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Last updated: 15 August 2005
Conditions of engagement
General principles relating to other section 22(6) conditions
Note: This document has not been updated to reflect changes that may flow from the WorkChoices legislation enacted on 27 March 2006
This chapter describes the legislation and general principles applying to the other conditions mentioned in section 22(6) of the PS Act (namely, formal qualifications, security and character clearances, and health clearances), and a brief discussion of the powers that an agency head has to impose other conditions on a person's engagement. Agencies should be aware that conditions can be imposed on the engagement of both ongoing and non-ongoing employees.
Probation is the subject of a separate booklet that sets out the basic obligations under the PS Act and the Workplace Relations Act which agencies must observe when engaging employees subject to a probation condition, and within which they should establish appropriate agency specific arrangements.
4.1 Formal qualifications
Any requirement that an employee possess a formal qualification should be dealt with before engagement and would generally be specified in the Gazette notification and in any other advertising. Nonetheless there may be cases where an agency may choose to make an offer of engagement subject to a condition under section 22(6) that the person produce evidence of the necessary qualification within a specified period. This usually applies in instances where, for example, the agency engages an undergraduate who has satisfactorily completed all the requirements of a course, has provided evidence of completion, and is waiting for the degree to be conferred, or where for some reason the person is not immediately able to produce evidence of the qualification.
Failure to meet a condition relating to formal qualifications can result in termination of employment on the ground specified in section 29(3)(f). (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).
For information on the recognition of overseas professional and other qualifications, contact the National Office of Overseas Skills Recognition in the Department of Education, Science and Training or visit their website at http://www.dest.gov.au/noosr/.
Agencies should note that they are required to comply with any Commonwealth and State licensing and registration laws that may be associated with a professional, technical or trade qualification.
4.2 Security clearances
An agency head may require a security clearance as a condition of engagement. This condition would normally be mentioned in the Gazette notification of the employment opportunity and/or in supporting selection documentation.
As with other conditions, it is desirable to complete any security checks before a prospective employee is formally engaged. However, an agency head may consider it appropriate to engage a person subject to the person satisfying the agency head of their suitability following an appropriate security clearance.
If so, an appropriately drafted condition of engagement should be advised in writing to the prospective employee before engagement. The condition should state the level of clearance required, and, if appropriate, specify a period within which the clearance must be obtained. It should be drafted so as to enable the agency to terminate the person's employment at an earlier date if a clearance is refused or if it becomes clear that a satisfactory clearance will not be obtained.
When attaching a particular level of security clearance to specific duties or sets of duties, the requirement must be relevant to the duties to be performed and/or the agency environment. The imposition of a particular security level without justification on duties that can be genuinely performed without it may be regarded as incompatible with merit-based decision making.
Requirements for particular levels of security clearance should be consistent with the Commonwealth protective security policy and practices outlined in the Commonwealth Protective Security Manual.
Failure to obtain the required level of security clearance can result in termination of employment on the ground specified in section 29(3)(f). (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).
4.3 Character clearances
An agency head has the discretion to require a character clearance as a condition of engagement of an ongoing or non-ongoing employee under section 22(6) of the PS Act.
Character clearances enable an agency to ensure that a prospective employee is a suitable person to be engaged as an APS employee, or for specific duties. Character clearances may be particularly appropriate for non-ongoing employees in situation where the employees will be responsible for the handling of public money, holding positions of trust, or with access to sensitive information.
This requirement would normally be mentioned in the Gazette notification of the employment opportunity and/or in supporting selection documentation. Consistent with the Information Privacy Principles, agencies should advise prospective employees of the agency's usual practices regarding character checking.
Again, it is desirable to complete any required checks before a prospective employee is formally engaged. This can be done by sending the prospective employee any necessary consent forms and requiring them to be returned promptly to enable the required checks to be completed so that the engagement can proceed.
However, an agency head may consider it appropriate to engage a person subject to them satisfying the agency head of their suitability following a police check and other character checks. If so, an appropriately drafted condition of engagement should be provided in writing to the prospective employee before engagement. The condition should state the requirement to obtain a character clearance, and, if appropriate, specify a period within which the clearance must be obtained. Any condition should be drafted so as to enable the agency to terminate the person's employment at an earlier date if a clearance is refused or if it becomes clear that a satisfactory clearance will not be obtained.
It is often preferable to advise the prospective employee what 'test' they have to meet, for example, that the agency head needs to be satisfied that they are a fit and proper person for engagement as an APS employee or to perform the specific duties. Agencies should be aware, however, that there is no obligation upon a prospective employee to draw attention to a matter which has a bearing on their suitability for engagement, unless they are explicitly asked about it, for example, during the selection process, any pre-employment checks, or the character clearance process. Section 4.6 of this booklet discusses some options for agencies to avoid the situation of a prospective employee making false or misleading statements in relation to their possible engagement in the agency.
The character clearance process is designed to enable the agency head to satisfy themselves that the person meets the requirements of the agency. The agency head can determine that checks should be made, for example, through a police records check with the Australian Federal Police, with any relevant professional licensing or registration board, and on previous employment in the same agency, another APS agency or other employer, to determine whether:
- the person has a criminal conviction or criminal charges that are pending;
- an inquiry by a professional licensing or registration body is pending; and/or
- there have been any findings that the employee breached the APS Values or a misconduct investigation was pending at the time the person ceased employment.
Agencies may wish to ensure that any consent forms relating to the character clearance process are drafted widely enough to enable them to check not only with a prospective employee's human resources or personnel area, but also their previous manager.
A criminal conviction or pending charge does not necessarily justify excluding a person from APS employment. Nonetheless, an agency head may be concerned that a particular conviction reflects on the person's fitness to perform particular duties, or may affect the integrity and reputation of the APS or the occupational health and safety of other employees. Equally, where a charge is pending that has clear relevance to a person's suitability for APS engagement, it may not be possible for the agency head to be satisfied about the person's character.
APS agencies are obliged to comply with the requirements of the 'Commonwealth Spent Convictions Scheme' under Part VIIC of the Crimes Act 1914. It should be noted that refusing engagement or terminating employment on the basis of a criminal record that is not relevant to the proposed employment might present a basis for a complaint under the Human Rights and Equal Opportunities Commission Act 1986.
Failure to obtain a required character clearance can result in termination of employment on the ground specified in section 29(3)(f). (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).
4.4 Health clearances
Section 22(6) of the PS Act enables agency heads to impose a health clearance condition on the engagement of ongoing or non-ongoing employees.
One purpose of a health clearance is to satisfy the agency head that the employee has the physical and mental capacity to perform their duties. Other purposes may be to find out any information relevant to meeting the employer's duty of care under occupational health and safety legislation and to identify any reasonable adjustments that are needed to the workplace environment of a person with a health-related disability. (See section 4.5 of this booklet for a further discussion of reasonable adjustment). Where an employee is engaged subject to a health clearance condition, PS Regulation 3.1 provides a specific power for an agency head to direct an employee to undergo a medical assessment by a registered medical practitioner of the employee's fitness for duty.
It is up to the agency head to decide what evidence they require in order to be satisfied that an employee is fit for duty. The agency head might require a prospective employee to provide a declaration of their health status in the form required by the Agency, or may require the employee to undertake a medical examination or some other form of expert assessment (such as eyesight testing) before commencing employment.
While it is desirable to complete any checks before a prospective employee commences employment, an agency head may consider it appropriate to engage a person subject to the person satisfying the agency head as to their suitability following an appropriate medical examination.
Factors that may make a medical or other expert assessment desirable include practical physical or psychological requirements for the job, and occupational health and safety considerations or issues relating to the employer's duty of care. If a person has a pre-existing condition, they are obliged to disclose it if asked, so that their fitness to perform the related duties can be investigated and confirmed. It is also necessary so that the agency can properly assess its liability for potential aggravated injury. In cases of uncertainty (eg where a person is recovering from a serious medical condition) an agency may want to include, in the framing of a health clearance condition, an on the job assessment of whether the employee can meet the full range of the inherent requirements of the duties to be performed.
These issues need to be addressed in the wording of the condition of engagement which needs to be fully advised in writing to the prospective employee before engagement. (See the appendixes of the Recruitment and Related Issues booklets relating to notices of engagement).
Failure to obtain a required health clearance can result in termination of employment on the ground specified in section 29(3)(f). (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).
Medical information is one of the most sensitive categories of personal information. It is important that agencies impose high standards of physical security and strict limitations on access to and use of personal medical information, in order to prevent possible breaches of the Information Privacy Principles (IPPs).
4.5 Reasonable adjustment
When requiring and conducting health clearances, agencies should have regard to their obligations under disability discrimination legislation and the principle of reasonable adjustment.
It is unlawful under the Disability Discrimination Act 1992 (DD Act) for an employer to discriminate against an employee or prospective employee on the ground of their disability. In addition, the APS Values require a workplace free from discrimination, where decisions are based on merit and where diversity is recognised and utilised.
The DD Act requires agencies to implement an action plan to make sure people with a disability have, among other things, equal access to and opportunities for employment. For further information see the Commonwealth Disability Strategy at http://www.facs.gov.au/disability/cds/cds/action1.htm.
For some people with a disability, a barrier to equal opportunity may be a feature of the work environment which could readily be altered. Making changes to ensure equal opportunity for people with a disability is commonly referred to as 'reasonable adjustment'. While this term is not contained in the DD Act, it is implicit in provisions such as section 6, which requires the removal of unreasonable requirements which disadvantage people with a disability.
If a person with a disability is the best person for the duties, then the agency must make workplace changes if the person needs them in order to perform the essential requirements of the duties. Examples include modifying work premises or equipment, or changes to job design, work schedules or other work practices. However, the DD Act does not require adjustments which involve changing the inherent requirements of a job, or which would impose an unjustifiable hardship on the employer.
More detailed guidance can be found at http://www.hreoc.gov.au/disability_rights.
4.6 Imposing other conditions of engagement
Section 22(7) of the PS Act allows an agency head to impose conditions on an employee's engagement other than those conditions specifically mentioned in section 22(6) and discussed above. The imposition of any such conditions must accord with merit-based decision-making and the other APS Values.
For example, an agency may wish to impose as a condition of engagement the satisfactory participation in and completion of an entry-level training program. Such a program may include a Graduate APS program, or a traineeship or apprenticeship which includes a defined level over a specified period of time, and an agreed level of competence following completion.
Another example, is the imposition of a condition of engagement that the employee did not provide false or misleading information in connection with their engagement. It may be appropriate that such a condition has a similar time-frame to the employee's period of probation (if there is one), enabling the agency head to determine the person's appropriateness for the employment opportunity in a reasonable period of time, taking into account all relevant considerations.
Agencies should be aware that any actions relating to the employee's employment that rely on this condition will need supporting evidence: if an agency chose to terminate an employee's employment for breach of such a condition, but could not show that the employee deliberately misled them, then the termination may be found to be harsh.
Other options available to agencies include deciding against the imposition of a time limit, or imposing a time limit for a specified period (not necessarily linked to the period of probation). This would enable the agency head to retain the ability to terminate the person's employment on the ground specified in section 29(3)(f) if it was found at a later stage that the person provided false information during their recruitment. (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).
However, agencies should bear in mind that the Australian Industrial Relations Commission could have regard to the period between engagement and any action to dismiss a person based on a breach of the condition in considering whether the dismissal was harsh, unjust or unreasonable. It should also be noted that reliance on such a condition as a basis for termination of employment may be considered to be less 'fair' over time.
Agencies are best placed to determine the most appropriate use of such a condition, taking account of to their operational requirements and the legislative framework. As with other conditions of engagement imposed under section 22(6) of the PS Act, an appropriately drafted condition of engagement should be advised in writing to the prospective employee before engagement.
Agencies may also consider the alternative of requiring new employees to sign a declaration, shortly after they are engaged, to the effect that all of the statements they made in the course of their recruitment engagement are true. In this context, agencies may also wish to advise prospective employees that the Criminal Code Act 1995 creates offences relating to the provision of false information or documents.
