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Circular 2010/2: FAQ

In July 2010 the Australian Public Service Commission amended the Public Service Commissioner’s Directions 1999 (the Directions) to provide greater flexibility for Australian Public Service (APS) agencies to employ people with disability.

The Commission’s Policy Circular 2010/2 outlines the new arrangements, and is accessible online.  The following Frequently Asked Questions provide more information about the operation of the new provisions.

Frequently Asked Questions

How do we start the process of engaging someone using these new provisions?

An agency should first identify an employment position that meets a business need and that may be met by engaging a person with disability.  It may be a role or roles that could be shaped to the specific capacities of one or more people with disability. It is important that the position, if ongoing, is one that is sustainable over the longer term.  Although the new arrangements can be used to employ people as non-ongoing APS employees (e.g. for specific projects), the primary basis for employment in the APS remains as an ongoing employee.

How do we engage a disability employment service provider to assist us with recruiting a person with disability?

The Australian Government provides a range of information for employers, including APS agencies, at the JobAccess website. See www.jobaccess.gov.au/content/employers for information for employers starting this process.

For information about the Australian Government funded Disability Employment Services see www.jobaccess.gov.au/Employers/Help_available/Free_expert_help

As a matter of good practice agencies should seek the assistance of a range of providers in their local area in order to access the broadest selection of potential candidates for employment.

What do you mean by a disability employment service provider?

The changes to the Public Service Commissioner’s Directions 1999 (the Directions) defined a “disability employment service provider” as “an organisation that facilitates access to employment for persons with disabilities”. This definition captures services available under the Australian Government’s Disability Employment Services program, as well as other government and non-government providers who facilitate access to employment for people with disability.

Should we be fostering relationships with all disability employment service providers in our location or can we work with one provider?

Agencies should seek to foster relationships with a range of providers while being mindful of any contractual relationships entered into with a specific provider. If, however, an agency has an existing relationship with a provider, there is no obligation other than existing procurement principles to enter into relationships with other providers.  For example, an agency may wish to work primarily with a specialist provider to target the recruitment of people with a particular type of disability (such as intellectual disability).

Are APS agencies able to use the National Disability Recruitment Coordinator (NDRC)?

APS agencies are able to approach the NDRC service provider, WorkFocus Australia, and seek their assistance in recruiting people with disability. Workforce Australia is, however, only able to provide relevant information and a basic referral service to the local Disability Employment Services providers. Under the terms of the NDRC contract, funding from the Department of Education, Employment and Workplace Relations cannot be used to support placements in Commonwealth or State agencies.

APS agencies are still able to seek assistance with employing a person with disability from WorkFocus Australia as a disability employment service provider separate to their responsibility for the NDRC.

How do we select an appropriate provider for assessment of an individual if the individual is not attached to one already?

Agencies should work with the individual to assist them in identifying the most appropriate provider in order to find the best “fit” in terms of any support the individual and the agency may need. 

What do you mean by someone who is unable, or is likely to be unable, to compete successfully on merit in a competitive selection process due to their disability?

The new arrangements are targeted to those people who, due to their disability, find it very difficult to compete on merit in competitive merit selection processes for positions that are open to the broader community.  Some people with disability may, for example, find it particularly difficult to engage effectively in parts of the selection process such as an interview, a technical exercise, a group exercise and the like, even though they have the capacity to undertake the duties of a particular position.

Who is responsible for the assessment of “unable, or likely to be unable to be successful on merit…”?

The assessment should be made by the disability employment service provider, using information available to them about the person’s capabilities. Agencies are not expected to make this assessment, although they should liaise and consult with the provider about the person’s capability and capacity.

Disability employment service providers generally have information about the person’s capacity for participation in selection processes, and also to perform the duties required for a position, based on Job Capacity Assessments and information from qualified medical practitioners (such as occupational therapists or other specialists), and their own work with the job seeker.  The consideration of “unable to be successful…” can be informed by (but not necessarily limited to) factors such as the person’s inability to participate in a selection interview due to communication limitations, an inability to undertake a technical assessment exercise, or an inability to prepare a statement to selection criteria due to their disability.

How are the new arrangements distinguishable from the application of “reasonable adjustment”?

All APS agencies must have regard to the obligation to make reasonable adjustments for employees and applicants for employment consistent with employer obligations under the Disability Discrimination Act 1992. More information can be found at the Australian Human Rights Commission’s website.

Just because a person with disability may require a reasonable adjustment to be made to an element of the selection process does not mean that they are not able to compete on merit for a particular employment position. For example, a person with reading difficulties may require extra time for a component of the selection process that involves a written exercise. The new arrangements are targeted to those people with disability who, due to the scope of their disability, would not be able to compete on a merit basis beyond reasonable adjustments being made.

How does the disability employment services provider work with the agency?

The disability employment service provider is integral to the use of these new arrangements. As well as assisting with the selection of possible candidates, the provider is able to assist with the design and shaping of a position to a candidate’s functional capacity, limits, and abilities to work. This may be informed by assessments performed by independent bodies, such as Job Capacity Assessments. The provider may also be able to assist agencies with support for the employee and their peers and supervisor.

What documentation and evidence should agencies retain to support that the person was not able to compete on merit in a competitive selection process?

Agencies should retain all relevant documentation regarding the engagement of the person, such as medical assessments and correspondence with the person and the disability employment service provider. Agencies must also be mindful of their responsibilities under the Privacy Act 1988 in collecting, using and storing this information.

Does this provision also apply to people with an injury or health condition?

The new arrangements can apply to people with an injury or health condition provided they meet the “unable to compete…” criterion.

Does a person engaged as an ongoing APS employee under these provisions still have to get a heath clearance?

Section 22(6) of the Public Service Act 1999 states that the engagement of an APS employee may (emphasis added) be made subject to conditions notified to the employee, including conditions dealing with health clearances. It is therefore up to the agency to determine whether to include a health clearance as a condition of engagement as an ongoing APS employee for the person.

Where a person with disability has already provided information about their disability for the purposes of engagement, agencies should make a sensitive, commonsense and considered judgment in determining whether a health clearance should be a condition of engagement for the person.

Are there any changes to existing work level standards or classification rules for the employment of people with disability under these arrangements?

No. Positions should be consistent with existing work level standards and expectations. Agencies should also have regard to existing policy and practice around inherent requirements and reasonable adjustment – more information can be found at the Australian Human Rights Commission’s website.

Is this policy for the engagement of people at the lower classifications only?

No. People with disability exist across all classification levels of the APS and make a meaningful contribution to the work of government. Work level standards and the classification rules still apply to all positions.

Is this policy aimed at engaging people only as non-ongoing employees?

No. The usual basis for engagement under the Public Service Act 1999 is as an ongoing APS employee. There may be situations where the new arrangements are used to engage people with disability as non-ongoing employees for a specified task or specified term, consistent with requirements outlined in the Public Service Regulations 1999.

Do we need to advertise the position?

There is no requirement to advertise the position to the broader community. This enables agencies to target their recruitment through disability employment service providers.

Do we need to Gazette the engagement?

Yes, the engagement of the person must be notified in the APS Employment Gazette consistent with arrangements for other engagements and as outlined at regulation 3.12 of the Public Service Regulations 1999.

Are there any changes to existing special measures provisions?  How does this differ?

There are no changes to existing special measures provisions.  These arrangements differ in that there is no requirement to advertise the position and no requirement to conduct a competitive merit selection process among candidates for an identified position.

Can I use these provisions to engage a current non-ongoing employee as an ongoing employee?

Yes, but the conditions for engagement must still be met, i.e. they must be assessed as being unable, or likely to be unable, to compete on merit in a competitive selection process and the engagement must be done with the assistance of a disability employment service provider.

Once an employee is engaged under these measures, can they be used again for advancement to a higher classification (promotion?)

No, the new arrangements are for the engagement of employees only and are not able to be applied to promotions.

Can you explain the “conversion” part of the new arrangements further?

Under clause 4.3B of the Directions, an agency head can seek the authorisation of the Public Service Commissioner to engage, as an ongoing APS employee, a person with disability who was engaged as a non-ongoing APS employee using the new provisions. 

It is the agency’s responsibility to

  1. provide evidence that the person’s engagement as non-ongoing met the requirements of the new provisions; and
  2. satisfy the Commissioner that the person should not be required to participate in a competitive selection process to obtain the ongoing position.

Agencies seeking to use this provision should formally write to the Public Service Commissioner outlining the situation as comprehensively as possible.

Will special performance management policies apply to an individual with disability, or will the individual be exempt from these processes?

No special performance management policies apply and the individual should not be exempt from performance management processes. As a matter of good practice managers should be working closely with the individual around performance expectations, as well as accessing the additional support available through disability employment service providers.

In managing employees engaged under these provisions, agencies are encouraged to take a positive approach that focuses upon the capabilities and capacities of the person. Agencies should also have regard to reasonable adjustment considerations and the flexible application of the work level standards within their agency.

Where do I go for further advice and assistance?

The Australian Public Service Commission is happy to address further queries or concerns via e-mail through the employmentadvice [at] apsc.gov.au (Employment Policy Advice mailbox), or the abilityatwork [at] apsc.gov.au (Ability at Work mailbox).