Commonwealth Numbered Acts

PUBLIC SERVICE AND STATUTORY AUTHORITIES AMENDMENT ACT 1985 No. 166, 1985 - SECT 21

21. Sections 82 and 82A of the Principal Act are repealed and the following
sections are substituted: Interpretation

"82. (1) In this Division, unless the contrary intention appears -
'ability', means skills, aptitude, qualifications or experience, or any
combination of any of them;
'continuing employee' means a person employed under section 82AC;
'fixed-term employee' means a person employed under section 82AE;
'overseas employee' means a person employed under section 82AF;
'short-term employee' means a person employed under section 82AD.

"(2) For the purposes of this Division -

   (a)  the definition of 'relevant staff organization' in sub-section 7 (1)
        has effect as if references in that definition to an office were
        references to employment in a particular capacity; and

   (b)  a reference to the principal relevant staff organization, in relation
        to employment in a particular capacity, is a reference to the relevant
        staff organization that is declared by the regulations to be the
        principal relevant staff organization in relation to employment in
        that capacity. Categories of employees

"82AA. Subject to section 82AG, a person employed under this Division shall be
employed in one of the following categories of employees:

   (a)  continuing employees;

   (b)  short-term employees;

   (c)  fixed-term employees;

   (d)  overseas employees. Declaration of classes of continuing employees

"82AB. (1) Subject to this section, the Board may, by instrument published in
the Gazette, declare a specified class of employees (not being persons engaged
overseas to perform duties overseas) to be a class of employees for the
purposes of section 82AC.

"(2) A declaration made in pursuance of this section (including a declaration
referred to in paragraph (a) or (b)) shall not continue in operation for a
period exceeding 3 years, but this sub-section does not prevent the making of
-

   (a)  a further declaration; or

   (b)  a declaration extending the period of operation of an existing
        declaration.

"(3) The Board shall not declare a class of employees under sub-section (1)
unless -

   (a)  it is satisfied that the provisions of this Act relating to the
        appointment, promotion and transfer of officers are not appropriate to
        be applied to persons in the proposed class of employees; and

   (b)  if there is or are one or more relevant staff organizations - it has
        obtained the agreement of the principal relevant staff organization.

"(4) Sub-section (3) does not apply in relation to the declaration, at a
particular time, of a class of employees, if the duties of the employees in
that class are to be the same as the duties of the employees in one or more
classes previously declared under this section, being a class or classes that
existed immediately before that time. Employment of continuing employees

"82AC. (1) Subject to this section, the Secretary of a Department may engage
persons as continuing employees in the Department.

"(2) A Secretary shall not engage a person as a continuing employee unless the
person is engaged in a class of employees declared under section 82AB.

"(3) A Secretary shall not engage a person as a continuing employee unless the
Secretary is satisfied that the person has the ability necessary for the
performance of the relevant duties.

"(4) Where -

   (a)  a person is employed as a continuing employee in a particular class of
        employees declared under section 82AB; and

   (b)  the declaration lapses at any time, the lapse of the declaration does
        not prevent the continuation of the employment of the person as a
        continuing employee. Employment of short-term employees

"82AD. (1) Subject to this section, the Secretary of a Department may engage
persons as short-term employees in the Department.

"(2) The Secretary of a Department shall not employ a person under sub-section
(1) unless satisfied -

   (a)  that the Department requires assistance of a temporary nature in the
        performance of particular duties;

   (b)  having considered the need to maintain the service as a career service
        - that it would not be appropriate to use the services of an officer
        to perform those duties; and

   (c)  having considered the need to maintain a stable work-force - that it
        would not be appropriate to use the services of a continuing employee
        to perform those duties.

"(3) A person who is to be employed as a short-term employee -

   (a)  shall, subject to sub-section (10), be selected from a register of
        applicants for short-term employment; or

   (b)  if no suitable person is available from such a register - shall be a
        person who the Secretary is satisfied has the ability necessary for
        the performance of the relevant duties.

"(4) Subject to sub-section (7), the period of engagement of a shortterm
employee shall not exceed -

   (a)  if a period (being less than 12 months) is approved by the Board in
        relation to the class of employee in which the person is included -
        that period; or

   (b)  in any other case - 3 months.

"(5) If -

   (a)  for the purposes of paragraph (4) (a), the Board proposes to approve,
        in relation to a class of short-term employees, a period exceeding 3
        months; and

   (b)  there is or are one or more relevant staff organizations, the Board
        shall not approve the period except after consultation with the
        principal relevant staff organization or organizations.

"(6) Where the period of engagement of a short-term employee in a Department
expires, the employment of the employee is not thereby terminated, but the
Secretary of the Department shall -

   (a)  if the Department no longer requires assistance of a temporary nature
        in the performance of the duties of the employee - terminate the
        employment of the employee; or

   (b)  in any other case - recommend to the Board that the employment be
        extended.

"(7) On receipt of a recommendation under paragraph (6) (b) in relation to the
employment of a short-term employee, the Board shall -

   (a)  if it is satisfied -

        (i)    having considered the need to maintain the service as a career
               service - that it would not be appropriate to use the services
               of an officer to perform the duties of the employee; and

        (ii)   having considered the need to maintain a stable work-force -
               that it would not be appropriate to use the services of a
               continuing employee to perform those duties, extend the period
               of engagement of the employee for such further period as it
               thinks appropriate; and

   (b)  in any other case - terminate the employment of the employee with
        effect from such date as it thinks fit and, if the period of the
        engagement of the employee has expired, or would expire before that
        date, extend the period of engagement until that date.

"(8) The Board may, at a particular time, extend a period of engagement under
sub-section (7) notwithstanding that the period has expired before that time.

"(9) Where at any time -

   (a)  as a result of an extension of the period of engagement of a person
        under sub-section (7), the person is employed as a short-term
        employee; and

   (b)  the period of engagement of the person (including the period as so
        extended) has subsisted for the period of 1 year immediately preceding
        that time, any continuation of the employment of the person from that
        time shall be deemed to be employment as a continuing employee.

"(10) The Board shall, by notice published in the Gazette, notify -

   (a)  the manner in which persons shall be selected under paragraph (3) (a);
        and

   (b)  the manner in which registers of applicants for short-term employment
        shall be kept for the purposes of that paragraph. Employment of
        fixed-term employees

"82AE. (1) Subject to this section, the Secretary of a Department may, with
the approval of the Board, engage persons as fixed-term employees in the
Department.

"(2) A person shall not be employed as a fixed-term employee in a Department
except where -

   (a)  the person is required to perform duties in connection with a project
        or task that has a fixed duration (whether or not its duration is
        known at the relevant time) and - Termination of employment

"82AH. (1) Subject to this section, the Secretary of a Department may at any
time terminate the employment of an employee in the Department.

"(2) Where, under the regulations, Division 6 of Part III applies in relation
to an employee in a Department, the Secretary shall not terminate the
employment of the employee under this section -

   (a)  by reason only of the fact that the employee has done, or omitted to
        do, an act or thing in respect of which a charge could be laid against
        the employee; or

   (b)  on the ground that a court has convicted the employee of a criminal
        offence within the meaning of that Division, or found, without
        recording a conviction, that the employee has committed such an
        offence.

"(3) The employment of an employee to whom the Commonwealth Employees 
(Redeployment and Retirement) Act 1979 applies shall not be terminated under
this section except on the ground that the employee -

   (a)  has wilfully disobeyed, or wilfully disregarded, a direction given by
        a person having authority to give the direction, being a direction
        with which it is the employee's duty to comply;

   (b)  is inefficient or incompetent for reasons or causes within the
        employee's own control;

   (c)  is negligent or careless in the discharge of the employee's duties;

   (d)  has engaged in improper conduct as an employee;

   (e)  has engaged in improper conduct otherwise than as an employee, being
        conduct that adversely affects the performance of the employee's
        duties or brings the Service into disrepute;

   (f)  has contravened -

        (i)    a provision of this Act, of the regulations or of a
               determination in force under sub-section 9 (7A) or section 82D;
               or

        (ii)   the terms and conditions upon which the employee is employed;

   (g)  has, whether before or after becoming an employee, wilfully supplied
        to an officer or another person acting on behalf of the Commonwealth
        incorrect or misleading information in connection with the employee's
        being accepted as an employee; or

   (h)  a court has, after 15 September 1980, convicted the employee of a
        criminal offence or found, without recording the conviction, that the
        employee has committed such an offence, and the nature and seriousness
        of the offence, the circumstances in which it was committed, and the
        nature of the employee's duties, are such that it is in the interests
        of the Service that the employment of the employee should be
        terminated.".

        (i)    the duties require ability that cannot be made available from
               within the Service; and

        (ii)   the services of the person are not likely to be required after
               the project or task is completed;

   (b)  the person could be appointed as an officer or engaged as a continuing
        employee in the Department, but employment as a fixedterm employee is
        preferred by the person; or

   (c)  the person is not an Australian citizen, but has been selected for
        appointment to the Service on the understanding that appointment will
        be made on the grant of Australian citizenship.

"(3) A Secretary shall not employ a person as a fixed-term employee unless the
Secretary is satisfied that the person has the ability necessary for the
performance of the relevant duties.

"(4) A person shall not be employed by virtue of paragraph (2) (a) as a
fixed-term employee in a particular capacity in a particular component of a
Department unless the principal relevant staff organization has been consulted
in connection with employment of persons as fixed-term employees in that
capacity in that component.

"(5) Subject to sub-section (7), the period of engagement of a fixedterm
employee shall not exceed 5 years.

"(6) Subject to sub-section (7), on the expiration of the period of engagement
of a fixed-term employee (including the period as extended or further extended
under that sub-section), the employment of the employee is terminated.

"(7) On the expiration of the period of engagement of a fixed-term employee
(including the period as extended or further extended under this sub-section),
the relevant Secretary may, subject to sub-section (2), extend or further
extend the period for a period not exceeding 5 years. Employment of overseas
employees

"82AF. (1) Subject to sub-section (2), the Secretary of a Department may
engage persons overseas to perform duties overseas.

"(2) A Secretary shall not employ a person as an overseas employee unless the
Secretary is satisfied that the person has the ability necessary for the
performance of the relevant duties.

"(3) This section shall not be taken to prevent the engagement in Australia,
under another provision of this Division, of a person to perform duties
overseas. Special employment programs

"82AG. The Secretary of a Department may employ persons in the Department to
perform duties under a prescribed scheme, being a scheme for enabling persons
to gain ability for the purpose of participating in the Australian work-force.