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Non-ongoing APS employment

Employees in the Australian Public Service (APS) are engaged as either ongoing employees or non-ongoing (temporary) employees. The usual basis for engagement in the APS is as an ongoing employee (subsection 22(3) of the Public Service Act 1999 (the Act)).

Non-ongoing employees may be engaged for:

a specified term (para 22(2)(b) of the Act), or
for the duration of a specified task (para 22(2)(b) of the Act), or
for duties that are irregular or intermittent (para 22(2)(c) of the Act.)

There are different requirements to be met depending on whether the engagement is for 12 months or less, or for more than 12 months.

Conditions of employment

An agency may choose to impose one or more conditions of engagement on a non-ongoing APS employee (see subsection 22(6) of the Act). These include:

probation
citizenship
formal qualifications
security and character clearances
health clearances.

Specified term

Regulation 3.4 of the Public Service Regulations 1999 (the Regulations) provides that a person may be engaged as an SES employee for a specified term not exceeding five years. If the person has been engaged for less than five years, the engagement may be extended provided the total term does not exceed five years.

Regulation 3.5 provides that a person may be engaged as a non-SES employee for a specified term not exceeding 18 months in the following circumstances:

to enable the agency to meet a temporary increase in the workload of the agency, or of a component of the agency, that the agency head does not expect to continue
the agency has a temporary demand for employees with particular skills (provided ongoing APS employees in the agency with the skills required to undertake duties in relation to the task have been given the opportunity to express interest in, and be considered for, performance of the duties)
to replace an ongoing APS employee who is on authorised leave
to replace an ongoing APS employee temporarily assigned to other duties
to replace an ongoing APS employee who moves temporarily to another agency.

The engagement can be extended in certain circumstances provided the total term does not exceed three years—these circumstances are outlined in Regulation 3.6.

If a person is recruited pending the engagement of an ongoing employee, the maximum term is six months. If a person was offered an ongoing engagement but prefers to be engaged for a specified term, the maximum term is three years.

Specified task

Sub regulation 3.5(3) provides that a person may be engaged as a non-SES employee for the duration of a specified task if:

the agency head can reasonably estimate the duration of the task at the time of engagement
at that time, the agency head reasonably considers that the services of the person are unlikely to be required after completion of the task, and
ongoing APS employees in the agency with the skills required to undertake duties in relation to the task are given the opportunity to express interest in performing those duties, and are considered for performance of the duties.

There are no Regulations or Commissioner’s Directions applying to the engagement of an SES employee for a specified task. It would, however, be reasonable to consider the three points above.

There are no time constraints for specified task engagements—they can go beyond the three or five year limits that apply to specified term employment.

Engagement of more than 12 months

A competitive merit selection process (following gazettal of an employment opportunity) must be conducted before an employment opportunity can be filled by the engagement of a non-ongoing APS employee for a specified term of more than 12 months or for the duration of a specified task that is reasonably estimated to take more than 12 months. In accordance with section 10(2) of the Act, this requires that:

an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process; and
the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required for the duties; and
the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and
the assessment is the primary consideration in making the decision.

Clause 4.3 of the Public Service Commissioner’s Directions 1999 (the Directions) requires that the employment opportunity (or similar employment opportunity in the agency) must have been notified in the APS Employment Gazette during the period of 12 months before the decision to engage the person is made. The employment opportunity must have been open to all eligible members of the community, whether or not they were APS employees.

Clause 2.3 of the Commissioner’s Directions requires the agency head to put in place measures ensuring that the selection process is transparent and applied fairly in relation to each eligible applicant and that information about the process is readily available to applicants.

In the case of SES engagements, the opportunity must have been advertised externally as well as in the APS Employment Gazette as open to all eligible members of the community. A representative of the Public Service Commissioner must have participated in the selection process and certified that the process complied with the legislative framework, and the Commissioner must endorse the representative’s certification.

As a competitive selection process and gazettal were required for the initial engagement, no further merit process is needed to extend the engagement to the limits allowed in Regulation 3.6.

Engagement of 12 months or less

A competitive merit selection process must be conducted before a person can be engaged as a non-ongoing APS employee for a specified term or specified task for a period of up to 12 months. Gazettal of such an employment opportunity is not required.

Subsection 10(2) of the Act requires that:

an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process; and
the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required for the duties; and
the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and
the assessment is the primary consideration in making the decision.

Clause 2.14 of the Commissioner’s Directions requires the agency head to put in place measures ensuring that, taking into account agency goals, resources and skills requirements, employment opportunities are brought to the notice of the community in a way that gives eligible members of the community a reasonable opportunity to apply for them.

There is no requirement to notify the employment opportunity in the APS Employment Gazette or on the agency’s website, nor to establish a temporary employment register or advertise a register in the campaign section of APSjobs. However, these are considered good practices, supporting the APS Value about reasonable opportunity to apply for employment, and providing the competitive selection process required by subsection 10(2) of the Act.

Agencies might also wish to consider using the Ready Now temporary employment register facility on the APSjobs website which is specifically aimed at former APS employees.

Clause 2.3 of the Commissioner’s Directions requires each agency head to put in place measures ensuring that the selection process is transparent and applied fairly in relation to each eligible applicant and that information about the process is readily available to applicants.

Agencies will need to develop selection policies that encompass a competitive assessment of candidates, such as a comparison of candidates on a temporary employment register or those referred by a recruitment agency.

The engagement can be extended for a total term of more than 12 months only where the initial employment opportunity had been notified in the APS Employment Gazette.

If an agency head considers that the engagement of a person for the duration of a specified task or for a specified term is likely to go close to or beyond 12 months, it may be sensible to notify the employment opportunity in the APS Employment Gazette. Gazettal will allow the agency head to extend the engagement beyond 12 months, provided the existing employee was the preferred applicant.

Non-ongoing opportunities that may become ongoing

If there is a possibility that a non-ongoing employment opportunity may become ongoing within 12 months, it may be sensible to notify the employment opportunity in the APS Employment Gazette at the outset as one that may be filled on either an ongoing or non-ongoing basis. Care must be taken not to mislead potential candidates and to be clear that the opportunity is not an ongoing employment opportunity at the time it is filled.

If the employment opportunity subsequently becomes ongoing (or a similar ongoing vacancy arises), the agency head can decide to engage a person as an ongoing employee from an order of merit generated from such a notification. However, the decision to do so must be made within 12 months of the original notification in the APS Employment Gazette. The first offer of employment must be made to the person on the top of the order of merit, even if that person had already been engaged as a non-ongoing employee as a result of the selection exercise.

Engagement for irregular or intermittent duties

The types of duties covered by this category of employment include:

one-off short term tasks/duties that do not fit within either the specified term or duration of a specified task categories
circumstances when duties need to be performed on an intermittent basis but where there is no regular pattern of work and part time work is therefore inappropriate
persons on call or on a relief roster.

A competitive merit selection process must be conducted before a person can be engaged as a non-ongoing APS employee for duties that are irregular or intermittent. Gazettal of an employment opportunity is not required.

Subsection 10(2) of the Act requires that:

an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process; and
the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required for the duties; and
the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and
the assessment is the primary consideration in making the decision.

There is no requirement to notify the employment opportunity in the APS Employment Gazette or on the agency’s website, nor to establish a temporary employment register or advertise a register in the campaign section of APSjobs. However, these are considered good practices, supporting the APS Value about reasonable opportunity to apply for employment, and providing the competitive selection process required by subsection 10(2) of the Act.

Agencies might also wish to consider using the Ready Now temporary employment register facility on the APSjobs website which is specifically aimed at former APS employees.

Engagement of non-ongoing employee as an ongoing employee in exceptional circumstances

Clause 4.2A of the Commissioner’s Directions provides that an agency head may ask the Public Service Commissioner in writing to authorise the engagement of a non-ongoing APS employee as an ongoing APS employee without making the opportunity to apply for the relevant employment open to other eligible members of the community.

The agency head must be satisfied that:

the person is suitable for the duties on the basis of the relationship between their work-related qualities and the work-related qualities genuinely required for the duties, and
the relevant duties are more appropriately undertaken by an ongoing APS employee.

The Commissioner may authorise the engagement if:

the proposed engagement is at the person’s former classification (or equivalent) as a non-ongoing APS employee
the Commissioner is satisfied that the APS Values relating to merit and a reasonable opportunity to eligible members of the community to apply were complied with in relation to the engagement of the person as a non‑ongoing APS employee and any extension of that engagement, and
the Commissioner is satisfied that exceptional circumstances exist to justify the engagement.

Commissioner’s Direction 4.2A should not be regarded as a means of circumventing normal merit recruitment requirements or correcting administrative errors.

Engagement of redundancy benefit recipients

Circular 2009/2 advises that, effective 1 March 2009, the provisions relating to the subsequent employment of a redundancy benefit recipient in the Australian Public Service (APS) have been amended to:

remove most non-APS Commonwealth employers from coverage by the arrangements; and
link the period of exclusion to the level of the redundancy benefit received.
Please refer to the Circular for more information.