Overview

Basis for non-ongoing employment

The usual basis for employment in the Australian Public Service (APS) is as an ongoing employee, in accordance with section 10A of the Public Service Act 1999 (PS Act). However, there may be circumstances where an individual is engaged on a non-ongoing or temporary basis for:

• a specified term
• the duration of a specified task or
• irregular or intermittent (casual) duties.

These circumstances are prescribed in the Public Service Regulations 1999 (the Regulations).

• Regulation 3.4 details Senior Executive Service (SES) non-ongoing vacancies.
• Regulation 3.5 addresses non-SES non-ongoing vacancies.

Additional requirements are prescribed in section 27 of the Australian Public Service Commissioner’s Directions 2022 (the Directions).

Further information on non-ongoing SES employment can be found on the Senior Executive Service (SES) Recruitment webpage.

Upholding merit

When making engagement or promotion decisions, merit-based selection processes are required. However, section 27 of the Directions enables merit-based selection processes to be modified for short-term vacancies.

Section 27(3) provides that short term vacancies should, as far as practicable, be brought to the notice of the community in a way that gives eligible members of the community a reasonable opportunity to apply. For example, agencies may consider using temporary employment registers (including those held by recruitment firms) to fill short term vacancies that may be time critical.

Section 27(4) requires that as a minimum the Agency Head must be satisfied that the person to be engaged has the work related qualities genuinely required to perform the relevant duties.

Further information on the merit principle can be found on the APS Merit Principle webpage.

Categories of non-ongoing employment

Engaging a non-SES employee for a specified term

An Agency Head may engage a non-SES employee for a specified term (time period) in accordance with sub regulation 3.5(3) of the Regulations.

For example, an Agency Head may engage a non-ongoing employee for a specified term where there is a temporary increase in workload, a temporary demand for employees with particular skills, or a need to undertake the duties of an ongoing APS employee who is on leave or on a temporary assignment.

The period of the engagement must be a reasonable estimate of the time period required to undertake the duties. Sub regulation 3.5(4) of the Regulations and the section 27 of the Directions provides limits on the period of engagement up to 3 years, including extensions.

Engaging a non-SES employee for a specified task

Sub regulation 3.5(2) of the Regulations, and subsection 27(1)(a) of the Directions provide that a person may be engaged as a non-SES employee for the duration of a specified task for a period of 18 months or less if, at the time of the engagement, the Agency Head is:

• able to reasonably estimate the duration of the task and
• satisfied that the services of the person are unlikely to be required after the task is complete.

If a specified task is reasonably estimated to be longer than 18 months, a merit-based selection process is required.

A non-ongoing engagement for a specified task do not have a specified end-date. Where a task may continue for an extended period, agencies should consider whether an ongoing engagement would be more appropriate.

Engaging a non-SES employee for duties that are irregular or intermittent

Subsection 22(2)(c) of the PS Act and subsection 27(1)(b) of the Directions provide that that an Agency Head may engage an employee for duties that are irregular or intermittent (commonly referred to as casual). An employee whose duties are irregular or intermittent is remunerated on an hourly basis, including payment of a casual loading.

Where an agency intends for an employee to be engaged on an irregular and intermittent basis, this should be communicated clearly at the time of engagement and in accordance with the definition of casual employment as established under the Fair Work Act (2009) (FW Act). For example, agencies must provide such employees with a Casual Employment Information Statement before, or as soon as possible after the employee commences.

Extending employment

Limitations on extension

Non-ongoing engagements for a specified term may be extended, subject to the limitations set out in section 27 of the Directions.

If the duties being performed by a non-ongoing employee are required beyond 18 months, employment can be extended by an Agency Head up to a total maximum period of 3 years in accordance with sub regulation 3.5(4)(c) of the Regulations and the requirements in subsection 27(2) of the Directions. Under subsection 27(2), an Agency Head must be satisfied that:

• there is a continuing need for the duties to be performed
• the person engaged is performing the duties satisfactorily or better
• it is still appropriate for the duties to be performed on a non‑ongoing basis and
• any extension will contribute to efficient and effective organisational performance.

In accordance with sub regulation 3.5(5), the Australian Public Service Commissioner (the Commissioner) may authorise the Agency Head to offer an extension beyond the 3 year limit, for no more than 12 months, where the Agency Head considers that the engagement is necessary for the agency's operations and the Commissioner is satisfied that special circumstances exist.

Extensions compared to new engagements

Where an employee is engaged on a non-ongoing basis to perform certain duties and, at the end of that term, they are engaged to perform recognisably different duties for another period, this is considered to be a new engagement.

Example

A non-ongoing employee has been engaged as an APS level 4 Executive Assistant for a term of 12 months. As the end of the contract term approaches, the employee is selected for a non-ongoing APS level 4 role undertaking claims processing at the same agency. The Agency Head is satisfied that the duties are recognisably different, and offers the employee a new non-ongoing contract for 12 months. This is considered to be a new engagement.

Notification and assessment requirements

Notification and assessment requirements may apply to non-ongoing vacancies, depending on the category and duration of the engagement. Table 1 is a summary of the notification and assessment requirements for non-ongoing vacancies.

* A competitive selection process must meet the requirements of merit

**Section 27 of the Directions requires a reasonable estimate of the term of employment. Where there is a reasonable expectation that the duties will be required beyond 18 months, the vacancy should be advertised in the PS Gazette and follow a competitive selection process

State or Territory employees

The engagement of State or Territory employees as non-ongoing APS employees for a specified term is provided for under regulation 3.5(6) of the Regulations where the individual is:

• an employee of a State or Territory, or an authority of a State or Territory and
• the Agency Head has entered into an agreement with a State or Territory or an authority of a State or Territory, to engage the person as a non‑ongoing employee for a specified term.

The period of engagement is decided by the Agency Head. Employment in these circumstances is not subject to the time limits for specified term employment or the requirements for advertising and selection outlined in Table 1. There is no mechanism for an extension of the period chosen by the Agency Head in these circumstances.

Other circumstances

Non-ongoing vacancies that may become ongoing

Where there is a reasonable possibility that a non-ongoing vacancy will become ongoing in the future, agencies may advertise the vacancy as both ongoing and non-ongoing with the intention to initially fill it on a non-ongoing basis. Agencies should take reasonable steps to ensure that candidates understand that the opportunity is initially for a non-ongoing engagement.

Engaging an ongoing employee as non-ongoing

Section 29 of the Directions allow an Agency Head to engage an ongoing APS employee as a non-ongoing employee in certain circumstances. For example, these engagements may be used to assist with transition to retirement and facilitate corporate knowledge transfer.

Engaging a non-ongoing employee as ongoing in exceptional circumstances

Section 30 of the Directions provides that an Agency Head may request authorisation from the Commissioner to engage a non-ongoing employee as an ongoing employee. The Commissioner uses this authority only in the most exceptional circumstances.

Requests to the Commissioner should confirm that the Agency Head is satisfied that:

• the duties are more appropriately undertaken by an ongoing APS employee
• the person has the work-related qualities genuinely required to perform the relevant duties
• the engagement is at the same classification (or equivalent) as the non-ongoing APS employee
• the original engagement of the non-ongoing APS employee, or an extension of this engagement, complied with the requirements of the Directions, Subdivision B and
• the engagement is necessary for the agency’s operations.

Section 30 of the Directions should not be regarded as a means of circumventing advertising and undertaking selection processes or correcting administrative errors.

Further Information

HR practitioners seeking more information on non-ongoing (temporary) employment can contact the Employment Policy team via employmentpolicy@apsc.gov.au or call the advice line on (02) 6202 3857.