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Last updated: 14 November 2008
Conditions of engagement
Frequently asked questions
5.1 What are conditions of engagement?
Conditions of engagement can be imposed by an agency head under section 22(6) of the PS Act when a person is engaged as an APS employee. Section 22(6) makes specific mention of conditions relating to:
- probation
- citizenship
- formal qualifications
- security and character clearances
- health clearances.
Section 22(7) makes it clear that it is possible to impose conditions other than those specifically referred to in section 22(6).
Conditions of engagement are used to alert a new employee to particular requirements which they will need to meet when they are engaged as an APS employee, and provide a basis to terminate the employment of an employee who does not meet the condition.
5.2 When can a condition be imposed?
A section 22(6) condition of engagement can only be imposed when a person is engaged as an APS employee. It cannot be imposed once a person is an APS employee. It therefore cannot be imposed when a person changes APS jobs either 'at level' or through a promotion either in the same agency or in another APS agency. This does not, however, prevent an agency head from requiring certain pre-requisites or essential qualifications for the duties to be performed in any given position. If filling such an employment opportunity, agencies should advise potential applicants of any pre-requisites before their engagement or movement—usually via the Gazette notification of the opportunity.
5.3 Can I impose a condition after someone has been engaged?
In some cases agency heads may want to impose or vary requirements or conditions that an employee must meet on a continuing basis, such as the need to maintain a particular level of security clearance. These conditions cannot be imposed under section 22(6) as this provision can only be used to impose conditions in connection with the engagement process.
There may be scope to impose or vary requirements applying to existing employees and/or to vary the essential qualifications that apply to the performance of particular duties under other heads of power, for example under section 20 of the PS Act.
As this is a complex topic, if an agency is considering imposing a new ongoing condition or requirement, it may wish to consider obtaining legal advice.
5.4 How long can a condition of engagement last?
A section 22(6) condition of engagement generally has a specified time frame, dictated by the operational needs of the agency. Once the condition is met, it cannot be re-imposed or re-activated. Each agency head should develop policies for their agency on the application of conditions of engagement which support their business needs and are consistent with the legislative framework.
5.5 What happens when a condition is met?
Once a section 22(6) condition of engagement has been met, it cannot be re-imposed or re activated. Each section 22(6) condition is a separate condition of engagement and will have to be met according to the arrangements for that particular condition. The employee's engagement will continue to be conditional until each condition attached to that engagement has been satisfied. An employee's employment may, similarly, be terminated if they meet one or more conditions but fail to meet others.
5.6 What happens if a condition is not or cannot be met?
If a person's engagement is subject to a section 22(6) condition of engagement, and it becomes apparent that the person has not, or cannot, meet the condition, the person's employment may be terminated on the ground specified in section 29(3)(f) of the PS Act. (Section 29(3)(f) specifies ‘failure to meet a condition imposed under section 22(6)’ as a ground for terminating the employment of an APS employee).
5.7 Why is there an Australian citizenship requirement for APS jobs?
There is a general expectation that a person who is to be engaged as an APS employee will be an Australian citizen, although non-citizens can be engaged in certain circumstances. Section 22(8) of the PS Act requires an agency head not to engage, as an APS employee, a person who is not an Australian citizen unless the agency head considers it appropriate to do so. Like a number of other countries, the Australian Government considers that it is appropriate for government employees to be Australian citizens as a demonstration of their commitment to, and long-term stake in, the future of Australia. An agency head may, however, waive this requirement depending on the needs and circumstances of the agency (for example, a shortage of the skills or professional qualifications required to perform particular duties)
5.8 How do I engage someone who is not an Australian citizen?
An agency head has the authority under section 22(8) of the PS Act to engage a person who is not an Australian citizen, if the agency head considers this appropriate. A decision by an agency head to engage a non-citizen will be guided by, and depend on, the particular needs of the agency - (for example, a shortage of the skills or professional qualifications required to perform particular duties) and there may be a range of circumstances where it is appropriate to engage a non-citizen.
All non-citizens must meet certain requirements under the Migration Act before they can be employed in Australia. A non-citizen is granted a visa or entry rights for a specific purpose that will specify the work rights they enjoy, if any, and how long they can legally remain in Australia. If the decision is made to engage a non-citizen, agencies should ensure that the person has, or is eligible for, temporary or permanent residence in Australia, and is able to obtain the appropriate work rights, before the delegate engages the prospective employee.
If an agency head decides to make an offer of engagement to a non-citizen, it is good practice to inform the person that citizenship requirements for employment may vary from one APS agency to another should they seek to move to another agency in the future.
Where it is considered appropriate to engage a non-citizen, the approval of the agency head should be documented and retained on the employee's personal records. In addition, when considering whether to grant a security clearance for access to security classified resources, Australian Government protective security policy requires that a record of all decisions to waive citizenship requirements be maintained (see Part D16 of the Australian Government Protective Security Manual for more information).
5.9 What is meant by a condition of engagement relating to formal qualifications?
Some employment opportunities in the APS are open only to people who have a certain type or level of formal qualification, where this is essential for performing the duties. Section 22(6)(c) enables agency heads to impose as a condition of engagement the requirement for possession of a formal qualification. This requirement would generally be specified in the Gazette notification and be met before the person is engaged, but an agency head may choose to make an offer of engagement subject to the condition that the person produce evidence of the necessary qualification within a specified period. A condition like this may be imposed, for example, when a person has satisfactorily completed all the requirements of a course, has provided evidence of completion, and is waiting for the degree to be conferred, or where for some reason the person is not immediately able to produce evidence of the qualification.
5.10 Do new employees need a health, character and/or security clearance?
Agency heads have the discretion to require a health, character and/or security clearance as a condition of engagement. These clearances are not an automatic requirement, and agencies are encouraged to develop policies on which of these conditions will be imposed which support their business needs and are consistent with the legislative framework.
5.11 How do I impose a health, character and/or security clearance as a condition of engagement?
The need for a health, character and/or security clearance would normally be mentioned in the Gazette notification of the employment opportunity and/or in supporting selection documentation.
It will generally be desirable to complete any clearances before a prospective employee is formally engaged. However, an agency head may consider it appropriate to engage a person subject to the person satisfying the agency head as to their suitability following an appropriate clearance process.
If so, an appropriately drafted condition of engagement should be provided in writing to the prospective employee before engagement. The condition should state the standard or level of clearance required and, if appropriate, specify a period within which the clearance must be obtained. It should be drafted so as to enable the agency to terminate the person's employment at an earlier date if a clearance is refused or if it becomes clear that a satisfactory clearance will not be obtained.
5.12 What happens if a prospective employee has received a redundancy benefit from a Commonwealth employer?
PS Commissioner's Direction 4.4 explains the circumstances in which an agency head may engage an employee who has previously received a redundancy benefit from the Commonwealth. In this context, 'Commonwealth employment' includes employment in an APS agency or a non-APS Commonwealth body. The Commission's website contains advice about which agencies are APS agencies. The Department of Finance and Deregulation's website at http://www.finance.gov.au contains a list of other Commonwealth bodies.
Further information on these requirements can be obtained from the Commission website and from the Ongoing employment: Recruitment and Related Issues booklet.
5.13 What privacy rules apply when engaging an APS employee?
Personal information obtained as part of the engagement process and subsequent employment in the APS (such as employment history, medical reports, reports on conduct and work performance, and feedback notes) is subject to the requirements of the Privacy Act. The Information Privacy Principles (IPPs) regulate the way government agencies collect, store, use and disclose information about people. They enable people to access information that agencies keep about them, and allow them to request changes to this information if it is incorrect or out of date. Agencies should advise prospective employees of their rights and obligations under the privacy framework, particularly in relation to the range of matters outlined in IPP 2 regarding the possible use and disclosure of their personal information.
In addition to the IPPs, PS Regulation 9.2 permits an agency head to disclose personal information about an employee to another agency head where this is necessary for the performance of the functions of either agency head (such as recruitment activity), and to the Public Service Commissioner and the Merit Protection Commissioner where this is necessary for the performance of their duties.
For more information about the Privacy framework, see the website of the Office of the Federal Privacy Commissioner at www.privacy.gov.au.
5.14 What if I use a recruitment company?
Where the services of a private recruitment provider are used, it is important that the agency advise their provider of the relevant legal requirements and the agency's engagement policy, including citizenship requirements. It is also worthwhile providing recruitment providers with, or advice on where they can gain access to, the relevant information concerning visa requirements and the migration checklist for employers issued by the Department of Immigration and Citizenship for use when recruiting APS employees.
5.15 Where can I get more information?
Agencies can access the latest information through the Commission's website. For further information on conditions of engagement you may contact the Commission's Employment policy adviceline by telephone (6202 3859) or by email (employmentadvice@apsc.gov.au). It may be appropriate for more complex or sensitive queries to be dealt with by email.
Further advice relating to matters covered in this booklet will be provided to agencies via Commission circulars.
For citizenship, visa and migration matters contact the the Department of Immigration and Citizenship or visit their website at www.immi.gov.au or the citizenship website at www.citizenship.gov.au.
