Output 3: Employment-related services and functions

Organisational instruments and individual casework

Senior Executive Service

The Senior Executive Service (SES) comprises the leadership cadre of the APS. The Commissioner retains a direct role in relation to aspects of SES recruitment, mobility, termination and retirement under the PS Act 1999 and the Commissioner’s Directions.

The 2003 APS Commission Client Satisfaction Survey showed an almost 80% satisfaction rate (4% dissatisfaction) with the services provided by the Commission in relation to SES matters.

SES selections

Before an Agency Head can finalise a promotion or engagement decision arising from a merit selection process for SES duties, the Commissioner’s endorsement must be obtained.

In 2002–03, there were 143 SES selection processes endorsed by the Commissioner, resulting in a total of 305 SES jobs being filled by promotion or engagement. This figure represents a slight increase in SES staffing activity resulting from advertised SES employment opportunities in comparison with 2001-02.

The Commissioner continued to maintain a high rate of turnaround in dealing with requests for his endorsement of SES selection processes, with the average time from receipt to response being one working day.

SES retirement under section 37

In 2002–03, a total of 39 SES employees retired with a specified amount under the provisions of section 37 of the PS Act 1999, a slight reduction on the number retiring under section 37 in 2001–02. Section 37 allows an Agency Head to offer an SES employee an incentive to retire, subject to the Commissioner agreeing to the specified amount to be paid.

Following discussions with Agency Heads, and the release of the MAC Report Organisational Renewal, the Commissioner wrote to all Agency Heads on 6 May 2003 highlighting the need for agencies to consider measures to retain mature-aged workers, and the related area of concern regarding the possible over-use of redundancy arrangements, including at the SES level.

Appendix G provides the SES profile at 30 June 2003 and details of SES promotions, engagements and movements to advertised vacancies, SES movements by Band, retirements under section 37 by agency, and all SES separations by type in 2002–03.

SES Adviser

In 2002–03, the SES Adviser role continued to be performed by the Group Manager and staff in the Policy and Employment Group. The SES Adviser provides advice on career options facing individual SES employees, particularly those being offered section 37 retirement. Approximately 60 SES employees sought such assistance in 2002–03.

Administrative rearrangements

The Commission provides advice to agencies on the operation of the relevant legislative provisions applying to administrative re-arrangements as a result of machinery of government changes. The Commission is also responsible for executing the necessary legislative instruments to effect the movement of staff associated with these changes.

Administrative rearrangement casework

The Commission handled a total of 13 administrative re-arrangements that occurred during the year.

The Commission prepared and executed the necessary legislative instruments to give effect to these administrative rearrangements to meet the timeframes set by the Government and by individual agencies.

The 2001–02 annual report indicated that the Commission was preparing more detailed guidance for agencies on the implementation of administrative re-arrangements and this work is continuing. Pending further consideration of the need for global advice, the Commission has continued to provide detailed advice and guidance to agencies involved in administrative re-arrangements. The comprehensive advice provided to agencies following the November 2001 federal election remains relevant to all administrative re-arrangements that occurred during 2002–03. This advice is contained in circular No.2001/7 and is available on the Commission’s website.

Executive agencies

The PS Act 1999 contains provisions to enable the creation of executive agencies by the Governor-General. Executive agencies are non-statutory bodies headed by a person appointed by, and directly accountable to, the Minister responsible for the agency.

The Public Service Commissioner's powers under section 72 of the PS Act 1999 may be used to move existing APS staff to a new executive agency on or after the date of its establishment.

Two new executive agencies were created on 1 July 2002, the Bureau of Meteorology and Invest Australia. Invest Australia was subsequently abolished with effect from 31 December 2002. Invest Australia functions and staff were moved to the Department of Industry, Tourism and Resources.

Re-engagement following receipt of a redundancy benefit

Under clause 4.4A of the Public Service Commissioner’s Directions, an Agency Head must not engage a person who has received a redundancy benefit within the previous 12 months from either the APS or a non- APS Commonwealth employer unless the person is being engaged as a non-SES nonongoing employee in specified circumstances and where the Public Service Commissioner had been consulted in prescribed cases.

The Public Service Commissioner was only consulted on one occasion during 2002–03 by an agency seeking to make use of this provision and the agency was advised that the Commissioner had no objection to the proposed engagement.

Clause 4.4B of the Public Service Commissioner's Directions was inserted during the year. Under this clause an Agency Head must not engage overseas a person who has received a redundancy benefit within the previous 12 months from either the APS or a non-APS Commonwealth unless Agency Head is satisfied that the engagement is essential for the agency’s operations and the Public Service Commissioner had been consulted.

The Public Service Commissioner has not yet been approached by an Agency Head seeking to make such an engagement.

Following a request from the Minister Assisting the Prime Minister for the Public Service, the Commissioner is reviewing the Directions in exceptional circumstances with a view to allowing further discretion to engage a redundancy benefit recipient as an ongoing employee.

Delegations to outsiders: Section 78(8) of the Public Service Act 1999

The Public Service Commissioner’s prior written consent is required before an Agency Head can delegate his or her powers or functions to an outsider. The power of delegation relates only to the powers or functions under the PS Act 1999.

During the year twelve new submissions were received. The Commissioner gave his consent to the delegation of Agency Head powers and functions in each case.

In all cases, the recommendations of the Senate Standing Committee on the Scrutiny of Bills concerning the qualifications and attributes of delegates were taken into account.

APS Labour Market Adjustment Program

There has been a sharp decline in the number of clients referred to the APS Labour Market Adjustment Program (APSLMAP) over the life of the program for redeployment assistance and other support. The numbers have declined from 1100 in 1996–97 to 43 in 2001–02 and 18 in the second half of 2002. This is partly due to a reduction in the level of downsizing occurring in APS agencies and partly due to agencies accessing private sector providers of such services.

As a consequence of the declining use of APSLMAP, the Minister Assisting the Prime Minister for the Public Service, the Hon. Tony Abbott, MP, announced on 16 December 2002 that the APS Commission would not accept any new APSLMAP clients from 1 January 2003. Clients in the program at that date continued to be managed in accordance with the program provisions until the end of their retention period.

The APS Commission continued to provide a career advising service to agencies for surplus, excess and other affected employees on a full fee-for-service basis through the Regional Services Groups. This service focuses on providing short-term intensive career advising sessions to referred individuals. Agencies continued to negotiate the level and nature of services they provide excess or potentially excess employees in the context of their obligations under their certified agreements and Australian workplace agreements. The Commission has received four requests for career advice since 1 January 2003. One of these has been finalised, two are continuing and one is on hold at the request of the client.

Employment–related casework

Under the PS Act 1999, the Commissioner is empowered to ”provide advice and assistance on public service matters to Agencies on request” (s41(1)(k)).

The advice and assistance provided to agencies at their request is usually performed under a fee-for-service arrangement, where the requested service is not normally part of core Commission responsibilities. In addition to the suite of the Commission’s learning and development programs that are made available to agencies and their employees (see Output 2), many agencies find that the Commission is able to provide other specific employmentrelated services that assist them in their administrative responsibilities under the PS Act 1999.

Many of these services relate to areas where the Commission and its staff are acknowledged as providing better practice or benchmark quality services, such as in selection, recruitment and other meritrelated areas. However, the Commission is recognised for the quality of its ongoing and non-ongoing employees (the latter are on a panel of regional advisers, who are called upon as required to provide specific agency services), and a range of other services such as mediation, performance review and business planning are provided.

In addition to the above, the Regulations empower the Merit Protection Commissioner to carry out a range of employment-related functions and to charge Agency Heads for these services. The Public Service Commissioner is required to make available staff "to assist the Merit Protection Commissioner" in the performance of his functions (s49(2) of the PS Act 1999). Although such services can be provided to a range of APS and non-APS agencies, the vast majority of these services are provided to APS Agency Heads, through the establishment of Independent Selection Advisory Committees. Services provided to non-APS Commonwealth agencies such as the HIC and CASA, to the Parliamentary departments and to the ACT Government are not covered by this Report. See the Merit Protection Commissioner’s Annual Report at Part 4 for further information.

For the purposes of this report, the casework activities covered include all those performed for the Public Service Commissioner and the Merit Protection Commissioner with respect to APS agencies and staff.

Casework is provided on request to agencies wherever it is needed, but given the operational nature of such work, much of it is done in regional areas. For a sense of the spread of such work, the number of Public Service Commissioner and Merit Protection Commissioner cases in each state and Territory in 2002–03 is shown in Table 2. The nature of the service (whether for the Public Service Commissioner or the Merit Protection Commissioner) is not differentiated for PBS purposes. The total number of casework activities recorded in 2002–03 was 238, compared to 2001–02, when 229 activities were completed. The increase is caused by an increase in the number of requests for ISACs in most regions.

Table 2: Public Service Commissioner and Merit Protection Commissioner Casework Received from APS Agencies 2002–03

	ACT	NSW	Vic	Qld	SA	WA	Total
PSC	25	26	39	16	7	38	151
MPC	15	14	20	7	15	16	87
Total	40	40	59	23	22	54	238

Public interest whistleblowing

The APS whistleblowing scheme is provided for by the PS Act 1999 and the Regulations. Section 16 of the Act prohibits the victimisation or discrimination of an APS employee who discloses a breach or an alleged breach of the Code of Conduct. The Regulations require Agency Heads to establish procedures to manage public interest disclosures. The procedures must observe procedural fairness, comply with the Privacy Act 1988 and provide a right to have the matter referred, in certain circumstances, to the Public Service Commissioner or the Merit Protection Commissioner.

Agency Heads are responsible for establishing procedures for handling whistleblower disclosures alleging breaches of the Code of Conduct, and for investigating breaches of the Code, by their employees. Therefore, in the first instance, disclosures should be made to, and investigated by, the relevant APS agency. The whistleblower may take the matter to the Public Service Commissioner or Merit Protection Commissioner where the whistleblower is not satisfied with the findings of an agency-based investigation or in other specified circumstances, such as where it is not appropriate for the Agency Head to deal with the matter.

The Commission is developing guidance to agencies in the management of the scheme, including the respective responsibilities of Agency Heads and the Commissioner. The Commissioner also intends to prepare advice to potential whistleblowers about how the Commission will manage their disclosure.

There were 13 reports sent to the Commissioner during 2002–03, one more than the number received during 2001–02. Six of these were from current APS employees, three from former employees and four from private citizens.

Only one of the disclosures met the criteria for investigation by the Public Service Commissioner. The report alleged breaches of the Code of Conduct in relation to a selection process and is currently being investigated.

The other twelve disclosures did not meet the criteria for investigation by the Public Service Commissioner. As the whistleblowing scheme does not provide for the reporting by members of the public of alleged breaches of the Code of Conduct by APS employees, in the case of the four disclosures from private citizens advice was provided on the appropriate ways in which their concerns could be addressed. The three disclosures from former APS employees claimed nepotism in a selection process and raised issues relating to termination of employment. These matters were more appropriately dealt with by the relevant Agency Heads and, in one case, the Commonwealth Ombudsman. The individuals in these cases were advised accordingly.

The remaining five disclosures included three anonymous reports, relating to a range of employment actions and selection processes, which were referred to the relevant Agency Heads for consideration. In the case of one of the two other disclosures by APS employees, the Agency Head had commenced consideration of the matters and in the other it was determined that no inquiry was warranted.

The Public Service Commissioner also finalised two investigations that were carried over from the previous year. One disclosure related to alleged interference in a tendering and contracting exercise and the other to alleged breaches of the Privacy Principles. In both cases the Public Service Commissioner did not find any material to support the allegations made in the disclosures.

Further information on whistleblowing is contained in the Merit Protection Commissioner’s Annual Report at Part 4 of this report.

Figure 13: Price for organisational instruments and individual casework