Returning to the APS following an appointment to a statutory office

APS employment during an appointment to a statutory office

Where an ongoing Australian Public Service (APS) employee is offered an appointment to a statutory office, the employee may apply for leave without pay (LWOP) for the term of the appointment. Leave without pay is not mandatory and the discretion to grant it rests with the relevant decision maker.  

When making a decision about LWOP, consider the balance between talent management in the APS, as statutory appointments offer valuable opportunities for both the employee and the APS, with the agency’s operational requirements.

If LWOP is not granted, the employee will need to resign to take up the appointment.

Returning to the APS

Where an ongoing APS employee has been granted LWOP and resumes duties as an ongoing APS employee following the term of a statutory appointment, the employee will return to their agency at their substantive APS classification.

Promotion after an appointment to a statutory office

Under section 34 of the Australian Public Service Commissioner’s Directions 2022 (the Directions), in limited circumstances an Agency Head may promote an employee who has returned to the APS following a statutory appointment, without undertaking a merit based selection process. To do so, the Australian Public Service Commissioner’s (APS Commissioner) authorisation is required.

For an employee to be considered for a promotion under section 34 of the Directions, the selection process for the appointment to the statutory office must have included the participation of the APS Commissioner or their representative. Further information on the selection of statutory officer holders is on the Government’s Merit and Transparency Policy page.

The Agency Head must also be satisfied that the assigned duties at the APS classification is at an equivalent or lower work value than the statutory officer duties, and that the employee has the necessary work related qualities to perform in the role. 

In seeking the Commissioner's agreement, Agency Heads will need to confirm that:

• the employee was granted leave without pay as an APS ongoing employee for appointment to a statutory office that is part of, or operated within, an APS Agency and
• the employee's appointment to the statutory office has not expired, or expired no more than 3 months before the decision to assign duties and
• the statutory office is of a kind that requires the Commissioner, or a representative of the APS Commissioner, to be a participant in the selection process for the office and
• the duties to which the employee is to be assigned are at an APS classification that is equivalent to, or lower than, the duties of the statutory office and
• the employee has the necessary work-related qualities to perform duties at the APS classification to which the employee is to be assigned.

In accordance with subsection 34(2) of the Directions the Commissioner may take into account:

• how long the employee was appointed to the statutory office
• the selection process for the appointment to the statutory office and
• any other matter the APS Commissioner considers relevant.

Promotion under subsection 34(3) of the Directions is not limited to agencies within the portfolio of the statutory office. Where an authorised promotion is to another APS agency, at the time the appointment term expires, the employee’s LWOP ceases in their original agency and the promoting agency can then move the employee under section 26 of the Public Service Act 1999. Once the employee has moved, the promotion can come into effect.

Where a promotion is authorised by the APS Commissioner, for it to take effect it must be notified in the Public Service Gazette in accordance with section 40 of the Directions.

Further Information

HR practitioners seeking advice on returning employees to the APS following an appointment to a statutory office can contact the Employment Policy team via employmentpolicy@apsc.gov.au or call the advice line on (02) 6202 3857.

For advice on the selection of statutory office holders and Agency Heads under the Government’s Merit and Transparency Policy, please contact the Remuneration Tribunal team via ExecRemStatOffices@apsc.gov.au, or call (02) 6202 3930.