Public Service Act 1999 Advice No. 22: Discrimination in APS employment

Please note: This document is no longer current and is provided for reference purposes only (October 2009).

Introduction

This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation.

2 The purpose of this advice is to provide information on requirements for the prevention of discrimination in employment under the new Act.

Background

3 Section 33(3)(a) of the Public Service Act 1922 (the old PS Act) prohibited discrimination in appointment, promotion and transfer on the grounds of political affiliation, race, colour, ethnic origin, religion, sex, sexual preference, marital status, pregnancy, age or physical or mental disability as well as on grounds prohibited by the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. It also permitted exemptions by regulation where discrimination was deemed essential for effective performance of duties or where special measures were put in place to encourage the recruitment of members of specified EEO groups. Exemptions authorised by regulation where discrimination was deemed essential for effective performance of duties included:

discrimination on the basis of political affiliation for the purpose of appointment, promotion or transfer to certain duties in the Australian Electoral Commission;
discrimination on the basis of minimum wage for the employment of Assistant Customs Officers.

Changes under the new legislation

4 With the exception of the APS Values, the new legislation does not provide any specific anti-discrimination provisions in relation to APS employment. Rather, it brings the APS under the same anti-discrimination regime that applies to other sectors of industry.

5 All APS employees must uphold the APS Values, while Agency Heads must uphold and promote them. The Public Service Commissioner's Direction on APS Value (c) -. the APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the community it serves - includes a requirement for Agency Heads and APS employees to help ensure compliance with all Commonweath anti-discrimination laws.

6 These laws include the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Human Rights and Equal Opportunity Act 1986 and the anti-discrimination provisions of the Workplace Relations Act 1996.

New arrangements

7 Commonwealth anti-discrimination legislation generally permits exemptions where action, which might otherwise amount to discrimination, is deemed essential to meet the inherent requirements of the job or where special measures are considered necessary to provide equality of opportunity. Agency Heads will be responsible for intepreting and applying the legislation and for justifying the necessity for any exemptions.

8 Exemptions permitted by the old regulation, where discrimination was deemed essential for effective performance of duties, should be possible under the new arrangements. Given the nature of work in the APS, it may be very difficult to justify any other exemptions.

9 The new framework will also permit the maintenance of agency and service wide development programs based, for example, on gender or on being an Indigenous Australian. Engagement and promotion will, however, continue to be on the basis of merit except in circumstances where special recruitment measures are approved by the Public Service Commissioner.

Related advice

10 This advice should be read in conjunction with the related advice, Special Employment Measures.

11 PSMPC contact is ph: 02 6202 3859.

Jenny Harrison
Team Leader
Values, Conduct and Diversity Team

17 November 1999