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 between government sector agencies
(1)
The government sector employment rules may deal
with the transfer or secondment of employees between government sector
agencies (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 or secondment is initiated by
the employee, the person who initiates a transfer or secondment is required to
consult the employee.
(3)
The remuneration of an employee who is
transferred or seconded 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 or
secondment they have not initiated reviewed.
(4A)
The government sector employment rules may make
provision with respect to the recognition of service for the accrual of leave
and to other matters consequent on the transfer or secondment of employees
between government sector agencies.
(4B)
This section does not apply to the transfer or
secondment of an employee to or from that part of the NSW Police Force
comprising police officers.
(5)
In this section, government sector agency
includes:
(a)
the service of a State owned corporation (or a
subsidiary), and
(b)
any service in which persons excluded from this
Act by section 5 are employed (but only for transfers or secondments initiated
by the employee).
s 64: Am 2016 No 2,
Sch 1 [27] [38]–[42].
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).
66Secondments of staff between
government sector agencies and other relevant bodies
(1)
Arrangements may be made under this section under
which:
(a)
(b)
a person who is employed in a government sector
agency is seconded 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 seconded to carry out work in or for a
government sector agency.
Any such secondment may be on a full-time or
part-time basis.
(2)
An arrangement for a secondment under this
section is to be made 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 seconded 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
secondment is justified because of the special skills of the person or the
special circumstances of the case, and
(b)
the period of any one secondment does not exceed
2 years.
(4)
The government sector employment rules may deal
with secondments under this section.
(5)
A person’s employment in a government
sector agency (including the continuity of that employment) is not affected by
the secondment 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)
(f)
a university.
s 66: Am 2016 No 2,
Sch 1 [43]–[49].
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 person who exercises employer functions in relation to the employee
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.
(3)
This section does not apply to that part of the
NSW Police Force comprising police officers or to any employees of a
government sector agency excluded from this section by the
regulations.
s 68: Am 2016 No 2,
Sch 1 [50] [51].
69Misconduct—Public
Service and other prescribed government sector employees
(1)
In this section:
government sector agency
means:
(a)
a Public Service agency, and
(a1)
that part of the NSW Police Force comprising
administrative employees under the Police Act
1990, 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,
(d)
a conviction or finding of guilt for a serious
offence.
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 life
or for 12 months or more (including an offence committed outside New South
Wales that would be an offence so punishable if committed in New South
Wales).
(2)
The person who exercises employer functions in
relation to an employee of a government sector agency is responsible for
dealing with any misconduct by that 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,
(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, the person
who exercises employer functions in relation to the employee 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 that part of the
NSW Police Force comprising police officers or to any employees of a
government sector agency excluded from this section by the
regulations.
Note—
See also section 82 (2) for inquiries into
conduct of heads of agencies.
s 69: Am 2016 No 2,
Sch 1 [50] [52]–[59].
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
(a1)
that part of the NSW Police Force comprising
administrative employees under the Police Act
1990, 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 person who exercises
employer functions in relation to the employee (the employer), or
(b)
an employee of a government sector agency is
charged with a serious offence referred to in section
69,
the employer 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 employer.
(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 employer 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
employer.
(4)
The employer 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 employer 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 employer otherwise directs or that remuneration was due to the
employee in respect of a period before the suspension was
imposed.
(6)
The employer may at any time remove a suspension
under this section.
s 70: Am 2016 No 2,
Sch 1 [60]–[63].
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 in
which persons excluded from this Act by section 5 are
employed.
s 71: Am 2016 No 2,
Sch 1 [27].
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 in
which persons excluded from this Act by section 5 are
employed.
s 72: Am 2016 No 2,
Sch 1 [27].
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 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 may conduct an
inquiry into any matter relating to the administration or management of a
government sector agency.
(2A)
The Commissioner or DPC Secretary may appoint a
person to act on behalf of the Commissioner or DPC Secretary for the purposes
of conducting an inquiry under this section. Any such person is to act under
the direction of the Commissioner or DPC Secretary and has the functions
conferred on the Commissioner or DPC Secretary under this
section.
(3)
An inquiry is not to be conducted by the DPC
Secretary into any matter that is the subject of an inquiry by the
Commissioner, except with the concurrence of the
Commissioner.
(4)
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 or DPC Secretary 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 an inquiry under
this section into the NSW Police Force.
s 83: Am 2016 No 2,
Sch 1 [66]–[71].
83AReinstatement of senior
executives whose employment has been terminated for making public interest
disclosure
(1)
This section applies in relation to a person
whose employment as a senior executive has been terminated by the
person’s employer (the former
employer).
(2)
If the Commissioner is satisfied that:
(a)
the person’s employment was terminated
substantially in reprisal for the person making a public interest disclosure,
and
(b)
the person wishes to be reinstated or otherwise
re-employed as a senior executive,
the person may be reinstated by the former employer to
the role assigned to the person immediately before the termination of
employment (the former
role).
(3)
If reinstatement to the person’s former
role is considered to be impracticable, the person may be re-employed (whether
in the same government sector agency in which the former role was located or
in another government sector agency) in some other similar or appropriate
role:
(a)
that is within the same band (or, in the case of
a senior executive who is not employed in a band, within the same level of
work) as the former role, and
(b)
that has a level of remuneration no less than the
remuneration payable to the person in the former
role.
(4)
The Commissioner may give a direction under
section 13 to the head of a government sector agency that a person be
reinstated or re-employed under this section. In the case where the
person’s employer is the Minister, the Commissioner may make a
recommendation to the Minister that the person be reinstated or re-employed
under this section.
Note—
Section 13 (2) requires the Commissioner to
consult the agency head before giving any such
direction.
(5)
If a person is reinstated or re-employed under
this section, the person is entitled to such salary and other employment
benefits as if the person had continued to be employed during the period
following the termination of employment. However any such entitlement is
subject to the repayment of any compensation or other amount paid to the
person on the termination of employment.
(6)
The reinstatement or re-employment of a person
under this section is not subject to the provisions of the government sector
employment rules relating to the recruitment of
employees.
(7)
The re-employment of a person under this section
in a role other than the person’s former role is not for any purpose to
be regarded as a continuation of the reprisal action that resulted in the
person’s employment being terminated.
(8)
If a person to whom this section applies:
(a)
was, immediately before his or her termination of
employment, a transitional former senior executive within the meaning of
clause 8 of Schedule 4, and
(b)
is subsequently reinstated under this section to
the person’s former role,
the person is to be reinstated as a transitional former
senior executive if the implementation date (as referred to in that clause)
for the agency (or part of the agency) in which the person is reinstated has
not occurred at the time of the reinstatement.
(9)
In this section:
amending
Act means the Government Sector
Employment Legislation Amendment Act 2016.
public
interest disclosure has the same meaning as in the Public Interest Disclosures Act
1994.
role includes office or position and
assigned, in the case where the
person concerned has been appointed to an office or a position, includes held
by the person.
senior
executive means any of the following:
(a)
a Public Service senior
executive,
(b)
a health executive within the meaning of Part 3
of Chapter 9 of the Health Services Act
1997 or a NSW Health Service senior executive to whom that
Part (as substituted by the amending Act) applies,
(c)
an executive officer within the meaning of Part 5
of the Police Act 1990 or
a NSW Police Force senior executive to whom that Part (as substituted by the
amending Act) applies,
(d)
an executive officer within the meaning of
section 68G of the Transport Administration Act
1988 (as in force before its repeal by the amending Act)
or a Transport Service senior executive or senior manager to whom Part 7A of
the Transport Administration Act 1988 (as
substituted by the amending Act) applies.
s 83A: Ins 2016 No 2,
Sch 1 [72].
84Minister’s departmental
authority with respect to control and direction of staff and work 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, allowances,
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.
(3A)
The regulations may make provision relating to
the calculation of the proportionate amount of a payment to be refunded under
subsection (3) or under section 41 (3) or 78 (7).
(4)
A regulation may create an offence punishable by
a penalty not exceeding 10 penalty units.
s 88: Ins 2016 No 2,
Sch 1 [73] [74].
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.