1. This circular is to advise APS agencies that the Australian Public Service Commissioner’s Directions 2022 (the Directions) have been amended for consistency with the Public Service Regulations 2023 (2023 Regulations). 
    
2. In addition to the consequential amendments made as a result of the 2023 Regulations, technical clarifying and streamlining amendments have been made to facilitate more efficient administration of the powers and functions conferred by the Directions.  
    
3. Consequential and minor substantive amendments to the Directions include:
   • consequential amendments to non-ongoing fixed term engagements where a modified merit process is undertaken. The amendments will apply when the fixed term contract amendments prescribed in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (SJBP Act) commence later this year
   • an amendment to simplify the requirement to notify relevant parties of a promotion outcome, where the employee’s name is not published in the Public Service Gazette
   • a new provision designed to ensure the integrity of a recruitment process where an agency does not meet their obligations to Gazette an employment outcome
   • an amendment to enable the sharing of merit lists or pools created by certain non- APS Intelligence Agencies such as the Australian Signals Directorate (ASD).
      
4. Amendments to the Directions includes clarification:
   • of the provisions for the Affirmative Measure – RecruitAbility Scheme
   • that the requirement for agreement between two separate Agency Heads that a vacancy is a ‘similar vacancy’ does not apply where both vacancies are within the same agency
   • of the definition of ‘similar vacancy’ by amending section 9(a)(ii) to use similar language to section 10A of the Public Service Act 1999
   • that where an agency uses external advertising in addition to the Gazettal notice, the closing date for all advertisements must be same date
   • that provisions for probation do not apply to irregular and intermittent employees
   • to reflect policy approval to remove Australian Defence Force members as outsiders for the purpose of delegations under the Directions.

Consequential amendments to non-ongoing provisions

5. The SJBP Act amends the Fair Work Act 2009 (the FW Act) to limit the term of fixed term contracts. As a consequence, the Directions have been amended to modify both the initial and maximum term of employment for non-ongoing employees, where a merit-based process was not undertaken.
    
6. The period has been amended to an initial period of up to 12 months, with the option to extend for a further 6 months, for a total maximum term of 18 months. This change limits the risk of a non-ongoing employee being unintentionally converted to ongoing via automatic application of the new FW Act mechanisms without undergoing a merit-based process.
    
7. This change will only apply when engaging a person as non-ongoing APS employee without a merit selection process. If a merit selection process is conducted, a non-ongoing employee will, subject to the operation of the new FW Act provisions, be able to be engaged for the longer periods provided for by sections 12 and 13 of the 2023 Regulations.
    
8. Additional guidance on non-ongoing engagements in the APS will be available on the Commission's non-ongoing (temporary) employment webpage shortly. Further information on the SJBP Act is available on the Department of Employment and Workplace Relations website.

Notifying relevant parties of a promotion outcome where the employee’s name is not published in the Public Service Gazette

9. The Directions have been amended to simplify the notification requirements where an agency decides not to include the name in a promotion notification because of the persons work related or personal circumstance.
    
10. Provisions in section 40(5) have been replaced with a requirement for the Agency Head to provide the name of the promoted candidate to the Merit Protection Commissioner (MPC) if requested. This change harmonises the requirement with other promotion notifications while still ensuring the MPC can uphold the promotion review process.
     
11. Agencies are still required to notify the Australian Public Service Commissioner where a decision not to include a name in a notification is made.

Failure to notify a promotion decision

12. The Directions include a new provision to ensure the integrity of a recruitment process where an agency does not meet their obligations to Gazette a promotion.

13. Where it is identified that an agency has not gazetted a promotion decision, the agency will be required to:

    • notify the decision in the Gazette and
    • if the notification relates to a promotion that may be subject to review by a Promotion Review Committee, notify all applicants of their promotional rights.

14. The provision prescribes the date the promotion takes effect.

What should agencies do next?

15. Agencies should review and update internal policies and procedures to ensure that they appropriately reflect any changes in the Directions.
     
16. Agencies should consider how to incorporate the changes to non-ongoing arrangements into their recruitment processes.
     
17. Instruments of delegation for Agency Head powers and functions will continue to have force, however agencies should review and update their delegations for any new functions, duties or powers.

Further information

18. For further advice on the operation of the Directions, you can contact the Commission's Employment Policy team: employmentpolicy@apsc.gov.au