Circular 2022/2: Commencement of the Australian Public Service Commissioner’s Directions 2022

Published
Contents
  1. This circular is to advise APS agencies that the new Australian Public Service Commissioner's Directions 2022 have been made. The Directions commenced on 1 February 2022 and replaced the 2016 Commissioner's Directions which were due to sunset on 1 April 2023.
  2. The Directions substantively re-make the 2016 Commissioner’s Directions. However, there are a number of new provisions. The new provisions:
    • provide greater flexibility in utilising merit lists and merit pools
    • mandate integrity training for APS employees
    • require Agencies to consult with the Commissioner before entering into a confidentiality or non-disclosure agreement with an APS employee relating to sexual harassment
    • require Agencies to notify the Commissioner when entering into any confidentiality or non-disclosure agreement with an APS employee
    • provide additional circumstances where an employee’s name can be excluded from the Gazette when publishing a termination for breach of the Code of Conduct
    • direct that APS employees be engaged on probation
    • establish how employment related data is to be provided by Agencies to the Commission
    • require Agency Heads to consult with the Commissioner regarding suspected breaches of the Code of Conduct by SES employees

Greater flexibility in utilising merit lists and merit pools

  1. The Directions continue to provide for the sharing of merit lists between agencies in specified circumstances. The Directions now also provide: 
    • subject to agreement and certain requirements, an Agency Heads may select a candidate to fill a vacancy from a merit list or merit pool established for a previously notified Parliamentary Service vacancy, and
    • the period for filling an APS vacancy (including selecting a candidate from a merit list or merit pool) has been extended to 18 months since the date the vacancy was notified in the Public Service Gazette.

Mandatory integrity training for APS employees

  1. The Directions require Agency Heads to arrange for employees new to the APS to undergo a training program about integrity. The Commission has made an e-learning module available for this purpose. Agencies may seek the Commissioner’s approval to use a different integrity training program.

Confidentiality and non-disclosure provisions in settlement agreements

  1. The Directions require Agency Heads to consult with or report to the Commissioner before entering into an agreement with an APS employee that includes a confidentiality or non-disclosure provision.
  2. Consultation is only required for agreements relating to sexual harassment. This is to ensure that there is accountability and assurance across the APS in the use of confidentiality and non-disclosure provisions in such agreements.

Removing names from notification of termination decisions

  1. The Directions provide for an additional circumstance in which an Agency Head may exclude the name of an APS employee who was terminated for breach of the Code of Conduct from notification on the Public Service Gazette. The circumstance is that the Agency Head is satisfied that including the name is not necessary to ensure public confidence in the integrity of the APS. Agency Heads will still be required to notify the Commissioner of the employee’s name.

APS employees to be engaged on probation

  1. The Directions require an Agency Head to ensure that APS employees are engaged on probation. During the probation period, Agency Heads must ensure processes are in place to assess the employee’s suitability for the role they have been engaged in.
  2. The Commissioner may publish guidance about probation that Agency Heads are expected to have regard to.

Collection of employment-related and workplace relations information

  1. The Directions continue to require Agency Heads to provide employment-related information to the Commissioner. The Directions now provide that the employment-related information that must be provided is that set out in the: 
  2. If requested by the Commissioner, an Agency Head is required to provide workplace relations information about APS employees in their agency.

Suspected breaches of the Code of Conduct by SES employees

  1. Agency Heads are required to consult with the Commissioner about suspected breaches of the Code of Conduct by SES employees. Agency Heads must consult on:
    • the process for determining whether the employee has breached the Code of Conduct, and
    • if the Agency Head is considering imposing a sanction, what sanction will be imposed.

What should Agencies do next?

  • review and update internal policies and procedures to ensure that they appropriately reflect any changes in the new Directions.
  • while instruments of delegation for Agency Head powers and functions under the 2016 Directions will continue to have force, Agencies should review and update their existing delegations noting that:
    • there are additional Agency Head powers and functions in the new Directions that would not have been delegated under an existing instrument, and
    • most provisions from the 2016 Directions have been renumbered. A table comparing the numbering will be available on the Commission's website.
  • refer to Part 10 of the new Directions to determine transitional arrangements for recruitment activity. To avoid doubt the extension of the period in which a vacancy can be filled (from 12 months to 18 months since the vacancy was notified in the Public Service Gazette) applies to selection processes for vacancies that first exist after the commencement of the new Directions.

Further information

  1. Detailed advice on the operation of the new Directions will be available on the Commission’s website.
  2. For further information about the Directions, you can contact the Commission’s:
  1. A more detailed comparison between the 2016 and 2022 Directions is set out at Attachment A.

Attachment A

Summary of Changes

2016 and 2022 Directions

  1. The following summarises the differences between the Australian Public Service Commissioner’s Directions 2016 (2016 Directions) and the Australian Public Service Commissioner’s Directions 2022 (2022 Directions). It does not cover insubstantial changes: ie grammatical, cosmetic and numbering changes, or the addition of cross-referencing legislative notes.
  2. Consequential changes or entirely new provisions are highlighted in grey.
Summary of changes
2016 Directions 2022 Directions Summary of change

 

Part 1

Preliminary

s 5 – Definitions

s 5 – Definitions

The 2022 Directions include the following new or changed definitions:

  • ‘Aboriginal person’ means ‘person of the Aboriginal race of Australia’. In the 2016 Directions, ‘Aboriginal’ was defined in s 26 as having the same meaning as in the Racial Discrimination Act 1975 (ie ‘a person who is a descendant of an indigenous inhabitant of Australia but does not include a Torres Strait Islander). This minor definitional change is not intended to be consequential and aligns the definition in the 2022 Directions with the definition in the Aboriginal and Torres Strait Islander Act 2005.  
  • ‘Classification group’ has the same meaning as in the Classification Rules, as in force from time to time. ‘Classification group’ was not used in the 2016 Directions, so was not defined.
  • ‘Eligible employee’ has the meaning in s 25(9) of the 2022 Directions. This definition is effectively the same as the definition of ‘APS employee’ in s 20(8) of the 2016 Directions. The defined term has been changed from ‘APS employee’ to ‘eligible employee’ to avoid confusion with the definition of ‘APS employee’ in the Act.
  • ‘Sexually harass’ has the meaning in s 28A of the Sex Discrimination Act 1984, with a corresponding meaning for other parts of speech and grammatical forms of the term. ‘Sexually harass’ (or a similar term) was not used in the 2016 Directions, so was not defined.
  • ‘Torres Strait Islander’ means ‘a descendant of an Indigenous inhabitant of the Torres Strait Islands’. In the 2016 Directions, ‘Torres Strait Islander’ was defined in s 26 as having the same meaning as in the Racial Discrimination Act 1975: ‘a person who is a descendant of an indigenous inhabitant of the Torres Strait Islands’. This minor definitional change is not intended to be consequential and aligns the definition in the 2022 Directions with the definition in the Aboriginal and Torres Strait Islander Act 2005.
  • ‘Work-related qualities’ is defined in the definitions section. In the 2016 Directions, ‘work-related qualities’ was defined in s 10. The definition in the 2022 Directions is effectively the same as that in s 10 of the 2016 Directions. 

s 6 – Meaning of promotion

s 6 – Meaning of promotion

The definition of ‘promotion’ has been changed in the 2022 Directions to provide that the APS employee must be assigned duties at a classification that is in a higher classification group than the classification group that includes the employee’s current classification. The 2016 Directions did not refer to the employee’s ‘classification group’. The references to ‘classification group’ are intended to clarify the way the definition operates, but not to change the meaning of ‘promotion’.

s 9 – Meaning of similar vacancy

s 9 – Meaning of similar vacancy

‘Similar vacancy’ has been redefined in the 2022 Directions.

There are two key differences between the 2016 and 2022 definition. The 2022 definition:

  • extends ‘similar vacancy’ to cover vacancies in a Department of the Parliament established under the Parliamentary Service Act 1999 provided the Secretary of the Department in which the notified vacancy existed and an Agency Head agree that the vacancy is a similar vacancy; and
  • removes the criteria that a vacancy is a similar vacancy if it is ‘in the same Agency’ or relates to a function that was moved to another Agency after the notification of a machinery of government change.

 

Part 2

APS Values

 

s 10

A new section provides that Part 2 (APS Values) is made for the purposes of s 11(1) of the Act.

s 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

s 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

Changed paragraph 13(b) of the 2022 Directions provides that upholding the APS value in s 10(1) of the Act (Committed to service) requires providing appropriate and accessible information to the client and the community about rights and entitlements, and the process for gaining access to them. The 2016 Directions did not include the requirement that the information be ‘accessible’.

s 15 – Respectful: the APS respects all people, including their rights and their heritage

s 15 – Respectful: the APS respects all people, including their rights and their heritage

A new paragraph 15(e) provides that upholding the APS value in s 10(3) of the Act (Respectful) requires ‘contributing to an inclusive workplace culture’. 

 

Part 3

Integrity of the APS

No equivalent

s 18 – Purpose of this Part

A new section provides that new Part 3 (Integrity of the APS) is made for the purposes of s 11(1) of the Act.

No equivalent

s 19 – Integrity training for APS employees

A new section provides for mandatory integrity training for APS employees. An Agency Head who engages a person as an (ongoing or non-ongoing) APS employee must make arrangements for the APS employee to undergo a training program about integrity, subject to an exception.

No equivalent

s 20 – Consulting Commissioner before entering into agreement settling dispute about sexual harassment including non-disclosure or confidentiality provision

A new section requires an Agency Head to consult with the Commissioner before entering into an agreement that: is with a person who is or was an APS employee; and that settles a dispute about a matter that relates to the person’s APS employment and sexual harassment or an allegation of sexual harassment; and limits their freedom to disclose information about the matter, the dispute or its settlement.

No equivalent

s 21 – Notifying the Commissioner of agreements that are for settling disputes about employment matters and include non-disclosure or confidentiality provisions

A new section requires an Agency Head, each financial year, to notify the Commissioner if they enter into an agreement that: is with a person who is or was an APS employee; and that settles a dispute about a matter that relates to the person’s APS employment; and limits the person’s freedom to disclose information about the matter, the dispute or its settlement.

 

Part 4

Recruitment and selection

No equivalent

s 22 – Purpose of this Division

A new section provides that Part 4, Division 1 (Recruitment and selection – Upholding APS Employment Principle 10A(1)(c)) is made for the purposes of s 11A(2) of the Act.

s 19 – Merit-based selection process for engagement or promotion

s 24 – Merit-based selection process or engagement or promotion

Minor changes have been made to ss 19(1) and (2) of the 2016 Directions to clarify how merit-based decision-making operates. These changes are not intended to change how this provision operates.

 

s 20 – Notification of vacancy in the Public Service Gazette

s 25 – Notification of vacancy in the Public Service Gazette

Minor changes have been made to s 20 of the 2016 Directions to clarify that a selection process for a decision to fill a vacancy meets the requirements of a merit-based selection process if there is a new vacancy that is a similar vacancy to another vacancy that was previously notified in the Public Service Gazette and no more than 18 months have passed since the other vacancy was notified.

The period within which a vacancy must be filled has been changed from 12 months (in the 2016 Directions) to 18 months.

s 28 – Affirmative measure – RecruitAbility Scheme

s 32 – Affirmative measure – RecruitAbility Scheme

This provision articulates how the RecruitAbility Scheme applies to a selection process. It provides that a selection process meets the merit-based selection process requirements if: the RecruitAbility Scheme applies to a selection process; and a candidate with a disability opts into the scheme for the vacancy; and the candidate is short-listed for progression to the next stage of the selection process because they meet the minimum requirements and eligibility requirements for the vacancy.

Merit remains the key consideration for the selection process.

No equivalent

s 39 – Purpose of this Division

A new section provides that Part 4, Division 2 (Recruitment and selection – Gazettal of certain employment decisions and promotions) is made for the purposes of s 11A(1) of the Act.

s 34 – Gazettal of employment decisions

s 40 – Gazettal of employment decisions

A new paragraph 40(4)(b) provides for an additional circumstance in which a notification on the Public Service Gazette need not include an employee’s name: where the notification is in relation to a termination decision and the Agency Head decides that including the name is not necessary to ensure public confidence in the integrity of the APS.

A new subsection 40(6) provides that if a notification does not include an employee’s name, the Agency Head must advise the Commissioner of the employee’s name as soon as practicable after the information is published on the Public Service Gazette.  

No equivalent

s 43 – Purpose of this Division

A new section provides that Part 4, Division 3 (Recruitment and selection – Engagement on probation) is made for the purposes of s 11A(1) of the Act.

No equivalent

s 44 – APS employees to be engaged on probation

A new section provides that APS employees are to be engaged on probation unless there are reasonable circumstances justifying a waiver of a probation period. Section 44(3) provides that if an APS employee is engaged on a period of probation, the Agency Head must ensure that during that period, processes are in place to assess the suitability of the employee to perform those duties. A legislative note provides that the Commissioner may, from time to time, issue guidance on matters relating to probation.

 

Part 5

Working in the APS

No equivalent

s 45  – Purpose of this Division

A new section provides that Part 5, Division 1 (Working in the APS – Movement of APS employees between agencies) is made for the purposes of s 11A(1) of the Act.

 

Part 6

Employment-related information

No equivalent

s 53 – Purpose of this Part

A new section provides that Part 6 (Employment-related information) is made for the purposes of s 11A(1) of the Act.

s 50 – Collection of employment-related data

s 54 – Collection of employment-related information

Section 50 of the 2016 Directions, which dealt with the collection of employment related data, has been changed by s 54 of the 2022 Directions.

The new section provides that an Agency Head must ensure there are measures in place to collect specified information. The specified information is that required by the Australian Public Service Employment Database Specifications, as existing at the time the section commences. Section 52(3) requires an Agency Head allow APS employees to provide a response of ‘choose not to give this information’ in relation to certain categories of information (eg whether the person is with a disability or Aboriginal and/or Torres Strait Islander).

No equivalent

s 55 – Requirement to give information, or documents, about workplace relations to the Commissioner 

A new section provides that the Commissioner may require an Agency Head to give the Commissioner particular information or documents about workplace relations relating to APS employees in the Agency. Section 55(2) provides that the Commissioner cannot require the Agency Head to give information that is ‘personal information’ for the purposes of the Privacy Act 1988.

No equivalent

s 56 – Prompt, accurate giving of information to the Commissioner

A new section provides that an Agency Head must ensure that there are measures in place to promptly give the Commissioner accurate information for the purposes of sections 54 and 55 of the 2022 Directions. The Agency Head must also ensure there are measures in place for that information to be given to the Commissioner in a particular form.

 

Part 7

Handling suspected breaches of the Code of Conduct

No equivalent

s 64 – Role of Commissioner for suspected breaches by SES employees

A new section provides that if an SES employee in an Agency is suspected of breaching the Code of Conduct, the Agency Head must consult with the Commissioner on the process for determining whether the employee has breached the Code and on imposing a sanction for breach (if any).

 

Part 8

Other employment matters

No equivalent

s 65 – Purpose of this Part

A new section provides that Part 8 (Other employment matters) is made for the purposes of s 11A(1) of the Act.

s 48 – Restrictions on engaging a person who has received a redundancy benefit

s 66 – Restrictions on engaging a person who has received a redundancy benefit

Subsection 66(1) is drafted differently to s 48(1) in the 2016 Directions. These changes are intended to clarify how the provision operates, rather than to change its operation.

 

Part 10

Application and transitional provisions

s 53 – Definitions

s 70 – Definitions

The 2016 Directions are defined as the ‘old directions’. 

No equivalent

s 71 – Things done under the old directions

A new section provides that a thing done for a particular purpose under the 2016 Directions before the commencement of the 2022 Directions, which could be done under the 2022 Directions, has effect as if it had been done under the 2022 Directions.

No equivalent

s 72 – Conduct, event or circumstance before commencement time

A new section provides that a function or duty may be performed, or a power exercised, under the 2022 Directions in relation to conduct engaged in or an event that occurred before the commencement time.

No equivalent

s 73 – Integrity of the APS

A new section provides that Div 2 of Part 3 of the 2022 Directions applies in relation to APS employees engaged after the commencement time or in relation to agreements entered into after the commencement time.

No equivalent

s 74 – Recruitment and selection

A new section provides that Part 4 of the Directions (about recruitment and selection) applies to selection processes for vacancies that first exist after the commencement time.

Part 3 of the 2016 Directions apply in relation to selection processes for vacancies that first exist before the commencement time, as if the 2016 Directions had not been repealed.

s 59 – Savings – delegations

s 75 – Delegations

Section 75 of the 2022 Directions provides that a delegation made under the 2016 Directions that was in force immediately before the commencement time continues in force as if it had been made under the 2022 Directions. This operates similarly to the transitional provision in s 59 of the 2016 Directions.

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