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Last updated: 15 August 2005
Conditions of engagement
Legislative framework and general principles
Note: This document has not been updated to reflect changes that may flow from the WorkChoices legislation enacted on 27 March 2006
This chapter outlines the legislative framework and general principles relating to section 22(6) Conditions.
2.1 The legislative framework
The formal framework that applies to conditions of engagement, including Australian citizenship, is:
- the PS Act
- the Regulations
- the Directions.
Other relevant legislation includes:
- Administrative Decisions (Judicial Review) Act 1977
- Age Discrimination Act 2004
- Australian Citizenship Act 1948
- Criminal Code Act 1995
- Disability Discrimination Act 1992
- Freedom of Information Act 1982
- Human Rights and Equal Opportunity Act 1986
- Migration Act 1958
- Privacy Act 1988
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Workplace Relations Act 1996
- Spent convictions provisions in Part VIIC of the Crimes Act 1914.
agency heads are also responsible for implementing protective security measures, as outlined in the Commonwealth Protective Security Manual.
2.2 Imposing conditions of engagement
The decision to impose a condition in respect of an ongoing or non-ongoing engagement rests with the agency head. The PS Act provides an agency head with the power to engage a person as an APS employee and to impose conditions on their engagement. Section 22(6) of the Act makes specific mention of:
- probation
- citizenship
- formal qualifications
- security and character clearances
- health clearances.
It does not limit the conditions that may be imposed and an agency head is able to impose other conditions under section 22(6)—see section 22(7).
In imposing conditions, the agency head should have regard to the APS Values and other relevant legislation. For example, anti-discrimination legislation makes it unlawful to discriminate against someone on a range of grounds, including race, age, sex and disability.
The operation of the condition may also affect or be affected by industrial awards, certified agreements and Australian Workplace Agreements (AWAs). Any AWA negotiated with an employee who is subject to a condition of engagement might note the relevant condition.
It is important to remember that each section 22(6) condition is a separate condition of engagement and will therefore have to be met according to the arrangements for the particular condition. Should an employee's engagement be subject to, for example, three months probation and obtaining a grant of citizenship within six months, the probation condition will need to be met according to the probation arrangements and the citizenship requirement will need to be met according to the citizenship condition. The employee's engagement will continue to be conditional until each condition attached to that engagement has been satisfied.
Conditions imposed under section 22(6) of the PS Act must relate to the person's engagement. Once a condition imposed under section 22(6) has been satisfied, an employee cannot have their employment terminated on the ground specified in section 29(3)(f) for failing to meet that condition. (Section 29(3)(f) specifies ‘failure to meet a condition imposed under section 22(6)’ as a ground for terminating the employment of an APS employee).
Each agency head should develop policies for their agency on the application of conditions of engagement consistent with the legislative framework. An established policy framework of this nature assists consistent administration of agency practices and supports procedural fairness, equity and compliance with other APS Values.
2.3 Desirability of undertaking checks before engagement
When an employment opportunity is notified, it is desirable that the Gazette notification and supporting selection documentation mention in brief whether any additional checks or conditions of engagement may need to be satisfied. In many cases it will be possible to undertake the necessary checks before a prospective employee is engaged. However, if a condition is not met before engagement, the employee's engagement may be made subject to meeting the requirements of one or more notified conditions. The employee should be fully advised in writing of any such conditions before engagement.
There are significant benefits to both agencies and individuals of conducting as many checks and clearances as possible before the person's formal engagement. While conditions can be imposed on a person's engagement, they cannot be imposed after the person has been engaged. If a pre-employment check reveals that a prospective employee will not meet the agency's particular requirements, the agency can decide not to proceed with the engagement.
2.4 Notification to an employee of a condition of engagement
It is important that all section 22(6) conditions, and any time limits imposed, are notified to the employee before they are engaged. (See the Recruitment and Related Issues booklets for further information on notices of engagement.) If a condition of engagement is not notified to a prospective employee before engagement, there is no power to impose a condition of engagement retrospectively after engagement.
2.5 Assignment of other duties within an agency
It may be the case that an employee will be assigned other duties within the agency before they have been able to satisfy one or more of their conditions of engagement (eg Australian citizenship).
Generally, a condition of engagement will continue to apply if there is a change of duties, unless the terms of the condition are incompatible with the new duties, or the agency chooses to waive the condition because it is not relevant to the new duties. For example, if an employee is assigned new duties, this would generally not affect a requirement to obtain Australian citizenship.
Changes to an employee's duties during a period of probation may, however, give rise to more complex issues, depending upon the terms of the probation condition. Please refer to the booklet Probation for more discussion of this issue.
2.6 Movement to another agency
It may be the case that a new employee applies to move to another agency before they have been able to satisfy one or more of their conditions of engagement.
In general, it is desirable that any conditions of engagement be satisfied before a new employee moves to another agency. However there may be cases where an agency head does not wish to wait till a particular condition is satisfied before an agreement with the employee to move to the new agency can take effect.
In such a case, the post-move agency head may choose to waive the condition (for example, if the original agency imposed a more demanding health or security clearance condition than is needed for the new duties). Alternatively, the post-move agency head may wish to continue the condition.
Whether, as a matter of law, a condition of engagement can continue when an employee is assigned new duties in another agency depends upon the nature of the condition and how it was framed - for example, whether it related just to the specific duties for which the employee was originally engaged or reflects a more general policy requirement such as Government policy regarding Australian citizenship.
If the condition is framed in such a way that it can continue, and the post-move agency head wishes it to continue, it will provide more certainty for both sides if this is explicitly recorded, for example as part of the agreement to move under section 26 of the PS Act.
Where a condition continues, the employee's employment may be terminated by the new agency head on the ground specified in section 29(3)(f) if they fail to meet the condition. (Section 29(3)(f) specifies ‘failure to meet a condition imposed under section 22(6)’ as a ground for terminating the employment of an APS employee).
It is the responsibility of the post-move agency head to inquire into the status of the employee's current employment, the presence of any unmet conditions of engagement, and whether any conditions will continue if the employee moves to their agency.
2.7 Consequences of failing to meet a condition of engagement
If conditions have been imposed and a person is engaged and commences employment subject to satisfactorily meeting, for example, a security clearance and subsequently fails to meet the required level of clearance, their employment will be able to be terminated on the ground specified in section 29(3)(f) of the PS Act. Termination may, however, cause considerable disruption to the employee, the employer and the workplace. Agency heads should therefore consider implementing arrangements to ensure that, as far as is practicable, they are satisfied that a prospective employee meets all the relevant requirements before they are engaged.
Additional information can be found in the booklet Termination of Employment (2004).
2.8 Continuing conditions
In some cases agency heads may want to impose or vary requirements or conditions that an employee must meet on a continuing basis, such as the need to maintain a particular level of security clearance. Such conditions cannot be imposed under section 22(6) as this provision can only be used to impose conditions in connection with the engagement process.
There may be scope to impose or vary requirements applying to existing employees and/or to vary the essential qualifications that apply to the performance of particular duties under other heads of power, for example under section 20 of the PS Act. However, this raises wider issues which are outside the scope of this booklet. Agencies can access any further information on this issue via the Commission's website www.apsc.gov.au.
As this is a complex topic, if an agency is considering imposing a new ongoing condition or requirement, it may wish to consider obtaining legal advice.
