Conditions of engagement

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Overview

A condition of engagement is a requirement that a prospective employee must meet prior to being engaged or, in certain circumstances, within a specified timeframe following engagement.

Section 22(6) of the Public Service Act 1999 (PS Act) provides that the engagement of an Australian Public Service (APS) employee may be subject to conditions notified to the employee, including conditions dealing with any of the following matters:

  • probation
  • citizenship
  • formal qualifications
  • security and character clearances and
  • health clearances.

An agency may also impose additional conditions of engagement.

There are additional requirements in the PS Act and the Australian Public Service Commissioner’s Directions 2022(the Directions) regarding citizenship and probation.

  • Section 22(8) of the PS Act requires that an Agency Head must not engage an employee who is not an Australia citizen, unless the Agency Head considers it appropriate to do so. Further information on citizenship as a condition of engagement is available on the Citizenship webpage.
  • Section 44 of the Directions requires that an Agency Head engaging an APS employee other than an employee engaged for duties that are irregular or intermittent, must be engaged on probation. A waiver may apply where reasonable circumstances justify it. Further information on probation as a conditions of engagement is available on the Probation webpage.

Requirements for imposing conditions of engagement

Conditions of engagement can only be imposed at the time a prospective employee is engaged in the APS, they cannot be imposed or varied after engagement.

When determining whether to impose conditions of engagement, agencies should consider the relevance of the condition of engagement to the duties of the vacancy and the operating environment of the agency.

Generally, the period of an engagement should not be a factor when considering whether to impose conditions. Conditions of engagement can only be imposed at the time of engagement and therefore, any relevant conditions of engagement should be imposed even for short term contracts to provide coverage in the event the term of employment is extended.

To enable a prospective employee to make an informed decision about an offer of employment, conditions of engagement should be outlined in the letter of offer, including:

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

Managing conditions of engagement

Where a condition is not met before engagement, an agency may decide to employ the person subject to meeting the condition. The prospective employee should be notified in writing of the specified timeframe they have to meet the condition of engagement.

An employee who does not meet the conditions of engagement within the specified timeframe may have their employment terminated under section 29(3)(f) of the PS Act.

A condition of engagement continues to apply if the employee has a change of duties, unless the agency chooses to waive the condition because it is no longer relevant to the work being performed. Prior to waiving a condition of engagement, agencies need to be aware that, once a condition is waived, it cannot be imposed again.

Movement between APS agencies

Where an employee moves to another APS agency before all conditions of employment have been met, any conditions of engagement will continue to apply unless specifically waived by the receiving agency. Conditions of engagement should only be waived where the condition is not relevant to employment in the receiving agency, including the duties of the role the employee will be performing.

Prior to the movement of an employee, the receiving agency should:

  • confirm whether the employee is still subject to any conditions of engagement (i.e. if the condition has not been met)
  • make it clear to the employee that:
    • the condition continues and
    • employment can be ended by the receiving agency if the condition is not met within the specified timeframe.

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

Additional information on movements between APS agencies is available on the Movement between APS agencies webpage.

Additional information on security and character clearances

While a prospective employee may be required to hold and maintain a security clearance as a condition of engagement (or as a condition of employment), a candidate must not be excluded from applying for a vacancy if they do not hold, and are willing to undergo, a security clearance.

Requiring a candidate to hold a security clearance at the time of applying for the vacancy would not be in accordance with the merit principle, where all eligible members of the community are given reasonable opportunity to apply for a vacancy.

A prospective employee may also be required to satisfy character clearance or employment screening as a condition of engagement.

Character clearances may be required to confirm whether a prospective employee is of suitable character to be engaged based on the agency’s risk tolerance, for example a criminal history check.

An agency can determine what clearances are appropriate. For example, checks can be made with the police, with professional licensing or registration boards, or with previous APS or other employers. For more information on matters where character clearances may assist agencies, refer to the Australian Government Protective Security Policy Framework- external site.

Additional information on health clearances

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

An agency can determine what evidence is reasonably required to assess whether a prospective employee 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 and/or
  • undergo an expert medical assessment (such as eyesight testing).

Decisions in relation to the suitability or fitness of a prospective employee 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 and
    • 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.

Further information

HR practitioners seeking more information on conditions of engagement can contact the Employment Policy team via employmentpolicy@apsc.gov.au or call the advice line on (02) 6202 3857.

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