This circular has been replaced by the documents referred to in Circular 2004/9
The purpose of this circular is to advise agencies on:
- a recent decision by the AIRC which has implications for the APS in terms of the use of non-ongoing employment and the application of the merit Value;
- the need to ensure that the circumstances leading to that decision do not recur; and
- the power of the Public Service Commissioner to issue a Direction to waive the Gazette requirement for filling an ongoing employment opportunity and the circumstances under which this power may be used.
2. The Public Service Act 1999 (PS Act) specifically precludes the conversion of a non-ongoing employee to an ongoing employee to safeguard the merit principle.
3. A recent decision by Commissioner Deegan in the AIRC relating to non-ongoing employees in the Defence Integrated Distribution System (DIDS) has potentially compromised these arrangements. The circumstances leading to the AIRC decision are set out in the Attachment.
4. On 23 July 2002, Commissioner Deegan ordered that non-ongoing employees in DIDS be 'appointed' as ongoing employees without a merit competition. The decision (PR920424) and order can be accessed through the AIRC website www.airc.gov.au.
5. The effect of this decision is that a group of non-ongoing employees with different lengths of employment were made ongoing employees.
Issues arising from the Decision
6. The AIRC decision potentially causes a number of problems for the APS as it allows an outcome that is contrary to the intention of the legislative framework in terms of the merit principle. If it flowed-on, it could diminish the flexible employment provisions under the PS Act, and it has created a precedent. The APS Commission is aware of two approaches to agencies by the Community and Public Service Union since the decision was made.
7. The APS Commission considers that non-ongoing employees whose engagement exceeds 12 months should not be made ongoing employees and that when non-ongoing work changes to become a requirement for ongoing employment, a non-ongoing employee who is performing the duties at the time should not have his or her status changed to ongoing. This is not what the legislation provides, or was intended to provide, as it is contrary to the APS Values concerned with merit selection and reasonable community access to APS employment opportunities.
8. Agency Heads have been asked to ensure that the APS Commission is notified of any industrial disputes occurring over the use of non-ongoing employees in their agency and any approaches by unions for changing the status of any non-ongoing employees. This can be done through the APS Commission's Helpline on (02) 6202 3859 or by email employmentadvice [at] apsc.gov.au.
9. When engaging employees, agencies must comply with the:
- legislative framework of the Act (Sections 10 and 22);
- Regulations 3.3 to 3.7; and
- relevant parts of the Commissioner's Directions (Clauses 2.3, 2.14, 4.2, 4.3 and 4.5).
10. If an employment opportunity that has been filled on a non-ongoing basis becomes an ongoing employment opportunity, then the ongoing employment opportunity should be notified in the Gazette and filled through an open competition. There should be no expectations given to an non-ongoing employee that they are entitled to be offered the new ongoing opportunity without the opportunity being notified in the Gazette. Only in exceptional circumstances will the Public Service Commissioner agree to the engagement of a non-ongoing employee as an ongoing employee (see below).
11. Agencies should also note that there is no requirement or obligation on an agency to change the status of an employment opportunity from non-ongoing to ongoing at any stage unless there is a genuine change in the status of the employment opportunity - the legislation allows for the engagement of a non-ongoing employee to be extended for up to a total period of three years.
Use of Commissioner's powers
12. The APS Commission has received legal advice that the Public Service Commissioner has the power to make a Direction under section 11 of the PS Act that would restrict the operation of the merit and reasonable access Values and enable the engagement of a non-ongoing employee as an ongoing employee without a competitive merit selection. The Commissioner proposes to make a Direction which will allow him to act on a case-by-case basis if special circumstances exist.
13. The Commissioner has decided that he will exercise this power only in exceptional circumstances and in accordance with the following principles:
- at the time of the original non-ongoing engagement, or when the engagement was extended, the employment opportunity must have been notified in the Gazette;
- there must have been no breach of the Act, the Regulations or the Commissioner's Directions and, at the time of engagement or extensions of the engagement, the work was of a non-ongoing nature;
- it would be inappropriate to now require the filling of the vacancy through an open merit competition;
- the use of this power will be reported in the annual State of the Service Report; and
- the power will not be used as a means of covering up poor administration, for example, where inappropriate undertakings are given to an employee that his or her status would be changed.
14.Should the Commissioner exercise this power, all resulting engagements must be notified in the Engagements section of the Gazette with the following footnote:
"This engagement resulted from a Direction made by the Public Service Commissioner under section 11 of the Public Service Act 1999 on (date)."
15. Any request to use this power must come from the Head of the agency concerned and should be addressed to the Public Service Commissioner.
16. General enquiries in relation to non-ongoing employment can be directed to the APS Commission's Helpline on (02) 6202 3859.
Acting Group Manager
Policy and Employment Group
25 October 2002
Attachment: Circumstances leading to the Decision by the AIRC concerning the conversion non-ongoing employees to ongoing employees in the Department of Defence
The Defence Integrated Distribution System (DIDS) is an Australia-wide storage, distribution and logistics system that provides support to the Australian Defence organisation.
When DIDS was identified for market testing in 1997, uncertainty over the future of the function influenced military posting decisions for this activity and some civilian employees to seek alternative employment. In these circumstances, Defence considered it appropriate to meet the work requirement with non-ongoing APS employees engaged for a specified term. The tender process, however, was delayed as a result of Government decisions. By October 2001, a number of these employees were reaching the 3 year maximum term of engagement imposed by the Public Service Regulations on non-ongoing employees engaged for a specified term.
In October 2001, an undertaking was given to the unions and DIDS non-ongoing employees that their employment status would be made ongoing. Unfortunately, this undertaking did not clarify the requirements of the APS legislative framework-which include an open merit selection process to fill ongoing employment opportunities.
The APS Commission became aware of the DIDS situation in May 2002 and held discussions with Defence. The Department was advised of the employment policy and the legislative provisions relating to the employment of both ongoing and non-ongoing employees and how changes in employment can properly be effected. The 'conversion' process was then halted.
Defence unions subsequently notified a dispute to the AIRC and requested the AIRC to exercise its discretion under s.121 of the Workplace Relations Act 1996 to issue an order making the employees ongoing.
The AIRC proceedings concluded with Commissioner Deegan ordering that non-ongoing employees in DIDS be appointed as ongoing employees without a merit competition. The decision (PR920424) and order can be accessed through the AIRC website www.airc.gov.au