Ongoing employment – Recruitment and related issues

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Frequently Asked Questions

19. What limitations are there on assigning different duties to an employee?

Section 25 allows an Agency Head to determine duties of an employee (and the location at which those duties are performed) from time to time on either an ongoing or temporary basis. Although this power appears to give an Agency Head an unfettered right to assign new duties to an ongoing employee or change the place where duties are performed, actions take under the Act must be consistent with the formal framework set out in Chapter 1 of this booklet. In particular:

an Agency Head cannot reduce an employee's classification without written consent except in the circumstances specified in section 23(4). These circumstances include breach by the employee of the Code of Conduct and where an employee is excess, loses an essential qualification, or is underperforming or unable to perform duties at the higher classification
APS Value (b) requires that employment decisions be based on merit and section 10(2), together with Direction 2.3(1)(a), requires that merit for promotion and engagement decisions involve a fair and transparent competitive selection process that assesses the relative suitability of applicants for the duties
APS Value (d) requires the APS to have the highest ethical standards
APS Value (i) requires the establishment of workplace relations that value communication, consultation, co-operation and input from employees on matters that affect their workplace
APS Value (j) requires the APS to provide a fair, flexible safe and rewarding workplace
Direction 2.3(1)(b) requires employment decisions other than those for promotion and engagement to be based on an assessment of the employee's work-related qualities and the work-related qualities required for efficient and effective performance
Direction 2.4 requires, among other things, that measures be in place directed to ensuring that APS employees are helped to balance their work, family and other caring responsibilities effectively
Direction 2.11 requires that measures be in place directed at ensuring that employment and workplace arrangements take appropriate account of APS employees who are seeking to balance individual needs and the achievement of organisational goals, and also take account of the agency's need to comply with Commonwealth occupational health and safety legislation.
there must be compliance with anti-discrimination legislation.
there may be relevant provisions included in a Certified Agreement or AWA eg relating to relocation.

Agencies should also note that assigning new duties to an employee should not be seen as a substitute for taking other more appropriate action e.g. an agency should not assign new duties:

to a person who has been the victim of harassment, without addressing the harassment itself
as a means to staff undesirable areas without addressing the underlying causes of discontent, lack of interest, poor management etc.

If a proposed change of duties or relocation has not been sought by the employee, to ensure compliance with the APS Values it is advisable that the employee be consulted before a final decision is made. An assignment of different duties and/or relocation may raise significant issues for the employee concerned including impact on family responsibilities, OHS considerations (e.g. a person recovering from an injury) or a potential conflict of interest. These issues may significantly affect their capacity, availability and enthusiasm to accept the new assignment or to perform the duties effectively.

The extent of consultation and the degree to which an agency takes into account the needs of the employee must be balanced against the operational efficiency of the agency. In the end, while Agency Head is required to act fairly and have regard to individual needs, the Agency Head has the prerogative to make the final decision regarding any assignment of duties, with limited review rights for the employee.

The prescribed circumstances where an employee assigned duties under section 25 has a right of review are set out in Schedule 1, item 10 of the Regulations. These are if the assignment of duties involves:

a reduction in classification
a relocation to another place
asking an employee to perform duties that they cannot be reasonably be expected to perform.

The Australian Industrial Relations Commission (AIRC)¹ has effectively upheld an Agency Head's right to redeploy staff according to operational and financial considerations and has acknowledged that while personal responsibilities are important matters to be considered by employers, they are not the only matters that need to be considered. In this case the AIRC found that the employer had considered competing interests and provided a balance and that the employee was unreasonable in refusing what was a fair and reasonable final offer by management. The subsequent termination of the employee for failing to attend for duty in a new location as directed was considered reasonable by the AIRC in view of the circumstances of the case.

PR948530 AS Webb and Australian Customs Service 28 June 2004, Commissioner Bacon.