Application for conversion from fixed term contract to permanent employment dismissed

Details  Created: 17 April 2020

The Public Service Arbitrator has dismissed an application for the conversion of a fixed term contract employee to permanency on the basis that the employee did not meet the requirements of clause 2.1(a) of Commissioner’s Instruction No. 23 (CI 23).

Clause 2.1(a) of CI 23 requires that ‘the reason for engagement on a fixed term contract is not a circumstance mentioned in the relevant industrial instruments’.

The Arbitrator noted that a circumstance mentioned in the Public Service and Government Officers General Agreement 2014 and the Public Service and Government Officers General Agreement 2017, which were in effect at the time of the employee’s employment, was for employment on a fixed-term contract to cover a “one-off period of relief”. His operative contract on the 10 August 2018 explicitly stated his fixed term position was a “one-off period of relief” to cover the position of another worker during the period between July and December 2018.

As the contract indicated a reason for his engagement on the contract mentioned in the agreements, he had not met cl 2.1(a) of CI 23 and therefore the Arbitrator found the employee was ineligible for conversion to permanency. 


Interpretation of CI 23

The Arbitrator observed that CI 23 had a commencement date of 10 August 2018, and by its scope and application, was limited to persons employed at the time of its commencement. He found it was not intended to apply to future employees.

The Arbitrator found that there was a clear indication that the terms in CI 23 were not intended to have ongoing effect. The Arbitrator found the respondent’s submission correct in that a review of a fixed term contract employee was intended to be a one-off process, and reiterated that the relevant contract to be considered was the contract in place on 10 August 2018, which was the date that the CI 23 was commenced.

The Arbitrator rejected the applicant’s submissions to the effect that the criteria for conversion of a fixed term contract employee is limited to only those matters referred to in cl 2.1. He found that the following requirements, in addition to cl 2.1, must be met:

  1. The employee must be in employment on a fixed term contract at the time of the commencement of CI 23 i.e as at 10 August 2018;
  2. In the case of an employee who was not had a proper assessment of merit one is to be taken under cl 10;
  3. Relevant advertising and recruitment obligations must be satisfied;
  4. Funding for a permanent appointment must be confirmed as required by cl 12; and
  5. If a suitable permanent registrable or registered employee under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 is able to undertake a role, then no offer of conversion to permanency can be made.

The application was dismissed.

The decision can be read here