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Last updated: 17 June 1997
Appointment and probation - The Essentials No. 5
Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.
Foreword
Appointment and Probation continues our Essentials series. This series is intended to advise managers in a clear and straightforward way about the minimum standards they are required to meet in achieving their objectives. This booklet contains what you must do to satisfy the requirements of the Public Service Act 1922 in relation to appointment and probation.
Recruitment and Selection, number 2 in this series, sets out the essential requirements for obtaining the right people to work in your organisation. Appointment and Probation advises how to get your new recruits on board, and provides the framework for assessing their suitability for long term employment in your organisation and the APS.
Probation is often seen as a routine administrative exercise of ensuring that the right forms are filled in at the right time. It should not be. It is a dynamic part of people managementindeed, probation is the first step in managing the performance of people in the APS.
The formal framework set out in this publication is only a small part of what must be an integrated and strategic approach to people management in your organisation.
Further information and guidance can be obtained from your Human Resource area or from the Commission's Helpline (02) 6202 3859.
Dr Peter Shergold
Public Service Commissioner
May 1997
Introduction
The APS has undergone significant reform. Many departments have downsized. The emphasis on recruitment may not be as great as it was. However, in such an environment it is even more important to remember how valuable your new recruits are.
The investment that is made in these people-from trainees to graduates to Senior Officers-is considerable, and it is important that efficient and effective arrangements are put in place to integrate them.
It is important, therefore, that you select and appoint the most suitable person for the job; this is also a fundamental principle of the formal framework. But it is equally important to ensure that members of the Australian community have a reasonable opportunity to apply for that appointment. This is usually taken care of by advertisement in the press or by participating in the APS-wide arrangements for base grade recruitment.
Following appointment, probation is essentially about performance management. It is about
- integrating your new staff into the department;
- keeping your good recruits (this is often forgotten);
- developing strategies for managing marginal performers; and
- making decisions about those recruits not suited to the work in the department.
Probation provides the first real opportunity to assess a person's demonstrated on-the-job suitability for employment in the APS and is critical in ensuring that you have selected the most suitable person for the job and the department.
This publication brings together appointment and probation in the one document and presents the formal framework central to both. It refers only to the appointment and probation of nonSenior Executive Service staff.
This is the essential reference document for line managers and should be used alongside Recruitment and Selection (number 2 in this series). Probation Principles, Guidelines and Good Practice (PSMPC, February 1995), remains a useful resource document on probation and will continue to have particular relevance for human resource practitioners.
Any reference to
APS' means the Australian Public Service.
The Act' means the Public Service Act 1922
Department' means a department or agency staffed under the Public Service Act 1922
GECA' means APS General Employment Conditions Award 1995.
Secretary' refers to a person performing the duties of an office, the holder of which has the powers of a Secretary or his/her delegate. It also refers to those situations where the Secretary (and his/her delegate) exercises a power delegated by the Public Service Commissioner.
WR Act' refers to the Workplace Relations Act 1996.
The formal framework
The Public Service Act 1922 (the Act) contains the general power to appoint persons to the Australian Public Service (APS) (principally sections 33, 34, 42) and sets out the probationary requirements for persons appointed to the APS (section 47).
Appointment |
|
| A Secretary may appoint a person to the APS. | section 42 |
| However, a Secretary does not have the power to appoint a person who has accepted voluntary retrenchment from the Commonwealth within the preceding 12 months. | PSMPC Circular 1992/18, 23/12/92 |
| Selection for appointment is based on merit. | section 33 |
| All persons who are eligible for appointment to the APS are to have, as far as is practicable, a reasonable opportunity to apply for appointment. | section 33(1)(a) |
The appointment is to be made on the basis of an assessment of the relative
suitability of the applicants for the appointment, having regard to:
|
section 33(1)(b) |
Appointments are to be made without:
|
section 33(2),(3) |
| The Public Service Regulations may allow for programs to encourage the appointment of women or persons in designated groups to the Service, for example, the Graduate Administrative Assistant (Aboriginal Services) program, the Administrative Service Officer (Aboriginal Services) Class 1 program, and the Intellectual Disability Access Program. | section 33(4), PS Regulation 71B |
Notification of certain appointment matters |
|
The Public Service Commissioner has determined a number of matters regarding appointment, including qualifications, eligibility, salary advancement and starting salaries and these are included in Australian Public Service Employment Information: Entry and Career Path Requirements (PSMPC, 1994). More recent determinations and notifications (for example, regarding the Trainee Administrative Service Officer scheme, and Graduate Administrative Assistant program) are included in the Commonwealth Gazette and in Public Service and Merit Protection Commission circulars. |
section 33A |
Age |
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| The minimum age for employment is specified in relevant State or Territory legislation. PS Regulation 71 also imposes certain age requirements on agencies for specific classifications. The person must also be under the age of 65, although this is currently under review. | section 76V |
Fit and proper person |
|
The Act provides that a person is not eligible for appointment to the APS unless the Secretary is satisfied that the person is a fit and proper person. The fit and proper assessment involves the checking, where appropriate, of police records, employment history and employment references. |
section 34 |
Security assessment |
|
| Procedures for security assessment are provided in the Protective Security
Manual, issued by the Attorney-General's Department.
Designated Security Assessment Positions or Positions of Trust require higher standards of conduct, so it is possible for an applicant to be considered fit and proper for appointment to the Service yet not meet the more rigorous security assessment standards of the designated position. |
|
Salary on appointment |
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| Normally, the minimum salary for a particular classification is appropriate for an appointee. However, Secretaries may determine a higher salary point, within the range, if warranted. Such salary negotiations should be agreed to before appointment and be reflected in the instrument of appointment. | GECA cl.14 |
Lapsing of appointment |
|
| The Attorney-General's Department has advised that an appointment may lapse
where a person does not commence duty within a specified period from the date on which the
appointment instrument is made.
This occurs where the appointment is expressed to take effect on the date on which the person commences duty, and the appointment instrument specifies a period in which the appointment should be taken up. |
|
Returned soldiers |
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| Section 47A sets out special provisions relating to the appointment of returned soldiers. | section 47A |
Appointment of continuing employees |
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| Secretaries may appoint certain classes of continuing employees under section 42A of the Act. | section 42A |
Re-appointment |
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| Secretaries may, under section 47B of the Act, re-appoint officers who have left the service. Unsuccessful election candidates may also be re-appointed under the terms of section 47C. | section 47B, 47C |
Restrictions on appointment |
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| A person who has accepted voluntary retrenchment from the APS is not eligible for appointment to the APS within the 12 month period following the date of his/her retirement from the APS. | section 33A notification, 22 May 1996 |
| A person whose probationary appointment has been terminated is not eligible for appointment to the Service within 12 months of dismissal, unless the Secretary determines otherwise. | section 47(12) |
PROBATION |
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| The purpose of the probationary period is to allow a manager to judge a probationer's suitability for employment in the APS. The probationary period enables a manager to assess a probationer's conduct, work performance, and health and physical fitness, while at the same time allowing recruits the opportunity to decide whether the APS is the right career for them. | |
Responsibilities |
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| Managers should ensure that probationers are fully aware of their responsibilities
and rights, their status as probationers, and the work and standards expected of them.
All probationers should be made aware of the provisions of the Act and Public Service Regulations, particularly Regulations 7, 8, 8A, 8B, 35 and 37 which impose certain duties and obligations on staff and managers. All probationers should also be made aware of the Guidelines on Official Conduct of Commonwealth Public Servants and of any department-specific guidelines or codes of conduct. Probationers should also be made aware of their responsibilities and rights under occupational health and safety legislation, and equal employment opportunity and discrimination legislation. |
PS Regulations 7, 8, 8A, 8B, 35, 37 |
| Status of the probationer
Probationers generally have the same conditions of service as a person whose appointment has been confirmed. Probationers are not covered by the re-deployment and retirement provisions of the Act (section 76S to 76Z), nor by the re-deployment, retirement and redundancy provisions of GECA. Probationers are covered by the discipline and forfeiture of office provisions (Division 6 of Part III of the Act). However, these matters will usually be more appropriately dealt with under the probationary procedures (see Termination of employment'). Probationers are able to apply for promotion and transfer to other positions in the APS during the probationary period. Probationers substantively transferred or promoted should be assessed for probationary purposes against their new position, taking into account any probationary assessments already completed. |
|
Length of the probationary period |
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| Secretaries may confirm or terminate a probationary appointment at any stage from the date of appointment. | section 47(3), (4),(5) |
| A decision to confirm or terminate the probationary appointment should be made
within 12 months of appointment, or as soon as practicable.
Best practice indicates that 6 months is generally a reasonable period in which to assess whether a probationer's conduct, work performance and health and physical fitness meet the required standards. |
section 47(6) |
| An appointment not confirmed or terminated within two years will be automatically confirmed, except where the person is not an Australian citizen. Periods of leave do not extend this time frame. | section 47(7) |
| These probationary limitations may be extended where a person occupies a training office, where the course of training is at least 12 months. | section 47(8), 47(13), 53A |
Assessment of conduct and work performance |
|
| Probation is essentially about performance management.
Evidence of regular monitoring and assessment of a probationer's conduct and work performance is essential if valid and informed decisions are to be made about confirming or terminating appointments. Regular feedback should be provided. Where poor performance is identified, prompt action should be taken to address this. Where a person's employment is terminated, the Workplace Relations Act 1996 allows, inter alia, for consideration to be given to whether the employee was provided with an opportunity to respond to any reasons related to their capacity or conduct, and whether they have been warned about any unsatisfactory performance. |
|
Citizenship |
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| A probationary appointment cannot be confirmed where the person is not an Australian citizen, except in accordance with arrangements approved by Government. These are set out in Appendix 1. | |
Health and physical fitness |
|
| A probationary appointment cannot be confirmed unless the person has undergone
a medical examination and the Secretary is satisfied as to the person's health and physical
fitness. This assessment may be made prior to appointment or during probation.
In undertaking the medical examination, people will be assessed as to whether they are able to perform the duties of the position to which they are appointed, within the time frame of the probationary period, taking into account the principle of reasonable adjustment. |
|
Termination of employment |
|
A Secretary may terminate a probationary appointment on any of the following
grounds:
Where a Secretary decides that termination is warranted, the probationer must be notified of the decision, the reasons for it, and the date of effect of termination. A signed and dated instrument of termination must be issued. |
|
Workplace Relations Act 1996 |
|
Where a person's employment is terminated, the Workplace Relations Act 1996 allows for an application to be made to the Australian Industrial Relations Commission (AIRC)
on the following grounds
The AIRC will consider whether a fair go all round is accorded to both the employer and the employee. |
Part VIA, Division 3 |
The AIRC must also have regard to
The AIRC may order reinstatement, payment for remuneration lost, or payment-in-lieu where reinstatement is inappropriate. |
Section 170CG |
Probationers are excluded from the termination of employment provisions where
the period or maximum period of probation is determined in advance and
How this provision will affect probationers in the APS, given the terms of section 47 of the Public Service Act, is not clear at this stage. |
Workplace Relations Regulation 30B |
Other avenues of review |
|
| A probationer may lodge a grievance concerning the process leading to a termination decision and may apply to the Federal Court for a review of the decision, or seek reasons for the decision, under the Administrative Decisions (Judicial Review) Act 1977. | PS Regulation 82,83,84
AD(JR) Act section 5, 13 |
Appointment without probation |
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| A Secretary may appoint a person to the Service without probation.
A person who is not an Australian citizen cannot be appointed without probation, unless a waiver of citizenship has been approved by the relevant Minister. Appointment without probation is also subject to an assessment of health and physical fitness, although this requirement may be waived by the Secretary. |
section 42, 47(2) |
Privacy of appointment and probationer records |
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| Information obtained as part of the appointment process and during the probationary period (such as past employment history, medical reports, reports on conduct and work performance and feedback notes) is subject to the requirements of the Privacy Act 1988. | Privacy Act 1988,
Information Privacy Principles 1-11 |
| People with a disability | |
The Disability Discrimination Act 1992 makes it unlawful to discriminate
on the basis of disability, and places particular obligations upon employers. Discrimination
in employment is specifically prohibited, although it is not unlawful to discriminate, where
|
Disability Discrimination Act 1992, section 5
section 15 |
Frequently Asked Questions
How long should the probationary period be?
Except for the 12 month and 2 year limitations set in legislation there is no prescribed probationary period.
APS experience suggests that six months is long enough to make a decision about a probationer's suitability (see page 6). However, this period may be longer, to accommodate trainees, for example.
If the probationary period exceeds 12 months should I immediately confirm (or terminate) the probationer's appointment?
No. However, the legislation requires that a decision to confirm or terminate the appointment must be made as soon as practicable'.
As a supervisor of a probationer, am I required to complete three-monthly reports?
No. There is nothing in legislation that prescribes reporting arrangements. It is up to agencies and their managers to determine appropriate reporting arrangements and timeframes.
Where a six-month period of probation is envisaged, APS experience suggests that two-monthly reporting may be helpful. Where performance issues are identified, more regular feedback and assessment would allow a timely decision to be made on the probationer's suitability. It would also help identify more clearly work performance issues.
If a probationer is performing poorly, do I have to continue the probationary period?
No. If there is sufficient information to make a decision and the requirements of the Public Service Act 1922 and the Workplace Relations Act 1996 have been met, a decision can be made to terminate the appointment.
When a decision cannot be made, the probationary period may be continued to allow the probationer an opportunity to meet the performance standards. The period of time will depend on the circumstances, but should not continue indefinitely. It is essential that performance problems are identified and communicated to the probationer at an early stage.
How do I assess a probationer who is on higher duties?
This is not specified in legislation. The Public Service and Merit Protection Commission's view is that the standard and level against which a probationer's health and physical fitness and work performance should be assessed is their permanent position.
Can I use recently received information about a probationer's conduct in a past job to assess whether he/she is a fit and proper person?
Yes, under section 47(11)(c) of the Public Service Act 1922 But it must be pertinent to the position in which the person is employed. Under natural justice and privacy principles the person must be made aware of the information and have an opportunity to respond.
Am I required to transfer a probationer to another job if he/she is not performing?
No. While transfer to another area is an option for staff who are not performing, it may not always be practicable or appropriate depending, for example, on the size of the department or the particular duties for which the person was appointed.
How does the principle of reasonable adjustment' apply to probationers with disabilities?
To comply with the anti-discrimination provisions of the Public Service Act 1922 and the Disability Discrimination Act 1992, employers are expected, wherever possible and reasonable, to make physical and organisational changes to workplace design to enable probationers with a disability to have access to and perform in the jobs to which they have been appointed.
The extent to which reasonable adjustment can be achieved is a matter for judgement by the employer in individual cases, taking into account the requirements of the job and the needs and resources of the organisation. Changes to duties or even a transfer may be options but they are not mandatory.
A probationer who is still unable, after reasonable adjustment, to undertake the inherent requirements of the job may have his or her employment terminated. The grounds for termination would be unsatisfactory health and physical fitness.
Disability Standards for Employment are available from the Disability Discrimination Commissioner.
Appendix
Citizenship
The Act restricts the appointment of non-citizens. Persons who are not Australian citizens may be considered for appointment on probation where they are:
- permanent residents who have not yet satisfied the residential requirements for citizenship;
- permanent residents who have applied for, but have not yet been granted, citizenship; or
- successful applicants for a position advertised overseas who need a firm job offer before immigration/citizenship matters can be progressed.
The following arrangements relating to the appointment without probation or confirmation of appointment of non-citizens were approved by the Prime Minister in 1987:
A. If, at the time of considering the initial recommendation for appointment of a person who is not an Australian citizen, a Secretary considers that one or other of the following circumstances applies:
- an Australian citizenship requirement could give rise to particular difficulties, or is unduly restrictive, in certain areas of the Service; or
- a special case exists where an Australian citizenship requirement could mean the loss of a particularly valuable recruit, and the Secretary deems it necessary, subsequently, to confirm the probationary appointment, or to appoint the person without probation, OR
B. there have been major difficulties in recruiting to a particular office or class of offices and the Secretary considers that the citizenship requirements would unduly restrict the field of applicants, either in Australia or overseas, the Secretary may make a recommendation to the Cabinet Minister responsible for the functions of the Department, seeking agreement to allow, under section 47, the appointment without probation or confirmation of appointment, as the case may be, of a person who is not an Australian citizen.
Each case is to be considered on its merits taking account of the following:
- the fact that Australian citizenship is a normal requirement for appointment;
- the need to recruit to the office or class of offices within the current labour market;
- the merits of applicants, if any, who are Australian citizens;
- whether, all the above factors having been considered, fixed term employment of the non-Australian citizen would be more appropriate than permanent appointment.
References
Recruitment and Selection, The Essentials, No. 2, PSMPC, September 1996.
Probation-Principles, Guidelines and Good Practice, PSMPC, February, 1995
Australian Public Service Employment Information: Entry and Career Path Requirements, PSMPC, 1994
PSMPC Circulars
- 1990/4 Delegation of powers of reappointment and re-engagement- staff who resign to contest elections
- 1990/10 Re-appointment of invalidity pensioners restored to health
- 1990/21 Delegation of powers under section 47B of the Public Service Act
- 1992/7 Appointment under section 42A of the Public Service Act
- 1993/4 Resignation to contest an election: impact of the High Court decision in Sykes vs. Cleary and others
- 1993/18 Health and physical fitness requirements for appointment/confirmation of appointment in the APS
- 1994/35 Lapsing of an appointment under section 42 of the Public Service Act 1922
- 1995/31 Entry level training implementation in the APSPublic Administration Traineeship
- 1995/34 New arrangements for entry level vocational training in the APS, the Graduate Administrative Assistant (GAA) and Public Administrative Traineeship (PAT) programs
- 1996/9 New arrangements for entry level vocational training in the APS/Graduate Administrative Assistant
- 1996/13 Restrictions on the appointment and temporary employment of people who have accepted voluntary retrenchment from the APS. 23 May 1996 27 August 1996 advice to COMNET: Remaking of Public Service Commissioner Delegations.
- 1996/18 Graduate Administrative Assistant program
- 1997/3 Graduate Administrative Assistant Program
