Fair Work Act 2009
s.739 - Application to deal with a dispute

CPSU, the Community and Public Sector Union
v
Commonwealth Of Australia (Services Australia)
(C2021/7993)

Casual conversion dispute arising under the NES

[1] On 27 March 2021, the Fair Work Act 2009 (Cth) (FW Act) was amended by the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included providing rights, in certain circumstances, for employees to be converted from casual to full-time or part-time employment under Division 4A of Part 2-2 of the FW Act (Casual Conversion Term). s.66C(2)(d) provides an exception to employers, who are not required to make an offer of ongoing employment if making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

[2] On 9 June 2021, CPSU, the Community and Public Sector Union (CPSU) applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the FW Act with the Commonwealth of Australia (as represented by Services Australia) (Services Australia) under the Department of Human Services Agreement 2017-2020 (Agreement).

[3] In short, the dispute relates to s.66C(2)(d) and the requirement for Australian Public Service (APS) agencies to comply with the recruitment process mandated by or under the Public Service Act 1999 (Cth) (PS Act) and the Australian Public Service Commissioner’s Directions 2016 (APSC Directions) and its effect on Services Australia’s obligation to offer casual conversion to certain employees.

[4] The CPSU contends that if a casual employee has applied for a vacancy and has been rated as suitable by Services Australia in a recruitment and selection process that meets the requirements of the PS Act and the APSC Directions (i.e., placed in a merit pool), then they can be made an offer of conversion that conforms with a recruitment and selection process required by or under Commonwealth law. It contends that if an employee in the merit pool meets the criteria under the Casual Conversion Term (Eligible Casual), then Services Australia must make them an offer of conversion even if a current vacancy does not exist.

[5] Services Australia disagrees. It contends that the recruitment or selection process mandated by the PS Act and the APSC Directions requires that a vacancy or a similar vacancy exists at the time of assessment as a necessary pre-condition to offering casual conversion. Before me, this vacancy was referred to as the “Second Vacancy” (the first being for appointment to the pool, the second for conversion to full-time or part-time). Services Australia contends that if there is no current vacancy to which an Eligible Casual can be appointed to on an ongoing basis, this satisfies the ‘reasonable grounds’ criteria in s.66C and therefore no obligation to offer ongoing employment will exist.

[6] Before me, at the hearing on 25 February 2022, the parties agreed that I should answer the following question: 1

If an employee

(a) has been employed by Services Australia for a period of 12 months (or otherwise satisfying the terms of the transitional provisions); AND

(b) during at least the last 6 months, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be); AND

(c) has been rated as suitable in a merit selection process for a vacancy that was notified in the gazette in the last 12 months; AND

(d) the vacancy applied for at (c) is similar to the duties they performed at the time they were assessed for conversion;

does Services Australia have to offer the employee casual conversion in respect of the actual position the employee is performing as a casual?

The Commissioner to answer the Agreed Question with either:

•  Yes, or

•  No, only if there was an existing ongoing vacancy in the Agency which was similar to the vacancy in (c).

[7] During the hearing, the following practical example employee was used – an employee who:

a) has been working in Toowoomba for six years;

b) has been working 3 days per week during that period;

c) has been working as a casual;

d) could continue their work as a full-time or part-time employee;

e) has gone through a merit selection process;

f) has been assessed as suitable for APS3 (ongoing or part-time); and

g) is sitting in a merit pool.

(the Toowoomba Employee)

[8] For the reasons set out below the Casual Conversion Term applies to the Toowoomba Employee. As such the proper application of the Casual Conversion Term would see Services Australia offer the Toowoomba Employee conversion to part-time, 3 days per week. 

[9] Consequently, I answer the Agreed Question with “Yes”.

Jurisdiction

[10] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.

[11] In the present matter, the clause in the Agreement dealing with dispute settling procedures is cl A10.1. It applies to “a matter arising under the Agreement, or the National Employment Standards”. 2 After compliance with the steps set out in cl A10.4 of the Agreement, the Agreement confers jurisdiction on the Commission to resolve disputes by first attempting to “resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation” and, if unresolved, “the Fair Work Commission may then arbitrate the dispute and make a determination that is binding on the parties”.3

[12] Conciliation was attempted on 20 December 2021 without success.

[13] It is common ground between the parties that the Commission has jurisdiction to arbitrate the dispute relating to the Casual Conversion Term by answering the Agreed Question.

[14] However, Services Australia submitted that “the Commission does not have jurisdiction to hear any dispute as to powers or functions that decision makers in the Agency have or have not exercised under the PS Act or the APSC Directions. These matters do not arise under the National Employment Standards or the Department of Human Services Enterprise Agreement 2017-2020. To the extent that the CPSU argues that the Agency’s decision makers have erred in exercising or not exercising such powers or functions, this falls outside the Commission’s jurisdiction”. 4

[15] In answering the Agreed Question in the affirmative I have not made any decision directing the Agency Head to exercise or not exercise any powers or functions under the PS Act or the APSC Directions. For the reasons set out below, the answer “Yes” to the Agreed Question is entirely consistent with the operation of the PS Act or the APSC Directions.

Substantive hearing

[16] At the substantive hearing on 25 February and 10 March 2022,

a) the CPSU was represented by Ms R Fawcett, Director, Legal and Industrial, and

b) Services Australia was represented by Ms I Sekler, Of Counsel, instructed by Ms Mann, and Mr S Reeves, both of whom are Senior Lawyers from the Australian Government Solicitor.

[17] In advance of the substantive hearing the parties filed material. For completeness I set out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.

[18] At the hearing Mr Coady, Ms Houghton and Mr Stroppiana were all required for cross-examination

Relevant legal provisions

[19] Essentially, the dispute relates to the correct application of the Casual Conversion Term. It is therefore useful to set out the relevant sections in the FW Act:

“66B Employer offers

(1) Subject to section 66C, an employer must make an offer to a casual employee under this section if:

(a) the employee has been employed by the employer for a period of 12 months beginning the day the employment started; and

(b) during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).

Note: An employee who meets the requirements of paragraphs (a) and (b) would also be a regular casual employee because the employee has been employed by the employer on a regular and systematic basis.

(2) The offer must:

(a) be in writing; and

(b) be an offer for the employee to convert:

(i) for an employee that has worked the equivalent of full-time hours during the period referred to in paragraph (1)(b)--to full-time employment; or

(ii) for an employee that has worked less than the equivalent of full-time hours during the period referred to in paragraph (1)(b)--to part-time employment that is consistent with the regular pattern of hours worked during that period; and

(c) be given to the employee within the period of 21 days after the end of the 12 month period referred to in paragraph (1)(a).

Note: If an offer is accepted, the conversion to full-time employment or part-time employment has effect for all purposes (see section 66K).

(3) For the purposes of paragraph (2)(b), in determining whether an award/agreement free employee has worked the equivalent of full-time hours, regard may be had to the hours of work of any other full-time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee.”

“66C When employer offers not required

(1) Despite section 66B, an employer is not required to make an offer under that section to a casual employee if:

(a) there are reasonable grounds not to make the offer; and

(b) the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.

(2) Without limiting paragraph (1)(a), reasonable grounds for deciding not to make an offer include the following: …

(d) making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

…

(4) The notice must:

(a) advise the employee that the employer is not making an offer under section 66B; and

(b) include details of the reasons for not making the offer (including any grounds on which the employer has decided to not make the offer); and

(c) be given to the employee within 21 days after the end of the 12 month period referred to in paragraph 66B(1)(a).”

[20] The relevant provisions of the PS Act are as follows:

“8 Relationship with Fair Work Acts

(1) This Act has effect subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.”

“10A Employment Principles

(1) The APS is a career based public service that: …

(c) makes decisions relating to engagement and promotion that are based on merit; …

(2) For the purposes of paragraph (1)(c), a decision relating to engagement or promotion is based on merit if:

(a) all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and

(b) an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and

(c) the assessment is based on the relationship between the candidates’ work related qualities and the work related qualities genuinely required to perform the relevant duties; and

(d) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and

(e) the assessment is the primary consideration in making the decision.

Note: Commissioner’s Directions may determine the scope or application of the APS Employment Principles (see subsections 11A(2) and (3)).”

“11A Commissioner’s Directions about employment matters

(1) The Commissioner may issue directions in writing about employment matters relating to APS employees, including the following:

(a) engagement; …

(2) The Commissioner may issue directions in writing in relation to any of the APS Employment Principles for the purpose of:

(a) ensuring that the APS incorporates and upholds the APS Employment Principles; and

(b) determining where necessary the scope or application of the APS Employment Principles.

Note: See section 42 for general provisions relating to Commissioner's Directions.

(3) For the purposes of this Act (other than subsection (2)), the APS Employment Principles have effect subject to any restrictions in directions issued under subsection (2).”

“42 Commissioner’s Directions

(2) Agency Heads and APS employees must comply with Commissioner's Directions. …

(4) Commissioner's Directions are legislative instruments.”

[21] The relevant provisions of the APSC Directions are as follows:

“7 Meaning of vacancy

In this instrument, a vacancy exists in an Agency when a decision has been made that:

(a) a specified group of duties need to be performed; and

(b) it is appropriate to consider engaging a person or promoting an APS employee to perform the duties.

Note: A vacancy may also be filled by the movement of an APS employee at the employee’s current classification.”

“9 Meaning of similar vacancy

In this instrument, a vacancy is a similar vacancy to a notified vacancy if:

(a) one of the following applies:

(i) it is in the same Agency;

(ii) it is an SES vacancy;

(iii) it is a vacancy in a centrally coordinated entry‑level program;

(iv) the Agency Head of the Agency in which the notified vacancy existed, another Agency Head and a candidate who applied for the notified vacancy agree, in writing, that the vacancy is a similar vacancy in relation to the candidate;

(v) if the notified vacancy relates to a function that was moved to another Agency after the notification by a machinery of government change—it is in the Agency to which the function was moved; and

(b) all of the following apply:

(i) it is the same category of employment (ongoing or non‑ongoing);

(ii) it comprises similar duties;

(iii) it is at the same classification;

(iv) it is to be performed in a similar location.”

“18 How an Agency Head upholds APS Employment Principle 10A(1)(c)

An Agency Head upholds APS Employment Principle 10A(1)(c) when deciding whether to engage or promote a person in the Agency if the Agency Head ensures that the decision is based on a selection process that meets:

(a) the requirements of Subdivision B (which requires merit‑based selection processes); or

(b) the requirements of a provision set out in Subdivision C (which sets out circumstances in which merit‑based selection processes are modified or do not apply).

Note: Paragraph 10A(1)(c) of the Act requires decisions relating to engagement and promotion to be based on merit.”

“19 Merit based selection process for engagement or promotion

(1) A selection process meets the requirements of this Subdivision if all of the following apply:

(a) the aim and purpose of the selection process is determined in advance;

(b) information about the selection process is readily available to applicants;

(c) the selection process is applied fairly in relation to each eligible applicant;

(d) the selection process is appropriately documented.

(2) When making a decision using such a selection process:

(a) merit is the primary consideration; and

(b) if any eligible applicants are otherwise equal on merit—secondary considerations may be taken into account if they relate to matters within the control of the applicant

Note: Paragraph (b)—matters within the control of the applicant include the applicant’s ability to start by a particular date, willingness to relocate or to meet other reasonable Agency requirements.”

“20 Notification of vacancy in the Public Service Gazette

(1) Subject to this section, a selection process for a decision to fill a vacancy meets the requirements of this Subdivision only if:

(a) the vacancy, or a similar vacancy, in the Agency was notified in the Public Service Gazette within a period of 12 months before the written decision to engage or promote the successful applicant; and

(b) the vacancy was notified as open to all eligible members of the community; and

(c) the vacancy was notified with a closing date for applications of:

(i) at least 7 calendar days after the notification; or

(ii) if the Agency Head was satisfied that there were special circumstances and the Agency Head approved a shorter period—the end of that shorter period; and

(d) in the case of a vacancy which required approval by the Commissioner under subsection (2) before it could be notified—the Agency Head obtained that approval before the vacancy, or a class of vacancies including the vacancy, was notified.

Uncontested facts

[22] The following matters were either agreed between the parties or not substantially contested. Consequently, I make the following findings of fact:

a) On 27 March 2021 the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 passed into law introducing the Casual Conversion Term into the FW Act. 5

b) The transitional provisions of the Casual Conversion Term required Services Australia to assess existing casual employees for eligibility for an offer of permanency before 27 September 2021. 6

c) On 12 July 2021 the Australian Public Service Commission (APSC) released a Circular which provided advice to Commonwealth government agencies as to how to apply the Casual Conversion Term. 7

d) The Circular advised that for agencies engaging employees pursuant to the PS Act a vacancy needed to exist at the time of assessment as a necessary pre-condition to offering an employee casual conversion.  8

e) On 20 July 2021, the CPSU wrote to the APSC raising concerns that the requirement for a vacancy to exist prior to offering casual conversion would require agencies to act in conflict with the Casual Conversion Term. 9

f) On 30 July 2021 the APSC replied to the CPSU disagreeing and stating that it was necessary to require the existence of a vacancy at the time of assessment in order to meet the merit principle required by the APSC Directions. 10

g) In September 2021 Services Australia offered 27 casual employees in a merit pool who met the criteria under the Casual Conversion Term ongoing employment because a vacancy or similar vacancy to the one which the employee applied for existed in the agency at the site, or an adjacent site. 11

h) 19 employees who were also in a merit pool and met the criteria under the Casual Conversion Term were not offered conversion on the basis that there was no available vacancy or similar vacancy to which they could be appointed to on an ongoing basis. 12

i) Two of these employees were Ms Moroney-Phillips and Ms Clothier. Both of whom satisfied the Casual Conversion Term and applied for, and through a merit selection process have been found suitable for, APS3 and APS4 positions within Services Australia, which were notified in the Public Service Gazette on 15 December 2020. 13

j) Services Australia did not make an offer of casual conversion to Ms Moroney-Phillips and Ms Clothier, and in doing so issued them each with a notice under section 66C(4) stating there was no available vacancy or similar vacancy to which they could be appointed to on an ongoing basis. 14

k) As at 28 February 2022 12 of the 19 employees referred to in (i), including both Ms Moroney-Phillips and Ms Clothier, are now either ongoing employees or have accepted offers of ongoing employment engaged through normal merit-based selection processes (i.e., not under the Casual Conversion Term). 15

l) That is to say, at the date of the hearing the decision has application to 7 remaining employees not offered casual conversion. However, it obviously has wider implications for casuals employed by the Commonwealth.

Submissions

[23] The CPSU submitted that,

The Casual Conversion Term

17. “… The Casual Conversion Term was inserted into the NES at Part 2-2, Division 4A of the FW Act. It requires employers to offer permanent employment to casual employees who meet the eligibility criteria at s 66B(1) (eligible casuals)¹⁶.

18. The Casual Conversion Term builds on and adapts the model casual conversion clause¹⁷ which was incorporated into most modern awards by the Commission in 2017 18. Inclusion in the NES was aimed at extending a casual conversion mechanism to all national system employees, not just award-covered employees.

19. Whereas the award term provides the employee with a right to request conversion, the NES Casual Conversion Term creates obligations for the employer. This was seen as necessary to address the power imbalance between casual employees and their employer, where casuals might be reticent to make a request.

20. The Explanatory Memorandum states¹⁹:

While employers and employees can agree to be engaged under a different form of employment at any time, arguably the power to do this currently rests largely with the employer. Casual employees may also be hesitant to engage with their employer on such matters due to concerns about losing work or being treated differently as a result of making a request to convert to ongoing employment.

21. Parliament therefore saw fit to create an obligation on employers; that is, a requirement to offer permanent employment to eligible casual employees.

22. Where an employee meets the eligibility criteria at s 66B(1) of the FW Act, the employer must offer the employee permanent employment unless there are reasonable grounds not to do so²⁰. There are two eligibility criteria: length of service (12 months); and the regularity of the employee’s pattern of hours. Section 66B(1) states:

23. Subject to section 66C, an employer must make an offer to a casual under this section if:

a. the employee has been employed by the employer for a period of 12 months beginning on the day employment started; and

b. during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or part-time employee (as the case may be).

Note: An employee who meets the requirements at paragraphs (a) and (b) would also be a regular casual employee because the employee has been employed by the employer on a regular and systemic basis.

24. The work of s 66B(1) is to require the employer to offer an eligible casual employee a permanent position. It forces the employer to act, to say, here is a permanent position, and offer it to the eligible casual employee. The employer may not want an additional permanent position. It may prefer casual employment. But the Casual Conversion Term requires the employer to take this action, notwithstanding its preferences.

25. Once the employer has considered the eligibility requirements at s 66B(1), it can then consider whether there are reasonable grounds not to make an offer. Section 66C(1) states:

Despite section 66B, an employer is not required to make an offer under that section to a casual employee if:

(a) there are reasonable grounds no to make the offer; and

(b) the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.

26. Section 66B(2) goes on to outline reasons that might constitute reasonable grounds.

Without limiting paragraph (1)(a), reasonable grounds for deciding not to make an offer include the following:

(a) the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;

(b) the hours of work which the employee is required to perform will be significantly reduced in that period;

(c) there will be a significant change in either or both of the following in that period:

(i) the days on which the employee’s hours of work are required to be performed;

(ii) the times at which the employee’s ours are required to be performed;

(d) making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or Territory.

27. For Australian Public Service (APS) employees, the effect of s 66C(2)(d) is that an offer of ongoing employment under the Casual Conversion Term must conform with a recruitment or selection process required under the Public Service Act 1999 (PS Act), that is, a properly conducted merit selection process.

28. Section 66C(2)(d) requires the employer to ask, "when would an offer not comply?”, so that where an offer can be made to an APS employee who meets the criteria, following a properly conducted merit selection process, the employee must be made that offer.

29. Where an employer does not make an offer to a casual employee, the employer must provide the employee with written notice which includes “details of the reasons for not making the offer (including any grounds on which the employer has decided to not make the offer)”²¹.

30. The transitional provisions required employers to assess casuals employed before 27 March 2021 for eligibility before 27 September 2021²².

The Public Service Act

31. The merit principle is established by section 10A of the PS Act, which sets out the APS Employment Principles. It states that²³:

The APS is a career-based public service that…makes decisions relating to engagement and promotion that are based on merit.

32. Section 10A(2) goes on to set out the essential elements of merit-based decisions. It states²⁴:

For the purposes of paragraph (1)(c), a decision relating to engagement or promotion is based on merit if:

a. all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and

b. an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; an

c. the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and

d. the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and

e. the assessment is the primary consideration in making the decision.

Note: Commissioner’s Directions may determine the scope or application of the APS Employment Principles (see subsections 11A(2) and (3)).

33. In applying the Casual Conversion Term, an APS agency must make an offer of ongoing employment to an eligible casual employee, unless that offer would not conform with the APS Employment Principle of merit-based engagement and promotion. This creates an interaction between the Casual Conversion Term and s 10A of the Public Service Act, and the Australian Public Service Commissioner’s Directions 2016 (Commissioner’s Directions).

34. The PS Act is subject to the FW Act. This is clear from section 8(1) of the PS Act:

This Act has effect subject to the Fair Work Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

35. The effect of this provision is that APS agencies cannot stretch s 66C(2)(d) beyond what is required to meet the merit requirements of the PS Act.

The Commissioner’s Directions

36. Agency heads must comply with the Commissioner’s Directions²⁵, which are made pursuant to the PS Act²⁶. The Commissioner’s Directions are also subject to the FW Act²⁷.

37. When the modern version of the Public Service Act was introduced, the Explanatory Memorandum noted that Commissioner’s Directions to support the operation of the PS Act would cover a number of matters, including “Merit in Employment”²⁸.

38. Section 18 of the Commissioner’s Directions states that an agency head upholds the APS Employment Principle 10A(1)(c) (the merit principle) if engagement decisions meet the requirements of Subdivision B or Subdivision C²⁹. The processes in Subdivision B are most commonly applicable.

39. The purpose of Subdivision B is to ensure there is merit-based engagement and promotion in the APS. It gives effect to s 10A(1)(c) of the PS Act.

40. Subdivision B contains two key provisions. The first is s 19, which sets out the qualities of a recruitment and selection process that meet the merit principle. The second is section 20, which requires vacancies to be notified in the Public Service Gazette.

41. Section 19 states³⁰:

(1) A selection process meets the requirements of this Subdivision if all of the following apply:

(a) The aim and purpose of the selection process is determined in advance;

(b) Information about the selection process is readily available to applicants;

(c) The selection process is applied fairly in relation to each eligible applicant;

(d) The selection process is appropriately documented.

(2) When making a decision using such a selection process:

(a) Merit is the primary consideration; and

(b) If any eligible applicants are otherwise equal on merit – secondary considerations may be taken into account if they relate to matters within the control of the applicant.

42. The function of section 20, the other key provision in Subdivision B, is to require vacancies to be notified in the Public Service Gazette. It states³¹:

Basic requirement for notification of vacancy

(1) Subject to this section, a selection process for a decision to fill a vacancy meets the requirements of this Subdivision only if:

(a) The vacancy, or a similar vacancy, in the Agency was notified in the Public Service Gazette within a period of 12 months before the written decision to promote or engage the successful applicant; and

(b) The vacancy was notified as open to all eligible members of the community; and

(c) The vacancy was notified with a closing date for applications of:

i. At least 7 calendar days after the notification; or

ii. If the Agency Head was satisfied that there were special circumstances and the Agency Head approved a shorter period – the end of that shorter period; and

(d) In the case of a vacancy which required approval by the Commissioner under subsection (2) before it could be notified – the Agency Head obtained that approval before the vacancy, or a class of vacancies including the vacancy, was notified.

43. It is clear from the terms of this provision that its purpose is to ensure that vacancies are notified in the Gazette, and to ensure they are notified in the correct manner.

What is a “vacancy”

44. The concept of a “vacancy” does not arise in the PS Act. The definition of a vacancy is provided at section 7 of the Commissioner’s Directions, which reads³²:

In this instrument, a vacancy exists in an Agency when a decision has been made that:

a. A specified group of duties need to be performed; and

b. It is appropriate to consider engaging a person or promoting an APS employee to perform the duties.

45. A vacancy is simply a decision that there are duties that need to be performed, and that the agency may consider engaging someone to perform them. It is a decision that precedes the position being advertised in the Public Service Gazette, which is followed by a merit selection process, then a decision to engage.

46. These steps are as follows:

a. The agency head decides there is a vacancy, as described at s 7 of the Commissioner’s Directions;

b. The vacancy is advertised in the Public Service Gazette, in accordance with s 18 of the Commissioner’s Directions;

c. There is a recruitment and selection process that meets the requirements of s 19 of the Commissioner’s Directions;

d. Following the recruitment and selection process, there is a decision to engage a person to perform the role.

47. The existence of a vacancy is not something the agency has no control over. It is not an immutable situation. It is a decision that the agency head or its delegates take or don’t take, at their discretion.

48. In the APS, where employees meet the eligibility criteria at s 66B(1) of the FW Act, the Casual Conversion Term operates to create the vacancy, or put another way, it requires the employer to recognise that the role must be offered on an ongoing basis.

What is a “similar vacancy?”

49. An agency head may decide to engage an employee who has already been rated suitable in a merit selection process, where that person has been placed in a merit pool or on a merit list. Section 20(1)(a) makes provision for this, by allowing agencies to engage an employee where the vacancy they were rated suitable for is similar to the duties they will be engaged to perform.

50. The definition of a suitable vacancy is provided at section 9³³. It states:

In this instrument, a vacancy is a similar vacancy to a notified vacancy if:

a. one of the following applies:

i. it is in the same Agency; and

…..

b. all of the following apply:

i. it is the same category of employment (ongoing or non-ongoing);

ii. it comprises similar duties;

iii. it is at the same classification;

iv. it is to be performed in a similar location.

51. The definition of “similar vacancy” allows agencies to engage employees rated suitable and placed in a merit pool if the duties to be performed share the characteristics of the vacancy they applied for.

52. In relation to casual employees eligible for conversion, it requires that the vacancy they applied for (and were rated suitable for, then placed in a merit pool following a recruitment and selection process) shares the same characteristics as the job they will be offered (same agency, similar duties, same classification, similar location).

When will an offer conform with the merit principle?

53. If an employee has been rated suitable in a recruitment and selection process that meets the requirements of the PS Act and the Commissioner’s Directions, which are directed at upholding the merit principle, then they can be made an offer of ongoing employment that conforms with a recruitment and selection process required by or under Commonwealth law.

54. If they are an eligible casual employee under the Casual Conversion Term, then they must be made that offer.

55. For an eligible casual who meets the eligibility requirements at s 66B(1), an offer under s 66B(2) will conform with a recruitment or selection process required by or under Commonwealth law when the following requirements are met:

Table 1: When an offer confirms with the merit principle

56. In answer to the question before the Commission, employees in the general circumstances of those in the Vacancy Cohort are capable of being made an offer in conformity with the requirements of the PS Act and the Commissioner’s Directions if the recruitment and selection process they were subject to followed met each of these 5 requirements.

57. S 66C(2)(d) requires the employer to ask “when would an offer not comply?” To ask, is there any requirement under the Commissioner’s Directions or PS Act that has not been met? If the answer is no, and there is no deficiency, then the offer must be made.

58. Casual employees in the Vacancy Cohort participated in bulk recruitment rounds conducted by Services Australia in the twelve months leading up to the deadline for the assessment under the transitional provisions (27 September 2021) . The bulk recruitment round was for ongoing APS3 customer service roles. The vacancies were advertised in the Public Service Gazette. A recruitment and selection process was then conducted. Following that process, employees were rated as suitable and placed in a merit pool on the basis of merit.

59. Employees in the Vacancy Cohort were subject to a process that met the 5 requirements above, and were therefore capable of receiving an offer of ongoing employment in conformity with the PS Act and the Commissioner’s Directions. Because there was no reason not to make the offer, the employer was required to make the offer.

The approach of Services Australia

60. Services Australia accepts that as a national system employer, it must apply the Casual Conversion Term to its employees. However, it considers that the agency head has almost complete discretion not to make an offer, even where a casual employee meets the eligibility criteria, and where the employee has been rated suitable in a merit selection process for a similar role and placed in an active merit pool.

61. Services Australia informed employees in the Vacancy Cohort that it would not offer them ongoing employment because there was “no available vacancy” at the time employees were assessed under the Casual Conversion Term. This was just prior to 27 September 2021.

62. Notices to employees in the Vacancy Cohort said the casual employee met “the eligibility requirements for casual conversion”; and were “listed in a current merit pool maintained by the agency”, but would not be offered an ongoing role because there was “no available vacancy or similar vacancy to which you could be appointed on an ongoing basis”³⁴.

63. Services Australia says that this provides reasonable grounds under s66C(2)(d) of the FW Act not to make an offer³⁵.

64. Services Australia’s position relies on advice provided by the Australian Public Service Commission (APSC) in Circular 2021/03: Fair Work Act changes to Casual employment³⁶. The APSC position is that even where a vacancy was advertised in the Public Service Gazette, and the eligible casual employee was rated suitable in a recruitment and selection process and placed in a merit pool, if an employee is to be made an offer of ongoing employment, there needs to be a second vacancy at the time of assessment for casual conversion³⁷.

65. The difficulty is that Services Australia and the APSC take this “second vacancy” requirement further, to say that it allows an agency head to exercise its discretion not to offer an ongoing role.

66. Services Australia and the APSC do not appear to accept that the Casual Conversion Term operates to create the vacancy, or to put it another way, that the FW deems that an ongoing role exists which must be offered to the eligible casual employee.

67. Advice provided by the APSC to the CPSU illustrates this position. On the APSC view, there must be two vacancies for the eligible casual employee to be made an offer. The first is the vacancy that was advertised in the Public Service Gazette, followed by a merit selection process, and the creation of a merit pool in which the eligible casual employee was placed. Then, according to the APSC, for an eligible casual employee to be made an offer, there must be a second vacancy at the time they are assessed for conversion.

68. Because a vacancy is simply a decision that there are duties to be performed³⁸, this allows the agency head to decide that there is no vacancy, or that it does not wish to offer ongoing employment to the eligible casual employee.

69. Although Services Australia seems to treat the availability of a vacancy as something that is fixed, there is some acknowledgement that existence of a vacancy is a decision that is taken. It says, in applying the Casual Conversion Term, there are various considerations an agency head will take into account when deciding whether there is a vacancy or not. These include whether³⁹:

a. the position is funded within existing budget;

b. the position is within the business area’s allocation of Agency Staffing Levels; and

c. there are sufficient duties to be performed at the relevant classification.

Difficulties with Services Australia’s approach

70. There are a number of difficulties with Services Australia’s approach. They stem from a fundamental misinterpretation of what the Casual Conversion Term does.

Issue one: There is no discretion to side-step the Casual Conversion Term

71. Services Australia’s position provides the agency head with complete discretion to decide not to offer ongoing employment to an eligible casual employee. This approach to the Casual Conversion Term is incorrect.

72. The Casual Conversion Term does not allow an employer’s preference for casual employment to override its obligation to offer permanent employment. It is the very purpose of the Casual Conversion Term to require employers to offer permanency to eligible casual employees. That is at the heart of what the Casual Conversion Term does. It does not ask whether that is something the employer wants to do.

73. The existence of a vacancy or lack of a vacancy is not an accidental situation; it does not sit outside of the agency’s decision-making processes. A decision that there is no vacancy is a deliberate decision. It is the agency head saying that it does not wish to create an ongoing role, or to acknowledge that it must offer an ongoing role. It is the agency head deciding that it prefers the duties to be performed by the employee on a casual basis instead of an ongoing basis.

74. When Services Australia says there needs to be second vacancy at the time of assessment, it is in fact saying two things:

a. There needs to be a pre-existing second vacancy at the time of assessment;

b. The agency does not want the eligible casual employee to be offered an ongoing role, because it has a preference for the work to be performed on a casual basis.

75. This approach cannot be consistent with the Casual Conversion Term. The Casual Conversion Term requires the employer to offer permanent employment to eligible casuals, regardless of its preferences.

76. In Services Australia’s view, the agency head has complete discretion to side-step the Casual Conversion Term, and decide not to offer eligible casual employees ongoing employment, even where they are placed in an active merit pool for a vacancy similar to their current role. This allows the agency head’s preference for casual employment to trump the Casual Conversion Term.

77. This does appear to be what the agency is aiming at. Template contracts provided to Services Australia casual employees in January 2022 explain to casual employees that the agency will not be making offers of ongoing employment to them under the Casual Conversion Term⁴⁰:

In certain circumstances, under the Fair Work Act 2009 (Cth), Services Australia may be required to consider offering you the opportunity to convert to full-time or part-time employment.

Due to the requirement that ongoing employees may only be engaged on the basis of merit, and other statutory limits on the ability of Services Australia to engage you as a full-time or part-time employee, Services Australia does not propose to offer you the opportunity to convert to full-time or part-time employment.

78. A position that allows Services Australia to side-step the Casual Conversion Term, when parliament has subjected the Commonwealth as an employer to it, cannot be sustained.

Issue two: Misconstruction of the Casual Conversion Term

79. Service Australia’s insistence that a requirement for a second vacancy at the time of assessment constitutes a reasonable ground under s 66C(2)(d) rests on a misunderstanding of what the Casual Conversion Term does.

80. The Casual Conversion Term operates to create a permanent or ongoing position in certain circumstances. If there does need to be a second vacancy at the time of assessment, the second vacancy exists by virtue of the casual employee’s eligibility for conversion. The Casual Conversion Term forces the employer to recognise that it must offer ongoing employment to the eligible employee.

81. The obligation to offer permanent employment contains within it a requirement to create the role, or putting it another way, to recognise that that role exists. It is a logical prior step; an employer cannot offer a permanent role unless they have created it or they recognise it exists. In the private sector, the employer can simply create the role, or recognise that it exists. In the APS, this may be described as recognising that a second vacancy exists. Whatever the language, the effect is the same. That is the nature of the Casual Conversion Term, and its operative effect.

82. Where an employee is to be engaged from a merit pool, the Commissioner’s Directions require the agency to ensure the duties to performed by the casual employee are “similar” to the vacancy that was advertised in the Public Service Gazette, as described at s 9 of the Commissioner’s Directions. The agency is required by the Casual Conversion Term to recognise it must offer an ongoing role to an eligible casual employee who has been placed in an active merit pool, if the vacancy they are applied shares characteristics with the role they will be offered (same agency, similar duties, same classification, similar location).

Issue three: Circularity of Services Australia’s Approach

83. There is an inherent circularity in Services Australia’s reasoning. S 66C(2)(d) requires the employer to ask, “when would an offer not conform” with a recruitment or selection process required under Commonwealth law. Because the existence or non-existence of a vacancy is simply an exercise of discretion, Services Australia’s answer to the question posed by s 66C(2)(d) is “when we say so”.

84. There is nothing standing in the way of offering employees in the Vacancy Cohort ongoing employment. The recruitment and selection processes they were subject to met all the requirements of the Commissioner’s Directions and the PS Act. Because there is no deficiency in the steps followed, and nothing that would prevent Services Australia making the offer, it must make the offer, if it applies s 66C(2)(d) correctly.

Issue four: No connection to the Merit Principle

85. Services Australia’s contention that an agency head has discretion to say there is no vacancy and to decline to make an offer, has no connection to the merit principle.

86. The requirements of s 10A(1) and s 10A(2) of the PS Act and Subdivision B of the Commissioner’s Directions are not routine employment processes. They exist to create and maintain an APS with merit-based employment. Public service legislation does more than regulate the employment relationship, it serves public and governmental interests 41. The tradition of a professional and politically neutral public service is based on reforms that put an end to ministerial patronage, replacing it instead with a “permanent professional public service based on competitive recruitment and selection processes”42.

87. The PS Act, the APS Values, and the APS Employment Values, are directed at enhancing “the effective functioning of the APS as an apolitical organisation of integrity” to further the system of responsible government 43.

88. The merit principle, and APS recruitment and selection processes, are grounded in these purposes. It is directed at ensuring employment in the APS is open to all Australians, and that engagement decisions are based on the merit of the candidates. It aims to protect against patronage and nepotism, and thereby protect the integrity of the APS to serve public and governmental purposes. This is the function of the merit principle.

89. It is the merit principle that is the essential feature of APS recruitment and selection processes. It is what serves the purpose of the PS Act to “establish an apolitical public service that is efficient and effective in serving the Government” 44.

90. The concept of a vacancy does not arise in the PS Act. It is not mentioned in the APS Employment Principle at s 10A(1)(c), or 10A(2), which together, comprise the merit principle. The concept of a vacancy appears in the Commissioner’s Directions, in section 20, in the context of the requirement to advertise positions in the Public Service Gazette. That is its function in the Commissioner’s Directions: it describes what is advertised in the Gazette.

91. The concept of a similar vacancy exists to facilitate merit lists or merit pools. Its purpose is to ensure that the duties that the employee will perform on engagement share the characteristics of the duties that were advertised (same agency, similar duties, same classification, similar location).

92. The merit principle is the essential requirement of the PS Act and the Commissioner’s Directions. Each of the relevant provisions in the PS Act and Commissioner’s Directions is directed at ensuring engagement decisions in the APS are based on merit.

93. A position that an agency head has discretion not to offer an ongoing position to an eligible casual where it does not wish to, in no way serves the merit principle. It has no connection to merit. Instead, it is an attempt to allow the agency to maintain an unfettered ability to retain a long-term casual workforce.

Issue five: Erroneous considerations

94. Services Australia says that in deciding whether to create a vacancy or not, its decision-makers will consider whether the position is funded in the budget, the Average Staffing Level cap, and whether there are sufficient duties at the classification level. These are erroneous considerations.

95. The obligation under the Casual Conversion Term is to offer permanent (ongoing) employment to eligible casual employees, unless there are reasonable grounds not to. The considerations cited by Services Australia are not reasonable grounds contemplated at s 66C(2). They are all considerations that go to an employer’s preference. The employer may not want to create an additional permanent role. It may prefer to budget for a casual position rather than a permanent one. But these preferences are beside the point; they are not reasonable grounds pursuant to s 66C.

96. At any rate, the decision to fund or not fund a position is a decision, not a fixed situation. It is within the control of the agency. Casual employees are counted in the ASL cap. Services Australia continues to maintain a very large casual workforce, many of whom are long term. It is trite to say there may be insufficient duties at the classification level, simply because the agency would prefer the duties to be performed on a casual basis rather than an ongoing basis. Notwithstanding the lack of reasonable grounds that these considerations constitute, they are dubious as a question of fact.

Issue six: Conflict with the Fair Work Act

97. Services Australia’s approach brings the Commissioner’s Directions into direct conflict with the FW Act.

98. The PS Act and the Commissioner’s Directions are subject to the FW Act. This is the clear intention of parliament, reflected in s 8 of the PS Act, designed to ensure that the APS operates in the general workplace relations framework, and that any exemptions are specifically set out in the PS Act⁴⁵. Parliament did not exempt the APS from the Casual Conversion Term. In fact, as a national system employer, the Commonwealth is directly subject to it.

99. The effect of s 8 of the PS Act is that APS agencies cannot stretch s 66C(2)(d) beyond what is required to meet the merit requirements of the PS Act.

100. The Public Service Act cannot be relied on by APS agencies to broaden the reasons it can rely on not to offer eligible casual employees ongoing employment. It cannot go so far as to allow the agency head to simply decide that they do not want to create an ongoing position. Such an approach would circumvent the purpose of the Casual Conversion Term.

Summary

101. In answer to the question before the Commission, employees in the general circumstances of those in the Vacancy Cohort are capable of being made an offer in conformity with the requirements of the PS Act and the Commissioner’s Directions if:

a. At the time of assessment for conversion, the employee was placed in an active merit pool, having been rated suitable in a merit selection process⁴⁶.

b. The vacancy the employee applied for was advertised in the Public Service Gazette within the last 12 months, was open to all eligible members of the community, and had a closing date at least 7 days after it was advertised⁴⁷.

c. The vacancy applied for⁴⁸:

i. Was in the same agency as the employee’s current role;

ii. Was ongoing;

iii. Comprised similar duties to the duties currently performed; Was at the same classification level of the employee’s current duties; and

iv. Was in a similar location.

d. The selection process met the following requirements: the aim and purpose was determined in advance, information about the process was readily available to applicants, the process was applied fairly in relation to each eligible applicant, and the process was appropriately documented⁴⁹.

e. Merit was the primary consideration for determining the employee’s rating as suitable⁵⁰.

102. Employees in the Vacancy Cohort met these requirements, and should have been made an offer of ongoing employment by Services Australia.

103. The respondent’s position undermines the purpose of the Casual Conversion Term, which is to require employers to offer permanent employment where casual employees are eligible.

104. The 5 requirements outlined by the applicant represent the correct approach to employees in the Vacancy Cohort.

105. No other national system employer is permitted to treat the Casual Conversion Term as optional. This would be the effect of Services Australia maintaining its position that the agency head has the discretion to decide not to offer ongoing employment to eligible casuals who have been subject to a properly conducted merit selection process, rated suitable, and placed in an active merit pool.”

[24] Services Australia submitted that,

The recruitment or selection processes required by or under a law of the Commonwealth

4. “… The required steps for a Commonwealth recruitment or selection process are therefore:

Step 1— at least 1 ‘vacancy’ (or more) has to have been created, in accordance with s 7 of the 2016 APSC Directions, by an Agency decision maker making a decision that (a) a specified group of duties needs to be performed and (b) it is appropriate to consider engaging a person or promoting an APS employee to perform the duties.⁵¹

Step 2 — the initial vacancy or vacancies must be notified in the Public Service Gazette in accordance with s 20(1)(a)-(c) of the 2016 APSC Directions.

Step 3 — there must be a competitive selection process for the initial vacancy or vacancies, where merit is the primary consideration, in accordance with s 19 of the 2016 APSC Directions.

Step 4 — certain candidates (in the position of the Employees) are not offered the initial vacancy or vacancies.⁵²

Step 5 — having been found suitable, those in the position of the Employees may be placed in a merit pool⁵³ so that they can be considered for engagement if a ‘similar vacancy’, as defined by s 9 of the 2016 APSC Directions, arises in the allowable period (12 months), without the requirement to notify that vacancy: s 20(1)(a) of the 2016 APSC Directions.

5. If no ‘similar vacancy’ arises within the 12 month period, no further steps are taken.

6. However, if such a vacancy is to arise the following must take place in order for the Employees to obtain ongoing employment from their placement in the merit pool:

Step 6 – at least 1 ‘vacancy’ (or more) has been created, in accordance with s 7 of the 2016 APSC Directions, by an Agency decision maker making a decision that (a) a specified group of duties needs to be performed and (b) it is appropriate to consider engaging a person or promoting an APS employee to perform the duties.⁵⁴

Step 7 – if the vacancy in Step 6 is a ‘similar vacancy’, within the meaning of s 9 of the 2016 APSC Directions, to the notified vacancy in Step 1, the vacancy may be offered to the most appropriate candidate in the merit pool where the primary consideration and other merit requirements are met: s 10A(1)(c) and s 10A(2) or the PS Act, s 19(2)(b) and s 20 of the 2016 APSC Directions.⁵⁵

7. Properly construed, the recruitment and selection process requirements imposed by the PS Act and the 2016 APSC Directions satisfy the ‘reasonable grounds’ criteria in s 66C(1) and (2)(d) of the FW Act, noting the obligation to make an offer of casual conversion under s 66B only has effect ‘subject to’ s 66C.

…

FW Act

13. The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Act No 25 of 2021) inserted Division 4A entitled ‘Offers and requests for casual conversion’ into Part 2-2 of the FW Act. Subdivision B entitled ‘Employer offers for casual conversion’ contains ss 66B and 66C.

14. Section 66B is entitled ‘Employer offers’. Section 66B(1) imposes an obligation to make an offer of casual conversion for eligible casual employees. This obligation is expressly made ‘subject to s 66C’ in the initiating words of s 66B(1).

15. Section 66C(1) and (2) provide:

(1) Despite section 66B, an employer is not required to make an offer under that section to a casual employee if:

(a) there are reasonable grounds not to make the offer; and

(b) the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.

(2) Without limiting paragraph (1)(a), reasonable grounds for deciding not to make an offer include the following:

…

(d) making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.

16. The Explanatory Memorandum to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (EM)⁵⁶ includes the following passages concerning s 66C(2)(d) and reasonable grounds:

[37] New paragraph 66C(2)(d) is included for the avoidance of doubt. For example, the Public Sector Employment and Management Act 1993 (NT) and the associated Public Sector Employment and Management Regulations 2011 (NT) provide requirements for selecting employees within the Northern Territory Public Service, such as merit selection principles. There is nothing in new Division 4A that would require the Northern Territory Public Service to make an offer for casual conversion under Division 4A if this would be inconsistent with its statutory obligations. In such a case, new paragraph 66C(2)(d) should be read in conjunction with section 40 relating to the interaction between fair work laws and public sector employment laws.

[38] There may be other reasonable grounds on which an employer can decide not to make an offer, including those specific to their workplace or the employee’s role. Whether a ground is reasonable is to be assessed taking into account all of the circumstances, including the needs of the employer’s business and the nature of the employee’s role. ⁵⁷

Public Service Act 1999 (Cth)

17. Section 10A(1) of the Public Service Act 1999 (Cth) (PS Act) set out the APS Employment Principles. Section 10A(1)(c) expresses the ‘merit principle’, one of the APS Employment Principles, as follows:

(1) The APS is a career-based public service that:

…

(c) makes decisions relating to engagement and promotion that are based on merit; …

18. Section 10A(2) says the following about the meaning of the merit principle:

(2) For the purposes of paragraph (1)(c), a decision relating to engagement or promotion is based on merit if:

(a) all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and

(b) an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and

(c) the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and

(d) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and

(e) the assessment is the primary consideration in making the decision.

Note: Commissioner’s Directions may determine the scope or application of the APS Employment Principles (see subsections 11A(2) and (3)).

19. Section 7 defines the ‘Commissioner’ to be the Australian Public Service Commissioner (APS Commissioner).

20. Section 11A(1) allows the APS Commissioner to issue directions in writing about employment matters relating to the APS, including on the topic of ‘engagement’.

21. Sections 11A(2) and (3) relevantly provide:

Directions about APS Employment Principles

(2) The Commissioner may issue directions in writing in relation to any of the APS Employment Principles for the purpose of:

(a) ensuring that the APS incorporates and upholds the APS Employment Principles; and

(b) determining where necessary the scope or application of the APS Employment Principles.

Note: See section 42 for general provisions relating to Commissioner’s Directions.

(3) For the purposes of this Act (other than subsection (2)), the APS Employment Principles have effect subject to any restrictions in directions issued under subsection (2).

22. Section 42(2) provides that Agency Heads and APS employees must comply with the APS Commissioner’s Directions.

23. Section 42(4) further states that APS Commissioner’s Directions are legislative instruments.

The APSC Directions 2016 in effect on 27 September 2021

24. The 2016 APSC Directions, in effect on 27 September 2021, addressed requirements to uphold the merit principle in Division 1, entitled ‘Upholding APS Employment Principle 10A(1)(c)’ of Part 3, entitled ‘Recruitment and selection’.

25. Section 18 specifies how an Agency Head must uphold the merit principle⁵⁸ in APS Employment Principle 10A(1)(c) by ensuring a decision to engage or promote a person was based on a selection process according with either Subdivision B or C.⁵⁹

26. Subdivision B is entitled ‘Merit-based selection processes’. It contains ss 19 and 20.⁶⁰

27. Section 19 relevantly states:

19  Merit-based selection process for engagement or promotion

(1) A selection process meets the requirements of this Subdivision if all of the following apply:

(a) the aim and purpose of the selection process is determined in advance;

(b) information about the selection process is readily available to applicants;

(c) the selection process is applied fairly in relation to each eligible applicant;

(d) the selection process is appropriately documented.

28. It further requires at s 19(2)(a) that merit is the primary consideration and (b) if any eligible applicants are otherwise equal on merit — secondary considerations may be taken into account if they relate to matters within the control of the applicants.

29. Section 20 provides the basic requirements for the notification of a vacancy:

20  Notification of vacancy in the Public Service Gazette

(1) Subject to this section, a selection process for a decision to fill a vacancy meets the requirements of this Subdivision only if:

(a) the vacancy, or a similar vacancy, in the Agency was notified in the Public Service Gazette within a period of 12 months before the written decision to engage or promote the successful applicant; and

(b) the vacancy was notified as open to all eligible members of the community; and

(c) the vacancy was notified with a closing date for applications of:

(i) at least 7 calendar days after the notification; or

(ii) if the Agency Head was satisfied that there were special circumstances and the Agency Head approved a shorter period—the end of that shorter period; and

(d) in the case of a vacancy which required approval by the Commissioner under subsection (2) before it could be notified—the Agency Head obtained that approval before the vacancy, or a class of vacancies including the vacancy, was notified.

30. ‘Vacancy’ is defined in s 7:

In this instrument, a vacancy exists in an Agency when a decision has been made that:

(a) a specified group of duties need to be performed; and

(b) it is appropriate to consider engaging a person or promoting an APS employee to perform the duties.

31. ‘Similar vacancy’ is defined in s 9:

In this instrument, a vacancy is a similar vacancy to a notified vacancy if:

(a) one of the following applies:

(i) it is in the same Agency;

(ii) it is an SES vacancy;

(iii) it is a vacancy in a centrally coordinated entry-level program;

(iv) the Agency Head of the Agency in which the notified vacancy existed, another Agency Head and a candidate who applied for the notified vacancy agree, in writing, that the vacancy is a similar vacancy in relation to the candidate;

(v) if the notified vacancy relates to a function that was moved to another Agency after the notification by a machinery of government change—it is in the Agency to which the function was moved; and

(b) all of the following apply:

(i) it is the same category of employment (ongoing or non-ongoing);

(ii) it comprises similar duties;

(iii) it is at the same classification;

(iv) it is to be performed in a similar location.

32. A ‘notified vacancy’ in s 9 is one that has been notified in accordance with s 20 of the 2016 APSC Directions.⁶¹ A ‘similar vacancy’ must still be a ‘vacancy’ (as defined by s 7) in order to be similar to an (earlier) ’notified vacancy’.

33. The 2016 APSC Directions are a legislative instrument⁶² made under the PS Act⁶³ registered on the Federal Register of Legislation on 31 July 2019⁶⁴ and thus a ‘registered law’ of the Commonwealth.⁶⁵

34. The Commonwealth apprehends that the CPSU Submissions are largely directed to the issue of whether the PS Act and the 2016 APSC Directions either override or are inconsistent with s 66B of the FW Act. In light of that, these submissions will address the following points: (A) the relevant principles of statutory interpretation, (B) the construction of ss 66B-66C of the FW Act, (C) construction of the 2016 APSC Directions, (D) responses to the CPSU’s Submissions headed ‘Difficulties with Services Australia’s approach’, and (E) the CPSU interpretation.

Relevant principles of statutory interpretation

35. Statutory interpretation requires giving effect to what Parliament has enacted.⁶⁶ In doing so, a provision must be construed as a whole and so that it is consistent with the language and purpose of all the provisions of the statute.⁶⁷ The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. As Kiefel CJ and Keane J observed in The Queen v A2 and Others [2019] HCA 35; 269 CLR 507 at 521 (Nettle and Gordon JJ agreeing generally at 554 [148]):

[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy…

36. The text of a statute is the undoubted starting point for construction.⁶⁸ As part of this exercise, each word of the text is to be given meaning.⁶⁹

Construction of ss 66B and 66C of the FW Act

37. The following matters are key to construing s 66B and s 66C of the FW Act.

38. Firstly, the textual interrelationship between s 66B and s 66C of the FW Act is plain. Section 66B imposes an obligation to offer casual conversion, ‘subject to’ the ‘reasonable grounds’ exclusion in s 66C. This is apparent from the introductory words of s 66B(1) (ie ‘Subject to section 66C’) and s 66C(1) (ie ‘Despite section 66B’).

39. Secondly, s 66C(2) provides an illustrative, rather than exhaustive, list of examples of what comprises ‘reasonable grounds’. This list expressly includes at s 66C(2)(d) circumstances where ‘making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth…’. This plainly reflects Parliament’s intention that the provisions be interpreted by reference to existing processes required by or under laws of the Commonwealth and for those to be recognised as ‘reasonable grounds’.

40. Thirdly, in order to comply with a recruitment or selection process required by or under a law of the Commonwealth, the Agency must uphold⁷⁰ the merit principle set out in APS Employment Principle s 10A(1)-(2) of the PS Act and Division 1 of Part 3 of the 2016 APSC Directions which pertains to this principle. The PS Act expressly recognises the importance of the 2016 APSC Directions in expressing the merit principle and the process by which it is upheld.⁷¹ The merit principles in s 10A(1)-(2) of the PS Act and Division 1 of Part 3 of the 2016 APSC Directions plainly fall within s 66C(2)(d) of the FW Act.

41. Fourthly, this interpretation accords with the multifaceted objects of the FW Act, including flexibility, certainty, stability and fairness⁷² for employers and employees.⁷³ These objects are reflected in the operation of Division 4A which establishes that the obligation on an employer to offer conversion is not mandatory where there are reasonable grounds for not doing so: s 66B and s 66C of the FW Act.

42. Fifthly, extrinsic materials form part of the context and inform identification of the purpose – and, therefore, meaning of the expression.⁷⁴ The meaning of s 66B and s 66C is confirmed⁷⁵ by reference to the EM.

43. The EM at [37] indicates that Parliament expressly considered the application of Division 4A to public sector employers and employees.⁷⁶

44. Sections 10A(1)-(2) of the PS Act, much like the NT legislation referred to in the EM, enshrine the critical role of the merit principle in the engagement of employees. The 2016 APSC Directions, as a legislative instrument, mandate the details of the principle and the process by which it is expressed.

45. Parliament’s intention, reflected in both the express text of s 66C(2) and the EM, is that nothing in Division 4A requires a Commonwealth public sector employee to make an offer inconsistent with a recruitment or selection process that is required by or under a law of the Commonwealth.

46. Division 4A should be interpreted consistently with this intention.⁷⁷

47. In light of the above, an obligation to make an offer of casual conversion under s 66B of the FW Act would only arise where (i) a vacancy, as defined by s 7 of the 2016 APSC Directions, in fact exists in the Agency, (ii) a casual employee has been assessed as suitable for a similar vacancy notified in the Gazette in the last 12 months, (iii) the Agency Head is satisfied that the casual employee is at least equal in merit to any other employee, and (iv) there are no other reasonable grounds to decide not to make the offer of casual conversion.

48. Further, contrary to the CPSU Submissions of 31 January 2022, the outcome is not a matter of the PS Act and the 2016 APSC Directions overriding or being inconsistent with s 66B of the FW Act.⁷⁸ It is simply a consequence of the proper construction of the interrelationship between the FW Act, the PS Act and the 2016 APSC Directions.

Construction of the 2016 APSC Directions

49. Ordinary principles of statutory interpretation apply to delegated legislation,⁷⁹ such as the 2016 APSC Directions.

50. Compliance with the 2016 APSC Directions is mandatory.⁸⁰

51. When exercising the power of engagement conferred by s 22 of the PS Act, Agency Heads must ‘uphold and promote’ the Australian Public Service (APS) Employment Principles in s 10A of the PS Act, including the merit principle contained in s 10A(1)(c) and s 10A(2): s 12 of the PS Act. The 2016 APSC Directions which facilitate the merit principle through recruitment and selection processes are set out in Division 1 of Part 3 and the associated definitions in Division 2 of Part 1. These directions are made under s 11A(1) and (2) of the PS Act.⁸¹ The steps required to comply with a recruitment or selection process required by or under a law of the Commonwealth, in so far as these steps are set out in the 2016 APSC Directions, are set out at [4]–[5] above. The steps arise plainly from the text of the 2016 APSC Directions.

52. The Commonwealth submits as follows.

53. Firstly, contrary to the CPSU Submissions on the construction of the 2016 APSC Directions at [84], [88]–[92], the formal process of identifying and then notifying vacancies set out in s 20 is an integral part of the processes underpinning the merit principle as it relates to engagement or promotion. This is apparent from the text and structure of Division 1 of Part 3 of the 2016 APSC Directions. Section 18 mandates how an Agency Head is to uphold APS Employment Principle 10A(1)(c) (ie the merit principle), and that is by adhering to a selection process that meets the requirements of Subdivision B, as relevant to this case. That subdivision is expressed in s 18 to require ‘merit-based selection processes’. One such process is found at s 19, where it is referred to in the singular. The other processes are by inference at ss 20 and 21. In so far as this is in issue in relation to s 20, s 20(1) expressly states that a selection process will not meet the requirements of the Subdivision (ie by reference back to s 18, the process will not be a merit based selection process) unless the steps in s 20(a)-(d) take place, subject to anything else in s 20. This textual and structural analysis is further supported by the headings to Subdivision B, entitled ‘Merit-based selection processes’ and s 19, entitled ‘Merit based selection process‘.⁸²

54. Second, the CPSU have previously contended that a similar vacancy could exist without a second vacancy being created.⁸³ It is unclear if the CPSU have abandoned this argument. However, the text of s 7, s 9 and s 20 read together make it apparent that 2 instances of vacancy are required — one at Step 1 and another at Step 6. In order for a ‘similar vacancy’ to have meaning, it must first be a vacancy (a defined term in s 7) that is identified by reference back to its similarities to the initial notified vacancy.⁸⁴

Responses to the CPSU’s ‘Difficulties with Services Australia’s approach’

55. This part of the submissions is directed to particular matters raised by the CPSU Submissions which warrant a specific response. It should be emphasised, however, that none of the matters raised gainsays the force of the Commonwealth’s construction at [49]–[54] above.

Issue 1 Characterising it as a ‘discretion to side-step the Casual Conversion Term’

56. At [59]–[68] of its submissions, the CPSU characterises the failure to make a decision to create a vacancy as ‘allow[ing] an agency head to exercise its discretion not to offer an ongoing role’.

57. The Agency submits that this misconstrues the operation of s 66C(2)(d) and, further, does not account for the relationship between the decision⁸⁵ to create a vacancy under s 7 of the APSC Directions and ss 66B-66C of the FW Act.

58. It is correct that the definition of ‘vacancy’ confers on an Agency Head (or their delegates) decision making authority as to when to create a vacancy in their agency. However, this is beside the point for 2 reasons.

59. Firstly, there is nothing in Division 4A of the FW Act which compels the creation of such a ‘vacancy’ for it to be filled, or for that to occur contrary to the requirements of ss 7, 9, 18-20 of the 2016 APSC Directions.

60. Secondly, the authority to create a ‘vacancy’ does not, properly construed, create a discretion as to whether a reasonable ground under paragraph 66C(2)(d) applies. This is a question of fact, determined at the time the Agency may otherwise be subject to the obligation under s 66B to make an offer of casual conversion (so in this dispute, 27 September 2021). If at that time, a vacancy did not exist, then making the offer would be contrary to the Agency’s obligations under the PS Act and the 2016 APSC Directions. It is this outcome, clearly contemplated by the legislation, which would cause the reasonable ground under s 66C(2)(d) to apply.

Issue 2 Misconstruction of the Casual Conversion Term

61. The CPSU’s issue 2 at [78]–[81] is that on its interpretation, Division 4A of the NES in some unspecified manner either (1) has the effect of creating a vacancy for the purposes of the APSC Directions, (2) imposes an obligation on the Agency to make a decision to create a vacancy.

62. There is nothing in the text, context or structure of Division 4A of the FW Act which indicates that it would cause a vacancy to be created. It further does not account for s 66B of the FW Act operating subject to s 66C.

63. Whilst it is always a matter of fact and degree whether ‘reading in’ words is justifiable, which would be required to read Division 4A as mandating the creation of a vacancy, the present case is far from circumstances where this is permitted. The words that would be required to be read in are not reasonably open having regard to the statutory scheme: Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531.

64. Contrary to [78]–[81] of the CPSU Submissions, the APSC Directions do not refer to or require an Agency to ‘recognise’ a vacancy exists or that a role must be offered on an ongoing basis if an eligible casual employee has been placed in a merit pool. They require a decision to have been made that the vacancy exists. A vacancy exists only when such a decision is made: s 7 of the 2016 APSC Directions.

65. The CPSU Submissions provide no meaningful basis upon which Division 4A can be said to deem or compel a decision under s 7 of the APSC Directions.

66. The CPSU Submissions at [81] similarly do not engage with the need for a vacancy to exist. The 2016 APSC Directions cannot be parsed as simply referring to the duties to be performed being similar to an advertised vacancy. This conflates multiple provisions and stages of the process. Properly construed, a decision is required to create a vacancy, which causes the vacancy to exist: s 7 of the 2016 APSC Directions. Second, that vacancy may be similar to a previously notified vacancy: s 9 of the APSC Directions. If it is, then s 20 may be satisfied by engaging a person in the merit pool without the vacancy being subject to gazette notification.

Issue 3 Circularity of Services Australia’s approach

67. The CPSU’s issue 3 repeats at [82] the argument that the Agency is afforded an impermissible discretion. This is addressed at [56]–[60], above. The CPSU asserts that there is nothing standing in the way of offering ongoing employment. This is not correct in the absence of a vacancy, as set out at [49]–[54] above.⁸⁶

Issue 4 Characterising the Agency’s position as having no connection to the merit principle

68. The CPSU’s issue 4 at [84]–[92] argues that the vacancy requirement has no connection to the merit principle. This is addressed at [53] above.

69. Even it were correct that the vacancy requirement had no connection to the merit principle, nothing would follow from it. Paragraph 66C(2)(d) of the FW Act makes no reference to the merit principle. It refers to a recruitment or selection process, required by or under a law of the Commonwealth. Section 20 of the 2016 APSC Directions clearly addresses recruitment or selection processes: it regulates when a ‘selection process for a decision to fill a vacancy’ meets the requirements of a Subdivision entitled ‘Merit-based selection processes’. Compliance with s 20 is mandatory.⁸⁷

70. Finally, any suggestion by the CPSU that the relevant provisions of the 2016 APSC Directions are beyond power, on the basis that they stray beyond imposing a merit principle only, is answered by s 11A(1)(a) of the PS Act, which broadly empowers the APS Commissioner to issue directions about ‘employment matters relating to APS employees’ including ‘engagement’.

Issue 5 Erroneous considerations

71. The CPSU’s issue 5 appears to misunderstand a statement in the Agency’s email of 15 December 2021.⁸⁸ At [23] of that email, the Agency identified some of the factors it takes into account in deciding whether to create a vacancy. The Agency does not rely on these factors, of themselves, as giving rise to a reasonable grounds under s 66C of the FW Act.

72. To any extent that the CPSU is arguing that the Agency cannot take these factors into account in making a decision under s 7 of the APSC Directions about whether to create a vacancy, that would fall outside the jurisdiction of the Commission in this dispute.

Issue 6 Conflict with the Fair Work Act

73. The CPSU Submissions at [96]–[99] submit that the Agency’s position brings the 2016 APSC Directions into conflict with the FW Act contrary to s 8 of the PS Act. However, as there is no relevant inconsistency between the PS Act or the 2016 APSC Directions and the FW Act, s 8 has no work to do. The requirements of the PS Act and the APSC Directions are encompassed by s 66B of the FW Act operating subject to s 66C.

The CPSU’s steps for when an offer of casual conversion must be made

74. The Commonwealth submits as follows in relation to the steps set out in Table 1 at [54] of the CPSU’s Submissions.

75. Firstly, it appears implicit in the CPSU’s steps that an initial decision to create a vacancy is required before the CPSU’s step 1.

76. Secondly, the CPSU’s steps 1-5 do not follow the process required by the 2016 APSC Directions. Most significantly, there is no step requiring a second, ‘similar vacancy’, to be created: s 9 requires a vacancy (as defined by s 7) to be similar to an earlier notified vacancy (as provided by s 20) in accordance with the criteria set out in s 9.

77. Thirdly, it implicitly appears to rely on Division 4A of the FW Act deeming or inserting an obligation to create a vacancy or make an offer which is not found in the text, structure or context of the Division. It does not accord with the proper construction of s 66B and 66C.

Disposition

78. The Commission decide that the steps required of the Agency to comply with a recruitment or selection process required by or under a law of the Commonwealth are those set out by the Commonwealth at [4]–[7] above.”

Consideration

[25] The Commonwealth is large employer. It is also a national system employer under the FW Act.  Further, it is important to understand that, pursuant to section 8 of the PS Act, the PS Act and its delegated legislation is subject to the FW Act.

[26] In the service delivery agencies, like Services Australia, the Commonwealth recruits frequently.  It conducts large national bulk recruitment rounds so that it can draw on merit calls of suitable candidates at its convenience.

[27] There is no special carve out from the Casual Conversion Term for the Commonwealth in the FW Act. The Casual Conversion Term applies to the Commonwealth. There is a general ability for employers (including the Commonwealth) not to make offers of casual conversion, but no special dispensation for the Commonwealth.

[28] The Casual Conversion Term imposes an obligation on an employer to do certain things when the parameters of the Casual Conversion Term apply. In this regard the Casual Conversion Term specifically went further than the Award based casual conversion terms that provided employees with a “right to request”. This is an important to the statutory construction to be applied in the present matter.

[29] The category of employees that the dispute applies to has been agreed by the parties. They are employees:

(a) who:

a. have been employed by Services Australia for a period of 12 months (or otherwise satisfying the terms of the transitional provisions); AND

b. during at least the last 6 months, have worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be); AND

c. have been rated as suitable in a merit selection process for a vacancy that was notified in the gazette in the last 12 months; AND

(b) where the vacancy applied for by them is similar to the duties they performed at the time they were assessed for conversion.

[30] It is also uncontested that the relevant existing causal employees of Services Australia who made an application during a bulk recruitment round:

(a) applied for vacancies advertised in the Public Service Gazette, that is to say, they competed with the entire Australian community;

(b) were tested, interviewed and ranked;

(c) have been ranked suitable and placed in a merit pool and can be offered a position at any time in the next 12 months. 89

[31] There is no doubt that the Services Australia casual employees in question have satisfied the merit principle.

[32] The evidence further establishes that these casuals:

a) are APS3 customer service officer positions;

b) applied in bulk rounds for an APS3 and APS4 role at the same time;

c) if they were offered casual conversion into APS3 roles, they would be doing the same work as their present work; and

d) they have not been offered casual conversion.

[33] The Commonwealth (Services Australia) relies on section 66C of the FW Act and contends that there are reasonable grounds for not making an offer. Services Australia contends that there needs to be a pre-existing vacancy at the time the casual is assessed for conversion and that this is an essential element of the recruitment and selection processes required under Commonwealth law.

[34] If the contention proposed by Services Australia is correct it would allow it to veto casual conversion. Such a contention is contrary to the legislative intent of the Casual Conversion Term. The PS Act “has effect subject to the FW Act…”. The PS Act and the APSC Directions do not override the FW Act.

[35] In any case the reliance on section 66C(2)(d) by Services Australia is misplaced. Obligating Services Australia to make an offer of casual conversion in the circumstances described in the Agreed Question does not cause Services Australia to be in conflict with “a recruitment or selection process required by or under a law of the Commonwealth…” The casual employees in question have been ranked as suitable. There is no conflict with the merit principle in the PS Act.

[36] Further, in conducting the bulk round recruitment the agency has made a decision that a vacancy exists (or will in the future). An assessment has already been made that:

a) a specified group of duties need to be performed; and

b) it is appropriate to consider engaging a person or promoting an APS employee to perform the duties.

[37] So much is evident from the decision to conduct a bulk round recruitment. For the avoidance of doubt, I reject utterly the “second vacancy” requirement advanced by Services Australia.

[38] Consistent with the APSC Directions, in a bulk round recruitment, there is a merit-based section process. Table 1 in the submissions made by the CPSU confirms the same. Further, there has been a notification of a vacancy in the Public Service Gazette.

[39] It makes no sense that casual conversion is not being offered to employees who:

(a) have been employed by Services Australia for a period of 12 months; and

(b) during at least the last 6 months, have worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employees could continue to work as full-time employees or part-time employees (as the case may be); and

(c) have been rated as suitable in a merit selection process for a vacancy that was notified in the gazette in the last 12 months; and

(d) the vacancy applied for at (c) is similar to the duties they are performing at the time they were assessed for conversion.

[40] No other national system employer could avoid its obligation to make an offer of casual conversion in these circumstances. Neither can the Commonwealth. I reject the contentions made on behalf of Services Australia. If accepted, in effect, those contentions would result in an agency head being able to frustrate, in its entirety, the intention of the Casual Conversion Term. Parliament cannot have so intended.

[41] To do otherwise would allow Services Australia to assert a preference that certain work continues to be performed on a casual basis instead of an ongoing basis.  That is not a correct application of the Casual Conversion Term.

[42] Section 66B imposes an obligation to offer permanent employment to eligible employees. Nothing in section 66C(2)(d) relieves Services Australia of that obligation.

[43] An offer can and must be made to eligible casuals sitting in an active merit pool at the time they are assessed for casual conversion. However, to be clear, it is a “like for like” offer that needs to be made. That is to say, if the eligible casual:

a) has been working 3 days per week, the ongoing offer is to a part-time position;

b) has been working 150 hours in a settlement period, the ongoing offer is a full-time position.

[44] I answer the Agreed Question with “Yes”.

COMMISSIONER

Appearances:

R. Fawcett for CPSU, the Community and Public Sector Union
I. Sekler for the Commonwealth of Australia (Services Australia)

Hearing details:

2022
Melbourne
25 February and 3 March

Printed by authority of the Commonwealth Government Printer

<PR741830>

 1   Transcript PN54–56.and further amended at Transcript PN293-297.

 2   Clause A10.1 of the Agreement

 3   Clause A10.5 of the Agreement.

 4   Respondent’s Outline of Submissions (Exhibit 28), at Court Book p 115.

 5   Applicant’s Outline of Submissions (Exhibit 10), at Court Book p 39.

 6   Ibid.

 7   Witness Statement of Nicolas Coady (Exhibit 11), at Court Book P 56.

 8   Ibid.

 9   Ibid p 57.

 10   Ibid.

 11   Supplementary Witness Statement of Mark Stroppiana p 2.

 12   Ibid.

 13   Factual matters conceded by Services Australia (Exhibit 40).

 14   Ibid.

 15   Supplementary Witness Statement of Mark Stroppiana p 2.

16 Note 1, s 66B(1)

¹⁷ Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020, Explanatory Memorandum, Regulatory Impact Statement, xii

 18   Fair Work Commission, [2017] FWCFB 3541, 5 July 2017

19 Note 9, viii

20 Note 1, s 66C

21 Note 1, s 66C(4)

22 Ibid, Schedule 1, s 47

23 PS Act, s 10A(1)(c)

24 Ibid, s 10A(2)

25 Ibid, s 42

26 Ibid, s 11 and s 11A

27 Ibid, s 8

28 Public Service Bill 1999, Explanatory Memorandum, p. 12

29 Commissioner’s Directions, s 18

30 Ibid, s 19

31 Ibid, s 20

32 Ibid, s 7

33 Ibid, s 9

34 Ibid, annexure NC-6, “Example Notice”

35 Ibid, annexure NC-14, correspondence from Services Australia to CPSU, 15 December 2021

36 Ibid, annexure NC-8, correspondence from Services Australia to CPSU, 13 October 2021

37 APSC Circular 2021/03: Fair Work Act changes to Casual employment, par. 34

38 Note 22, s 9

39 Note 5, annexure NC-14, correspondence from Services Australia to CPSU, 15 December 2021

40 Ibid, annexure NC-16, Terms and conditions for irregular and intermittent (casual) employment, January 2022

 41   McManus v Scott-Charlton McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16, 24-25

 42   Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373, per Gageler J, at 70

 43   Ibid, per Gordon J, at 153

 44   Note 16, s 3(a)

45 Note 21, p. 17

46 Note 22, s 20(1)(a)

47 Ibid, s 20(1)

48 Ibid, s 9

49 Ibid, s 19(1)

50 Ibid, s 19(2)

51 In practice, this is a question of real complexity which involves highly complex projections of current and future workforce need: Witness Statement of Rachel Houghton dated #.

52 This occurs as a consequence of other candidates being engaged by a process which meets the merit principle in s 10A(1)(c) and s 10A(2) of the PS Act and the relevant parts of the 2016 APSC Directions (including the preceding steps) including s 19(1)-(2)

53 The creation of a merit pool was foreshadowed as a possible outcome by the Gazettal: Witness Statement of Mark Stroppiana dated 14 February 2022 at Annexure MS-1.

54 In practice, this is a question of real complexity which involves highly complex projections of current and future workforce need: Witness Statement of Rachel Houghton dated 14 February 2022.

55 If candidates are equal in merit, then secondary considerations may be taken into account: s 19(2)(b) of the 2016 APSC Directions.

56 The same paragraphs are found in the Revised Explanatory Memorandum to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020.

57 Explanatory Memorandum to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020, at [37]–[38]. Section 40 of the FW Act relates to the interaction between fair work instruments and public sector employment laws. The Agency does not consider s 40 is relevant to this dispute, as no question arises whether a ‘fair work instrument’ prevails over a public sector employment law.

58 The Agency Head must also do this under s 12 of the PS Act.

59 Subdivision C relates to certain exceptions or modifications to normal merit selection requirements that are not applicable in this matter.

60 The remaining section in Subdivision B is s 21, which is only relevant to the engagement or promotion of Senior Executive Service employees.

61 Section 20 is entitled, ‘Notification of vacancy in the Public Service Gazette’. Sections 20(1)(a)-(c) provides for how a vacancy is notified.

62 PS Act, s 42(4); See also Legislative Instruments Act

63 PS Act, s 11A(1).

64 https://www.legislation.gov.au/Series/F2016L01430

65 Legislation Act 2003 (Cth), s 8(3)-(4) and s 15Z.

66 Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at 642 [99] per Crennan J; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 264-265 [31]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at 389-390 [25] per French CJ and Hayne J.

67 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ; see also K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315 per Mason J; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 31 [4] per French CJ, 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at 389 [24], 391 [30]-[31] per French CJ and Hayne J, 411 [88] - 412 [89] per Kiefel J; Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456 at 465 [19] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at 368 [14] per Kiefel CJ, Nettle and Gordon JJ; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 (Mondelez) at [13] per Kiefel CJ, Nettle and Gordon JJ.

68 Mondelez [2020] HCA 29 at [13] per Kiefel CJ, Nettle and Gordon JJ.

69 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) CLR 355 at 382 [71] per McHugh, Gummow, Kirby and Hayne JJ.

70 Section 42(2) of the PS Act provides that Agency Heads and APS employees must comply with the APSC Directions. Section 12 of the PS Act request Agency heads to uphold and promote the APS Employment Principles.

71 See Note to s 10A(2), s 11A(1)-(2) and s 42(2) and (4) of the PS Act. Regard can be had to Notes in the interpretation of an Act although they are not part of the Act itself: see Mondelez [2020] HCA 29 at [17] fn 21.

72 Fairness in this context is necessarily multifaceted and has a number of aspects including fairness to and between employers and fairness to and between employees: Mondelez [2020] HCA 29 at [14] per Kiefel CJ, Nettle and Gordon JJ.

73 Mondelez [2020] HCA 29 at [14] per Kiefel CJ, Nettle and Gordon JJ.

74 See Heydon and Crennan JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [98] (citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355); Mondelez [2020] HCA 29 at [13] per Kiefel CJ, Nettle and Gordon JJ.

75 Acts Interpretation Act 1901 (Cth), s 15AB(1)(a) and (3).

76 The reference to the Public Sector Employment and Management Act 1993 (NT) and the associated Public Sector Employment and Management Regulations 2011 (NT) provide requirements for selecting employees within the Northern Territory Public Service, such as merit selection principles.

77 Acts Interpretation Act 1901 (Cth) ss 15AA and 15AB(1)(a).

78 CPSU Submissions [96]–[99].

79 The fact that the ordinary principles of statutory construction apply in the present context is also apparent from Legislation Act 2003 (Cth) s 13(1)(a); See also ADCO Constructions Pty Ltd v Goudappel and Anor [2014] HCA 18; (2014) 254 CLR 1 (ADCO) at [28]-[34].

80 PS Act s 42(2).

81 See also 2016 APSC Directions, s 3.

82 Headings can be used in statutory interpretation in a similar way to extrinsic materials: The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; 269 CLR 507 at [40] per Kiefel CJ and Keane J.

83 See, eg, Ms Fawcett’s email of 1 December 2021, reproduced as attachment NC-13 to the witness statement of Mr Coady.

84 See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) CLR 355 at 382[71] per McHugh, Gummow, Kirby and Hayne JJ regarding the requirement to give each word meaning.

85 Ibid, fn 8 above.

86 Notably, the question of whether a responsible decision to create a vacancy can be made is far more complex than the CPSU represents at [82] and [83]: Witness Statement of Rachel Houghton dated 14 February 2022.

87 Compliance with the APSC Directions is required by law for APS employees and Agency Heads: PS Act s 42.

88 Email of 15 December 2021 from Mr Williams, reproduced as NC-14 to the witness statement of Nicolas Coady.

 89   Now been extended to 18 months under the 2022 Directions.