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Conditions of engagement

1. General principles

Agencies should develop policies on conditions of engagement consistent with the legislative framework and to meet individual agency business needs.

Conditions imposed as a condition of engagement should be relevant to the duties an employee will be expected to perform or the operating environment of the agency.  Imposing a condition of engagement that is not related to the requirements of a job may be inconsistent with the APS Values and Employment Principles and—in  some cases—anti-discrimination laws. Potential employees must be notified of the conditions that will apply to their engagement.

It is good practice to include conditions in the relevant  job advertisement and other information relating to the selection process.

Where possible, an agency should have evidence that a condition of engagement has been met before an offer of engagement is made.

  • Where evidence  that a condition has been met has not been provided before engagement, an  agency may decide to employ the person, subject to the evidence being provided.
  • Where a condition is not met before engagement, an agency may decide to employ the person, subject to their meeting the condition.

It is good practice for an agency's letter of offer to  make clear the conditions that apply to the engagement, including:

  • details  of each condition and the evidence required
  • a timeframe by  which each condition must be met
  • that  employment can be ended by the agency if each condition is not met within the  specified timeframe.

While it may seem impractical to impose conditions where an engagement is for a short period of time, agencies should be mindful that  periods of employment can be extended in certain circumstances, and that a condition of engagement can only be  imposed at the time of engagement.

Any condition of  engagement is independent of any other condition. An employee's engagement  will continue to be conditional until each separate condition attached to that  engagement has been met.

The operation of a condition of engagement may affect—or  be affected by—industrial instruments setting terms and conditions of  employment. Any industrial instrument negotiated with an employee might note any  conditions of engagement that apply.

The handling of personal information in relation to a condition of engagement must be in accordance with the Privacy Act 1998. More information is available from the Office of the Australian Information Commissioner.

1.1 Assignment of other duties within an agency

A condition of  engagement will continue to apply if there is a change of duties, unless  the agency chooses to waive the condition because it is no longer relevant to the work being performed.  Once a  condition is waived, it cannot be imposed again as a condition of engagement and employment cannot be ended under 29(3)(f) of the PS Act if the condition is not met.

1.2 Movement to another agency

Where an employee moves to another APS agency, the gaining  agency may decide to waive a condition of  engagementfor example—in circumstances where the condition is not relevant  to the duties the employee will be expected to perform.

Alternatively, a condition  of engagement may continue to apply.

  • Whether  a condition of engagement can continue to apply when an employee moves to another agency depends upon the  nature of the condition and how it was originally framed. For example, whether  it related to the performance of specific duties, or whether it reflects a more  general requirement such as the need for Australian citizenship.
  • Where a  condition continues to apply, a person's employment may be ended by the new  agency if the condition is not met within the specified timeframe, under  subsection 29(3)(f) of the PS Act.

Where a condition  of engagement is to continue, the gaining agency is responsible for:

  • confirming  whether any condition of engagement applies (i.e. the condition has not been  met)
  • making  it clear to the employee—for example in the written agreement of transfer—that:
    • the condition is continuing
    • employment can be ended by the new agency if the  condition is not met within the specified timeframe.

A condition  of engagement cannot be imposed by the gaining agency if it was not  initially imposed by the agency that made the engagement.

2. Probation

More information on probation.

3. Citizenship

More information on citizenship.

4. Formal qualifications

A person may be required to hold formal qualifications as  a condition of engagement. Where possible, evidence of qualifications should be provided  before an offer of engagement is made.

An agency may decide to offer engagement subject to the  person providing evidence of a qualification within a specified period. This may  be in circumstances where—for example—the agency engages an undergraduate who  has satisfactorily completed all the requirements of a course and is waiting  for the degree to be conferred.

5. Security clearances

A person may be required to obtain a security clearance  as a condition of engagement. An agency head can determine what level of security  clearance is required. The level of security clearance should be consistent  with the Australian Government Protective Security Policy  Framework.

Where possible, a security clearance should  be completed before an offer of  engagement is made. However, an agency may decide to engage a person subject  to the person obtaining the necessary clearance within a specified period.

5.1 Security clearances and merit

Potential candidates should not be excluded from applying  for a vacancy in the APS on the basis that they do not hold a security  clearance.   

The APS Employment Principles provide that decisions relating to  engagement and promotion in the APS are based on merit. One element of merit is  that all eligible members of the community are given reasonable opportunity to  apply for a vacancy.

A member of the community is unable to  obtain a security clearance unless he or she is likely to be engaged in a role where  a clearance is required. He or she cannot reasonably be expected to hold a security  clearance before being selected for such  a role.

Agencies and their contracted employment  service providers should not exclude job applicants who do not hold a current  security clearance, where such applicants are willing to undergo a clearance  process.

Recruitment  and selection processes should not:

  • exclude potential candidates on the basis that they do  not hold a security clearance–or imply that this is the case
  • make holding a security clearance at the time of  application a real or implied advantage.

Also refer to Section 11.5 of the Personnel security guidelines, part of the Australian Government Protective Security Policy  Framework.

6. Character checks

A person may be required to satisfy character checks or  employment screening as a condition of  engagement.

Character checks may be required to confirm whether a  person is suitable to be engaged for a particular set of duties or in a  particular agency. For example, they may be relevant where an employee will be  responsible for handling public money, will have access to sensitive  information or will hold a position of trust, including working with vulnerable  people.

Where possible, a character check or  employment screening should be completed before an offer of engagement is made. However, an agency may decide to engage a  person subject to the person satisfying the necessary check within a  specified timeframe.

An agency can determine what checks are appropriate. For  example, checks can be made with the police, with professional licensing or  registration boards, and with previous APS or other employers. Checks may be  used to determine—for example—whether:

  • a  person has a criminal conviction or criminal charges that are pending
  • an  inquiry by a professional licensing or registration body is pending
  • there have  been any findings that the employee breached the APS Code of Conduct
  • a  misconduct investigation was incomplete when the person ceased employment.

Where possible, checks should be completed before an offer of engagement is made.  However, an agency may decide to engage a person subject to the person satisfying  the checks within a specified period.

Also refer to Section 7 of the Personnel security guidelines, 'Agency employment  screening' part of the Australian Government Protective Security Policy  Framework.

6.1 Criminal convictions

Refusing engagement on the basis of a criminal record  might present a basis for a complaint under the Australian Human Rights Commission Act 1986. More information is available from the  Australian Human Rights Commission at https://www.humanrights.gov.au/quick-guide/12003.

Where there are reasonable concerns that a conviction or  charge makes a person unsuitable to be employed, agencies should seek legal  advice.

6.2 Previous breach of the APS Code of Conduct

When considering whether previous action in relation to  the APS Code of Conduct affects a person's suitability for engagement, the following factors should be  considered:

  • the  nature of the breach (or suspected breach)
  • the  sanction imposed
  • how  long ago the breach or suspected breach occurred
  • the  nature of the duties being performed at the time
  • the  duties of the current employment opportunity
  • whether  this was a one-off action or part of a pattern of behaviour.

6.3 Providing accurate information

An employee may be found to have breached the APS Code of Conduct if  they provide false or misleading information or fail to disclose relevant  information in connection with their engagement in the APS (subsection 15(2A)  of the PS Act).

The Criminal Code Act 1995 creates offences relating to the provision of false information or documents.

7. Health clearances

A person may be required to satisfy certain requirements  in relation to health and fitness for duty as a condition of engagement.

7.1 Fitness for duty

An agency can determine what evidence is required to  assess whether a person is fit for duty. For example, a prospective employee may  be asked to

  • provide  a declaration of their health status, including disclosure of pre-existing  medical conditions
  • undertake  a medical examination
  • undergo  an expert medical assessment (such as eyesight testing).

An agency can also require an on–the–job assessment of whether the employee can perform the duties of the role.

Decisions in relation to the suitability or fitness of a person to perform a particular set of duties must take account of:

  • the APS Values and Employment Principles,  including that:
    • decisions relating to engagement are based on merit
    • the APS workplace is free from discrimination
  • other  employment legislation, including the Disability Discrimination Act 1992. It is unlawful for an employer to discriminate against an employee or prospective employee on the grounds of disability.

7.2 Health assessment

A health assessment may be required to:

  • satisfy  the agency that the employee is fit for duty
  • assist  the agency to meet its duty of care obligations as an employer, including
    • identifying measures to avoid aggravating an existing  condition or injury
    • applying any reasonable adjustments that  may be required.

Where a health assessment is required as a condition of engagement, where possible the  assessment should be completed before an offer of engagement is made.

However, an agency may decide to engage a person subject  to the person undergoing the assessment—and/or meeting the fitness for duty  requirement—within a specified timeframe.

Legislation

Public Service Act 1999

Subsections 22(6)

An agency head may impose conditions on the  engagement of an APS employee. These conditions  must be notified to the employee.

Conditions  may include—but are not limited to—matters dealing with

Subsection 29(3)(f)

An agency head may terminate the employment  of an APS employee for failing to meet a condition  of engagement imposed under subsection 22(6) of the PS Act.

Additional note

Subsection 22(6) of the PS Act can only be used to impose  conditions at the time a person is being engaged  in the APS. This subsection cannot be used to impose or vary conditions of  employment after engagement.

If a condition is not  imposed at the time of engagement,  then subsection 29(3)(f) of the  PS Act cannot be used by an agency to end employment if the condition is not met.