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ARCHIVE: Circular 2003/2 - Engagement of ongoing and non-ongoing employees

This circular has been replaced by the documents referred to in Circular 2004/9

The purpose of this circular is to advise agencies of an amendment made to the Public Service Commissioner's Directions 1999 (the Directions) and the circumstances in which the Public Service Commissioner will consider applications for the use of the new Direction to authorise the engagement of a non-ongoing employee as an ongoing employee.

Background

2. APS Commission Circular 2002/11 noted that the Public Service Commissioner would be making a Direction under section 11 of the Public Service Act 1999 (the Act) that would authorise an Agency Head to engage a non-ongoing employee as an ongoing employee without a Gazette notification and a selection process in exceptional circumstances.

3. This action arose as a result of an Australian Industrial Relations Commission decision relating to non-ongoing employees in the Defence Integrated Distribution System (DIDS) area in the Department of Defence.

4. The amendment to the Directions was made by the Public Service Commissioner on 15 March 2003 and came into effect on 18 March 2003. The amendment inserts a new subclause 4.2A into Chapter 4, 'Merit in Employment', that allows the Commissioner to authorise the engagement of a non-ongoing employee as an ongoing employee in exceptional circumstances. A copy of the amendment is at Attachment A.

Issues

5. The Act provides that the usual basis of employment is as an ongoing employee and the Public Service Regulations 1999 set out the requirements relating to the engagement of non-ongoing employees.

6. If it becomes clear that the duties performed by a non-ongoing employee should be more appropriately undertaken by an ongoing employee, then the new ongoing employment opportunity should be notified in the Gazette and a selection undertaken. There should be no expectations given to a non-ongoing employee that they are entitled to be offered the new ongoing employment opportunity without the opportunity being given to other eligible members of the community to apply. Only in exceptional circumstances will the Public Service Commissioner authorise the engagement of a non-ongoing employee as an ongoing employee without a Gazette notification and a selection process.

Implementation of Commissioner's Direction 4.2A

7. Clause 4.2A of the Directions allows an Agency Head to make a written request to the Public Service Commissioner to authorise the Agency Head to engage a non-ongoing employee as an ongoing employee without other eligible members of the community being given the opportunity to apply where the Agency Head is satisfied that:

  • on the basis of the relationship between the person's work-related qualities and the work-related qualities genuinely required for the duties of the relevant employment, that the person is suitable for the duties; and
  • that the duties of the relevant employment are more appropriately undertaken by an ongoing APS employee.

8. The Public Service Commissioner may authorise the engagement if:

  • the engagement as an ongoing employee is at the person's former classification (or equivalent) as a non-ongoing employee; and
  • the Commissioner is satisfied that there was compliance with the APS Values of merit and reasonable access in the original engagement as a non-ongoing employee and any extension, or extensions, of the engagement;
  • the Commissioner is satisfied that exceptional circumstances exist to justify the engagement.

9. The Commissioner will exercise this power on a case-by-case basis following a strict assessment of whether exceptional circumstances exist. An example of what might be considered exceptional circumstances is where external decisions are made that affect an agency over which it has no control, such as the prolonged outsourcing process that arose in the DIDS case.

10. To ensure public accountability, the Public Service Commissioner will report on any exercise of this power in the annual State of the Service Report.

11. The Public Service Commissioner has also stated that he will not exercise this power as a means of covering up poor administration. Agencies are reminded of the need to ensure that employees are aware of, and complying with, the legislative requirements relating to non-ongoing employment.

12. Pending amendment of Regulation 3.12 concerning notification in the Gazette, the Public Service Commissioner will ask Agency Heads to ensure that the decision to engage an employee following authorisation by the Commissioner under clause 4.2A of the Directions is notified in the Gazette with a footnote to the effect that "This engagement was authorised by the Public Service Commissioner on (date) under clause 4.2A of the Public Service Commissioner's Directions 1999'.

Applications to the Commissioner

13. Any request to use this power must be made in writing by the Agency Head and should be addressed to the Public Service Commissioner. The Commissioner will not normally accept written requests from a delegate.

14. The application to the Commissioner should cover the following issues:

  • evidence that the Agency Head considers the person suitable for the ongoing duties;
  • why the duties would be more appropriately undertaken by an ongoing employee;(This information need only be a copy of the material/arguments presented to and, subsequently supported by, the Agency Head)
  • the classification and duties of both the non-ongoing work and the ongoing work;
  • the nature of the advertising and selection process for the original non-ongoing engagement and any extensions including evidence of compliance with sections 10(1)(b) and (m) of the Act; and
  • an explanation of the exceptional circumstances which the Agency Head thinks would justify the engagement of the person as an ongoing employee in accordance with this Direction.

15. The application should also nominate an appropriate contact person within the Agency should further information be required.

Further information

16. Any amendment to the Commissioner's Directions is subject to disallowance by Parliament. The last date for disallowance of this amendment is 25 June 2003. The Commission will notify agencies if the amendment is disallowed.

17. General enquiries in relation to non-ongoing employment can be directed to the APS Commission's Helpline on (02) 6202 3859.

Peter Miller
Acting Group Manager
Policy and Employment Group

15 April 2003

Attachment A

Amendment of Public Service Commissioner's Directions 1999

[1] After subclause 4.2 (6) insert

(7) This clause does not prevent the engagement of a non-ongoing APS employee as an ongoing APS employee in the circumstances described in clause 4.2A.

[2] After subclause 4.2 insert

4.2A Engagement of non-ongoing APS employee as ongoing employee in exceptional circumstances

(1) Despite clause 4.2, the Commissioner may authorise an Agency Head to engage a non-ongoing APS employee as an ongoing APS employee in accordance with this clause.

(2) An Agency Head may, in writing, ask the Commissioner to authorise the engagement by the Agency Head of a non-ongoing APS employee as an ongoing APS employee without making the opportunity to apply for the relevant employment open to other eligible members of the community, if the Agency Head is satisfied:

  1. on the basis of the relationship between the person's work-related qualities and the work-related qualities genuinely required for the duties of the relevant employment, that the person is suitable for the duties; and
  2. that the duties of the relevant employment are more appropriately undertaken by an ongoing APS employee.

(3) The Commissioner may authorise the engagement if:

  1. the engagement as an ongoing APS employee is at the person's former classification (or equivalent) as a non-ongoing APS employee; and
  2. the Commissioner is satisfied that the APS Values mentioned in paragraphs 10 (1) (b) and (m) of the Act were complied with in relation to:
    1. the engagement of the non-ongoing APS employee as a non-ongoing APS employee; and
    2. any extension of the engagement of the non-ongoing APS employee as a non-ongoing APS employee; and
  3. (c) the Commissioner is satisfied that exceptional circumstances exist to justify the engagement.

(4) If the Commissioner authorises the engagement, the Agency Head may engage the non-ongoing APS employee as an ongoing APS employee without opening the employment opportunity to other eligible members of the community.

Note It is intended that the Regulations will be amended to provide that if an Agency Head proceeds with the engagement of a non-ongoing APS employee as an ongoing APS employee in accordance with an authorisation by the Commissioner, the Agency Head must ensure that the decision to engage the non-ongoing APS employee as an ongoing APS employee is notified in the Gazette and that the notice includes a statement to the following effect:

'This engagement was authorised by the Public Service Commissioner on (date) under clause 4.2A of the Public Service Commissioner's Directions 1999.'

Page ID: 10514

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