Circular 2023/8: New Guidance on changes to non-ongoing engagements following amendments to the Fair Work Act 2009

Published

Purpose

  1. The purpose of this Circular is to inform agencies that the Australian Public Service Commission has created additional guidance to support APS agencies in implementing the new fixed term provisions in the Fair Work Act 2009 (FW Act). The new guidance is now available.

 

  1. From 6 December 2023 the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (SJBP Act) amends the Fair Work Act 2009 (FW Act) to limit the use of fixed term contracts. These changes will apply to all APS and non-APS Australian Government employers.

Guidance content

  1. The new guidance provides an overview of the fixed term provisions, exceptions and anti-avoidance provisions. The guidance also includes information on navigating the APS employment framework in the context of these changes, case studies and frequently asked questions.

Key expectations

  1. The Government expects agencies to facilitate more secure work and position the APS as a model employer. Fostering integrity in decision making continues to be of the highest priority and strong decision making is informed by compliance with legislative responsibilities.

 

  1. The Public Service Act 1999 requires APS agencies to apply the APS Employment Principles when engaging employees. The APS Employment Principles recognise that the usual basis for engagement is as an ongoing APS employee, however there may be circumstances where an employee is engaged on a non-ongoing basis for a specified term or for the duration of a specified task.

 

  1. The engagement of non-ongoing employees must not contravene the FW Act. APS agencies are to apply the FW Act in a manner that is consistent with the APS Employment Principles.

 

  1. APS agencies should ensure they have comprehensive workforce plans that include regular review for compliance with their legislative obligations. Agencies must also consider any applicable terms in their own enterprise agreements.

Australian Public Service Commissioner’s Directions 2022

  1. Agencies are reminded that amendments to the Australian Public Service Commissioner’s Directions 2022 (the Directions) commence on 6 December 2023. The Directions have been amended to modify both the initial and maximum term of employment for non-ongoing employees, where a merit-based process was not undertaken.
     
  2. The period has been amended to an initial period of up to 12 months, with the option to extend for a further 6 months, for a total maximum term of 18 months. This change limits the risk of a non-ongoing employee being unintentionally converted to ongoing via automatic application of the new FW Act mechanisms without undergoing a merit-based process.

Further information

  1. More information is available on the Commission’s webpage Guidance on non-ongoing engagements and changes to the Fair Work Act 2009
  2. The Fair Work Ombudsman has published information about the New rules for fixed term contracts and further information is also available on the DEWR website Limiting the use of fixed-term contracts
  3. Agencies seeking further information can contact the Employment Policy Team at employmentpolicy@apsc.gov.au

 

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