Exceptions to merit‑based selection processes (section 46(2)(d) of Act)
18 Exceptions to merit‑based selection processes (section 46(2)(d) of Act)
Section 46(1) of the Act does not apply—
to the transfer of an employee between public sector agencies, or within a public sector agency, provided, subject to paragraphs (b) and (c), that the employee is not promoted to a higher remuneration level; or
to the engagement of a person as a term employee, or the temporary promotion of an employee (including through a temporary transfer between public sector agencies or within a public sector agency), for duties required to be performed because of the absence of another employee or while selection processes are conducted in respect of the duties; or
to the engagement of a person as a term employee, or the temporary promotion of an employee (including through a temporary transfer between public sector agencies or within a public sector agency), for duties that are otherwise of a temporary nature provided that the term of the engagement or temporary promotion does not continue beyond a total of 2 years;
or
to changing the basis on which a person is engaged as an employee of a public sector agency to engagement as an ongoing employee, or re‑engaging a person as a term employee, if the person was engaged following a selection process conducted on the basis of merit and the person is to continue to perform the same or similar duties; or
to the return of an employee to a home agency following a movement within the public sector to which regulation 6 applies; or
to the engagement of an employee in accordance with obligations or potential obligations under the Return to
Work Act 2014; or
to the engagement of an employee who is excess to the requirements of a public sector agency; or
to the promotion of an employee as the result of a determination of the Commissioner affecting classification structures; or
if, in a particular case, a chief executive or principal officer of a public sector agency determines that special circumstances exist warranting the engagement of a person without the conduct of merit‑based selection processes in accordance with these regulations taking into account—
the person's abilities, aptitude, skills, qualifications, knowledge, experience (including community experience) and personal qualities relevant to the carrying out of the duties in question; and
if relevant—
the manner in which the person carried out any previous employment or occupational duties or functions; and
the extent to which the person has potential for development.
The chief executive or principal officer may not delegate the power to make a determination under subregulation (1)(i).
A public sector agency must report to the Commissioner any determinations made under subregulation (1)(i) (providing details of the circumstances warranting the determinations) within 1 month after the end of the financial year in which they were made.
In this regulation—
absence of an employee from duties means the absence of an employee in circumstances in which the employee may return to the duties.
NoteSection 46(2) of the Act provides that section 46(1) does not apply—
to the engagement of a casual employee; or
to the promotion of an employee by way of reclassification of the employee's remuneration level in accordance with the regulations;
or
to the engagement of an employee under an employment opportunity program.
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