Frequently asked questions
1. An employee has been engaged in a combination of regular and systematic casual employment and as a fixed term temporary employee. Which directive should we apply when undertaking a review?
The employment status of an employee at the time they request a review under section 149 of the Public Service Act 2008 (PS Act), or is entitled to an employer initiated review (i.e. at their 2 year anniversary and annually thereafter) under section 149B of the PS Act, will determine which directive will apply.
For example, if the employee is on a fixed term temporary engagement at the time they become eligible for review, the fixed term temporary employment directive applies when considering their conversion, including if the employee reverts to casual employment during the review period. As the considerations for conversion are the same for casual and fixed term temporary employees, this is only likely to affect the permanent hours that may be offered to the employee as provided for in the casual employment directive, when the review decision is made.
2. What priority should be given to the different conversion reviews when they are undertaken at the same time? Can we use a closed merit process in these circumstances?
There is no specified priority for considering reviews for multiple fixed term temporary or casual employees and/or requests for appointment to a higher classification level. Each review must be considered individually and in accordance with the criteria and timeframes that apply under the relevant directive and provisions of the PS Act.
The directives do not allow for an agency to use a closed merit process where there are multiple employees eligible for review.
It is important to note that conversion of a fixed term temporary or casual employee to permanent employment is not dependent on the existence of a substantive vacancy.
3. I have an employee who is in Australia on a temporary work visa. Are they eligible for permanent appointment following a review in accordance with the Fixed term temporary employment directive 09/20?
An employee must meet the citizenship requirements under section 127(1) of the PS Act to be eligible to be converted from fixed term temporary or casual employment to permanent employment as a public service officer under the PS Act and directive.
Agencies will need to seek their own advice about whether or not a particular type of temporary visa meets the requirements under section 127(1)(b) (i.e. a person who resides in Australia and has permission, under a Commonwealth law, to work in Australia).
4. Can a fixed term temporary employee engaged at the Senior Officer level apply to be appointed to that higher classification level?
No. Sections 149 and 149B of the PS Act state that they do not apply to an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
Senior officers (SO), are non-industrial instrument employees. This means that a public service employee who is temporarily engaged in a position that is ordinarily held by a SO, is not eligible to be converted to permanent employment under sections 149A or 149B of the PS Act or directive.
5. Can an employee request a review under section 149 of the PS Act if they have recently been reviewed by the agency as required under section 149B?
Yes. If the employee is eligible to apply for a conversion review under section 149 but has not done so in the previous 12 month period, they may request the review at any time, even when a section 149B review has recently been undertaken.
When undertaking a review of a fixed term temporary or casual employee for conversion to permanent employment, the decision maker must consider whether there is a continuing need for someone to be employed in the role the employee is currently engaged in, or a role that is substantially the same.
The test of whether a role is 'substantially the same' will depend on the individual facts of each review and the duties and responsibilities of each role. The term 'substantially the same' is not necessarily synonymous with 'the same classification level', however, at the very least, a role at a different classification level must have a compelling characteristic of sameness.
Where an employee has been engaged in a number of temporary roles at different classification levels, the roles may be considered substantially the same, particularly if the employee has progressed in a particular workstream. However, depending on the varying duties and responsibilities in each role, it will not automatically follow that they are substantially the same. For example, a role that includes supervisory responsibilities may be considered different from lower classified roles in the same area.
7. A casual employee has advised they do not want to be appointed to a permanent position – is the agency still required to undertake a review in accordance with section 149B of the PS Act?
Yes. Section 149B of the PS Act requires a chief executive to review the status of a fixed term temporary or casual employee if the person has been continuously employed in the same department for two years or more.
If the department’s chief executive considers there is a continuing need for someone to be employed in the employee’s role, or a role that is substantially the same, and the employee has merit for the role, the chief executive must decide to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
An employee may choose to decline an offer of permanent employment if they wish to remain as a casual or fixed term temporary employee.
8. Does the fixed term temporary employment directive apply to employees who are part of a graduate program?
Yes. The provisions of the PS Act relating to fixed term temporary conversions apply to any person who has been continuously employed as a fixed term temporary employee in the same department.
Prior to making a conversion decision, the chief executive should consider the individual circumstances of the graduate employee and the criteria provided in the PS Act and fixed term temporary directive.
When considering whether there is a continuing need for the graduate to be employed in their role, or a role that is substantially the same, the agency may consider the examples provided in section 148(2) of the PS Act about when employment of a person on tenure may not be viable or appropriate. This section provides that employment of a person on tenure may not be viable or appropriate if the employment is to perform work for a particular project or purpose that has a known end date, for example, employment for a set period as part of a training program or placement program.