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Circular 2009/3 - Reintegration of statutory office holders into the APS

Where a person resumes duties as an ongoing APS employee following a period as a statutory office holder in an APS agency, there is now scope for an Agency Head to promote the person without the normal advertising and selection process, where the Public Service Commissioner (the Commissioner) agrees. Amendments have been made to the Public Service Commissioner’s Directions 1999 (the Commissioner’s Directions) with effect from 29 June 2009 to introduce this provision.


2. Where an existing ongoing APS employee is selected for appointment to a statutory office, they are able to apply for leave without pay from their APS agency for the duration of the appointment. The decision on whether or not leave without pay will be approved rests with the relevant agency head. Agency heads are encouraged to ensure that the attraction of statutory appointments is not diminished and to give favourable consideration to such requests where appropriate, taking into account such matters as the continuing development of the employee concerned and the operational requirements of the agency. Where leave without pay is approved, the employee would return to their agency at the end of the statutory appointment, at their substantive APS classification.

3. Some statutory appointments involve the appointee working at a higher work level than their substantive APS classification. Such a statutory appointment can therefore be regarded as being similar in nature to a promotion to a higher level, but for a specified period. Statutory appointments are generally made for significant terms, with most being for five years. During this time the person will have demonstrated their capacity to operate at a higher level and this experience is relevant to their career as an APS employee.

4. Statutory appointments can form a valuable part of a career in the APS. Accepting an appointment can mean that the person does not pursue advancement as an APS employee during the appointment. However, during the appointment they may well be effectively performing higher level work for an extended period.

New arrangements

5. The new arrangements provide scope for an Agency head, when filling a vacancy in their agency, to consider whether the performance of a person in a statutory office warrants special consideration. With the agreement of the Commissioner, the Agency Head may consider it appropriate to promote the person without the employment opportunity having been advertised and without a competitive selection process. There would, of course, need to be a genuine requirement to fill the job at the higher APS classification. There should be no expectation that this provision will be routinely used for APS employees resuming duty after a statutory appointment – the normal promotion requirements should continue to be followed unless there is clear-cut justification for it to be waived under this provision. There are also a number of requirements that must be met, set out below.

6. This provision will only apply in relation to statutory offices covered by the merit-based selection policy which requires the involvement of the Public Service Commissioner (or her representative) in the assessment of applicants for vacancies in those statutory offices. A list of those offices can be accessed on this website. The Commissioner’s role in participating in these selection processes commenced on 5 February 2008. The Commissioner may nonetheless consider a request under this provision if the appointment to the statutory office occurred before that date.

7. There is no provision for waiving the normal advertising and selection processes where a statutory appointee is not an ongoing APS employee on leave without pay, i.e. such a person would have to apply for and be the preferred candidate for an advertised APS employment opportunity in order to be engaged as an APS employee.


8. The Commissioner’s Directions have been amended with the inclusion of clause 4.6B. There are a number of requirements that must be met to access this provision.

9. The agreement in writing of the Public Service Commissioner will be required before an agency head can proceed with a promotion in this situation. In seeking the Commissioner’s agreement, Agency Heads will need to indicate that they are satisfied in regard to the following matters (and provide details to the Commissioner on each of them):

  • 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 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.

10. In considering requests under this provision, the Commissioner may also take into account the duration of the statutory appointment, the selection process that resulted in the statutory appointment and any other relevant matter.

11. Promotions under this provision are not limited to agencies within the portfolio in which the statutory office exists. The normal provisions relating to release to another agency apply. Where a promotion is agreed to by the Commissioner under this provision, the promotion will still need to be notified in the APS Employment Gazette before it can come into effect. Until changes can be made to the APSjobs website, gazettal of a promotion where there has been no employment opportunity previously notified can only be entered manually by the Gazette Office. Gazettal of such a promotion should be accompanied by the following note:

Note: This promotion has been agreed to by the Public Service Commissioner pursuant to the provisions of clause 4.6B of the Public Service Commissioner’s Directions 1999.


12. The Public Service Commissioner’s Amendment Directions 2009 (No. 2) which introduced these amendments are effective from 29 June 2009. The Amendment Directions and a consolidated version of the Commissioner’s Directions will be available shortly on the legislation page on the Commission’s website. The Amendment Directions are able to be disallowed by Parliament. Further advice will be issued should disallowance occur.

Further information

13. Agencies can obtain further information on the matters raised in this circular by contacting the Employment Policy Advice area.

Karen Wilson

Group Manager

Workforce Policy Group

30 June 2009

Last reviewed: 
29 March 2018