Fixed term contracts of employment – executive employees (Directive 11/23)

1. Purpose

1. This directive sets out requirements and administrative arrangements for employment of a public service officer on a fixed term contract, where the remuneration is equal to, or higher than, that payable to a senior officer (SO). This directive does not apply to senior executives employed under chapter 5, part 3 of the Public Sector Act 2022 (the Act).

2. Authorising provisions

2. Sections 155 and 222 of the Act.

3. Application

3. This directive applies to:
   1. public service employees employed as public service officers on a contract for a fixed term under section 155 of the Act
   2. chief executives of public service entities as provided for in sections 16 and 17 of the Act, in their capacity as a chief executive of a public service entity or of public service employees.
4. Section 229 of the Act outlines the relationship between a directive and industrial instrument including how to deal with inconsistencies.
5. Commission Chief Executive (CCE) Directive 18/18: Fixed term contracts of employment– executive employees is repealed and superseded by this directive.

4. Principles

4. Chief executives are responsible for making decisions under the provisions of chapter 4, part 3 (Employment of public service officers) of the Act.
5. Chief executives are required to act in a way that is compatible with the main purpose of the Act including by:
   1. providing for the key rights, obligations and employment arrangements of public sector employees
   2. treating public sector employees fairly
   3. taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups.
6. Under the Human Rights Act 2019 decision makers must:
   1. act and make decisions in a way that is compatible with human rights
   2. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
7. Under chapter 1, part 3 (Reframing of State’s relationship with Aboriginal peoples and Torres Strait Islander peoples) of the Act, reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21 of the Act, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must act in a way which is consistent with these responsibilities when applying and making decisions under the Act and Commissioner directives.
8. Under chapter2 (Equity, diversity, respect and inclusion) and chapter 3 (Public sector arrangements) of the Act, chief executives of public service entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.
9. In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.

5. Interpretation of directions

5. Chapter 4, part 3 (Employment of public service officers) of the Act sets out a framework for the engagement of public service officers on fixed term contracts.
6. These directions:
   1. require a chief executive to enter a written contract with the public service officer, as required under section 155(2) of the Act
   2. provide for the overall employment conditions of the contract under section 155(5) of the Act
   3. should be read in conjunction with the relevant authorising provision/s of the Act.
7. The requirements set out in these directions are binding and must be followed, in addition to the Act and the employment contract.

6. Reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples

6. Chief executives must consider the responsibilities under section 21 of the Act relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples when managing the employment life cycle of people employed in accordance with this directive. This includes but is not limited to:
   1. promoting cultural safety and cultural capability at all levels of the public sector
   2. ensuring the workforce and leadership of the entities are reflective of the community they serve
   3. supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector.

7. Use of fixed term contracts

7. The employment of officers on a fixed term contract must comply with the directive relating to recruitment and selection.
8. Fixed term contracts are to be for a period appropriate to the special circumstances of the employment situation. A fixed term contract must not:
   1. be used for continuing and ongoing roles that should be within the Senior Executive Service (SES)
   2. exceed a term of five years
   3. be extended through a variation to the expiry date.
9. A chief executive of a public service entity must consult with the Commissioner about the proposed recruitment and selection strategy before advertising a fixed term contract role that is to be for more than six months and remunerated at or above the senior executive classification.
10. The use of fixed term contracts under a scheme, initiative or employment strategy that are not covered by another directive must be approved by the Commissioner.
11. If a fixed term contract expires, a chief executive may enter into a new contract (i.e. not an extension to the original contract) with the officer for the same role, without requiring the Commissioner’s approval, provided the cumulative term of all contracts with the officer do not exceed five years.

8. Remuneration

8. Remuneration and employment conditions must be documented, transparent and justifiable.
9. Before deciding to engage an officer on a fixed term contract the chief executive must ensure that a job evaluation, benchmarking process or job market assessment is used to determine the appropriate remuneration level for the position.
10. The total remuneration under a fixed term contract must not exceed SES 4.5 package point as set out in the directive relating to SES employment conditions.
11. Subject to clause 8.5, where total remuneration is within the remuneration ranges applying to the SES, the officer must be paid at the minimum package point of the work value range (WVR) for the role on initial employment, as applicable to SES under the directive relating to SES employment conditions.
12. A chief executive may employ a public service officer on a fixed term contract above the minimum package point within the WVR where this is required to maintain an existing package point for the officer.
13. Remuneration and package point increases for officers on fixed term contracts must not exceed increases for officers remunerated at a level equal to, or within, the remuneration ranges applying to:
    1. SO and SES – as set out in directives relating to SO and SES employment conditions
    2. chief executives – as approved by the Premier.
14. A chief executive may decide not to increase an officer’s remuneration.

9. Christmas/New Year compulsory closure

9. Public service officers on a fixed term contract participating in the Christmas/New Year compulsory closure, including those on recreation leave or long service leave, are granted leave on full pay without debit to any leave account for those days during the compulsory closure period that are not public holidays or weekend days (granted leave days). Officers on any other form of leave do not qualify for the granted leave days.
10. Where an officer is on approved recreation or long service leave on any of the granted leave days, the officer’s relevant leave balance is to be adjusted to reflect the granted leave days instead of the recreation or long service leave.
11. A chief executive may, in exceptional circumstances, determine that individual officers do not qualify for the granted leave days. Where a chief executive makes such a determination, but that officer is not required for duty, the officer is required to apply for leave.

10. Approval for exemption

10. Chief executives wishing to enter any arrangements outside the provisions of this directive must seek the Commissioner’s approval before doing so, for example:
    1. the use of a fixed term contract for a continuing and ongoing role under clause 7.2 (a)
    2. the maximum term or cumulative term of contracts under clauses 7.2 (b) and 7.5
    3. remuneration above SES 4.5 package point under clause 8.3
    4. remuneration above that permitted under clause 8.4
    5. a remuneration increase at a higher level than that permitted under clause 8.6
    6. any variations to the template contract approved by the Commissioner under clause 11.1
    7. under exceptional circumstances, a full exemption from compliance with this directive.

11. Governance

11. The Commissioner will determine any administrative arrangements required when a fixed term contract is being considered, including the standard contract(s) to be used.
12. Chief executives must report to the Commissioner, in a form required by the Commissioner, on the number and details of fixed term contracts approved or ended in their public service entities, within a timeframe stipulated by the Commissioner.

12. Transitional provisions

12. Section 296 of the Act sets out the transitional arrangements for existing public service officers.