Non-ongoing (Temporary) Employment: The Essentials

Last updated: 09 Dec 2016

This page is: current

The Essentials

This page sets out the essential requirements relating to the engagement of non-ongoing employees into the Australian Public Service (APS). The Public Service Act 1999 (the Act) refers to 'non-ongoing' employees and the term is defined in the Act. In this guide the term 'temporary' is used throughout to mean 'non-ongoing'.

Topic Legislation
1. Power to recruit
An agency head may engage a temporary APS employee for:
  1. a specified term; or
  2. a specified task, or
  3. on a casual basis i.e. duties that are irregular or intermittent.

However, the usual basis for engagement in the APS is as an ongoing employee.

Sections 22(2)(b) and (c) of the Act
Section 10A(1)(b) of the Act.
All engagement decisions are made under the Act and must be based on merit. The requirements of merit depend on the circumstances. For short periods of temporary employment limited requirements apply.Section 10A(1)(c) of the Act
2. What is meant by engagement 'based on merit'?
There are two key components of merit—advertising and assessment of applicants.

Also relevant to merit is the requirement for APS workplaces to be free from patronage and favouritism.

Section 10A(1)(f) of the Act
Advertising
Eligible members of the community must be given a reasonable opportunity to apply for engagement as an APS employee. Advertising a vacancy on the APSjobs website1 would always meet the test of 'reasonable opportunity' but is not a requirement in all circumstances.

The following temporary employment vacancies must be advertised on the APSjobs website:

  1. a specified term or task that is expected to take more than 18 months
  2. SES vacancies where the total period of employment is expected to be more than 3 years.

These vacancies must have a closing date of at least 7 days from the notification date unless special circumstances exist and the agency head, or delegate, has approved a shorter period.

A temporary vacancy that is for 18 months or less, or duties that are casual, do not need to be advertised on the APSjobs website.

Where a temporary vacancy is not required to be advertised on the APSjobs website eligible members of the community must still be given a reasonable opportunity to apply, for example, by agencies advertising temporary employment registers and engaging people from a register.

Section 10A(2)(a) of the Act
Section 22(1) & (2) of the Australian Public Service Commissioner's Directions 2016 (the Directions) and regulation 3.4 of the Public Service Regulations 1999 (the Regulations)

Section 20(1) of the Directions
Section 22(3) of the Directions
Section 10A(2)(a) of the Act and section 22(3) of the Directions

Assessment—for engagements of 18 months or less, or for casual duties
As a minimum, an agency head must be satisfied that the person has the work-related qualities required to perform the duties.
Sections 10 and 22(4) of the Directions
Assessment—engagement of temporary employees for a specified task of over 18 months
A merit-based engagement decision is one where:
  1. an assessment is made of the relative suitability of the applicants, using a competitive selection process; and
  2. the assessment is based on the relationship between the applicant's work-related qualities and the work-related qualities necessary to undertake the role; and
  3. the assessment focuses on the relative capacity of the applicants to achieve outcomes related to the job; and
  4. the assessment is the primary consideration in making the decision.

A competitive selection process in relation to assessment requires that:

  1. the aim and purpose to the selection process is determined in advance and information about the process made readily available to applicants; and
  2. the process is applied fairly to each applicant and is appropriately documented; and
  3. applicable restrictions are followed in the case of a decision to engage a person who has received a redundancy benefit.

 

Section 10A(2) of the Act Section 19 of the Directions

Applicable restrictions are set out in section 48 of the Directions

For Senior Executive Service (SES) employees, the Australian Public Service Commissioner (the Commissioner), or his or her representative, must be a full participant in the selection process and must certify that the process complied with the Act and Directions. Section 21 of the Directions
3. Engagement for a 'specified term'
A person may be engaged as a temporary non- SES employee for a 'specified term' if:
  1. the duties are required for a limited time; or
  2. the person prefers to be engaged as a temporary employee; or
  3. the person is currently an ongoing Parliamentary Service employee.

There are three other circumstances where a person may be engaged as a temporary non-SES employee but they have been rarely used.

Regulation 3.5(3) of the Regulations
Regulations 3.5(3)(b) and (c). Regulation 3.5(6)
A person may be engaged as a temporary SES employee for a 'specified term'.

An ongoing non-SES or SES employee may resign their ongoing employment in order to be engaged as temporary employee for a specified term at the same classification level.

Regulation 3.4(1) and (2)
Section 24 of the Directions
How long is a 'specified term'?
The period of the engagement for a specified term must be a reasonable estimate of the time required to perform the duties.

The period of a specified term engagement must not be more than 18 months. That period may be extended without the need for a full merit-based selection process.

An extension may be granted where:

  1. there is a continuing need for the duties; and
  2. the person is performing satisfactorily; and
  3. the agency head is satisfied that it is still appropriate that the duties be performed on a non-ongoing basis; and
  4. the agency head is satisfied that the extension will contribute to efficient and effective organisational performance.

The total period of engagement, including extensions, must not exceed three years.

The Commissioner may authorise an extension beyond the three year limit, for no more than 12 additional months, where the agency head considers that the engagement is necessary for the agency's operations.

SES employees
A person may be engaged as an SES employee for a term of up to five years.

A temporary SES employee's term of employment may be extended provided the total term does not exceed five years.

A temporary SES employee engaged for a term of 18 months or less may be extended without a full merit-based process provided the total term does not exceed three years.

An extension may be granted where:

  1. there is a continuing need for the duties, and
  2. the person is performing satisfactorily, and
  3. the agency head is satisfied that it is still appropriate that the duties be performed on a non-ongoing basis, and
  4. the agency head is satisfied that the extension will contribute to efficient and effective organisational performance.

Regulation 3.5(4)(a)(i)
Regulation 3.5(4)(a)(ii) of the Regulations and section 22(2) of the Directions
Regulation 3.5(4)(c) of the Regulations and section 22(2) of the Directions
Regulation 3.5(5)

Regulation 3.4(1)
Regulation 3.4(3)

Section 22(2) of the Directions

4. Engagement for a 'specified task'
There are no time limits on specified task employment.

Before engaging a person for a specified task, an agency head must be able to make a reasonable estimate of the duration of the task. The agency head must also be satisfied that the services of the person are unlikely to be required after the task is complete.

Regulation 3.5(2)

5. Engagement on a casual basis

A person may be engaged on an irregular or intermittent basis. This is sometimes referred to as casual employment. These duties are usually required for one-off short term tasks, duties where there is no regular pattern of work or for people on call or on a relief roster.Section 22(2)(c) of the Act.
6. Terminating temporary employment
An agency head may at any time terminate the employment of a temporary employee by notice in writing.

Many agencies set out requirements in relation to termination of temporary employment in enterprise agreements or common law contracts.

Section 29(1) of the Act

Where an agency head terminates the employment of a temporary employee before the completion of the specified term or the end of the specified task, the agency head may also be required to provide the employee with redundancy pay, in addition to notice of termination.Sections 117 and 119 of the Fair Work Act 2009
7. Other Relevant Employment Matters
Other matters to consider when engaging a temporary employee include:
  1. imposing a condition of engagement e.g. probation, security clearance, character and health checks, citizenship
  2. the allocation of a classification to the employee
  3. the assignment of duties to the employee
Section 22(6) of the Act
Rule 6 of the Public Service Classification Rules 2000
Section 25 of the Act

1 ie the Public Service Gazette