October 2010: A frequently asked questions page is now available
In 2008-091 only 3% of Australian Public Service (APS) employees self-identified as having a disability, this figure having decreased from 4.9% in 1999. Improving the recruitment and retention of people with disability is a continuing priority for the APS.
- This Circular advises that the Public Service Commissioner’s Directions 1999 (the Directions) have been amended to provide greater flexibility for APS agencies to employ people with disability. Under the new arrangements, an agency may create, design or identify an appropriate position for a person with disability who, while having the capacity to perform the duties specified, would find it difficult to compete in a traditional merit selection process.
- The amendments enable agencies to:
- design an appropriate position, consistent with existing work level standards and expectations, for a person with disability based on their individual strengths, capabilities and capacity in consultation with a disability employment service provider; and
- engage the person in the APS as either an ongoing or non-ongoing employee without the need to advertise or to test the person against the claims of other applicants.
- The new arrangements can be applied from 7 July 2010. As the Amendment Directions are able to be disallowed by Parliament, further advice will be issued should disallowance occur.
- Chapter 4 of the Directions relates to the scope of the APS Values concerning merit (s.10(1)(b) of the Public Service Act 1999 (the Act)) and reasonable opportunity to apply for APS employment (s.10(1)(m) of the Act).
- Currently eligible people with disability are able to apply for any APS employment opportunity. In addition, under Chapter 4 of the Directions an agency head may put in place measures that identify an opportunity for employment as open only to a person with an intellectual disability, and is able to allow for the engagement of such a person following a merit selection process.
Scope of the amendments
- New clauses 4.3A and 4.3B of the Directions effectively create a new mechanism to engage a person with disability as an APS employee.
Engagement and placement of a person unable to participate in a competitive selection process
- Clause 4.3A of the Directions enables an agency head to put in place measures to engage a person with a disability as an ongoing or non-ongoing APS employee, provided that the person has been assessed by a disability employment service provider as being unable, or likely to be unable, to compete successfully in a traditional merit selection process due to their disability.
- An agency head can engage the person in a position that has been designed and created, or identified as suitable, for the person in consultation with the disability employment service provider. This ensures that an agency head can shape an ongoing or non-ongoing position to the strengths, capacities and capabilities of a particular person with disability. It is important that any position that is designed is sustainable and meets a business need.
- The designed and created position must be consistent with the Public Service Classification Rules 2000 and the relevant agency’s Work Level Standards, as well as capacity assessment requirements that may be a part of an agency’s enterprise agreement.
- Section 22(3) of the Act provides that the usual basis for engagement is as an ongoing APS employee. There is no change to the responsibility of agencies to meet this requirement. However, where it is decided to engage a person with disability as a non-ongoing APS employee, agencies will need to comply with the requirements outlined in the Public Service Regulations 1999 (the Regulations):
- regulation 3.5 outlines the circumstances in which a person may be engaged as a non-SES employee for a specified term or specified task;
- regulation 3.5(4) provides that the engagement can be for the purpose of the person gaining skills and experience under a scheme that is approved under regulation 3.3 or the subject of a general direction under s21(1) of the Act (Prime Minister’s Public Service Directions 1999);
- regulation 3.3 outlines the requirements to be met for approval of schemes for non-ongoing employees to gain skills and experience, including notifying the scheme in the APS Employment Gazette; and
- regulation 3.6 outlines the circumstances under which specified term non-SES non-ongoing employees may have their terms extended.
- Agencies can contact the APSjobs area of the Australian Public Service Commission for assistance in putting such a notice in the APS Employment Gazette.
Non-ongoing APS employee engaged under 4.3A – engagement as an ongoing APS employee
- New clause 4.3B of the Directions enables an agency head to seek the authorisation of the Public Service Commissioner (the Commissioner) to engage, as an ongoing APS employee, a person with disability who was engaged as a non-ongoing APS employee under new clause 4.3A.
- The Commissioner can authorise the engagement only if satisfied that the person should not be required to participate in a competitive selection process in order to obtain an ongoing position in the APS. It is the responsibility of the agency head to provide evidence that the person was appropriately engaged under the auspices of clause 4.3A, such as the assessment of the disability employment service provider that the person is unable to compete in a merit selection process.
Assessment of disability
- Agencies are required to use a disability employment service provider, such as (but not limited to) a Disability Employment Services provider, when engaging a person using these provisions. If an agency identifies an individual with a disability who may be suitable for engagement under the new arrangements, the agency should refer the person to a disability employment service provider for further assessment and assistance.
- The mandated use of a disability employment service provider is intended to remove the expectation that the agency can make an assessment of an individual’s disability, as agencies may not have the expertise to determine a person’s capability and capacity for a particular employment position.
- In deciding to engage a person under these new arrangements an agency head must, following consultation and liaison with the disability employment service provider, be satisfied that the person is unable, or is likely to be unable, to compete successfully on merit in a selection process due to the person’s disability. An assessment of the person’s capacity by a qualified medical practitioner is acceptable evidence for the purposes of the new arrangements.
- Agency heads should ensure that the recruitment and retention of people with a disability is supported by a program of training and ongoing assistance for supervisors, managers and peers. Agency heads are encouraged to consult with the disability employment service provider about this assistance.
- Resources to assist agencies can be found at the disability employment part of the Commission’s website -http://www.apsc.gov.au/disability/agency.html.
- Agencies’ corporate areas can obtain further information on the matters raised in this and other circulars from the Commission’s Employment Policy Adviceline – by e-mail employmentadvice [at] apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with in writing.
A/g Group Manager
Workforce Policy Group
2 July 2010
1. State of the Service Report and Australian Public Service Statistical Bulletin 2008-09