Australian Public Service Commissioner’s
Directions 2016
made under subsections 11(1), 11A(1) and (2) and 15(6) of the
Public Service Act 1999
Compilation No. 1
Compilation date:
25 July 2019
Includes amendments up to:
F2019L01001
Registered:
31 July 2019
Prepared by the Office of Parliamentary Counsel, Canberra
Authorised Version F2019C00615 registered 31/07/2019
About this compilation
This compilation
This is a compilation of the
Australian Public Service Commissioner’s Directions 2016 that
shows the text of the law as amended and in force on 25 July 2019 (the
compilation date).
The notes at the end of this compilation (the
endnotes) include information about amending
laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any
uncommenced amendments affecting the law are accessible on the Legislation Register
(www.legislation.gov.au). The details of amendments made up to, but not commenced at, the
compilation date are underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an
application, saving or transitional provision that is not included in this compilation, details are
included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the
modification does not amend the text of the law. Accordingly, this compilation does not show
the text of the compiled law as modified. For more information on any modifications, see the
series page on the Legislation Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the
law, details are included in the endnotes.
Authorised Version F2019C00615 registered 31/07/2019
Contents
Part 1—Introduction
1
Division 1—Introduction
1
1
Name ........................................................................................................................... 1
3
Authority ..................................................................................................................... 1
Division 2—Definitions
2
5
Definitions .................................................................................................................. 2
6
Meaning of
promotion ................................................................................................ 3
7
Meaning of
vacancy .................................................................................................... 3
8
Meaning of
Senior Executive Service (SES) vacancy .................................................. 4
9
Meaning of
similar vacancy ........................................................................................ 4
10
Meaning of
work-related qualities .............................................................................. 4
Part 2—APS Values
5
11
Overview..................................................................................................................... 5
12
APS to incorporate and uphold APS values ................................................................ 5
13
Committed to Service: The APS is professional, objective, innovative and
efficient, and works collaboratively to achieve the best results for the
Australian community and the Government ............................................................... 5
14
Ethical: The APS demonstrates leadership, is trustworthy, and acts with
integrity, in all that it does .......................................................................................... 6
15
Respectful: The APS respects all people, including their rights and their
heritage ....................................................................................................................... 6
16
Accountable: The APS is open and accountable to the Australian community
under the law and within the framework of Ministerial responsibility ........................ 6
17
Impartial: The APS is apolitical and provides the Government with advice
that is frank, honest, timely and based on the best available evidence ........................ 7
Part 3—Recruitment and selection
8
Division 1—Upholding APS Employment Principle 10A(1)(c)
8
Subdivision A—Introduction
8
18
How an Agency Head upholds APS Employment Principle 10A(1)(c) ...................... 8
Subdivision B—Merit-based selection processes
8
19
Merit-based selection process for engagement or promotion ...................................... 8
20
Notification of vacancy in the Public Service Gazette ................................................ 9
21
Additional requirements for SES engagement or promotion decisions ......................10
Subdivision C—Engagement and promotion in certain circumstances
10
22
Engagement on a short-term, irregular or intermittent basis ......................................10
23
Engagement of person from state or territory jurisdiction ..........................................11
24
Engagement of ongoing APS employee as non-ongoing APS employee ...................11
25
Engagement of non-ongoing APS employee as ongoing employee in
exceptional circumstances ..........................................................................................12
26
Affirmative measure—Indigenous employment ........................................................12
27
Affirmative measure—disability ................................................................................13
28
Affirmative measure—RecruitAbility Scheme ..........................................................13
29
Promotion after appointment to a statutory office ......................................................13
30
Engagement of non-APS employee following a machinery of government
change ........................................................................................................................14
31
Engagement of an ongoing Parliamentary Service employee as an ongoing
APS employee............................................................................................................14
Australian Public Service Commissioner’s Directions 2016
i
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
32
Re-engagement of election candidates .......................................................................14
33
Re-engagement of a former APS employee ...............................................................16
Division 2—Gazettal of certain employment decisions and promotions
17
34
Gazettal of employment decisions .............................................................................17
35
Gazettal
when decisions previously notified are cancelled ........................................18
36
When promotion decisions take effect .......................................................................18
Part 4—Working in the APS
21
Division 1—Movement of APS employees between agencies
21
37
Moves between agencies not associated with promotion ...........................................21
38
Moves between agencies on promotion .....................................................................22
Division 2—Performance management and culture
23
39
Achieving effective performance—Agency Heads ....................................................23
39A
Achieving effective performance—supervisors .........................................................24
39B
Achieving effective performance—APS employees ..................................................24
40
Managing performance in cases of a potential breach of the Code of Conduct .........25
Part 5—Handling suspected breaches of the Code of Conduct
26
Division 1—Introduction
26
41
Purpose ......................................................................................................................26
42
Application to former APS employees .......................................................................26
Division 2—Basic procedural requirements
27
43
Employee must be informed that a determination is being considered ......................27
44
Employee must be informed before a sanction is imposed ........................................27
45
Person making determination to be independent and unbiased ..................................27
46
Determination process to be informal ........................................................................27
47
Record of determination and sanctions ......................................................................27
Part 6—Other employment matters
29
48
Restrictions on engaging a person who has received a redundancy benefit ...............29
49
Matters relating to leave without pay .........................................................................30
50
Collection of employment-related data ......................................................................30
Part 7—Delegation
32
51
Delegation by the Commissioner ...............................................................................32
52
Delegation by Agency Head ......................................................................................32
Part 8—Application and transitional provisions
33
Division 1—Application and transitional provisions relating to this
instrument
33
53
Definitions .................................................................................................................33
54
Application—Gazettal of certain employment decisions and promotions .................33
55
Transitional—use of merit lists ..................................................................................33
56
Transitional—vacancies notified before commencement ..........................................33
57
Transitional—engagement on a short-term, irregular or intermittent basis ................33
58
Transitional—managing effective performance .........................................................34
59
Savings—delegations .................................................................................................34
Division 2—Amendments made by the Prime Minister’s Public Service
Amendment Directions 2005 (No. 1)
35
60
Transitional—
Prime Minister’s Public Service Amendment Directions 2005
(No. 1) ........................................................................................................................35
ii
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Endnotes
36
Endnote 1—About the endnotes
36
Endnote 2—Abbreviation key
37
Endnote 3—Legislation history
38
Endnote 4—Amendment history
39
Australian Public Service Commissioner’s Directions 2016
iii
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Authorised Version F2019C00615 registered 31/07/2019
Introduction
Part 1
Introduction
Division 1
Section 1
Part 1—Introduction
Division 1—Introduction
1 Name
This instrument is the
Australian Public Service Commissioner’s Directions
2016.
3 Authority
This instrument is made under subsections 11(1), 11A(1) and (2) and 15(6) of the
Public Service Act 1999.
Australian Public Service Commissioner’s Directions 2016
1
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 1 Introduction
Division 2 Definitions
Section 5
Division 2—Definitions
5 Definitions
Note:
A number of expressions used in this instrument are defined in the Act, including the
following:
(a) Agency;
(b) Agency Head;
(c) APS employee;
(d) APS Employment Principles;
(e) APS Values;
(f) Classification Rules;
(g) Code of Conduct;
(h) non-ongoing APS employee;
(i) ongoing APS employee;
(j) SES employee.
In this instrument:
Act means the
Public Service Act 1999.
broadband has the same meaning as in subrule 9(4) of the Classification Rules.
classification means an approved classification within the meaning of the
Classification Rules.
disability employment service provider means an organisation that facilitates
access to employment for persons with disability.
employment arrangement means any of the following:
(a) a fair work instrument (within the meaning of the
Fair Work Act 2009);
(b) a transitional instrument (within the meaning of the
Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009);
(c) a determination under subsection 24(1) or (3) of the Act;
(d) a written contract of employment.
Independent Selection Advisory Committee has the same meaning as in the
Regulations.
merit: see subsection 10A(2) of the Act.
ongoing Parliamentary Service employee has the same meaning as in the
Parliamentary Service Act 1999.
Parliamentary Service employee has the same meaning as in the
Parliamentary
Service Act 1999.
PRC review means review by a Promotion Review Committee under Part 5 of
the Regulations.
promotion, for an ongoing APS employee, see section 6.
2
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Introduction
Part 1
Definitions
Division 2
Section 6
Promotion Review Committee or
PRC has the same meaning as in the
Regulations.
Public Service Gazette means the Gazette
published in electronic form.
Note:
The Public Service Gazette
may be accessed at https://www.apsjobs.gov.au.
redundancy benefit: see subsection 48(2).
Regulations means the
Public Service Regulations 1999.
SES vacancy: see section 8.
similar vacancy: see section 9.
Torres Strait Regional Authority means the Authority established by section 142
of the
Aboriginal and Torres Strait Islander Act 2005.
training classification has the same meaning as in the Classification Rules.
vacancy: see section 7.
work level standards, for a classification, means the work level standards for the
classification, as referred to in subrule 9(2A) of the Classification Rules or
rule 10 of those Rules (as the case requires).
work-related qualities: see section 10.
6 Meaning of promotion
In this instrument, a reference to a
promotion is a reference to the ongoing
assignment of duties to an ongoing APS employee at a classification that is
higher than the employee’s current classification, in the same or another Agency,
other than:
(a) the allocation of a higher classification within the same broadband in the
same Agency; or
(b) the allocation of an operational classification to a trainee
.
Note:
The following are not promotions:
(a) following a voluntary temporary reduction in an ongoing APS employee’s
classification—the ongoing assignment of duties to the employee at the original
classification;
(b) the temporary assignment of duties to an APS employee at a higher classification
than the employee’s current classification.
7 Meaning of vacancy
In this instrument, a
vacancy exists
in an Agency when a decision has been made
that:
(a) a specified group of duties need to be performed; and
(b) it is appropriate to consider engaging a person or promoting an APS
employee to perform the duties.
Australian Public Service Commissioner’s Directions 2016
3
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 1 Introduction
Division 2 Definitions
Section 8
Note:
A vacancy may also be filled by the movement of an APS employee at the employee’s
current classification.
8 Meaning of Senior Executive Service (SES) vacancy
In this instrument,
SES vacancy means a vacancy at a SES classification as set
out in the
Classification Rules.
9 Meaning of similar vacancy
In this instrument, a vacancy is a
similar vacancy to a notified vacancy if:
(a) one of the following applies:
(i) it is in the same Agency;
(ii) it is an SES vacancy;
(iii) it is a vacancy in a centrally coordinated entry-level program;
(iv) the Agency Head of the Agency in which the notified vacancy
existed, another Agency Head and a candidate who applied for the
notified vacancy agree, in writing, that the vacancy is a similar
vacancy in relation to the candidate;
(v) if the notified vacancy relates to a function that was moved to another
Agency after the notification by a machinery of government change—
it is in the Agency to which the function was moved; and
(b) all of the following apply:
(i) it is the same category of employment (ongoing or non-ongoing);
(ii) it comprises similar duties;
(iii) it is at the same classification;
(iv) it is to be performed in a similar location.
10 Meaning of work-related qualities
In this instrument,
work-related qualities that may be taken into account in
making an assessment of candidates’ suitability to perform duties in accordance
with paragraph 10A(2)(c) of the Act include the following:
(a) skills and abilities;
(b) qualifications, training and competencies;
(c) standard of work performance;
(d) capacity to produce outcomes by effective performance at the level
required;
(e) relevant personal qualities, such as honesty and integrity;
(f) potential for further development;
(g) ability to contribute to team performance.
4
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
APS Values
Part 2
Section 11
Part 2—APS Values
11 Overview
Application of the APS Values
The APS Values, and these Directions, set out standards and outcomes that are
required of APS employees and Agency Heads.
The APS Values can overlap, and actions can involve the application of more
than one APS Value.
Each of the APS Values is of equal importance.
12 APS to incorporate and uphold APS values
(1) The APS must incorporate and uphold the APS Values.
(2) The following provisions determine the scope or application of the APS Values.
13 Committed to Service:
The APS is professional, objective, innovative and efficient, and
works collaboratively to achieve the best results for the Australian
community and the Government
Having regard to an individual’s duties and responsibilities, upholding the APS
Value in subsection 10(1) of the Act requires the following:
(a) engaging effectively with the community and providing responsive,
client-focussed service delivery;
(b) providing appropriate information to clients and the community about
rights and entitlements, and the process for gaining access to them;
(c) ensuring that decisions and interactions with clients are objective and
impartial, and in accordance with Government policy;
(d) encouraging innovative thought and supporting innovative solutions;
(e) managing data to enhance evidence-based policy advice, ensuring
information is readily available to the community;
(f) supporting collaboration and teamwork, both within an Agency and with
other agencies and the wider community;
(g) promoting continuous improvement and managing change effectively;
(h) identifying and managing areas of potential risk;
(i) pursuing and supporting training and development to improve capability;
(j) being responsive to Ministers, including being knowledgeable about the
Government’s policies and understanding the relevant issues and options,
the Government’s objectives and the environment in which it operates.
Australian Public Service Commissioner’s Directions 2016
5
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 2 APS Values
Section 14
14 Ethical:
The APS demonstrates leadership, is trustworthy, and acts with
integrity, in all that it does
Having regard to an individual’s duties and responsibilities, upholding the APS
Value in subsection 10(2) of the Act requires the following:
(a) acting in a way that models and promotes the highest standard of ethical
behaviour;
(b) following through on commitments made;
(c) having the courage to address difficult issues;
(d) complying with all relevant laws, appropriate professional standards and
the APS Code of Conduct;
(e) acting in a way that is right and proper, as well as technically and legally
correct or preferable;
(f) reporting and addressing misconduct and other unacceptable behaviour by
public servants in a fair, timely and effective way;
(g) providing leadership in policy development, implementation, program
management and regulation;
(h) supporting systems that give APS employees appropriate opportunities to
develop and demonstrate leadership qualities.
15 Respectful:
The APS respects all people, including their rights and their heritage
Having regard to an individual’s duties and responsibilities, upholding the APS
Value in subsection 10(3) of the Act requires the following:
(a) treating all people with dignity and recognising that all people have value;
(b) dealing with all people honestly and with integrity;
(c) recognising the importance of human rights and understanding Australia’s
human rights obligations;
(d) recognising and fostering diversity;
(e) collaborating and being open to ideas in policy development,
implementation, program management and regulation;
(f) complying with all relevant anti-discrimination laws.
16 Accountable:
The APS is open and accountable to the Australian community under
the law and within the framework of Ministerial responsibility
Having regard to an individual’s duties and responsibilities, upholding the APS
Value in subsection 10(4) of the Act requires the following:
(a) being answerable to Ministers for the exercise of delegated authority, and,
through them, to Parliament;
(b) being open to scrutiny and being transparent in decision making;
(c) being able to demonstrate that actions and decisions have been made with
appropriate consideration;
6
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
APS Values
Part 2
Section 17
(d) being able to explain actions and decisions to the people affected by them;
(e) being accountable for actions and decisions through statutory and
administrative reporting systems;
(f) being able to demonstrate clearly that resources have been used efficiently,
effectively, economically and ethically;
(g) being answerable for individual performance.
17 Impartial:
The APS is apolitical and provides the Government with advice that
is frank, honest, timely and based on the best available evidence
Having regard to an individual’s duties and responsibilities, upholding the APS
Value in subsection 10(5) of the Act requires the following:
(a) serving the Government of the day with high quality professional support,
irrespective of which political party is in power and of personal political
beliefs;
(b) ensuring that the individual’s actions do not provide grounds for a
reasonable person to conclude that the individual could not serve the
Government of the day impartially;
(c) ensuring that management and staffing decisions are made on a basis that is
independent of the political party system, free from political bias and not
influenced by the individual’s political beliefs;
(d) understanding the needs of the Government and providing it with the best
objective, non-partisan advice based on the best evidence available;
(e) providing advice that is relevant and comprehensive, is not affected by fear
of consequences, and does not withhold important facts or bad news;
(f) providing advice that takes account of the context in which policy needs to
be implemented, the broader policy directions set by Government and,
where appropriate, implications for the longer term;
(g) implementing Government policies in a way that is free from bias, and in
accordance with the law.
Australian Public Service Commissioner’s Directions 2016
7
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 3 Recruitment and selection
Division 1 Upholding APS Employment Principle 10A(1)(c)
Section 18
Part 3—Recruitment and selection
Division 1—Upholding APS Employment Principle 10A(1)(c)
Subdivision A—Introduction
18 How an Agency Head upholds APS Employment Principle 10A(1)(c)
An Agency Head upholds APS Employment Principle 10A(1)(c) when deciding
whether to engage or promote a person in the Agency if the Agency Head
ensures that the decision is based on a selection process that meets:
(a) the requirements of Subdivision B (which requires merit-based selection
processes); or
(b) the requirements of a provision set out in Subdivision C (which sets out
circumstances in which merit-based selection processes are modified or do
not apply).
Note:
Paragraph 10A(1)(c) of the Act requires decisions relating to engagement and
promotion to be based on merit.
Subdivision B—Merit-based selection processes
19 Merit-based selection process for engagement or promotion
(1) A selection process meets the requirements of this Subdivision if all of the
following apply:
(a) the aim and purpose of the selection process is determined in advance;
(b) information about the selection process is readily available to applicants;
(c) the selection process is applied fairly in relation to each eligible applicant;
(d) the selection process is appropriately documented.
Note:
Regulations 3.4 and 3.5 of the Regulations provide for matters regarding the
engagement of non-ongoing employees.
(2) When making a decision using such a selection process:
(a) merit is the primary consideration; and
(b) if any eligible applicants are otherwise equal on merit—secondary
considerations may be taken into account if they relate to matters within
the control of the applicant.
Note:
Paragraph (b)—matters within the control of the applicant include the applicant’s
ability to start by a particular date, willingness to relocate or to meet other reasonable
Agency requirements.
8
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Recruitment and selection
Part 3
Upholding APS Employment Principle 10A(1)(c)
Division 1
Section 20
20 Notification of vacancy in the Public Service Gazette
Basic requirement for notification of vacancy
(1) Subject to this section, a selection process for a decision to fill a vacancy meets
the requirements of this Subdivision only if:
(a) the vacancy, or a similar vacancy, in the Agency was notified in the Public
Service Gazette
within a period of 12 months before the written decision to
engage or promote the successful applicant; and
(b) the vacancy was notified as open to all eligible members of the community;
and
(c) the vacancy was notified with a closing date for applications of:
(i) at least 7 calendar days after the notification; or
(ii) if the Agency Head was satisfied that there were special
circumstances and the Agency Head approved a shorter period—the
end of that shorter period; and
(d) in the case of a vacancy which required approval by the Commissioner
under subsection (2) before it could be notified—the Agency Head
obtained that approval before the vacancy, or a class of vacancies including
the vacancy, was notified.
Commissioner may require notification of vacancy, or class of vacancies, to be
approved by Commissioner
(2) The Commissioner may, by notice in writing, require an Agency Head to obtain
the approval of the Commissioner before notifying a specified vacancy, or a
specified class of vacancies, in the Public Service Gazette.
Restricting applications to APS employees (other than APS Level 1 and training
classifications)
(3) If the Agency Head decides that, for reasons of cost or operational efficiency, a
vacancy at a non-SES classification should be filled by a person who is already
an APS employee, the vacancy may be notified in the Public Service Gazette as
open only to persons who are APS employees at the time of the notification.
(4) Subsection (3) does not apply in relation to a vacancy at the APS Level 1
classification or a training classification, and these must be notified as open to all
eligible members of the community.
Multiple Agency notification
(5) An Agency participating in a multiple Agency selection process must ensure as
far as practicable that a specified vacancy is brought to the notice of the
community in a way that gives eligible members of the community a reasonable
opportunity to apply for it.
Australian Public Service Commissioner’s Directions 2016
9
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 3 Recruitment and selection
Division 1 Upholding APS Employment Principle 10A(1)(c)
Section 21
External advertising
(6) A vacancy notified in the Public Service Gazette as open to all eligible members
of the community must, if also advertised externally, be advertised within 4
weeks before or 4 weeks after the Gazette notification.
Example: A vacancy may be advertised externally on a recruitment website.
(7) A vacancy notified in the Public Service Gazette
as open only to persons who are
APS employees must, if it is later advertised externally as open to all eligible
members of the community, be re-notified in the Public Service Gazette as open
to all eligible members of the community.
Meaning of APS employee
(8) In this section:
APS employee means a person who:
(a) is a current ongoing APS employee or ongoing Parliamentary Service
employee; or
(b) was, at the time of the relevant Public Service Gazette
notification, a
non-ongoing APS employee or non-ongoing Parliamentary Service
employee (within the meaning of the
Parliamentary Service Act 1999)
.
21 Additional requirements for SES engagement or promotion decisions
A selection process for an SES vacancy meets the requirements of this
Subdivision if, in addition to the requirements of sections 19 and 20, the
following apply:
(a) the Commissioner, or a representative of the Commissioner, was a full
participant in the selection process;
(b) if a representative of the Commissioner participated in the selection
process—the representative certified that the selection process complied
with the Act and this instrument.
Subdivision C—Engagement and promotion in certain circumstances
22 Engagement on a short-term, irregular or intermittent basis
(1) An Agency Head may engage a person to perform duties as a non-ongoing APS
employee if:
(a) the engagement is for a specified term or the duration of a specified task
and the period of employment is 18 months or less; or
(b) the engagement is for duties that are irregular or intermittent.
(2) An Agency Head may extend or further extend an engagement mentioned in
paragraph (1)(a) if:
(a) there is a continuing need for the duties to be performed; and
(b) the person engaged is performing the duties satisfactorily or better; and
(c) the Agency Head is satisfied that:
10
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Recruitment and selection
Part 3
Upholding APS Employment Principle 10A(1)(c)
Division 1
Section 23
(i) it is still appropriate for the duties to be performed on a non-ongoing
basis; and
(ii) the extension, or further extension, will contribute to efficient and
effective organisational performance.
However, the total period of engagement (including any extension), must not
exceed 3 years.
(3) The Agency Head must ensure as far as practicable that such a vacancy is
brought to the notice of the community in a way that gives eligible members of
the community a reasonable opportunity to apply for it.
Example: A vacancy may be brought to the notice of the community by being advertised or
access being provided to non-ongoing APS employment registers.
(4) As a minimum requirement, the Agency Head must be satisfied that the person to
be engaged has the work-related qualities genuinely required to perform the
relevant duties.
Note:
Regulations 3.4 and 3.5 of the Regulations provide for matters regarding the
engagement of non-ongoing APS employees.
23 Engagement of person from state or territory jurisdiction
An Agency Head may engage a person as a non-ongoing APS employee for a
specified term if:
(a) the person is an employee of:
(i) a State or Territory; or
(ii) an authority of a State or Territory; and
(b) the Agency Head has entered into an agreement with the State or Territory,
or the authority of the State or Territory, to engage the person as a
non-ongoing employee for a specified term.
Note:
Regulations 3.4 and 3.5 of the Regulations provide for matters regarding the
engagement of non-ongoing APS employees.
24 Engagement of ongoing APS employee as non-ongoing APS employee
An Agency Head may engage a person who is an ongoing APS employee to
perform duties as a non-ongoing APS employee if:
(a) the person is to be engaged for a specified term or specified task; and
(b) the person resigns as an ongoing APS employee to start the engagement;
and
(c) the engagement is at the same classification as the person’s current
classification or at a lower classification.
Note:
Regulations 3.4 and 3.5 of the Regulations provide for matters regarding the
engagement of non-ongoing APS employees.
Australian Public Service Commissioner’s Directions 2016
11
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 3 Recruitment and selection
Division 1 Upholding APS Employment Principle 10A(1)(c)
Section 25
25 Engagement of non-ongoing APS employee as ongoing employee in
exceptional circumstances
(1) The Commissioner may authorise the engagement by an Agency Head of a
non-ongoing APS employee as an ongoing APS employee if:
(a) the Agency Head requests, in writing, such an authorisation in respect of
the non-ongoing APS employee; and
(b) the Commissioner is satisfied that exceptional circumstances justify such
an engagement.
(2) An Agency Head may only make a request in respect of a non-ongoing APS
employee if the Agency Head is satisfied that:
(a) the duties of the relevant employment are more appropriately undertaken
by an ongoing APS employee; and
(b) the person to be engaged as an ongoing APS employee has the
work-related qualities genuinely required to perform the relevant duties;
and
(c) the engagement as an ongoing APS employee is at the person’s
classification (or equivalent) as a non-ongoing APS employee; and
(d) the original engagement of the person as a non-ongoing APS employee, or
an extension of the engagement of the person as a non-ongoing APS
employee, complied with the requirements of Subdivision B; and
(e) the engagement is necessary for the Agency’s operations.
26 Affirmative measure—Indigenous employment
(1) An Agency Head may, consistently with Commonwealth law, identify a vacancy
as open only to Aboriginal and/or Torres Strait Islander persons.
(2) The Agency Head must ensure that for such a vacancy:
(a) eligible applicants are only persons:
(i) of Aboriginal and/or Torres Strait Islander descent; and
(ii) who identify as Aboriginal and/or Torres Strait Islander; and
(iii) who are accepted by their community as being Aboriginal and/or
Torres Strait Islander; and
(b) either:
(i) the selection process for the vacancy otherwise satisfies the
requirements of Subdivision B; or
(ii) section 22 is satisfied.
Note:
Regulations 3.4 and 3.5 of the Regulations provide for matters regarding the
engagement of non-ongoing APS employees.
(3) In this section:
Aboriginal has the same meaning as in the
Racial Discrimination Act 1975.
Torres Strait Islander has the same meaning as in the
Racial Discrimination Act
1975.
12
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Recruitment and selection
Part 3
Upholding APS Employment Principle 10A(1)(c)
Division 1
Section 27
27 Affirmative measure—disability
(1) An Agency Head may, consistently with Commonwealth law, identify a vacancy
as open only to persons who have a disability or a particular type of disability.
(2) The Agency Head must ensure that for such a vacancy:
(a) eligible applicants are only persons described in subsection (1); and
(b) one of the following applies:
(i) the selection process for the vacancy otherwise satisfies the
requirements of Subdivision B;
(ii) section 22 is satisfied;
(iii) a disability employment service provider has assessed each applicant
as being likely to be unable to compete successfully on merit in a
competitive selection process.
Note:
Regulations 3.4 and 3.5 of the Regulations provide for matters regarding the
engagement of non-ongoing APS employees.
28 Affirmative measure—RecruitAbility Scheme
(1) An Agency Head may:
(a) notify a vacancy under section 20; and
(b) specify that the RecruitAbility Scheme applies to the selection process for
that vacancy.
Note:
The RecruitAbility Scheme is an affirmative measure to make arrangements for people
with disability to be considered for engagement or promotion.
(2) The Agency Head must ensure that for such a vacancy the selection process
otherwise satisfies the requirements of Subdivision B.
(3) To avoid doubt, paragraph (1)(b) does not require that the successful applicant be
a person who applied in accordance with the RecruitAbility Scheme.
29 Promotion after appointment to a statutory office
(1) An Agency Head may, in writing, request the Commissioner to authorise the
promotion of an ongoing APS employee if the following apply:
(a) the employee was granted leave without pay for appointment to a statutory
office of a kind that requires the Commissioner, or a representative of the
Commissioner, to be a participant in the selection process for the office;
(b) the employee’s appointment to the statutory office:
(i) has not expired; or
(ii) expired no more than 3 months before the Commissioner was asked to
authorise the promotion;
(c) the duties to which the employee is to be assigned are assessed by the
Agency Head as being at an APS classification that is equivalent to, or
lower than, the duties of the statutory office;
Australian Public Service Commissioner’s Directions 2016
13
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 3 Recruitment and selection
Division 1 Upholding APS Employment Principle 10A(1)(c)
Section 30
(d) the Agency Head is satisfied that the employee has the necessary
work-related qualities to perform duties at the APS classification to which
the employee is to be promoted.
(2) The Commissioner may authorise the promotion, and in deciding whether to do
so may also take into account:
(a) how long the employee was appointed to the statutory office; and
(b) the selection process for the appointment to the statutory office; and
(c) any other matter the Commissioner considers relevant.
(3) If the Commissioner authorises the promotion, the Agency Head may promote
the employee.
30 Engagement of non-APS employee following a machinery of government
change
The requirements of this section are met if the Commissioner acts under
paragraph 72(1)(c) or (d) of the Act to engage a person, or determine that a
person becomes engaged, in a specified Agency.
31 Engagement of an ongoing Parliamentary Service employee as an ongoing
APS employee
An Agency Head may engage a person who is an ongoing Parliamentary Service
employee as an ongoing APS employee if the person is to be employed at a
comparable classification or lower.
Example: A comparable classification or lower for a person whose Parliamentary Service Group
classification is level 5 is APS Group classification level 1, 2, 3, 4 or 5.
32 Re-engagement of election candidates
Person may apply to be re-engaged as an APS employee
(1) An Agency Head may engage a person as an APS employee if:
(a) the person is a former APS employee in the Agency, whose employment
ended because he or she resigned to contest:
(i) an election for a member of a House of the Parliament of the
Commonwealth or of a State; or
(ii) an election for a member of the Legislative Assembly of the
Australian Capital Territory or the Northern Territory; or
(iii) an election for a member of the Torres Strait Regional Authority; and
(b) section 32 of the Act (right of return for election candidates) applies to the
person; and
(c) the person applies to the Agency Head to be engaged as an APS employee
within the applicable timeframe mentioned in subsection (2); and
(d) if the former employment was non-ongoing:
(i) the employment would not have ended except for the resignation; and
14
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Recruitment and selection
Part 3
Upholding APS Employment Principle 10A(1)(c)
Division 1
Section 32
(ii) the person applies to the Agency Head to be engaged before the
employment would have ended if the person had not resigned.
(2) A person mentioned in paragraph (1)(a) must apply to the relevant Agency Head:
(a) if the result of the election is not disputed—within 2 months after the
declaration of the result of the election; or
(b) if the result of the election is disputed—within 2 months after a court of
disputed returns decides the petition disputing the result, or the petition is
withdrawn or lapses; or
(c) if the Commissioner has made a declaration under subsection (3)—as soon
as practicable after receiving notice of the declaration.
(3) If the Commissioner is satisfied that it is appropriate to do so, the Commissioner
may declare that the person is taken to be a former APS employee of a specified
Agency for the purposes of paragraph (2)(c).
Example: The Commissioner may make a declaration if the Agency in which the person was
employed no longer exists or is no longer responsible for duties that were previously
carried out by the employee.
Basis on which person may be re-engaged as an APS employee
(4) If the Agency Head engages the person as an APS employee, the person must be:
(a) engaged on the same basis (ongoing or non-ongoing) as the person’s
employment before resigning and at the same classification; and
(b) assigned duties that are the same as, or similar to, the duties the person had
immediately before the resignation or, if such duties are unavailable, other
duties at the same classification; and
(c) engaged on:
(i) the same terms and conditions of employment that applied to the
person when the person resigned; or
(ii) if the remuneration, or another term or condition, applying to the
person’s previous classification has changed since the person
resigned—the changed terms and conditions.
(5) The person’s continuity of service is taken not to have been broken by the period
between the person’s resignation and the person’s re-engagement as an APS
employee, but that period does not count as service for the purposes of:
(a) the National Employment Standards; or
(b) an employment arrangement that applies to the person.
Note:
For entitlements to long service leave and paid maternity leave, see the
Long Service
Leave (Commonwealth Employees) Act 1976 and the
Maternity Leave (Commonwealth
Employees) Act 1973.
Specified elections
(6) For the purposes of paragraph 32(1)(a) of the Act, the elections mentioned in
subparagraphs (1)(a)(i), (ii) and (iii) are specified.
Australian Public Service Commissioner’s Directions 2016
15
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 3 Recruitment and selection
Division 1 Upholding APS Employment Principle 10A(1)(c)
Section 33
33 Re-engagement of a former APS employee
(1) The relevant Agency Head may engage a former APS employee as an ongoing or
non-ongoing APS employee if:
(a) the Agency Head is satisfied that the person’s former employment should
not have ended; or
(b) the engagement will settle legal action relating to the termination of the
employee’s employment; or
(c) an appropriate authority has recommended or ordered the reinstatement of
the person.
Note:
An appropriate authority includes, for example, the Federal Court of Australia, the Fair
Work Commission or the Australian Human Rights Commission.
(2) The person must be engaged:
(a) on the same basis (ongoing or non-ongoing) as the person was when
formerly employed; and
(b) at the same or a lower classification.
16
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Recruitment and selection
Part 3
Gazettal of certain employment decisions and promotions
Division 2
Section 34
Division 2—Gazettal of certain employment decisions and
promotions
34 Gazettal of employment decisions
Decisions that must be notified
(1) An Agency Head must notify the following employment decisions in the Public
Service Gazette:
(a) the promotion of an ongoing APS employee;
(b) 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);
(c) the engagement, promotion or assignment of duties of a person made in
accordance with an Independent Selection Advisory Committee
recommendation;
(d) 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;
(e) 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).
Time within which notification must be made
(2) A decision must be notified in the Public Service Gazette within 3 months after
the decision is made, unless the Commissioner agrees to a different arrangement.
(3) For an employment decision to engage or promote a person that is made on the
basis that the person is required to satisfy an eligibility requirement, the 3 month
period mentioned in subsection (2) is taken to commence at the time the
eligibility requirement is met.
Note:
Examples of an eligibility requirement include a security or character clearance.
Notification generally to include employee’s name
(4) A notification must include the employee’s name unless the Agency Head
decides that the name should not be included because of the person’s
work-related or personal circumstances.
(5) If a notification does not include the employee’s name and relates to a promotion
that is subject to review, the Agency must:
(a) on or before the day the decision is notified, notify all parties eligible to
seek review of the promotion of their rights of review; and
(b) at the same time as parties are notified, advise the Merit Protection
Commissioner that eligible parties have been notified.
Australian Public Service Commissioner’s Directions 2016
17
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 3 Recruitment and selection
Division 2 Gazettal of certain employment decisions and promotions
Section 35
Notification relating to a former ongoing Parliamentary Service employee
(6) If an employment decision is made to engage a person at a higher classification
than the person’s current classification as a Parliamentary Service employee, the
notification must include a statement to the following effect:
This engagement of an ongoing Parliamentary Service employee at a
higher classification may be subject to review by a Promotion Review
Committee in accordance with Part 5 of the Public Service
Regulations 1999.
35 Gazettal when decisions previously notified are cancelled
Decisions that must be notified
(1) An Agency Head must notify a decision (a
cancellation decision) to cancel the
following employment decisions in the Public Service Gazette:
(a) a promotion notified under paragraph 34(1)(a) (in a case where the
cancellation decision is made by the Agency Head);
(b) a promotion notified under paragraph 34(1)(a) or (b) (in a case where the
cancellation decision is the result of a decision of a Promotion Review
Committee);
(c) an engagement, promotion or assignment of duties notified under
paragraph 34(1)(c);
(d) the engagement of an ongoing Parliamentary Service employee as an
ongoing APS employee under paragraph 34(1)(d);
(e) a termination notified under paragraph 34(1)(e).
Time within which notification must be made
(2) A cancellation decision must be notified in the Public Service Gazette within 3
months after the cancellation decision is made.
Requirements of notification
(3) Notification of a cancellation decision must include:
(a) the date that the cancellation decision took effect; and
(b) the person’s name, unless this was not included in the original notification.
36 When promotion decisions take effect
(1) This section applies in respect of a decision (a
promotion decision) to:
(a) promote an ongoing APS employee; or
(b) engage an ongoing Parliamentary Service employee as an ongoing APS
employee at a classification that is higher than the employee’s
Parliamentary Service classification.
Note:
Regulation 5.9 of the Regulations sets out requirements for review applications.
(2) If a promotion decision is not subject to PRC review, the decision takes effect:
18
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Recruitment and selection
Part 3
Gazettal of certain employment decisions and promotions
Division 2
Section 36
(a) if a date of effect has been agreed by the relevant parties and is after the
day the decision is notified in the Public Service Gazette—on that date; or
(b) otherwise—4 weeks after the day the decision is notified in the Public
Service Gazette.
(3) A promotion decision that is subject to PRC review takes effect on the date
mentioned in column 3 of an item in the following table in the circumstances
mentioned in column 2 of the item:
When promotion decisions take effect
Column 1
Column 2
Column 3
Item
If the promotion decision is subject to
then, the decision takes effect …
PRC review and ….
1
no application for review is made before the (a) if a date of effect has been agreed by
end of the period within which an
the relevant parties and is after the
application for PRC review of the decision
application period ends—on that
may be made
date; or
(b) 2 weeks after the end of the
application period
2
an application for review is made but
(a) if a date of effect has been agreed by
withdrawn before the PRC makes a decision
the relevant parties and is after the
on the application
application period ends—on that
date; or
(b) 2 weeks after the day the Agency
Head is notified that the application
was withdrawn
3
an application for review is made but the
(a) if a date of effect has been agreed by
application lapses before the PRC completes
the relevant parties and is after the
its review
Agency Head is notified that the
application has lapsed—on that
date; or
(b) 2 weeks after the day the Agency
Head is notified that the application
has lapsed
4
an application for review is made but the
(a) if a date of effect has been agreed by
Merit Protection Commissioner decides
the relevant parties and is after the
under subregulation 5.10(1) of the
Agency Head is notified of the
Regulations that it is unnecessary to appoint
decision of the Merit Protection
a PRC to consider the application
Commissioner—on that date; or
(b) the later of:
(i) the day the Agency Head is
notified; and
(ii) 4 weeks after the day the
decision is notified in the
Public Service Gazette
5
an application for review is made and the
(a) if a date of effect has been agreed by
PRC upholds the promotion decision
the relevant parties and is after the
Agency Head is notified of the
PRC’s decision—on that date; or
Australian Public Service Commissioner’s Directions 2016
19
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 3 Recruitment and selection
Division 2 Gazettal of certain employment decisions and promotions
Section 36
When promotion decisions take effect
Column 1
Column 2
Column 3
Item
If the promotion decision is subject to
then, the decision takes effect …
PRC review and ….
(b) 4 weeks after the day the Agency
Head is notified of the PRC’s
decision
6
an application for review is made and the
(a) if a date of effect has been agreed by
PRC varies the promotion decision
the relevant parties and is after the
Agency Head is notified of the
PRC’s decision—on that date; or
(b) 4 weeks after the day the Agency
Head is notified of the PRC’s
decision
(4) This section is subject to section 38.
20
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Working in the APS
Part 4
Movement of APS employees between agencies
Division 1
Section 37
Part 4—Working in the APS
Division 1—Movement of APS employees between agencies
37 Moves between agencies not associated with promotion
(1) This section applies if:
(a) an Agency Head enters into a written agreement with an ongoing APS
employee for the employee to move to the Agency Head’s Agency (the
new Agency) from another Agency (the
original Agency); and
(b) the movement between APS Agencies is not associated with a promotion.
Note:
For the power to enter into agreements of this kind, see section 26 of the Act.
(2) The move takes effect:
(a) in the case of an ongoing move:
(i) if a date of effect has been agreed by the APS employee and the 2
Agency Heads—on the agreed date of effect; and
(ii) if a date of effect has not been agreed—4 weeks after the APS
employee informs the original Agency Head in writing; and
(b) in the case of a temporary move:
(i) if the original Agency Head has approved it in writing—on the date of
effect specified in the approval; and
(ii) if the original Agency Head has not approved it in writing—on the
date the APS employee begins duties in the new Agency. The move
has the effect of an ongoing move to the new Agency at the APS
employee’s existing classification.
(3) In the case of an agreed temporary move, an agreement between the new Agency
Head and the APS employee to vary the period of the move:
(a) if approved by the original Agency Head in writing—has effect according
to its terms; and
(b) if not approved by the original Agency Head in writing—has no effect.
Movement in cases of a suspected breach of the Code of Conduct
(4) Despite subsection (2), if:
(a) an APS employee is suspected of having breached the Code of Conduct
and is formally advised of the suspected breach in accordance with
procedures established under subsection 15(3), 41B(3) or 50A(2) of the
Act; and
(b) the matter to which the suspected breach relates has not yet been resolved;
then, unless the APS employee’s current Agency Head and the new Agency
Head agree otherwise, a move by the APS employee does not take effect until the
matter to which the suspected breach relates is resolved.
Australian Public Service Commissioner’s Directions 2016
21
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 4 Working in the APS
Division 1 Movement of APS employees between agencies
Section 38
(5) For the purposes of subsection (4), the matter to which the suspected breach
relates is taken to be resolved when:
(a) a determination is made as to whether the APS employee has breached the
Code of Conduct; or
(b) it is decided that such a determination is not necessary.
38 Moves between agencies on promotion
(1) If:
(a) a decision is taken to promote an APS employee; and
(b) the APS employee is suspected of having breached the Code of Conduct
and is formally advised of the suspected breach in accordance with
procedures established under subsection 15(3), 41B(3) or 50A(2) of the
Act; and
(c) the matter to which the suspected breach relates is not resolved before the
APS employee moves to take up the promotion;
then, unless the APS employee’s current Agency Head and the new Agency
Head agree otherwise, the APS employee’s promotion does not take effect until
the matter to which the suspected breach relates is resolved.
(2) For the purposes of subsection (1), the matter to which the suspected breach
relates is taken to be resolved when:
(a) a determination is made as to whether the APS employee has breached the
Code of Conduct; or
(b) it is decided that such a determination is not necessary.
22
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Working in the APS
Part 4
Performance management and culture
Division 2
Section 39
Division 2—Performance management and culture
39 Achieving effective performance—Agency Heads
Achieving effective performance
(1) An Agency Head upholds APS Employment Principle 10A(1)(d) by ensuring the
following:
(a) the Agency has performance management policies and processes that:
(i) support a high performance culture; and
(ii) proactively identify, foster and develop APS employees to fulfil their
potential; and
(iii) provide for effective performance management; and
(iv) are fair, open and effective; and
(v) are clearly communicated to APS employees;
(b) the Agency builds the organisational capability necessary to achieve the
outcomes of the Agency properly expected by the Government;
(c) each APS employee in the Agency is given:
(i) a clear statement of the performance and behaviour expected of the
employee; and
(ii) opportunities to discuss performance;
(d) each APS employee in the Agency receives feedback from supervisors
about their performance consistent with the Agency’s performance
management policies and processes;
(e) the Agency requires supervisors to manage the performance of APS
employees under their supervision effectively, including by engaging in
career conversations;
(f) the Agency supports supervisors to manage the performance of APS
employees under their supervision, including by providing appropriate
training in performance management;
(g) the Agency’s performance management policies and processes are used to
guide salary movement.
Dealing with unsatisfactory performance
(2) An Agency Head upholds APS Employment Principle 10A(1)(d) by ensuring the
following:
(a) the Agency’s performance management policies and processes dealing
with unsatisfactory performance are available to supervisors and APS
employees in the Agency, and include information that clearly sets out:
(i) the responsibilities of supervisors; and
(ii) the possible outcomes if an APS employee’s performance is
considered unsatisfactory; and
(iii) that if an APS employee’s performance is considered to be
unsatisfactory, the employee has a responsibility to engage
Australian Public Service Commissioner’s Directions 2016
23
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 4 Working in the APS
Division 2 Performance management and culture
Section 39A
constructively with their supervisor and other relevant persons
(including the Agency’s human resources area) in resolving the
performance issues and acting on performance feedback;
(b) those policies and processes are applied in a timely manner if an APS
employee’s performance is considered unsatisfactory.
Note:
Paragraph 10A(1)(d) of the Act provides that the APS is a career-based public service
that requires effective performance from each employee.
39A Achieving effective performance—supervisors
A supervisor of an APS employee upholds APS Employment
Principle 10A(1)(d) by doing the following:
(a) promoting and fostering effective performance by the APS employee;
(b) conducting, at least annually, career conversations that deal with the APS
employee’s performance, potential, aspirations, organisational fit and
future opportunities;
(c) ensuring that the APS employee has a performance agreement that is
consistent with the Agency’s corporate plan and the work level standards
for the APS employee’s classification;
(d) ensuring that the APS employee is provided with clear, honest and timely
feedback about the employee’s performance;
(e) managing and assessing the APS employee’s performance in accordance
with the Agency’s performance management policies and processes;
(f) working to improve the supervisor’s capability in effectively managing the
performance of APS employees, including through appropriate training;
(g) promptly and actively managing unsatisfactory performance by the APS
employee in accordance with the Agency’s performance management
policies and processes, including by:
(i) identifying the nature of the unsatisfactory performance at the earliest
opportunity; and
(ii) maintaining appropriate records; and
(iii) engaging with the APS employee and other relevant persons
(including the Agency’s human resources area and the supervisor’s
manager) to discuss the unsatisfactory performance, and facilitate a
collective understanding about the nature of the unsatisfactory
performance.
Note:
Paragraph 10A(1)(d) of the Act provides that the APS is a career-based public service
that requires effective performance from each employee.
39B Achieving effective performance—APS employees
An APS employee upholds APS Employment Principle 10A(1)(d) by doing the
following:
(a) striving to perform to the best of their ability, at the work level standard for
the APS employee’s classification and consistent with the APS employee’s
performance agreement;
24
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Working in the APS
Part 4
Performance management and culture
Division 2
Section 40
(b) engaging constructively with their supervisor to clarify work expectations
and what is required to perform effectively;
(c) participating constructively in the Agency’s performance management
processes, including career conversations;
(d) being open to receiving feedback and acting on feedback in a timely
manner;
(e) seeking opportunities to improve individual and team performance;
(f) if informed that the APS employee’s performance is unsatisfactory,
engaging constructively by:
(i) cooperating with their supervisor and other relevant persons
(including the Agency’s human resources area) to resolve the issues
relating to the unsatisfactory performance in a timely manner; and
(ii) undertaking any necessary training or remedial or corrective measures
as directed.
Note:
Paragraph 10A(1)(d) of the Act provides that the APS is a career-based public service
that requires effective performance from each employee.
40 Managing performance in cases of a potential breach of the Code of Conduct
An Agency Head must have regard to any relevant standards and guidance issued
by the Commissioner if:
(a) an APS employee in the Agency has engaged in conduct that:
(i) may breach the Code of Conduct; or
(ii) raises concerns relating to effective performance; and
(b) the Agency Head is considering whether to initiate an inquiry under
procedures established by the Agency Head under subsection 15(3) of the
Act.
Note:
See also Part 5.
Australian Public Service Commissioner’s Directions 2016
25
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 5 Handling suspected breaches of the Code of Conduct
Division 1 Introduction
Section 41
Part 5—Handling suspected breaches of the Code of
Conduct
Division 1—Introduction
41 Purpose
For the purposes of paragraph 15(4)(a) of the Act, this Part sets out the basic
procedural requirements with which procedures established by an Agency Head
under subsection 15(3) of the Act must comply.
Note 1:
Subsection 15(3) of the Act requires an Agency Head to establish written procedures
for determining:
(a) whether an APS employee, or a former APS employee, in the Agency has
breached the Code of Conduct; and
(b) what sanction, if any, should be imposed on an APS employee for a breach of the
Code of Conduct.
Note 2:
See also section 40.
42 Application to former APS employees
In Division 2 (other than subparagraph 43(a)(ii) and section 44), a reference to an
APS employee in an Agency includes a reference to a former APS employee
who is suspected of having breached the Code of Conduct while an employee in
the Agency.
26
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Handling suspected breaches of the Code of Conduct
Part 5
Basic procedural requirements
Division 2
Section 43
Division 2—Basic procedural requirements
43 Employee must be informed that a determination is being considered
A determination may not be made in relation to a suspected breach of the Code
of Conduct by an APS employee unless reasonable steps have been taken to:
(a) inform the APS employee of:
(i) the details of the suspected breach (including any subsequent variation
of those details); and
(ii) the sanctions that may be imposed on the APS employee under
subsection 15(1) of the Act; and
(b) give the APS employee a reasonable opportunity to make a statement in
relation to the suspected breach.
44 Employee must be informed before a sanction is imposed
If a determination is made that an APS employee has breached the Code of
Conduct, a sanction may not be imposed unless reasonable steps have been taken
to:
(a) inform the APS employee of:
(i) the determination; and
(ii) the sanction or sanctions that are under consideration; and
(iii) the factors that are under consideration in determining any sanction to
be imposed; and
(b) give the APS employee a reasonable opportunity to make a statement in
relation to sanctions under consideration.
45 Person making determination to be independent and unbiased
An Agency Head must take reasonable steps to ensure that:
(a) the person who determines whether an APS employee has breached the
Code of Conduct is, and appears to be, independent and unbiased; and
(b) the person who determines any sanction to be imposed is, and appears to
be, independent and unbiased.
46 Determination process to be informal
The process for determining whether an APS employee has breached the Code of
Conduct must be carried out with as little formality and as much expedition as a
proper consideration of the matter allows.
47 Record of determination and sanctions
If a determination is made in relation to a suspected breach of the Code of
Conduct by an APS employee, a written record must be made of:
(a) the suspected breach; and
Australian Public Service Commissioner’s Directions 2016
27
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 5 Handling suspected breaches of the Code of Conduct
Division 2 Basic procedural requirements
Section 47
(b) the determination; and
(c) any sanctions imposed as a result of a determination that the APS
employee breached the Code of Conduct; and
(d) if a statement of reasons was given to the APS employee—the statement of
reasons.
Note:
The
Archives Act 1983 and the
Privacy Act 1988 apply to a record made under this
section.
28
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Other employment matters
Part 6
Section 48
Part 6—Other employment matters
48 Restrictions on engaging a person who has received a redundancy benefit
(1) An Agency Head may only engage a person who has received a redundancy
benefit as an ongoing APS employee in accordance with the following
paragraphs:
(a) the Agency Head must consider that the person’s engagement is essential
for the Agency’s operations, having regard to:
(i) the nature of the duties to be performed; and
(ii) the work-related qualities of the person;
(b) if the Agency Head wishes to engage the person as:
(i) an ongoing APS employee; or
(ii) a non-ongoing SES employee;
the Agency Head must obtain the Commissioner’s approval to do so.
Note:
Subparagraph (a)(ii)—for
work-related qualities, see section 10.
(2) In this section:
person who has received a redundancy benefit means a person who has
received a redundancy benefit:
(a) from an APS agency or the Australian Parliamentary Service; and
(b) for which the redundancy benefit period has not ended.
redundancy benefit means:
(a) a severance payment, or similar payment, made to an employee on the
ending of the employee’s employment; or
(b) a payment made to an employee as a result of the shortening of a retention
period; or
(c) an incentive to retire payment under section 37 of the Act or section 37 of
the
Parliamentary Service Act 1999;
but not:
(d) a payment made to an employee as redundancy pay under section 119 of
the
Fair Work Act 2009; or
(e) a payment made to a person in lieu of notice of termination of employment.
Note:
Paragraph (d)—the amount of the payment mentioned in that paragraph is known as the
National Employment Standards redundancy amount.
redundancy benefit period, relating to a person’s redundancy benefit, means the
period (rounded down to the nearest equivalent whole day):
(a) beginning on the day after the person’s employment ends; and
(b) ending on the last day of the period worked out using the following
formula:
Australian Public Service Commissioner’s Directions 2016
29
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 6 Other employment matters
Section 49
Gross amount of employee’s redundancy benefit
Weekly salary
where:
weekly salary means:
(a) for a person who has periods of full-time and part-time service and whose
redundancy benefit is calculated on the basis of a part-time weekly
salary—the full-time equivalent of the part-time weekly salary; or
(b) in any other case—the weekly salary used to calculate the redundancy
benefit.
49 Matters relating to leave without pay
(1) An Agency Head must grant leave without pay to an ongoing APS employee
who applies for the leave to undertake or continue employment:
(a) for the purposes of section 13 of the
Governor-General Act 1974; or
(b) for the purposes of section 13 or 20 of the
Members of Parliament (Staff)
Act 1984.
(2) If an APS employee who has been granted leave without pay to undertake or
continue employment for the purposes mentioned in paragraph (1)(a) or (b)
notifies his or her Agency Head, in writing, that he or she wishes to return to the
Agency to undertake duties:
(a) the Agency Head must arrange for the APS employee to return to the
Agency as soon as practicable; and
(b) the Agency Head must arrange for the APS employee to undertake duties
at the employee’s classification immediately before the employee was
granted leave without pay or, if the classification no longer exists, at an
equivalent classification determined by the Agency Head.
Note 1:
The right of return under subsection (2) applies in relation to leave without pay whether
granted before or after the commencement of these provisions.
Note 2:
APS employees also have certain rights of return from leave granted under the
Australian Civilian Corps Act 2011 and these are provided in the
Prime Minister’s
Australian Civilian Corps Directions 2012.
50 Collection of employment-related data
(1) An Agency Head must ensure that there are measures in place to collect
information from each employee in the Agency, including information relating to
the following matters, and to give information that is collected to the
Commissioner:
(a) the employee’s highest level of attainment in education;
(b) the employee’s main field of study;
(c) the employee’s previous work experience;
(d) the employee’s Indigenous status;
(e) the employee’s disability status;
30
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Other employment matters
Part 6
Section 50
(f) the employee’s country of birth;
(g) the employee’s first language spoken;
(h) the first non-English language (if any) spoken by the employee;
(i) the first language of the employee’s father;
(j) the first language of the employee’s mother.
Note 1:
This requirement is in addition to the Agency Head’s duty to give the Commissioner
information for the Commissioner to prepare an annual report: see section 44 of the
Act.
Note 2:
Information collected using the measures mentioned in subsection (1) will be included
in the Australian Public Service Employment Database.
Note 3:
In collecting information using the measures mentioned in subsection (1), an Agency
Head will have regard to the specifications in relation to the collection of information
that are set out in the APSED Manual published on the website of the Australian Public
Service Commission.
(2) In seeking information relating to the matters in paragraphs (1)(a) to (j), an
Agency Head must allow APS employees to provide a response of “choose not
to give this information”.
Australian Public Service Commissioner’s Directions 2016
31
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 7 Delegation
Section 51
Part 7—Delegation
51 Delegation by the Commissioner
(1) The Commissioner may delegate, in writing, any of the Commissioner’s powers
or functions under this instrument (other than under this section) to:
(a) a person who holds any office or appointment under an Act; or
(b) an SES employee or acting SES employee.
Note:
See also sections 34AA and 34AB of the
Acts Interpretation Act 1901.
(2) A person (the
first delegate) to whom powers or functions are delegated under
subsection (1) may, in writing, delegate any of those powers or functions to
another person (the
second delegate).
(3) However, if the first delegate is subject to directions about the exercise of a
power or function delegated under subsection (2), the first delegate must give
corresponding directions to the second delegate.
(4) A person exercising powers or functions under a delegation under this section
must comply with any directions given by the Commissioner.
52 Delegation by Agency Head
(1) An Agency Head may delegate, in writing, any of the Agency Head’s powers or
functions under this instrument (other than under this section) to a person.
Note:
See also sections 34AA and 34AB of the
Acts Interpretation Act 1901.
(2) However, an Agency Head cannot delegate powers or functions to an outsider,
being a person other than:
(a) an APS employee; or
(b) a person appointed to an office by the Governor-General, or by a Minister,
under a law of the Commonwealth;
without the prior written consent of the Commissioner.
(3) A person (the
first delegate) to whom powers or functions are delegated under
subsection (1) may, in writing delegate any of the powers or functions to another
person (the
second delegate).
(4) However, if the first delegate is subject to directions about the exercise of a
power or function delegated under subsection (3), the first delegate must give
corresponding directions to the second delegate.
(5) A person exercising powers or functions under a delegation under this section
must comply with any directions of the Agency Head who delegated the power
or function.
32
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Application and transitional provisions
Part 8
Application and transitional provisions relating to this instrument
Division 1
Section 53
Part 8—Application and transitional provisions
Division 1—Application and transitional provisions relating to this
instrument
53 Definitions
In this Division:
commencement means the day this instrument commences.
old law means the
Australian Public Service Commissioner’s Directions 2013, as
in force immediately before the day this instrument commences.
54 Application—Gazettal of certain employment decisions and promotions
Division 2 of Part 3 of this instrument applies in respect of:
(a) an employment decision made on or after commencement; and
(b) an employment decision made before commencement but not notified
under Part 2.4 of the old law on commencement.
55 Transitional—use of merit lists
For the purposes of paragraph 20(1)(a) of this instrument, a vacancy is taken to
be a similar vacancy if the vacancy:
(a) was advertised in the 12 month period occurring before commencement;
and
(b) otherwise satisfies the requirements of section 9 of this instrument.
56 Transitional—vacancies notified before commencement
Despite the repeal of the old law by Schedule 2, the old law continues to apply in
relation to a vacancy if, immediately before commencement:
(a) the vacancy had been notified in the Public Service Gazette; and
(b) a decision had not been made to fill the vacancy.
57 Transitional—engagement on a short-term, irregular or intermittent basis
If a person was, immediately before commencement, engaged to perform duties
as a non-ongoing APS employee under clause 2.12 of the old law, then:
(a) the person is taken to be engaged to perform duties as a non-ongoing APS
employee under section 22 of this instrument; and
(b) section 22 of this instrument applies in respect of that engagement.
Australian Public Service Commissioner’s Directions 2016
33
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Part 8 Application and transitional provisions
Division 1 Application and transitional provisions relating to this instrument
Section 58
58 Transitional—managing effective performance
Despite the repeal of the old law by Schedule 2, the old law continues to apply in
relation to performance management taken in respect of an APS employee if:
(a) immediately before commencement, performance management was being
taken in respect of the APS employee in accordance with the Act, the
Regulations and the requirements of Chapter 4 of the old law; and
(b) on commencement, that performance management had not ended.
59 Savings—delegations
Delegation by the Commissioner
(1) A delegation by the Commissioner, as in force under clause 8.1 of the old law
immediately before commencement, continues in force on and after
commencement as if it had been made under section 51 of this instrument.
Delegation by an Agency Head
(2) A delegation by an Agency Head, as in force under clause 8.2 of the old law
immediately before commencement, continues in force on and after
commencement as if it had been made under section 52 of this instrument.
34
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Application and transitional provisions
Part 8
Amendments made by the Prime Minister’s Public Service Amendment Directions 2005 (No. 1)
Division 2
Section 60
Division 2—Amendments made by the Prime Minister’s Public
Service Amendment Directions 2005 (No. 1)
60 Transitional—Prime Minister’s Public Service Amendment Directions 2005
(No. 1)
(1) This section applies if:
(a) an Agency Head granted an application by an APS employee under
subclause 2.1(1) of the
Prime Minister’s Public Service Directions 1999, as
in force before the commencement of the
Prime Minister’s Public Service
Amendment Directions 2005 (No. 1) on 19 October 2005
, for leave without
pay to undertake or continue employment in a full-time statutory
appointment; and
(b) the period of leave has not expired on the day this instrument commences.
(2) The grant of leave without pay is not affected by the amendments made by the
Prime Minister’s Public Service Amendment Directions 2005 (No. 1) or by the
repeal of the
Prime Minister’s Public Service Directions 1999.
(3) If the APS employee applies to his or her Agency Head, in writing, for leave
without pay to continue the employment, the Agency Head may grant the
application.
(4) If the APS employee notifies his or her Agency Head, in writing, that he or she
wishes to return to the Agency to undertake duties:
(a) the Agency Head must arrange for the APS employee to return to the
Agency as soon as practicable; and
(b)
the Agency Head must arrange for the APS employee to undertake duties at
the employee’s classification immediately before the employee was granted leave without pay
or, if the classification no longer exists, at an equivalent classification determined by the
Agency Head.
Australian Public Service Commissioner’s Directions 2016
35
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Endnotes
Endnote 1—About the endnotes
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2 The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or
will amend) the compiled law. The information includes commencement details for amending
laws and details of any application, saving or transitional provisions that are not included in
this compilation.
The amendment history in endnote 4 provides information about amendments at the provision
(generally section or equivalent) level. It also includes information about any provision of the
compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The
Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and
presentational changes to a compiled law in preparing a compilation of the law for
registration. The changes must not change the effect of the law. Editorial changes take effect
from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the
changes in general terms. Full details of any changes can be obtained from the Office of
Parliamentary Counsel.
Misdescribed amendments A misdescribed amendment is an amendment that does not accurately describe the
amendment to be made. If, despite the misdescription, the amendment can be given effect as
intended, the amendment is incorporated into the compiled law and the abbreviation “(md)”
added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not
incorp)” is added to the details of the amendment included in the amendment history.
36
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Endnotes
Endnote 2—Abbreviation key
Endnote 2—Abbreviation key
ad = added or inserted
o = order(s)
am = amended
Ord = Ordinance
amdt = amendment
orig = original
c = clause(s)
par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x
/sub-subparagraph(s)
Ch = Chapter(s)
pres = present
def = definition(s)
prev = previous
Dict = Dictionary
(prev…) = previously
disallowed = disallowed by Parliament
Pt = Part(s)
Div = Division(s)
r = regulation(s)/rule(s)
ed = editorial change
reloc = relocated
exp = expires/expired or ceases/ceased to have
renum = renumbered
effect
rep = repealed
F = Federal Register of Legislation
rs = repealed and substituted
gaz = gazette
s = section(s)/subsection(s)
LA =
Legislation Act 2003
Sch = Schedule(s)
LIA =
Legislative Instruments Act 2003
Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given
SLI = Select Legislative Instrument
effect
SR = Statutory Rules
(md not incorp) = misdescribed amendment
Sub-Ch = Sub-Chapter(s)
cannot be given effect
SubPt = Subpart(s)
mod = modified/modification
underlining = whole or part not
No. = Number(s)
commenced or to be commenced
Australian Public Service Commissioner’s Directions 2016
37
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Endnotes
Endnote 3—Legislation history
Endnote 3—Legislation history
Name
Registration
Commencement
Application, saving
and transitional
provisions
Australian Public Service
14 Sept 2016
1 Dec 2016 (s 2(1) item 1)
Commissioner’s Directions 2016
(F2016L01430)
Australian Public Service
24 July 2019
25 July 2019 (s 2(1) item 1)
—
Commissioner’s Amendment (2019
(F2019L01001)
Measures No. 1) Direction 2019
38
Australian Public Service Commissioner’s Directions 2016
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Endnotes
Endnote 4—Amendment history
Endnote 4—Amendment history
Provision affected
How affected
s 2 .................................................. rep LA s 48D
s 4 .................................................. rep LA s 48C
Part 4
Division 2
Division 2 (heading) ...................... rs F2019L01001
s 39 ................................................ rs F2019L01001
s 39A ............................................. ad F2019L01001
s 39B ............................................. ad F2019L01001
Schedule 1 ..................................... rep LA s 48C
s 1 .................................................. rep LA s 48C
Australian Public Service Commissioner’s Directions 2016
39
Compilation No. 1
Compilation date: 25/7/19
Registered: 31/7/19
Authorised Version F2019C00615 registered 31/07/2019
Document Outline