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> Publications > Ongoing employment – Recruitment and related issues > Recruitment and selection > Step 9 > Next: Frequently Asked Questions
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Last updated: 15 August 2005

Ongoing employment – Recruitment and related issues

 

Please note: This document is no longer current and is provided for reference purposes only.

 

Stage 4: Implementation

Step 9. Implement selection decision

Act on selection outcome

Once a preferred candidate has been identified, the steps required by the legislation to implement the decision will vary, depending on the outcome decided on. The four main possible outcomes are:

* Note: engagement and promotion also involve assignment of duties.

If the selected person is employed in another agency, movement between agencies will also be involved.

The different selection outcomes and their legislative requirements are discussed in detail at steps 9.4 to 9.12.

Minimum recording requirements for staff selection decisions

It is important to document the recruitment process properly in any recommendation to the Agency Head. This is important not only to provide the Agency Head with a sound basis for making a decision but also to demonstrate compliance with the Values, legal framework and administrative law requirements and have a proper basis for counselling unsuccessful applicants.

SELECTION REPORT

As a minimum requirement, the record for decisions involving a promotion or engagement should:

The aim should be to keep the record as succinct as possible while covering the information required by the delegate.

EXERCISING POWERS UNDER THE ACT

Implementing a selection outcome will usually involve the simultaneous exercise by the Agency Head of various powers under the legal framework. For example, it may involve a combination of engagement, along with the imposition of one or more conditions of engagement (section 22), assignment of duties (section 25), allocation of an approved classification (rule 6 of the Classification Rules) and nomination to occupy a position (section 77) if relevant1. A promotion involves the assignment of duties (section 25) and allocation of a new approved classification ie the higher classification (rule 6 of the Classification Rules) and may involve a move between agencies (section 26).

In general, the Act does not require that the record of the exercise of these powers take a particular form—except in the case of movement under section 26, which requires that there be an agreement in writing between the Agency Head and the employee. Where the decision-maker holds all the relevant delegations, it is possible to use a single instrument, for example, to engage an employee, determine duties, allocate a classification and nominate a position. However, it is not appropriate to include in an agreement to move, the exercise of other powers such as assignment of duties and an approved classification. These should be dealt with in a separate instrument.

KEEPING RECORDS

It is important to retain documentary evidence on an employee’s personnel file of the exercise by an agency head of powers under the Act and their date of effect. It is also important to retain documentation of the Gazette notification of the advertisement, and the terms of any offer of engagement or movement. This may be important later in calculating the employee’s entitlements or if there is a challenge by that employee to the validity of an exercise of power or any dispute as to the terms of the engagement or movement.

As an employee can only be reduced in classification with the employee's consent or on one of the grounds in section 23(4), evidence should be kept of the employee's consent, or the basis for the decision.

Under the Administrative Functions Disposal Authority (2000) issued by the National Archives of Australia there are minimum retention periods for recruitment records—these are outlined briefly in question 3.18 in Chapter 3.

Timeframe for decision making

The decision to promote an ongoing employee or engage a person must be made during the 12 months after the employment opportunity was notified in the Gazette (Direction 4.2, Direction 4.6A).

If the same, or a similar employment opportunity, arises during 12 months from the date of the original Gazette notification, an Agency Head can decide to promote or engage a candidate from the order of merit generated by an earlier selection exercise.

The only exception to this is if the area where the employment opportunity has arisen has been subject to an administrative rearrangement and has moved to another agency. It is the Commission's view that a post-move Agency Head cannot use an order of merit which was finalised in the pre-move agency to fill the same or a similar opportunity in the post-move Agency, even if it is within 12 months from the date of the Gazette notification, as this would not meet the notification requirements in Direction 4.2 and 4.6A.

Ongoing assignment of duties within an agency without the need for an open competitive selection process

The date of effect of a decision to assign duties at a similar or lower classification is determined by the Agency Head but it is good management practice for the Agency Head to consult with the employee concerned. See also step 2 and question 3.19 in Chapter 3.

The decision to assign duties should be recorded and the employee should be notified of all relevant information including the assignment of duties and the place at which the duties are to be performed, the allocation of an approved APS classification and the nomination of a position (if section 77 is used1).

There is no requirement to notify the assignment of duties in the Gazette if the employment opportunity was not originally notified in the Gazette.

Ongoing movement between agencies without the need for a competitive selection process

DATE OF EFFECT

If an employee moves from another agency on an ongoing basis, other than on promotion, the move takes effect 4 weeks after the employee tells the pre-move Agency Head of the move, or at a specified date agreed between the pre-move and post-move Agency Heads and the employee (Regulation 3.9). Each agency will need to have in place procedures to ensure that an ongoing employee tells the pre-move Agency Head of an agreement made by the employee to move to another agency.

The agreement between the post-move Agency Head and the employee should provide for cancellation of the move if certain circumstances arise before the move occurs. This is discussed further in question 3.9 in Chapter 3.

ACTIONS REQUIRED TO IMPLEMENT DECISION

As it requires the written agreement of the employee, the agreement to move (required by section 26) requires a separate instrument from the exercise of other powers under the Act (which simply involve actions by the Agency Head).

In association with the movement, the post-move Agency Head must allocate a classification and assign duties appropriate to the classification to the employee. The Agency Head does not have to wait until the employee moves to the Agency before exercising the powers under the Act to:

These actions may be finalised before the employee commences but should be expressed to be effective on the date the employee moves to the agency.

DOCUMENTATION AND NOTIFICATION OF DECISION

The decision should be recorded and the employee should be notified of all relevant information including the assignment of duties and the location at which the duties are to be performed, the allocation of an approved APS classification and the nomination of a position (if section 77 is used).

There is no requirement to notify the assignment of duties in the Gazette if the employment opportunity was not originally notified in the Gazette.

Open competitive selection—assignment of duties without promotion

If an open competitive selection process is held and the successful candidate is an ongoing employee with a similar or higher classification to the classification of the employment opportunity, the selection outcome will be an assignment of duties (section 25). If the employee is from another agency, the employee will also need to enter into a written agreement to move (section 26).

An open competitive selection exercise is only required for an assignment of duties that involves a promotion. Therefore, a decision can be made to stop a selection process at any stage and to assign duties at a similar or lower classification to an ongoing employee. To illustrate, an employee applies for an employment opportunity at their existing classification notified in the Gazette and as part of the short-listing process the Agency Head is able to assess that the employee is suitable. The Agency Head can then choose to end the selection process and assign the duties to that employee.

DATE OF EFFECT

The Agency Head will determine the date of effect of the decision to assign duties not involving a promotion to an employee within the agency. However, as discussed in question 3.19 in Chapter 3, it is good management practice for the Agency Head to consult with the employee concerned.

If an employee moves from another agency, the move takes effect 4 weeks after the employee tells the pre-move Agency Head of the agreement to move, or at a specified date agreed to by the pre-move and post-move Agency Heads and the employee (Regulation 3.9).

Each agency will need to have policies in place setting out the steps or procedures an employee should take to notify the pre-move Agency Head of an agreement to move to another agency.

ACTIONS REQUIRED TO IMPLEMENT DECISION

Following a movement made as a result of an agreement under section 26 of the Act, the post-move Agency Head must allocate a classification and assign duties of the appropriate classification to the employee.

The Agency Head does not have to wait until the employee moves to the agency before exercising the powers under the Act to:

These actions may be finalised before the employee commences but should be expressed to be effective on the date the employee moves to the agency.

NOTIFICATION REQUIREMENTS

The decision should be recorded and the employee notified of the assigned duties, the location at which the duties are to be performed, and the allocated approved APS classification or the nomination of a position (section 77) where relevant.

If the employment opportunity was notified in the Gazette, the ongoing assignment of duties must also be notified in the Gazette (Regulation 3.12(1)(f)).

Open competitive selection—engagement

OFFER OF ENGAGEMENT

Where the preferred appliant is not an ongoing APS employee, the agency will need to:

The agency should make it clear that an oral agreement or written statement of intent is not an agreement to engage. It is advisable for an agency to advise prospective employees that any engagement is conditional upon a formal notice of engagement being signed by the Agency Head.

PRE EMPLOYMENT CHECKS AND CONDITIONS OF ENGAGEMENT

The engagement of an employee may be made subject to conditions notified to the candidate before the engagement (eg relating to probation, citizenship, formal qualifications, security and character clearances and health clearances (section 22(6)). An Agency Head can also impose other conditions of engagement (section 22(7)) but those conditions must accord with merit-based decision making and the other APS Values. A person engaged as an employee must be an Australian citizen unless the Agency Head considers it appropriate to engage a non-citizen (section 22(8)). Conditions of engagement are discussed in the booklets Conditions of Engagement and Probation.

In general, agency requirements relating to conditions should have been referred to in the Gazette notification of the employment opportunity and in any additional advertising. Additional detail should have been included in any selection documentation provided to candidates. This does not preclude other conditions being imposed at a later stage of the selection process (eg after a pre-employment check) but conditions of engagement cannot be imposed after engagement.

The framing of conditions of engagement imposed will be important as an Agency Head may subsequently wish to terminate the employment of an employee for failure to meet a condition. Agencies should also refer to the booklet Termination of Employment (2004).

Before engagement, checks may be necessary to ensure that the proposed employee meets any other requirements such as the need for a non-citizen to have appropriate work rights.

NOTICE OF ENGAGEMENT

While there is no legal requirement under the Act for a written instrument of engagement to be signed by the Agency Head, it is advisable for agencies to adopt a practice of making engagements by a written notice of engagement that includes all conditions of the engagement. This provides a clear record of the engagement and the conditions imposed by the Agency Head. A suggested letter and notice of engagement developed by the APS Commission and the Australian Government Solicitor is at Appendix D.

DATE OF EFFECT

The Agency Head is responsible for deciding the date of effect of the ongoing engagement and may be influenced by the need to complete any relevant pre-employment checks. This will usually be done in consultation with the prospective employee. The agency should consider notifying a prospective employee that the offer of engagement will lapse if they do not commence on a certain day or unless an alternative date is agreed.

ACTION TO IMPLEMENT DECISION

In association with engagement, the Agency Head must assign duties at the appropriate classification to the employee and allocate an approved APS classification.

The Agency Head does not have to wait until the person is employed in the agency before exercising the powers under the Act to:

These actions can be finalised before the employee commences but should be expressed to be effective on the date the employee is engaged by the agency.

NOTIFICATION OF ENGAGEMENT

An Agency Head must notify the engagement of an ongoing employee in the Gazette (Regulation 3.12(1)(a)).

Open competitive selection—promotion

Promotion is the 'ongoing' assignment of duties to an ongoing employee at a higher classification than the employee's current classification and may be in association with a move from another agency.

The following actions are not promotions (Direction 4.6):

A promotion is made under the assignment of duties provisions in section 25 of the Act.

There are a number of legislative requirements to be met in promoting an employee (see Step 4 Open competitive selction—promotion and Engagement or promotion from an existing order of merit).

PROMOTION INVOLVING MOVEMENT BETWEEN AGENCIES

If the promotion involves a movement between agencies, the post-move Agency Head will enter into an agreement with the employee under section 26 to move the employee to the agency.

While the Gazette notification serves as formal advice to the pre-move agency that a promotion involving an agreement to move is likely to take place, good management practice suggests that agencies should develop policies to ensure that the pre-move Agency Head is told of the promotion (and whether there are any applications for a promotion review) by either the post-move agency or the employee. This will facilitate planning and negotiation of an earlier or later starting date, if required.

The written agreement between the post-move Agency Head and the employee to move should be separate from the exercise of the powers under the Act discussed below. The agreement should enable cancellation of the move in circumstances including where the promotion is cancelled or the promotion decision is overturned by a Promotion Review Committee (a PRC). This is discussed further in Chapter 3 (see question 3.8 'Can an employment decision be cancelled?').

DATE OF EFFECT AND RIGHT OF REVIEW

A right of review of a promotion decision below the EL 1 classification is available to an employee who applied for promotion to an employment opportunity at APS1 to APS6 or similar classifications. There is no right of review if the selection decision was made in accordance with the recommendation of an Independent Selection Advisory Committee (ISAC).

An ISAC is an independent three member committee that makes merit-based recommendations to an Agency Head about the suitability of candidates. An ISAC's decision is not binding on an Agency Head but if it is accepted then any promotion decision made in accordance with the ISAC's recommendation is not subject to a right of review (Part 4 of the Regulations).

The date of effect for a promotion varies depending on whether or not there is a right of review. For a promotion which does not have a right to a review, the date of effect is 4 weeks after the promotion is notified in the Gazette or an earlier or later date if the employee and the Agency Head(s) reach an agreement.

The different dates of effect for promotions are set out in Regulations 3.8 and 3.8A (covering Parliamentary Service employees) which are reproduced in Appendix E.

ACTIONS TO IMPLEMENT DECISION

In association with a promotion, the Agency Head must assign duties at the appropriate higher classification to the employee and allocate an approved higher APS classification. The Agency Head does not have to wait until the person is employed in the agency before exercising the powers under the Act to:

The above actions may be finalised before the employee commences but should be expressed to be effective on the date the promotion is to come into effect.

NOTIFICATION OF PROMOTION

An Agency Head must notify a promotion of an employee in the Gazette (Regulation 3.12(1)(h) and (k)).

Engagement or promotion using an existing selection exercise

An Agency Head may decide to engage or promote an employee to a similar opportunity from an existing selection exercise within 12 months of the original opportunity being notified in the Gazette. The procedures to be followed are outlined in step 9 Open competitive selection Engagement and Promotion. A procedural difference relating to the notification of the decision is discussed below.

NOTIFICATION OF DECISION

Any engagement or promotion must be notified in the Gazette.

The Gazette notification of decision to engage or promote a person to a similar employment opportunity must include a statement to the effect that:

"This engagement is made in accordance with the provisions of subclause 4.2(2) of the Public Service Commissioner's Directions 1999—similar employment opportunity previously notified" (Regulation 3.12(2)); or

"This promotion is made in accordance with the provisions of subclause 4.6A(1) of the Public Service Commissioner's Directions 1999—similar employment opportunity previously notified" (Regulation 3.12(3)).

Temporary assignment within an agency

An Agency Head may assign duties on a temporary basis to an ongoing employee.

If a temporary assignment of duties has not been sought by the employee, it is advisable that the employee be consulted. An assignment of different duties may raise significant issues for the employee concerned if they have not sought the temporary assignment. This issue is discussed in question 3.19 in Chapter 3.

When an assignment of duties involves a relocation to another place or is to duties which the employee could not reasonably be expected to perform, it is a reviewable action (Schedule 1 Item 10, of the Regulations). This means that an employee can lodge an application for review of the decision under the Regulations.

DATE OF EFFECT

The Agency Head will determine the date of effect of the decision to temporarily assign duties to an employee within the agency but it is good management practice for the Agency Head to consult with the employee concerned.

DOCUMENTATION AND NOTIFICATION REQUIREMENTS

The decision should be recorded and the employee should be notified of the assigned duties, the period of the temporary assignment and the allocation of an approved APS classification or the nomination of a position (section 77) where relevant.

There is no requirement to notify a temporary assignment decision in the Gazette.

Temporary movement of an ongoing APS employee between agencies

An Agency Head may assign duties on a temporary basis to an ongoing employee in another agency who has agreed to move on a temporary basis.

APPROVAL OF PRE-MOVE AGENCY HEAD

There can be no temporary movement without the approval of the pre-move Agency Head.

Written approval for a temporary move needs to be sought by the employee from the pre-move Agency Head before any agreement is finalised with the post-move Agency Head (regulation 3.9A). If the pre-move Agency Head does not approve the temporary movement, the post-move Agency Head and the employee may decide not to proceed with the agreement. Alternatively, it is open for the post-move Agency Head and the employee to proceed with the movement which will be treated as an agreement for an ongoing move. The post-move Agency Head will be the new employer on an ongoing basis (Regulation 3.9A) and there is no right of return to the pre-move agency.

Each agency will need to have in place the procedures an employee is to follow in regard to the seeking of agreement to move to another agency on a temporary basis.

DATE OF EFFECT

If an employee moves to another agency on a temporary basis, the move takes effect 4 weeks after the employee tells the pre-move Agency Head of the agreement, or at a specified date agreed between the pre-move and post-move Agency Heads and the employee (Regulation 3.9A). In practice this means that this will be the second time the pre-move Agency Head has been told of the agreement to move—the first being when the employee sought approval of the proposed move.

Each agency will need to have in place the procedures an employee should follow to notify the pre-move Agency Head of an agreement to move to a new agency.

The agreement between the post-move Agency Head and the employee should provide for cancellation of the temporary move if certain circumstances arise before the move occurs. This is discussed further in Chapter 3 (see question 3.9 'Can an employment decision be cancelled?').

ACTION TO IMPLEMENT DECISION

The written agreement with the employee to temporarily move (required by section 26) should be separate from the exercise of other powers under the Act.

In association with the temporary movement, the post-move Agency Head must allocate a classification and assign duties appropriate to the classification to the employee. The Agency Head does not have to wait until the employee moves to the Agency before exercising the powers under the Act to:

These actions may be finalised before the employee commences but should be expressed to be effective on the date the employee temporarily moves to the agency.

As noted, if the employee moves to the post-move agency without the approval of the pre-move Agency Head, the move will be considered to be an ongoing move (Regulation 3.9A(3)) regardless of any term expressed in the agreement. A movement of this kind is subject to the relevant legislative requirements for ongoing movement and assignment of duties. For example, if the move was to take up an opportunity at a higher classification, the employee can only be assigned those duties on an ongoing basis if the employment opportunity had been notified in the Gazette. If the employment opportunity was not notified in the Gazette, the employee is moved at the same or similar classification and may only be temporarily assigned the duties at the higher classification.

DOCUMENTATION AND NOTIFICATION OF DECISION

The decision should be recorded and the employee should be notified of all relevant information including the assignment of duties, the allocation of an approved APS classification, the period of the temporary movement and the nomination of a position (if section 77 is used).

There is no requirement to notify a temporary movement decision in the Gazette.

VARIATION OF AN EXISTING AGREEMENT

The post-move Agency Head and the employee can seek to vary the terms of a temporary movement agreement once it has come into effect. The written approval of the pre-move Agency Head must be obtained for a variation to become effective. If the pre-move Agency Head does not agree to a variation of the length of the agreement, the variation cannot occur and the move will end at the original date (Regulation 3.9B). The employee automatically moves back to the pre-move agency on expiry of the temporary movement agreement.

Each agency will need to have in place the procedures an employee is to follow in regard to the seeking of a variation to an agreement to move to another agency on a temporary basis.

EXPIRATION OF A TEMPORARY MOVEMENT AGREEMENT

At the end of the period specified in a temporary movement agreement, the employee becomes employed again in their pre-move agency. While no administrative action is required to facilitate the employee's return, the pre-move Agency Head will need to ensure that the employee is assigned duties under section 25 at the appropriate classification.