Transcript Public Service Amendment Act 2013

Public Service Amendment Act 2013
Public Service Amendment Regulation 2013
Australian Public Service Commissioner’s Directions 2013
HR Leaders Forum, 8 May 2013
The Boat House by the Lake, Barton
Overview
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Context for change
Main changes at a glance
Role of Public Service Commissioner
Senior Executive Service
Context for change
• Ahead of the Game: Blueprint for the Reform of
Australian Government Administration
 Some of the Blueprint’s recommendations required legislative
change
• There are also amendments aimed at improving
the operation of the Act.
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These changes address matters that have arisen as a result of
working with the Act since 1999 - largely driven by agencies.
Quotes
This bill...will...facilitate and accelerate the cultural shift towards
operating more effectively as 'one Australian Public Service’.
March 2012
The reforms passed by the Senate today will provide Australia with a
public service that is modern, agile and responsive, leading to a more
efficient and effective use of Commonwealth’s resources and benefitting
all Australians.
The Australian Public Service is fundamental to the success of our
country and our society. The commitment and expertise of our public
service directly affects the lives of all Australians.
February 2013
The Hon Gary Gray AO MP
(then) Minister for the Public Service and Integrity
Main changes—at a glance
PS Act
• Revised arrangements for APS
leadership
 reforms to the appointment
and termination
arrangements for Secretaries,
 Secretaries roles and
responsibilities
 Role of Secretaries Board
 revised role for the SES
• Revised APS Values and the
introduction of a set of Employment
Principles
• Role of the Australian Public
Service Commissioner
 Capacity for systems reviews,
special reviews
 Special Commissioners
PS Regulations
Commissioner’s Directions
• Statutory office holders and the Code
of Conduct
• APS Whistleblowing
• Medical examinations/fitness for duty
• Non-ongoing employment
• ISAC processes
• Promotion review
• Review of actions
• Agency head misconduct
• Procedural requirements for
misconduct investigations by the
Commissioners
• Machinery of government
• Privacy
• Miscellaneous
• Transitional
1. APS Values
2. Recruitment and Selection
 Merit Principle
 Engagement and promotion – standard
provisions
 Exceptions to standard provisions
 Assignment of duties and moves
between agencies
 Gazettal of promotions and taking effect
3. Workplace diversity
4. Performance management
5. Safe work places
6. Agency head handling of suspected breaches
of the Code of Conduct
7. Other employment matters
 Restrictions on engaging redundancy
benefit recipients
 Termination of employment: nonongoing APS employees
 Incentive to retire- SES
 Leave without pay for specified purpose
 Transitional (PM’s Directions)
8. Delegations
Schedule 1: Re-engagement of election candidates
Schedule 2: Comparison with Parliamentary
Service classifications
Amended
Repealed and re-made
• APS Code of Conduct
• Handling of misconduct, including
to the Merit Protection
Commissioner's review functions
• APS whistleblowing
• Privacy
• Miscellaneous
• Transitional
Amended
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Role of Public Service Commissioner
• Modernised role—central authority for APS workforce
development and reform
• 3 broad functions:
– to strengthen the professionalism of the APS and facilitate continuous
improvement in workforce management in the APS
– to uphold high standards of integrity and conduct in the APS
– to monitor, review and report on APS capabilities within and between
agencies to promote high standards of accountability, effectiveness
and performance.
• Clearer powers of review (more detail next slide)
• New function to investigate employee misconduct in certain
circumstances
Role of Public Service Commissioner cont.
• More detail around the existing authority of the PSC’er to
undertake independent reviews
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Systems Reviews on management and organisational systems, structures
and processes of any APS body or of the functional relationship between
2 or more agencies on the request of the PM, the agency minister or the
Secretary, with the agreement of the PM
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Special Reviews on any matter relating to an Agency or the functional
relationship between 2 agencies, only at the request of the PM
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Coercive information gathering powers available
• PSC’er may be assisted by Special Commissioners appointed
by the Governor-General in undertaking Special Reviews
o Special Commissioners have the same information gathering powers as the
PSC’er
Senior Executive Service
• Redefined function and role
Provide APS-wide strategic leadership of the highest
quality that contributes to an effective and cohesive APS
• Each SES employee is to provide one or more of
the following at a high level:
– Professional or specialist expertise
– Policy advice
– Program or service delivery
– Regulatory administration
Senior Executive Service cont.
• All SES are required to promote cooperation within
and between agencies, including to deliver
outcomes across agency and portfolio boundaries
• By personal example and other means, promote the
APS Values, the APS Employment Principles and
compliance with the Code of Conduct
Culture
• APS Values
• APS Employment Principles
• APS Code of Conduct
The APS Values and Employment Principles
• New APS Values and Employment Principles
will shape the organisational culture of the
APS.
• These are core components of positive cultural
change, building stewardship, high
performance, and leadership—and fostering
‘one APS’.
The principles
How do we deliver on what governments
and Australia expects?
...through our approach: how we work, our
guiding principles...we [the APS] should be
united by our ethics...
Dr Ian Watt, Secretary of PM&C, June 2012
The APS is
Impartial
Committed to Service
Accountable
Respectful
Ethical
I CARE
New APS Values
Impartial: The APS is apolitical and provides the Government with
advice that is frank, honest, timely and based on the best available
evidence.
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.
Accountable: The APS is open and accountable to the Australian
community under the law and within the framework of Ministerial
responsibility.
Respectful: The APS respects all people, including their rights and
their heritage.
Ethical: The APS demonstrates leadership, is trustworthy, and acts
with integrity, in all that it does.
APS Employment Principles
The APS is a career based public service that:
(a) makes fair employment decisions with a fair system of review
(b) recognises that the usual basis for engagement is as an ongoing APS
employee
(c) makes decisions relating to engagement and promotion that are based
on merit
(d) requires effective performance from each employee
(e) provides flexible, safe and rewarding workplaces where communication,
consultation, cooperation and input from employees on matters that
affect their workplaces are valued
(f) provides workplaces that are free from discrimination, patronage and
favouritism
(g) recognises the diversity of the Australian community and fosters
diversity in the workplace.
APS Commissioner’s Directions
The Australian Public Service Commissioner has
made new Directions to:
• ensure the APS incorporates and upholds the
Values and Employment Principles
• determine the scope and application of the Values
and Employment Principles.
Effective performance
The APS is a career based public service that:
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(d) requires effective performance from each employee
Direction 4.1 notes that Agency Heads ‘will support employees to achieve effective performance
by ensuring that the Agency
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builds the capability necessary to achieve the outcomes properly expected by the
Government;
has fair and open performance management processes and practices that support a
culture of high performance, in which all performance is effectively managed;
provides each APS employee with a clear statement of the performance and behaviour
expected of him or her, and an opportunity to discuss his or her responsibilities;
requires employees to participate constructively in agency-based performance management
processes and practices;
invests in building the capability of managers to manage performance effectively; and
uses its performance management processes to guide salary movement and reward.
The new APS Values—Engaging leaders
• What can I do in my agency to engage my leaders
and support the roll-out of the new Values?
• How can the Commission help?
Changes to the Code of Conduct
(1) An APS employee must behave honestly and with integrity in the course of
in connection with APS employment.
(2) An APS employee must act with care and diligence in the course of in
connection with APS employment.
(3) An APS employee, when acting in the course of in connection with APS
employment, must treat everyone with respect and courtesy, and without
harassment.
(4) An APS employee, when acting in the course of in connection with APS
employment, must comply with all applicable Australian laws.
(11) An APS employee must at all times behave in a way that upholds:
(a) the APS Values and APS Employment Principles; and
(b) the integrity and good reputation of the employee’s Agency and the APS.
Changes to the Code of Conduct cont.
• Application to former employees
– agencies may investigate suspected misconduct by former
employees
– sanctions may not be imposed on former employees
• New pre-engagement provision
– APS employees may be in breach of the Code if, before
engagement, they:
• provide false/misleading information, or
• fail to provide relevant information,
in connection with their engagement.
Handling misconduct
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Code of Conduct procedures
Sanction procedures
Use and disclosure of employee information
Whistleblowing
Handling misconduct
• Code of Conduct procedures:
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minor changes to basic requirements in the Commissioner’s Directions
sanction procedures are now required
changes agencies need to make—e.g. procedures must take account of former
employee misconduct; pre-employment misconduct
• Code of Conduct inquiries and inter-agency moves
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a movement (including promotion) will not take effect until the matter is resolved,
unless both agency heads agree otherwise
• Commissioners—new power to investigate APS employee misconduct in
limited circumstances
• Application of the Code of Conduct to statutory office holders
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application expanded slightly; definition of SOH narrowed
Commissioner has new function of investigating alleged breaches
Use and disclosure of personal information
Three main changes:
1. The Act now provides for the use, as well as the disclosure,
of personal information (new section 72E).
2. The Regulations (amended regulation 9.2) authorise the
use/disclosure of personal information where it is relevant,
as well as ‘necessary’, to a range of agency head and
Commissioner functions.
3. Use/disclosure is authorised where it is necessary/relevant
to any of an agency head’s employer powers under the Act.
– This authorises use/disclosure of information relating to Code of
Conduct matters, among other things.
Whistleblowing
• Changes to the whistleblowing scheme
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amended regulations clarify the operation of the scheme
agency procedures must provide for employees to make reports, and for agency heads
to deal with reports
agency heads and Commissioners may decline/discontinue inquiries into whistleblower
reports.
• Changes to the basic requirements for whistleblowing procedures
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agency head must report the outcome of an inquiry to the whistleblower
clarification of procedural fairness requirement: agency head must consider whether to
give the person about whom a report is made the opportunity to be heard. (In some
circumstances this opportunity may also be extended to others.)
• Declining/discontinuing whistleblowing inquiries
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where a matter would be dealt with more appropriately by different means
if a matter is considered frivolous, vexatious, misconceived, or lacking in substance
if insufficient detail has been provided
where inquiry would not otherwise be justified in all the circumstances.
Employment Matters
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Recruitment and selection
ISACs, Review of actions, PRCs
Diversity
Other employment matters
Recruitment and selection
Public Service Act changes:
• APS Employment Principle 10A(1)(c) provides that ‘the
APS is a career based service which ... makes
decisions relating to engagement and promotion that
are based on merit’.
• ‘Merit’ applies to engagement and promotion
decisions—other employment decisions must be ‘fair’
(APS Employment Principle 10A(1)(a)).
Recruitment and selection cont.
APS Commissioner’s Directions 2013
• Chapter 2—Recruitment and Selection: expands merit principle
for engagement and promotion.
• Includes some matters previously in Regulations
– requirement to notify certain employment decisions in
Gazette
– dates of effect of promotions and moves at level between
agencies.
• Little change to ongoing engagement/promotion:
– minimum 7 day application period, unless Commissioner
agrees otherwise
– restricting vacancies to existing APS employees requires
Commissioner’s approval
– name may be withheld from Gazette (for e.g. security-related
work)
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Recruitment and selection cont.
APS Commissioner’s Directions 2013 (cont.)
• SES recruitment and selection in Chapter 2 with core provisions.
• Some exceptions to merit principle (including current affirmative
measures for Indigenous people and certain people with
disability).
• Changes to non-ongoing engagement:
– No change to specified term or task engagement for more
than 12 months.
– Specified term or task vacancies of 12 months or less:
• gazettal and full merit selection process not required
• make opportunities available to community (e.g. nonongoing employment register)
• must be satisfied that person has work-related qualities
genuinely required to perform relevant duties.
Recruitment and selection cont.
Public Service Regulations
• Continue to prescribe arrangements for engagement of
persons on non-ongoing basis.
• Regulations 3.5 and 3.6 consolidated into new Regulation
3.5:
– streamline and simplify grounds to engage person on nonongoing basis
– standardise 3 year time limit for specified term employment,
maximum initial engagement 18 months in most circumstances
– Commissioner has new power to extend specified term beyond 3
years in special circumstances (up to further 12 months)
– new provisions for engagement of state/territory public servants
as non-ongoing APS employees for specified term.
ISACs, Review of actions, Promotion reviews
Changes made to improve flexibility, streamline
procedures and provide greater clarity for MPC
functions
(Advices 6, 10 and 13)
Independent Selection Advisory Committees
ISACs can
• seek expert opinion (reg 4.7(1A)) and utilise agency
staff as agents (reg 4.7(1B))
• issue instructions to agents as can the MPC (reg
4.7(1C) and reg 4.5(1A))
Flexibility for agencies
• Use of ISAC recommendations (reg 4.11(1A))
Review of actions
Impact on agencies
• Regs 5.23 and 5.23A (reviewable actions and timing)
consolidated
• New grounds - ‘misconceived or lacking in substance’
• Clarifying when reviews lapse (reg 5.22(2))
• Clarify that preliminary action re assignment of duties
excluded from review (item 10 Schedule 1)
• No need to consult employee if accepting MPC
recommendation (reg 5.32(2A))
• Changes to references
Review of actions cont.
Impact on MPC administration
• Changes to how MPC conducts reviews (regs 5.28, 5.31)
• Series of technical changes
Former employees
• Right of review of determination that former employee
has breached Code (Division 7.3)
Promotion review (PRCs)
Promotion review
• No change to agency obligations (Division 5.2)
• Parties to review have no entitlement to access
other parties’ statements (reg 5.12(5))
–procedural fairness obligations remain (reg 5.33)
Diversity
• What has changed and why?
• Agency Heads must publish diversity programs
online.
• Further guidance to be issued for agencies with
limited capacity to develop diversity programs.
Other employment matters
Medical examinations
• Existing agency head power to require employee to attend medical examination to:
– satisfy condition of employee’s engagement, or
– assess employee’s fitness for duty.
• Regulations 3.1 and 3.2 amended to:
– revise definition of person who can conduct examination to include, for e.g., clinical
psychologist
– clarify that person conducting examination can provide report of examination
directly to agency head
– provide that agency head can direct employee to attend examination and provide
report of examination within specified time frame
– broaden circumstances in which agency head can require employee to attend
examination to assess fitness for duty to include:
• where employee is to be assigned new duties and agency is concerned that
employee’s state of health may affect their ability to perform duties, and
• where employee is to travel overseas as part of their employment.
Other employment matters cont.
Machinery of Government changes
• New provision allowing Commissioner to determine how employment-related
matters are dealt with where staff move between APS agencies as a result of MoG
change, for example:
– conditions of engagement
– incomplete code of conduct investigation
– underperformance processes.
• Salary protection provisions in Regulations amended to clarify that salary to be
protected means the actual salary in enterprise agreement or other instrument:
– does not include various allowances, bonuses or other matters.
• Salary protection continues to apply until employee’s salary is increased by gaining
agency.
Other employment matters cont.
Special payments
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Existing provision in Act allows Public Service Minister to authorise payments up to
$100,000 to persons in special circumstances that arise out of Commonwealth employment.
Provision in Act repealed and new provision allows amount to be set by Regulation
– maximum amount raised to $250,000.
Power delegated to agency heads must be exercised personally by agency head.
Election candidates
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Provisions moved largely unchanged from Regulations to Directions.
Where employee resigns prior to 1 July to contest an election, their rights to re-engagement
if they fail to be elected will continue to be assessed under current arrangements.
Leave without pay
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Provisions re mandatory leave without pay for APS employees for employment under MoPS
Act or G-G Act in Commissioner’s Directions rather than PM’s Public Service Directions.
Provisions unchanged and no impact on persons already on such leave.
Implementation – Agency actions
Must dos by 1 July 2013
• Communicate the changes to employees
• Put in place revised:
– delegations
– Code of Conduct and sanction procedures
– APS whistleblowing procedures
• Publish Diversity Plans on website
• Manage transitional arrangements for staffing actions
Desirable by 1 July 2013
• Review and update other employment policies and procedures, including for:
– recruitment and selection (incl SES and non-ongoing)
– review of actions
– references to APS Values and Code of Conduct
Next steps and further information
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Advices being released
Some guidance updated before implementation
Look for news @ www.apsc.gov.au
Contact:
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[email protected]
Q&A page
6202 3737