Contractors in the Senior Executive Service

Guiding principles for agencies when considering the use of SES contractors

Purpose

1. The purpose of these principles is to provide APS agencies with considerations when seeking to go beyond the APS employment framework for senior executive capabilities.
2. APS agency heads have all the rights, duties and powers of an employer in respect of APS employees within their agency under section 20 of the Public Service Act 1999 (PS Act).
3. To meet their business needs, agency heads have the flexibility to engage individuals by the most appropriate means to ensure their agency is best placed to deliver for the Australian public. These guiding principles are designed to assist agencies when considering the appropriateness of using a contractor for a Senior Executive Service (SES) equivalent role and to ensure that appropriate governance arrangements are in place.

Definition

4. For the purposes of these principles, an ‘SES contractor’ is an SES-equivalent (e.g. equivalent work value, duties, responsibility, and accountability), contracted by an APS agency via a recruitment agency or third party as an integrated part of the agency’s senior leadership workforce. That is, the agency will have no direct employment relationship under the PS Act with the SES contractor.

Considerations when using an SES contractor to fill a role

5. Before using an SES contractor to fill a role, agencies should satisfy themselves that there is a genuine operational requirement for an SES contractor.
   • Consideration should be given to the range of employment options available under the PS Act, including temporary employment, before an SES contractor is sourced.
   • This includes considering whether the operational requirement is better suited to a short-term consultant (e.g. where a specific skillset is needed for a short time for a single project or deliverable, without integration into the leadership of an agency) or should be filled by an SES employee engaged under the PS Act that is part of the leadership of an agency.
     • Agencies should note that section 10A of the PS Act recognises that the usual basis of employment is as an ongoing APS employee.
   • SES contractors may be required in a range of circumstances, such as where a person holds specialised experience, skills and capabilities unable to be sourced from the market through general recruitment at that point in time.
   • In some cases, an agency’s overall business model may require a combination of SES contractors and SES employed under the PS Act as part of their workforce composition.
6. Agencies should ensure their systems, infrastructure, contracts and governance are appropriate to manage using SES contractors. This includes ensuring that:
   • SES contractors are suitably inducted into the agency and provided with all relevant information and training relating to exercising their responsibilities in the role.
   • SES contractors understand the ethical obligations of their role. SES contractors should be expected to model and promote the highest standards of ethics and integrity in the unique context of the APS operating environment.
     • SES contractors are not employed under the PS Act but should be held to similar standards of behaviour as set out in the APS Values and Code of Conduct.
   • SES contractors facilitate and contribute appropriate knowledge transfer and capability growth within the agency.
7. Under subsection 78(8) of the PS Act, if it is proposed that an SES contractor will exercise delegated functions or powers, consent must be sought from the APS Commissioner before any functions or powers are delegated to the SES contractor.
   • Agencies should consider their own internal agency delegations and ensure that they reflect any such powers. 

Reporting

8. The APSC will collect data on SES contractors. For the purposes of reporting, an SES contractor is a person undertaking SES equivalent work who is not engaged under the PS Act or an agency’s enabling legislation.