Div 3General employment processes and conditions

Division 3—General employment processes and conditions 45—Engagement of employees (1) This section applies to employees of a public sector agency other than executive employees. (2) The basis on which a person is engaged as an employee must be as— (a) an ongoing employee; or (b) a term employee; or (c) a casual employee. (3) A person is only to be engaged as a term employee, and the person's engagement is only to be extended, as follows: (a) a person may be engaged as a term employee for duties required for the carrying out of a project of a duration not exceeding 5 years and the engagement may be extended (including beyond a total of 5 years) but not so that the term extends beyond the duration of the project; (b) a person may be engaged as a term employee for a specified term for duties required to be performed because of the absence of another employee or while selection processes are conducted in respect of the duties and the engagement may be extended but not so that the term extends beyond the absence of the employee or the completion of the selection processes; (c) a person may be engaged as a term employee for a specified term not exceeding 5 years in cases of a special or exceptional kind prescribed by the regulations and the engagement may be extended but not so that the term extends beyond a total of 5 years; (d) a person may be engaged as a term employee for a specified term not exceeding 2 years for duties that are otherwise of a temporary nature and the engagement may be extended but not so that the term extends beyond a total of 2 years. (4) The regulations may impose further limits on the exercise of the power to engage or extend the engagement of persons as term or casual employees. (5) A public sector agency may change the basis on which a person is engaged as an employee at any time with the employee's agreement. (6) In this section— absence of an employee from duties means the absence of an employee in circumstances in which the employee may return to the duties; extend the engagement of a person as a term employee includes re‑engage the person as a term employee so as to continue the same or similar duties. 46—Merit‑based selection processes (1) The following may only occur as a consequence of selection processes conducted on the basis of merit in accordance with the regulations: (a) engagement of a person as an employee of a public sector agency; (b) promotion of an employee of a public sector agency to a higher remuneration level; (c) changing the basis on which a person is engaged as an employee of a public sector agency to engagement as an ongoing employee. (2) Subsection (1) does not apply— (a) to the engagement of a casual employee; or (b) to the promotion of an employee by way of reclassification of the employee's remuneration level; or (c) to the engagement of an employee under an employment opportunity program; or (d) in circumstances prescribed by the regulations. 47—Assignment of duties A public sector agency may from time to time determine the duties of a person as an employee of the agency and the place or places at which the duties are to be performed. 48—Probation (1) This section does not apply to an executive employee. (2) A person who is not already in the employment of a public sector agency is, when engaged as an employee of a public sector agency, at first on probation for 12 months, unless the agency determines that no probation is required or determines a lesser period of probation. (3) The employment of an employee who is on probation may be terminated by the public sector agency at any time. (4) If an employee has been on probation for at least half of the period of probation, the agency may confirm the employee's employment and, in that event, the employee ceases to be on probation. (5) Unless the employee's employment is sooner confirmed or terminated, the employee ceases to be on probation at the end of the period of probation. (6) For the purposes of this section, probationary service does not include a period for which the employee has been absent on leave without pay. (7) A period of probation that applies to an employee under this section will be taken to be reasonable for the purposes of the Fair Work Act 1994. 49—Remuneration (1) An employee of a public sector agency is entitled to remuneration in accordance with the employee's remuneration level. (2) A deduction may be made from an employee's remuneration for any charge payable by the employee under a determination of the Commissioner under Part 4 in respect of accommodation, services, goods or any other benefit provided to the employee in connection with his or her employment. (3) The remuneration level of an employee of a public sector agency may be reclassified by the agency on the initiative of the agency or on application to the agency by the employee. (4) The regulations may not exclude the right of an employee to apply under Part 7 Division 4 to SAET for review of a decision on an application by the employee under subsection (3). 50—Additional duties allowance (1) A public sector agency may direct an employee of the agency to perform specified duties in addition to those on which the employee's remuneration level is based. (2) The agency may authorise payment to the employee of an allowance appropriate to the duties being performed. 51—Hours of duty and leave The hours of duty of an employee of a public sector agency and the rights of an employee of a public sector agency to holidays and leave are governed by Schedule 1. 52—Resignation (other than executives) (1) An employee of a public sector agency, other than an executive employee, may resign from his or her employment by not less than 14 days notice in writing to the agency (unless notice of a shorter period is accepted by the agency). (2) If an employee of a public sector agency— (a) is absent, without authority, from his or her employment for a period of 10 working days; and (b) gives no proper written explanation or excuse for the absence to the agency before the end of that period, the employee will, if the agency so determines, be taken to have resigned from his or her employment. 53—Reduction in remuneration level (1) A public sector agency may reduce the remuneration level of an employee of the agency without the employee's consent on any of the following grounds: (a) the employee is excess to the requirements of the agency at the higher remuneration level; (b) the employee's physical or mental incapacity to perform duties satisfactorily at the higher remuneration level; (c) the employee's unsatisfactory performance of duties at the higher remuneration level; (d) the employee's misconduct; (e) the employee's lack of an essential qualification for performing duties at the higher remuneration level. (2) A public sector agency may not reduce an employee's remuneration level under subsection (1)(a) or (b) unless the agency has made reasonable endeavours to find, but has failed to find, other suitable duties in the agency, or other public sector employment (to which this Part applies), to which the employee might be assigned or transferred on conditions that maintain the employee's substantive remuneration level. (3) If an employee's remuneration level is reduced under subsection (1)(a), the employee is entitled to supplementation of the employee's remuneration in accordance with the relevant provisions of an award or enterprise agreement or, if there is no award or enterprise agreement covering the matter, in accordance with a scheme prescribed by the regulations. (4) The power to reduce an employee's remuneration level under this section includes (without limitation) power— (a) to reduce an employee's remuneration level to a remuneration level from a classification structure, or different classification structure, fixed by a determination of the Commissioner under Part 4; and (b) to reduce an employee's remuneration level to a remuneration level for a class of employees not subject to a determination of the Commissioner under Part 4; and (c) to reduce an employee's remuneration level as a preliminary step to assigning or transferring the employee to other duties in the agency or other public sector employment (whether or not employment to which this Part applies). 54—Termination (1) A public sector agency may terminate the employment of an employee of the agency on any of the following grounds: (a) the employee is excess to the requirements of the agency; (b) the employee's physical or mental incapacity to perform his or her duties satisfactorily; (c) the employee's unsatisfactory performance of his or her duties; (d) the employee's misconduct; (e) the employee's lack of an essential qualification for performing his or her duties. (2) The employment of an employee may not be terminated under subsection (1)(a) or (b) unless the public sector agency has made reasonable endeavours to find, but has failed to find, other suitable duties in the agency, or other public sector employment (to which this Part applies), to which the employee might be assigned or transferred on conditions that maintain the employee's substantive remuneration level. (3) A public sector agency may not terminate the employment of an employee under subsection (1) on any ground unless the agency— (a) has informed the Commissioner of the grounds on which it is proposed to terminate the employment of the employee and the processes leading up to the proposal to terminate; and (b) has considered any advice given by the Commissioner within 14 days about the adequacy of the processes. 55—Disciplinary action (1) A public sector agency may— (a) reprimand an employee of the agency; or (b) suspend an employee of the agency from duty without remuneration or accrual of leave rights for a specified period, on the ground of the employee's misconduct. Note— Disciplinary action may also take the form of— (a) reduction of the remuneration level of an employee under section 53; or (b) termination of an employee's employment under section 54. A public sector agency may, in conjunction with taking disciplinary action— (a) assign an employee to different duties or to a different place under section 47; or (b) transfer an employee to other employment under section 9. (2) Nothing prevents a public sector agency from taking more than 1 form of disciplinary action against an employee for misconduct. 56—Power to require medical examination (a) an employee of a public sector agency is not performing the employee's duties satisfactorily; and (b) it appears to the agency that the employee's unsatisfactory performance may be caused by mental or physical incapacity, the agency may require the employee to undergo a medical examination by a medical practitioner selected by the employee from a panel of medical practitioners nominated by the agency. (2) If an employee refuses or fails, without reasonable excuse, to submit to a medical examination as required under subsection (1), the public sector agency may suspend the employee from duty (without remuneration and accrual of leave rights) until the employee submits to a medical examination as required by the agency. (3) The public sector agency must— (a) furnish the employee with a copy of any report on the results of a medical examination required under this section; and (b) before taking any action on the basis of the report, allow the employee a period of not less than 14 days from the date of the employee's receipt of the report to furnish the agency with any medical reports obtained by the employee on his or her mental or physical condition. 57—Power to suspend from duty (1) A public sector agency may suspend an employee of the agency from duty pending the completion of any investigation, process or proceedings in respect of alleged misconduct by the employee if the agency decides that it is in the public or agency's interest to do so. (2) Subject to subsection (3), a suspension will be with remuneration. (3) A suspension may be without remuneration if— (a) the employee has been charged with an offence punishable by imprisonment; or (b) the employee has been given notice setting out details of alleged misconduct on the part of the employee and inviting the employee to show cause why disciplinary action should not be taken against the employee. (4) A public sector agency must reimburse remuneration withheld as a result of the suspension of an employee from duty if a court finds the person not guilty of the offence or the agency decides that the person was not guilty of misconduct (or both if the employee has been both charged with the offence and given notice setting out details of alleged misconduct). (5) A public sector agency may revoke a suspension at any time.