HR Leaders Forum, 8 May 2013The Boat House by the Lake, Barton

Public Service Amendment Act 2013Public Service Amendment Regulation 2013Australian Public Service Commissioner’s Directions 2013

Overview• Context for change• Main changes at a glance• Role of Public Service Commissioner• Senior Executive Service

Context for change

• Ahead of the Game: Blueprint for the Reform of Australian Government Administration

Some of the Blueprint’s recommendations required legislative change

• There are also amendments aimed at improving the operation of the Act. These changes address matters that have arisen as a result of

working with the Act since 1999 - largely driven by agencies.

Quotes

This bill...will...facilitate and accelerate the cultural shift towards operating more effectively as 'one Australian Public Service’.

March 2012The reforms passed by the Senate today will provide Australia with a public service that is modern, agile and responsive, leading to a more efficient and effective use of Commonwealth’s resources and benefitting all Australians.The Australian Public Service is fundamental to the success of our country and our society. The commitment and expertise of our public service directly affects the lives of all Australians.

February 2013The Hon Gary Gray AO MP(then) Minister for the Public Service and Integrity

5

Repealed and re-made

1. APS Values 2. Recruitment and Selection

Merit Principle Engagement and promotion – standard

provisions Exceptions to standard provisions Assignment of duties and moves

between agencies Gazettal of promotions and taking effect

3. Workplace diversity4. Performance management5. Safe work places6. Agency head handling of suspected breaches

of the Code of Conduct7. Other employment matters

Restrictions on engaging redundancy benefit recipients

Termination of employment: non-ongoing APS employees

Incentive to retire- SES Leave without pay for specified purpose Transitional (PM’s Directions)

8. DelegationsSchedule 1: Re-engagement of election candidatesSchedule 2: Comparison with Parliamentary Service classifications

Commissioner’s Directions

Amended

• Statutory office holders and the Code of Conduct

• APS Whistleblowing• Medical examinations/fitness for duty• Non-ongoing employment• ISAC processes• Promotion review• Review of actions• Agency head misconduct• Procedural requirements for

misconduct investigations by the Commissioners

• Machinery of government• Privacy • Miscellaneous• Transitional

PS Regulations

Amended

• Revised arrangements for APS leadership

reforms to the appointment and termination arrangements for Secretaries,

Secretaries roles and responsibilities

Role of Secretaries Board revised role for the SES

• Revised APS Values and the introduction of a set of Employment Principles

• Role of the Australian Public Service Commissioner

Capacity for systems reviews, special reviews

Special Commissioners

• APS Code of Conduct • Handling of misconduct, including

to the Merit Protection Commissioner's review functions

• APS whistleblowing• Privacy• Miscellaneous• Transitional

PS ActMain changes—at a glance

Role of Public Service Commissioner • Modernised role—central authority for APS workforce

development and reform• 3 broad functions:

– to strengthen the professionalism of the APS and facilitate continuous improvement in workforce management in the APS

– to uphold high standards of integrity and conduct in the APS

– to monitor, review and report on APS capabilities within and between agencies to promote high standards of accountability, effectiveness and performance.

• Clearer powers of review (more detail next slide)

• New function to investigate employee misconduct in certain circumstances

Role of Public Service Commissioner cont.• More detail around the existing authority of the PSC’er to

undertake independent reviewso Systems Reviews on management and organisational systems, structures and

processes of any APS body or of the functional relationship between 2 or more agencies on the request of the PM, the agency minister or the Secretary, with the agreement of the PM

o Special Reviews on any matter relating to an Agency or the functional relationship between 2 agencies, only at the request of the PM Coercive information gathering powers available

• PSC’er may be assisted by Special Commissioners appointed by the Governor-General in undertaking Special Reviewso Special Commissioners have the same information gathering powers as the

PSC’er

Senior Executive Service • Redefined function and role

Provide APS-wide strategic leadership of the highest quality that contributes to an effective and cohesive APS

• Each SES employee is to provide one or more of the following at a high level:– Professional or specialist expertise– Policy advice– Program or service delivery– Regulatory administration

Senior Executive Service cont.• All SES are required to promote cooperation within

and between agencies, including to deliver outcomes across agency and portfolio boundaries

• By personal example and other means, promote the APS Values, the APS Employment Principles and compliance with the Code of Conduct

Culture• APS Values • APS Employment Principles• APS Code of Conduct

The APS Values and Employment Principles

• New APS Values and Employment Principles will shape the organisational culture of the APS.

• These are core components of positive cultural change, building stewardship, high performance, and leadership—and fostering ‘one APS’.

I CARE

The APS is

Impartial

Committed to Service

Accountable

Respectful

Ethical

How do we deliver on what governments and Australia expects? ...through our approach: how we work, our guiding principles...we [the APS] should be united by our ethics...

Dr Ian Watt, Secretary of PM&C, June 2012

The principles

New APS ValuesImpartial: The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.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.Accountable: The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.Respectful: The APS respects all people, including their rights and their heritage.Ethical: The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.

APS Employment PrinciplesThe APS is a career based public service that:

(a) makes fair employment decisions with a fair system of review(b) recognises that the usual basis for engagement is as an ongoing APS

employee(c) makes decisions relating to engagement and promotion that are based on

merit(d) requires effective performance from each employee(e) provides flexible, safe and rewarding workplaces where communication,

consultation, cooperation and input from employees on matters that affect their workplaces are valued

(f) provides workplaces that are free from discrimination, patronage and favouritism(g) recognises the diversity of the Australian community and fosters diversity in

the workplace.

APS Commissioner’s DirectionsThe Australian Public Service Commissioner has made new Directions to:

• ensure the APS incorporates and upholds the Values and Employment Principles

• determine the scope and application of the Values and Employment Principles.

Effective performanceThe APS is a career based public service that:

…..(d) requires effective performance from each employee

Direction 4.1 notes that Agency Heads ‘will support employees to achieve effective performance by ensuring that the Agency

• builds the capability necessary to achieve the outcomes properly expected by the Government;• has fair and open performance management processes and practices that support a culture of high

performance, in which all performance is effectively managed;• provides each APS employee with a clear statement of the performance and behaviour expected of

him or her, and an opportunity to discuss his or her responsibilities;• requires employees to participate constructively in agency-based performance management

processes and practices; • invests in building the capability of managers to manage performance effectively; and• uses its performance management processes to guide salary movement and reward.

The new APS Values—Engaging leaders

• What can I do in my agency to engage my leaders and support the roll-out of the new Values?

• How can the Commission help?

Changes to the Code of Conduct(1) An APS employee must behave honestly and with integrity in the course of in connection with APS employment.

(2) An APS employee must act with care and diligence in the course of in connection with APS employment.

(3) An APS employee, when acting in the course of in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.

(4) An APS employee, when acting in the course of in connection with APS employment, must comply with all applicable Australian laws.

(11) An APS employee must at all times behave in a way that upholds:

(a) the APS Values and APS Employment Principles; and

(b) the integrity and good reputation of the employee’s Agency and the APS.

Changes to the Code of Conduct cont.• Application to former employees– agencies may investigate suspected misconduct by former

employees– sanctions may not be imposed on former employees

• New pre-engagement provision– APS employees may be in breach of the Code if, before

engagement, they:• provide false/misleading information, or • fail to provide relevant information,

in connection with their engagement.

Handling misconduct• Code of Conduct procedures• Sanction procedures• Use and disclosure of employee information • Whistleblowing

Handling misconduct • Code of Conduct procedures:

• minor changes to basic requirements in the Commissioner’s Directions• sanction procedures are now required• changes agencies need to make—e.g. procedures must take account of former

employee misconduct; pre-employment misconduct

• Code of Conduct inquiries and inter-agency moves• a movement (including promotion) will not take effect until the matter is resolved, unless

both agency heads agree otherwise

• Commissioners—new power to investigate APS employee misconduct in limited circumstances

• Application of the Code of Conduct to statutory office holders• application expanded slightly; definition of SOH narrowed• Commissioner has new function of investigating alleged breaches

Use and disclosure of personal informationThree main changes:

1. The Act now provides for the use, as well as the disclosure, of personal information (new section 72E).

2. The Regulations (amended regulation 9.2) authorise the use/disclosure of personal information where it is relevant, as well as ‘necessary’, to a range of agency head and Commissioner functions.

3. Use/disclosure is authorised where it is necessary/relevant to any of an agency head’s employer powers under the Act.– This authorises use/disclosure of information relating to Code of Conduct

matters, among other things.

Whistleblowing• Changes to the whistleblowing scheme

• amended regulations clarify the operation of the scheme• agency procedures must provide for employees to make reports, and for agency heads to deal

with reports• agency heads and Commissioners may decline/discontinue inquiries into whistleblower reports.

• Changes to the basic requirements for whistleblowing procedures• agency head must report the outcome of an inquiry to the whistleblower• clarification of procedural fairness requirement: agency head must consider whether to give the

person about whom a report is made the opportunity to be heard. (In some circumstances this opportunity may also be extended to others.)

• Declining/discontinuing whistleblowing inquiries• where a matter would be dealt with more appropriately by different means• if a matter is considered frivolous, vexatious, misconceived, or lacking in substance• if insufficient detail has been provided• where inquiry would not otherwise be justified in all the circumstances.

Employment Matters• Recruitment and selection• ISACs, Review of actions, PRCs• Diversity• Other employment matters

Recruitment and selectionPublic Service Act changes:• APS Employment Principle 10A(1)(c) provides that ‘the APS

is a career based service which ... makes decisions relating to engagement and promotion that are based on merit’.

• ‘Merit’ applies to engagement and promotion decisions—other employment decisions must be ‘fair’ (APS Employment Principle 10A(1)(a)).

Recruitment and selection cont.APS Commissioner’s Directions 2013• Chapter 2—Recruitment and Selection: expands merit principle for

engagement and promotion.• Includes some matters previously in Regulations– requirement to notify certain employment decisions in Gazette – dates of effect of promotions and moves at level between agencies.

• Little change to ongoing engagement/promotion:– minimum 7 day application period, unless Commissioner agrees

otherwise– restricting vacancies to existing APS employees requires

Commissioner’s approval– name may be withheld from Gazette (for e.g. security-related work)• .

Recruitment and selection cont. APS Commissioner’s Directions 2013 (cont.)• SES recruitment and selection in Chapter 2 with core provisions.• Some exceptions to merit principle (including current affirmative measures

for Indigenous people and certain people with disability).• Changes to non-ongoing engagement:– No change to specified term or task engagement for more than 12

months.– Specified term or task vacancies of 12 months or less:• gazettal and full merit selection process not required• make opportunities available to community (e.g. non-ongoing

employment register)• must be satisfied that person has work-related qualities genuinely

required to perform relevant duties.

Recruitment and selection cont. Public Service Regulations• Continue to prescribe arrangements for engagement of

persons on non-ongoing basis.• Regulations 3.5 and 3.6 consolidated into new Regulation 3.5:

– streamline and simplify grounds to engage person on non-ongoing basis

– standardise 3 year time limit for specified term employment, maximum initial engagement 18 months in most circumstances

– Commissioner has new power to extend specified term beyond 3 years in special circumstances (up to further 12 months)

– new provisions for engagement of state/territory public servants as non-ongoing APS employees for specified term.

ISACs, Review of actions, Promotion reviews

Changes made to improve flexibility, streamline procedures and provide greater clarity for MPC functions

(Advices 6, 10 and 13)

Independent Selection Advisory Committees

ISACs can• seek expert opinion (reg 4.7(1A)) and utilise agency staff as

agents (reg 4.7(1B))• issue instructions to agents as can the MPC (reg 4.7(1C) and

reg 4.5(1A))

Flexibility for agencies • Use of ISAC recommendations (reg 4.11(1A))

Review of actions Impact on agencies• Regs 5.23 and 5.23A (reviewable actions and timing) consolidated• New grounds - ‘misconceived or lacking in substance’• Clarifying when reviews lapse (reg 5.22(2))

• Clarify that preliminary action re assignment of duties excluded from review (item 10 Schedule 1)

• No need to consult employee if accepting MPC recommendation (reg 5.32(2A))

• Changes to references

Review of actions cont.

Impact on MPC administration• Changes to how MPC conducts reviews (regs 5.28, 5.31)

• Series of technical changes Former employees• Right of review of determination that former employee

has breached Code (Division 7.3)

Promotion review (PRCs)

Promotion review• No change to agency obligations (Division 5.2)

• Parties to review have no entitlement to access other parties’ statements (reg 5.12(5))

–procedural fairness obligations remain (reg 5.33)

Diversity • What has changed and why?• Agency Heads must publish diversity programs

online.• Further guidance to be issued for agencies with

limited capacity to develop diversity programs.

Other employment mattersMedical examinations• Existing agency head power to require employee to attend medical examination to:

– satisfy condition of employee’s engagement, or– assess employee’s fitness for duty.

• Regulations 3.1 and 3.2 amended to:– revise definition of person who can conduct examination to include, for e.g., clinical psychologist– clarify that person conducting examination can provide report of examination directly to agency

head– provide that agency head can direct employee to attend examination and provide report of

examination within specified time frame– broaden circumstances in which agency head can require employee to attend examination to

assess fitness for duty to include:• where employee is to be assigned new duties and agency is concerned that employee’s state of

health may affect their ability to perform duties, and• where employee is to travel overseas as part of their employment.

Other employment matters cont.Machinery of Government changes• New provision allowing Commissioner to determine how employment-related

matters are dealt with where staff move between APS agencies as a result of MoG change, for example:– conditions of engagement – incomplete code of conduct investigation– underperformance processes.

• Salary protection provisions in Regulations amended to clarify that salary to be protected means the actual salary in enterprise agreement or other instrument:– does not include various allowances, bonuses or other matters.

• Salary protection continues to apply until employee’s salary is increased by gaining agency.

Other employment matters cont. Special payments• Existing provision in Act allows Public Service Minister to authorise payments up to $100,000

to persons in special circumstances that arise out of Commonwealth employment.• Provision in Act repealed and new provision allows amount to be set by Regulation

– maximum amount raised to $250,000.• Power delegated to agency heads must be exercised personally by agency head.

Election candidates• Provisions moved largely unchanged from Regulations to Directions. • Where employee resigns prior to 1 July to contest an election, their rights to re-engagement if

they fail to be elected will continue to be assessed under current arrangements.

Leave without pay• Provisions re mandatory leave without pay for APS employees for employment under MoPS

Act or G-G Act in Commissioner’s Directions rather than PM’s Public Service Directions. • Provisions unchanged and no impact on persons already on such leave.

Implementation – Agency actionsMust dos by 1 July 2013• Communicate the changes to employees

• Put in place revised:

– delegations

– Code of Conduct and sanction procedures

– APS whistleblowing procedures

• Publish Diversity Plans on website

• Manage transitional arrangements for staffing actions

Desirable by 1 July 2013• Review and update other employment policies and procedures, including for:

– recruitment and selection (incl SES and non-ongoing)– review of actions– references to APS Values and Code of Conduct

Next steps and further information• Advices being released• Some guidance updated before implementation• Look for news @ www.apsc.gov.au• Contact:

PSAmendmentAct2013@apsc.gov.au Q&A page 6202 3737