Circular 2024/06: Commencement of amendments to the Australian Public Service Regulations 2023

Promotion Review 

Definitions of merit pool, ranked merit list and ranked merit pool

4. To formalise the contemporary use of merit lists and merit pools by APS agencies, definitions for the terms ‘merit pool’, ‘ranked merit list’ and ‘ranked merit pool’ will be inserted into the Regulations.  

5. Defining these terms is necessary for the changes made to the promotion review mechanism. This is because from 1 April 2025, where a process is found not to be merit-based, the recommendations available to the MPC are determined based on what the agency did as a result of a selection process (i.e. whether a merit pool, ranked merit list or ranked merit pool was formed). 

6. The inclusion of definitions in the Regulations also provides an opportunity to build consistency across the APS. The definitions were developed based on the definitions on the APSC’s website and reflect the current practice by many agencies. In preparation for the commencement of the amendments, agencies are encouraged to review their existing practices to consider whether a change to policy, practices or procedures will be required to incorporate the terms.  

7. A merit pool is defined as a pool of candidates for a vacancy where each candidate included in the pool has been assessed as being suitable for the vacancy. That is, each candidate in the pool is equally suitable and therefore candidates can be offered roles in any order. 

8. A ranked merit list is defined as a list of candidates for a vacancy where each candidate included in the list has been assessed as suitable for the vacancy and has been ranked in order of suitability. For example, where 10 candidates are found suitable for a vacancy, they are ranked in order of suitability from one to ten. Candidates can only be offered roles in the order they are placed on the merit list.  

9. A ranked merit pool is defined as a pool of candidates where each candidate included in the pool has been assessed as suitable for the vacancy and has been assigned to a group of candidates with a similar suitability for the vacancy. For example, highly suitable, suitable. Each group is ranked in order of suitability. Candidates from the highest ranked group must be offered roles first prior to lower ranked groups, e.g. candidates rated highly suitable must be offered roles prior to candidates rated as suitable.  

Promotion Review Applications 

10. The promotion review provisions in the Regulations have been amended to ensure promotion reviews consider whether a selection process was merit-based, rather than only considering whether one candidate is more suitable than another.  

11. What changes:

• the process will no longer only consider the applicant for review and the successful candidate - reviews will consider the entire process and all candidates 

• reviews will generally only consider information available to the Delegate at the time the selection process was undertaken 

• selection processes will generally only need to be reviewed once 

• applicants will not need to submit ‘protective review applications’ to ‘protect’ their promotion, and 

• applicants must state why they believe that the process was not merit-based. 

12. What doesn’t change:

• eligibility for promotion reviews. APS employees will continue to be able to seek review of a promotion review where they have applied for a promotion to the APS 2-6 level, and  

• promotion decisions may still be overturned. 

13. All candidates will benefit from these changes. Promotion reviews will facilitate greater transparency and enhance candidate confidence in the selection process. 

14. The amendments will enable selection processes to be reviewed only once (unless the Agency continues to draw from a merit-list or pool that MPC has found not to be merit-based) rather than each time a different applicant requests a review, resulting in a more efficient review process. 

Own motion review by the Merit Protection Commissioner 

15. The amendments also create own motion powers to enable MPC to undertake reviews of APS2-6 level selection processes.  

16. MPC can initiate a review at any time on or after the day the vacancy is notified in the Public Service Gazette (PS Gazette)(advertised) including where a process has concluded but a promotion or engagement decision has not been made.   

17. The review will consider whether the process was merit-based within the meaning of the PS Act or undertaken in accordance with the requirements for conducting a merit-based selection process set out in the Directions. 

18. Own motion reviews will support integrity in recruitment and drive systemic improvements to recruitment practices. Own motion reviews will also provide sustained opportunities to educate and uplift recruitment practices across the APS.  

19. Circumstances where the MPC may initiate a review may include, but are not limited to:  

• as a part of a regular schedule of reviews  

• when an APS employee submits a complaint to the MPC or  

• on the basis of information received by the MPC 

20. Any review undertaken by MPC using their own motion powers cannot overturn a decision already made by an Agency, but where a selection process is found to not be merit-based, a recommendation may be made to an Agency to cease using a merit list or pool to fill future vacancies.  

Review Outcomes

21. At the conclusion of a review (promotion or own motion), the MPC will determine whether the process was merit-based.  

22. If the MPC finds that the selection process: 

1. meets the requirements of a merit-based process - there is no further action and the promotion decision(s) can proceed. A merit pool, ranked merit list or ranked merit pool that has been created will continue to operate and be used for future appointments. No further reviews of that selection process will be undertaken by MPC. 

2. does not meet the requirements of a merit-based selection process - the MPC will make a recommendation: 

• that the agency cease using the merit pool, ranked merit list or ranked merit pool to fill future vacancies and 

• on a new merit pool, ranked merit list or ranked merit pool, where there is sufficient information to do so or 

• that a new selection process be undertaken, where there is insufficient information to recommend a new merit pool or list. 

Where a review of a selection decision is a promotion review, the MPC will either overturn the promotion decision if the applicant is an APS Employee or if the applicant is a Parliamentary Service employee, make a recommendation that the engagement decision should not take effect.  

The MPC cannot overturn a decision that has already taken effect. For example, if a merit list was used to promote a candidate and then 6 months later the same merit list is used to promote another candidate. If the selection process is then reviewed as a result of the second promotion decision, the earlier decision to promote an employee has taken effect and cannot be overturned even where MPC finds the selection process wasn’t merit-based.  

3. does not meet the requirements of a merit-based selection process, but the outcome would not be materially different. The promotion or engagement decision can proceed and any merit pool, ranked merit list or ranked merit pool will continue to operate and can be used for future appointments. No further reviews of the selection process will be undertaken. However, the MPC may provide the agency with information on how they should improve their selection processes. 

Agencies must respond to review outcome 

23. Agencies have an obligation to respond to review outcomes, which requires Agency Heads to give genuine consideration to the recommendations of the MPC. 

24. Under this requirement the Agency Head must notify the MPC in writing whether they accept the recommendations. 

25. If the MPC is notified that a recommendation has not been accepted by an Agency Head, the MPC will provide the APS Commissioner with a copy of the notice and the reasons included in the notice as to why the recommendation is not accepted. 

Reporting requirements 

26. The amendments establish a new reporting function for the MPC, who will be required to provide a report to the Australian Public Service Commissioner at least bi-annually about its promotion review functions under the Regulations. These reporting mechanisms are designed to provide greater oversight of recruitment processes.  

Timeframe for review of actions (not promotion reviews) 

27. The timeframe for submitting a primary review of action has been amended from 120 days to 60 days for consistency with the secondary review of action timeframe.  

28. The amendment to the timeframe recognises the increased accessibility and immediacy of modern communications systems, and the potential for disputes to be resolved earlier. The change will also assist in decreasing confusion by aligning the timeframes for primary and secondary reviews of action.  

Transitional Provisions 

29. The changes will commence on 1 April 2025, however the changes to the promotion review mechanisms will apply only to those recruitment processes notified in the PS Gazette from 1 April 2025.   

30. This means that where the recruitment process was notified in the PS Gazette prior to 1 April 2025 and the recruitment process was completed on or after 1 April 2025 or an agency draws on the merit pool, ranked merit-list or ranked merit pool from 1 April 2025, then the review process existing before the amendments to the Regulations will still apply.  

31. The new own motion powers of the MPC will only apply to vacancies notified in the PS Gazette from 1 April 2025.  

32. The simplified timeframe for submitting a review of action will commence on 1 April 2025 and apply to all review requests made from 1 April 2025 onwards. 

What should agencies do next?  

33. Agencies should: 

• review and update internal policies, procedures and agency delegation instruments to ensure that they appropriately reflect any changes in the Regulations, including changes to the timeframe for submitting a primary review of action 

• review selection report templates to ensure that they provide sufficient information should a process be reviewed by the MPC 

• ensure that the new terms merit pool, ranked merit list and ranked merit pool are incorporated into agency practice, including policies, procedures and forms/templates 

• ensure that selection panels have a sound understanding of merit and its application to a selection process 

• communicate with their employees about the changes and their impact on applications for promotion review, and 

• communicate with their employees about the new timeframe for review of actions. 

34. To support agencies in improving recruitment practices Recruitment factsheets, case studies and templates and an updated APS Recruitment Guide have been created by the APSC to streamline recruitment processes while ensuring processes still satisfy the merit principle.  

Further information  

35. The Commission has developed new guidance to support the amendments to the Regulations, including guidance on promotion reviews. 

36. The guidance will be published on the APSC’s website as soon as it is available.   

37. Agencies seeking further information can contact:  

• the Employment Policy Team at employmentpolicy@apsc.gov.au for information on the Regulation amendments 

• the Merit Protection Commission at review@mpc.gov.au for information on promotion review processes.