Division 5Removal, retirement etc of
executive officers
42NDefinitions
A reference in this Division to:
(a)
employment in the public sector is a reference to
employment as an officer in the Public Service, the NSW Health Service or a
Teaching Service, as a member of the Police Service or as an officer in the
service of a public authority, and
(b)
engagement in the public sector is a reference to
employment in the public sector or to the holding of a statutory
office.
s 42N: Ins 1989 No
103, Sch 1 (9). Am 1990 No 48, Sch 1; 1997 No 154, Sch 6.41
[2].
42OVacation of executive
positions
(1)
The position of an executive officer becomes
vacant if the officer:
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
is removed from office, or retires from office,
under this or any other Act, or
(d)
resigns his or her position in writing addressed
to the officer’s employer and that employer accepts the
resignation.
(2)
This section does not affect any other provision
by or under which an executive officer vacates his or her
position.
s 42O: Ins 1989 No
103, Sch 1 (9). Am 1990 No 99, Sch 2 (3).
42P
s 42P: Ins 1989 No
103, Sch 1 (9). Rep 1990 No 99, Sch 2 (4).
42QRemoval of executive officers
from office
(1)
The Governor may remove an executive officer from
an executive position at any time.
(2)
The Governor:
(a)
may declare an executive officer who is removed
from an executive position under subsection (1) to be an unattached officer in
the Public Service, the NSW Health Service, a Teaching Service or another
service of the Crown, as the case requires, and
(b)
may revoke any such
declaration.
(3)
While a declaration under subsection (2) remains
in force, the person to whom the declaration relates:
(a)
is to be regarded as an executive officer,
although not holding an executive position, and
(b)
is entitled to monetary remuneration and
employment benefits as if the person had not been removed from his or her
position, and
(c)
is, for the purposes of sections 15 (2), 26, 53A
and 100A, to be regarded as holding an equivalent (though notional) executive
position in the Department or organisation from which he or she was
removed.
(3A)
If the person referred to in subsection (3) was
removed from a chief executive position, then for the purposes of sections 15
(2), 26, 53A and 100A:
(a)
the person is to be regarded as a senior
executive officer, and
(b)
the person’s notional executive position
referred to in subsection (3) (c) is to be regarded as a senior executive
position.
(4)
If:
(a)
an executive officer is removed from an executive
position under subsection (1) and a declaration is not made in relation to the
officer under subsection (2), or
(b)
a declaration under subsection (2) made in
relation to an executive officer is revoked,
the officer ceases to be an executive officer, unless
appointed to an executive position.
(5)
An officer in the Public Service, the NSW Health
Service, a Teaching Service or another service of the Crown who ceases to be
an executive officer because of subsection (4) ceases to be an officer in that
service, unless appointed to a position in that service.
(6)
The making of a declaration under subsection (2)
in relation to an executive officer does not prevent the officer from ceasing
to be an executive officer because of the completion of the officer’s
term of office.
(7)
In the case of an executive officer in the
service of a public authority (other than an authority to which subsection
(7A) applies), a reference in this section to:
(a)
the Governor is to be read as a reference to the
public authority, and
(b)
the Public Service, a Teaching Service or another
service of the Crown is to be read as a reference to the service of the public
authority.
(7A)
In the case of an executive officer in the
service of a public health organisation within the meaning of the Health Services Act 1997:
(a)
in the case of a chief executive officer of such
an organisation—a reference in this section to the Governor is to be
read (except in subsection (1)) as a reference to the Health Administration
Corporation constituted by the Health
Administration Act 1982, and
(b)
in the case of an executive officer (other than a
chief executive officer) of such an organisation—a reference in this
section to the Governor is to be read as a reference to the Health
Administration Corporation constituted by the Health
Administration Act 1982, and
(c)
a reference in this section to the NSW Health
Service is to be read as a reference to the service of the public health
organisation.
(8)
This section does not prevent an executive
officer being removed from office apart from this
section.
s 42Q: Ins 1989 No
103, Sch 1 (9). Am 1996 No 127, Sch 1 (2)–(5); 1997 No 154, Sch 6.41
[3]–[5].
42RRight to return to public
sector for certain executive officers
(1)
An executive officer may elect to retain a right
of return to the public sector if:
(a)
the officer was engaged in the public sector on a
full-time basis when he or she first became an executive officer,
and
(b)
for at least some part of that engagement the
person was an employee in the public sector.
(2)
Any such election:
(a)
may be made in the first contract of employment
entered into by the executive officer, but (unless made in that first
contract) may not be made in any subsequent contract for the same or another
executive position, and
(b)
is revoked if the election is not made by the
executive officer in a subsequent contract of employment,
and
(c)
may be revoked by the executive officer by notice
in writing to the officer’s employer, and
(d)
if revoked, may not be made
again.
(2A)
Despite any other provision of this section, an
executive officer may not make an election under this section after the
commencement of this subsection (as inserted by the Public Sector Management
Amendment Act 1995) unless an election by the executive
officer under this section was in force immediately before the commencement of
this subsection.
(3)
If an executive officer has elected to retain a
right of return to the public sector, the officer’s contract of
employment must provide for the cost of that right as part of the
officer’s remuneration package under Division 4.
(4)
An executive officer who has elected to retain a
right of return to the public sector is entitled to an engagement in the
public sector if the person ceases to be an executive officer and:
(a)
in the case of a chief executive officer—is
not re-appointed to the same or another chief executive position,
or
(b)
in the case of a senior executive
officer—is not re-appointed to the same or another senior executive
position.
(5)
A person is not entitled to an engagement in the
public sector under this section if the person ceased to be an executive
officer because the person resigned or was (after due inquiry) removed from
office for misbehaviour.
(6)
The engagement in the public sector to which a
person is entitled under this section is to be an engagement:
(a)
in the case of a chief executive officer—as
a senior executive officer in any part of the public sector,
or
(b)
in the case of a senior executive
officer—in any part of the public sector at a salary not lower than the
current maximum salary for:
(i)
the previous engagement of the person as such an
employee within the public sector, or
(ii)
a clerk (grade 12) in the Public
Service,
whichever is the lesser.
(7)
A person who is entitled to such an engagement is
not entitled to any compensation for ceasing to hold office as an executive
officer or to any remuneration in respect of the office for any period
afterwards (except remuneration in respect of a subsequent re-appointment to
the office).
(8)
Subsection (7) does not prevent the payment of
additional remuneration to a person who is engaged in the public sector under
this section in order to maintain, in accordance with the employer’s
redeployment policy, the level of the person’s previous remuneration
package for a period after the person ceases to be an executive
officer.
(9)
If an executive officer has not entered into a
contract of employment and is eligible to make an election under this
section:
(a)
the officer is (until the officer enters into a
contract of employment) to be taken to have made an election under this
section, but may revoke that election, and
(b)
the cost (under Division 4) of the right of
return to the public sector in accordance with that election is to be deducted
from the officer’s remuneration.
(10)
A reference in this section to an executive
officer ceasing to be an executive officer is, in the case of an executive
officer removed from office under section 42Q, a reference to an executive
officer ceasing to be such an officer as referred to in section 42Q
(4).
s 42R: Ins 1989 No
103, Sch 1 (9). Am 1990 No 99, Sch 2 (5); 1995 No 36, Sch 3
(1).
42SCompensation etc where
executive officer has no right to return to public
sector
(1)
This section applies to:
(a)
an executive officer who is removed from office
under section 42Q and who ceases to be an executive officer as referred to in
section 42Q (4), or
(b)
an executive officer who is otherwise removed
from office (except for misbehaviour after due inquiry),
or
(c)
(d)
an executive officer who was employed in the
public sector when first appointed as an executive officer, whose term of
office as an executive officer expires and who is not
re-appointed,
being a person who is not entitled to be engaged in the
public sector under section 42R. However, this section does not apply to an
executive officer who consents to a transfer at a lower level of
remuneration.
(2)
A person to whom this section applies is entitled
to such compensation (if any) as the Statutory and Other Offices Remuneration
Tribunal determines.
(3)
The Statutory and Other Offices Remuneration
Tribunal:
(a)
may determine that compensation is payable for
the failure to re-appoint an executive officer only if the Tribunal is
satisfied that the person had a reasonable expectation of being re-appointed,
and
(b)
must have regard to any general directions given
to the Tribunal by the Minister as to the matters to be taken into
consideration when it makes determinations under this
section.
(4)
The maximum compensation payable is an amount
equal to the person’s remuneration package for the period of 38
weeks.
(5)
The person is not entitled to any other
compensation for the removal or retirement from office or for the failure to
re-appoint the person or to any remuneration in respect of the office for any
period afterwards (except remuneration in respect of a subsequent
re-appointment to the office).
(6)
An executive officer who is removed from office
or not re-appointed is not entitled to compensation under this section
if:
(a)
the person is appointed on that removal or expiry
of the term of office to another executive position, and
(b)
the remuneration package for the holder of that
position is not less than the remuneration package for the holder of the
former position.
(7)
If the Statutory and Other Offices Remuneration
Tribunal determines that compensation is payable under this section, it must,
in its determination, specify the period to which the compensation
relates.
(8)
The person may not be engaged in the public
sector or employed in the service of a State owned corporation established
under the State Owned Corporations Act
1989 or a subsidiary of such a State owned corporation
during the period so specified, unless arrangements are made for a refund of
the proportionate amount of the compensation.
s 42S: Ins 1989 No
103, Sch 1 (9). Am 1989 No 135, Sch 1; 1990 No 99, Sch 2 (6); 1995 No 36, Sch
3 (2); 1996 No 127, Sch 1 (6).
42TElection to take
compensation
(1)
An executive officer who is entitled to be
engaged in the public sector under section 42R may, before being so engaged,
elect in writing to take compensation referred to in section
42S.
(2)
On the election taking effect, the person ceases
to be entitled to be engaged in the public sector under section
42R.
ss 42T–42Z: Ins
1989 No 103, Sch 1 (9).