The APS merit principle
Merit is a fundamental principle of Australian Public Service (APS) employment. Section 10A(1)(c) of the Public Service Act 1999 (the PS Act) sets out the APS Employment Principles, which establish that the APS is a career-based public service that makes decisions relating to engagement and promotion that are based on merit.
In accordance with section 10A(2) of the PS Act, a decision to engage or promote a person is based on merit if:
- all eligible members of the community are given a reasonable opportunity to apply to perform the relevant duties; and
- an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and
- the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and
- the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and
- the assessment is the primary consideration in making the employment decision.
Section 22 of the PS Act allows for an Agency Head to engage an individual as an APS employee and section 25 enables the promotion of an APS employee. When making these decisions, an Agency Head must uphold the APS Employment Principles. How merit is applied in APS engagement and promotion decisions is explained in Part 4 of the Australian Public Service Commissioner's Directions 2022 (the Directions).
Elements of the merit principle
Merit based selection process
Section 23 of the Directions outlines that an Agency Head upholds the APS Employment Principle 10A(1)(c) of the PS Act by making an engagement or promotion decision that is informed by a merit-based selection process. Section 24 of the Directions outlines that a merit-based selection process for engagement or promotion must include the following elements:
- the aim and purpose of the selection process is determined in advance
- information about the selection process is readily available to candidates
- the selection process is applied fairly in relation to each eligible candidate and
- the selection process is appropriately documented.
In deciding the suitability of a candidate to be engaged or promoted, merit is the primary consideration. If the candidate is otherwise equal on merit with another candidate, secondary considerations may be taken into account if they relate to matters within the control of the candidate, for example willingness to relocate.
Section 23 of the Directions also provides that Subdivision C, sections 27 – 38 sets out circumstances in which merit-based selection processes are modified or do not apply.
Notifying vacancies – reasonable opportunity to apply
Section 25 of the Directions outlines the requirements for notifying a vacancy.
Vacancies which may result in the engagement or promotion of
- an ongoing employee; or
- prior to the commencement of subsection 333E(1) of the Fair Work Act 2009 (FW Act), the engagement of a non-ongoing employee for an initial period of more than 18 months; or
- following the commencement of subsection 333E(1) of the FW Act, the engagement of a non-ongoing employee for an initial period of more than 12 months
must be notified in the Public Service Gazette (PS Gazette). A written decision to engage or promote a candidate must be made within 18 months of the vacancy being notified in the PS Gazette.
For example, if a vacancy is advertised in the PS Gazette on 18 October 2021, a merit list or pool formed from that recruitment process may be used to engage or promote into a similar vacancy by 17 April 2023 (18 months after the original vacancy notification).
Assessment of candidates
A merit-based decision requires:
- an assessment to be made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and
- the assessment to be based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and
- the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and
- the assessment is the primary consideration in making the decision.
Relative suitability of candidates
There must be an assessment of the relative suitability of the candidates to perform the relevant duties. Relative suitability is where a candidate’s suitability is compared to the suitability of other candidates using a competitive selection process.
A candidate is assessed on:
- the relationship between their work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and
- their capacity to achieve outcomes related to the relevant duties; and
- a comparison against the other candidates that are being considered for the vacancy.
The work-related qualities that may be taken into account when making an assessment of a candidate's suitability include:
- skills and abilities
- qualifications, training and competencies
- standard of work performance
- capacity to produce outcomes by effective performance at the level required
- relevant personal qualities, such as honesty and integrity
- potential for further development and
- ability to contribute to team performance.
When undertaking a recruitment process, there needs to be a clear understanding of the role and what is genuinely required for the role. Gender and age are not work-related qualities.
Awareness of unconscious bias will assist assessors to focus on work-related qualities.
Capacity to achieve outcomes
An assessment of a candidate’s capacity to achieve outcomes related to the relevant duties considers how the candidate demonstrates their work-related qualities on-the-job. It may also consider related qualities such as drive, initiative or other behavioural qualities that relate to a candidate’s ability to deliver in the context of the role.
You are recruiting for an APS level 3 customer service officer. The assessment for work-related qualities aims to assess the skills, knowledge and abilities needed to undertake basic claims processing. Skills required could include verbal communication, working collaboratively, developing positive relationships and a commitment to customer service. It would not be a genuine requirement for a customer service officer at this level to have a high level of problem solving or strategic stakeholder engagement capabilities.
How each candidate demonstrates their effectiveness at communicating and working collaboratively, and their customer service experience is the assessment of capacity to achieve outcomes related to the relevant duties.
You are recruiting for an APS level 6 team leader - customer service role. The work-related qualities required would be more developed and advanced compared to an APS level 3 customer service officer. For example, leading rather than contributing to team and organisational outcomes, and additional work-related qualities, such as people management skills, may also be required.
The assessment process should enable the selection panel to decide which candidate most effectively demonstrated the work-related qualities for the role and their ability to achieve outcomes, to be able to provide a recommendation to the decision maker.
Case Study: Upholding the merit principle in a rolling recruitment campaign
Scenario: an agency proposes to conduct ‘anytime’ (or ‘rolling’) recruitment. It advises that it would like to have positions open for a long period of time, or permanently, during which it can short-list and interview candidates who can be placed in a merit list or pool. The selected candidates could then be offered ongoing roles at any time, as a vacancy arises. Can this be done?
Answer: ‘rolling’ or ‘anytime’ recruitment does not meet the requirements of a decision based on merit in accordance with section 10A(1) of the PS Act, for the engagement or promotion of ongoing APS employees.
While the PS Act does not explicitly state that all applications must be received before they can be assessed, a decision made prior to the assessment of all applications could not be considered a merit based decision. This is because it would not be possible to assess candidates against future candidates. Merit cannot be applied where the assessment only takes into account a candidate’s capability. Rolling recruitment processes where applications are assessed and offers are made prior to the closing date are incompatible with the requirements of merit.
Agencies may conduct ‘sequential’ recruitment, provided there are clear and unambiguous ‘rounds’. For example, a vacancy is notified on 1 May with a closing date of 31 May and, at that closing date, all candidates from that ‘round’ are comparatively assessed against the work-related qualities required to perform the job. The vacancy is subsequently readvertised on 1 June with a closing date of 30 June.
Merit is the primary consideration
In accordance with section 24(2) of the Directions, when making a selection decision, merit is the primary consideration and, if the candidates are otherwise equal on merit, secondary considerations may be taken into account if they relate to matters within the control of the candidate. These may include a candidate's:
- ability to start by a particular date
- a willingness to relocate or
- an ability to meet other reasonable agency requirements.
Secondary selection considerations should be directly related to the requirements of the role.
Any secondary consideration that is applied needs to be consistent with other elements of the APS Employment Principles and not used in a way that constitutes patronage or favouritism, or direct or indirect discrimination.
Where an agency uses a merit list or pool to fill a similar vacancy (defined at section 9 of the Directions) and, as the result of relevant secondary considerations a candidate is not successful, the candidate remains on the merit list or pool to be considered for future vacancies. For example, a person not selected because they could not start by a particular date would remain on the merit list or pool.
Non-ongoing and irregular and intermittent opportunities
For vacancies that are either:
- irregular or intermittent
- for 18 months or less, prior to the commencement of subsection 333E(1) of the FW Act; or
- for 12 months or less following commencement of subsection 222E(1) of the FW Act.
subsection 27(4) of the Directions requires that, as a minimum, an Agency Head must be satisfied that the person to be engaged has the work-related qualities genuinely required to perform the relevant duties.
While these vacancies are not required to be notified in the PS Gazette, subsection 27(3) of the Directions require that, as far as practicable, they are brought to the notice of the community in a way that provides a reasonable opportunity for eligible members of the community to apply. For example, such vacancies can be advertised on agency websites, on job boards/job seeker sites or on social media. This includes using an agency or a recruitment firm’s temporary registers.
Merit lists or pools
A merit list or pool may be established when an agency undertakes a competitive selection process.
A decision can be made to employ a person who has been found suitable for a vacancy, or similar vacancy (as defined at section 9 of the Directions), if the decision is made within 18 months of the original vacancy being notified in the PS Gazette. Doing so offers the agency and other APS agencies flexibility to fill future vacancies quickly and reduces recruitment costs.
Further information on merit lists and similar vacancies can be found on the Creating and Sharing Merit Lists or Pools webpage.
RecruitAbility offers candidates an opportunity to progress past the initial stage in the assessment process, if they opt into RecruitAbility and they have the work-related qualities required to perform the relevant duties and they meet the eligibility requirements (if any) of the role.
If an agency chooses to apply RecruitAbility they will:
- conduct an initial shortlisting assessment of all candidates
- check the non-shortlisted applications for any RecruitAbility candidates
- assess the RecruitAbility candidates and ensure they have the work-related qualities required to perform the relevant duties and who meet the eligibility requirements (if any); and
- progress RecruitAbility candidates who meet have the work-related qualities and meet the eligibility requirements(if any) of the role to the next selection stage.
Candidates who are assessed as having the work-related qualities required to perform the relevant duties and who meet the eligibility requirements, regardless of their participation in RecruitAbility, are not shortlisted for further consideration.
If applying the RecruitAbility scheme to a vacancy, the job advertisement must advise candidates that they are required to opt into the scheme, if eligible.
Further information on the RecruitAbility scheme can be found on the RecruitAbility webpage.
Under affirmative measures, a vacancy may be identified as open only to people with disability or Aboriginal and/or Torres Strait Islander peoples. Other than setting a limit on the eligibility of candidates to apply for a vacancy, all other requirements for merit apply.
Further information on affirmative measures can be found on the Diversity and Inclusion webpages.
HR practitioners seeking more information on the APS Merit Principle can contact the Employment Policy team via email@example.com or call the advice line on (02) 6202 3857.