Legislative changes affecting Independent Selection Advisory Committees
The Public Service Amendment Act 2013 (the Amendment Act) made significant changes to the Public Service Act 1999 (the PS Act). As a consequence the Public Service Regulations 1999 (the Regulations) have been amended and the Public Service Commissioner's Directions 1999 repealed and replaced with the Australian Public Service Commissioner's Directions 2013 (the Directions).
The Australian Public Service Commission (the Commission) has developed a series of ‘Advices’ to assist Australian Public Service (APS) agencies implement the changes in the amended Public Service Act and Regulations, and the new Directions. The Advices are available on the Circulars and advices page of the Commission's website.
This Advice provides agencies with information on the changes to the Regulations impacting on the operation of Independent Selection Advisory Committees. The changes will come into effect on 1 July 2013.
Why are these changes being made?
Under Part 4 of the Regulations, an agency head can ask the Merit Protection Commissioner to establish an Independent Selection Advisory Committee (ISAC). An ISAC is an independent committee that makes recommendations to agencies about the suitability of candidates for engagement, promotion or assignment of duties.
Amendments have been made to the Regulations to provide:
- ISACs with the flexibility to use a greater range of selection methodologies, consistent with contemporary recruitment practices, while maintaining the independence of the process; and
- agency heads with greater flexibility to use ISAC recommendations during the 12 months they are valid, in certain circumstances.
What changes are being made?
An ISAC will be able to use expert opinion and use agency staff as appropriate
An ISAC assesses candidates for an employment opportunity on the relative suitability of each candidate for the duties, their work-related qualities and the relative capacity of each candidate to achieve outcomes related to the duties (Regulation 4.7).
The amendments to Regulation 4.7 (detailed in the Attachment) will enable an ISAC to seek and accept expert opinion about the work-related qualities and capabilities of candidates (subregulation 4.7(1A)) and to appoint the agency head (or their delegate) to act on behalf of the ISAC in the conduct of some or all of an assessment (subregulation 4.7(1B)).
These amendments will enable an ISAC to access technical expertise when assessing the relative suitability of candidates, for example, using an assessment centre or professionals to provide technical testing. The amendments are consistent with current agency practice for non-ISAC recruitment processes and reflect modern recruitment practices.
The amendments also provide for an ISAC to draw on the resources of the agency, including agency employees to assist with the assessment of candidates. This may be particularly helpful in large recruitment exercises.
Ensuring the independence of an ISAC
While the ISAC may use information provided by experts, or through the actions of an agency head appointed to act as an agent, it is the ISAC that must make recommendations about candidates.
Amendments have been made to the Regulations to ensure that an ISAC retains its independence. The Merit Protection Commissioner's powers to issue binding instructions about the procedures of an ISAC to ISAC members have been extended to include any agency head who is appointed as an agent for an ISAC. New subregulation 4.7(1C) provides that an agency head appointed to assist an ISAC under new subregulation 4.5(1A), when acting in that capacity, must act in accordance with instructions provided by the ISAC and the instructions issued by the Merit Protection Commissioner. There is no change to Regulation 4.9 which provides that the recommendations of an ISAC are not binding on an agency head.
The Merit Protection Commissioner will issue new binding instructions to cover the operation of ISACs before 1 July 2013.
Acting on ISAC recommendations
ISACs usually make their recommendations to an agency head through a numerical ranking of candidates based on an assessment of their relative suitability. This numerical ranking is commonly referred to as an order of merit. If an agency head follows the recommendations of an ISAC then the promotions of candidates are not subject to review by a Promotion Review Committee.
An agency head is able to use the recommendations of an ISAC for a period of up to 12 months from the date of notification of the vacancy or vacancies, in the Public Service Gazette (see clause 2.9 of the Directions). In the potential gap of up to nearly 12 months between the ISAC making the recommendation and the agency head acting on it, the circumstances of a candidate can change in ways that may affect their suitability for the employment opportunity. For example, a candidate may, in the intervening period, be found to have breached the APS Code of Conduct in ways that affect their suitability for the employment opportunity.
Currently, if an agency head takes new information into account, such as a breach of the Code of Conduct, and decides not to promote a candidate, then all subsequent promotions from that order of merit become reviewable by a Promotion Review Committee. A new subregulation 4.11(1A) has been made for Part 4 of the Regulations (detailed in the Attachment). It provides two circumstances where, if an agency head does not follow the recommendation of an ISAC, subsequent promotions do not become reviewable. These circumstances are:
- where a candidate has been found to have breached the Code of Conduct and the agency head considers that as a result of that breach the candidate is no longer suitable
- where a candidate has lost an essential qualification (most commonly a security clearance).
Two additional subregulations have been made to ensure the integrity of the ISAC's recommendations. If an agency head is considering not following an ISAC recommendation for either of the two circumstances above, the agency head must consult the Merit Protection Commissioner before acting (subregulation 4.11(1A)(b)) and the agency head must act in accordance with the ISAC recommendation for the next suitable candidate (subregulation 4.11(1A)(c)). In situations where an employee has been found to have breached the Code of Conduct, the Merit Protection Commissioner has advised that she will, amongst other factors, have regard to whether the breach is material and relevant to the role.
Gazettal of decisions
Subregulation 4.10(2) requires that all engagements, movements and promotions must be published in the Public Service Gazette as having been made in accordance with an ISAC recommendation. A note has been added to emphasise that this requirement includes any subsequent engagements, movements and promotions made in accordance with the ISAC recommendations.
References to the provisions relating to the gazettal of engagements, movements and promotions have been changed. Regulations 3.8 and 3.8A have been repealed and the provisions (unchanged) incorporated into Chapter 2 of the Directions.
All references to the electronic APS Employment Gazette have been changed to Public Service Gazette.
What do agencies need to do?
Agencies need to do the following before the legislation commences on 1 July 2013.
1. Where relevant, revise their selection policies and procedures to reflect the changes to the Regulations relating to ISACs
Agencies should review and revise their guidance material, as appropriate, to ensure any material reflects the changes to ISAC procedures and to comply with the new binding instructions issued by the Merit Protection Commissioner to cover the operation of ISACs.
2. Communicate the changes to their managers and recruitment delegates
Agencies need to communicate the changes relating to greater flexibility in operation and the capacity of the Merit Protection Commissioner to issue instructions to managers and delegates who are, or may be, using ISACs.
3. Contact the Office of the Merit Protection Commissioner regarding the use of the order of merit
Delegates who act on ISAC recommendations need to be aware of the changes. Delegates may need to know of the capacity not to accept a recommendation in relation to a particular candidate, in the circumstances provided for in regulation 4.11 and the need to consult the Merit Protection Commissioner.
What transitional arrangements need to be put in place?
If an ISAC has been established but the ISAC has not reported on the outcome of its process to the relevant agency head by 1 July 2013, the ISAC may operate in accordance with the amended Regulations provided that its actions are not inconsistent with information provided to candidates.
Regulation 4.11 (Effect of not acting in accordance with ISAC recommendation) will apply to:
- promotion decisions made by an agency head acting on the basis of an ISAC's recommendations that are still valid at 1 July 2013 (i.e. the ISAC's recommendations were made less than 12 months after the date of notification of the vacancy or vacancies, in the Public Service Gazette); and
- all ISAC recommendations made after 1 July 2013.
Why use an ISAC
ISACs play an important role in maintaining public confidence in the application of merit in engagement and promotion decisions. ISACs provide streamlined, cost-effective and timely merit-based selection processes on a fee-for-service basis. They can be used for selection processes of any size but are especially useful for large or sensitive processes where the maintenance of good workplace relations may be placed at risk if the process is not seen to be independent and impartial. An additional benefit is that promotions of APS employees made as a result of an ISAC recommendation are not subject to the promotion review procedures allowing faster employee placement.
Agencies interested in establishing an ISAC should contact the Employment Services Section in the Sydney Area Office of the Australian Public Service Commission.
Phone: (02) 8239 5300
Email: consultancy [at] apsc.gov.au.
Information on the operation of ISACs is also available on the Commission's website:
The Amendment Act, the Public Service Amendment Regulation 2013 and the Australian Public Service Commissioner's Directions 2013 are available on the Comlaw website.
The Advices are available from the Circulars and advices page. This advice should be read in conjunction with:
Enquiries from agencies' corporate services staff can be made by email at ethics [at] apsc.gov.au or by telephone on 02 6202 3737.
APS employees who have queries about how the changes will affect them are asked to contact the HR area in their agency.
Group Manager, Ethics
Australian Public Service Commission
Attachment: Public Service Amendment Regulation 2013
13 After subregulation 4.7(1)
- In conducting an assessment under subregulation (1), the ISAC may seek and accept expert opinion about the work‑related qualities and capabilities of candidates.
- The ISAC may appoint the relevant Agency Head to act on behalf of the ISAC in conducting some or all of an assessment under subregulation (1).
- The Agency Head:
- must act in accordance with instructions given to the Agency Head by the ISAC; and
- must act in accordance with instructions from the Merit Protection Commissioner only to the extent that the Agency Head is appointed as an agent of the ISAC under subregulation (1B).
16 Subregulation 4.11(2)
Repeal the subregulation, substitute:
- However, subregulation (1) does not apply if:
- either of the following occurs after the ISAC has made its recommendation:
- the candidate is found to have breached the Code of Conduct, and the Agency Head believes that the candidate is no longer suitable for the employment opportunity;
- the candidate has lost a qualification which is essential for the candidate's suitability for the employment opportunity; and
Example: A security clearance.
- the Agency Head has consulted with the Merit Protection Commissioner about the candidate; and
- the Agency Head acts in accordance with the recommendation of the ISAC in relation to the next suitable candidate.
- either of the following occurs after the ISAC has made its recommendation:
- The promotion must be published in the Public Service Gazette as a promotion decision that is subject to review under Division 5.2.