(1)  Without limiting the Employer's discretion under subsection (1) of section 39 , the Employer may determine that duties not be advertised in accordance with that subsection if the Employer is satisfied that –

(a) it is the appropriate course of action in the circumstances; and

(b) not advertising those duties is consistent with section 7(1)(b) .

(2)  If a Head of Agency intends to request the Employer to exercise discretion in relation to not advertising duties under subsection (1) , other than duties to be performed for a specified term or for the duration of a specified task, the Head of Agency, with the approval of the Employer, is to notify that intention in the Gazette .

(3)  An employee aggrieved by the Head of Agency's intention to make a request under subsection (2) may make application to the Tasmanian Industrial Commission for a review in accordance with section 50(1)(b) .

(4)  If the Tasmanian Industrial Commission determines an application for a review in favour of the employee who made the application, the Head of Agency is not to request the Employer to exercise discretion in relation to not advertising the relevant duties under subsection (1) .