Section
37(4) of the State Service Act 2000 (the
Act) makes provision for the Minister, on the recommendation
of the Commissioner, to change the employment status
of an employee from a fixed-term employee to a permanent
employee. In order for the Commissioner to make
such a recommendation, a request supporting the
conversion must be received from the Head of Agency.
The
procedures to be followed in relation to the application
for change of employment status are outlined in
Section 5 of Commissioner's Direction No.1 and are
as follows:
Requests
by the Head of Agency to change the employment status
of a fixed-term employee to a permanent employee:
5.10
Under Section 37(4) of the Act, the Minister, on
the recommendation of the Commissioner, may change
the employment status of an employee from a fixed-term
employee to a permanent employee. 5.11 In order
for the Commissioner to make such a recommendation
to the Minister, a request supporting the change
of employment status may be received from the Head
of Agency and submitted on "Application for
Change of Employment Status by a Head of Agency"
(Form 5 attached to this Direction). 5.12 A Head
of Agency should only seek the change in employment
status of a fixed-term employee to a permanent employee
with the agreement of that employee and where the
following criteria are met:
(a)
The fixed-term employee's selection to perform the
duties satisfied a merit test in that:
i. the employee was selected to perform the fixed-term
duties on merit following advertising of those duties
in the Gazette; or
ii.
the employee is a participant in a State Service
recruitment program approved in accordance with
Section 18(1)(j) of the Act; and
(b)
The fixed-term employee possesses all the necessary
prerequisites to become a permanent employee; and
(c)
The fixed-term employee possesses the necessary
qualifications to undertake the duties to which
he or she is to be assigned; and
(d)
The fixed-term employee has been employed in excess
of 12 months and the fixed-term employment appointment
has been undertaken strictly in accordance with
this Direction.
5.13
The Head of Agency must provide full justification
for the level at which the change of employment
status is being sought, including how the request
complies with the Merit Principle.
5.14
Head of Agency requests for a change of employment
status of a fixed-term employee will be expected
to comply with the above criteria. However, where
special and compelling circumstances are considered
to exist, a request for a change of employment status
that does not meet one or more of the above criteria
may be made. In such cases, full details of the
special and compelling circumstances supporting
the request must be provided to the Commissioner.
Such requests will be considered on a case-by-case
basis.
Requests
by a fixed-term employee to change his/her employment
status from a fixed-term employee to a permanent
employee:
5.15
Under Section 37(4) of the Act, the Minister, on
the recommendation of the State Service Commissioner,
may change the employment status of an employee
from a fixed-term employee to a permanent employee.
5.16
In order for the Commissioner to make a recommendation,
a request supporting the change of employment status
may be received from a fixed-term employee and submitted
on "Application for Change of Employment Status
by an Employee" (Form 6 attached to this Direction).
5.17
The fixed-term employee may only seek a change in
his/her employment status from a fixed-term employee
to a permanent employee where the following criteria
are met:
(a)
The fixed-term employee's selection to perform the
duties satisfied a merit test in that:
i. the employee was selected to perform the fixed-term
duties on merit following advertising of those duties
in the Gazette; or
ii.
the employee was selected from a fixed-term employment
register approved in accordance with Section 18
(1) (b) of the Act; or
iii.
the employee is a participant in a State Service
recruitment program approved in accordance with
Section 18(1) (j) of the Act; and
(b)
The fixed-term employee possesses all the necessary
prerequisites to become a permanent employee; and
(c)
The fixed-term employee possesses the necessary
qualifications to undertake the duties to which
he/she seeks to be assigned; and
(d)
The fixed-term employee has completed in excess
of 24 months continuous employment within the State
Service, not including any period approved by the
Commissioner under Clause 5.4 of this Direction.
However, continuous employment for the purposes
of this clause is not interrupted by a period of
employment approved by the Commissioner under Clause
5.4 of this Direction; and
(e)
The fixed-term employee can establish the duties
being undertaken within the State Service during
the period of employment were substantially the
same; and
(f)
The fixed-term employee can establish an expectation
of continuing employment, that is, employment that
is of a continuing or indefinite nature or for which
there is no expressed or implied end date to the
contract of employment.
5.18
The employee must provide full justification for
the level at which the change of employment status
is being sought, including how the request complies
with the Merit Principle.
5.19 When a request for the change of employment
status is received from a fixed-term employee, the
Commissioner will refer the request to the Head
of Agency [in which the fixed-term employee is employed
at the time of making the request] for comment.
The Head of Agency?s response will be taken into
consideration by the Commissioner when making a
decision on whether or not to recommend the change
of employment status to the Minister.
