Public Service Arbitrator News
Applications by scientists for conversion from fixed term contract to permanent employment dismissed
The Public Service Arbitrator has dismissed applications for the conversion of two fixed-term contract employees to permanency on the basis that the employees did not meet the requirements of cl 2.1(a) and cl 11 of Public Sector Commissioner’s Instruction No. 23 (CI 23).
The Public Service Arbitrator, Commissioner Emmanuel, noted that CI 23 provides the pre-conditions that must be met for conversion of employees on fixed term contracts.
The employees are research scientists and have been employed by the Director General, Department of Biodiversity, Conservation and Attractions for over seven years on a series of fixed-term contracts, with the latest both due to expire in mid-2021.
The Director General considered whether the employees were eligible to be converted to permanency under the terms of CI 23, and decided they were not eligible for two reasons:
- the reason for the employees’ engagements on a fixed term contract is a circumstance mentioned in the relevant industrial agreement, the Public Service and Government Officers SCA General Agreement (namely, they are working on projects with finite lives), and thus the requirement in cl 2.1(a) of CI 23 was not satisfied; and
- the external funding for the employees’ roles could not reasonably be expected to continue beyond the current funding arrangements, and thus the requirement in cl 11(b) was not satisfied.
The employees disputed the Director General’s decision that they were not eligible for conversion to permanency.
Emmanuel C found that the employees were each engaged on a fixed term contract to work on projects with a finite life that were funded only until 2023 or 2024. She found that, as the reason the employees were engaged on a fixed term contract was a circumstance mentioned in the industrial agreement, the requirement in cl 2.1(a) was not satisfied.
Emmanuel C also found that there was no proper basis to ground an expectation that external funding for the roles held by the employees will continue beyond the current funding arrangements, and as such, the requirement in cl 11(b) was not met either.
The applications were dismissed.
The decision can be read here.
Details Created: 12 May 2020
The Public Service Arbitrator has issued a declaration under s 42H(1) of the Industrial Relations Act 1979 (WA) (Act) that bargaining has ended for an industrial agreement to replace the Western Australian Police Industrial Agreement 2017.
The applicant, the WA Police Union of Workers, made an application to the Commission for assistance in bargaining for the making of a new industrial agreement.
Since the commencement of the bargaining process, the Commission has convened eight compulsory conferences and the parties have met for the purposes of negotiation at least fifteen times. All five offers made by the respondent for a new industrial agreement were rejected by the applicant. Despite the endeavours by the parties and the Commission, the parties were unable to reach an agreement.
The Commission is empowered under s 42H(1) of the Act to declare bargaining between the parties has ended, as long as the Commission is satisfied as to a number of matters.
As the Arbitrator, Senior Commissioner Kenner, found that the applicant had bargained in good faith, bargaining had failed and there was no reasonable prospect of reaching an agreement, the Commission issued a declaration under s 42H(1) of the Act that bargaining had ended between the negotiating parties.
The decision can be read here.
Ex tempore decision was issued at the conclusion of proceedings on 29 April 2020.
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:
- 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;
- In the case of an employee who was not had a proper assessment of merit one is to be taken under cl 10;
- Relevant advertising and recruitment obligations must be satisfied;
- Funding for a permanent appointment must be confirmed as required by cl 12; and
- 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.