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Senior Executive Service: An HR practitioner's guide to SES engagement, promotion, mobility and separation

 

1. Introduction

1. SES employees are persons employed under the Public Service Act 1999 (the PS Act). Under section 35 of the PS Act, and for the purpose of carrying out the functions of the SES, each SES employee:

a. provides one or more of the following at a high level:

i. professional or specialist expertise

ii. policy advice

iii. program or service delivery

iv. regulatory administration, and

b. promotes cooperation within and between agencies, including to deliver outcomes across agency and portfolio boundaries, and

c. by personal example and other appropriate means, promotes the APS Values, the APS Employment Principles and compliance with the Code of Conduct.

2. These guidelines provide APS agencies with information to assist them to manage selection, mobility and separation matters for SES employees.

2. SES Engagement and Promotion

  1. Employment decisions, including engagement and promotion decisions, must comply with the PS Act, the Public Service Regulations 1999 (the Regulations) and the Australian Public Service Commissioner's Directions 2016 (the Commissioner's Directions). In summary:
    • decisions relating to engagement and promotion in the APS are based on merit
    • promotion and engagement decisions are made using a competitive selection process
    • agency heads must develop selection processes that are fair and transparent.
       
  2. Before considering any SES recruitment action agencies should:
    • undertake careful and objective analysis of the position to identify whether it needs to be filled
    • be satisfied that filling the position can be accommodated within the agency's Average Staffing Level and SES cap; and
    • ensure that the position is classified correctly against the SES work level standards
       
  3. In accordance with the Government's Redeployment Policy, priority in staffing decisions must be given to excess employees from within the agency and those on the SES Redeployment Register.

Role of the Australian Public Service Commissioner (the Commissioner)

Circular 2018/5 introduced new processes relating to the Commissioner’s role in SES recruitment. The changes took effect from 1 February 2019. In summary:

  • The Commissioner is to be notified in advance of an agency’s intention to advertise any SES Band 3 vacancies
  • Agencies are asked to confirm with the Commissioner that they have identified and reviewed merit lists of all similar[1] SES vacancies, prior to advertising
  • For all SES processes where the Commissioner does not participate, the Commissioner’s approval of the representative is required, and
  • The Commissioner is to be provided details of the outcomes of all SES selection processes.   

[1] The definition of a similar vacancy is outlined at section 9 of the Directions 2016. 

Prior to advertising

  1. Before notifying an SES vacancy, an agency is required to:
  • For SES Band 3 roles - notify the Commissioner of an intention to advertise. Refer to Template 2
  • For all SES roles - check the redeployment register. For more information see ‘SES Redeployment Register’ below, and
  • For all SES roles - identify and review merit lists for similar SES vacancies.

Advertising and Selection

 For information on the legislative requirements that apply, see Management Essentials – Recruitment.

  1. Agencies are also bound by the requirements of the Department of Finance’s Recruitment Advertising Policy which applies to all non-corporate Commonwealth entities covered by the Public Governance, Performance and Accountability Act 2013. In general, this policy prohibits advertising in major daily newspapers unless an exemption is approved by the Agency Head. The policy also applies where agencies engage external assistance to conduct the selection process. Queries relating to the Advertising Policy should be directed to the Department of Finance.
     
  2. Where an agency chooses to use the services of an external provider, such as an executive search firm or recruitment company, it is important the agency ensure that the provider is, at all times, aware of, and compliant with, both the legislative framework and any agency-specific policies or guidelines. In particular, any process must satisfy the requirements of section 10A(2) of the PS Act (Employment Principle on merit) and Part 3 of the Directions (Recruitment and Selection).
     
  3. SES positions may be offered under the RecruitAbility, scheme. The scheme provides an opportunity for people with disability to progress to further assessment stages in APS recruitment processes.

Selection panels

  1. Selection processes for all SES roles must include the Australian Public Service Commissioner (Commissioner) or a representative of the Commissioner - see below.
     
  2. Care needs to be taken to avoid any conflict of interest, perceived bias, negative or positive, patronage or favouritism. In particular, if a panel member is asked for a reference from an applicant, it is desirable for that panel member to provide comments before accessing information on other applicants. In addition, if a panel member has a working or personal relationship with an applicant that could give rise to a conflict of interest, real or perceived, it must be declared to all panel members, or to the delegate if the chair is making the declaration. The panel can then decide whether the panel member should stand aside from the whole process or from consideration of the particular candidate.

Commissioner's representative

  1. Section 21 of the Commissioner's Directions provides additional requirements for SES engagement or promotion decisions, including that:
    • the Commissioner or a representative of the Commissioner, is a full participant in the selection process, and
    • at the end of the process the representative must certify that the selection process complied with the PS Act and Commissioner's Directions (Appendix A).
  2. The representative’s certification is to be provided to the Commissioner before proceeding with promotion or engagement action. Further guidance, and the representative’s certificate can be found at Guidance for representatives of the Australian Public Service Commissioner in Senior Executive Service selection processes.

  3. For SES Band 1 and Band 2 vacancies, the agency will propose a Commissioner’s representative. Please refer to Template 1. The Commissioner’s approval of the representative is required. 

  4. For all SES Band 3 roles, agencies are expected to invite the Commissioner to participate in the selection process. Please refer to Template 3. Should the Commissioner be unavailable, he or she will nominate a representative or ask the agency to propose a suitable representative. For Band 3 roles, this will generally be a Secretary or Agency Head. The Commissioner’s approval of the representative is required. 

  5. The Commissioner’s representative brings to a selection panel an external perspective to assist in considering the broader range of management and leadership capabilities required at the SES level and avoid a narrower focus only on the particular requirements of the role concerned. This helps to ensure individuals selected to perform SES duties will possess the full range of skills required to operate at the SES level in the APS.

  6. The Commissioner’s representative has a key role in assisting the selection panel in upholding merit and in ensuring that decisions are consistent with relevant APS Values, APS Employment Principles and the legislative framework.

  7. The Commissioner’s representative is expected to be an APS employee from outside the advertising agency’s portfolio.

  8. In addition, the Commissioner’s representative is expected to be substantively above the classification level of the advertised vacancy concerned. The overall composition of the panel and gender balance is also a consideration.

  9. The representative is expected to be fully independent and impartial. On this basis they should not be a referee for any of the applicants, unless this is unavoidable. In addition, it is preferred that agencies nominate a different individual to represent the Commissioner on each occasion. This will help to maintain the independence of the representative, and to ensure the responsibility is spread evenly across the APS.

Outcome of selection process

  1. Following the completion of a selection process, There are several possible decisions the delegate might reach on the basis of the panel's recommendation:
    • promote an existing APS employee
    • move an existing SES employee, at level, either temporarily or on an ongoing basis
    • engage a person from outside the APS on either an ongoing basis or for a specified term of up to five years, or
    • defer any staffing action, due to either changed operational requirements or where the field of applicants has not produced a suitable candidate.
  2. A delegate is not bound by the recommendations of the selection panel. However, any decision needs to be justified having regard to the requirements of the PS Act and merit.
  3. The Commissioner is to be notified of the outcomes for all SES recruitment processes. Please refer to Template 4.

Promotion

  1. Where a successful applicant is an existing ongoing APS employee, at a lower substantive classification level than the vacancy being filled, the outcome will be a promotion. The Agency Head will assign duties to that person in accordance with section 25 of the PS Act.

  2. Where the successful applicant for promotion is an employee in a different APS agency, the Agency Head must enter into an agreement with the employee to move to the promoting agency under section 26 of the PS Act. The new Agency Head will then assign duties under section 25 of the PS Act.

Reassignment and movement

  1. An Agency Head may decide to move an existing SES employee within the agency at any time, at the same classification level.

  2. Section 26 of the PS Act enables an Agency Head to offer an SES employee the opportunity to transfer between agencies, at level, without the requirement for a full merit selection process

  3. Section 37 of the Directions stipulates that an ongoing transfer takes effect four weeks after the employee notifies the losing agency, in writing, of the move unless an alternative date is agreed between the employee and both Agency Heads.

  4. In recognition of the important role that SES employees perform in the operations of agencies, an Agency Head proposing to offer an employee a transfer under section 26 may wish to discuss the proposal with the losing agency before making an offer to the employee.

Temporary assignment of duties

  1. Where there is a short term requirement for SES duties to be performed, there are several options that an Agency Head might consider. These include:
  • under s25 of the PS Act, temporarily assigning the duties to an APS employee
  • under s26 of the PS Act, transferring an APS employee from another agency and then assigning the duties to them, or
  • engaging a person from outside the APS for a specified term.
     
  1. Depending on the duration of the requirement, it might be appropriate to notify the vacancy in the Public Service Gazette.
     
  2. it should be noted that for SES cap reporting purposes, all SES roles which are filled for three months or more are to be included. This means that where an SES role is performed for at least three months, whether or not by the same employee, it is expected that the role will be reported as an active SES role against the agency’s SES cap. Please note the general principle that the agency funding a role is expected to report the role against their SES cap. For more information, see SES cap.

Engagement

  1. Where the preferred applicant is from outside the APS, the outcome will be engagement under section 22 of the PS Act.
     
  2. Depending on how the SES vacancy was advertised, the person may be engaged as:
    • an ongoing SES employee, or
    • a non-ongoing SES employee for a specified term of up to five years.
  3. Any conditions to be imposed, such as probation, must be specified before the employee is engaged as such conditions cannot be imposed after the engagement has commenced.

  4. Under Regulation 3.4, if an engagement is made for a specified term, and the initial term is less than five years, the Agency Head may extend the specified term, but only to the extent that the term of engagement is no more than five years in total.

  5. Where a person is to be engaged for a specified term, it is recommended that agencies include in the employee’s employment contract/determination, a suitable provision covering compensation in the event of early termination of the engagement. See also Management Essentials – non-ongoing (temporary) employment.

Restrictions on engaging redundancy benefit recipients

  1. There are arrangements in place in the APS which may limit the subsequent employment of people who have received a redundancy benefit. For more detail on these arrangements refer to section 48 of the Commissioner's Directions or the information available on the APSC website

Notifying outcomes in the Gazette

  1. The following outcomes must be notified in the Public Service Gazette:
  • the promotion of an ongoing APS employee
  • the promotion of an ongoing APS employee, following the decision of a Promotion Review Committee under subparagraph 5.18(1)(b)(ii) of the Regulations that has not been notified under paragraph (a);
  • the engagement, promotion or assignment of duties of a person made in accordance with an Independent Selection Advisory Committee recommendation;
  • the engagement of an ongoing Parliamentary Service employee as an ongoing APS employee at a higher classification than the person’s current classification as a Parliamentary Service employee;
  • the termination of the employment of an ongoing APS employee on the ground mentioned in paragraph 29(3)(g) of the Act (breach of the Code of Conduct
     
    1. Employment decisions must be notified in the Gazette within three months of the decision being made. More information can be found at section 34 of the Directions.

Remuneration

  1. Remuneration for SES employees is determined by Agency Heads as part of their employer powers under section 20 of the PS Act. Such decisions are to be made in accordance with government policy as outlined in the Workplace Bargaining Policy and the APS Executive Remuneration Management Policy.

  2. Under the Executive Remuneration policy, Agency Heads are required to seek the agreement of the Commissioner before offering an APS employee (SES or non-SES) remuneration above the notional amount. The notional amount is set at 65% of the lowest pay point of the Secretaries classification structure as recommended by the Remuneration Tribunal.

3. SES Mobility

SES Redeployment Register

  1. The SES Redeployment Register facilitates the redeployment of SES employees identified as excess, or potentially excess, who have expressed interest in continuing to work in the APS. The register is managed by the APSC Staffing Policy team.

  2. The register lists SES employees available to transfer at level or to be considered for opportunities at lower classifications. Agencies can access CVs and make an initial assessment as to whether the employee has the work-related qualities needed to fill the vacancy.

  3. Any information provided to Staffing Policy is treated confidentially. Affected SES, or agencies with an SES vacancy, may contact staffingpolicy [at] apsc.gov.au regarding the register.

  4. For more information see the APS Redeployment Policy and Guidelines.

Arrangements for agencies seeking to redeploy excess SES employees

  • Establish whether an employee wishes to participate in the process.  If so, advise them that their details/CV will be provided to the APSC and may be made available to other APS agencies seeking to fill SES vacancies.
  • Complete the Excess SES Employee form (Appendix A), ensuring it is signed by both the employee and the Agency Head.  The form asks for relevant personal details, an indication of recent relevant experience and an indication of the types of roles suitable for the excess employee.
  • Forward the form, together with the employee’s CV, to staffingpolicy [at] apsc.gov.au
  • Discuss with the employee the likely outcomes should redeployment not prove possible.  This might include an incentive to retire payment under section 37 of the PS Act or termination under section 29 of the PS Act. In the latter context, it should be noted that participation in redeployment arrangements would provide a firmer basis for the Commissioner to make an appropriate judgement, in accordance with section 38 of the PS Act, as to whether the termination of employment is in the public interest.
  • Please email staffingpolicy [at] apsc.gov.au to advise when an employee is to be removed from the register.

Arrangements for agencies seeking to fill SES vacancies

  • Where an agency seeks to fill a vacancy, they are required to check the SES Redeployment Register for suitable candidates.  To do this, agencies should complete an SES Vacancy form (Appendix B) and send it to staffingpolicy [at] apsc.gov.au
    (Please note the changes to SES recruitment outlined in Circular 2018/5 negate the need for the completion of Appendix B when seeking to fill SES Band 3 vacancies)
  • Staffing Policy will assess the requirements of the vacancy against the skills and experience of any excess employees who have been referred to the register, and forward the details of any potentially suitable employees to the agency undertaking the recruitment action. 
  • The agency will determine the potential suitability of any individual. An employee referred in these circumstances must be considered in isolation to establish their possible suitability.
  • If an employee is considered potentially suitable, the agency may contact the employee and undertake an appropriate assessment of their claims (via interview or referee checks as necessary).
  • If an employee is assessed as suitable and is willing to accept the position, the losing and gaining agencies may progress the movement in accordance with section 26 of the PS Act, section 37 of the Directions and the considerations in terms of reassignment and movement of SES employees.
  • If an agency has considered the CVs of excess employees on the SES Redeployment Register without finding a suitable candidate, the vacancy may be advertised.

Assignment to a lower level

  1. In some circumstances SES employees can be moved to duties at a lower SES classification or to a non-SES classification, either with or without their agreement. Consideration of such a move must be based on one or more of the reasons set out in section 23(4) of the PS Act.

  2. Consideration may need to be given to adjusting the agency’s SES cap, particularly when the reclassified role is as a result of the SES role being abolished.

4. SES Separation

Termination of Employment

49.  For information on the legislative requirements that apply, see Management Essentials - Terminating Employment

  1. In some circumstances SES employees can be moved to duties at a lower SES classification or to a non-SES classification, either with or without their agreement. Consideration of such a move must be based on one or more of the reasons set out in section 23(4) of the PS Act.

  2. Consideration may need to be given to adjusting the agency’s SES cap, particularly when the reclassified role is as a result of the SES role being abolished

Age retirement

  1. SES employees may retire at any time after reaching age 55 by notice in writing to the agency head (section 30 of the PS Act).

Retirement with an incentive

  1. Section 37 of the PS Act allows an Agency Head to retire an SES employee with an incentive to retire payment.  For more information see Senior Executive Service employees - incentive to retire.

Displaced or potentially displaced SES employees – Appendix A

The SES Redeployment Register facilitates the movement of SES employees identified as excess, or potentially excess, and who have expressed interest in continuing to work in the APS.

Where an SES employee wishes to have their details included on the SES Redeployment Register, their agency will need to arrange for the employee to complete this form, providing an indication of relevant experience and the types of roles suitable for the excess employee.  Once completed, the form, along with the individual’s CV, should be submitted to staffingpolicy [at] apsc.gov.au.

The management of the SES Redeployment Register is treated confidentially and affected SES, or agencies with SES vacancies, may contact staffingpolicy [at] apsc.gov.au More detailed information regarding mobility can be found in the SES selection, mobility and separation guidelines.

Request for SES Redeployment Register Check – Appendix B

The SES Redeployment Register facilitates the movement of SES employees identified as excess, or potentially excess, and who have expressed interest in continuing to work in the APS

Where an agency seeks to check the SES redeployment register for suitable candidates to fill a vacancy, they should refer the vacancy to the APSC by emailing the completed SES Vacancy form to staffingpolicy [at] apsc.gov.au

Staffing Policy will review the requirements of the vacancy against the skills and experience of any excess employees who have been referred to the SES Redeployment Register, and forward details of any potentially suitable employees to the agency undertaking the recruitment action.

The management of the SES Redeployment Register is treated confidentially and affected SES or agencies with SES vacancies, may contact staffingpolicy [at] apsc.gov.au More detailed information regarding mobility can be found in the SES selection, mobility and separation guidelines on the APSC website.

5. Appendices and Templates

Excess or potentially excess SES employees – Appendix A

The SES Redeployment Register facilitates the movement of SES employees identified as excess, or potentially excess, and who have expressed interest in continuing to work in the APS.

Where an SES employee wishes to have their details included on the SES Redeployment Register, their agency will need to arrange for the employee to complete this form, providing an indication of relevant experience and the types of roles suitable for the excess employee.  Once completed, the form, along with the individual’s CV, should be submitted to staffingpolicy [at] apsc.gov.au.

The management of the SES Redeployment Register is treated confidentially and affected SES, or agencies with SES vacancies, may contact staffingpolicy [at] apsc.gov.au. More detailed information regarding mobility can be found in the SES selection, mobility and separation guidelines.

Request for SES Redeployment Register Check – Appendix B

The SES Redeployment Register facilitates the movement of SES employees identified as excess, or potentially excess, and who have expressed interest in continuing to work in the APS

Where an agency seeks to check the SES redeployment register for suitable candidates to fill a vacancy, they should refer the vacancy to the APSC by emailing the completed SES Vacancy form to staffingpolicy [at] apsc.gov.au.

Staffing Policy will review the requirements of the vacancy against the skills and experience of any excess employees who have been referred to the SES Redeployment Register, and forward details of any potentially suitable employees to the agency undertaking the recruitment action.

The management of the SES Redeployment Register is treated confidentially and affected SES or agencies with SES vacancies, may contact staffingpolicy [at] apsc.gov.au. More detailed information regarding mobility can be found in the SES selection, mobility and separation guidelines on the APSC website.

Templates – SES Recruitment

Proposal of Commissioner’s Representative - SES Band 1 and 2

Intention to Advertise - SES Band 3

Invite for Commissioner - SES Band 3

Notification of Outcome - SES Band 1, 2 and 3