Part 1 Preliminary
1 Name of Rules
These Rules are the Government Sector Employment Rules 2014.
2 Commencement
These Rules commence on 24 February 2014 and are required to be published on the NSW legislation website.
3 Definitions
(1) In these Rules:above-level means:(a) in the case of a non-executive employee—at a higher classification of work than the employee’s current classification, or(b) in the case of an executive employee—in a band higher than the band in which the executive is employed.agency head means:(a) in relation to a Public Service employee—the head of the Public Service agency in which the employee is employed, or(b) in relation to an employee of a government sector agency (other than a Public Service agency)—the head of that agency.Note—The employer functions of the head of a Public Service agency may be delegated under section 27 or 32 of the Act. Accordingly, references to the agency head (in the case of a Public Service agency) will include a reference to any such delegate.at-level means:(a) in the case of a non-executive employee—at the same classification of work as the employee’s current classification, or(b) in the case of an executive employee—within the same band as the band in which the executive is employed.capability-based assessment means a process that assesses a person’s capabilities against those required for a role.comparative assessment—see rule 17.employment decision—see rule 16.external advertising means the process of advertising on the NSW Jobs website. It may also include any other form of advertising that is accessible to the general public.government sector employee means a person who is employed in a government sector agency.performance management system means a performance management system under section 67 of the Act.pre-established standards for a role means the capability, knowledge and experience standards for the role.Public Service non-executive employee means an employee referred to in Division 5 of Part 4 of the Act.special office temporary employee means a person who is employed in temporary employment in the Public Service:(a) as an executive assistant to the Governor, or(b) as the tipstaff or associate of a judicial officer, or(c) to provide direct assistance of a personal or administrative nature to a former Governor or former Premier.suitability assessment—see rule 18.talent pool—see rule 19.the Act means the Government Sector Employment Act 2013.(2) Notes included in these Rules do not form part of these Rules.rule 3: Am 2014 (624), Sch 1 [1].
4 Delegation by Secretaries of Departments of functions relating to Public Service senior executives
(1) The following functions cannot be delegated by the Secretary of a Department under section 27 of the Act:(a) the initial engagement of a Public Service senior executive and the consequent assignment of the senior executive to a role,(b) the assignment of a Public Service senior executive to a different role (not being a temporary assignment for a period of less than 6 months),(c) the termination of the employment of a Public Service senior executive under section 41, 68 or 69 of the Act.(2) However, the Secretary of a Department may delegate to the head of a Public Service executive agency related to the Department a function referred to in subrule (1) (a) in relation to executives in that related agency. If any such function is delegated to the head of the related agency the function cannot be subdelegated.(3) A reference in this rule to an assignment to a different role does not include an assignment consequent on the engagement of an existing executive to a role following recruitment action to fill a vacancy in that role.
Part 2 General Public Service employment provisions
5 Probation periods
(1) The head of a Public Service agency may determine that the engagement of a person in ongoing employment in the Public Service for the first time is subject to the condition that the person is required:(a) to serve a period of probation on commencing his or her employment, and(b) to satisfy the requirements for the role in which the person is employed during that period of probation.(2) The period of probation:(a) for a Public Service senior executive is to be no more than 3 months, or(b) for a Public Service non-executive employee is to be 6 months or such longer period as the agency head directs.(3) A period of probation for a Public service non-executive employee may, before the period expires, be extended for such further period as the agency head directs.(4) However, the probation period for a Public Service non-executive employee cannot exceed 12 months.(5) If a Public Service employee is required to serve a period of probation, the employer may, at any time during or at the end of the probation period:(a) confirm the person’s employment, or(b) in the case of a Public Service senior executive—terminate the person’s employment under section 41 of the Act, or(c) in the case of a Public Service non-executive employee—terminate the person’s employment under section 47 of the Act on the ground that the person has not satisfied the requirements for the role in which the person is employed.
6 Citizenship or residency requirements
(1) A person is not to be employed as a Public Service employee unless the person is:(a) an Australian citizen, or(b) a permanent resident of Australia, or(c) a New Zealand citizen with a current New Zealand passport, or(d) a citizen of another country with a current visa that allows the person to work in Australia.(2) A person is not to be offered employment in the Public Service if that employment would exceed any limitation imposed by or in accordance with law as to the person’s entitlement to work in Australia.
7 Formal qualifications
(1) This rule applies to a Public Service employee whose engagement in a Public Service agency is made subject to a condition that the person is required to have such qualifications as the employer may determine to be necessary for performing the duties of the role to which the person is to be assigned.(2) A person who is required to have any such qualifications but who has not provided evidence of the qualifications may be employed on the condition that the person provides that evidence in the time and manner determined by the employer.
8 Security and other clearances
(1) This rule applies to a Public Service employee whose engagement in a Public Service agency is made subject to a condition that the person is required to have such security or other clearances as the employer determines are necessary for performing the duties of the role to which the person is to be assigned.(2) A person who is required to have any such security or other clearances must ensure that those clearances are maintained.
9 Health assessment
(1) This rule applies to a Public Service employee whose engagement in a Public Service agency is made subject to a condition that the person’s fitness to perform the duties of the role to which the person is assigned has been confirmed by a health assessment.(2) For the purposes of this rule, fitness to perform the duties of a role includes the ability to carry out the role without endangering the health and safety of the public, of other persons employed in the Public Service agency or of the person concerned.(3) The form of the health assessment may include (but is not limited to) any one or more of the following:(a) a declaration (which may be a statutory declaration if required) provided by the person concerning any illness, disability or condition of which the person is aware that might make the person unfit to carry out the role,(b) a medical examination by a medical practitioner approved by the agency head or the Commissioner,(c) an examination, by a medical practitioner, optometrist or other appropriately qualified health care professional, approved by the agency head or the Commissioner, of a particular aspect of the person’s health likely to detrimentally affect the person’s capacity to carry out the role.(4) The person’s employer is to give the health care professional providing a health assessment referred to in subrule (3) (b) or (c) any requested information about the role concerned that is reasonably required for the purpose of providing the assessment.(5) (Repealed)rule 9: Am 2014 (742), Sch 1 [1]–[4].
10 Maximum period of temporary employment
(1) The maximum total period for which a Public Service non-executive employee may be employed in temporary employment in the same Public Service agency is 4 years within any continuous period of 5 years.(1A) Despite subrule (1), a Public Service non-executive employee may be employed in temporary employment in the same Public Service agency for a further period or periods of up to 4 years (the maximum temporary period) if the decision to employ the person for any such further period is based on a comparative assessment after external advertising. The recruitment process should be commenced not later than 3 months before the start of the proposed further period of temporary employment.(1B) If a person is employed under subrule (1A) after a comparative assessment (the initial assessment) for less than the maximum temporary period and the person is subsequently employed for a further period within the maximum temporary period, a further comparative assessment is not required in connection with the decision to employ the person for that further period if:(a) the person is to be assigned to the same role as the role to which the person was assigned after the initial assessment, or(b) the agency head is satisfied that it is appropriate to rely on the initial assessment for the role to which the person is to be assigned.(2) The period of 4 years referred to in subrule (1) or (1A) may, with the approval of the Commissioner in any particular case, be extended for an additional period of up to 12 months.(3) The Commissioner may determine classes of exceptions to this rule. Any such determination is to be made publicly available on a website provided and maintained by the Commissioner.(4) This rule does not apply to special office temporary employees.rule 10: Am 2014 (624), Sch 1 [2]; 2014 (742), Sch 1 [5] [6].
11 Temporary assignments
(1) A person employed in a Public Service agency may be temporarily assigned to another role in the agency (including, in the case of a Public Service senior executive, to another role in another Public Service agency) if:(a) the person who is usually assigned to that other role is unavailable for any reason, or(b) there is no person assigned to that other role.Note—The regulations under the Act provide for an allowance in the case where the temporary assignment involves a higher role.(2) A temporary assignment under this rule may be made by:(a) if the Public Service employee assigned is a Public Service senior executive—the employer of the executive, or(b) if a non-executive employee is assigned to the role of a Public Service senior executive—the employer of the executive, or(c) in any other case—the agency head.(3) A Public Service senior executive may not be assigned under this rule to a role in another agency without the agreement of the head of that other agency.(4) A temporary assignment under this rule may be terminated at any time by the relevant employer or agency head.(5) On completion of a person’s temporary assignment under this rule, the person, unless assigned to a different role under section 38 or 46 of the Act, continues to have the role assigned to the person under section 38 or 46 of the Act immediately before the start of the temporary assignment.(6) Sections 38 and 46 of the Act do not apply to a temporary assignment under this rule.
12 Converting temporary or term employment to ongoing employment at-level
(1) An agency head may convert the temporary or term employment of a person to ongoing employment in the agency if the person has been employed in temporary or term employment for a period of at least 12 months and the ongoing employment is at-level.(2) The conversion to ongoing employment under this rule:(a) must be based on the results of a comparative assessment after external advertising (whether a previous comparative assessment for the role concerned or a new comparative assessment) and on the employee’s most recent performance under the agency’s performance management system, and(b) is subject to the satisfactory conduct of the employee.(3) The Commissioner may, on application by the head of a Public Service agency, determine that the conversion to ongoing employment at-level of an existing temporary employee (or class of existing temporary employees) specified in the determination is not required to comply with subrule (2). An existing temporary employee is a person referred to in subrule (1) who:(a) is currently employed in the agency as a Public Service non-executive employee, and(b) is an existing temporary employee as referred to in clause 8C of Schedule 4 to the Act.(4) If such a determination is made in relation to an existing temporary employee, the agency head may, without complying with subrule (2), convert the person’s employment to ongoing employment if the agency head is satisfied that the person has the qualifications, experience, standard of work performance and capabilities to enable the person to perform the duties of the role to which the person is to be assigned in the ongoing employment.(5) A conversion to ongoing employment in accordance with subrule (4) is to be completed by no later than 23 February 2017 or such earlier date as may be specified in the determination.(6) An application for a determination by the Commissioner under this rule must specify the following:(a) the existing temporary employees or class of existing temporary employees to which the application relates,(b) the reasons why the exemption from subrule (2) is required,(c) a timeframe for the conversion (if it is to occur) of existing temporary employees to ongoing employment in accordance with the exemption,(d) a timetable setting out the key milestones that will enable the agency to achieve that timeframe.(7) A determination by the Commissioner under this rule is to be in writing and may be varied or revoked by a further determination.(8) The conversion to ongoing employment of an existing temporary employee in accordance with clause 8C (4) of Schedule 4 to the Act does not require the approval of the Commissioner.rule 12: Am 2014 (742), Sch 1 [7].
13 Excess non-executive employees
(1) The head of a Public Service agency may determine a person who is employed in ongoing employment in the agency other than as a Public Service senior executive to be excess to the requirements of the relevant part of the agency in which the person is employed.(2) In making any such determination and in dealing with any such excess employee, the agency head is to have regard to any relevant government policies that were in force immediately before 24 February 2014 and are notified by the Commissioner for the purposes of this rule. Any such policies are to be made publicly available on a website provided and maintained by the Commissioner.
14 Termination of employment
(1) The employment of a Public Service non-executive employee may not be terminated under section 47 of the Act unless:(a) the employee is, to the extent that it is reasonably practicable to do so, notified of the proposed termination and given a reasonable opportunity to make submissions in relation to the proposed termination, and(b) the agency head has taken any such submissions into consideration.(2) This rule does not limit any of the other requirements under these Rules that relate to the termination of employment of a Public Service non-executive employee.
Part 3 Merit-based employment
15 Application of Part
Except as provided by these Rules, this Part applies to employment in the Public Service.rule 15: Am 2014 (624), Sch 1 [3].
16 Merit principles to be applied in employment decisions
(1) This rule applies to any of the following decisions (an employment decision):(a) the employment of persons in any kind of employment and the assignment under section 38 or 46 of the Act of persons to roles,(b) the transfer or secondment of an employee to a Public Service agency from another agency,(c) the conversion to ongoing employment of an employee’s temporary or term employment.(2) Any employment decision relating to a role in the Public Service is to be based on an assessment of the capabilities, experience and knowledge of the person concerned against the pre-established standards for the role to determine the person best suited to the requirements of the role and the needs of the relevant Public Service agency.(3) Without limiting subrule (2), the following principles apply in relation to employment decisions:(a) any recruitment action (whether for ongoing employment, temporary or term employment or casual employment) is to take into account:(i) long and short term capability needs to meet the objectives of the relevant agency, and(ii) existing workforce capabilities,(b) pre-established standards for a role are to be expressed as levels against each capability or other requirements for the role,(c) any assessment for a role is to include appropriate methods to assess different requirements,(d) except in the case where a development opportunity is being provided, a person may be employed in a role only if the person meets the pre-established standards for the role or type of role,(e) any employment decision is to be made on balance taking into account all the results provided by the assessment process.(4) This rule does not apply to the employment of a person as a special office temporary employee.Note—The Commissioner may issue guidance in relation to the application of the merit principles to the assignment of persons to roles.rule 16: Am 2014 (624), Sch 1 [4].
17 Comparative assessment
(1) A comparative assessment for a role is the process of assessing an individual’s claim against:(a) the pre-established standards for the role, and(b) any other claimants for the role.(2) The process is to include the following:(a) screening for essential requirements such as a qualification or licence,(b) reviewing an application and resume,(c) at least 3 capability-based assessments, one of which is an interview,(d) referee checks against the pre-established standards for the role.(3) More than one assessor must be involved in a comparative assessment.
18 Suitability assessment
(1) A suitability assessment is the process of assessing an individual against the pre-established standards for a role (and not against other persons).(2) The process is to include the following:(a) screening for essential requirements such as a qualification or licence,(b) reviewing a resume,(c) at least 2 capability-based assessments, one of which is an interview,(d) referee checks against the pre-established standards for the role.
19 Talent pools
(1) A talent pool is a list of those persons (whether or not existing Public Service employees) who have satisfied the pre-established standards for a role or type of role through a comparative assessment.(2) A talent pool may be used for recruitment to ongoing employment or for temporary or term employment.(3) A talent pool may, without limitation, be established jointly by more than one Public Service agency and may be used for recruitment purposes by any Public Service agency.(4) A person may be included in a talent pool for no longer than the period of 12 months following the completion of the comparative assessment that entitled the person to be included in the talent pool.
20 Ongoing employment
(1) The following decisions must be based on a comparative assessment after external advertising:(a) the decision to employ a person in ongoing employment in a particular classification of work or band and the initial assignment of the person to a role in that classification or band,(b) any subsequent decision to employ the person in a different classification of work or in a different band and the initial assignment of the person to a role in that classification or band.(2) The Commissioner may, on application by the head of a Public Service agency, determine that the decision to employ an existing non-executive employee in ongoing employment at a higher classification of work than the employee’s current classification in the agency is not required to comply with subrule (1). An existing non-executive employee is a Public Service non-executive employee (or class of existing non-executive employees) specified in the determination who:(a) is currently employed in ongoing employment in the agency, and(b) has been performing duties in the agency at that higher classification or at a classification similar to that higher classification for a period of at least 12 months.(3) If such a determination is made in relation to an existing non-executive employee, the agency head may, without complying with subrule (1), employ the person in ongoing employment at that higher classification of work if the agency head is satisfied that the person has the qualifications, experience, standard of work performance and capabilities to enable the person to perform the duties associated with that higher classification.Note—Employment in a classification of work only applies to persons who are non-executive employees.(4) The process for employing a person in accordance with subrule (3) is to be completed by no later than 23 February 2017 or such earlier date as may be specified in the determination.(5) An application under subrule (2) must specify the following:(a) the existing non-executive employees or class of existing non-executive employees to which the application relates,(b) the reasons why the exemption from subrule (1) is required,(c) a timeframe for the employment (if it is to occur) of those employees in ongoing employment in accordance with the exemption,(d) a timetable setting out the key milestones that will enable the agency to achieve that timeframe.(6) A determination by the Commissioner under this rule is to be in writing and may be varied or revoked by a further determination.rule 20: Am 2014 (742), Sch 1 [8].
21 Temporary or term employment (up to 6 months)
(1) The decision to employ a person in temporary or term employment for a period of up to 6 months must be based on either a suitability assessment or a comparative assessment.(2) If the person is employed in temporary or term employment on the basis of a suitability assessment, the person cannot continue in that employment after 6 months unless the person does so on the basis of a comparative assessment after advertising across the Public Service. In such a case, action to undertake the additional requirements of a comparative assessment should commence not later than 3 months after the commencement of the person’s temporary or term employment.(3) Subrule (2) does not prevent any additional form of advertising from also being used for the purposes of the comparative assessment.(4) This rule does not apply to special office temporary employees.rule 21: Am 2014 (624), Sch 1 [5].
22 Temporary or term employment (more than 6 months)
(1) The decision to employ a person in temporary or term employment for a period of more than 6 months must be based on a comparative assessment after advertising across the Public Service. This rule does not prevent any additional form of advertising from also being used for the purposes of the comparative assessment.(2) This rule does not apply to special office temporary employees.rule 22: Am 2014 (624), Sch 1 [6].
22A Employment of special office temporary employees
(1) The decision to employ a person as a special office temporary employee must be based on the person’s appropriateness for the role concerned having regard to the nature of the role and the person’s qualifications, skills and experience.(2) The person who is to be assisted by a special office temporary employee may be involved in the process of determining a person’s appropriateness for the role in which the person is to be employed.rule 22A: Ins 2014 (624), Sch 1 [7].
22B Use of initial suitability and comparative assessments when extending period of temporary or term employment
If a person is employed in accordance with rule 21 or 22 after a suitability or comparative assessment (the initial assessment) and the person’s temporary or term employment is subsequently extended for a further period, a further suitability or comparative assessment is not required in connection with the decision to employ the person for that further period if:(a) the person is to be assigned to the same role as the role to which the person was assigned after the initial assessment, or(b) the person’s employer is satisfied that it is appropriate to rely on the initial assessment for the role to which the person is to be assigned.Note—The extension of a person’s temporary employment in the same agency is limited by the maximum period of temporary employment under rule 10 (unless an exception under rule 10 (3) applies).rules 22B–22D: Ins 2014 (742), Sch 1 [9].
22C Exemption from rules 21 and 22 for temporary employees employed under former recruitment provisions
(1) This rule applies to a temporary employee who:(a) is employed under the former recruitment provisions as referred to in clause 3 of Schedule 4 to the Government Sector Employment Regulation 2014, and(b) is an employee to whom an exception under rule 10 (3) applies.(2) The decision to extend the period of employment of any such temporary employee is not required to comply with rule 21 or 22.rules 22B–22D: Ins 2014 (742), Sch 1 [9].
22D Exemption from rules 21 and 22 for temporary employees who are subject to Commissioner’s determination
(1) In this rule:temporary employee means a person who:(a) is an existing temporary employee as referred to in clause 8C of Schedule 4 to the Act, or(b) is employed in temporary employment under the former recruitment provisions as referred to in clause 3 of Schedule 4 to the Government Sector Employment Regulation 2014.(2) The Commissioner may, on application by the head of a Public Service agency, determine that the decision to extend the period of employment of a temporary employee (or class of temporary employees) specified in the determination is not required to comply with rule 21 or 22.(3) If such a determination is made in relation to a temporary employee, the agency head may, without complying with rule 21 or 22, extend the period of employment of the temporary employee to a date that is no later than the date specified in the Commissioner’s determination if the agency head is satisfied that the person has the qualifications, experience, standard of work performance and capabilities to enable the person to perform the duties of the role in which the person is employed.(4) The date to which the period of employment of a temporary employee may be extended under subrule (3) cannot be later than 23 February 2017.(5) An application under this rule must specify the following:(a) the temporary employees or class of temporary employees to which the application relates,(b) the reasons why the exemption from rules 21 and 22 is required,(c) the latest date or dates to which the employment of the temporary employees to which the application relates is proposed to be extended,(d) a timetable setting out the key milestones that will enable the agency to achieve compliance with the requirements of rules 21 and 22 when the proposed exemption ceases to apply.(6) A determination by the Commissioner under this rule is to be in writing and may be varied or revoked by a further determination.(7) Without affecting the operation of subrule (4), rule 10 does not apply in relation to the extension of the period of employment of a temporary employee under subrule (3).rules 22B–22D: Ins 2014 (742), Sch 1 [9].
23 Limited advertising of vacancies arising from agency restructure
(1) If, during the course of a major restructure affecting one or more Public Service agencies (an affected agency), the head of an affected agency considers that a significant number of employees in that or any other affected agency are likely to be determined to be excess employees, the agency head may, in taking recruitment action to fill a vacancy in a non-executive role that arises as part of the restructure, limit the recruitment to the following candidates:(a) persons employed in ongoing employment in affected agencies,(b) persons who have been employed in temporary employment in affected agencies for a period of at least 12 months.(2) This rule has effect despite any requirement under these Rules for external advertising in relation to the role concerned.
Part 4 Review of promotion decisions
24 Request for review of promotion decisions relating to non-executive roles
(1) A Public Service non-executive employee (the relevant employee) may request a review of the decision to offer, following a selection process, another Public Service non-executive employee ongoing employment in a role for which the relevant employee has unsuccessfully applied (being a role that has a higher remuneration level than the level paid to both the relevant employee and the other employee immediately before the decision was made). Any such decision is referred to in this Part as a promotion decision.(2) A request for the review of a promotion decision may only be made on the ground that the whole or any part of the selection process for the role concerned was irregular or improper. The review is not a review of the merit of the relevant employee for the role.(3) A request for the review of a promotion decision:(a) must be in writing to the head of the Public Service agency in which the role to which the promotion decision relates is to be carried out, and(b) may only be made within the period of 10 business days after the relevant employee is advised of the promotion decision.(4) If a request for the review of a promotion decision is made, the engagement of the other employee in the role to which the decision relates cannot be implemented until the review is completed.(5) A reference in this rule to a role is a reference to a role with a salary that does not exceed the maximum salary for a clerk (grade 12) in the Public Service.rule 24: Am 2015 (358), Sch 1 [1].
25 Conduct and findings of review
(1) The review of a promotion decision is to be conducted by a Public Service senior executive (the reviewer) who was not involved in the selection process to which the decision relates and who is appointed by the agency head to whom the request for the review is made.(2) The reviewer is to conduct the review within 10 business days after the request for the review is made.(3) After conducting a review of a promotion decision, the reviewer may:(a) if satisfied that the selection process was not in any way improper or irregular, confirm the promotion decision, or(b) if satisfied that the selection process was in any way improper or irregular, make a recommendation to the agency head that the agency head revoke the promotion decision and carry out another selection process for the role concerned.(4) The relevant employee is to be notified in writing of the reviewer’s decision.(5) The decision of the reviewer in respect of the review is final.
Part 5 Workforce diversity
26 Employment of eligible persons
(1) An eligible person may be employed by the head of a government sector agency in a non-executive role in the agency.(2) The agency head must be satisfied that the eligible person employed in a role under this rule is suitable for the role and have the greatest merit of the eligible persons seeking to be employed in the role.(3) In the case of a Public Service agency, Part 3 applies for the purposes of subrule (2) but with such modifications as are necessary to facilitate the employment of eligible persons. Without limiting the operation of this subrule, the capabilities of eligible persons must be assessed against the pre-established standards for the role using such capability-based assessments as the agency head considers relevant.(3A) In the case of a government sector agency other than a Public Service agency, the agency’s recruitment and selection policies or procedures (if any) for non-executive roles apply for the purposes of subrule (2) but with such modifications (except in the case of those policies or procedures required by law) as are necessary to facilitate the employment of eligible persons in the agency.(4) In this rule:eligible person means any of the following:(a) an Aboriginal person or Torres Strait Islander,(b) a person with a disability,(c) a person under the age of 25 years,(c1) a person who, on or after 1 December 2015, enters or has entered Australia on a Refugee and Humanitarian (Migrant) (Class XB) visa issued by the Commonwealth,(d) a person who belongs to a group of persons designated by the Commissioner as being disadvantaged in employment.government sector agency includes the service of a State owned corporation but does not include a university.role includes position.(5) The designation by the Commissioner of any such group of persons is to be made publicly available on a website provided and maintained by the Commissioner.(6) A person referred to in paragraph (c1) of the definition of eligible person is not to be considered to be an eligible person for the purposes of this rule after the end of the period of 5 years following the date on which the person enters Australia in the manner referred to in that paragraph.rule 26: Am 2016 (275), Sch 1 [1]–[6].
27 Information relating to workforce diversity
The head of a government sector agency is to ensure that information relating to workforce diversity within the agency is collected and is able to be provided to the Commissioner if required to do so under section 16 of the Act.Note—Under section 16 of the Act, the Commissioner may require the head of a government sector agency (which for the purposes of that section includes SOCs and universities) to provide reports and information relating to workforce diversity in the agency.
Part 6 Transfers and secondments
28 Application of Part
(1) This Part applies to transfers or secondments between government sector agencies but not to transfers or secondments within the same government sector agency.(2) This Part does not apply in relation to a government sector agency comprising the service of a State owned corporation or any service in which persons excluded from the Act by section 5 of the Act are employed.rule 28: Am 2016 (422), Sch 1 [1].
29 Transfer of employees between government sector agencies
(1) A government sector employee may be transferred to the service of another government sector agency by agreement between the agency heads.(2) Except where the employee initiates the transfer or consents to a transfer at a lower level, a government sector employee may only be transferred to another agency at the same or equivalent grade or level.(3) A government sector employee who requests a transfer must do so in writing to the head of the agency in which the person is employed.(4) Unless it is initiated by the employee, the person who initiates a transfer must:(a) provide reasonable notice to the employee of the transfer, and(b) advise the employee that the employee may request a review of the transfer within 10 business days after the employee is notified of the transfer.Note—Section 64 (2) of the Act also requires the employee to be consulted.(5) The transfer of a government sector employee to another agency has effect only if it is confirmed in writing by the agency heads concerned. A copy of the confirmation is to be provided to the employee.(6) This rule does not apply in relation to the assignment under section 38 of the Act of Public Service senior executives to roles in Public Service agencies.
30 Merit assessment in relation to transfers
(1) Any at-level transfer of an employee to a Public Service agency from a non-Public Service government sector agency, or between Public Service agencies, must be based on either a suitability assessment or a comparative assessment.(2) If:(a) a Public Service employee is transferred to a non-Public Service government sector agency, orthe head of the government sector agency to which the employee is transferred is to ensure that the employee is suitable for the role, position or work to be assigned to the employee in that agency.(b) a government sector employee is transferred between non-Public Service government sector agencies,
31 Secondment of employees between government sector agencies
(1) A government sector employee may be seconded, for a period not exceeding 2 years, to the service of another government sector agency by agreement between the agency heads.(2) Any such agreement is to set out the following:(a) the period of the secondment,(b) the financial responsibilities of the agencies in relation to the employee’s entitlements,(c) the procedure to be followed on completion of the secondment,(d) the circumstances in which the secondment may be terminated and the form of notice to be given to terminate the secondment before the end of the agreed period.(3) A copy of the agreement must be provided to the employee concerned.(4) An employee who requests a secondment must do so in writing to the head of the government sector agency in which the person is employed.(5) Unless it is initiated by the employee, the person who initiates a secondment is required:(a) to provide reasonable notice of the secondment to the employee, and(b) to advise the employee that the employee may request a review of the secondment within 10 business days after the employee is notified of the secondment.Note—Section 64 (2) of the Act also requires the employee to be consulted.(6) The head of the government sector agency to which a government sector employee is seconded is, unless the secondment is provided as a development opportunity, to ensure that the employee is suitable for the role, position or work to be assigned to the employee in that agency.(7) In the case of a secondment of a Public Service employee to a non-Public Service government sector agency, any merit assessment in relation to the secondment is to be to the satisfaction of the head of that government sector agency.(8) A government sector employee who is seconded to another agency is, on completion of the secondment, entitled to return to the government sector agency from which the employee was seconded at the same work level at which the person was employed immediately before being seconded.(9) This rule does not apply in relation to the assignment under section 38 of the Act of Public Service senior executives to roles in Public Service agencies.
32 At-level secondments to Public Service agencies
An at-level secondment to a Public Service agency must, unless it is provided as a development opportunity, be based on either a suitability assessment or a comparative assessment.
33 Above-level secondments to Public Service agencies
(1) An above-level secondment of up to 6 months to a Public Service agency must be based on either a suitability assessment or a comparative assessment.(2) If the person is seconded above-level on the basis of a suitability assessment, the person cannot continue in that employment after 6 months unless the person does so on the basis of a comparative assessment after advertising across the Public Service. In such a case, action to undertake the additional requirements of the comparative assessment should commence not later than 3 months after the commencement of the above-level secondment.(3) The head of a Public Service agency may, in the case of a Public Service employee who has been seconded above-level to the agency for a period of at least 12 months and with the consent of the employee, employ the person in ongoing employment in the agency at that level.Note—Persons seconded at-level to an agency may be transferred to the agency under rule 29.(4) The decision to employ a person in ongoing employment under subrule (3):(a) must be based on the results of the comparative assessment under subrule (2) or a new comparative assessment after external advertising and on the employee’s most recent performance under the agency’s performance management system, and(b) is subject to the satisfactory conduct of the employee.
34 Review of employer-initiated transfers or secondments
(1) This rule applies in relation to the transfer or secondment of a government sector employee that has not been initiated by the employee (referred to in this rule as an employer-initiated transfer or secondment).(2) The government sector employee in respect of whom an employer-initiated transfer or secondment applies may apply to the head of the government sector agency in which the person is employed for a review of the transfer or secondment.(3) If an application is made for the review of an employer-initiated transfer or secondment, the transfer or secondment (as the case requires) of the employee to the service of another government sector agency does not have effect until the review is completed.(4) An application by an employee for the review of an employer-initiated transfer or secondment must be made:(a) in writing to the head of the government sector agency in which the person is employed, and(b) no later than 10 business days after the day on which the employee is notified of the transfer or secondment.(5) The review of an employer-initiated transfer or secondment is to be conducted by a senior executive (the reviewer) who was not involved in the decision to transfer or temporarily second the employee to another government sector agency.(6) The reviewer is to conduct a review of the employer-initiated transfer or secondment within 10 business days after the application for review is made.(7) The employee may make submissions to the reviewer, including reasons why the proposed transfer or secondment would cause undue hardship to the employee.(8) In conducting a review, the reviewer is:(a) to assess whether or not the employer-initiated transfer or secondment is appropriate having regard to all relevant circumstances (including any submissions provided by the employee), and(b) to make such findings as the reviewer thinks appropriate.(9) Any such findings are to be notified to the agency head.(10) The agency head is to make a decision in relation to the matter subject to the review and notify the employee concerned in writing of the decision.(11) Any decision by the agency head in relation to the matter is final.
Part 7 Performance management
35 Core requirements of performance management systems
(1) The core requirements of a performance management system are as follows:(a) to set and clarify expectations for employees,(b) to monitor employee performance,(c) to plan and review employee performance,(d) to develop employee capability,(e) to recognise employee achievements,(f) to resolve unsatisfactory employee performance.(2) The Commissioner may determine the essential elements of those core requirements.
36 Dealing with unsatisfactory performance
(1) The person who exercises employer functions (the employer) in relation to a person employed in a government sector agency (the employee) may not take any action under section 68 (2) of the Act in relation to the employee unless:(a) the employee’s performance is determined by the employer to be unsatisfactory in accordance with the agency’s performance management system, and(b) reasonable steps have been taken to advise the employee that the employee’s performance is unsatisfactory and the basis on which it is unsatisfactory, and(c) the employee is notified that the employer is proposing to take specified action under section 68 (2) of the Act in respect of the employee, and(d) the employee is given a reasonable opportunity to respond to the notice, and(e) the employer has taken any such response into consideration.(2) (Repealed)Note—This rule does not apply in relation to police officers because of section 68 (3) of the Act.rule 36: Am 2016 (422), Sch 1 [2]–[5].
Part 8 Misconduct—procedural requirements
37 Definition
In this Part:government sector agency has the same meaning as in section 69 of the Act.Note—The term covers Public Service agencies and any other government sector agency prescribed by the regulations. The part of the NSW Police Force comprising administrative officers is prescribed by the regulations for that purpose.
38 Initial stage for dealing with allegations of misconduct
(1) An allegation of misconduct by an employee of a government sector agency may be made by any person to the person who exercises employer functions in relation to the employee.(1A) The employee in respect of whom the allegation is made is referred to in this Part as the relevant employee and the person who exercises employer functions in relation to the employee is referred to in this Part as the employer.(2) After making an initial assessment of the allegation, the employer may decide not to proceed with the matter if the employer is satisfied that:(a) the allegation is vexatious or trivial, or(b) the incident or conduct concerned does not amount to misconduct, or(c) there is likely to be difficulty in establishing the facts of the matter.(3) If, after making an initial assessment, the employer decides to proceed with the matter, the relevant employee is to be advised:(a) of the details of the allegation of misconduct, and(b) of the action that may be taken under section 69 (4) of the Act against the employee.(4) The relevant employee is to be given a reasonable opportunity to make a statement in relation to the allegation.(5) The employer may, as a result of any such statement by the relevant employee:(a) decide to proceed to deal with the matter in accordance with this Part, or(b) decide not to proceed any further with the matter.The relevant employee is to be notified of the employer’s decision.(6) The person making an allegation of misconduct is to be informed of any decision by the employer under this rule not to proceed with the matter.rule 38: Am 2016 (422), Sch 1 [3] [6] [7].
39 Inquiries
(1) The employer may, in dealing with an allegation of misconduct, conduct such inquiries as the employer thinks appropriate for the purposes of determining whether the misconduct has occurred.(2) A formal hearing involving the legal representation of the relevant employee or any other person and the calling and cross-examination of witnesses is not to be held in relation to an allegation of misconduct and the taking of any action with respect to the employee.rule 39: Am 2016 (422), Sch 1 [8].
40 Findings by employer
(1) The employer may, in dealing with an allegation of misconduct:(a) make a finding of misconduct by the relevant employee (in which case the employee is to be notified of the finding in writing), or(b) make a finding that misconduct by the relevant employee has not occurred (in which case the employer is to dismiss the allegation and advise the relevant employee in writing).(2) The employer may not take any action under section 69 (4) of the Act in relation to an employee unless:(a) the employee is notified of the proposed action to be taken, and(b) the employee is given a reasonable opportunity to make submissions in relation to the proposed action, and(c) if any such submissions are made, the employer has taken those submissions into consideration.(3) If the employer makes a finding of misconduct in relation to an employee, the employer may, instead of taking action under section 69 (4) of the Act, require the conduct of the employee to be monitored over a specified period notified to the employee.(4) If, during that specified period, the employer is satisfied that the employee has engaged in misconduct of the same or similar kind as the misconduct the subject of the previous finding, the employer may take any action under section 69 (4) of the Act in respect of the employee.(5) In that case, the employee is not required to be given an opportunity to make submissions in relation to the action proposed to be taken by the employer.rule 40: Am 2016 (422), Sch 1 [3] [9].
41 Records relating to misconduct
(1) If an allegation of misconduct by an employee of a government sector agency is made under this Part, the employer is to keep a written record of the proceedings and action taken in respect of the allegation.(2) Any personnel file kept by the employer on such an employee is to include information about any finding of misconduct by the employee that is, in the opinion of the employer, in the public interest to be included. In forming that opinion, the employer is to have regard to the nature and seriousness of the misconduct and the need to minimise any unnecessary or prejudicial information being kept on a person’s file.rule 41: Am 2016 (422), Sch 1 [3] [10].
Part 9 Additional provisions relating to Public Service senior executives
42 Report on termination of employment of Public Service senior executives
(1) If the employment of a Public Service senior executive is terminated by the executive’s employer under section 41 of the Act, the employer is, as soon as practicable after terminating the executive’s employment, to provide a written report to the Commissioner on the termination.(2) The report is to be signed by the agency head and include the following:(a) a summary of the process taken by the employer in terminating the employment,(b) the reasons for terminating the employment.(3) For the purposes of this rule, the employer of a Public Service senior executive does not include a Minister.
43 Model contracts of employment for Public Service senior executives (including Secretaries of Departments and other agency heads) and for statutory officers
(1) The contract of employment specified in Schedule 1 is, for the purposes of section 39 (3) of the Act, prescribed as the model contract of employment for a Public Service senior executive other than the Secretary of a Department or the head of any other Public Service agency.(2) The contract of employment specified in Schedule 2 is, for the purposes of section 39 (3) of the Act, prescribed as the model contract of employment for the Secretary of a Department or the head of any other Public Service agency.(3) The contract of employment specified in Schedule 3 is, for the purposes of section 39 (3) of the Act, prescribed as the model contract of employment for a statutory officer:(a) to whom the senior executive employment provisions apply under and in accordance with the Act under which the statutory officer is appointed, and(b) who is appointed to office after the commencement of the Government Sector Employment Rules (Amendment No 4—Model Contracts) 2015.Note—See also clause 14 of Schedule 4 to the Act which provides that the senior executive employment provisions do not apply in relation to certain statutory officers who were holding office on 4.7.2014.(4) For the purposes of subrule (3), the senior executive employment provisions are the provisions of or made under the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives.(5) The provisions of a model contract of employment prescribed under this rule:(a) are mandatory (except any provisions that are not applicable as indicated in the model contract), and(b) are subject to the Act, the Government Sector Employment Regulation 2014 and these Rules.(6) Subrule (3) does not apply in relation to a Deputy Ombudsman or an Assistant Ombudsman.(7) The amendments to Schedules 1 and 2 made by the Government Sector Employment Rules (Amendment No 4—Model Contracts) 2015 do not apply to contracts of employment entered into before the commencement of those amendments.rule 43: Am 2015 (358), Sch 1 [2].
44 Requirement to comply with contract of employment
A Public Service senior executive must comply with any of the obligations imposed on the executive under the executive’s contract of employment.
45 Contract of employment subject to conditions of engagement being satisfied
The contract of employment of a Public Service senior executive is subject to all the conditions to which the engagement of the executive is subject being satisfied.
46 Ongoing conditions of employment
(1) A Public Service senior executive must ensure that the executive at all times holds and maintains:(a) the citizenship or other residency requirements for employment as a Public Service employee, and(b) the formal qualifications or clearances (if any) required for his or her role.(2) The employer of a Public Service senior executive may attach a specific condition of employment to a particular role.(3) If the Public Service senior executive assigned to a role to which any such condition is attached is assigned to a different role that does not have the condition of employment attached to it, the condition no longer applies in relation to the executive.
47 Assignment to other role—payment of allowances
If an allowance of a particular kind is payable in relation to the role of a Public Service senior executive and the senior executive is assigned to another role in respect of which the allowance is not payable, the senior executive is no longer entitled to the allowance.
48 Part-time work
(1) The employer of a Public Service senior executive may approve a request by the executive to undertake work on a part-time basis (namely, that the executive is not available for duty during the whole or part of a normal working day).(2) An agreement between the employer and the Public Service senior executive about part-time work must specify the days or parts of days when the executive is available for duty.(3) The remuneration of the executive is to be calculated on a pro-rata basis (excluding allowances in the nature of reimbursement where the part-time employee will receive the same amount as a full-time employee in the same circumstances).
49 Performance management
(1) A Public Service senior executive must, in accordance with the performance management system applying to the executive under section 67 of the Act:(a) enter into a performance agreement with his or her employer, and(b) have his or her performance reviewed at least annually.(2) A Public Service senior executive may be employed under a contract of employment even though the agency’s performance management system has not been implemented or the executive has not entered into a performance agreement. In that case, the executive’s contract of employment is to be construed accordingly.
50 Capability-based assessments
A Public Service senior executive (other than the Secretary of a Department) must participate in:(a) periodic capability-based assessments, and(b) any assessment relating to the technical requirements of the executive’s role.
51 Certain leave or payments not available
A Public Service senior executive is not entitled to any flex leave for working flexible hours or to be paid for working overtime.
52 Appointment of Secretaries of Departments
(1) Before a person is appointed as the Secretary of a Department a report relating to the proposed appointment is required to be provided to the Minister:(a) in the case of the appointment of the DPC Secretary—by the Commissioner, or(b) in the case of the appointment of any other Secretary—by the DPC Secretary.(2) A report by the DPC Secretary is to be prepared after consultation with the Commissioner and the senior Minister to whom the relevant Department is responsible.(3) However, a report is not required:(a) if the person is being re-appointed as the Secretary of a Department, or(b) if the person was the Secretary of another Department at the time of the appointment or within 3 months before the appointment, or(c) if the Commissioner or DPC Secretary (as the case requires) does not provide a report within 21 days after being notified of the proposed appointment, or(d) if the appointment is effected by an administrative arrangements order under Part 7 of the Constitution Act 1902.(4) Part 3 does not apply to the Secretaries of Departments.(5) In this rule:DPC Secretary means the Secretary of the Department of Premier and Cabinet.rule 52: Ins 2014 (624), Sch 1 [8]. Subst 2015 (192), Sch 1.
53 Appointment of heads of Public Service executive agencies
Part 3 does not apply to the appointment of a person as the head of a Public Service executive agency:(a) if the person is being re-appointed as the head of the agency, or(b) if the person was the head of another Public Service executive agency or the Secretary of a Department at the time of the appointment or within 3 months before the appointment.rule 53: Ins 2015 (192), Sch 1.
Schedule 1 Model contract of employment for Public Service senior executives (other than Secretaries and agency heads)
(Rule 43)
Contract of employment under section 39 of the Government Sector Employment Act 2013
This contract of employment is made
on the day of 20
Between
THE GOVERNMENT OF NEW SOUTH WALES
and
[Insert full name] (the “Senior Executive”)
Parties
This contract of employment is between the Senior Executive and the Government of New South Wales.1.1
Commencement
The employment of the Senior Executive under this contract commences on [insert date].2.1
Definitions
In this contract:3.1“Employer” of the Senior Executive means the person who exercises the employer functions of the Government of New South Wales in relation to the Senior Executive.“GSE Act” means the Government Sector Employment Act 2013.“GSE Regulation” means the Government Sector Employment Regulation 2014.“GSE Rules” means the Government Sector Employment Rules 2014.
Terms used in this contract that are defined in the GSE Act have the same meanings as they have in the GSE Act.3.2
Band
The Senior Executive is employed in Band [specify band].4.1
Role
The role in the Public Service assigned to the Senior Executive is described in Appendix A.5.1
The Employer may vary the description of the role to which the Senior Executive is assigned at any time.5.2
The Senior Executive acknowledges that he or she may be assigned to another role in any Public Service agency in the band in which the Senior Executive is employed.5.3
The Senior Executive must perform the duties and responsibilities of the role to which the Senior Executive is duly assigned.5.4
Core values
The Senior Executive agrees to perform the duties and responsibilities of the assigned role in accordance with the government sector core values under section 7 of the GSE Act.6.1
Probation period
The Senior Executive’s employment is subject to a probation period of [insert number of months—not exceeding 3 months].7.1[OR]The Senior Executive’s employment is not subject to a probation period.
Duration of employment
The employment of the Senior Executive under this contract is ongoing employment (that is, employment that continues until the Senior Executive resigns or the Senior Executive’s employment is terminated).8.1[OR]The employment of the Senior Executive under this contract is, unless the Senior Executive sooner resigns or the Senior Executive’s employment is sooner terminated, for the period ending on [specify date]. The period of employment may be extended by the Employer.
Annual performance agreement
The Senior Executive is required to enter into an annual performance agreement with the Employer setting out the performance obligations of the Executive, and reviews of performance, for the year. The performance agreement continues until a new agreement is signed.9.1
A copy of the current annual performance agreement is set out in Appendix B.9.2
Capability-based assessments
The Senior Executive agrees to participate in periodic capability-based assessments.10.1
The Senior Executive agrees to the use of these assessments for workforce planning purposes.10.2
Total remuneration package and allowances
Note—
The total remuneration package is for full-time work. Under the GSE Regulation, pro-rata remuneration is payable for part-time work.
The total remuneration package (comprising monetary remuneration and employment benefits) of the Senior Executive is specified in Appendix C.11.1
The Senior Executive may elect from time to time to allocate the total remuneration package as between monetary remuneration and employment benefits in accordance with the GSE Act.11.2
The Senior Executive is entitled to the allowances specified in Appendix C and any allowances conferred under the GSE Act and GSE Regulation.11.3
The Employer may, subject to the GSE Act, vary the total remuneration package and allowances of the Senior Executive from time to time.11.4
Progression
If the Senior Executive meets the performance requirements under the agency’s performance management system, the Senior Executive’s total remuneration package may be increased within the range of remuneration applicable to the assigned role of the Senior Executive. Any such increase is at the discretion of the Employer and is not an entitlement.12.1
This clause does not limit the Employer’s power to increase or reduce the Senior Executive’s total remuneration package in accordance with the GSE Act.12.2
Hours of duty
The Senior Executive must work the hours necessary to perform the duties and responsibilities of the Senior Executive’s role.13.1
The Senior Executive’s total remuneration package compensates the Senior Executive for any hours worked.13.2
Part-time work
If the Employer agrees to the Senior Executive undertaking work on a part-time basis, the Senior Executive must work the agreed days or parts of days.14.1
Leave
The Senior Executive is entitled to leave in accordance with the GSE Act, the GSE Regulation and the GSE Rules.15.1
Notice of resignation
The Senior Executive may resign his or her employment by providing 4 weeks written notice to the Employer or as agreed to by the Employer.16.1
If notice of resignation is provided, the Employer may direct the Senior Executive to cease duties immediately or at some other specified time during the notice period. Any such direction does not affect the Senior Executive’s entitlement to receive remuneration or to accrue leave during the notice period.16.2
Compensation for termination
The Senior Executive is entitled to the payment of compensation, on the termination of employment by the Employer, as determined by clause 39 of the GSE Regulation.17.1
If the Senior Executive’s employment is terminated with compensation, the Senior Executive agrees that if the Senior Executive is re-employed in the public sector (as referred to in section 41 of the GSE Act) within the period to which the compensation relates the Senior Executive will repay the proportionate amount, as calculated in accordance with clause 39 of the GSE Regulation, before the commencement of that re-employment. This obligation continues even though the contract of employment is terminated.17.2
Confidentiality
During his or her employment, the Senior Executive will not disclose, without lawful authority, any confidential or secret information acquired as a consequence of the employment.18.1
On termination of employment the Senior Executive will not, without lawful authority, disclose or make [commercial] use of any confidential or secret information acquired by the Senior Executive as a consequence of his or her employment.18.2
Intellectual property
Subject to any written agreement to the contrary between the parties, all intellectual property developed by the Senior Executive in the course of his or her employment is the sole property of the Employer.19.1
Employment policies
The Senior Executive agrees to act in accordance with any applicable employment policies of the Employer.20.1
However, those employment policies do not form part of this contract and do not create any express or implied contractual rights or obligations between the Senior Executive and the Employer.20.2
Variation
This contract may only be varied in accordance with the GSE Act and this contract.21.1
APPENDICES
The Appendices to this contract may be substituted by the Employer.
[insert description of assigned role]Appendix A—Assigned role
[attach copy of current performance agreement]Appendix B—Performance agreement
The total remuneration package of the Senior Executive is [insert $ value of package], comprising [insert components of remuneration package]:Appendix C—Remuneration package and allowancesThe Senior Executive is entitled to allowances under the GSE Regulation and the following additional allowances [insert any additional allowances]:
Signatures
Signed
Date
Name
[Insert job title and office]
pursuant to the GSE Act on behalf of the Government of NSW.
Witnessed by
Witness name in full [printed]
Witness address
The Senior Executive
Signed
Date
Name in full [printed]
Witnessed by
Witness name in full [printed]
Witness address
sch 1: Am 2015 (358), Sch 1 [3]–[14].
Schedule 2 Model contract of employment for Secretaries of Departments and heads of other Public Service agencies
(Rule 43)
Contract of employment under section 39 of the Government Sector Employment Act 2013
This contract of employment is made
on the day of 20
Between
THE GOVERNMENT OF NEW SOUTH WALES
and
[Insert full name] (the “Secretary/Agency Head”) [both here and elsewhere in this contract, delete whichever is not applicable]
This contract constitutes the Secretary/Agency Head’s instrument of appointment to office.Parties
This contract of employment is between the Secretary/Agency Head and the Government of New South Wales.1.1
Commencement
The employment of the Secretary/Agency Head under this contract commences on [insert date].2.1
Definitions
In this contract:3.1“Employer” of the Secretary/Agency Head means the person who exercises the employer functions of the Government of New South Wales in relation to the Secretary/Agency Head.“GSE Act” means the Government Sector Employment Act 2013.“GSE Regulation” means the Government Sector Employment Regulation 2014.“GSE Rules” means the Government Sector Employment Rules 2014.
Terms used in this contract that are defined in the GSE Act have the same meanings as they have in the GSE Act.3.2
Band
The Secretary/Agency Head is employed in Band [specify band].4.1
Office
The Secretary/Agency Head is appointed to the office described in Appendix A.5.1
The Secretary/Agency Head must perform the duties and responsibilities of the office to which the Secretary/Agency Head is appointed.5.2
Core values
The Secretary/Agency Head agrees to perform the duties and responsibilities of the office in accordance with the government sector core values under section 7 of the GSE Act.6.1
Duration of employment
The employment of the Secretary/Agency Head under this contract is ongoing employment (that is, employment that continues until the Secretary/Agency Head resigns or the Secretary/Agency Head’s employment is terminated).7.1[OR]The employment of the Secretary/Agency Head under this contract is, unless the Secretary/Agency Head sooner resigns or the Secretary/Agency Head’s employment is sooner terminated, for the period ending on [specify date]. The period of employment may be extended by the Employer.
Annual performance agreement
The Secretary/Agency Head is required to enter into an annual performance agreement with the Employer setting out the performance obligations of the Secretary/Agency Head, and reviews of performance, for the year. The performance agreement continues until a new agreement is signed.8.1
A copy of the current annual performance agreement is set out in Appendix B.8.2
Capability-based assessments
The Agency Head agrees to participate in periodic capability-based assessments.9.1
The Agency Head agrees to the use of these assessments for workforce planning purposes.9.2
Total remuneration package and allowances
The total remuneration package (comprising monetary remuneration and employment benefits) of the Secretary/Agency Head is specified in Appendix C.10.1
The Secretary/Agency Head may elect from time to time to allocate the total remuneration package as between monetary remuneration and employment benefits in accordance with the GSE Act.10.2
The Secretary/Agency Head is entitled to the allowances specified in Appendix C and any allowances conferred under the GSE Act and GSE Regulation.10.3
The Employer may, subject to the GSE Act, vary the total remuneration package and allowances of the Secretary/Agency Head from time to time.10.4
Progression
If the Secretary/Agency Head meets the requirements of the annual performance agreement, the Secretary/Agency Head’s total remuneration package may be increased within the range of remuneration applicable to the office of the Secretary/Agency Head. Any such increase is at the discretion of the Employer and is not an entitlement.11.1
This clause does not limit the Employer’s power to increase or reduce the Secretary/Agency Head’s total remuneration package in accordance with the GSE Act.11.2
Hours of duty
The Secretary/Agency Head must work the hours necessary to perform the duties and responsibilities of the office.12.1
The Secretary/Agency Head’s total remuneration package compensates the Secretary/Agency Head for any hours worked.12.2
Leave
The Secretary/Agency Head is entitled to leave in accordance with the GSE Act, the GSE Regulation and the GSE Rules.13.1
Notice of resignation
The Secretary/Agency Head may resign his or her employment by providing 4 weeks written notice to the Employer or as agreed to by the Employer.14.1
If notice of resignation is provided, the Employer may direct the Secretary/Agency Head to cease duties immediately or at some other specified time during the notice period. Any such direction does not affect the Secretary/Agency Head’s entitlement to receive remuneration or to accrue leave during the notice period.14.2
Compensation for termination
The Secretary/Agency Head is entitled to the payment of compensation, on the termination of employment by the Employer, as determined by clause 39 of the GSE Regulation.15.1
If the Secretary/Agency Head’s employment is terminated with compensation, the Secretary/Agency Head agrees that if the Secretary/Agency Head is re-employed in the public sector (as referred to in section 41 of the GSE Act) within the period to which the compensation relates the Secretary/Agency Head will repay the proportionate amount, as calculated in accordance with clause 39 of the GSE Regulation, before the commencement of that re-employment. This obligation continues even though the contract of employment is terminated.15.2
Other paid work
The Secretary/Agency Head will not undertake any other paid work without the permission of the Employer.16.1
Confidentiality
During his or her employment, the Secretary/Agency Head will not disclose, without lawful authority, any confidential or secret information acquired as a consequence of the employment.17.1
On termination of employment the Secretary/Agency Head will not, without lawful authority, disclose or make [commercial] use of any confidential or secret information acquired by the Secretary/Agency Head as a consequence of his or her employment.17.2
Intellectual property
Subject to any written agreement to the contrary between the parties, all intellectual property developed by the Secretary/Agency Head in the course of his or her employment is the sole property of the Employer.18.1
Employment policies
The Secretary/Agency Head agrees to act in accordance with any applicable employment policies of the Employer.19.1
However, those employment policies do not form part of this contract and do not create any express or implied contractual rights or obligations between the Secretary/Agency Head and the Employer.19.2
Variation
This contract may only be varied in accordance with the GSE Act and this contract.20.1
APPENDICES
The Appendices to this contract (other than Appendix A) may be substituted by the Employer.
[insert office to which appointed]Appendix A—Office
[attach copy of current performance agreement]Appendix B—Performance agreement
The total remuneration package of the Secretary/Agency Head is [insert $ value of package], comprising [insert components of remuneration package]:Appendix C—Remuneration package and allowancesThe Secretary/Agency Head is entitled to allowances under the GSE Regulation and the following additional allowances [insert any additional allowances]:
Signatures
Signed
Date
Name
[Insert office]
pursuant to the GSE Act on behalf of the Government of NSW.
Witnessed by
Witness name in full [printed]
Witness address
The Secretary/Agency Head
Signed
Date
Name in full [printed]
Witnessed by
Witness name in full [printed]
Witness address
sch 2: Am 2015 (358), Sch 1 [3] [5]–[7] [15]–[24].
Schedule 3 Model contract of employment for statutory office holders
(Rule 43)
Contract of employment under section 39 of the Government Sector Employment Act 2013
This contract of employment is made
on the day of 20
Between
THE GOVERNMENT OF NEW SOUTH WALES
and
[Insert full name] (the “Office Holder”)
[This contract may constitute the Office Holder’s instrument of appointment if the Minister is authorised to make the appointment]Parties
This contract of employment is between the Office Holder and the Government of New South Wales.1.1
Appointment to office
The Office Holder is appointed to the office described in Appendix A on [insert date] and the Office Holder’s employment under this contract commences on that date.2.1
Commencement of employment
2.1 The employment of the Office Holder under this contract commences on the date the Office Holder is appointed to the office described in Appendix A.
Definitions
In this contract:3.1“GSE Act” means the Government Sector Employment Act 2013.“GSE Regulation” means the Government Sector Employment Regulation 2014.“GSE Rules” means the Government Sector Employment Rules 2014.“Minister” means the Minister administering the provisions of the Act under which the Office Holder is appointed.
Terms used in this contract that are defined in the GSE Act have the same meanings as they have in the GSE Act.3.2
Band
The Office Holder is employed in Band [specify band].4.1
Office
This contract applies to the office described in Appendix A.5.1
The Office Holder must perform the duties and responsibilities of the office to which the Office Holder is appointed.5.2
Core values
The Office Holder agrees to perform the duties and responsibilities of the office in accordance with the government sector core values under section 7 of the GSE Act.6.1
Term of appointment
The Office Holder is appointed for [specify term of office in accordance with the Act under which the person is appointed], and the Office Holder’s employment under this contract is for that period, unless the Office Holder vacates office sooner in accordance with the Act under which the Office Holder is appointed or [include only if the Act under which the Office Holder is appointed provides that the provisions of the GSE Act relating to the termination of employment of Public Service senior executives apply to the Office Holder] the Office Holder’s employment is sooner terminated.7.1
Duration of employment
The Office Holder is employed under this contract for the period of [specify term of office in accordance with the Act under which the person is appointed] unless the Office Holder vacates office sooner in accordance with the Act under which the Office Holder is appointed or [include only if the Act under which the Office Holder is appointed provides that the provisions of the GSE Act relating to the termination of employment of Public Service senior executives apply to the Office Holder] the Office Holder’s employment is sooner terminated.7.1
Total remuneration package and allowances
The total remuneration package (comprising monetary remuneration and employment benefits) of the Office Holder is specified in Appendix B.8.1
The Office Holder may elect from time to time to allocate the total remuneration package as between monetary remuneration and employment benefits in accordance with the GSE Act.8.2
The Office Holder is entitled to the allowances specified in Appendix B and any allowances conferred under the GSE Act and the GSE Regulation.8.3
The Minister may, subject to the GSE Act, vary the total remuneration package and allowances of the Office Holder from time to time.8.4
Progression
The Office Holder’s total remuneration package may be increased within the range of remuneration applicable to the office. Any such increase is at the discretion of the Minister and is not an entitlement.9.1
This clause does not limit the Minister’s power to increase or reduce the Office Holder’s total remuneration package in accordance with the GSE Act.9.2
Leave
The Office Holder is entitled to leave in accordance with the provisions of the GSE Act, the GSE Regulation and the GSE Rules relating to leave. For that purpose, those provisions apply to the Office Holder as if a reference in any such provision to a Public Service senior executive included a reference to the Office Holder.10.1
Compensation for termination
[Note—
If the Office Holder is removed from office by the Governor under section 77 of the GSE Act, the Office Holder is entitled to compensation in accordance with section 78 of that Act.]
The Office Holder is entitled to the payment of compensation, on the termination of employment by the Minister, as determined by clause 39 of the GSE Regulation.11.1
If the Office Holder’s employment is terminated with compensation, the Office Holder agrees that if the Office Holder is re-employed in the public sector (as referred to in section 41 of the GSE Act) within the period to which the compensation relates the Office Holder will repay the proportionate amount, as calculated in accordance with clause 39 of the GSE Regulation, before the commencement of that re-employment. This obligation continues even though the contract of employment is terminated.11.2
Resignation
The Office Holder may resign by instrument in writing addressed to the Minister.12.1
Confidentiality
During his or her employment, the Office Holder will not disclose, without lawful authority, any confidential or secret information acquired as a consequence of the employment.13.1
On termination of employment the Office Holder will not, without lawful authority, disclose or make [commercial] use of any confidential or secret information acquired by the Office Holder as a consequence of his or her employment.13.2
Intellectual property
Subject to any written agreement to the contrary between the parties, all intellectual property developed by the Office Holder in the course of his or her employment is the sole property of the Minister.14.1
Variation
This contract may only be varied in accordance with the GSE Act and this contract.15.1
APPENDICES
[insert office to which appointed]Appendix A—Office
[This Appendix may be substituted by the Minister]Appendix B—Remuneration package and allowances
The total remuneration package of the Office Holder is [insert $ value of package], comprising [insert components of remuneration package]:
The Office Holder is entitled to allowances under the GSE Regulation and the following additional allowances [insert any additional allowances]:
Signatures
Signed
Date
Name
pursuant to the GSE Act on behalf of the Government of NSW.
Witnessed by
Witness name in full [printed]
Witness address
The Office Holder
Signed
Date
Name in full [printed]
Witnessed by
Witness name in full [printed]
Witness address
sch 3: Ins 2015 (358), Sch 1 [25].