Non-ongoing and irregular or intermittent employment

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 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 2023 (the Regulations):

• section 12 prescribes the circumstances for engaging Senior Executive Service (SES) employees for a specified term and
• section 13 prescribes the circumstances for engaging non-ongoing non-SES employees.

The engagement of a non-ongoing employee (excluding casual employees) is subject to the Agency Head being reasonably satisfied that entering into the contract would not contravene subsection 333E(1) of Fair Work Act 2009 (FW Act). Agencies are encouraged to familiarise themselves with the provisions in subsection 333E(1) of the FW Act.

Further information on subsection 333E(1) of the FW Act can be found on the Department of Employment and Workplace Relations website.

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, section 10A of the PS Act requires that the decision is based on merit. However, section 27 of the Australian Public Service Commissioners Directions 2022 (the Directions) includes provisions that enable merit-based selection processes to be modified for short-term or irregular or intermittent vacancies.

Engagements for non-ongoing roles using a modified merit process are limited to an initial employment period of 12 months or less, which may be extended up to a total period of 18 months. The limit on the employment period does not apply to irregular or intermittent engagements.

Other requirements of section 27

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 subsection 13(4) of the Regulations if the Agency Head is reasonably satisfied that entering into the contract would not contravene subsection 333E(1) of the FW Act.

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. Subsection 13(5) of the Regulations and the section 27 of the Directions provides limits on the period of engagement.

Limits on the period of engagement are set out in the table below.

Term limits for non-SES specified term employment

Table: Term limits on commencement of subsection 333E(1) of the FW Act

Term
Merit based process	Modified merit process
For up to 3 years*	For an initial period of 12 months with the option to extend to a total period of 18 months

*Subject to the Agency Head being reasonability satisfied that entering into the contract would not contravene subsection 333E(1) of the FW Act which limits fixed term arrangements to 2 years or two contract terms, whichever is less.
**In accordance with subsection 23 of the Directions.

Engaging a non-ongoing non-SES employee for a specified task

Sub regulation 13(2) of the Regulations provide that a person may be engaged as a non-ongoing non-SES employee for the duration of a specified task only if the Agency Head is reasonably satisfied that entering into the contract would not contravene subsection 333E(1) of the FW Act.

If the Agency Head engages a person as a non-ongoing non-SES employee for the duration of a specified task (whether or not under a contract of employment), the Agency Head must, at the time of the engagement:

• be able to reasonably estimate the duration of the task; and
• be 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 12 months, a merit-based selection process is required.

A non-ongoing engagement for a specified task does not have a specified end-date in the contract. However, 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 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 employee submits an employee choice notification and has not had the opportunity to be assessed through a merit-based selection process in the preceding 18 months, the agency will be required to undertake a merit-based selection process.

The requirement to undertake a recruitment process does not apply where the employee has been found unsuitable for the same or a similar role in the preceding 6 months.

Additional guidance on the requirements for undertaking merit-based selection processes can be found on the Casual employment and the Fair Work Act 2009 webpage.

Extending employment

Extensions beyond 3 years

In accordance with sub regulation 13(6), 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 role and new engagement for the purpose of upholding merit. However, agencies must also consider subsection 333E(1) of the FW Act.

State or Territory employees

The engagement of State or Territory employees as non-ongoing non-SES employee for a specified term is provided for under regulation 13(7) 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. 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:

• 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 at 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 as a mechanism for correcting administrative errors.

Further Information

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