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Last updated: : 15 August 2005
Ongoing employment – Recruitment and related issues
Please note: This document is no longer current and is provided for reference purposes only.
Appendix D: Sample letter and Notice of Engagement for an ongoing APS employee
Preamble
The use of a separate letter and notice of engagement is a straightforward way of ensuring that important issues are addressed systematically during the engagement process. While there is no requirement for formal instruments of engagement under the Act, there are advantages in having a clear record of the engagement and of any conditions of engagement. For example, a letter and notice of engagement in the form suggested is documentary evidence if issues arise later about whether a probationary period was communicated to the employee prior to the engagement.
Agencies are urged to make it clear to prospective employees that any oral agreement or written indication of intent made about the future employment is conditional upon a formal notice of engagement being signed by the Agency Head (or delegate). This will help to avoid situations where a person is told 'you've got the job' but the delegate then chooses not to fill the employment opportunity.
An example of a letter offering engagement and a notice of engagement for an ongoing employee are set out below. The sample notice of engagement covers those things which it is legally essential that a delegate determine at the time of engagement. It provides for the Agency Head (or delegate) to exercise the power to engage under section 22 (and to impose conditions of engagement), to allocate an approved classification under the Classification Rules, to assign duties under section 25 of the Act and, if appropriate, to exercise the power under section 77 of the Act to nominate an employee to occupy a position.
It also gives an indication of the types of conditions of engagement which could be imposed under section 22(6) of the Act. Agencies will need to determine their own policies on what conditions of engagement they require to be met. In developing policies, agencies should refer to the booklets Conditions of Engagement and Probation and this booklet.
Any proposed conditions of engagement should be notified to the employee before engagement. The notice of engagement that is finally signed need only impose conditions of engagement under section 22(6) in relation to those matters on which the agency still remains to be satisfied. Some conditions may need to be satisfied before the engagement takes effect; others may operate for a specified period after engagement eg probation, or a condition relating to obtaining Australian citizenship within a specified time.
In particular, the employee should be notified of any condition relating to probation before engagement, along with the proposed period of probation, whether probation can be extended and, if so, the maximum duration. For more details see the booklet Probation.
The letter can cover a variety of matters. It can provide information on the proposed terms and conditions of employment as well as any agency policies that it is important that people be aware of before accepting employment in the agency. It can be used to ask for any information that the agency needs for pre-employment checking purposes and attach any forms that the prospective employee needs to complete and return. It can also ask the prospective employee to sign and return certain declarations (eg that he or she has not received a redundancy benefit in connection with a cessation of Commonwealth employment that occurred within the last 12 months.)
The sample letter and notice instruments represent only one example of how engagement documentation could be formatted. Agencies need to consider whether these are appropriate for their agency before adapting them for their use. One example of where the notice may need to be adapted is if some of the actions require the exercise of powers by different delegates.
Sample letter advising candidate of a proposed offer of engagement as an ongoing APS employee
You have been selected as the preferred candidate for engagement as an ongoing APS employee under s.22 of the Public Service Act 1999 with [name of agency].
Details of your proposed employment and the duties on which you will be initially engaged are set out in the attached proposed Notice of Engagement.
[It is important that all relevant parts of the Notice are completed to ensure these matters are dealt with at the time the prospective employee is engaged.]
You will not be engaged unless you indicate your continued interest in engagement and the delegate signs a formal Notice of Engagement. You will be notified when the delegate has signed the Notice of Engagement.
It is proposed that your employment will commence on [date] unless we notify you otherwise or another date is agreed with you. You will be expected to attend for duties on that date.
If you fail to attend for work on the agreed commencement date, your engagement will lapse. Even after the delegate signs the Notice of Engagement, it may be cancelled before it takes effect, for example, if it becomes clear that you have supplied false or misleading information in connection with your application for APS employment.
[The following paragraphs, relating to pre-employment checking and conditions of engagement are optional.]
Conditions of engagement
The Public Service Act enables an agency to impose conditions on an ongoing engagement. It is proposed that the following condition(s) be imposed on your engagement:
Probation:
Your proposed employment will be subject to a period of probation, in the terms set out in the draft Notice of Engagement. For more information on probation please refer to...[A copy of any agency policy on probation could be attached to the letter.]
Citizenship:
[Insert a statement of agency policy relating to citizenship eg 'In general, consistent with s. 22(8) of the Act, proof of Australian citizenship is required before engagement in this agency, although the Agency Head has the discretion to engage non-citizens in some circumstances.' Specify what evidence is needed and invite the prospective employee to contact the agency if they are not able to satisfy this requirement]
Formal qualifications:
[Specify whether evidence of possessing any formal qualifications must be produced before engagement. Invite the prospective employee to contact the agency if they are not able to satisfy this requirement eg if they have successfully completed the relevant course but are awaiting a ceremony in order for a degree to be conferred.]
Security and character clearances:
[Specify whether a character clearance and/or particular level of security clearance is needed and whether these must be obtained before the engagement takes effect or within a specified period after engagement.]
Health clearance:
[Insert any condition relating to health clearances and set out what checks are necessary in order to be satisfied the condition is met eg to complete a health declaration and/or to undertake a medical examination.
Agencies should have regard to their obligations under disability discrimination and occupational health and safety legislation. For example, they may wish to invite the prospective employee to draw attention to any condition that might require the agency to provide any special services or facilities in order for the employee to be able to carry out the inherent requirements of their duties, in accordance with the principle of reasonable adjustment. For more information on the principle of reasonable adjustment see the booklet Conditions of Engagement.]
Other conditions of engagement:
[For a discussion of other possible conditions of engagement that agencies may wish to consider imposing see the booklet Conditions of Engagement. In particular, it suggests that agencies may wish to impose a condition that new employees sign, after engagement, a declaration that they have not made any false or misleading statements in connection with their engagement. Another possible condition might be satisfactory participation in and successful completion of an entry-level training program such as the agency's Graduate APS program.]
Details of relevant conditions are set out in the attached proposed Notice of Engagement. If the agency has not been able to satisfy itself in relation to any of these requirements before engagement, an appropriately worded condition of engagement may be included in the Notice of Engagement and your engagement will be subject to fulfilment of that condition. If it becomes evident, at any time while such a condition of engagement is in operation, that you will not be able to satisfy the condition, your employment may be terminated.
Terms and conditions of employment
The terms and conditions of your employment will be as set out in [give details eg agency certified agreement, proposed AWA or section 24 determination]and those which apply generally to APS employees [include information on long service and maternity leave benefits, superannuation etc. Agencies may wish to provide more details eg enclose copies or give web links.]
The Public Service Act 1999 applies to your employment and you should familiarise yourself with the provisions of that Act, in particular, sections 10 (APS Values), 13 (The APS Code of Conduct), 25 (Assignment of duties), 29 (Termination of employment) and 30 (Retirement).
[Agencies may wish to include here reference to key Service-wide and agency policies and legislation governing behaviour and obligations of agency employees, such as privacy or secrecy provisions, obligations under the Crimes Act 1914 and any other legislation particularly relevant to the duties to be performed.]
Information Privacy Principles
[Agencies may wish to include a reference to what use the personal information provided by the prospective employee may be put and to whom it may be disclosed, and may wish to refer to Information Privacy Principle 2]
Action required
If you wish to be engaged as a ongoing APS employee and agree to the terms of your engagement as described in this letter and its attachments, please complete the details below [and the forms listed below] and return the originals to [insert contact details] by...[specify any deadline].
[Note: Forms etc may be attached for completion by the prospective employee eg superannuation forms, consents for character and police checks, health declarations, declarations in relation to the receipt of voluntary redundancy benefits within the previous 12 months etc]
[It may be desirable to add that the Criminal Code Act 1995 creates offences relating to the provision of false or misleading information or documents]
Should you have queries or wish to discuss any issues, please contact [insert details].
[Note: Agencies may wish to provide information on process should the candidate agree to the proposed engagement]
Yours sincerely
Prospective employee to complete, sign, date and return as notification of acceptance:
| Family name | |
| Given name(s) | |
| Date of Birth |
Signature:___________________________________________ date___/___/___
[Note: Engagement does not occur unless and until the Agency Head or an appropriate delegate signs a formal instrument of engagement under s 22 of the Act. Also, the final Notice of Engagement may in some cases differ from the attached draft eg if you are not able to provide proof of Australian citizenship, a further condition may be imposed and notified.]
Proposed Notice of Engagement
As delegate of the [Agency Head] under the Public Service Act 1999 (the Act), I:
- engage the person who is specified below as an ongoing APS employee under section 22 of the Act subject to the subsection 22(6) conditions set out below;
- allocate the classification specified below to that employee under the Public Service Classification Rules 2000; and
- assign the duties specified below to that employee under section 25 of the Act.
This Notice of Engagement will take effect on the commencement date specified below, provided the employee takes up duty on that day, or if another day is agreed, it will take effect on that other day.
[That other day should be recorded and attached to this notice]
Signed
[name]
Delegate of the [Agency Head]
Date
[Where the employee is to occupy a position under section 77 of the Public Service Act, the item below may also be completed]
As delegate of the [Agency Head] under subsection 77(2) of the Public Service Act 1999, I nominate the person who is specified below to occupy the position also specified below, from the date this Notice of Engagement takes effect.
Signed
[Name]
Delegate of the [Agency Head]
| Full name | |
| Category | Ongoing |
| Approved classification under the Classification Rules | |
| Agency classification (eg broadband) | |
| Duties | [Describe/as described in the attached duties statement/job specification] |
| Commencement Date | |
| Employment location on commencement | [Note: Physical location at commencement of duties] |
| Hours per week | [Note: Specific details of attendance required should be included here] |
| Local designation and/or position identifier; or Section 77 position number or other identifier, if applicable | [Note: complete either local designation or position identifier, if applicable, or both. If not applicable insert 'Not Applicable'] |
Probation condition [If a probation condition is included specify the duration1, whether the period can be extended, the maximum duration of probation, criteria for assessment and the standards of performance, capacity and conduct required. For more details see booklet Probation] |
[If not applicable remove or insert 'Not Applicable'] Your engagement is subject to a period of probation of [specify period]. This period can be extended up to a maximum duration of [specify period. Agencies may wish to add ' for example where'...and list some examples of when the probationary period may be extended.] During the period of probation, you are required to satisfy a delegate of the Agency Head that [insert criteria and standards against which the probationary condition will be assessed or cross reference to agency probation policy if appropriate] During the probationary period, unless otherwise advised, your probation will continue if you are assigned other duties within the agency at the same classification, or if your duties are affected by a machinery of government change2. Your employment can be terminated before the end of the probation period eg for poor performance. |
Other conditions of engagement under s. 22(6) |
[The Notice that is signed by the delegate need only include those conditions that the agency wishes to formally impose eg some matters may have been satisfied before engagement.] (Citizenship3—include period in which condition must be met.) (Formal qualifications4—include period in which condition must be met.) (Security clearance5—include period in which condition must be met.) (Character clearance6—include period in which condition must be met.) (Health clearances7—include period in which condition must be met.) (Other8) If it becomes evident at any time while this/these condition(s) is/are in operation that you will not be able to satisfy this/any of these conditions, your employment may be terminated. [Agencies will need to frame their own conditions of engagement, based on legal advice. The footnotes suggest some issues that might be addressed. For more details, see the booklet Conditions of engagement.] |
| Essential qualifications for the performance of the employee's duties | [State any essential requirements for the performance of the employee's duties. These are not limited to formal qualifications but may include matters such as the maintenance of work rights under a visa for a non-citizen, or maintaining a certain level of security clearance or a professional accreditation or license.] |
1 Where the maximum duration of the probationary period is greater than 3 months, a termination will not be excluded from the unfair dismissal provisions of the Workplace Relations Act 1996 unless the period is considered reasonable, having regard to the nature and the circumstances of the employment. The case law also indicates that, even if there is an agency policy as to standard periods of probation, it is important to have regard to any circumstances which justify waiving probation, or setting a shorter or longer period of probation eg if a person has been recently employed by the agency and their work performance, capabilities and conduct were satisfactory.
2 This assumes that agency policy is to provide for probation to continue if a person's duties are varied during the probation period. Be aware that there may be issues of fairness if there are significant changes in the duties and performance standards against which the probationer is being assessed.
3 A suitable condition can be inserted where evidence of Australian citizenship has not been produced before engagement. For example, an Agency Head may choose to impose a condition that the employee obtain Australian citizenship within a specified time. This can be framed so as to enable termination before that date if the employee is refused citizenship or it becomes evident that the employee is no longer actively pursuing an application for citizenship. For a discussion of citizenship issues see the booklet Conditions of engagement.
4 If relevant and formal qualifications have not already been checked before engagement.
5 Ensure this is drafted so as to require that the delegate be satisfied after any checks eg 'Your engagement is subject to the condition that you satisfy a delegate of the Agency Head within [specify time] of commencing duties that...In order to satisfy the delegate, you may be required to undergo such character and security clearances as the agency requires.'
6 For further information on imposing conditions of engagement relating to character clearances see the booklet Conditions of engagement.
7 This might address issues such as the relationship between health assessments, disability legislation and occupational health and safety eg
'Your engagement is subject to the condition that you satisfy a delegate within [specify time] of commencing duties that you are fit to perform duties in the [Agency], subject to any reasonable adjustments required to take account of any disability you have. In order to satisfy the delegate that you meet this condition, you may be required, before or after you commence duty, to undergo a medical examination with a registered health practitioner.
While it is our duty as an employer to take all reasonably practicable steps to protect the health and safety at work of our employees, it is your responsibility to notify us of any pre-existing condition to which we need to have regard in order to enable us to meet our occupational health and safety responsibilities.'
8 For a discussion of other possible conditions of engagement that agencies may wish to consider imposing see the booklet Conditions of engagement. In particular, this suggests that agencies may wish to impose a condition that new employees sign, after their engagement takes effect, a declaration that they have not made any false or misleading statements in connection with their engagement. Another example of a possible condition is satisfactory participation in and successful completion of the agency's Graduate APS program.
