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Last updated: 2 December 1999

Public Service Act 1999 Advice No. 7: Engagement of non-ongoing non-SES APS employees

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Note: This document has not been updated to reflect changes that may flow from the WorkChoices legislation enacted on 27 March 2006

Introduction

This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). It is proposed that the new legislation will come into operation on 5 December 1999 and the information contained in this advice will take effect on commencement of the legislation.

2 Under the new PS Act, Agency Heads are able to engage non-ongoing employees. The purpose of this advice is to assist agencies in developing policies concerning the engagement of non-ongoing non-SES APS employees. This advice is not definitive and may be subject to revision in light of later legal opinion and case law.

3 This advice focuses on the legislative requirements and transitional arrangements for:

merit and the selection of non-ongoing employees;
the engagement of specified term and specified task non-ongoing APS employees;
the engagement of irregular or intermittent employees; and
the early termination of non-ongoing employees.

4 This advice should also be read in conjunction with separate advices on

Staffing Actions: Ongoing APS employees (Non-SES) (No.6),
Senior Executive Staff (SES) Employment Arrangements (No.8),
Termination of Employees (No.9),
Excess Staff (No.12),
Diversity (No.20), and
Discrimination (No.22).

The legislative framework

5 The formal framework which applies to staffing actions is contained in:

the new PS Act;
the new Public Service Regulations;
the Public Service Commissioner's Directions 1999 (the Commissioner's Directions); and
the Classification Rules.

6 Other legislation which still applies to employment actions and decisions includes:

Administrative Decisions (Judicial Review) Act 1977;
Disability Discrimination Act 1992;
Freedom of Information Act 1982;
Human Rights and Equal Opportunity Act 1986;
Privacy Act 1988;
Sex Discrimination Act 1984;
Spent Convictions Provisions in Part VIIC of the Crimes Act 1914; and
Workplace Relations Act 1996.

Employment status

7 Section 22 of the new PS Act provides for the engagement of APS employees and determines the categories of employment in which persons may be engaged (s22(2)). The usual basis for engagement is, however, as an ongoing employee (s22(3)). A non-ongoing APS employee will be an employee of the agency in which they are engaged.

Merit

8 Merit remains a fundamental principle of APS employment. This is articulated in the APS Values in section 10(1)(b) of the new PS Act: "the APS is a public service in which employment decisions are based on merit".

9 Merit based decisions, as defined in section 10(2) for engagement require, as a primary consideration, a competitive assessment of relative suitability against the genuine requirements of the duties focusing on the capacity of candidates to achieve outcomes related to the duties.

10 Under the new PS Act and the Commissioner's Directions, all decisions made by an Agency Head concerning the selection of a non-ongoing employee for an engagement of over 12 months must be based on a merit selection exercise in line with s10(2), including notification of the employment opportunity in the Commonwealth of Australia Public Service Gazette (the Gazette).

11 For other employment decisions, the Commissioner's Directions on APS Value 10(1)(b) will require that the decision is made on the basis of an objective assessment of the person's work-related qualities and the work-related qualities required for efficient and effective organisational performance. APS Value 10(1)(m) also requires agencies to provide a reasonable opportunity to all eligible members of the community to apply for APS employment.

Patronage and favouritism

12 A person exercising powers under the new PS Act or Regulations in relation to the engagement of APS employees or otherwise in relation to APS employees must do so without patronage or favouritism (s17 of the new PS Act).

Notification of employment opportunities and selection

13 Agencies will need to determine methods for selecting employees which conform with the new legislative framework, including the APS Values, and also meet their operational requirements.

14 There will be differences in the notification of employment opportunities and methods of selection for engagements of up to 12 months and engagements of more than 12 months.

Engagements of up to 12 months

15 For engagements of up to 12 months, agencies are free to choose the selection methods to be used to select people including any advertising requirements. There is no requirement to establish a register or notify the employment opportunity in the Gazette.

16 Agencies will, however, need to develop selection policies covering the engagement of non-ongoing employees for up to 12 months that:

prevent patronage and favouritism (s17);
conform with Value 10(b) ie the need for employment decisions to be based on an assessment of a person's work-related qualities and the work-related qualities required to effectively perform the duties; and
promote APS Value 10(1)(m) which states "the APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment".

17 If an Agency Head considers that the engagement of a person for the duration of a specified task or for a specified term is likely to go close to or beyond 12 months then consideration should be given to notifying the employment opportunity in the Gazette. Gazettal will allow an Agency Head to extend the engagement beyond 12 months (subject to other conditions specified in the Regulations) in accordance with the Commissioner's Directions on Merit. (See also paragraphs 63 and 64).

Engagements of more than 12 months

18 For engagements of employees for specified terms or for the duration of specified tasks of more than 12 months, the selection process must reflect a merit based decision making process as specified in section 10(2) of the new PS Act. This means that the employment opportunity must be notified in the Gazette and a competitive selection undertaken.

19 An Agency Head may engage as a non-ongoing employee a person whose name appears as suitable on an order of merit established from a Gazette notification provided that the opportunity, or a similar employment opportunity, was notified within 12 months of the decision to engage (ie if a delegate makes the decision to engage a person on 6 December 1999 the employment opportunity must have been notified in the Gazette after 7 December 1998). This arrangement provides agencies with the flexibility to use orders of merit for similar employment opportunities for up to 12 months.

20 An Agency Head is not bound to use an existing order of merit and may choose to notify an individual non-ongoing employment opportunity.

Employment opportunities that may become ongoing

21 If there is a possibility that a non-ongoing employment opportunity may become ongoing within 12 months, agencies may choose to notify the employment opportunity in the Gazette as a possible ongoing opportunity and offer non-ongoing employment (including where irregular or intermittent employment). However, care must be taken not to mislead potential candidates that it is an ongoing employment opportunity from the start.

22 When, or if the employment opportunity discussed above, becomes ongoing, an Agency Head would be able to engage a person from the order of merit generated from the notification as an ongoing employee, provided it is within 12 months of the notification in the Gazette.

Engagement of non-ongoing APS employees

Engagement power

23 An Agency Head can engage a non-ongoing APS employee under s22 of the new PS Act for either:

a specified term or for the duration of a specified task (s22(2)(b)); or
for duties that are irregular or intermittent (s22(2)(c)).

24 The regulations provide the circumstances in which persons may be engaged as non-ongoing employees and limitations upon the power to extend such engagements. An Agency Head is not able to override these regulations through a certified agreement, AWA or the power to make a determination under s24(1) of the new PS Act.

25 It is proposed that the Commissioner's Directions (Chapter 4) will set out the restrictions on Agency Heads in relation to the engagement of a person who has received a redundancy benefit from an APS Agency or a non-APS Commonwealth employer within twelve months following the end of the person's employment. Further advice on this matter is being issued separately.

26 Non-ongoing employees may be engaged on a full, regular part time, or irregular or intermittent basis.

Conditions of engagement

27 The engagement of a non-ongoing APS employee may be made subject to conditions notified to the employee. These conditions would normally be specified in any Gazette notification of the employment opportunity or in any supporting selection documentation and must be notified to the employee eg in the offer of employment.

28 If an Agency Head does not specify any conditions in the notice of engagement then no conditions will apply and there is no power to impose these conditions after engagement. The most common conditions are listed in s22(6) and are discussed below.

Probation

29 An Agency Head now has the discretion to decide whether or not to apply a period of probationary employment to all new employees not just ongoing employees. They also have discretion relating to the manner in which probation is managed. The Act does not prescribe any minimum or maximum periods of probation.

30 Decisions of the Australian Industrial Relations Commission (AIRC) concerning applications under the Workplace Relations Act 1996 (the WR Act) against unfair or unlawful dismissal provide useful guidance as to what constitutes a reasonable period of probation.

31 Some recent decisions in that regard are:

Ealing and Department of Veterans' Affairs - AIRC - July 1998 - maximum period of 2 years reasonable and justifiable with respect to the position, nature and circumstances of the applicant's appointment - Medical Officer Class 3;
Marks and Department of Defence - AIRC - April 1998 - maximum period of 2 years is not reasonable - Trainee Administrative Service Officer;
Fischer v Commonwealth of Australia - IRC - September 1995 - maximum period of 2 years is not reasonable -Administrative Service Officer Class 1; and
Potter v Australian Capital Territory - Federal Court - September 1995 - maximum period of 2 years considered reasonable due to "very special circumstances of this case" - Administrative Service Officer Class 2.

32 To ensure that new non-ongoing APS employees understand any probationary arrangements that may apply to them, it is important that agencies clearly advise them in advance (consistent with the Regulations made under the WR Act ) of the nature of any arrangements prior to their engagement. The nature of the arrangements will be important should an Agency need to terminate a non-ongoing employee on probation. It is thought that termination of probation on a ground specified as a condition of engagement will not be considered by the AIRC on that basis alone to be "harsh, unjust or unreasonable" or "unfair" under the WR Act.

33 There is no concept in the new PS Act of confirmation of engagement. A person is an employee subject to a probationary period. Agencies will need to advise such employees when the probationary period has formally ended.

Australian Citizenship

34 The only requirement that applied to employees under the old PS Act was that the person must be able to demonstrate that they were eligible under the immigration laws to work in Australia.

35 Under the new PS Act, a person who is not an Australian citizen cannot be engaged, unless the Agency Head considers it appropriate to do so. (s22(8) and s22(6)(b)).

36 If the Australian citizenship requirement is waived, agencies will need to ensure that the person has the necessary visa and work rights appropriate to the employment being offered by the Agency Head.

37 For the engagement of a non-ongoing employee, the Agency Head may choose to waive the citizenship requirement for engagement for specific categories of employment or on a case-by-case basis.

Qualifications

38 There are no qualifications prescribed in the new PS Act. Agency Heads may prescribe qualifications if they are considered essential for the performance of the duties (s22(6)(c)). Unlike the arrangements that came in under the Administrative Reforms in March 1998, there is no requirement to Gazette essential qualifications.

39 Agencies should note that any essential qualifications imposed will, however, need to be relevant to the sets of duties or positions (if used) to which they apply. The imposition of non-essential qualifications could be seen to be incompatible with merit based decision making and anti-discrimination laws.

40 Agencies should also refer to the explanation on qualifications included in Advice No 6 - Staffing Actions: Ongoing APS Employees (Non-SES) and note the need for the Agency Head to determine any essential qualifications under the new PS Act.

Security and character clearances

41 Agency Heads can impose security and character clearances based on the nature of the duties to be performed (s22(6)(d)).

Health clearances

42 An Agency Head can specify health clearances based on the nature of the duties to be performed (s22(6)(e)). The Regulations will provide that persons can be directed to undergo a medical examination for the purposes of meeting the relevant conditions of the engagement, should this be considered necessary.

Notification

43 An Agency Head will need to advise a successful candidate of the proposed engagement and any conditions that have been imposed on the engagement, including any period of probation, and negotiate a starting date.

44 The PSMPC has asked the Australian Government Solicitor to develop a proforma/template to use for the engagement of a non-ongoing employee. This will be issued separately as soon as it is finalised.

45 The Regulations will require an Agency Head to notify the engagement of all non-ongoing employees engaged for periods in excess of 12 months, and any extension of engagement beyond 12 months, in the Gazette.

Conversion of employees engaged under the old PS Act

Continuing employees

46 The PECTA Act will convert continuing employees to ongoing APS employees on 5 December 1999. Actions that were in train (under s82AC) to engage a continuing employee on 5 December 1999 will be recognised by the transitional regulations:

if the instrument was signed but had not taken effect, the action will continue under the old PS Act and the person, on engagement, will convert to an ongoing employee; or
if action is underway to engage a continuing employee, then the action taken will be deemed to meet the requirements for engagement of an ongoing employee under the new PS Act.

Other employees

47 Under the PECTA Act, existing short-term employees, fixed-term employees and employees participating in training programs (ie the old s82AG special employment programs) will become non-SES employees for the duration of the unexpired portion of the original engagement (including for the duration of any extensions already granted). However, the PECTA Act does not convert them to one of the new non-ongoing categories of employment created by the Regulations under the new PS Act.

48 Where employees are converted under the PECTA Act (s5(7)) for the unexpired part of their engagement, the periods of continuous engagement approved under s82AD, 82AE, 82AG of the old PS Act will count as employment under the new PS Act for the purposes of determining whether the engagement can be extended under the new PS Act and Regulations, with the provisos that:

where the maximum period allowable under the new PS Act and Regulations is exceeded at the expiration of the period authorised by PECTA Act conversion arrangements, the employment cannot be extended;
a merit test, in accordance with requirements for non-ongoing engagement under 22(2)(b) of the new PS Act, must be conducted where:
1. the total period of the engagement (including under the old PS Act) has already exceeded 12 months and the period is to be extended; or
2. extension of the engagement will mean that the person is employed for a total period in excess of 12 months

except that, where the original engagement under the old PS Act was on the basis of a merit test, that test may be regarded as satisfying any relevant merit engagement requirements for non-ongoing engagement under the new PS Act (22(2)(b)).

49 Agencies should note that there are no transitional provisions that will allow a person originally engaged as a fixed term employee under the old PS Act, and converted under the PECTA Act to a non-SES employee, to become an employee engaged for the duration of a specified task under s22(2)(b). If the task is not completed within the unexpired part of the original engagement, an Agency will be required to fill the relevant employment opportunity under the provisions of the new PS Act and Regulations.

Transitional provisions for engagement of non-ongoing employees

50 Where an engagement instrument under sections 82AD, 82AE or 82AG of the old PS Act has been signed by a delegate before 5 December 1999 but has not come into effect on 5 December 1999, the engagement is deemed to be made as a non-ongoing employee under the new PS Act (s22(2)(b) or (c)).

51 Where an engagement instrument under s82AC has been signed by a delegate before 5 December 1999 but has not come into effect on 5 December 1999, the engagement is deemed to be made as an ongoing employee under the new PS Act (s22(2)(a)).

52 Where an engagement instrument has not been signed by 5 December 1999, the selection and related processes undertaken before 5 December 1999 will be deemed to satisfy any relevant merit engagement requirements for the engagement of an employee for a specified term or for the duration of a specified task under the new PS Act (22(2)(b)).

Termination of non-ongoing employees at end of engagement

53 Where an employee is engaged for a specified term or for the duration of a specified task (including any period of extension), or for intermittent or irregular duties the employment will, in general, automatically expire at the end of that specified term, specified task or intermittent engagement. This is not regarded as a termination by the Agency Head under s29 of the new PS Act (or by the employer for the purposes of the WR Act). For more information on termination see paragraphs 100-107 below.

Assignment of duties to non-ongoing APS employees

Nature of assignments

54 Section 25 of the new PS Act provides that an Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed.

55 In accordance with s25, a non-ongoing employee will, on engagement, need to be assigned duties to which an appropriate classification has been allocated.

Temporary assignment to duties of a higher classification

56 If the assignment of duties is a temporary assignment to duties of a higher classification, the Commissioner's Directions will require an Agency Head to have taken into account the following factors:

the efficiency of the employee;
the relative importance to the agency of the duties to be performed at the higher classification and the other duties to be performed in the Agency;
the length of the period in which the employee is to perform duties at the higher classification;
the expected cost of the employee performing duties at the higher classification; and
the need for APS employees to be given the opportunity to gain experience in performing the duties at a higher classification.

57 While the above factors are similar to the old provisions for the performance of higher duties which were contained in old PS Regulation 116A, the new PS Act or the Commissioner's Directions do not restrict temporary assignment of duties to ongoing employees. In making a decision to assign duties of a higher classification to a non-going employee, agencies need to consider the new PS Act requirement that the usual basis of employment is as an ongoing employee and that the engagement of a non-ongoing APS employee usually arises from the need to engage somebody to perform a specified task or for a specified term as prescribed under Regulation 5(2).

Movement and promotion of non-ongoing employees

58 The concepts of movement between agencies and promotion do not apply to non-ongoing employees.

59 If a non-ongoing employee in an Agency is selected for engagement in another Agency, the person will be engaged by the new Agency Head as either a non-ongoing or ongoing employee depending on the basis of the employment opportunity.

60 A non-ongoing employee who is the successful candidate in a selection exercise for ongoing employment whether at a higher classification or not, must be engaged as an on-going employee rather than being moved or promoted.

Specific requirements to be met in engaging specified term employees

61 The Regulations provide various grounds on which a specified term employee may be engaged and various requirements that must be met in terms of the length of the engagement and possible extensions of the engagement. These are discussed below.

Temporary increase in workload (Subreg 5(2)(1))

62 A person may be engaged for a specified term of not more than 18 months in order to meet a temporary increase in the workload or an Agency or part of an Agency. The Agency Head must not expect the temporary demand to continue.

63 An Agency Head may extend the specified term engagement if all of the following conditions are met:

the reason for the original engagement continues to exist;
the total term does not exceed 3 years;
the Agency cannot fully meet its objectives by using the services of an on-going employee in the Agency (this means that if ongoing employees who are able to perform the duties are available they should be used but it does not require agencies to assign the duties to ongoing employees if this would adversely affect the Agency's operations);
the temporary increase in workload of the Agency, or part of the Agency, is the result of implementing a policy which does not involve an ongoing increase in the usual workload ; and
the employment opportunity was notified in the Gazette or the period of extension was notified in the Gazette and the original employee was the successful candidate (Commissioner's Directions Chapter 4).

64 If a specified term opportunity has not been notified in the Gazette it will be difficult to meet the last condition for extension. The intention behind the imposition of this condition is to prevent the continued engagement and extension of a specified term employee without any merit competition.

Temporary demand for particular skills (Subreg 5(2)(2))

65 A person may be engaged for a specified term of up to and including 18 months in order to meet a temporary demand for employees with particular skills. The Agency Head must not expect the temporary demand for those skills to continue.

66 Before engaging a person with the particular skills as a specified term employee, the Agency Head must ensure that employees in the Agency with those skills are given the opportunity to express interest in performing the relevant duties and be considered. All that is required is that existing employees be considered at the same time as any outside candidates.

67 This is not a continuation of the "officer preference provision" of the old PS Act fixed term employment provisions. While there is an obligation under the Regulations to consider such expressions of interest, an Agency Head is not legally obliged to offer the employment opportunity to an existing employee. Reasons why an Agency Head may choose not to use an existing employee would include if he or she does not meet all the relevant criteria to the desired standard or is not the most meritorious candidate or it would cause operational problems to assign the employee to the duties.

68 If the employment opportunity is for more than 12 months it will, in any case, have been notified in the Gazette and employees would have the opportunity to apply and be considered for that employment opportunity as part of that process. For employment opportunities not notified in the Gazette, agencies will need to put in place a process of advising employees of such opportunities. Examples of how this could be done include notes in internal newsletters, on bulletin boards, or on the Internet.

69 An Agency Head may extend such a specified term engagement if all of the following conditions are met (these are similar but not identical to the conditions outlined in the previous section):

the reason for the original engagement continues to exist ie there is still a temporary demand for the particular skills;
the total term does not exceed 3 years;
the Agency cannot fully meet its objectives by using the services of an on-going employee in the Agency (this means that if ongoing employees are available who are able to perform the duties, they should be used but it does not require agencies to assign the duties to ongoing employees if this would adversely affect the Agency's operations);
the Agency Head certifies that the extension of the engagement is in the public interest; and
the employment opportunity was notified in the Gazette or the period of extension was notified in the Gazette and the original employee was the successful candidate (Commissioner's Directions Chapter 4).

70 Agencies should note the comments in paragraphs 63 and 64 on the merit requirements for extension of specified term engagements in relation to the last point in paragraph 69.

71 Before extending such an engagement the Agency Head will need to be assured that the Agency's objectives could not be met by using an ongoing employee. Each Agency Head will need to certify that the extension of the engagement is in the public interest. While it is not specified, good management practice would imply that such certification will be in writing and be included on an employee's personnel file.

Replacement of an ongoing employee (Subregs 5(2),Items 3,4 and 5)

72 A person may be engaged for a specified term of up to and including 18 months in order to replace an ongoing APS employee:

who is on leave authorised by the Agency
to whom other duties are temporarily assigned; or
who has moved temporarily to another Agency.

73 When the absence of an ongoing employee is likely to be prolonged or indefinite, an Agency Head may wish to consider whether it would be more appropriate to replace the person with another ongoing employee given the new PS Act requirement that the usual basis of employment is as an ongoing employee. This would be similar to the old PS Act provisions where officers on extended leave (eg to work for Ministers under the Members of Parliament (Staff) Act 1984 or to accompany a spouse overseas) are made unattached and their positions filled on a permanent basis.

74 An Agency Head may extend the engagement of a specified term employee if all of the following conditions are met:

the reason for the original engagement continues to exist ie the ongoing employee is still performing other duties;
the total term does not exceed 3 years;
the Agency cannot fully meet its objectives by using the services of an on-going employee in the Agency (this means that if ongoing employees are available who are able to perform the duties, they should be used but it does not require agencies to assign the duties to ongoing employees if this would adversely affect the Agency's operations);
the Agency Head certifies that the extension of the engagement is in the public interest; and
the employment opportunity was notified in the Gazette or the period of extension was notified in the Gazette and the original employee was the successful candidate (Commissioner's Directions Chapter 4).

75 There is no provision to replace a specified term employee should the specified term employee need to be replaced because of leave or for other reasons. However, should this need arise, agencies can engage another specified term employee for the duration of the absence (ie to replace the ongoing employee for the duration of the specified term employee's absence).

76 Agencies should note the comments in paragraphs 64 and 71 on the merit and certification requirements for extension of such an engagement.

Engagement pending engagement of an ongoing employee (Subreg 5(2)(6) and (7))

77 A person may be engaged pending the engagement of an ongoing employee for a specified term which is the lesser of:

six months; or
the period ending with the engagement of an APS ongoing employee.

78 The Regulations give an Agency the flexibility to use a specified term employee for up to six months while undertaking a selection exercise to find an ongoing employee. If an ongoing employee is not selected by the end of the six month period the specified term engagement automatically terminates and there is no power to extend the engagement. Preference expressed for specified term employment (Subreg 5(2)(8))

79 A person may be engaged for a specified term that does not exceed 3 years if he or she has been offered engagement as an ongoing employee but prefers to be engaged for a specified term.

80 The offer of engagement as an ongoing employee must be in writing. An Agency Head should not use duress to force a person to agree to a specified term engagement instead of ongoing employment.

81 There is no power to extend such an engagement.

Specific requirements for the engagement of employees for the duration of a specified task (Subreg 5(3))

82 A person may be engaged for the duration of a specified task if:

the Agency Head can reasonably estimate the duration of the task at the time of engagement; and
at that time, the Agency Head reasonably considers that the services of the person are unlikely to be required after the task is finished; and
ongoing employees in the Agency with the relevant skills have been given the opportunity to express an interest in performing the duties and be considered.

Time frames and definition of task

83 There is no time limit placed on the length of the engagement of an employee for the duration of a specified task. In practice, the duration of the task will determine the length of the engagement.

84 The term "task" is not defined. It could conceivably range in meaning from one specific task (eg post out a report) to a whole project which could be considered as a series of related tasks (eg implement a new Government program).

85 Agencies will need to be clear on what the task involves prior to engaging a person for the duration of a specified task. This is necessary both for meeting the requirement for existing employees to express an interest and be considered for the employment opportunity and for selection purposes, particularly if the task is over 12 months and, therefore, needs to be notified in the Gazette.

86 The engagement instrument will need to include the probable duration of the engagement. It would be desirable to indicate what may happen if the task takes a longer or shorter period than estimated (see early termination section below).

87 An Agency Head will need to have measures in place to ensure that the duration of a specified task engagement is not consistently underestimated so that the Commissioner's Directions on Merit (Chapter 4) which require engagements of over 12 months to be notified in the Gazette is not ignored. It would be a breach of the Regulations if an engagement that was clearly going to take more than 12 months was not notified in the Gazette.

Engagement on non-ongoing employee to enable gaining of skills and experience or meet professional/educational requirements (Subregs 5(4),5(5) and 5(6))

88 Under the old PS Act s82AG allowed the employment of persons to perform duties under a prescribed scheme to enable the persons to gain ability and experience in the workforce. This provision has been maintained and enhanced under the new PS Regulations.

Gaining of skills and experience

89 An Agency Head may engage a person for a specified term or for the duration of a specified task if the purpose of the engagement is to allow the person to gain skills and experience. This provision is not open ended as the person must be engaged under a particular scheme.

90 There are two types of schemes for this purpose:

an agency-specific scheme approved by the Agency Head. Details of the scheme (eg what it is intended to do, who is eligible, how people are selected and the terms of engagement) must be published in the Gazette within 14 days after approval by the Agency Head; and
service-wide schemes which will be the subject of a general direction by the Prime Minister (under subsection 21(1) of the PS Act). The direction must be published in the Gazette within 14 days after approval by the Prime Minister. The following schemes (a continuation of the old PS Regulation 122 approved schemes) will be listed in the Prime Minister's Direction to come into effect on 5 December 1999:
- the Aboriginal Employment Development Policy;
- the Australian Traineeship System;
- the APS Post-Secondary Industrial Training Scheme:
- the APS Apprenticeship scheme;
- the APS National Training Wage Program;
- the Disability Employment Enhancement Scheme; and
- New Apprenticeships.

91 There will be no need for any special transitional arrangements for trainees already employed under these schemes on 5 December 1999.

Meeting professional/educational requirements

92 As mentioned above, there is greater scope for engaging persons for a specified term or for the duration of a specified task to gain professional experience under the new PS Regulations. Other circumstances where a person may be engaged for this purpose are to:

meet a practical requirement for the award of a qualification by an educational institution or accreditation by a professional body.
provide a person with occupational experience required for licensing or registration to engage in an occupation.

93 The length of the engagement will be determined by either the scheme under which the person is engaged or the practical requirements to be met during the engagement.

Further engagement

94 There is no provision for engagements under training schemes to be converted to ongoing employment. Such employees would need to apply and compete on merit for ongoing employment opportunities following their notification in the Gazette.

Specific requirements for the engagement of employees for irregular or intermittent duties

95 The new PS Act provides that an Agency Head can engage a person to perform duties that are irregular or intermittent. The nature of such duties are not defined in the new PS Act. While there is a power to make regulations which limit the circumstances in which such engagements may be made, there is no intention, at this stage, to make any regulations for this category of employee.

96 The type of duties covered by this category of employment would include:

one-off short term tasks/duties that do not fit within the specified term or duration of a specified task category;
circumstances when duties need to be performed on an intermittent basis but where there is no regular pattern of work and part time work is therefore inappropriate;
persons on call or on a relief roster.

97 It is envisaged that agencies will be able to engage persons for irregular or intermittent duties for a period of time (not unlimited) without having to issue a separate notice of engagement for each time a person is performing the duties. This should assist the administration of relief pools and pools of specialist or other staff who are on call should their services be required.

98 There is no provision for such irregular or intermittent engagements to be converted to ongoing employment. Such employees would need to apply for ongoing employment opportunities when notified in the Gazette.

99 It is intended that the Commissioner's Directions will not include a requirement for employment opportunities in this category to be notified in the Gazette. Selections must be made within the merit framework outlined in paragraphs 8-11.

Termination of engagement of non-ongoing employees

100 Section 29 of the new PS Act provides the head of power to terminate the employment of non-SES employees. The new PS Act does not, however, prescribe in detail the processes for termination of non-ongoing employees.

101 Subsection 29(1) provides that an Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency. A note to s.29 makes it clear that the new PS Act is intended to operate side by side with the termination of employment provisions of the Workplace Relations Act 1996 (the WR Act).

102 Subsection 29(4) provides that the Public Service Regulations may prescribe grounds or procedures applicable to the termination of the employment of a non-ongoing employee (i.e. an employee engaged for a specified term or the duration of a specified task, or for duties that are irregular or intermittent). Subsection 29(5) provides that s29(4) does not, by implication, limit the grounds for termination of the employment of non-ongoing APS employees. This provision is relevant where the regulations made under s29(4) do not seek to specify exhaustively the permissible grounds for the termination of employment of a non-ongoing APS employee.

103 The regulations to be made under s29(4) will provide that:

any procedures set out in an award, certified agreement or AWA that apply to the termination of employment of a non-ongoing APS employee will apply to such a termination; and
the engagement of a non-ongoing APS employee may be terminated on the grounds of a breach of the Code of Conduct only in accordance with procedures determined by an Agency Head under s 15(3) of the new PS Act.

104 Where a certified agreement or AWA sets out agreed processes for managing underperformance, redundancy, or provisions relating to compensation for early termination of employment of a fixed term engagement, then those processes need to be followed when termination of employment action is being taken.

105 Some preliminary guidance on the likely effect of the termination of employment provisions of the WRA and the common law of employment to a non-ongoing APS employee was included in Advice No.9 Termination of Employment. This has been included at Attachment A. The law on termination of employment in this area is dynamic, and the position may vary depending on the facts of the case. This advice is not definitive and is subject to refinement in the light of later legal advice and case law.

106 At Attachment B is advice on compensation for early termination of non-ongoing employees engaged for a specified term. (This is identical to Attachment B in Advice No.9)

107 Below is a listing of the grounds on which it is not lawful to terminate employment under s.170CK of the WRA, except as allowed by that section in the case of an inherent requirement of the job. (This is identical to Attachment A in Advice No.9).

Further advice

108 Urgent enquiries from Comnet members and their senior staff should be made by E-mail to psact@apsc.gov.au or the PSMPC's Helpline on (02) 6202 3859. APS staff who contact the PSMPC will be asked to direct their enquiries to the appropriate area of their own agency.

109 Advice from DEWRSB is accessible through the government employment web sites at www.dewrsb.gov.au or through the PSMPC's web site.

Jeff Lamond
Team Leader
Staffing, Structures and Performance Team

1 December 1999

Attachment A: Early termination

Termination during a specified term or before the completion of a specified task

A regulation will be made under s. 29(4) of the PS Act setting out procedures that apply to the termination of the engagement of a non-ongoing APS employee. The regulation will require that any applicable procedures in an award, certified agreement or AWA must be followed. In addition, an engagement can only be terminated on the grounds of misconduct in accordance with the procedures established by an Agency Head under s. 15.

2 Because s. 29(3) enables termination of employment 'at any time', the case law on the WRA provisions makes it clear that termination of an engagement before the expiry of a specified term or task is subject to the termination provisions of the WRA - unless the employee is serving a period of probation of 3 months or less or such longer period than 3 months that is reasonable, having regard to the nature and circumstances of the employment. That is, a non-ongoing APS employee may obtain remedies under the WRA if their engagement is terminated early on a basis that is found to be harsh, unjust, unreasonable or unlawful. This would include a case where an engagement is terminated early without a termination payment that the AIRC regards as reasonable in the circumstances.

3 In addition, under the common law of employment, if an employer ends a fixed term contract of employment prematurely other than on a ground justifying instant dismissal, they may be liable to pay damages in relation to the balance of the term (subject to the normal rules about mitigation of damage).

4 To avoid uncertainty for both parties, it may be desirable, when recruiting an employee for a specified term or the duration of a specified task, of any significant duration, to agree at the time of engagement on what arrangements will apply if the engagement is terminated early by the Agency for a reason relating to the operational requirements of the employer - for example because a specified task is no longer required to be performed as a result of a change in government policy. At Attachment B are details of the compensation arrangements negotiated with unions which may assist agencies in determining the arrangements to apply if the engagement of an employee engagaed for a specified term or the duration of a specified task is to be terminated early.

5 Such an agreement could be included as a condition of engagement under s. 22 or in an AWA or certified agreement. This may not always avoid liability, however, if the agreed amount is not found by the courts or the AIRC to be a reasonable payment for the damages.

At the end of a specified term or on completion of a specified task

6 Where an employee is engaged for a specified term or for the duration of a specified task, in general, their employment will automatically expire at the end of that specified period or specified task. It is therefore not termination by the Agency Head or 'by the employer' and so the requirements of s. 29 relating to notice and the unfair termination provisions of the WRA do not apply.

7 There may, however, be cases where the courts or the AIRC may find that the engagement was not genuinely 'for a specified term', for example if there were several back to back specified term engagements to do the same duties. In addition, the WR Regulation 30B(2) provides that there is no exclusion from coverage if the main purpose of the engagement under a contract of that kind is, or was at the time of engagement, to avoid coverage by the WRA termination provisions.

Termination of irregular or intermittent employees

8 The regulation to be made under s 29(4) of the PS Act setting out procedures that apply to the termination of the engagement of a non-ongoing APS employee will also apply to the termination by the Agency Head of the employment of an irregular or intermittent employee.

9 Whether an irregular or intermittent employee is covered by the termination of employment provisions of the WRA will depend on whether the employee is 'a casual employee engaged for a short period' within the meaning of WR Regulation 30B(3) or not.

10 Where an employee is engaged for a short period, e.g. a day at a time, that particular engagement expires automatically at the end of that period, and so there is no requirement to give notice of termination of that specific engagement.

11 There may be cases, however, where an Agency wishes to set up a pool of people to provide relief staffing as needed. Depending on the facts, such people may be held to have a continuing employment relationship, e.g. for purposes such as accrual of long service leave. There will also be obligations under the APS Values to treat such persons fairly. As the legal analysis of such situations depends very much on the facts of each case, agencies may wish to seek advice when setting up such arrangements.

Transitional arrangements

12 Division 8C of the old PS Act dealt with the redeployment and retirement of non-SES officers. Regulations made under the PECTA Act will establish the following transitional arrangements

where an instrument of retirement or reduction had been signed under s.76W of the old Act but the retirement or reduction had not come into effect prior to 5 December 1999, the retirement or reduction action will continue to be effective but will be regarded as taking effect under the old Act;
however, where a notice of reduction was issued under s. 76W of the old Act and the period for lodging an appeal under s. 76Z (as specified in old Public Service Regulation 120D) had not expired before 5 December 1999, or where an appeal had been lodged but not heard, the appeal process will be allowed to continue;
the Merit Protection Commissioner will be able to establish a Redeployment and Retirement Appeal Committee which will be able to act until all relevant appeals have been lodged, heard and determined.

Attachment B: Compensation for early termination on non-ongoing employees engaged for a specific term

A Certified Agreement, AWA or individual engagement advice could:

specify that where an APS employee has been engaged for a specified term is terminated before the expiry of the specified term because:
- the duties for which they were engaged are no longer available;
- the duties in relation to which they were engaged have been completed ahead of time; or
- a decision has been made that those duties are no longer required to be performed;
  the employee will, in addition to any entitlements arising under s. 170CM of the Workplace Relations Act 1996, be entitled to compensation in respect of the period of service foregone; and
state that the employee shall not be entitled to other damages or compensation in respect of, or arising out of, the termination:

The following formula may be appropriate in relation to a non-SES employee engaged for a specified term. An Agency will, however, need to have regard to the particular circumstances of the engagement, eg. whether remuneration packaging applies or did the person relocated from interstate or overseas to take up the engagement.

Period of service foregone	Compensation
Not more than 6 months	Nil
More that 6 months but not more than 12 months	4 weeks salary
More that 12 months but not more than 18 months	8 weeks salary
More than 18 months but not more than 24 months	12 weeks salary
More than 24 months but not more than 30 months	16 weeks salary
More that 30 months but not more than 36 months	20 weeks salary

Attachment C: Subsection2 of Section 170CK of the WR Act concerning employment not to be terminated on certain grounds

(2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

temporary absence from work because of illness or injury within the meaning of the regulations;
trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;
.non-membership of a trade union;
seeking office as, or acting or having acted in the capacity of, a representative of employees;
the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA;
absence from work during maternity leave or other parental leave.