classifications:

• Apprentice APS (Trades)
• Cadet APS
• Graduate APS
• Trainee APS (Administrative)
• Trainee APS (Technical)

123. New s.53A notices specifying the appropriate advancement level ('relevant higher office' under para 53A(1)(b) of the 1922 Act) have been made by the Commissioner for the above training classifications:

• These notices are being notified in the Special Gazette on 25 February 1998.
• The substantive text of the new notices is at Attachment J1.

Centralised Recruitment

124. There will now be separate notices under s.33A for training classifications under the existing and new APS classification structures where centralised recruitment arrangements may apply:

• Existing classification structure (for agencies without certified agreements or AWAs):
  • The requirement to use RSA for GAA or TASO/ASO1 recruitment will be removed from 15 March 1998. The Public Service Commissioner has issued new notices for these classifications which provided agencies with the choice of recruitment methods.
• New APS classification structure (for agencies with certified agreements or AWAs):
  • In addition, notifications relating to selection arrangements if agencies choose to use RSA have been prepared for Trainee APS (Administrative) and Graduate APS classifications.

125. These notices are being gazetted on 25 February 1998 and the text is at Attachment J2. If agencies choose to use RSA, then the selection arrangements specified for each of the above classifications will apply to that selection.

126. The question of whether agencies should continue to be required to use competency based training for TASO and GAA positions is still to be resolved. Until otherwise notified, agencies are still required to deliver the relevant competency based training to GAAs and TASOs.

Transitional Arrangements

127. Selection exercises for positions advertised before any changes are gazetted by agencies should continue under the arrangements in place at the time of advertising unless a decision is made to readvertise under the new arrangements. When using the delegated powers, agencies should consider inclusion of transitional arrangements as appropriate.

Additional Guidance Material

128. The P15 Gazette of 31 May 1994 (also published as PSC Entry and Career Path Requirements) remains the main reference material subject to any amendments made from time to time and the material contained in this circular. Workplace Relations Advice 1998/2 is also relevant.

129. The specific changes notified in this circular mean that:

1. All notices covering advertising have been revoked and are replaced by the text included in Attachment G1.
2. The section headed 'Training Provisions' has been removed from all the existing notices for the classifications listed in Attachment J1
3. All previous s.53A notices for the classifications listed in Attachment J1 have been revoked and replaced by the notification contained in that Attachment.
4. All previous notices for GAAs and TASOs have been revoked and replaced by new notices the text of which is included in Attachment J2.

Contact Officers

130. The contact officers for matters that are the responsibility of the PSMPC are:

• Lorna Kunz, PSMPC, (02) 6272 3782.
• Helen Graham, (02) 6272 3401.

131. The DWRSB contact officer in relation to training offices in the new APS classification structure is Stewart Thomas, (02) 6243 7668. For information on Recruitment Services Australia the contact officer is DEETYA, (02) 6240 7337.

K. Promotion and transfer

132. Under current Government policy, different agencies may agree in CAs or AWAs to different maximum rates of pay for jobs which have the same classification. This has implications for the movement of staff between agencies through promotions and transfers.

133. For the purposes of Division 4 of Part III of the Public Service Act 1922 (Appointments, Transfers and Promotions) a non-SES promotion is defined (s.33AAA) as a movement of an officer 'for the purpose of holding:

1. an office of a higher classification than that of the office held by the officer immediately before the movement took place; or
2. an office in respect of which the rate of salary payable is higher than the rate of salary that was payable in respect of the office held by the officer or, in the case of an unattached officer, to or in respect of the officer, immediately before the movement took place'.

134. This definition distinguishes a promotion from a transfer by reference to salary rates and not by reference to work value:

1. The test for a promotion to an office is whether the office has a higher potential maximum salary or a higher rate of salary payable.
2. As a transfer is any movement that is not a promotion, this means that a transfer would normally be a movement to an office with an equivalent classification (same potential maximum salary) or lower classification at the same or a lower paid salary.
3. For example, a movement from the second pay point of an ASO5 to the identical second pay point of an ASO5 is a transfer while the movement of a PO2 to an ASO6 regardless of salary paid would be a promotion because the ASO6 has a higher maximum attainable salary.
4. The only exceptions to the above are the arrangements made in the Continuous Improvement in the APS Enterprise Agreement 1995-96 (Attachment B-Schedule 2) covering redeployment for agencies still covered by this Agreement.

135. The position for movement between agencies while the definition in the 1922 Act remains in force is as follows:

1. Movements between agencies which do not yet have new agency agreements (i.e. are using the pay rates as detailed in the Continuous Improvement in the APS Enterprise Agreement 1995-96) will remain unchanged.
2. Where at least one of the agencies involved has moved away from these arrangements through agreement making (either CAs or AWAs), what would have been a transfer in the past may now be a promotion if the officer moves to a position with a higher salary, actual or achievable, however small the difference and whether or not the movement is to what, in the past, would have been regarded as a higher classification.
3. For example,
   • a movement from an ASO6 to an APS6 in an agency with a higher achievable maximum salary or a higher actual salary is a promotion; and
   • if salaries vary between agencies a movement from an APS6 to an APS6 would only be a transfer if they have identical pay points and identical maximum pay points or if the receiving agency's APS6 has lower pay points or a lower maximum pay point.

136. Where agencies fill positions through merit selection , the only difference is that some movements which previously would have been non-appellable transfers will now be appellable promotions. In considering filling vacant positions, agencies should be aware of the provisions governing advertising outlined in Part G of this circular. All positions to be filled by appointment or promotion must be advertised in the Gazette except where the prescribed circumstances contained in r.112 apply and an agency decides to use the provision of that regulation.

Additional Guidance Material

137. The following guidance material is still generally current, but should be read subject to the above:

• Essentials Booklet No 2: Recruitment and Selection, PSMPC, 1996.
• DWRSB Workplace Relations Advice 1998/2, New APS Classification Structure.

Contact Officers

138. The contact officer within the PSMPC is Lorna Kunz, PSMPC, (02) 6272 3782.

139. For information relating to the DWRSB Workplace Relations Advice 1998/2, contact the officers nominated in that advice.

L. Short-term employment

140. The majority of provisions relating to the engagement of employees are set out in Division 10 of Part III of the Public Service Act 1922. These are subject to:

• any relevant provisions in awards; and
• the termination of employment provisions of the WR Act where these apply.

141. Subsection 82AD(10) of the Public Service Act 1922 enables the Public Service Commissioner to notify, by notice published in the Gazette,

1. the manner in which persons should be selected as short-term employees; and
2. the manner in which registers of applicants for short-term employment should be kept.

142. A revised notification covering the requirements for short term employment under s-sec.82AD(10) is being gazetted on 25 February 1998 and will come into effect on 15 March 1998. The substance of the revised notification is at Attachment L. This notification revokes any previous notifications under s-sec.82AD(10) including the one made on 3 February 1998 and gazetted on 12 February 1998.

143. The existing provisions have been simplified to require that:

1. Short-term employees must be selected on the basis of their ability to perform the relevant duties (ie skills, attitude, qualifications and experience required) and their availability to perform the work on the basis required (ie full time, part time) in the location.
2. There are no restrictions on who may establish and maintain a register for short-term employment.
3. Persons must be selected and registers must be maintained in a manner that precludes patronage or favouritism (s-sec.33(2) of the Public Service Act 1922), and without discrimination that is unlawful under any applicable anti-discrimination legislation. A breach of the s.33 provisions on patronage, favouritism and discrimination is a ground for disciplinary action (see s.56(ea) of the 1922 Act).
4. Employment decisions must comply with relevant provisions of the WR Act.

144. In practice, this means that agencies can maintain their own registers or enter into arrangements with other bodies keeping registers subject to ensuring that they avoid patronage and favouritism and observe the anti-discrimination legislation.

145. The initial engagement period for a short term employee is still a maximum of three months for basegrade positions and six months for other classification levels.

Employment of Persons who have taken Voluntary Redundancy

146. A person who has:

• been retired from the APS under s.76W of the Public Service Act 1922 and has received a retrenchment severance benefit calculated under GECA or a similar payment under a CA or AWA; or
• retired from the APS following an notice under s.76R and the receipt of a specified benefit in accordance with a determination under s.82D of the Act:

is ineligible to be selected for short term employment within a twelve month period following the retirement except where the Secretary considers the employment essential due to the nature of the duties and the skills, experience and/or qualifications of the person (see also PSMPC Circular 1996/13 paras 6 to 8 and Part G of this circular).

Award Simplification

147. The type of employment is an allowable award matter within the meaning of s.89A of the WR Act. A revised categories of employment clause is currently being negotiated with the unions as part of the current negotiations on simplification of APS awards. A copy of a revised draft award was provided to agencies as an attachment to Workplace Relations Advice No 1998/3, Simplification of APS Awards, issued by DWRSB on 27 January 1998. Further advice will be provided to agencies regularly on the progress of these negotiations.

Transitional Arrangements

148. Existing registers of potential short-term employees will be able to be continued by agencies.

149. Any engagement after 15 March 1998 must be on the basis of a selection that complies with the new notification set out at Attachment L.

Additional Guidance Material

150. The PSC 1995 publication Interim Principles and Guidelines: Temporary Employment remains the source document. It should be read subject to the amendments included in Attachment L.

151. The notifications made under s-sec.82AD(10) on 19 December 1995 will continue to apply to the Parliamentary Departments.

Contact Officers

152. Contact officers:

• Lorna Kunz, PSMPC, (02) 6272 3782.
• for advice of employment of persons who have taken a voluntary redundancy: PSMPC (02) 6272 4220.
• for issues relating to award simplification: DWRSB, (02) 6243 7629.

M. Managing poor performance

153. Division 8C of Part III of the Public Service Act 1922 deals with the redeployment and retirement of officers other than Secretaries and SES officers. This includes matters relating to poor performance. For the purposes of this circular, poor performance refers to those aspects of inefficiency, lack of fitness for continued duty, or loss of an essential qualification that are covered in s-sec.76W(6) of the Public Service Act 1922.

Administrative Processes in relation to Poor Performance

154. In order to provide greater flexibility to agencies, the processes involved in managing poor performance have changed as follows:

1. The binding instructions issued by the Public Service Commissioner under s-sec.76X(1) of the Public Service Act 1922 in relation to inefficiency, fitness for continued duty and loss of an essential qualification are being revoked with effect from 25 February 1998 for agencies that already have a certified agreement. In other cases they will be revoked when a certified agreement comes into effect or from 30 June 1998 whichever is the earlier.
2. The Public Service Commissioner has issued a direction under s-sec.76X(2) in relation to these matters. This direction contains a set of principles which Agencies will be required to use as a basis for developing procedures for managing poor performance. The substantive text of the direction is at Attachment M.

155. Each agency will now be responsible for developing suitable procedures to manage instances of poor performance, taking into account the principles included in the s-sec.76X(2) direction. These procedures should be able to be implemented by no later than 1 July 1998.

Medical Examinations

156. The Public Service Regulations which deal with the power to direct an officer to attend a medical examination (rr.46-51) remain unchanged.

Inter-agency Transfers

157. Where appropriate, Agency Heads should be mindful of the requirement, under s-sec.51(3) of the Act, relevant to redeployment, to consider whether it is necessary to consult the Public Service Commissioner regarding the inter-agency transfer of a person, in the interests of the efficient administration of the Service.

Certified Agreements and AWAs

158. As the principles set out in the s-sec.76X(2) direction are binding, agencies that already have CAs/AWAs in place before 1 July 1998 which cover poor performance should ensure that the CAs/AWAs are consistent with these principles:

• Where there is any inconsistency between a CA/AWA and the direction, the direction will prevail to the extent of the inconsistency.
• The relevant Client Service Manager in the DWRSB is able to provide advice regarding amending CAs/AWAs.

159. Agencies with CAs/AWAs which are silent on these matters, and those Agencies not yet with CAs/AWAs need to take account of the direction.

Transitional Arrangements for Action already commenced

160. A process in relation to poor performance that has commenced prior to the changed arrangements must be completed under the arrangements existing before the changes set out in this circular.

161. A process is considered to have commenced if:

• in the case of inefficiency a warning notice has been issued;
• in the case of fitness for continued duty, an officer (or a continuing employee) has been referred for a health assessment; or
• in the case of loss of an essential qualification, the Agency Head has advised the employee that he or she has seven days to provide explanation or comments regarding the loss of an essential qualification.

Additional Guidance Material

162. It is important that agencies are aware of responsibilities placed on them by the following pieces of legislation, and take these into account when developing procedures. Relevant pieces of legislation are the Archives Act 1983, Disability Discrimination Act 1992, Human Rights and Equal Opportunity Commission Act 1986, Privacy Act 1988, Racial Discrimination Act 1975, Sex Discrimination Act 1984, and the Workplace Relations Act 1996.

163. Agencies might find it useful to refer to the following publications to the extent that they contain good practice ideas:

• Managing Poor Performance (Essentials Booklet No. 1) PSMPC, 1996;
• Fitness for Continued Duty - Interim Principles and Guidelines PSC, 1995;
• Loss of an Essential Qualification Personnel Management Guidelines PSC, 1990;
• Counselling for Better Work Performance - Advice for Managers (joint PSMPC/Comcare publication), 1997; and
• Managing Workplace and Termination Issues A practical guide for employers DWRSB, 1997.

164. The ComSuper publication Invalidity Retirement and Partial Invalidity Procedures will also be useful and is available on the ComSuper home page address http://www.comsuper.gov.au. as the Invalidity Kit

165. The PSMPC will be producing advice about best practice in managing performance, to assist agencies in September 1998.

Contact Officers

166. The relevant contact officers in the various agencies are as follows:

• Jenny Evans, PSMPC, (02) 6272 3557.
• relevant Client Service Manager, DWRSB.
• Helen Bull, Comcare Australia, (02) 6275 0600.
• Alan Manning, ComSuper, (02) 6252 6263.

N. Senior Executive Service (SES)

167. Consistent with the approach taken in the Public Service Bill 1997, there is, overall, limited scope available to devolve powers further in relation to the management of the Senior Executive Service (SES). There are, nevertheless, two areas in which changes have been made to provide Agency Heads with greater flexibility in managing their SES officers.

SES Selections

168. In line with the intentions of the public service reforms in relation to the longevity of selection exercises, the Public Service Commissioner will now consider recommendations for appointment or promotion to SES vacancies where the exercise has been completed within 12 months of advertising, rather than within the previously existing 6month limit. (Regulation 105 has been amended consequentially to make 12 months the prescribed period for the purposes of s.33AA of the Public Service Act 1922.)

169. Agencies should bear in mind when making recommendations to fill SES vacancies, that the wording of the 1922 Act is such that it allows only the specific advertised vacancy to be filled, unless the advertising was expressed to be in respect of several vacancies. Once an SES position has been filled by appointment or promotion and the officer has taken up duty in the position, the provisions of s-sec.33AA(3A) no longer apply. At that stage no further appointment or promotion action can be taken by the Public Service Commissioner without a further full merit selection process being completed in relation to that position, unless further action has been foreshadowed in an advertisement for several vacancies.

170. The documentation that must be forwarded to the Commissioner in relation to an appointment or promotion has already been reduced as far as possible. Details of the current documentation requirements are contained in the Public Service Commissioner's memorandum to SES recruitment officers of 31 October 1995.

SES Age Retirement

171. The current provisions of the Public Service Act 1922 relating to the retirement of SES officers on ground of age will continue to apply (non-SES staff are dealt with in Part O of this circular).

172. The Public Service Commissioner's powers under s-secs.76J(2) and 76J(3) are being delegated to Agency Heads with effect from 15 March 1998. This means that Agency Heads will now have the delegated power to extend an SES officer's employment beyond the existing maximum retirement age of 65.

173. In reaching a decision on whether such an extension is appropriate, Agency Heads should take into account all relevant factors, including:

• the views of the officer;
• the officer's capacity to meet the required performance standards; and
• the overall operational requirements of the agency.

174. See also the general comments on the age retirement of non-SES officers. (Part O of this circular.)

Additional Guidance Material

175. All SES selection circulars, except for the circular to SES recruitment officers dated 31 October 1995, have, so far as they are still relevant, been incorporated into the SES Selection Guidelines dated 16 January 1995.

176. The following other guidance material on SES matters is still current: the Guidelines on the management of displaced SES officers dated September 1992; and the circular on SES regression arrangements (1993/15 of 9 October 1993).

Contact Officers

177. For SES specific issues the contact officers within the PSMPC are as follows:

• SES Adviser, PSMPC, (02) 6272 3521
• PSMPC, (02) 6272 3377.

178. See also the contact officers listed below for general issues relating to retirement.

O. Compulsory age 65 retirement for non-SES staff

179. The current provisions of the Public Service Act 1922 relating to compulsory age 65 retirement will continue to apply to non-SES staff.

180. Section 76V of the 1922 Act is the principal provision relating to compulsory age 65 retirement of officers and employees (other than for Secretaries and SES officers):

• Subsection 76V(2) allows an Agency Head to continue a non-SES officer's or employee's employment where the officer or employee wishes to continue and the Agency Head considers that it is 'desirable, in the interests of the Commonwealth' to do so.
• Where an officer or employee is to continue in employment, the Agency Head must determine in writing that s-sec.76V(1) does not apply to the officer, prior to the officer reaching the maximum retirement age.
• People who are 65 or over cannot be appointed as an officer or employed as a short-term, fixed term or overseas employee.

181. In response to an expected increase in requests from staff wishing to continue to work beyond age 65, agencies should develop a policy for handling such requests:

1. Agencies will need to consider all relevant factors including superannuation and workers' compensation.
2. In addition, any exercise of a discretion under s.76V would have to have regard to the provisions of the anti-discrimination legislation.
3. Information on these issues should be sought from ComSuper, Comcare, the Human Rights and Equal Opportunity Commission (HREOC) and the DWRSB.

Additional Guidance Material

182. Issue No 52 of ComSuper News, June 1997 contains information on contributions for members over age 65.

Contact Officers

183. The relevant contact officers in the various agencies are as follows:

• ComSuper: (02) 6252 7235
• Comcare: Help Desk 1800 150 555
• HREOC: Human Rights Unit, (02) 9284 9600
• PSMPC: (02) 6272 3492

P. Part IV mobility

184. The Public Service Act 1922 contains in Part IV complex provisions relating to the rights of APS staff who leave the APS to work for non-APS Commonwealth agencies.

185. New regulations have been made to remove specified Commonwealth offices and Commonwealth authorities from the Part IV mobility provisions:

• A list of the specified Commonwealth offices to be excluded from Part IV coverage is at Attachment P1.
• A list of the specified Commonwealth authorities to be excluded from Part IV coverage is at Attachment P2.

186. Regulation 176A of the Public Service Regulations dealing with a Commonwealth representative in another country remains in force.

Leave without Pay

187. With the removal of Part IV coverage from non-APS Commonwealth agencies, officers who leave the APS in the future to work for one of these agencies will need to resign from the APS. Alternatively, they may apply for leave without pay.

188. In the past it was not possible to grant leave without pay (LWOP) to staff leaving APS employment to work for non-APS Commonwealth agencies. Agency Heads now have flexibility to include in agency certified agreements or AWAs a provision to grant leave with or without pay, which counts or does not count for service. For those agencies which do not have comprehensive agreements that prevail over Determinations, Public Service Determination 1998/5 provides Agency Heads with this same discretion.The broad parameters have been designed to encourage the devolution of leave management to managers and to support decision making that is aligned to agencies' corporate objectives

189. Workplace Relations Advice 1997/36, Achieving Cost Effective Personnel Services - Leave, issued by DWRSB on 30 June 1997, explained the flexibility available to Secretaries under changed Public Service Determination provisions to grant leave for a purpose which the agency considers to be in the interests of the Commonwealth. These provisions have been incorporated into the consolidated Public Service Determination 1998/5. The advice also encouraged agencies to consider introducing these same flexibilities into agency agreements.

190. Agency heads must grant LWOP to APS staff to enable them to take up appointment to specified Commonwealth statutory offices, to which Part IV mobility provisions previously applied. This is consistent with the Government's acceptance of the recommendation of the Joint Committee of Public Accounts (JCPA) in its Advisory Report on the Public Service Bill 1997 (Report 353), that Agency Heads should be obliged to grant LWOP for persons taking up appointment to such offices. Agency Heads can use the flexibilities of Public Service Determination 1998/5 (if it applies to their agency) or any flexibilities agencies have built in to their Agreements to count this leave as service or not.

191. This will in no way affect the employment arrangements of APS officers who are or who will be employed under the Members of Parliament (Staff) (MOPS) Act 1984 or under the Governor-General Act 1974.

Transitional Arrangements

192. APS staff who currently hold statutory appointments or who are employed in 'eligible public employment' as defined in s-sec 87(1) of the Public Service Act 1922 will continue to have Part IV coverage.

193. In addition, APS officers who are transferred under section 81C of the Act to non-APS Commonwealth employment acquire 'second tier' Part IV mobility rights by virtue of subsection 87K(2A) of the Act. These rights accrue irrespective of whether the body is a Part IV body and they are not affected by these amendments to the Public Service Regulations.

Statutory Application of Part iv.

194. The amending regulations will not affect in any way the rights of APS staff or former officers whose mobility arrangements are, or will be, regulated by other legislation such as the following:

• Australian Capital Territory Government Service (Consequential Provisions) Act 1994
• Australian Industry Development Corporation Act 1970
• Commonwealth Electoral Act 1918
• Education Legislation Amendment Act 1997
• Repatriation Institutions (Transfer) Act 1992
• Special Broadcasting Service Act 1991
• Veterans' Entitlements Act 1986

Reciprocal Mobility

195. The amending regulations will not affect in any way current mobility arrangements with the following bodies:

• ACT Public Service;
• Albury-Wodonga Development Corporation;
• Austrade; Australian Security Intelligence Organisation (ASIO); and
• Australian Secret Intelligence Service (ASIS).

Additional Guidance Material

196. The existing Officers' Mobility Provisions Handbook, published in April 1986, will no longer be appropriate because of these changes. It is envisaged that guidelines to assist agencies to implement the new arrangements will be distributed in late April or early May.

197. Workplace Relations Advice 1997/36 is also relevant.

Contact Officers

198. Contact officers:

- for policy issues: PSMPC, (02) 6272 3691.
- for operational matters, i.e. re-appointment or re-integration: PSMPC, (02) 6272 3919.

Q. Discretionary payments to APS staff

199. Sub-section 90(3) of the Public Service Act 1922 provides for the payment of money to officers or employees (other than for salary or allowances or expenses which may be paid under the regulations or determinations in force under s-sec.9(7A) or s.82D of the 1922 Act) .

200. In order to provide greater flexibility to agencies the Public Service Commissioner has delegated her authority, with effect from 15 March 1998, to make such payments in cases up to $20,000.

201. The power under section 90(3) must be exercised in accordance with the guidelines at Attachment Q (Discretionary payments to APS staff).

Additional Guidance Material

202. The only guidance material is that at Attachment Q.

Contact officer

203. Contact officer: PSMPC (02) 6272 3528

R. Simplification of terms and conditions

204. There are a number of important parallel developments in relation to the pay and conditions framework.

Consolidated Determination relating to Domestic Conditions of Employment

205. On 17 February 1998 DWRSB made a consolidated determination under s.82D relating to domestic conditions of employment. This has brought together all relevant domestic determination provisions into one instrument. Over 900 obsolete determinations have been repealed. In addition, key provisions such as sick leave, assistance for study and sale and purchase of home that were hard to understand have been rewritten in plain English.

206. Any matters within the new streamlined determination can be displaced by comprehensive agreements under the Workplace Relations Act 1996 (WR Act). For agencies entering agreements, as it is a 'law of the Commonwealth' it will be part of the 'no disadvantage test' in the same way as the existing s.82D determinations that it replaces. The date of effect of the new determination will be 9 March 1998. This will give agencies where the new determination applies time to update their delegations.

207. Workplace Relations Advice 1998/6 issued on 18 February 1998 provides further details on the new determination and the associated need to change delegations.

208. Determination 1994/162 relating to terms and conditions of Australia-based staff performing duties overseas remains unchanged. However, the power to make determinations relating to terms and conditions of employment of staff performing overseas was subdelegated to the Department of Foreign Affairs and Trade in June. It is intended to devolve this power to other agencies in the near future.

Repeal of certain regulations relating to conditions of employment

209. Most existing regulations relating to terms and conditions of employment are being repealed, with effect from 13 March 1998, either because the material they cover is now elsewhere, whether in awards or the new s.82D determination on domestic conditions of employment, or because they are obsolete.

210. In particular, the regulations being repealed include:

• Definition of location of an office in s-regs. 3(2) and 3(3)
• Division 2 of Part II: Leave of Absence because of illness (rr. 53 to 60)
• Division III of Part IIHours of Duty and Overtime (rr. 65 and 70)
• Regulations 72B to 72Q dealing with the Joint Council
• Regulation 73 re allowances based on salary
• Regulations 74,74B and 74Cre exempt staff, application of determinations under Arbitration (Public Service Act) and of State laws
• Part IV re allowances (rr. 91 to 100)
• Regulation 138 sick leave

211. This means that the remaining regulations dealing with conditions of employment will be rr. 9 and 10. These deal with prescribed hours of attendance for part-time officers. These regulations are technically necessary for the purposes of s.29C and s.29D of the Act.

212. However these regulations are about to be amended as a separate process to increase flexibility by widening significantly the range of permissible hours for permanent part-time work, which is now amended from 15 to 30 hours per week, to 1 to 36 hours. DWRSB will issue a Workplace Relations Advice shortly providing details of this change.

Award Simplification

213. Action is being taken before the Australian Industrial Relations Commission (AIRC) to simplify the existing APS awards, as required by the WR Act.

214. A copy of the single revised draft award proposed by the Commonwealth (as the employer) was provided to agencies as an attachment to Workplace Relations Advice 1998/3, which was issued by DWRSB on 27 January 1998. DWRSB will issue further advices to agencies on a regular basis as developments occur in the AIRC proceedings.

Additional Guidance Material

215. The Australian Government Employment Group (AGEG) of DWRSB will keep agencies up to date with further developments through its Workplace Relations Advices. The AGEG home page at the DEWRSB web site (http://www.dewrsb.gov.au) includes copies of past and current advices.

Contact Officer

216. If agencies have further queries they should contact their AGEG Client Service Manager.

S. Agreement-making

217. The WR Act is based on principles that support more direct and productive workplace relations between employers and employees and provide for freedom of association and more choices to achieve mutually beneficial agreements.

218. The Government's policy is that the APS should operate, to the maximum extent consistent with its public responsibilities, under the same industrial relations arrangements as apply to the rest of the workforce. Consistent with this, the terms and conditions of employment should generally be negotiated, collectively or individually, under the WR Act.

219. The Government is seeking to have the majority of staff covered by agreements by the end of the financial year. Already agreements have been certified covering almost 30% of APS employees and 5 agreements have been made directly with staff under s170LK of the WR Act.

220. In addition to these agreements the Government expects Agency Heads to develop AWAs with members of the Senior Executive Service as a matter of priority. A number of agencies are already extending AWAs to other levels and this is encouraged.

221. Consistent with the WR Act, the Government has given authority to APS agency heads to settle most of their employees' terms and conditions of employment and expects the APS to access the full range of opportunities available under the WR Act.

222. This authority to make agreements has been devolved to agencies within broad policy parameters to recognise the Government's interests as the ultimate employer. This is consistent with the practice of other major employers. It is aimed at directing the process positively while retaining the features necessary to support a coherent Service (eg facilitating mobility through classification reforms and portability of leave)

223. The policy parameters broadly require agencies to:

• be consistent with both the Government's workplace relations policy and APS policy aimed at fostering more direct relations between employees and employers with improvements in pay and conditions linked to productivity gains, thereby being consistent with maintaining low inflation;
• fund agency terms and conditions from agency appropriations;
• as appropriate provide for flexible remuneration packaging on a salary sacrifice basis;
• introduce a new rationalised classification structure with salary movements based on effective performance:the structure maintains links to Service-wide benchmarks with scope for adaptation at the agency level; and
• retain the full range of agreement making options including AWAs.

224. While the new Public Service Act would formalise the role of Agency Heads as the direct representatives of the employer, they already have been given authority to implement major changes under the WR Act, including resolution of pay and conditions linked to productivity and performance, making AWAs etc.

225. The WR Act and regulations under it define the relationship between agreements and other legislation. Certified agreements and AWAs cannot override the Public Service Act and other legislation except to the extent prescribed in Workplace Relations Regulations 30ZE and 30ZJ. These regulations provide considerable scope, for example, an agreement can override any condition provided by a s82D determination

Additional Guidance Material

226. The Australian Government Employment Group has provided detailed advice on agreement making through Workplace Relations Advices. These advices and other information relevant to agreement making can be accessed through the AGEG home page at the DEWRSB web site (http://www.dewrsb.gov.au).

Contact Officer

227. If agencies have further queries they should contact their AGEG Client Service Manager.

T. Human Resource Benchmarking

228. The Minister, the Hon. Dr David Kemp MP, has also asked the Public Service Commissioner to repeat the Achieving Cost Effective Personnel Services human resource (HR) benchmarking study this year. Data will be collected in August/September and analysis and reporting is scheduled for October/November.

229. The PSMPC will be working with agencies to determine the scope of the study. Whilst the Commission plans to readminister the quantitative elements of the survey, which will provide comparative data, it is likely that the overall scope will be broadened to facilitate an examination of new 'value-added' areas of HR such as training and staff development.

230. The study will allow agencies and the Government to assess the progress that has been made in reforming human resource management practices in the APS. It is also an opportunity for agencies to learn from each other and from good practice private sector organisations.

231. The PSMPC will be contacting all APS agencies shortly to begin work on scoping the study and selection of consultants.

Additional Guidance Material

232. A list of additional guidance material is at Attachment T.

Contact Officers

233. Contact officers within the PSMPC are as follows:

- PSMPC (02) 6202 3859

234. Contact officers for the relevant networks are:

• Strategic Human Resource Management Group: PSMPC, (02) 6272 3692.
• Performance Management: PSMPC, (02) 6272 3723.
• Good Practice Live: PSMPC, (02) 6272 3459.
• Conduct and Inefficiency: PSMPC (02) 6272 3557.

U. Other issues

Attachments

235. The following material is contained in a separate volume of attachments:

A APS values
B APS Code of Conduct
C Public interest whistleblowing
G1 Notification and determination under section 33A
G2: Eligibility to apply for vacancies notified for officers only in the Gazette
J1: Advancement provisions for new APS classification structure training offices
J2: Training classifications where centralised recruitment arrangements apply
L: PSMPC instructions on selection of short-term employees and for keeping of registers
M1: Direction under section 76X(1) of the Public Service Act 1922
M2: Direction under section 76X(2) of the Public Service Act 1922
P1: List of Commonwealth offices to be excluded from Part IV of the Public Service Act 1922
P2: List of Commonwealth authorities to be excluded from Part IV of the Public Service Act 1922
Q: Special payments to staff
T: Human resource benchmarking additional guidance material
U: Regulations repealed

Current Guidelines and Circulars

Legal advice on Public Service Act 1922

236. With the increased flexibility and devolution provided by the Government, including the changes set out in this circular, agencies will sometimes need to seek legal advice on public sector legislation. In this context, agencies are reminded of the Attorney-General's Guidelines of 1 July 1995 on provision of advice to agencies not having administrative responsibility for the legislation under consideration, particularly paragraph 3 of those Guidelines:

'If an Administering Agency is unable to provide advice within a reasonable time as requested by a department or agency or if a department or agency is not satisfied with the advice provided by an Administering Agency and the department or agency decides to seek legal advice on the question:

• the department or agency should inform the Administering Agency that legal advice will be sought on the question;
• the department or agency should inform its legal adviser of the views, experience and policy perspective of the Administering Agency where known and request the legal adviser to take those matters into account in formulating the advice; and
• if requested by the Administering Agency, the department or agency should inform the Administering Agency of the substance of the legal advice it receives, if necessary without divulging information which the department or agency considers should remain confidential'.

Contact Officer:

• PSMPC Legal Unit, (02) 6202 3570 .

Repeal of regulations

237. The Public Service Regulations which have been repealed in full or in part, and those regulations which have been renumbered are listed in Attachment U.

Hot Issues Online

238. In order to keep agencies up to date with key public sector developments, the PSMPC has developed a 'Public Sector Reforms: Hot Issues Online' site on its Internet Home Page.

239. The aim is to provide a 'one stop' centre on public sector developments featuring five or six 'hot' issues of interest to Australian public sector employees and overseas clients. For example, the site presently includes items on progress in implementing reform by administrative means, Investors in People, knowledge management and the development of Certified Agreements and AWAs in the PSMPC.

240. The following will be included in Hot Issues Online:

• information about the topic and why it is a hot issue for the public sector;
• a list of agencies taking part in the reform. There will be linkages to case studies and contact details for each agency;
• relevant articles/books/references;
• a list of forthcoming training courses/seminars from either PSMPC and/or other management development institutions (including Universities);
• related sites; and
• information on networks/discussion groups (if any).

241. The PSMPC especially welcomes contributions from other agencies. Agencies might be developing a project and want to invite participation from other agencies; or agencies might wish to initiate discussion on a particular topic or simply share some ideas. The Commission would also be interested in receiving feedback on the site itself.

242. The PSMPC anticipates having this site operational by end of February 1998. If agencies have a question, comment, suggestion, or want to let the Commission know about hot issues then please contact the PSMPC Librarian on (02) 6202 3519 (library@apsc.gov.au).

 

HELEN WILLIAMS
Public Service Commissioner

 

DR P R SHERGOLD
Secretary
Department of Workplace Relations and Small Business

25 February 1998

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