Circular 1999/3: Probationary appointments to the APS - Effect of the Australian Public Service Award 1998 (APS Award) and amendments to the Workplace Relations Regulations

Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

The purpose of this circular is to provide advice in respect of probationary appointments in light of relevant provisions of the Australian Public Service Award 1998 (APS Award) and amendments to the Workplace Relations Regulations.

APS Award 1998

2. Workplace Relations Advice 1998/34 of 30 September 1998, issued by the then Department of Workplace Relations and Small Business (DWRSB), provided details of the APS Award which has the effect of simplifying ten awards and two Arbitrator's Determinations applying to the APS and rationalising them to a single award.

3. Paragraph 8 of the DWRSB advice noted that the impact of the simplified award on agencies will depend largely on the status of agreement making within agencies. This advice should be read in conjunction with that circular.

4. Clause 11 of the APS Award deals with Types of Employment and provides at clause 11.3 that:

"At the time of appointment or engagement the Agency Head will inform each employee in writing of the terms of their engagement, including:

the type of employment;

whether a probationary period applies and, if so, the expected duration of the period and advice in relation to the maximum duration of the period;

if the person is engaged as a fixed term employee, the project or task in relation to which the person has been engaged and/or the duration of the engagement; and

a list of the main instruments governing the terms and conditions of their employment."

5. Advice in respect of probation is contained in the following PSMPC publications:

The Essentials No. 5 - Appointment and Probation (May 1997); and
Probation - Principles, Guidelines, Good Practice (February 1995)

6. The following provides some issues for consideration by agencies in respect of the various aspects of the probationary period referred to in clause 11.3 of the APS Award, and should be read in conjunction with the above publications.

Appointments to be on probation

7. Appointments are generally made on probation, although it is open to Agency Heads (ie Secretaries or a person holding the powers of Secretary), under delegation from the Public Service Commissioner, to appoint a person to the APS without probation.

Maximum duration of the period

8. The Public Service Act 1922 provides:

that a decision to confirm or terminate the probationary appointment of a non-SES officer should be made within twelve months of appointment, or as soon as practicable (s.47(6)); and
for automatic confirmation of appointment after two years unless the officer is not an Australian citizen. Periods of leave or leave without pay that are taken while an officer is still on probation do not extend the maximum two year probationary period (s.47(7)). Special provisions can apply to certain training offices (s.47(8)(c)).

Expected duration of the probationary period

9. Except for the 12 month and 2 year limitations set in legislation, there is no prescribed probationary period. Agency Heads may confirm or terminate a probationary appointment at any stage from the date of appointment.

10. The PSMPC publication, Probation - Principles, Guidelines, Good Practice, suggests that "probationers should be advised of the proposed duration of the probationary period either before commencing work or as part of the induction program".

11. The provisions of the APS Award now require that the notice of engagement (ie the notice of appointment) will include advice on the expected duration of the probationary period.

12. While it is open to agencies to determine the appropriate period of probation in each case, best practice indicates that six months is generally a reasonable period in which to assess whether a probationer's conduct, work performance, and health and physical fitness meet the required standards. This period may be longer, for example, in the case of a person occupying a training office or in the event of unforeseen absences such as extended leave.

Workplace Relations Act 1996

13. Probationers are excluded from the termination of employment provisions of the Workplace Relations Act 1996 where the period or maximum period of probation is determined in advance and

is 3 months or less, or
is more than 3 months and is reasonable having regard to the nature and circumstances of the employment.

14. In several cases, the Australian Industrial Relations Commission, the Industrial Relations Court of Australia and the Federal Court of Australia have judged that the effect of s.47(7) of the Public Service Act was to determine in advance a maximum period of two years' probation. The issue of whether that maximum period is reasonable having regard to the nature and circumstances of the employment has been the subject of detailed consideration and comment.

15. Some decisions in that regard are:

Ealing and Department of Veterans' Affairs AIRC July 1998 - maximum period of 2 years reasonable and justifiable with respect to the position, nature and circumstances of the applicant's appointment - Medical Officer Class 3
Marks and Department of Defence AIRC April 1998 - maximum period of 2 years is not reasonable Trainee Administrative Service Officer;
Fischer v Commonwealth of Australia IRC; - September 1995 - maximum period of 2 years is not reasonable Administrative Service Officer Class 1; and
Potter v Australian Capital Territory Federal Court September 1995 - maximum period of 2 years considered reasonable due to "very special circumstances of this case" Administrative Service Officer Class 2.

16. These decisions indicate that consideration would be given to a range of factors in determining what is a reasonable maximum period of probation determined in advance for the purposes of the Workplace Relations Act. This may include the nature of employment, type of duties and level of the position concerned.

Amendments to Workplace Relations Regulations

17. A number of amendments were made on 17 December 1998 to the Workplace Relations Regulations in relation to unfair dismissal.

18. Of particular relevance to probationary appointments under the Public Service Act is Workplace Relations Regulation 30BAA which, in essence, has introduced a requirement for 6 months continuous service before an officer can make an unfair dismissal application. A copy of the regulation is attached to this circular.

19. In effect, this provision precludes a person, appointed after the commencement of the regulation (18 December 1998) from making an application for relief in respect of termination of employment on the ground that the termination was harsh, unjust or unreasonable. Employees affected by the regulation retain the right to seek a remedy in respect of unlawful termination of employment, and for dismissals in contravention of the freedom of association (Part XA), and the protected action provisions (ss.170MU and 170WE) of the Workplace Relations Act.

20. For the exclusion in regulation 30BAA to apply, an employee must not have completed six months' continuous service at the time that either notice of termination was given or the employee's employment was terminated, whichever first occurred. Subregulation 30BAA(3) lists the events that are to be disregarded in ascertaining continuous service for the purposes of the regulation.

21. It should be noted that the regulation expressly does not apply to apprentices or trainees under a registered training agreement. This would include persons appointed to the APS under the New Apprenticeships initiative. A registered training agreement is one of the three defining characteristics of a New Apprenticeship.

22. Regulation 30BAA does not override an employer's capacity to determine a period or maximum period of probation in advance of the employee's employment in accordance with regulation 30B(1)(c) of the Workplace Relations Regulations, should the employer wish to do so (or, in the case of the APS, where the period is determined in advance by statute).

23. The new regulations are, however, subject to parliamentary scrutiny. After they have been tabled in the Parliament, a notice of disallowance may be given in either House within 15 sitting days of tabling. Should such a notice be given, within 15 sitting days from that notice the regulations may be disallowed, or the notice may be withdrawn.

24. In the event of disallowance, the new regulation has effect from 18 December 1998 until the date of disallowance, after which it would no longer operate.

Further information

25. The contact point for further information, in the first instance in respect of the APS Award provisions, is the PSMPC Hotline on 02 6202 3859. Enquiries in respect of amendments to the Workplace Relations Regulations should be directed to Ms Elen Perdikogiannis at the Department of Employment, Workplace Relations and Small Business on 02 6243 7574.

Signed

Jeff Lamond
Team Leader
Staffing, Structures and Mobility Team

2 February 1999

Site help

Site menu