2013
2013
2014-11-24
act
government
publicgeneral
act.reprint
act-2014-064
allinforce
2013-05-23
2013-05-23
0
2013
none
act-2013-040
30889ac1-128e-42c7-b0c5-e45d6b624acf
29d5ea8b-fbe2-4dc7-be64-3346e824dafb
See
also:
Government Sector Employment
Legislation Amendment Bill 2013
An Act relating to employment in the government
sector.
Part 1Preliminary
1Name of
Act
This Act is the Government Sector
Employment Act 2013.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
(1)
In this Act:
Department means a Department of the
Public Service listed in Part 1 of Schedule 1.
function includes a power, authority
or duty, and exercise a function includes perform
a duty.
government sector comprises all of
the following (other than any service in which persons excluded from this Act
by section 5 are employed):
(a)
the Public Service,
(b)
the Teaching Service,
(c)
the NSW Police Force,
(d)
the NSW Health Service,
(e)
the Transport Service of New South
Wales,
(f)
any other service of the Crown (including the
service of any NSW government agency),
(g)
the service of any other person or body
constituted by or under an Act or exercising public functions (such as a State
owned corporation), being a person or body that is prescribed by the
regulations for the purposes of this definition.
government sector agency
means:
(a)
in the case of the Public Service—a Public
Service agency, or
(b)
in the case of any other service in the
government sector—the group of staff comprising the service or (subject
to the regulations) any separate group of that
staff,
and the head of a government sector agency
means the head of the Public Service agency (where paragraph (a) applies) or
the person who exercises employer functions in relation to the relevant staff
(where paragraph (b) applies).
government sector employment rules
means rules made by the Commissioner under section 12.
head of a Public Service agency
means:
(a)
in the case of a Department—the Secretary
of the Department, or
(b)
in any other case—the head of the agency
listed in Part 2 or 3 of Schedule 1.
Public
Service means the Public Service of New South Wales referred
to in Part 4.
Public
Service agency means:
(a)
a Department, or
(b)
a Public Service executive agency (being an
agency related to a Department), or
(c)
a separate Public Service
agency.
Public
Service Commission Advisory Board (or Advisory Board) means the Public
Service Commission Advisory Board established under Division 2 of Part
3.
Public
Service Commissioner (or Commissioner) means the Public
Service Commissioner appointed under Division 1 of Part 3.
Public
Service employee means a person employed in ongoing, term,
temporary, casual or other employment, or on secondment, in a Public Service
agency (and employee of a Public Service agency
means a person so employed in a Public Service agency).
Public
Service executive agency related to a Department means a
Public Service agency listed in Part 2 of Schedule 1.
Public
Service senior executive means the Secretary of a Department
and any other Public Service employee to whom Division 4 of Part 4
applies.
resignation includes
retirement.
role of an employee means the duties
and responsibilities of the employee.
senior
executive bands determination means a determination made by
the Minister under section 35.
separate
Public Service agency means a Public Service agency listed
in Part 3 of Schedule 1.
(2)
Notes included in this Act do not form part of
this Act.
4Objects of
Act
The objects of this Act are as follows:
(a)
to develop a modern high performing government
sector:
(i)
that is efficient and effective in serving the
Government in the delivery of services to the people of New South Wales,
and
(ii)
that has effective and fair employment
arrangements, management and leadership,
(b)
to establish the Public Service as the general
service within the government sector,
(c)
to provide transparent governance and employment
arrangements for the Public Service, including providing for the employer
functions and responsibilities of heads of Public Service
agencies,
(d)
to establish an ethical framework for the
government sector comprising core values and principles that guide their
implementation,
(e)
to make provision for the objectives, functions
and responsibilities of the Public Service
Commissioner.
5Persons to whom Act does not
apply
(1)
This Act does not apply to any of the
following:
(a)
a judicial officer within the meaning of the
Judicial Officers Act
1986,
(b)
an officer or employee of either House of
Parliament or any officer or employee under the separate control of the
President or Speaker, or under their joint control,
(c)
persons employed under the Members of Parliament Staff Act
2013,
(d)
staff of the Independent Commission Against
Corruption, or of the Inspector of the Independent Commission Against
Corruption, employed under the Independent Commission Against
Corruption Act 1988,
(e)
staff of the Audit Office employed under the
Public Finance and Audit Act
1983,
(f)
staff of the Judicial Commission of New South
Wales employed under the Judicial Officers Act
1986.
(2)
However, provisions of this Act apply to the
extent that this Act expressly so provides.
Part 2Ethical framework for the
government sector
6Objective of
Part
This Part:
(a)
recognises the role of the government sector in
preserving the public interest, defending public value and adding professional
quality and value to the commitments of the Government of the day,
and
(b)
establishes an ethical framework for a
merit-based, apolitical and professional government sector that implements the
decisions of the Government of the day.
7Government sector core
values
The core values for the government sector and the
principles that guide their implementation are as follows:
Integrity
(a)
Consider people equally without prejudice or
favour.
(b)
Act professionally with honesty, consistency and
impartiality.
(c)
Take responsibility for situations, showing
leadership and courage.
(d)
Place the public interest over personal
interest.
Trust
(a)
Appreciate difference and welcome learning from
others.
(b)
Build relationships based on mutual
respect.
(c)
Uphold the law, institutions of government and
democratic principles.
(d)
Communicate intentions clearly and invite
teamwork and collaboration.
(e)
Provide apolitical and non-partisan
advice.
Service
(a)
Provide services fairly with a focus on customer
needs.
(b)
Be flexible, innovative and reliable in service
delivery.
(c)
Engage with the not-for-profit and business
sectors to develop and implement service solutions.
(d)
Focus on quality while maximising service
delivery.
Accountability
(a)
Recruit and promote employees on
merit.
(b)
Take responsibility for decisions and
actions.
(c)
Provide transparency to enable public
scrutiny.
(d)
Observe standards for safety.
(e)
Be fiscally responsible and focus on efficient,
effective and prudent use of resources.
8General
provisions
(1)
The Public Service Commissioner has the function
of promoting and maintaining the government sector core
values.
(2)
There is no hierarchy among the core values and
each is of equal importance.
(3)
Nothing in this Part gives rise to, or can be
taken into account in, any civil cause of action.
Part 3Public Service Commissioner
and Advisory Board
Division 1Public Service
Commissioner
9Appointment of Commissioner
etc
(1)
The Governor may appoint a Public Service
Commissioner.
(2)
A person may only be appointed as Commissioner if
the Advisory Board has recommended to the Premier that the person be appointed
as the Commissioner.
(3)
The Governor may remove the Commissioner from
office for incapacity, incompetence or misbehaviour.
(4)
The Commissioner may only be removed from
office:
(a)
following an independent review of the
performance or conduct of the Commissioner, and
(b)
if the Advisory Board has recommended to the
Premier that the Commissioner be removed from
office.
(5)
Any such independent review may be
initiated:
(a)
by the Advisory Board at the request of the
Premier, or
(b)
by the Premier.
(6)
An independent review of the performance or
conduct of the Commissioner is not required under this section before the
Commissioner can be removed from office if the performance or conduct giving
rise to the Advisory Board’s recommendation for removal has been the
subject of:
(a)
an inquiry and report by the Independent
Commission Against Corruption, a Royal Commission, a Special Commission of
Inquiry or other body constituted by a judicial officer,
or
(b)
a finding by a court.
(7)
The Premier is, if the Commissioner is removed
from office, to cause the reasons for the removal to be tabled in both Houses
of Parliament.
(8)
The Commissioner must not be present during any
deliberation of the Advisory Board on any matter that relates to the making of
a recommendation under this section.
(9)
Schedule 2 contains provisions relating to the
Commissioner.
10Principal objectives of
Commissioner
The principal objectives of the Commissioner are
as follows:
(a)
to promote and maintain the highest levels of
integrity, impartiality, accountability and leadership across the government
sector,
(b)
to improve the capability of the government
sector to provide strategic and innovative policy advice, implement the
decisions of the Government and meet public expectations,
(c)
to attract and retain a high calibre professional
government sector workforce,
(d)
to ensure that government sector recruitment and
selection processes comply with the merit principle and adhere to professional
standards,
(e)
to foster a public service culture in which
customer service, initiative, individual responsibility and the achievement of
results are strongly valued,
(f)
to build public confidence in the government
sector,
(g)
to support the Government in achieving positive
budget outcomes through strengthening the capability of the government sector
workforce.
11General functions of
Commissioner
(1)
The Commissioner has the following
functions:
(a)
to identify reform opportunities for the
government sector workforce and to advise the Government on policy innovations
and strategy in those areas of reform,
(b)
to lead the strategic development and management
of the government sector workforce in relation to the following:
(i)
workforce planning, including identifying risks
and strategies to minimise risks,
(ii)
recruitment, particularly compliance with the
requirements relating to appointment and promotion on
merit,
(iii)
performance management and
recognition,
(iv)
equity and diversity, including strategies to
ensure the government sector reflects the diversity of the wider
community,
(v)
general conduct and compliance with ethical
practices,
(vi)
learning and development,
(vii)
succession planning,
(viii)
redeployment, including excess
employees,
(ix)
staff mobility,
(x)
executive employment
arrangements,
(c)
to advise the Government on leadership structure
for the government sector,
(d)
to advise the Government on appropriate
strategies, policies and practices in relation to the structure of the
government sector workforce,
(e)
to advise the Government on appropriate
strategies, policies and practices in relation to such other government sector
matters as the Minister may determine from time to time, and to monitor,
co-ordinate and assist the implementation of Government strategies, policies
and practices in such other areas as the Minister may determine from time to
time,
(f)
to develop and advise the Government on service
delivery strategies and models for the government sector through collaboration
with the private business sector, the not-for-profit sector and the wider
community,
(g)
to set standards, subject to any legislative
requirements, for the selection of persons for appointment as members of
boards or committees of public authorities (including Government business
enterprises).
(2)
The Commissioner has and may exercise such other
functions as are conferred or imposed on the Commissioner by or under this or
any other Act.
Note—
Other functions of the Commissioner include
promoting and maintaining the government sector core values (see section 7);
making government sector employment rules under section 12; giving directions
to government sector agencies under section 13; assigning a senior executive
to a role in a Public Service agency under section 38; reporting on workforce
diversity under section 63 and conducting inquiries under section
83.
(3)
The Commissioner is to exercise his or her
functions in accordance with the general policies and strategic directions
determined by the Public Service Commission Advisory
Board.
12Government sector employment
rules
(1)
The Commissioner may make government sector
employment rules, not inconsistent with this Act and the regulations, on any
matter for which any such rules are authorised to be made by or under this
Act.
(2)
The Commissioner may amend or repeal a government
sector employment rule by a further rule.
(3)
Government sector employment rules (including any
amendment or repeal) are to be published on the NSW legislation website and
take effect on the date they are so published or on any later specified
date.
13Directions by Commissioner to
a government sector agency
(1)
The Commissioner may, for the purposes of
exercising his or her functions or ensuring compliance with this Act, the
regulations and the government sector employment rules, give a direction in
writing to the head of a government sector agency on a specific matter in
relation to the employees of that agency.
(2)
Before giving a direction the Commissioner is to
consult the head of the government sector agency to whom the direction is to
be given and such other persons affected by the direction as the Commissioner
considers appropriate.
(3)
The head of the government sector agency to whom
a direction under this section is given must comply with the
direction.
(4)
However, the head of a separate Public Service
agency is not required to comply with the direction if the head considers that
the direction is not consistent with the independent exercise of statutory
functions by the head and the agency. The head is required to report to any
Parliamentary Committee that oversees the exercise of those functions on the
reasons for any non-compliance with the substantive employment outcomes sought
by the direction.
(5)
A direction under this section:
(a)
must not be inconsistent with this Act (including
the regulations and the government sector employment rules) or with the
principal objectives of the Commissioner referred to in this Division,
and
(b)
must be made publicly available by the
Commissioner as soon as practicable after it is
given.
14Commissioner to report to
Premier
(1)
The Commissioner is to report to the Premier in
connection with the exercise of the Commissioner’s functions but is not
subject to the control and direction of the Premier in the exercise of those
functions.
(2)
This section does not limit any other provisions
of this Act relating to the exercise of the functions of the Premier or the
Commissioner.
15Annual reports of the
Commissioner
(1)
The Commissioner is, as soon as practicable after
30 June in each year, to prepare and forward to the Premier:
(a)
a report on the Commissioner’s work and
activities for the 12 months ending on that 30 June, and
(b)
a report on the state of the government sector in
relation to the period of 12 months ending on that 30
June.
(2)
The report on the state of the government sector
is to include the following:
(a)
an assessment of the performance of the whole of
the government sector, including notable achievements, challenges and
priorities,
(b)
an analysis of government sector workforce
data.
(3)
The Premier is to table any report under this
section, or cause it to be tabled, in both Houses of Parliament as soon as
practicable after it is received by the Premier.
16Provision of reports and
information by agencies
(1)
The Commissioner may require the head of a
government sector agency to provide the Commissioner with a report on such
matters relating to the employees of the agency, or to the employment policies
and practices of the agency, as the Commissioner
requires.
(2)
The Commissioner may also require the head of a
government sector agency to provide the Commissioner with information
collected or held by the agency in dealing with matters relating to government
sector employees.
(3)
The head of the government sector agency
concerned must comply with a requirement under this section within such time
and in such manner as the Commissioner directs.
(4)
Any law relating to the protection of personal
information (within the meaning of the Privacy and
Personal Information Protection Act 1998) does not operate
to prevent the furnishing of information, or affect a duty to furnish
information, under this section.
(5)
In this section, government sector agency includes
any person or body, constituted by or under an Act, that is prescribed by the
regulations for the purposes of this section, and the head of any such prescribed agency
means the person prescribed by the regulations in relation to that
agency.
17Miscellaneous provisions
relating to Commissioner
(1)
Persons may be employed in the Public Service to
enable the Commissioner to exercise his or her functions. Those persons may be
referred to as the staff of the Commissioner or as employees of the Public
Service agency in which they are employed.
(2)
The Commissioner may delegate the exercise of any
function of the Commissioner (other than this power of delegation) to:
(a)
the head of any government sector agency or an
employee of any government sector agency, or
(b)
any person, or any class of persons, authorised
for the purposes of this section by the
regulations.
(3)
The Commissioner is to arrange for government
sector employment information to be made available on a website provided and
maintained by the Commissioner (including the government sector employment
rules, the senior executive bands determination and any guidelines issued by
the Commissioner).
(4)
The government sector employment rules may deal
with any requirement under this Act for the approval or concurrence of the
Commissioner, or for consultation with the Commissioner, and may provide for
the circumstances in which the approval, concurrence or consultation is not
required.
(5)
The Commissioner is, to the extent that it is
reasonable and practicable to do so, to remove any personal information from
any report or other document prepared by the Commissioner under this Part that
is, or is to be, publicly available. In this subsection, personal
information means information about an individual whose
identity is apparent, or can reasonably be ascertained, from the
information.
(6)
The regulations may make provision with respect
to the exercise of the functions of the Commissioner.
Division 2Public Service Commission
Advisory Board
18Establishment and members of
Advisory Board
(1)
There is to be a Public Service Commission
Advisory Board.
(2)
The Advisory Board is to consist of the following
members:
(a)
a person appointed by the Premier as the
Chairperson of the Advisory Board,
(b)
4 other persons appointed by the
Premier,
(c)
the Commissioner or a senior member of the staff
of the Commissioner nominated by the Commissioner,
(d)
the Secretary of the Department of Premier and
Cabinet or a senior employee of that Department nominated by the
Secretary.
(3)
The members appointed by the Premier are to be
persons who together have expertise in human resources management, probity and
accountability, strategic planning, budget and performance management and
service delivery in the public, private, tertiary and not-for-profit
sectors.
(4)
Schedule 3 contains provisions relating to the
members and procedure of the Advisory Board.
19Functions of Advisory
Board
(1)
The Advisory Board has the following
functions:
(a)
to determine general policies and strategic
directions in relation to the functions of the
Commissioner,
(b)
to provide the Premier, either at the request of
the Premier or on its own initiative, with advice on any matter relating to
the management and performance of the government
sector.
(2)
The Advisory Board has such other functions as
are conferred or imposed on it by or under this or any other
Act.
Part 4The Public
Service
Division 1General
20The Public
Service
The Public Service of New South Wales consists of
those persons who are employed under this Part by the Government of New South
Wales in the service of the Crown.
Note—
See section 47A of the Constitution Act
1902.
21Employment in the Public
Service
(1)
The Government of New South Wales may employ
persons in the Public Service in accordance with this and any other Act or
law.
(2)
Persons may be so employed for the following
purposes:
(a)
to enable Ministers to exercise their
functions,
(b)
to enable statutory bodies or statutory officers
to exercise their functions,
(c)
for any other purpose.
(3)
This section does not affect any other means
(statutory or otherwise) by which a person may be employed in the service of
the Crown.
Note—
Other ways in which persons are employed in the
service of the Crown include employment in the Teaching Service, the NSW
Health Service or the NSW Police Force—see definition of government sector in section
3.
22Departments and other Public
Service agencies
(1)
Public Service employees are employed in:
(a)
Departments (listed in Part 1 of Schedule 1),
or
(b)
Public Service executive agencies related to
Departments (listed in Part 2 of Schedule 1), or
(c)
separate Public Service agencies (listed in Part
3 of Schedule 1).
(2)
A Department or other Public Service agency may
comprise such branches or other groups of employees as the Secretary of the
Department or the head of the other agency determines from time to
time.
(3)
Part 7 of the Constitution Act
1902 authorises the amendment of Schedule 1 by an
administrative arrangements order under that Part. Any such order may also
amend Schedule 1 to specify, change or remove the Department to which a Public
Service agency is related.
Note—
An administrative arrangements order may create,
abolish or change the name of Departments and other Public Service agencies
and transfer employees between agencies.
Division 2Secretaries of
Departments
23Secretaries of
Departments
(1)
The head of a Department is the Secretary of the
Department.
(2)
The office of Secretary of a Department is
established by this section.
(3)
If a Department is abolished or its name is
changed, the office of Secretary of the Department is taken to be abolished or
its name correspondingly changed by the operation of this
section.
(4)
Appointments to the office of Secretary of a
Department are to be made by the Minister.
Note—
The Minister may delegate the function of
appointing Secretaries—see section 81.
(5)
The appointment of a person to the office of
Secretary of a Department is to be made by a contract of employment (under
Division 4) between that person and the person who makes the appointment. The
person so appointed is a Public Service employee who is employed in the
Department.
24Acting appointments as
Secretary of a Department
(1)
The Minister may appoint a Public Service
employee to act as the Secretary of a Department if the office of the
Secretary is vacant or if the Secretary is unavailable.
(2)
A person, while acting as the Secretary of a
Department, has all the functions of the Secretary.
(3)
The Minister may, at any time, terminate an
acting appointment.
(4)
The regulations may make provision with respect
to the conditions of employment of a person acting as the Secretary of a
Department.
25General responsibility of
Secretaries of Departments
(1)
The Secretary of a Department is responsible to
the Minister or Ministers to whom the Department is responsible for the
general conduct and management of the functions and activities of the
Department in accordance with the government sector core values under Part
2.
Note—
Section 50C of the Constitution Act 1902 provides for the
designation of the Minister or Ministers to whom a Department is
responsible.
(2)
Any action taken in the exercise of a
responsibility under this section is not to be inconsistent with the functions
conferred by this Act of a Minister administering this Act or the Public
Service Commissioner.
Note—
The Secretary of a Department is also responsible
for workforce diversity under Part 5.
26Employer functions of
Secretaries of Departments
(1)
The Secretary of a Department may, subject to
this and any other Act or law, exercise on behalf of the Government of New
South Wales the employer functions of the Government in relation to the
following:
(a)
the Public Service senior executives assigned to
roles in the Department,
(b)
the other employees of the
Department,
(c)
the head of each Public Service executive agency
related to the Department unless:
(i)
the office of the head is a statutory office
established by another Act, or
(ii)
the head is the Secretary, or
(iii)
Schedule 1 provides that some other person
exercises the employer functions in relation to the
head,
(d)
the Public Service senior executives assigned to
roles in each Public Service executive agency related to the
Department.
(2)
The Minister may, subject to this and any other
Act or law, exercise on behalf of the Government of New South Wales the
employer functions of the Government in relation to the Secretary of a
Department.
(3)
The employer functions of the Government are all
the functions of an employer in respect of employees, including (without
limitation) the power to employ persons, to assign them to roles and to
terminate their employment.
Note—
Division 6 confers on the Industrial Relations
Secretary employer functions relating to the determination of the conditions
of employment of, and other industrial matters relating to, Public Service
employees.
27Delegation by Secretaries of
Departments
(1)
The Secretary of a Department may delegate to any
employee of the Department or of any other Public Service agency or to any
statutory officer:
(a)
any of the functions of the Secretary under this
Act (other than this power of delegation), and
(b)
any employer functions under any other Act or law
that the Secretary exercises on behalf of the Government of New South Wales in
relation to Public Service employees.
(2)
If:
(a)
a function of the Secretary of a Department is
delegated to an employee or officer in accordance with subsection (1),
and
(b)
the instrument of delegation authorises the
sub-delegation of the function,
then, subject to any conditions to which the delegation
is subject, the employee or officer may sub-delegate the function to another
employee of the Department or of any other Public Service agency or to a
statutory officer.
(3)
For the purposes of this section, the functions
of the Secretary of a Department include any functions delegated to the
Secretary under this Act.
(4)
The government sector employment rules may limit
a power of delegation or sub-delegation under this
section.
Division 3Heads of other Public Service
agencies
28Heads of agencies other than
Departments
(1)
The head of a Public Service agency (other than a
Department) is the holder of the office specified in Part 2 or 3 of Schedule 1
in relation to the agency concerned.
(2)
The Secretary of a Department may be specified as
the head of any other Public Service agency and the same person may be
specified as the head of more than one agency.
(3)
An administrative arrangements order under Part 7
of the Constitution Act
1902 may amend Schedule 1 to specify or change the head of
a Public Service agency (other than a Department).
(4)
The office of head of a Public Service agency
(other than a Department) is established by this section, unless it is a
statutory office created by another provision of this Act or by any other
Act.
Note—
The statutory offices established by another
provision of this Act or by any other Act are identified in Part 2 or 3 of
Schedule 1. Accordingly, the following provisions of this section do not apply
to any such head of an agency.
(5)
If the description of an office established by
this section is omitted or changed by an amendment of Schedule 1, the office
is taken to be abolished or its name correspondingly changed by the operation
of this section.
(6)
Appointments to an office of head established by
this section are to be made:
(a)
in the case of a Public Service executive agency
related to a Department—by the Secretary of the Department,
or
(b)
in the case of a separate Public Service
agency—by the Minister.
However, if Schedule 1 provides that some other
person exercises the employer functions of the Government of New South Wales
in relation to the head, appointments to the office of the head are to be made
by that other person.
(7)
The appointment of a person to an office of head
established by this section is to be made by a contract of employment (under
Division 4) between that person and the person who makes the appointment. The
person so appointed is a Public Service employee who is employed in the Public
Service agency concerned.
29Acting appointments as head of
agency (other than Department)
(1)
The person authorised to appoint the head of a
Public Service agency (other than a Department) may appoint a Public Service
employee to act as the head of the agency if the office of the head is vacant
or if the head is unavailable (and no other person has been duly appointed to
act as a statutory officer who is the head of that
office).
(2)
A person, while acting as the head of any such
Public Service agency, has all the functions of the
head.
(3)
An acting appointment may be terminated, at any
time, by the person who made the acting appointment.
(4)
The regulations may make provision with respect
to the conditions of employment of a person acting as the head of any such
Public Service agency.
30General responsibility of
heads of agencies (other than Departments)
(1)
The head of a Public Service agency (other than a
Department) is responsible to the Minister or Ministers to whom the agency is
responsible for the general conduct and management of the functions and
activities of the agency in accordance with government sector core values
under Part 2.
(2)
Any action taken in the exercise of a
responsibility under this section is not to be inconsistent with the functions
conferred by this Act of a Minister administering this Act or the Public
Service Commissioner.
Note—
The head of any such agency is also responsible
for workforce diversity under Part 5.
31Employer functions of heads of
agencies (other than Departments)
(1)
The head of a Public Service agency (other than a
Department) may, subject to this and any other Act or law, exercise on behalf
of the Government of New South Wales the employer functions of the Government
in relation to the employees of the agency (other than Public Service senior
executives of an agency that is related to a
Department).
(2)
The employer functions of the Government are all
the functions of an employer in respect of employees, including (without
limitation) the power to employ persons, to assign their roles and to
terminate their employment.
Note—
The Secretary of the relevant Department
exercises employer functions in relation to Public Service senior executives
of an agency that is related to the Department.
Division 6 confers on the Industrial Relations
Secretary employer functions relating to the determination of the conditions
of employment of, and other industrial matters relating to, Public Service
employees.
32Delegation by heads of Public
Service agencies (other than Departments)
(1)
The head of a Public Service agency (other than a
Department) may delegate to any employee of the agency or of any other Public
Service agency or to a statutory officer:
(a)
any of the functions of the head under this Act
(other than this power of delegation), and
(b)
any employer functions under any other Act or law
that the head exercises on behalf of the Government of New South Wales in
relation to Public Service employees.
(2)
If:
(a)
a function of the head of an agency is delegated
to an employee or officer in accordance with subsection (1),
and
(b)
the instrument of delegation authorises the
sub-delegation of the function,
then, subject to any conditions to which the delegation
is subject, the employee or officer may sub-delegate the function to another
employee of the agency or of any other Public Service agency or to a statutory
officer.
(3)
For the purposes of this section, the functions
of the head of an agency include any functions delegated to the head of the
agency under this Act.
(4)
The government sector employment rules may limit
a power of delegation or sub-delegation under this
section.
Division 4Public Service senior
executives
33Application of
Division
(1)
This Division applies to the following:
(a)
the Secretary of a
Department,
(b)
the head of any other Public Service agency if
the head is an employee of the agency and not a statutory
officer,
(c)
any other employees of a Public Service agency
who are employed in a Public Service senior executive
band.
(2)
For the purposes of this Act, the employees to
whom this Division applies are Public
Service senior executives.
(3)
The person who is authorised by this Act to
exercise the employer functions of the Government of New South Wales in
relation to a Public Service senior executive is referred to in this Division
as the employer of the
executive.
34Kinds of senior executive
employment
(1)
Employment as a Public Service senior executive
may be any one of the following kinds of employment:
(a)
ongoing employment,
(b)
term employment.
(2)
Ongoing employment is employment that continues
until the executive resigns or his or her employment is
terminated.
(3)
Term employment is employment for a specified
period or for the duration of a specified task (unless the executive sooner
resigns or his or her employment is sooner terminated).
35Minister may determine bands
in which senior executives to be employed
(1)
The Minister may from time to time determine the
bands in which Public Service senior executives are to be employed (the
senior
executive bands determination).
(2)
The senior executive bands determination may deal
with matters related to bands.
(3)
The Minister may amend or repeal the senior
executive bands determination by a further
determination.
(4)
Before making, amending or repealing the senior
executive bands determination, the Minister is to obtain the advice of the
Commissioner.
(5)
The senior executive bands determination
(including any amendment or repeal) is to be published on the NSW legislation
website and takes effect on the date it is so published or on any later
specified date.
Editorial
note—
See Government Sector
Employment (Senior Executive Bands) Determination
2014.
36Government sector employment
rules relating to senior executives
The government sector employment rules may deal
with any matter relating to the employment of Public Service senior
executives, including (without limitation) the following matters:
(a)
work level standards for roles in the bands in
which those executives are employed,
(b)
methods of job evaluation for the roles of those
executives,
(c)
capabilities for the roles of those
executives,
(d)
the assignment of those executives to
roles,
(e)
contracts of employment of those executives and
their contents.
37Employment of senior
executives in bands
(1)
A Public Service senior executive is to be
employed in a band determined under the senior executive bands determination
that the employer of the executive considers appropriate for the role of the
executive.
(2)
In determining the number of Public Service
senior executives and the appropriate band in which they are employed, the
employer is to apply the applicable work level standards and have regard to
any guidance provided by the Commissioner.
38Assignment of senior
executives to roles in bands across Public Service (other than heads of
agencies)
(1)
In this section:
assign to a role includes assign to
a different role.
Public
Service senior executive does not include the Secretary of a
Department or the head of any other Public Service
agency.
(2)
A Public Service senior executive may, from time
to time, be assigned to a role in any Public Service agency in the band in
which the executive is employed.
(3)
A Public Service senior executive may be assigned
to a role by the employer of the executive or by the
Commissioner.
(4)
Public Service senior executives may be assigned
to roles to enable the flexible deployment of staff resources within the
Public Service and to develop the capabilities of staff.
(5)
The Secretary of a Department is not to assign a
Public Service senior executive to a role in a Public Service executive agency
related to the Department without consulting the head of the
agency.
(6)
The Commissioner is not to assign a Public
Service senior executive to a role in a Department or a Public Service
executive agency related to a Department without consulting the Secretary of
the Department and the head of any such agency.
(7)
The Commissioner is not to assign a Public
Service senior executive to a role in a separate Public Service agency without
the agreement of the head of the agency.
(8)
A Public Service senior executive is not to be
assigned to a different role unless the executive has been consulted. The
remuneration payable to the executive is not to be reduced because of the
assignment to the different role without the consent of the
executive.
39Contract of employment of
senior executives
(1)
A Public Service senior executive is to be
employed under a written contract of employment signed by the executive and by
the employer on behalf of the Government.
(2)
The government sector employment rules may deal
with contracts of employment of Public Service senior executives and their
contents.
(3)
The government sector employment rules may
prescribe model contracts of employment and may specify any model provisions
that are mandatory and that prevail in the event of any inconsistency with the
provisions of a contract of employment.
(4)
Subject to this Act, the government sector
employment rules and any direction issued by the Commissioner under this Act,
a contract of employment of a Public Service senior executive is to deal with
the following matters:
(a)
the band in which the executive is
employed,
(b)
conditions of engagement (of a kind referred to
in section 44),
(c)
the duration of the contract if the executive is
not employed in ongoing employment,
(d)
the total remuneration package of the executive
(comprising monetary remuneration and employment benefits) and any
allowances,
(e)
performance obligations, and reviews of
performance, of the executive,
(f)
progression in the total remuneration package of
the executive based on performance,
(g)
leave and other conditions of employment of the
executive,
(h)
the compensation for any termination of
employment of the executive by the employer (including the period to which the
compensation relates),
(i)
any other matter prescribed by the
regulations.
(5)
The contract of employment of a Public Service
senior executive does not limit (and is not affected by) the assignment of the
executive to a different role or any other change to the title, place of work
or duties of the executive.
(6)
A contract of employment of a Public Service
senior executive may, subject to this section, be varied at any time by
further agreement.
40Remuneration, benefits and
allowances for senior executives
(1)
The remuneration package of a Public Service
senior executive must be within the range determined under the Statutory and Other Offices Remuneration Act
1975 for the band in which the executive is
employed.
(2)
The kinds and value of employment benefits and
the allowances for a Public Service senior executive are to be determined in
accordance with the regulations and any guidance provided by the
Commissioner.
(3)
A Public Service senior executive is only
entitled to the remuneration, employment benefits or allowances provided in
the executive’s contract of employment.
(4)
For the purposes of this Division, employment
benefits for a Public Service senior executive are:
(a)
contributions by the executive’s employer
to a superannuation scheme or fund of the executive, and
(b)
other benefits provided to the executive at the
cost of the executive’s employer that are of a private
nature.
(5)
For the purposes of this Division, allowances for
a Public Service senior executive are allowances paid in money, other than
allowances excluded by the government sector employment
rules.
41Termination of employment of
senior executives
(1)
The employer of a Public Service senior executive
may terminate the employment of the executive at any time, for any or no
stated reason and without notice.
(2)
A Public Service senior executive whose
employment is so terminated is entitled to the compensation provided in the
contract of employment of the executive (and to no other compensation or
entitlement for the termination of employment).
(3)
A Public Service senior executive whose
employment is so terminated is not to be employed in the public sector during
the period specified in the contract of employment to which the compensation
relates, unless arrangements have been made for a refund of the proportionate
amount of the compensation.
(4)
The employment of the head of a Public Service
agency that is related to a Department may not be terminated under this
section by the Secretary of the Department unless the Secretary has consulted
the Commissioner.
(5)
In this section:
employment of a former executive in
the public sector includes:
(a)
engagement of the former executive as a
consultant or contractor to the employer, and
(b)
engagement of the former executive through a
labour hire arrangement with the employer, and
(c)
engagement of a company or partnership that
provides the services of the former executive to the
employer.
public
sector means the government sector, the service of a State
owned corporation (or a subsidiary), any service excluded by section 5 or a
statutory office.
Division 5Public Service employees
(other than senior executives)
42Application of
Division
(1)
This Division applies to Public Service employees
other than Secretaries of Departments, heads of other Public Service agencies
and other Public Service senior executives.
(2)
The employees to whom this Division applies are
referred to in this Division as Public
Service non-executive employees.
43Kinds of
employment
(1)
Employment as a Public Service non-executive
employee may be any one of the following kinds of employment:
(a)
ongoing employment,
(b)
temporary employment,
(c)
casual employment.
(2)
Ongoing employment is employment that continues
until the employee resigns or his or her employment is
terminated.
(3)
Temporary employment is employment for a
temporary purpose.
(4)
Casual employment is employment to carry out
irregular, intermittent, short-term, urgent or other work as and when
required.
(5)
An employee who is employed to assist a specified
judicial officer (or other specified officer of a kind prescribed by the
regulations) may be employed on the basis that the person’s employment
may be terminated when the officer ceases to hold
office.
44Conditions of
engagement
(1)
The engagement of a Public Service non-executive
employee may be made subject to conditions notified to the employee on his or
her engagement.
(2)
The conditions may include (without limitation)
conditions dealing with any of the following matters:
(a)
probation,
(b)
citizenship or residency
requirements,
(c)
formal qualifications,
(d)
security and other
clearances,
(e)
health clearances.
(3)
The imposition of conditions is subject to the
government sector employment rules.
45Employment in classifications
of work
(1)
Public Service non-executive employees are to be
employed in a classification of work determined by the head of the Public
Service agency in which the person is employed in accordance with this Act and
any other Act or law.
Note—
See Division 6 in relation to classifications
determined under industrial instruments.
(2)
A classification of work extends to any kind of
work and any grade of that work.
46Assignment to roles in work
classifications
(1)
In this section:
assign to a role includes assign to
a different role.
(2)
The head of a Public Service agency may from time
to time assign Public Service non-executive employees of the agency to roles
in the agency in the classification of work in which the employees are
employed.
(3)
Public Service non-executive employees may be
assigned to roles to enable the flexible deployment of staff resources within
the agency and to develop the capabilities of staff.
(4)
A Public Service non-executive employee is not to
be assigned to a different role unless the employee has been consulted. The
remuneration payable to the employee is not to be reduced because of the
assignment to the different role without the consent of the
employee.
47Termination of
employment
(1)
The head of a Public Service agency may, by
instrument in writing, terminate the employment of a Public Service
non-executive employee of the agency on any of the following grounds if the
employment is ongoing employment:
(a)
the employee has failed to meet a condition of
engagement as an employee imposed under section 44,
(b)
the employee lacks, or has lost, an essential
qualification for performing the duties of the role assigned to the
employee,
(c)
the performance of the employee is determined
under section 68 to be unsatisfactory,
(d)
the employee is unable to perform the duties of
the role assigned to the employee because of physical or mental
incapacity,
(e)
the employee is retired on medical grounds under
section 56,
(f)
the employee has refused to perform duties to
which the employee has been duly assigned,
(g)
the employee has abandoned his or her
employment,
(h)
a finding of misconduct has been made against the
employee under section 69,
(i)
a finding has been made under section 69 that the
employee has been convicted of a serious offence,
(j)
the employee is determined in accordance with the
regulations and the government sector employment rules to be excess to the
requirements of the relevant part of the agency in which he or she is
employed,
(k)
on any other ground prescribed by the
regulations.
The instrument is to set out the ground or
grounds on which the employment is terminated.
(2)
The head of a Public Service agency may, by
instrument in writing, terminate the employment of a Public Service
non-executive employee of the agency at any time if the employment is not
ongoing employment.
48Matters that government sector
employment rules may deal with
The government sector employment rules may deal
with any matter relating to the employment of Public Service non-executive
employees, including (without limitation) the following matters:
(a)
the recruitment of any such employees (including
the recruitment process and the application of the principle of employment on
merit),
(b)
the circumstances in which any such employees may
be employed in particular kinds of employment,
(c)
the conditions of engagement of any such
employees,
(d)
work level standards for roles in classifications
of work in which any such employees are employed,
(e)
methods of job evaluation for the roles of any
such employees,
(f)
capabilities for the roles of any such
employees,
(g)
the assigning of any such employees to
roles,
(h)
acting of any such employees in another
classification of work or in a Public Service senior executive
role,
(i)
the termination of employment of any such
employees,
(j)
dealing with any such employees who are excess
employees.
Division 6Industrial relations employer
functions
49Interpretation and
application: Division 6
(1)
In this Division:
conditions of employment and
industrial matters have the same
meanings they have in the Industrial Relations Act
1996.
Industrial Relations Secretary means
the Secretary of the Treasury.
Note—
An administrative arrangements order may be made
under Part 7 of the Constitution Act
1902 to change the reference to the Secretary of the
Treasury having regard to future administrative changes in the allocation of
Ministerial and departmental responsibilities.
(2)
This Division does not apply to the conditions of
employment of the Secretary of a Department or a Public Service senior
executive. This subsection does not prevent particular conditions of
employment under this Division from being adopted by reference in the contract
of employment of the Secretary or executive.
50Role of Industrial Relations
Secretary in industrial proceedings
The Industrial Relations Secretary is, for the
purposes of any proceedings relating to Public Service employees held before a
competent tribunal having jurisdiction to deal with industrial matters, taken
to be the employer of Public Service employees.
51Industrial Relations Secretary
may enter into agreements
(1)
The Industrial Relations Secretary may enter into
an agreement with any association or organisation representing a group of
Public Service employees with respect to industrial
matters.
(2)
Any such agreement binds all Public Service
employees in the group affected by the agreement, and no such employee
(whether a member of the association or organisation with which the agreement
was entered into or not) has any right of appeal against the terms of the
agreement.
(3)
An agreement under this section is not an
enterprise agreement within the meaning of the Industrial
Relations Act 1996. However, the Industrial Relations
Secretary (or any delegate of the Industrial Relations Secretary) may enter
into such an enterprise agreement as the employer of the employees
concerned.
52Industrial Relations Secretary
may determine employment conditions not otherwise lawfully
determined
(1)
The Industrial Relations Secretary may from time
to time make determinations fixing conditions of employment of Public Service
employees (or any group of them).
(2)
Conditions of employment that are so determined
apply to Public Service employees unless inconsistent with this Act, State
industrial instruments or any other law.
(3)
This section does not prevent the head of a
Public Service agency from determining conditions of employment of employees
of the agency for the purposes of the day to day management of the agency in
matters not regulated by State industrial instruments and determinations under
this section.
(4)
For the purposes of the recovery of any amount
owing under a determination under this section, the determination is taken to
be a State industrial instrument.
53Industrial relations
provisions
(1)
The Industrial Relations Secretary is not subject
to the control and direction of any Minister:
(a)
in determining conditions of employment under
this Division, or
(b)
in dealing with a dispute relating to an
industrial matter concerning Public Service
employees.
(2)
The Industrial Relations Secretary may delegate
any of his or her functions under this Division (other than this power of
delegation) to the head of a Public Service agency or any Public Service
employee or to a statutory officer.
(3)
The Industrial Relations Secretary has the
following functions:
(a)
advising the Government on appropriate strategies
and policies regarding employment conditions and industrial relations in the
government sector,
(b)
monitoring the implementation of Government
strategies and policies on employment conditions and industrial relations in
the government sector and assisting with the implementation of those
strategies and policies.
The Industrial Relations Secretary must consult
with the Public Service Commissioner before exercising any function under this
subsection.
(4)
The head of a Public Service agency is to notify
the Industrial Relations Secretary of such industrial matters affecting the
agency as the Industrial Relations Secretary specifies in a notice given to
the head of the agency.
(5)
A Public Service employee who is authorised by
the Industrial Relations Secretary for the purposes of this subsection
may:
(a)
enter the premises of any Public Service agency,
and
(b)
require the production of and examine any
documents in the custody of any Public Service employee,
and
(c)
require any Public Service employee to answer
questions,
for the purposes of enabling the Industrial Relations
Secretary to exercise his or her functions under this
Division.
Division 7Additional Public Service
employment provisions
54Entitlement to extended and
other leave
Public Service employees have the entitlements to
extended and other leave prescribed by the regulations.
55Resignation
A Public Service employee may resign his or her
employment by written notice to the person who exercises employer functions in
relation to the employee.
56Retirement on medical
grounds
The head of a Public Service agency may retire a
person who is an employee of the agency if:
(a)
the person is found to be unfit to perform or
incapable of performing the duties of the person’s employment,
and
(b)
the person’s unfitness or
incapacity:
(i)
appears likely to be of a permanent nature,
and
(ii)
has not arisen from actual misconduct on the part
of the person, or from causes within the person’s
control.
57Crown’s dispensation
with services
(1)
The right or power of the Crown to dispense with
the services of any Public Service employee, as it existed immediately before
the commencement of this section, is not abrogated or restricted by any of the
provisions of this Act.
(2)
A Public Service employee is not, except as
provided by this or any other Act, entitled to any compensation as a result of
the person’s services being dispensed with.
58Industrial or legal
proceedings excluded
(1)
In this section, executive employee means the
Secretary of a Department or other Public Service senior executive, and
non-executive employee means a
Public Service employee other than an executive
employee.
(2)
In this section, a reference to the employment of
an executive employee is a reference to:
(a)
the engagement of, or failure to engage, a person
as an executive employee, or
(b)
the assignment or re-assignment of the executive
employee to a role in a band, or
(c)
the removal, retirement, termination of
employment or other cessation of employment of an executive employee,
or
(d)
any disciplinary proceedings or action taken
against an executive employee, or
(e)
the remuneration or other conditions of
employment of an executive employee.
(3)
The employment of an executive employee, or any
matter, question or dispute relating to any such employment, is not an
industrial matter for the purposes of the Industrial
Relations Act 1996.
(4)
Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not
apply to or in respect of the employment of an executive
employee.
(5)
Any State industrial instrument (whether made
before or after the commencement of this section) does not have effect in so
far as it relates to the employment of executive employees. This subsection
does not prevent the regulations or other statutory instruments or any
contract of employment from applying the provisions of any such industrial
instrument to the employment of an executive employee.
(6)
The engagement of, or the failure to engage, a
person as a non-executive employee, or any matter, question or dispute
relating to any such engagement (or failure to engage), is not an industrial
matter for the purposes of the Industrial Relations Act
1996.
(7)
No proceedings for an order in the nature of
prohibition, certiorari or mandamus or for a declaration or injunction or for
any other relief, lie in respect of a matter that is declared by this section
not to be an industrial matter for the purposes of the Industrial Relations Act
1996.
(8)
Nothing in this section prevents any of the
following proceedings from being brought by an employee of a Public Service
agency in relation to the employment of another employee of any Public Service
agency:
(a)
proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation
to a complaint under that Part,
(b)
proceedings under section 213 of the Industrial Relations Act 1996 to enforce
the provisions of section 210 (Freedom from victimisation) of that
Act.
59How references to employees
etc of statutory body to be construed in other Acts, instruments and
contracts
(1)
In any other Act, in any statutory or other
instrument, or in any contract or agreement (whether enacted, made or executed
before or after the commencement of this section):
(a)
a reference to an officer or employee, or a
member of staff, of a statutory body is to be read as including a
reference:
(i)
to a Public Service employee who is employed to
enable the statutory body to exercise its functions, and
(ii)
to any other person whose services the statutory
body makes use of (whether by way of secondment or otherwise),
and
(b)
a reference to a statutory body in its capacity
as an employer of persons is, to the extent that the persons concerned
comprise persons employed in the Public Service to enable the statutory body
to exercise its functions, to be read as including a reference to the
Government of New South Wales or, as the case requires, to the head of the
Public Service agency in which the persons are
employed.
(2)
This section is subject to the
regulations.
60Employer costs for Public
Service staff of statutory bodies
(1)
The Minister or the Treasurer may give directions
to a statutory body requiring the payment by the statutory body, on behalf of
the Government of New South Wales, of the remuneration and other
employment-related costs (such as superannuation, workers compensation and
public liability insurance) in respect of those Public Service employees who
are employed to enable the statutory body to exercise its
functions.
(2)
If a fund is established under any Act in
connection with a statutory body and the provisions of that Act authorise the
payment of amounts from the fund in connection with the employment of persons,
the statutory body is authorised to apply the fund for the purposes of any
payment required to be made by the body under subsection
(1).
61Civil liability with respect
to staff of statutory bodies
If:
(a)
a person is employed in the Public Service to
enable a statutory body to exercise its functions, and
(b)
the Government of New South Wales is, as the
person’s employer, proceeded against for any negligence or other tort of
the person (whether the damages are recoverable in an action for tort or
breach of contract or in any other action), and
(c)
the statutory body is entitled under a policy of
insurance or indemnity to be indemnified in respect of liability that the body
may incur in respect of that negligence or other
tort,
the Government is subrogated to the rights of the
statutory body under that policy in respect of the liability incurred by the
Government arising from that negligence or other tort.
62Operation of privacy
legislation
A group of Public Service employees employed to
enable a statutory body to exercise its functions is, for the purposes of the
Privacy and Personal Information Protection Act
1998 and the Health Records
and Information Privacy Act 2002, taken to be part of the
statutory body.
Part 5Government sector
employees
63Workforce
diversity
(1)
In this section:
government sector agency includes
the service of a State owned corporation, and any university or other service
or agency prescribed by the regulations.
workforce
diversity includes (but is not limited to) diversity of the
workforce in respect of gender, cultural and linguistic background, Aboriginal
people and people with a disability.
(2)
The head of a government sector agency is
responsible for workforce diversity within the agency and for ensuring that
workforce diversity is integrated into workforce planning in the
agency.
(3)
The government sector employment rules may deal
with workforce diversity in any government sector agency. The head of the
agency is to ensure that any obligations of the agency under those rules are
complied with.
(4)
The Commissioner is to include in annual or other
reports under Part 3 periodic reports on workforce diversity across government
sector agencies.
(5)
The obligations of those rules prevail over any
inconsistent obligations under the Anti-Discrimination Act
1977.
64Employee transfers and
secondments
(1)
The government sector employment rules may deal
with the transfer of employees between government sector agencies by way of
secondment or permanent transfers of employees (whether or not at the request
of the employees).
Note—
See also Part 4 with respect to assignment of
Public Service senior executives to roles.
(2)
Unless a transfer is initiated by the employee,
the person who initiates a transfer is required to consult the
employee.
(3)
The remuneration of an employee who is
transferred is not to be reduced without the approval of the
employee.
(4)
The government sector employment rules are to set
out the circumstances in which employees have the right to have a transfer
they have not initiated reviewed.
(5)
In this section, government sector agency
includes:
(a)
the service of a State owned corporation (or a
subsidiary), and
(b)
any service excluded by section 5 (but only for
transfers initiated by the employee).
65Cross-agency
employment
(1)
A person may be employed in 2 or more government
sector agencies (whether those agencies are Public Service agencies, other
agencies or a combination of Public Service agencies and other
agencies).
(2)
If the person is employed in 2 or more government
sector agencies, the heads of those agencies may determine that the person is
to be regarded as employed in one of those agencies for the purposes of all or
any conditions of employment of the person (including for the purposes of
provisions of or made under this Act or any other Act relating to the
employment of the person).
66Temporary assignments of staff
between government sector agencies and other relevant
bodies
(1)
Arrangements may be made under this section under
which:
(a)
a person who is employed in a government sector
agency is temporarily assigned to carry out work in or for another government
sector agency, or
(b)
a person who is employed in a government sector
agency is temporarily assigned to carry out work in or for a non-government
sector body, or
(c)
a person who is employed in or by a
non-government sector body is temporarily assigned to carry out work in or for
a government sector agency.
Any such assignment may be on a full-time or
part-time basis.
(2)
An arrangement for a temporary assignment under
this section is to be made between the heads of the government sector agencies
or between the head of the government sector agency and the person responsible
for the employment of persons in or by the non-government sector
body.
(3)
A person employed in or by a non-government
sector body (other than a local council or State owned corporation) is not to
be temporarily assigned under this section to carry out work in or for a
government sector agency unless:
(a)
the head of the agency is satisfied that the
temporary assignment is justified because of the special skills of the person
or the special circumstances of the case, and
(b)
the period of any one assignment does not exceed
2 years.
(4)
The government sector employment rules may deal
with temporary assignments under this section.
(5)
A person’s employment in a government
sector agency (including the continuity of that employment) is not affected by
the temporary assignment of the person under this
section.
(6)
In this section:
non-government sector body means any
of the following:
(a)
a local council,
(b)
a State owned corporation,
(c)
a private sector entity (including a
not-for-profit sector entity),
(d)
a public authority or government agency of the
Commonwealth or of another State or Territory,
(e)
a political office holder under the Members of Parliament Staff Act 2013
(except in relation to an assignment to carry out work in or for a government
sector agency),
(f)
a university.
67Performance management
systems
(1)
The head of a government sector agency is
responsible for developing and implementing a performance management system
with respect to employees of the agency.
(2)
The government sector employment rules may deal
with the core requirements of any such performance management
system.
68Unsatisfactory performance of
government sector employees
(1)
The government sector employment rules may deal
with the procedural requirements for dealing with unsatisfactory performance
(consistently with procedural fairness).
(2)
If the performance of an employee of a government
sector agency is determined to be unsatisfactory in accordance with those
rules, the head of the agency may (without limitation on relevant action) take
any of the following actions:
(a)
terminate the employment of the employee (after
giving the employee an opportunity to resign),
(b)
reduce the remuneration payable to the
employee,
(c)
reduce the classification or grade of the
employee,
(d)
assign the employee to a different
role.
69Misconduct—Public
Service and other prescribed government sector employees
(1)
In this section:
government sector agency
means:
(a)
a Public Service agency, and
(b)
any other government sector agency prescribed by
the regulations for the purposes of this section.
misconduct extends to the
following:
(a)
a contravention of this Act or an instrument made
under this Act,
(b)
taking any detrimental action (within the meaning
of the Public Interest Disclosures Act
1994) against a person that is substantially in reprisal
for the person making a public interest disclosure within the meaning of that
Act,
(c)
taking any action against another employee of a
government sector agency that is substantially in reprisal for a disclosure
made by that employee of the alleged misconduct of the employee taking that
action.
The subject matter of any misconduct by an employee may
relate to an incident or conduct that happened while the employee was not on
duty or before his or her employment.
serious
offence means an offence punishable by imprisonment for 12
months or more.
(2)
The head of a government sector agency is
responsible for dealing with any misconduct by employees of the agency (or any
conviction for a serious offence by any such employee) in accordance with this
section.
(3)
The government sector employment rules may deal
with the following:
(a)
misconduct by employees of government sector
agencies or the conviction of any such employees for a serious
offence,
(b)
the procedural requirements for dealing with
allegations of misconduct by employees of government sector agencies
(consistently with procedural fairness).
(4)
If, in accordance with those rules, there is a
finding of misconduct by an employee of a government sector agency or any such
employee is found to have been convicted of a serious offence, the head of the
agency may take any of the following actions:
(a)
terminate the employment of the employee (without
giving the employee an opportunity to resign),
(b)
terminate the employment of the employee (after
giving the employee an opportunity to resign),
(c)
impose a fine on the employee (which may be
deducted from the remuneration payable to the employee),
(d)
reduce the remuneration payable to the
employee,
(e)
reduce the classification or grade of the
employee,
(f)
assign the employee to a different
role,
(g)
caution or reprimand the
employee.
(5)
Proceedings and actions under this section may be
taken or continued despite the employee resigning or otherwise ceasing to be
an employee of the agency concerned. Any such action may be expressed to be a
termination of employment even if the person has ceased to be an
employee.
(6)
This section does not apply to any employees of a
government sector agency who are excluded by the
regulations.
Note—
See section 82 (2) for inquiries into conduct of
heads of agencies.
70Suspension of employees from
duty pending decision in relation to misconduct, criminal charge or corrupt
conduct
(1)
In this section:
government sector agency
means:
(a)
a Public Service agency, and
(b)
any other government sector agency prescribed by
the regulations for the purposes of this section.
(2)
If:
(a)
an allegation of misconduct by an employee of a
government sector agency is being dealt with by the head of the agency,
or
(b)
an employee of a government sector agency is
charged with a serious offence referred to in section
69,
the head of the agency may suspend the employee from
duty until the allegation of misconduct or the criminal charge has been dealt
with and any subsequent action has been taken by the head of the
agency.
(3)
If the Independent Commission Against
Corruption:
(a)
has made a corrupt conduct finding against an
employee of a government sector agency of a kind referred to in section 114A
of the Independent Commission Against
Corruption Act 1988, or
(b)
is conducting an investigation into the conduct
of any such employee that may lead to such a
finding,
the head of the agency may suspend the employee from
duty until the completion of any such investigation and, in the case of any
such finding, until any subsequent action has been taken by the head of the
agency.
(4)
The head of the agency may direct that any
remuneration payable to an employee while the employee is suspended from duty
under this section is to be withheld.
(5)
If:
(a)
the head of the agency takes action against the
employee for the misconduct or the corrupt conduct finding,
or
(b)
the employee is convicted of the offence
concerned,
any remuneration so withheld is forfeited to the State
unless the head of the agency otherwise directs or that remuneration was due
to the employee in respect of a period before the suspension was
imposed.
(6)
The head of the agency may at any time remove a
suspension under this section.
71Employees contesting State
elections
(1)
If a person who is employed in any government
sector agency is nominated for election to the Legislative Assembly or
Legislative Council, the person is to be granted leave of absence until the
day on which the result of the election is declared.
(2)
If the person is elected, the person is required
to resign from the government sector agency concerned.
(3)
Unless the person is entitled to leave with pay
(and duly applies for that leave), any leave of absence under this section is
to be leave without pay.
(4)
In this section:
government sector agency includes
the service of a State owned corporation (or a subsidiary) or any service
excluded by section 5.
72Re-employment of employees
resigning to contest Commonwealth elections
(1)
If a person who is employed in any government
sector agency:
(a)
resigns in writing from the government sector
agency and the resignation takes effect not earlier than 3 months before
polling day at an election of a member or members of either House of
Parliament of the Commonwealth and before the day fixed for nominations for
the election, and
(b)
includes in the resignation notice of the
person’s intention to become a candidate at that election,
and
(c)
becomes a candidate at that election,
and
(d)
fails to be elected at that election,
and
(e)
makes written application for re-employment in
the government sector agency concerned within 2 months after the declaration
of the result of that election,
the person is entitled to be re-employed in the
government sector agency not lower in remuneration than the current
remuneration for the employment of the person at the date of the
person’s resignation (or a similar employment).
(2)
A person, on being re-employed under this
section, is taken:
(a)
to have never resigned from the government sector
agency concerned, and
(b)
to have been on leave without pay during the
period between resignation and re-employment.
(3)
In this section:
government sector agency includes
the service of a State owned corporation (or a subsidiary) or any service
excluded by section 5.
73Appointment to position in
government sector not affected by additional appointment
(1)
The doctrine of incompatibility of office:
(a)
does not operate to prevent the holder of a
position in any government sector agency (the original
position) from being appointed to another position in that
or any other government sector agency (the additional position),
and
(b)
does not operate to effect or require the holder
of the original position to surrender or vacate that position as a result of
the appointment to the additional position.
(2)
This section:
(a)
applies even if the original position or the
additional position is held on an acting or temporary basis,
and
(b)
extends to an appointment made before the
commencement of this section (and applies to such an appointment as if this
section had been in force when the appointment was
made).
74Excess
employees—jurisdiction of Industrial Relations
Commission
(1)
In this section:
excess
employee means an employee of a government sector agency who
is determined by the head of the agency to be excess to the requirements of
the relevant part of the agency in which the employee is employed, and
includes an employee of a government sector agency who has been notified by
the head of the agency:
(a)
that his or her role, position or work in the
agency has been abolished or terminated, and
(b)
that he or she is an excess or displaced
employee.
Any such person does not cease to be an excess employee
merely because the person is engaged (on a temporary basis) to carry out other
work in the same or any other government sector agency.
termination of the employment of a
person includes dispensing with the services of the
person.
(2)
Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996 does not
apply to contracts of employment of employees of any government sector agency
that are alleged to be unfair for any reason relating to excess employees,
including the following:
(a)
when and how employees become excess
employees,
(b)
the entitlements of excess employees (including
with respect to redeployment, employment retention, salary maintenance and
voluntary or other redundancy payments),
(c)
the termination of the employment of excess
employees.
Part 6Removal of statutory
officers
75Statutory officers to whom
Part applies
(1)
This Part applies to:
(a)
a person appointed by the Governor or a Minister
to a statutory office where the Act concerned provides that the holder of the
office holds it for a term specified in the Act, in the instrument of
appointment or in another instrument, and
(b)
a director or chief executive officer of a
statutory State owned corporation.
(2)
This Part applies whether the person holds office
on a full-time or part-time basis.
(3)
This Part does not apply to a person merely
because an Act provides that the person ceases to hold office on reaching a
particular age.
76Statutory officers to whom
Part does not apply
This Part does not apply to a person in the
person’s capacity as:
(a)
the Governor, the Lieutenant-Governor or other
officer administering the Government, or
(b)
a member of the Executive Council, a Minister of
the Crown, a member of either House of Parliament or the holder of any other
political office, or
(c)
the holder of a judicial office,
or
(d)
the Parliamentary Remuneration Tribunal,
or
(e)
a member of the NSW Police Force,
or
(f)
the Secretary of a Department or other Public
Service senior executive, or
(g)
the holder of an office under an Act that
provides that the holder may or must be removed from office following an
address, declaration, resolution or other involvement of either or both of the
Houses of Parliament, or
(h)
the Crown Advocate, or
(i)
an Assistant Commissioner for the Independent
Commission Against Corruption or any other officer of the Commission,
or
(j)
the Public Service
Commissioner.
77Removal from office of
statutory officers to whom Part applies
(1)
The Governor may remove a person to whom this
Part applies from office at any time for any or no stated reason and without
notice.
(2)
This section does not prevent any such person
from being removed from office apart from this Act.
78Compensation for office holder
following removal
(1)
This section applies to a person who is removed
from an office under this Part, but does not apply to a person who held the
office concerned on a part-time basis.
(2)
A person to whom this section applies is entitled
to such compensation (if any) for loss of remuneration as the Statutory and
Other Offices Remuneration Tribunal determines.
(3)
The maximum compensation payable is an amount
equal to the person’s gross remuneration for:
(a)
the period of 38 weeks, or
(b)
the period starting from the person’s
removal from office and ending when the person’s term of office would
have expired,
at the rate at which it was payable immediately before
the person’s removal from office.
(4)
If more than one such period is applicable, the
maximum compensation is to be calculated by reference to the shorter or
shortest period.
(5)
The person is not entitled to any other
compensation for the removal from office or to any other remuneration in
respect of the office for any period afterwards.
(6)
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 for loss of
remuneration relates.
(7)
The person is not to be employed in the public
sector during the period so specified, unless arrangements have been made for
a refund of the proportionate amount of the
compensation.
(8)
In this section:
employment of a person in the public
sector includes:
(a)
engagement of the person as a consultant or
contractor to the employer, and
(b)
engagement of the person through a labour hire
arrangement with the employer, and
(c)
engagement of a company or partnership that
provides the services of the person to the
employer.
public
sector means the government sector, the service of a State
owned corporation (or a subsidiary), any service excluded by section 5 or a
statutory office.
79Operation of this
Part
(1)
This Part prevails over any inconsistent
provision of any other Act or law or of the terms of appointment of or
contract with a person.
(2)
Parts 6 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not
apply to or in respect of the removal of a person from office under this
Part.
(3)
This Part applies to a person appointed to a
statutory office even though the Act concerned excludes the application of
this Act, unless it expressly excludes the application of this
Part.
(4)
This Part applies to persons holding office at
the commencement of this Part, as well as to persons appointed to an office
afterwards.
Part 7Miscellaneous
80Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
81Delegation by
Minister
(1)
The Minister may delegate to any authorised
person any of the Minister’s functions under this Act, other than this
power of delegation.
(2)
In this section:
authorised person means the holder
of a statutory office, a person employed in the government sector or a person
authorised by the regulations.
82Special Ministerial
inquiries
(1)
The Minister may, in the case of any matter
relating to a government sector agency or a NSW government agency, direct such
person as the Minister specifies in the direction to conduct a special inquiry
into the matter.
(2)
A special inquiry may (without limitation) be
conducted under this section into a matter involving the conduct or
performance of the head of a government sector agency or a Public Service
senior executive (whether or not the person has ceased to be such an agency
head or executive).
(3)
A person conducting a special inquiry may enter
the premises of any government sector agency or NSW government agency in
connection with the inquiry.
(4)
A person conducting a special inquiry has, for
the purposes of the inquiry, the functions, protections and immunities
conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923. If 2 or more
persons are conducting a special inquiry, the person appointed to preside at
the inquiry has, for the purposes of the inquiry, the functions conferred on
the chairperson of a commission by the Royal Commissions
Act 1923.
(5)
The provisions of the Royal
Commissions Act 1923 (except section 13 and Division 2 of
Part 2) apply, with necessary modifications:
(a)
to a special inquiry, and
(b)
to any witness or person summoned by or appearing
before the inquiry or providing material to the
inquiry.
(6)
If the person conducting a special inquiry
agrees, an agent (including an Australian legal practitioner) may represent a
person, government sector agency or other agency at the
inquiry.
(7)
The person conducting a special inquiry is not
bound by the rules of evidence and may be informed on any matter in issue at
the inquiry in such manner as the person considers
appropriate.
(8)
The person conducting a special inquiry may, in
respect of a matter not dealt with by or under this Act, give directions as to
the procedure to be followed at or in connection with the
inquiry.
(9)
The person conducting a special inquiry
must:
(a)
within such period as the Minister requires,
prepare a report on the conduct and findings, and any recommendations, of the
inquiry, and
(b)
immediately after preparing the report, provide
the Minister with a copy of the report.
(10)
The Minister must cause a copy of the report,
together with information as to any action taken or proposed to be taken in
relation to the subject of the report, to be laid before each House of
Parliament within 30 sitting days of that House after the day on which the
Minister was provided with a copy of the report.
83Inquiries by Public Service
Commissioner or DPC Secretary into government sector
agencies
(1)
In this section:
DPC
Secretary means the Secretary of the Department of Premier
and Cabinet.
(2)
The Commissioner or DPC Secretary, or a person
authorised by the Commissioner or DPC Secretary, may conduct an inquiry into
any matter relating to the administration or management of a government sector
agency.
(3)
An inquiry is not to be conducted by or on behalf
of the DPC Secretary into any matter that is the subject of an inquiry by or
on behalf of the Commissioner, except with the concurrence of the
Commissioner.
(4)
The Commissioner or DPC Secretary, or a person
authorised by the Commissioner or DPC Secretary, may, for the purposes of
conducting an inquiry under this section:
(a)
enter and inspect the premises of a government
sector agency, and
(b)
require the production of, and take copies of,
any documents in the custody of an employee of the government sector agency,
and
(c)
for the purposes of further examination, take
possession of, and remove, any of those documents, and
(d)
require an employee of the government sector
agency to answer questions, and
(e)
require an employee of the government sector
agency to provide such assistance and facilities as is or are necessary to
enable the Commissioner, Secretary or authorised person to exercise functions
under this section.
A reference in this subsection to an employee of
a government sector agency includes a reference to any person who is engaged
by the agency (whether directly or indirectly) under a contract for
services.
(5)
This section does not affect the operation of
section 82.
(6)
The DPC Secretary cannot conduct (or authorise
the conduct of) an inquiry under this section into the NSW Police
Force.
84Minister’s powers to
control staff and work of Department not affected
The ordinary and necessary departmental authority
of a Minister with respect to the control and direction of staff and work is
not limited by anything in this Act.
85Operation of industrial
relations and superannuation legislation
(1)
This Act does not affect the operation of the
Industrial Relations Act 1996. This
subsection does not limit section 58 (Industrial or legal proceedings
excluded) and section 74 (Excess employees—jurisdiction of Industrial
Relations Commission).
(2)
This Act does not affect the operation of
provisions of the Superannuation Act
1916 or any other superannuation legislation relating to
retirement and other cessation of employment (and to entitlement to pensions
and other benefits) of employees to whom this Act
applies.
86Appointment to other statutory
offices
Nothing in this Act prevents the head of a Public
Service agency or other Public Service employee from also being appointed to a
statutory office under any Act.
87Proceedings for
offences
Proceedings for an offence against the
regulations may be dealt with summarily before the Local
Court.
88Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
In particular, the regulations may make provision
for or with respect to the following:
(a)
the employment of persons in the government
sector (including employment in special cases, leave, redeployment, mobility
and termination),
(b)
any matter that may be dealt with in the
government sector employment rules (in which case the regulations prevail to
the extent of any inconsistency with those rules).
(3)
The regulations may preclude an employee of a
government sector agency who receives a severance or redundancy payment
because of a cessation of employment from being engaged in the public sector
(referred to in section 41) during a period after that cessation of employment
unless arrangements have been made for a refund of a proportionate amount of
the payment.
(4)
A regulation may create an offence punishable by
a penalty not exceeding 10 penalty units.
89Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the commencement of this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Public Service
agencies
(Section 22)
Note—
Section 47A of the Constitution Act 1902 precludes a
statutory body or statutory officer from employing staff unless specifically
authorised to do so by legislation.
Section 21 of this Act enables staff to be
employed under this Act in Departments or other Public Service agencies to
enable Ministers, statutory bodies or statutory officers to exercise their
functions. For example, the Public Service agencies referred to in this
Schedule as staff agencies comprise persons who are employed under this Act to
enable the statutory body included in the name of the agency to exercise its
functions.
Under section 59 of this Act, the persons
employed in a Department or other Public Service agency to enable a statutory
body or statutory officer to exercise functions may be referred to as the
officers or employees, or members of staff, of the statutory body or statutory
officer.
Part 1Departments
Department of Education and
Communities
Department of Family and Community
Services
Ministry of Health
Department of Justice
Department of Planning and
Environment
Department of Premier and Cabinet
Department of Trade and Investment, Regional
Infrastructure and Services
Department of Transport
The Treasury
Part 2Executive agencies related to
Departments
The agency heads marked with an asterisk are
statutory officers and do not hold offices established by this Act in the
Public Service.
Executive
agency
Head of
agency
Related
Department
Art Gallery
of New South Wales Trust Staff Agency
Director of
the Art Gallery of New South Wales
Department
of Trade and Investment, Regional Infrastructure and Services. The Minister
administering the Art Gallery of New South Wales
Act 1980 is to exercise the employer functions of the
Government in relation to the Director.
Australian
Museum Trust Staff Agency
Director of
the Australian Museum
Department
of Trade and Investment, Regional Infrastructure and Services. The Minister
administering the Australian Museum Trust Act
1975 is to exercise the employer functions of the
Government in relation to the Director.
Barangaroo
Delivery Authority Staff Agency
Chief
Executive Officer of the Barangaroo Delivery Authority
Department
of Premier and Cabinet
Multicultural NSW Staff Agency
Chief
Executive Officer of the Agency
Department
of Education and Communities. The Minister administering the Multicultural NSW Act 2000 is to
exercise the employer functions of the Government in relation to the Chief
Executive Officer.
Crown
Solicitor’s Office
Crown
Solicitor
Department
of Justice
Destination
NSW Staff Agency
Chief
Executive Officer of Destination NSW
Department
of Trade and Investment, Regional Infrastructure and Services. The Minister
administering the Destination NSW Act
2011 is to exercise the employer functions of the
Government in relation to the Chief Executive Officer.
Office of
Environment and Heritage
Chief
Executive of the Office
Department
of Planning and Environment
Office of
Finance and Services
Chief
Executive of the Office
The
Treasury
Fire and
Rescue NSW
Commissioner of Fire and Rescue NSW
Department
of Justice. The Minister administering the Fire Brigades Act
1989 is to exercise the employer functions of the
Government in relation to the Commissioner.
Health
Professional Councils Authority Office
Secretary
of the Ministry of Health
Ministry of
Health
Home Care
Service Staff Agency
Secretary
of the Department of Family and Community Services
Department
of Family and Community Services
Independent
Liquor and Gaming Authority Staff Agency
Chief
Executive of the Independent Liquor and Gaming Authority
Department
of Trade and Investment, Regional Infrastructure and
Services
Infrastructure NSW Staff Agency
Chief
Executive Officer and Co-ordinator General, Infrastructure NSW
Department
of Premier and Cabinet. The Minister administering the Infrastructure NSW Act 2011 is to
exercise the employer functions of the Government in relation to the Chief
Executive Officer and Co-ordinator General.
Institute
of Sport Staff Agency
Chief
Executive of the Office of Sport
Department
of Premier and Cabinet
Library
Council of New South Wales Staff Agency
State
Librarian
Department
of Trade and Investment, Regional Infrastructure and Services. The Minister
administering the Library Act
1939 is to exercise the employer functions of the
Government in relation to the State Librarian.
Office of
Local Government
Chief
Executive of the Office
Department
of Planning and Environment
Local Land
Services Staff Agency
Chair of
the Board of Chairs under the Local Land Services Act
2013
Department
of Trade and Investment, Regional Infrastructure and
Services
Mental
Health Commission Staff Agency
Secretary
of the Ministry of Health
Ministry of
Health
Natural
Resources Commission Staff Agency
*Commissioner for the Commission
Department
of Premier and Cabinet
NSW
Institute of Psychiatry Staff Agency
Secretary
of the Ministry of Health
Ministry of
Health
Office of
the NSW Rural Fire Service
Commissioner of the NSW Rural Fire Service
Department
of Justice. The Minister administering the Rural Fires Act
1997 is to exercise the employer functions of the
Government in relation to the Commissioner.
Office of
the NSW State Emergency Service
Commissioner of the NSW State Emergency
Service
Department
of Justice. The Minister administering the State Emergency
Service Act 1989 is to exercise the employer functions of
the Government in relation to the Commissioner.
Parliamentary Counsel’s Office
Parliamentary Counsel
Department
of Premier and Cabinet
Ministry
for Police and Emergency Services
Chief
Executive of the Ministry
Department
of Justice. The Minister administering this Act is to exercise the employer
functions of the Government in relation to the Chief
Executive.
Service
NSW
Chief
Executive Officer of Service NSW
The
Treasury
Office of
Sport
Chief
Executive of the Office
Department
of Premier and Cabinet
Sydney
Cricket and Sports Ground Trust Staff Agency
Secretary
of the Sydney Cricket and Sports Ground Trust
Department
of Premier and Cabinet
Sydney
Opera House Trust Staff Agency
Chief
Executive of the Sydney Opera House Trust
Department
of Trade and Investment, Regional Infrastructure and Services. The Minister
administering the Sydney Opera House Trust Act
1961 is to exercise the employer functions of the
Government in relation to the Chief Executive.
Trustees of
the Museum of Applied Arts and Sciences Staff Agency
Director of
the Museum of Applied Arts and Sciences
Department
of Trade and Investment, Regional Infrastructure and Services. The Minister
administering the Museum of Applied Arts and
Sciences Act 1945 is to exercise the employer functions of
the Government in relation to the Director.
UrbanGrowth
NSW Development Corporation Staff Agency
Chief
Executive of the UrbanGrowth NSW Development Corporation
Department
of Planning and Environment. The Minister administering the Growth Centres (Development Corporations) Act
1974 is to exercise the employer functions of the
Government in relation to the Chief Executive.
Part 3Separate
agencies
The agency heads marked with an asterisk are
statutory officers and do not hold offices established by this Act in the
Public Service.
Agency
Head of
agency
Board of
Studies, Teaching and Educational Standards Staff Agency
*President
of the Board of Studies, Teaching and Educational
Standards
Office of
the Children’s Guardian
*Children’s Guardian
Office of
the Director of Public Prosecutions
*Director
of Public Prosecutions
Environment
Protection Authority Staff Agency
*Chairperson of the Environment Protection
Authority
Heath Care
Complaints Commission Staff Agency
*Commissioner of the Health Care Complaints
Commission
Independent
Pricing and Regulatory Tribunal Staff Agency
*Chairperson of the Independent Pricing and Regulatory
Tribunal
Independent
Transport Safety Regulator Staff Agency
*Chief
Executive of the Independent Transport Safety Regulator
Information
and Privacy Commission
*Information Commissioner
Legal Aid
Commission Staff Agency
*Chief
Executive Officer of the Legal Aid Commission
New South
Wales Crime Commission Staff Agency
*Commissioner for the New South Wales Crime
Commission
New South
Wales Electoral Commission Staff Agency
*Electoral
Commissioner
Ombudsman’s Office
*Ombudsman
Police
Integrity Commission Staff Agency
*Commissioner for the Police Integrity
Commission
Public
Service Commission
* Public
Service Commissioner
sch 1: Subst 2014
(11), cl 4 (am 2014 (58), cl 3 (1) (2)). Am 2014 (233), cl 4 (1)–(6);
2014 (413), cl 4 (1)–(7); 2014 No 64, Sch 2.5.
Schedule 2Provisions relating to Public
Service Commissioner
(Section 9)
1Basis of office of
Commissioner
(1)
The office of Commissioner is a full-time office
and the holder of the office is required to hold it on that basis, except to
the extent permitted by the Governor.
(2)
The office of Commissioner is a statutory office
under this Act and the holder of the office is not employed in the Public
Service.
2Term of
office
(1)
Subject to this Schedule, the Commissioner holds
office for such term not exceeding 7 years as may be specified in the
instrument of appointment, but is eligible (if otherwise qualified) for
re-appointment.
(2)
A person may not hold the office of Commissioner
for terms totalling more than 7 years.
3Remuneration
The Commissioner is entitled to be paid:
(a)
remuneration in accordance with the Statutory and Other Offices Remuneration Act
1975, and
(b)
such travelling and subsistence allowances as the
Premier may from time to time determine.
4Vacancy in
office
The office of Commissioner becomes vacant if the
holder:
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
resigns the office by instrument in writing
addressed to the Governor, or
(d)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(e)
becomes a mentally incapacitated person,
or
(f)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable, or
(g)
is removed from office by the Governor under
section 9.
5Filling of
vacancy
If the office of Commissioner becomes vacant, a
person is, subject to this Act, to be appointed to fill the
vacancy.
6Appointment of acting
Commissioner
(1)
The Premier may, from time to time, appoint a
person to act in the office of the Commissioner during the illness or absence
of the Commissioner or during a vacancy in the office of the Commissioner. The
person, while so acting, has all the functions of the Commissioner and is
taken to be the Commissioner (including as a member of the Public Service
Commission Advisory Board).
(2)
The Premier may, at any time, remove a person
from office as acting Commissioner.
(3)
An acting Commissioner is entitled to be paid
such remuneration (including travelling and subsistence allowances) as the
Premier may from time to time determine.
7Personal liability of
Commissioner
A matter or thing done (or omitted to be done)
by:
(a)
the Commissioner, or
(b)
a person acting under the direction of the
Commissioner,
does not, if the matter or thing was done (or omitted to
be done) in good faith for the purposes of executing this Act (or any other
Act that confers functions on the Commissioner), subject the Commissioner or a
person so acting personally to any action, liability, claim or
demand.
Schedule 3Members and procedure of
Public Service Commission Advisory Board
(Section 18)
Part 1Preliminary
1Definitions
In this Schedule:
appointed
member means the Chairperson of the Advisory Board or other
member of the Advisory Board who is appointed by the Premier.
member means an appointed or
ex-officio member of the Advisory Board.
Part 2Members
2Terms of office of appointed
members
(1)
Subject to this Schedule and the regulations, an
appointed member holds office for the period (not exceeding 3 years) specified
in the member’s instrument of appointment, but is eligible (if otherwise
qualified) for re-appointment.
(2)
A person may not be an appointed member for
consecutive terms totalling more than 6 years unless the Premier determines
otherwise.
3Remuneration of appointed
members
An appointed member is entitled to be paid such
remuneration (including travelling and subsistence allowances) as the Premier
may from time to time determine in respect of the
member.
4Vacancy in office of appointed
member
(1)
The office of an appointed member becomes vacant
if the member:
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
resigns the office by instrument in writing
addressed to the Premier, or
(d)
is removed from office by the Premier under this
clause, or
(e)
is absent from 3 consecutive meetings of the
Advisory Board of which reasonable notice has been given to the member
personally or by post, except on leave granted by the Premier or unless the
member is excused by the Premier for having been absent from those meetings,
or
(f)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(g)
becomes a mentally incapacitated person,
or
(h)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable.
(2)
The Premier may remove an appointed member from
office at any time.
5Filling of vacancy in office
of appointed member
If the office of any appointed member becomes
vacant, a person is, subject to this Act and the regulations, to be appointed
to fill the vacancy.
6Appointed members not
prevented from holding other offices
If by or under any Act provision is made:
(a)
requiring a person who is the holder of a
specified office to devote the whole of his or her time to the duties of that
office, or
(b)
prohibiting the person from engaging in
employment outside the duties of that office,
the provision does not operate to disqualify the person
from holding that office and also the office of an appointed member or from
accepting and retaining any remuneration payable to the person under this Act
as an appointed member.
7Appointed member holds
statutory office
An appointed member holds a statutory office and
is not employed in the Public Service.
8Disclosure of pecuniary or
other interests
(1)
If:
(a)
a member has a direct or indirect pecuniary or
other interest in a matter being considered or about to be considered at a
meeting of the Advisory Board, and
(b)
the interest appears to raise a conflict with the
proper performance of the member’s duties in relation to the
consideration of the matter,
the member must, as soon as possible after the relevant
facts have come to the member’s knowledge, disclose the nature of the
interest at a meeting of the Advisory Board.
(2)
A disclosure by a member at a meeting of the
Advisory Board that the member:
(a)
is a member, or is in the employment, of a
specified company or other body, or
(b)
is a partner, or is in the employment, of a
specified person, or
(c)
has some other specified interest relating to a
specified company or other body or to a specified
person,
is a sufficient disclosure of the nature of the interest
in any matter relating to that company or other body or to that person which
may arise after the date of the disclosure and which is required to be
disclosed under subclause (1).
(3)
Particulars of any disclosure made under this
clause must be recorded by the Advisory Board and the record must be available
at all reasonable hours to inspection by any person.
(4)
After a member has disclosed the nature of an
interest in any matter, the member must not, unless the Premier or the
Advisory Board otherwise determines:
(a)
be present during any deliberation of the
Advisory Board with respect to the matter, or
(b)
take part in any decision of the Advisory Board
with respect to the matter.
(5)
For the purposes of the making of a determination
by the Advisory Board under subclause (4), a member who has a direct or
indirect pecuniary or other interest in a matter to which the disclosure
relates must not:
(a)
be present during any deliberation of the
Advisory Board for the purpose of making the determination,
or
(b)
take part in the making by the Advisory Board of
the determination.
(6)
A contravention of this clause does not
invalidate any decision of the Advisory Board.
9Personal liability of
members
A matter or thing done (or omitted to be done)
by:
(a)
the Advisory Board, or
(b)
a person acting under the direction of the
Advisory Board,
does not, if the matter or thing was done (or omitted to
be done) in good faith for the purposes of executing this Act (or any other
Act that confers functions on the Advisory Board), subject a member of the
Advisory Board or a person so acting personally to any action, liability,
claim or demand.
Part 3Procedure
10General
procedure
The procedure for the calling of meetings of the
Advisory Board and for the conduct of business at those meetings is, subject
to this Act and the regulations, to be as determined by the Advisory
Board.
11Quorum
The quorum for a meeting of the Advisory Board is
a majority of the members for the time being.
12Presiding
member
(1)
The Chairperson of the Advisory Board (or, in the
absence of the Chairperson, a person elected by the members of the Advisory
Board who are present at a meeting of the Advisory Board) is to preside at a
meeting of the Advisory Board.
(2)
The presiding member has a deliberative vote and,
in the event of an equality of votes, has a second or casting
vote.
13Voting
A decision supported by a majority of the votes
cast at a meeting of the Advisory Board at which a quorum is present is the
decision of the Advisory Board.
14Transaction of business
outside meetings or by telephone
(1)
The Advisory Board may, if it thinks fit,
transact any of its business by the circulation of papers among all the
members of the Advisory Board for the time being, and a resolution in writing
approved in writing by a majority of those members is taken to be a decision
of the Advisory Board.
(2)
The Advisory Board may, if it thinks fit,
transact any of its business at a meeting at which members (or some members)
participate by telephone, closed-circuit television or other means, but only
if any member who speaks on a matter before the meeting can be heard by the
other members.
(3)
For the purposes of:
(a)
the approval of a resolution under subclause (1),
or
(b)
a meeting held in accordance with subclause
(2),
the Chairperson and each member have the same voting
rights as they have at an ordinary meeting of the Advisory
Board.
(4)
A resolution approved under subclause (1) is,
subject to the regulations, to be recorded in the minutes of the meetings of
the Advisory Board.
(5)
Papers may be circulated among the members for
the purposes of subclause (1) by facsimile or other transmission of the
information in the papers concerned.
15Frequency of
meetings
The Advisory Board is to meet at least on a
quarterly basis each year (but no more than 6 times each
year).
Schedule 4Savings, transitional and
other provisions
Part 1General
1Definition
In this Schedule:
former
Act means the Public Sector
Employment and Management Act
2002.
2Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
Any such provision has effect despite anything to
the contrary in this Schedule.
(5)
The regulations may make separate savings and
transitional provisions or amend this Schedule to consolidate the savings and
transitional provisions.
Part 2Provisions consequent on
enactment of this Act
3Continuation in office of
Public Service Commissioner
(1)
The person holding office as the Public Service
Commissioner under the former Act immediately before the repeal of that Act is
taken to have been appointed as the Public Service Commissioner under this Act
for the balance of the Commissioner’s term of office under the former
Act.
(2)
For the purpose of determining the maximum total
terms that a person may hold office as Public Service Commissioner under this
Act, a term of office under the former Act is taken to be a term of office
under this Act.
4Continuation in office of
members of Public Service Commission Advisory Board
(1)
A person holding office as a member of the Public
Service Commission Advisory Board under the former Act immediately before the
repeal of that Act is taken to have been appointed as a member of the Public
Service Commission Advisory Board under this Act for the balance of the
member’s term of office under the former Act.
(2)
For the purpose of determining the maximum total
terms that a person may hold office as a member of the Public Service
Commission Advisory Board under this Act, a term of office under the former
Act is taken to be a term of office under this Act.
5Existing employees of the
Government Service become employees of Public Service
(1)
A person who was employed in the Government
Service of New South Wales immediately before the repeal of the former Act is,
on that repeal, taken to be employed in the Public Service of New South Wales
in the same kind of employment. For that purpose, employment (other than for a
term) in an officer’s position or in a permanent position is the same
kind of employment as ongoing employment.
(1A)
Subclause (1) does not apply to any persons
employed in the Government Service of New South Wales who are, on the
commencement of this Act, transferred to the Transport Service of New South
Wales by an administrative arrangements order under the Constitution Act 1902. Division 4 of
Part 7 of the Transport Administration Act
1988 applies to any such transferred staff as if they had
been transferred by an order under that Division.
(2)
The application of the provisions of this Act,
the regulations and the government sector employment rules to any such person
is subject to the provisions of this Schedule.
(3)
The repeal of the former Act does not affect the
continuity of service of a person taken to be employed in the Public Service
under this clause, any accrued rights to leave under the former Act or any
accrual of rights to leave under this Act.
(4)
A person who is taken to be employed in the
Public Service under this clause is taken to be employed in a role or
classification of work that corresponds to the kind and grade of work of the
person’s position or work on the repeal of the former
Act.
(5)
The continued employment of a person taken to be
employed in the Public Service under this clause who held a Chief or Senior
Executive position or a senior officer position (or equivalent position) under
the former Act is subject to clauses 6–8.
(6)
(7)
This clause does not apply to persons employed
under the former Act as special temporary employees.
6Secretaries of
Departments—transitional arrangements
(1)
In this clause, former
principal Department means a principal Department of the
Public Service listed in Division 1 of Part 1 of Schedule 1 to the former Act
immediately before the repeal of the former Act.
(2)
A person holding office as the head of a former
principal Department immediately before the repeal of the former Act continues
in office as the Secretary of the corresponding Department under this
Act:
(a)
for the balance of the person’s term of
office under the former Act, or
(b)
for the period of 12 months after the
commencement of this Act,
whichever is the longer period. However, the person
ceases to hold office as Secretary under this subclause if the person’s
employment is terminated under section 41 of this Act (or otherwise ceases) or
if the person is subsequently appointed as Secretary of the Department under
this Act.
(3)
A Department under this Act that is declared, by
an administrative arrangements order under the Constitution Act
1902, to be the successor and a continuation of a former
principal Department is the corresponding Department of that former principal
Department for the purposes of this clause. A Department does not cease to be
a corresponding Department merely because of a subsequent change in the name
of the Department under this Act.
(4)
A person who continues in office as Secretary
under subclause (2):
(a)
is employed under Division 2 of Part 4 of this
Act in term employment in Band 4 under the senior executive bands
determination, and
(b)
is not required to enter into a contract of
employment under this Act for the purposes of that temporary period of
continued employment, and
(c)
has a remuneration package that is equivalent to
the remuneration package of the person immediately before the repeal of the
former Act (unless the remuneration package is increased as a result of a
determination of the Statutory and Other Offices Remuneration Tribunal made
under Part 3A of the Statutory and Other Offices
Remuneration Act 1975), and
(d)
if the person’s employment is terminated
under section 41 of this Act on or after the commencement of this Act, is
entitled to the compensation provided under section 78 of the former Act as if
the termination had been a removal of the person from office under the former
Act.
7Heads of other Public Service
agencies—transitional arrangements
(1)
In this clause, former
other Division means a Division of the Government Service
listed in Division 2 of Part 1, or Part 2, of Schedule 1 to the former Act
immediately before the repeal of the former Act, but does not include any such
Division whose staff are, on the commencement of this Act, transferred to the
Transport Service of New South Wales by an administrative arrangements order
under the Constitution Act
1902.
(2)
A person holding office as the head of a former
other Division immediately before the repeal of the former Act (other than the
holder of a statutory office) continues in office as the head of the
corresponding Public Service agency under this Act:
(a)
for the balance of the person’s term of
office under the former Act, or
(b)
for the period of 12 months after the
commencement of this Act,
whichever is the longer period. However, the person
ceases to hold office as the head of the agency under this subclause if the
person’s employment is terminated under section 41 of this Act (or
otherwise ceases) or if the person is subsequently appointed as head of the
agency under this Act.
(3)
A Public Service agency under this Act (other
than a Department) that is declared, by an administrative arrangements order
under the Constitution Act
1902, to be the successor and a continuation of a former
other Division is the corresponding Public Service agency of that former other
Division for the purposes of this clause. A Public Service agency does not
cease to be a corresponding Public Service agency merely because of a
subsequent change in the name of the agency under this
Act.
(4)
If, on the commencement of this Act, there is no
corresponding Public Service agency of a former other Division, the head of
the former other Division immediately before that commencement (other than the
holder of a statutory office) is a continuing former senior executive under
clause 8 in the Public Service agency to which the staff of the former other
Division are transferred by an administrative arrangements order under the
Constitution Act
1902.
(5)
If, on the commencement of this Act, a Public
Service agency (other than a Department) is not a corresponding Public Service
agency of a former other Division and the head of the agency is not a
statutory officer, the person who, immediately before that commencement, was
the relevant chief manager of the group of staff transferred to the Public
Service agency on that commencement by an administrative arrangements order
under the Constitution Act
1902 holds office as the head of the Public Service agency
under this Act:
(a)
for the balance of the person’s term of
office as the relevant chief manager under the former Act,
or
(b)
for the period of 12 months after the
commencement of this Act,
whichever is the longer period. However, the person
ceases to hold office as the head of the agency under this subclause if the
person’s employment is terminated under section 41 of this Act (or
otherwise ceases) or if the person is subsequently appointed as head of the
agency under this Act.
(6)
For the purposes of subclause (5), the relevant
chief manager of a transferred group of staff is the person who held,
immediately before the repeal of the former Act, the executive position under
Part 3.1 of Chapter 3 of the former Act having the duties of the head of that
group of staff.
(7)
A person who continues in office as head of a
Public Service agency under subclause (2) or who holds office as head of a
Public Service agency under subclause (5):
(a)
is employed under Division 3 of Part 4 of this
Act in term employment in the band under the senior executive bands
determination that includes the remuneration package to which the head of the
agency continues to be entitled under this subclause, and
(b)
is not required to enter into a contract of
employment under this Act for the purposes of that temporary period of
continued employment, and
(c)
has a remuneration package that is equivalent to
the remuneration package of the person immediately before the repeal of the
former Act (unless the remuneration package is increased as a result of a
determination of the Statutory and Other Offices Remuneration Tribunal made
under Part 3A of the Statutory and Other Offices
Remuneration Act 1975), and
(d)
if the person’s employment is terminated
under section 41 of this Act on or after the commencement of this Act, is
entitled to the compensation provided under section 78 of the former Act as if
the termination had been a removal of the person from office under the former
Act.
(8)
The following applies to the initial recruitment
action under this Act to fill the role of the head of a Public Service agency
(other than a Department):
(a)
the work level and other employment arrangements
relating to the role are to be determined under this Act and are not
determined by the level and other arrangements that apply to the continued
employment of the existing head of the agency under this
clause,
(b)
the existing head may be recruited before or at
the end of the temporary period of continued employment of the existing
head,
(c)
the existing head may be recruited without
compliance with the government sector employment rules on merit-based
employment (but only in term employment not exceeding 2 years if the
recruitment did not comply with those rules).
7AReview of senior executive
structure for implementation of new executive employment arrangements under
this Act
(1)
The Secretary of each Department is to review the
senior executive structure of the Department and its related Public Service
agencies in order to transition senior executive employment in the Department
and related agencies to the new arrangements under this
Act.
(2)
The head of a separate Public Service agency is
to review the senior executive structure of the agency in order to transition
senior executive employment in the agency to the new arrangements under this
Act.
(3)
The Commissioner is to determine the date (before
24 February 2017) on which senior executive employment in a Public Service
agency or in a part of a Public Service agency will transition to those new
arrangements, and on which relevant persons employed in the agency or part of
the agency will cease to be transitional former senior executives referred to
in clause 8.
(4)
The Commissioner may determine a different date
under this clause for a particular transitional former senior executive than
the date otherwise determined for the agency or the part of the agency in
which the executive is employed. The date determined for an agency, a part of
an agency or for a particular transitional former senior executive may be
changed by a further determination of the Commissioner (but only to a date
before 24 February 2017).
(5)
Without limiting the date that may be determined
as the implementation date for a transitional former senior executive, the
implementation date for an executive may be extended to a date before 24
February 2017 that is beyond the implementation date for other such executives
in the Public Service agency concerned for the purposes of knowledge transfer
and continuity of service by the agency in the transition to the new executive
employment arrangements under this Act or to enable the executive to take
accrued leave before the termination of employment.
(6)
The date on which a relevant person ceases to be
a transitional former senior executive is the implementation date for the
executive for the purposes of this Schedule.
(7)
Determinations of implementation dates by the
Commissioner under this clause are to be made in consultation with the
relevant Secretaries of Departments and relevant heads of separate Public
Service agencies.
8Senior executives (other than
Secretaries and other heads of agencies)—transitional
arrangements
(1)
In this clause:
implementation date for a
transitional former senior executive—see clause 7A.
transitional former senior
executive means a person who was, immediately before the
repeal of the former Act:
(a)
an executive officer within the meaning of Part
3.1 of Chapter 3 of the former Act (a former
SES executive), or
(b)
employed in the Government Service in the
classification or grade of senior officer (or in any equivalent classification
or grade determined by the Commissioner for the purposes of this clause) and
whose salary was more than the maximum salary for a clerk (Grade 12) in the
Public Service (a former SO
executive),
but does not include a statutory officer or a person
holding office as Secretary of a Department under clause 6 or holding office
as the head of a Public Service agency (other than a Department) under clause
7.
(2)
Until the implementation date for a transitional
former senior executive of a Public Service agency who is a former SES
executive, this Act applies to the executive subject to the following:
(a)
the executive is employed under Division 4 of
Part 4 of this Act in term employment in the band under the senior executive
bands determination that includes the remuneration package to which the
executive continues to be entitled under this subclause,
(b)
the term for which the executive is taken to be
so employed is (subject to this clause):
(i)
the balance of the person’s term of office
as a former SES executive, and
(ii)
any additional period before the implementation
date that the agency head may approve,
(c)
the executive is not required to enter into a
contract of employment under this Act for the purposes of that temporary
period of continued employment,
(d)
the executive has a remuneration package that is
equivalent to the remuneration package of the person immediately before the
repeal of the former Act (unless the remuneration package is increased as a
result of a determination of the Statutory and Other Offices Remuneration
Tribunal made under Part 3A of the Statutory and
Other Offices Remuneration Act 1975),
(e)
if the executive’s employment is terminated
under section 41 of this Act on or after the commencement of this Act, the
executive is entitled to the compensation provided under section 78 of the
former Act as if the termination had been a removal of the executive from
office under the former Act.
(3)
Until the implementation date for a transitional
former senior executive of a Public Service agency who is a former SO
executive, this Act applies to the executive subject to the following:
(a)
the executive is employed under Division 5 of
Part 4 of this Act in ongoing employment or, if the executive was employed for
a term under the former Act, in term employment,
(b)
the executive is not employed in a band under the
senior executive bands determination and is not subject to re-assignment to a
role in another Public Service agency without the agreement of the
executive,
(c)
the conditions of employment of the executive
that are preserved by clause 9 are subject to this
clause.
(4)
On the implementation date for a transitional
former senior executive of a Public Service agency:
(a)
the person ceases to be a transitional former
senior executive, and
(b)
the employment of the person in the agency is
terminated unless the person is employed in the agency on and from the
implementation date in accordance with this Act (whether as a Public Service
senior executive or as a Public Service non-executive employee),
and
(c)
any such termination of the employment of a
person who was a former SES executive is taken to be a termination under
section 41 of this Act to which subclause (2) (e) applies,
and
(d)
any such termination of the employment of a
person who was a former SO executive is taken to be a termination under
section 47 of this Act to which this Act (including the conditions of
employment preserved by clause 9) applies, and
(e)
section 58 of this Act applies to any such
termination of employment of a person (whether a former SES executive or a
former SO executive) on the basis that the person is an executive employee for
the purposes of that section.
(5)
The following applies to the creation of a role
within the new senior executive structure of a Public Service agency (other
than agency head) and to the initial recruitment action under this Act to fill
that role:
(a)
the work level and other employment arrangements
relating to a new role within that new structure are to be determined under
this Act and are not determined by the work level and other arrangements that
applied to roles in the former executive structure of the
agency,
(b)
transitional former senior executives may be
recruited to any such new role before or at the end of the period of their
continued employment as transitional former senior
executives,
(c)
a person is to be recruited to any such new role
in accordance with government sector employment rules on merit-based
employment,
(d)
the initial recruitment action to fill any such
role is to be limited to the following candidates (having regard to the type
and level of the role and any other relevant matter):
(i)
any transitional former senior executives who
occupy a similar role in the relevant parts of the agency,
(ii)
any Public Service senior executives employed in
the relevant parts of the agency in a similar role after the commencement of
this Act,
(iii)
any other Public Service employees (or groups of
Public Service employees) in the relevant parts of the agency whom the agency
head considers appropriate.
8AStatutory senior
executives
(1)
This clause applies to the following statutory
officers whose employment was, immediately before the repeal of the former
Act, subject to Part 3.1 of Chapter 3 of the former Act:
(a)
President of the Board of Studies, Teaching and
Educational Standards,
(b)
Children’s Guardian,
(c)
Commissioner for the Commission for Children and
Young People,
(d)
Registrar of Community Housing appointed under
section 10 of the Community Housing Providers
(Adoption of National Law) Act 2012,
(e)
Chief Executive Officer of Destination
NSW,
(f)
chief executive of a development corporation
appointed under section 6B of the Growth Centres
(Development Corporations) Act 1974,
(g)
Chairperson of the Environment Protection
Authority,
(h)
Commissioner of the Health Care Complaints
Commission,
(i)
Chief Executive of the Independent Transport
Safety Regulator,
(j)
Chief Executive of the Internal Audit
Bureau,
(k)
Chief Executive Officer of the Legal Aid
Commission,
(l)
Legal Services Commissioner,
(m)
chief executive of a major event authority
constituted under the Major Events Act
2009,
(n)
Managing Director of the New South Wales
Government Telecommunications Authority,
(o)
Chief Executive Officer of the NSW Trustee and
Guardian,
(p)
Deputy or Assistant
Ombudsman,
(q)
Chief Executive of the Rural Assistance
Authority,
(r)
Commissioner of the Soil Conservation
Service,
(s)
Chief Executive of the Sydney Catchment
Authority,
(t)
Managing Director of the TAFE
Commission,
(u)
Chief Investigator of the Office of Transport
Safety Investigations,
(v)
Director of the Zoological Parks
Board.
(2)
On the repeal of the former Act, the employment
of a statutory officer to whom this clause applies is subject to Division 4 of
Part 4 of this Act and this clause.
(3)
Any such statutory officer:
(a)
is employed in the band under the senior
executive bands determination that includes the remuneration package to which
the officer continues to be entitled under this subclause,
and
(b)
is not required to enter into a contract of
employment under this Act, and
(c)
has a remuneration package that is equivalent to
the remuneration package of the officer immediately before the repeal of the
former Act (unless the remuneration package is increased as a result of a
determination of the Statutory and Other Offices Remuneration Tribunal made
under Part 3A of the Statutory and Other Offices
Remuneration Act 1975), and
(d)
if the officer’s employment is terminated
under section 41 of this Act on or after the commencement of this Act, is
entitled to the compensation provided under section 78 of the former Act as if
the termination had been a removal of the statutory officer from office under
the former Act, and
(e)
cannot be removed from office (or otherwise have
the officer’s employment terminated) on a ground other than a ground on
which the officer could have been removed from office immediately before the
repeal of the former Act.
8BTransitional provisions
relating to remuneration of senior executives
(1)
For the purposes of clauses 6, 7, 8 and 8A, the
remuneration package of a person under the former Act includes any of the
following determined by the Statutory and Other Offices Remuneration Tribunal
and payable to the person under the former Act:
(a)
a remuneration package that is payable to the
person as the holder of the relevant position under the former Act that
exceeds the remuneration package otherwise determined for the senior executive
level of the person,
(b)
an additional amount payable as a recruitment
allowance.
(2)
If a person referred to in subclause (1) to whom
a recruitment allowance is payable is subsequently employed in accordance with
the provisions of this Act as a Public Service senior executive, the person
continues to be entitled to so much of that former recruitment allowance as
will ensure that the remuneration payable after that subsequent employment is
not less than the remuneration payable before that subsequent employment. Any
general increase in remuneration packages to account for an annual
determination of the Statutory and Other Offices Remuneration Tribunal is to
be excluded and does not operate to reduce the amount of recruitment allowance
payable.
(3)
This subclause applies to a former SES executive
referred to in clause 8 who is subsequently employed in accordance with the
provisions of this Act as a Public Service senior executive and who is
assigned to a role (or subsequently assigned to different role) that is of
equivalent work value as the person’s position under the former Act. The
remuneration package of the person in any such role is to be not less than the
remuneration package of the person immediately before the repeal of the former
Act.
(4)
This subclause applies to a former SO executive
referred to in clause 8 who is subsequently employed in accordance with the
provisions of this Act as a Public Service senior executive and who is
assigned to a role (when first so employed) that is of equivalent work value
as the person’s position under the former Act. The person may be paid an
allowance, determined by the agency head in accordance with guidance provided
by the Commissioner, to avoid any financial disadvantage as a Public Service
senior executive in that role (or any other assigned role of equivalent work
value) compared to the remuneration payable immediately before the repeal of
the former Act.
(5)
A retention allowance payable under the former
Act to a person to whom clause 6, 7, 8 or 8A applies is payable for completed
years of service (or pro rata for completed parts of years of service) on the
date the person ceases to be a person to whom that clause applies (otherwise
than by resignation).
8CExisting temporary
employees
(1)
This clause applies to a person who, immediately
before 24 February 2014, was employed on a temporary basis under the former
Act (an existing
temporary employee). This clause does not apply to persons
employed under the former Act as special temporary employees.
Note—
Clause 5 provides that persons employed under the
former Act are taken to be employed under this Act in the same kind of
employment.
(2)Extension of existing term of
temporary employment
If the term of employment of an existing
temporary employee is due to expire before 24 February 2015, the
person’s temporary employment may be extended before it expires in
accordance with the provisions of the former Act as if that Act had not been
repealed. However, if the temporary employment is to be extended beyond 24
February 2015, the extension of the existing temporary employee’s
employment must satisfy the requirements of the government sector employment
rules relating to temporary employment.
(3)
On and from 24 February 2015, any extension of an
existing temporary employee’s employment must be made in accordance with
the provisions of the government sector employment rules relating to temporary
employment.
(4)Conversion to ongoing
employment
Despite its repeal, section 31 of the former Act
continues to apply, until 24 February 2015, in relation to an existing
temporary employee who is a long-term employee within the meaning of that
section. Any appointment of the employee under that section as so continued by
this clause is taken to be employment in ongoing employment under this Act in
a relevant role.
(5)
On and from 24 February 2015, any conversion of
an existing temporary employee’s employment to ongoing employment must
be made in accordance with the provisions of the government sector employment
rules.
9Existing conditions of
employment under former Act
(1)
In this clause:
former
non-Public Service group of staff means a group of
staff:
(a)
who, immediately before the commencement of this
Act, were employed in the Government Service of New South Wales (but not in
the Public Service of New South Wales) or in the NSW Health Service and who
become Public Service employees on that commencement, and
(b)
who comprise a Public Service agency or a
discrete branch or other part of a Public Service
agency,
and includes any persons who become members of
that group of staff after the commencement of this
Act.
(2)
Conditions of employment applying to any group of
Public Service employees immediately before the commencement of this Act
(whether under State industrial instruments, determinations under section 4E
of the former Act or contracts of employment) continue to apply, subject to
this clause, to that group of Public Service employees. This subclause extends
to members of a former non-Public Service group of
staff.
(3)
The conditions of employment of Public Service
employees who are members of a former non-Public Service group of staff do not
include any conditions of employment relating to leave or other matters that
are conferred by the regulations under this Act on Public Service employees
generally unless they apply because of conditions of employment applying to
that group of staff immediately before the repeal of the former Act. In this
subclause, a reference to conditions of employment conferred by the
regulations includes conditions relating to extended leave and to conditions
under the Crown Employees (Public
Service Conditions of Employment) Award 2009 for groups of
staff to which that award did not apply immediately before the repeal of the
former Act.
(4)
A determination under section 130 of the former
Act, or an industrial agreement under section 131 of the former Act, that is
in force immediately before the repeal of the former Act is, subject to this
clause, taken to be a determination under section 52 of this Act or an
industrial agreement under section 51 of this Act (as the case
requires).
(5)
A condition of employment that applies because of
this clause applies until such time as provision is otherwise made under this
Act or any other law.
10Existing delegations under
former Act
(1)
Any delegation of a function by the Division Head
of a Division of the Government Service under section 4F of the former Act and
in force immediately before the repeal of the former Act is taken to be a
delegation of a comparable function under this Act by the head of the
corresponding Public Service agency under section 27 of this Act (in the case
of a Department) or under section 32 of this Act (in the case of any other
Public Service agency).
(2)
Any delegation of a function by the
Director-General under section 123 of the former Act and in force immediately
before the repeal of the former Act is taken to be a delegation of a
comparable function under this Act by the Industrial Relations Secretary under
section 53 of this Act.
11Unsatisfactory performance,
misconduct and suspension
(1)
Sections 68, 69 and 70 of this Act extend to
conduct occurring before the commencement of this Act.
(2)
Any proceedings for unsatisfactory performance or
misconduct pending under Part 2.7 of Chapter 2 of the former Act immediately
before the repeal of the former Act are to continue to be dealt with under the
provisions of that Part as if it had not been repealed, subject to the
regulations and the government sector employment rules.
12Superseded
references
In any other Act, in any statutory or other
instrument, or in any contract or agreement:
(a)
a reference to the Government Service of New
South Wales (or to any Division of the Government Service) is to be construed
as a reference to the Public Service of New South Wales (or to any Public
Service agency), and
(b)
a reference to a Department or a Department head
(within the meaning of the former Act) is to be construed as a reference to a
Public Service agency or the head of such an agency, respectively,
and
(c)
a reference to the Public Service Board, the
Public Employment Industrial Relations Authority, the Public Employment Office
or the Director of Public Employment (unless the reference relates to the
functions exercised by the Industrial Relations Secretary under Division 6 of
Part 4 of this Act) is to be construed as a reference to the Public Service
Commissioner, and
(d)
a reference to the Public Service Board, the
Public Employment Industrial Relations Authority, the Public Employment
Office, the Director of Public Employment or the Director-General of the
Department of Premier and Cabinet (if the reference relates to the functions
exercised by the Industrial Relations Secretary under Division 6 of Part 4 of
this Act) is to be construed as a reference to the Industrial Relations
Secretary, and
(e)
a reference to an officer or to a temporary or
casual employee of the Public Service (or a Department) or to a member of
staff or employee of the Government Service (or a Division of the Government
Service) is to be construed as a reference to a Public Service employee,
and
(f)
a reference to an order under Chapter 4 of the
former Act is to be construed as a reference to an administrative arrangements
order under Part 7 of the Constitution Act
1902, and
(g)
a reference to the former Act, the Public Sector Management Act 1988 or the
Public
Service Act 1979 or to a provision of any such Act is to
be construed as extending to a reference to this Act or to the corresponding
provision of this Act, except as provided by this clause or except in so far
as a contrary intention appears in the Act concerned, and
(h)
a reference to Part 2.5 of the former Act or to a
provision of that Part is to be construed as a reference to Part 2 of the
Members of Parliament Staff Act 2013,
and
(i)
a reference to Schedule 3 or 3A to the former Act
(or that is required to be construed as such a reference) is to be construed
as a reference to Schedule 1 or 2, respectively, to the Government Sector Employment Regulation
2014.
13Saving of administrative
changes orders under former Act
An order made (or taken to have been made) under
Chapter 4 of the former Act that has not been revoked is taken to be an
administrative arrangements order under Part 7 of the Constitution Act
1902.
13AStaff of Internal Audit
Bureau, Treasury Corporation and SAS Trustee Corporation
Despite the repeal of the former Act, that Act
continues to apply to the employment of staff under Chapter 1A of that
Act:
(a)
in the Internal Audit Bureau Division to enable
the Internal Audit Bureau to exercise its functions, but only until 1 July
2015 or until such time as the Internal Audit Bureau is authorised by
legislation to employ staff (whichever is the sooner), and
(b)
in the Treasury Corporation Division to enable
the Treasury Corporation to exercise its functions, but only until 1 July 2015
or until such time as the Treasury Corporation is authorised by legislation to
employ staff (whichever is the sooner), and
(c)
in the SAS Trustee Corporation Division to enable
the SAS Trustee Corporation to exercise its functions, but only until 1 July
2015 or until such time as the SAS Trustee Corporation is authorised by
legislation to employ staff (whichever is the
sooner).
13BStaff previously employed
under section 47 of the Constitution Act
1902
(1)
The enactment of sections 47 and 47A of the
Constitution Act 1902, as inserted by
the amendments made to that Act by Schedule 6.2 to this Act, does not affect
the continued employment of persons who were appointed to public offices under
the Government under section 47 of the Constitution Act
1902, as in force before its substitution by Schedule 6.2
to this Act (and does not prevent appointments under section 47 as so in force
to fill vacancies in those public offices during the period of 12 months after
the commencement of this Act).
(2)
During the period of 12 months after the
commencement of this Act, any of those persons who are no longer authorised to
be employed under section 47A of the Constitution Act
1902 are to be transferred to employment that is
authorised by that section if their continued employment is
required.
Part 3Provisions consequent on
enactment of Schedule 3 to Statute Law (Miscellaneous
Provisions) Act 2014
14Continuation in office of
statutory and other officers
The appointment and term of office of a person
holding office as a statutory or other officer under an Act amended by
Schedule 3 to the Statute Law (Miscellaneous
Provisions) Act 2014 on the commencement of the amendments
made to that Act by Schedule 3 are not affected by that
Schedule.
15Savings and transitional
regulations
A regulation that may be made under clause 2 of
this Schedule consequent on an amendment to an Act made by Schedule 3 to the
Statute Law (Miscellaneous Provisions) Act
2014 may be made instead under the Act as so
amended.
sch 4: Am 2014 (60),
Sch 3 [1]–[7]; 2014 No 33, Sch 3.9.
Schedules 5, 6
sch 5: Rep 1987 No
15, sec 30C.
sch 6: Am 1987 No 15,
sec 30C. Rep 1987 No 15, sec 30C.
Historical
notes
See also the Members of
Parliament Staff Act 2013.
Table of amending
instruments
Government Sector Employment Act
2013 No 40. Assented to 25.6.2013. Date of commencement,
Sch 6.10 excepted, 24.2.2014, sec 2 and 2013 (631) LW 8.11.2013; date of
commencement of Sch 6.10, 16.9.2013, sec 2 and 2013 (529) LW 13.9.2013. This
Act has been amended as follows:
2014
(11)
Administrative Arrangements Order
2014. LW 29.1.2014.
Date of commencement, 24.2.2014, cl 2. Amended by
Administrative Arrangements Amendment Order 2014
(58). LW 20.2.2014. Date of commencement, 24.2.2014, cl
2.
(60)
Government Sector
Employment Regulation 2014. LW 20.2.2014.
Date of commencement, 24.2.2014, cl
2.
(233)
Administrative Arrangements
(Administrative Changes—Ministers and Public Service Agencies) Order
2014. LW 23.4.2014.
Date of commencement, 23.4.2014, cl
2.
No
33
Statute Law (Miscellaneous
Provisions) Act 2014. Assented to 24.6.2014.
Date of commencement of Sch 3.9, 4.7.2014, sec 2
(1).
(413)
Administrative Arrangements
(Administrative Changes—Miscellaneous Agencies) Order
2014. LW 30.6.2014.
Date of commencement of cl 4, 1.7.2014, cl 2
(1).
No
64
Multicultural NSW Legislation
Amendment Act 2014. Assented to 28.10.2014.
Date of commencement, 24.11.2014, sec 2 and 2014 (714)
LW 14.11.2014.
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of
amendments
Sch
1
Subst 2014
(11), cl 4 (am 2014 (58), cl 3 (1) (2)). Am 2014 (233), cl 4 (1)–(6);
2014 (413), cl 4 (1)–(7); 2014 No 64, Sch 2.5.
Sch
4
Am 2014
(60), Sch 3 [1]–[7]; 2014 No 33, Sch 3.9.
Sch
5
Rep 1987 No
15, sec 30C.
Sch
6
Am 1987 No
15, sec 30C. Rep 1987 No 15, sec 30C.
Table of
concordance
For the purposes of comparison, this table shows
for provisions of this Act (as at the date of assent) corresponding provisions
of the repealed Public Sector Employment and
Management Act 2002 and other legislation.
Column
1
Column
2
Provisions
of this Act
Corresponding provisions of repealed Public
Sector Employment and Management Act
2002
Secs
1–4
—
Sec
5
Sec
158A
Sec
6
Sec
3A
Sec
7
Sec
3B
Sec
8
Sec
3C
Sec
9
Sec
3D
Sec
10
Sec
3E
Sec
11
Sec
3F
Sec
12
—
Sec
13
Sec
3J
Sec
14
Sec
3G
Sec
15
Sec
3H
Sec
16
Sec
3I
Sec
17
Secs
3L–3P, 164 (1A)
Sec
18
Sec
3Q
Sec
19
Sec
3R
Sec
20
Secs 4A,
6
Sec
21
Sec
4B
Sec
22
Sec
4C
Sec
23
Secs 4D
(1), 10, 12
Sec
24
Sec
13
Sec
25
Sec
14
Sec
26
Sec 4D (2),
(3)
Sec
27
Sec
4F
Sec
28
Secs 4D
(1), 10
Sec
29
Sec
13
Sec
30
Sec
14
Sec
31
Sec 4D (2),
(3)
Sec
32
Sec
4F
Secs
33–38
—
Sec
39
Sec
69
Sec
40
Sec
74
Sec
41
Sec
77
Sec
42
Sec
16
Sec
43
Sec
7
Secs
44–46
—
Sec
47
Secs 25,
26, 30, 39, 56
Secs 48,
49
—
Sec
50
Sec
129
Sec
51
Sec
131
Sec
52
Secs 4E
(1), 130
Sec
53
Secs
122–125
Secs 54,
55
—
Sec
56
Sec
25
Sec
57
Secs 60,
61
Sec
58
Secs 22,
72
Sec
59
Sec
4K
Sec
60
Sec 4E (2),
(3)
Sec
61
Sec 4I
(4)
Sec
62
Sec
4J
Sec
63
—
Sec
64
Secs
86–91
Sec
65
Sec
100
Sec
66
Secs 88,
88A
Sec
67
Sec
101A
Sec
68
Sec
47
Sec
69
Secs
40–53
Sec
70
Sec
49
Sec
71
Sec
102
Sec
72
Sec
103
Sec
73
Sec
102A
Sec
74
Sec
103A
Sec
75
Secs 114,
116 (3)
Sec
76
Secs 115,
116 (4), 120(6)
Sec
77
Sec
116
Sec
78
Sec
118
Sec
79
Sec
120
Sec
80
Sec
158
Sec
81
Sec
162
Sec
82
Sec
159
Sec
83
Secs 3K,
159A
Sec
84
Sec
161
Sec
85
Secs 93,
160
Sec
86
—
Sec
87
Sec
163
Sec
88
Secs 4G,
62, 164
Sec
89
—
Sch
1
Sch
1
Sch
2
Sch
2A
Sch
3
Sch
2B
See Part 7 of the Constitution Act
1902 in relation to sections 104, 106 and 108–113 of
the repealed Public Sector Employment and
Management Act 2002.
See section 279A of the Workers
Compensation Act 1987 in relation to section 4I of the
repealed Public Sector Employment and
Management Act 2002.