13Engagement of non‑ongoing non‑SES employees

#### 13 Engagement of non‑ongoing non‑SES employees (1) For the purposes of subsection 22(4) of the Act, this section prescribes circumstances in which an Agency Head may engage a person as a non‑SES employee for a specified term or for the duration of a specified task (a non‑ongoing non‑SES employee). > Note 1: The usual basis for engagement of an APS employee is as an ongoing APS employee (see paragraph 10A(1)(b) of the Act). An Agency Head is expected to have regard to that paragraph before engaging a person as a non‑ongoing APS employee. > Note 2: Paragraph 10A(1)(c) of the Act requires engagement and promotion decisions to be based on merit. Division 1 of Part 4 of the Commissioner’s Directions explains how this employment principle is to be applied. Engagement for duration of specified task (2) An Agency Head may engage a person under a contract of employment as a non‑ongoing non‑SES employee for the duration of a specified task only if the Agency Head is reasonably satisfied that entering into the contract would not contravene subsection 333E(1) of the Fair Work Act 2009. > Note: Subsection 333E(1) of the Fair Work Act 2009 is about limitations on fixed term contracts. (3) If an Agency Head engages a person as a non‑ongoing non‑SES employee for the duration of a specified task (whether or not under a contract of employment), the Agency Head must, at the time of the engagement: (a) be able to reasonably estimate the duration of the task; and (b) be satisfied that the services of the person are unlikely to be required after the task is complete. Engagement for specified term (4) Subject to subsection (8), an Agency Head may engage a person as a non‑ongoing non‑SES employee for a specified term if: (a) the duties of the employment are to be performed by the person only for a limited period, and the performance of those duties by the person is unlikely to be required after that period; or (b) the particular skills, knowledge or experience required to perform the duties of the employment can best be met by employing a person who has recently worked in the industry that corresponds to the employment for which the person is being engaged; or (c) the purpose of the employment is to assist the person to gain: (i) skills and experience, by participating in the workforce under a scheme approved by the Agency Head or the Australian Public Service Commissioner; or (ii) a formal occupational qualification, licence, accreditation or registration; or (d) the person has received a written offer of ongoing APS employment, but prefers to be engaged as a non‑ongoing APS employee; or (e) the person is an ongoing Parliamentary Service employee. > Note: For the purposes of paragraph (a), the Agency may, for example: (a) have a temporary increase in its workload; or (b) have a temporary demand for employees with particular skills; or (c) need to replace an ongoing APS employee who is on leave or who is assigned to other duties. (5) Subject to subsection (8), if an Agency Head engages a person as a non‑ongoing non‑SES employee for a specified term as described in subsection (4): (a) the period of the engagement must be a period that represents a reasonable estimate of the time required for the performance of the duties; and (b) if the person is engaged: (i) because the circumstance mentioned in paragraph (4)(a) or (b) applies; and (ii) before the commencement of Part 10 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022; the period of the engagement must not be more than 18 months, and any extension of the engagement must be for a period that represents a reasonable estimate of the length of time required for the performance of the duties; and (c) subject to subsections (6) and (8), the total period of the engagement, including any extensions of the engagement, must not exceed 3 years. (6) Subject to subsection (8), the period of 3 years mentioned in paragraph (5)(c) may be extended, for a period of not more than 12 months, only if: (a) the Agency Head considers that the engagement is necessary for the Agency’s operations; and (b) the Australian Public Service Commissioner: (i) is satisfied that special circumstances exist; and (ii) authorises the Agency Head to extend the engagement. (7) Subject to subsection (8), an Agency Head may engage a person as a non‑ongoing non‑SES employee for a specified term if: (a) the person is an employee of a State or Territory, or an authority of a State or Territory, and the Agency Head has entered into an agreement with the State or Territory, or the authority of the State or Territory, to engage the person as a non‑ongoing employee for a specified term; and (b) the period of the engagement mentioned in paragraph (a) is the period decided by the Agency Head. (8) An Agency Head may engage a person under a contract of employment as a non‑ongoing non‑SES employee for a specified term as described in subsection (4) or (7) only if the Agency Head is reasonably satisfied that entering into the contract would not contravene subsection 333E(1) of the Fair Work Act 2009. > Note: Subsection 333E(1) of the Fair Work Act 2009 is about limitations on fixed term contracts.