Government Employees (Promotions Appeal Board) Act Amendment Act 1979 (WA)
WESTERN AUSTRALIA.
GOVERNMENT EMPLOYEES
- (PROMOTIONS APPEAL
BOARD).
No. 31 of 1979.
AN ACT to amend the Government Employees
(Promotions Appeal Board) Act, 1945-1978.
[Assented to 3rd October, 1979.]
RE it enacted by the Queen's Most Excellent
Majesty, by and with the advice and consent
of the Legislative Council and the Legislative
Assembly of Western Australia, in this present
Parliament assembled, and by the authority of the
same, as follows:—
1. (1) This Act may be cited as the Government EVigit,„.
Employees (Promotions Appeal Board) Act Amend-
ment Act, 1979.
(2) In this Act the Government Employees Reprinted as
| (Promotions Appeal Board) Act, 1945-1978 is 21% August, | /967 in Vol. | |
| referred to as the principal Act. | 21 o the | |
| ||
| Acts and |
| (3) | The principal Act as amended by this Act rong.2a |
may be cited as the Government Employees giaiNgd
| (Promotions Appeal Board) Act, 1945-1979. | 87 of 1978. |
| No. 31.] | Government Employees | [1979. |
(Promotions Appeal Board).
Commence-
2. This Act shall come into operation on a date to
ment.
be fixed by proclamation.
Section 2A
| amended. | 3. | Section 2A of the principal Act is amended by |
deleting the words "as hereinafter defined in section
six" from lines one and two of subsection (1).
Section 3
| amended. | 4. Section 3 of the principal Act is amended |
| (a) | by deleting the interpretation "Appointing Authority"; |
| (b) | by substituting for the passage "the Western Australian Transport Board, the State Electricity Commission of Western Australia, the Fremantle Harbour Trust Commissioners, every harbour board" in lines seven, eight, nine, ten and eleven of the interpretation "Department" the passage "the Western Australian Transport Commission, the State Energy Commission of Western Australia, the Fremantle Port Authority Commissioners, every Port Authority"; |
| (c) | by substituting for the words "President or any member of the Court of Arbitration" in lines twelve and thirteen of the interpreta- tion "Employee" the words "Chief Industrial Commissioner or any member of the Western Australian Industrial Commission"; |
| (d) | by adding after the interpretation "Office" the following interpretations |
"Promoting authority" means, in relation to promotion of employees, the person or persons in whom is vested by law authority to promote an employee.
"Relevant union" means a union that is
a party to an award or industrial
agreement whereby the terms and
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(Promotions Appeal Board).
conditions of employment appertain- ing to the vacancy or new office are or will be regulated.
"Returned soldier" means a person who enlisted or was appointed for war service abroad and who by reason thereof was on active service as a member of Her Majesty's Forces during the World War, 1939-1945.
"Union" means an industrial union within the meaning of the Industrial Arbitration Act, 1912, a trade union within the meaning of the Trade Unions Act, 1902 and an association of employees registered as an organisation pursuant to the provisions of the Conciliation and Arbitration Act 1904 of the Parlia- ment of the Commonwealth or any Act in substitution for that Act, as amended from time to time. ; and
| (e) | by deleting the interpretation "Recom- mending Authority". . |
5. Section 4 of the principal Act is repealed and telgtsitoitk.4ted.
re-enacted as follows-
| created in any department and an employee is "`emotions. | 4. Where a vacancy occurs or a new office is Yeri=g |
eligible for promotion to such vacancy or new office and the promotion to such vacancy or new office of a person is subject to the right of appeal conferred upon employees by this Act, the following provisions shall apply
| (a) | notice of the vacancy or of the creation of the new office shall be published in such manner and for such period as shall be prescribed by regulations, as will afford to employees who are |
| No. 31.] | Government Employees | [1979. |
(Promotions Appeal Board).
eligible, a reasonable opportunity to make application for promotion to such vacancy or new office;
| (b) | such notice shall specify a date on or before which applications for promotion to such vacancy or new office shall be receivable by the pro- moting authority concerned; |
| (c) | the promoting authority concerned shall not promote any person to such vacancy or new office until after the expiration of the period fixed for the receipt of applications; |
| (d) | when selecting an applicant for promotion, the promoting authority shall have regard to the relative efficiency of all applicants; |
| (e) | within seven days after making a promotion the promoting authority shall cause notice in writing in the prescribed form giving particulars of the promotion to be served upon each and every one of the applicants, and stating that, subject to the provisions of this Act the applicant who receives such notice may appeal against the promotion to the said vacancy or new office of the applicant promoted; |
| (f) | nothing in this section shall operate to prevent the immediate promotion to such vacancy or new office of the applicant so promoted, but any such promotion of such applicant shall be provisional and temporary pending the hearing and determination of any appeals against such promotion under this Act if any such appeals are made, or, if no such appeal is made, pending the expiration of the period fixed by or under this Act for the making of such appeals, as the case may be. . |
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(Promotions Appeal Board).
Section 5
6.Section 5 of the principal Act is amended— amended. (a) as to subsection (1)-
(i) by substituting for the words "recommended for" in line five the words "promoted to";
(ii) by substituting for the word "recom- mending" in line six the word "promoting";
(iii) by substituting for the words "appointment to or employment in" in lines seven and eight the words "promotion to";
(iv) by substituting for the word "recom- mended" in line nine the word "promoted";
(v) by deleting paragraph (b) and sub- stituting the following paragraph
| (b) | where in respect of the vacancy or new office there is a relevant union, an employee applicant has the right of appeal under this section- |
(i) if he was, at the time he made his application for promotion to the vacancy or new office, a member of the relevant union;
(ii) if he was not, at that time, a member of the relevant union but is employed in the depart- ment in which the vacancy or new office occurs and all the other applicants for promo- tion to the vacancy or new office were not, at that time, members of the relevant union; or
| No. 31.] | Government Employees | [1979. |
(Promotions Appeal Board).
( iii) if, at that time, he was not a member of the relevant union but held a certificate of exemp- tion issued under the provisions of section 61B of the Industrial Arbitration Act, 1912 or section 144A of the Con- ciliation and Arbitra- tion Act 1904 of the Parliament of the Com- monwealth or any Act in substitution for that Act, as amended from time to time
and not otherwise, unless the Minister declares upon special grounds that this paragraph does not apply in respect of the vacancy or new office. ;
and
| (b) | by repealing subsection (2) and re- enacting that subsection as follows |
(2) For the purposes of this section where a vacancy or a new office is filled by an employee
| (a) | who is transferred within the same department on the same grade or classification, that transfer shall not be considered as promotion; |
| (b) | who is transferred within the same department and who voluntarily relinquishes a posi- tion on a higher grade or classi- fication, that transfer shall not be considered as promotion. . |
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(Promotions Appeal Board).
| 7. Subsection (2) of section 6 of the principal amended. | Section 6 |
Act is amended
| (a) | by deleting paragraph (b) and substituting the following paragraph |
(b) A person nominated by the employer who or which made the promotion which is appealed against; ; and
| (b) | by deleting paragraph (c) and substituting the following paragraphs |
| (c) | A person nominated by the relevant union unless- |
(i) the appellant is not a member, or if there is more than one appellant all the appellants are not members, of that union;
(ii) there is no relevar t union; or
(iii) there is a relevant union and it fails to nominate a person at the latest fourteen clear days before the date of hearing,
in which case the Board shall
include,
(iv) if there is only one appellant, a person nominated by the appellant; or
(v) if there is more than one appellant, a person nominated unanimously by all appellants, or in default of an agreement thereon a person selected by the Chairman of the Board from persons nominated respectively by the appellants,
and each nomination under this subsection shall be in writing duly signed on behalf of the employer or the relevant union or by the
| No. 31.] | Government Employees | [1979. |
(Promotions Appeal Board).
appellant or appellants, as the case requires, and delivered to the Secretary of the Board; and
| (d) | Where in the case provided for in paragraph (c) of this subsection there is more than one relevant union, a person shall be nominated unanimously by all relevant unions, or in default of an agreement thereon a person shall be selected by the Chairman of the Board from persons nominated respectively by the relevant unions. . |
Section BA
| deleted. | 8. The principal Act is amended by deleting |
section 6A.
| Mtgitut a. | 9. Section 7 of the principal Act is repealed and |
re-enacted as follows-
Two or more
| appeals. | 7. (1) Whenever two or more employee appellants appeal against the same promotion of another employee all appeals shall be heard and determined together. |
| (2) When two or more appeals against the same promotion are heard and determined together, and two or more of such appeals are allowed by the Board, the Board as constituted to hear the said appeals shall decide, as between the successful appellants, which one of them shall receive the promotion in relation to which the appeals have been successful. . | |
| Section 8 |
| amended. | 10. Section 8 of the principal Act is amended— |
(a) as to paragraph (i)—
(i) by substituting for the word "appointment" in lines one and two of subparagraph (a), the word "promotion";
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(Promotions Appeal Board).
(ii) by substituting for the words "recommended for such appoint- ment" in line two of subparagraph (b), the words "promoted to such vacancy or new office";
(iii) by substituting for the word "recom- mendation" in line four of subpara- graph (b), the word "promotion";
(iv) by substituting for the words "recommending officer" in line three of the proviso to subparagraph (b) the words "promoting authority"; and
| (b) | as to paragraph (ii), by substituting for the words "appointments by way of pro- motions" in lines six and seven, the words "promotion to a vacancy or new office". |
Section 10
| 11. The principal Act is amended by deleting | substituted. |
section 10 and substituting the following section-
Secretary of
| 10. There shall be a Secretary of the Board | Board. |
| (a) | who shall be appointed and hold office subject to and in accordance with the Public Service Act, 1978; and |
| (b) | who may hold office as such in con- junction with any other office in the Public Service of the State. . |
| 12. The principal Act is amended by deleting | Section 1/ substituted. |
section 11 and substituting the following section-
11. A member of the Board shall, subject to Remunera-
| such conditions and restrictions as are pre- tion of | members. |
| scribed, be entitled to such remuneration, travelling and other allowances as are directed by the Minister. . |
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(Promotions Appeal Board).
Section 12
Section 12 of the principal Act is amended by deleting the passage ", whether constituted as provided in subsection (2) of section six, or as provided in section seven of this Act," in lines one, two and three.
| amended. | 13. |
Section 13
Section 13 of the principal Act is amended by substituting for the word "recommended" in line one of paragraph (d) of subsection (2), the word "promoted".
| amended. | 14. |
| Section 14 | 15. The principal Act is amended by deleting |
substituted
section 14 and substituting the following section-
| Lodging and | 14. (1) Every appeal shall be in writing, shall be delivered to the Secretary of the Board within the prescribed time, and subject to this Act, shall be heard by the Board as early as practicable after the date when the appeal is received by the Secretary. |
| appeal. | |
| (2) After the closing date for appeals the Secretary of the Board shall advise the promot- ing authority concerned of the names and other relevant particulars of all appellants. |
hearing of
An appeal may be made on the ground
of superior efficiency to that of the employee
promoted.
(3)
For the purposes of subsection (3) of this section, "efficiency" means special qualifications and aptitude for the discharge of the duties of the office to be filled, together with merit, dili- gence and good conduct, and in assessing the efficiency of an employee
(4)
| (a) | the promoting authority and the Board shall have regard to any service in an acting capacity by that employee in the office to be filled if that service was had prior to the occurring of the vacancy then being filled; |
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(Promotions Appeal Board).
| (b) | in the case of an employee who is a returned soldier, the term shall include such efficiency as in the opinion of the promoting authority concerned or the Board, as the case may be, the employee would have attained but for his absence on war service. |
(5) The Board may at any stage of the hearing of an appeal decline to hear it further and may summarily dismiss the same on the ground that in the opinion of the Board it is frivolous, unreasonable or vexatious.
(6) The Board may, if it thinks fit, order an appellant to pay to the Treasurer of the State a sum not exceeding twenty-five dollars if, in the opinion of the Board, his appeal is frivolous, unreasonable or vexatious and any sum so ordered may be recovered in a court of competent jurisdiction at the suit of the Treasurer of the State as a civil debt owing to the Crown. .
16. The principal Act is amended by repealing itglieidi.5
section 15.
Section 16
17. Section 16 of the principal Act is amended— amended.
| (a) | by substituting for the words "recom- mended and the recommending authority who or which recommended" in lines two, three and four of subsection (1) the words "promoted and the promoting authority who or which made"; |
(b) by deleting subsection (2); and
(c) as to subsection (3)-
(i) by deleting the words "by or on behalf of the employee appellant" in lines three and four;
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(Promotions Appeal Board).
(ii) by deleting the words "of the employee appellant" in lines sixteen and seventeen; and
(iii) by substituting for the words "employee appellant" in lines eighteen and nineteen, the words "person calling the witness".
Section 17
| amended. | 18. Section 17 of the principal Act is amended |
| (a) | by deleting subsection (1) and substituting the following subsection |
(1) Subject to paragraph (a) of sub- section (4) of section fourteen of this Act, the Board shall make full inquiry into the claims of the employee appellant and the merits of the applicant promoted and consider all such matters up to the closing date of applications for the vacancy. ;
| (b) | by adding in subsection (5) before the word "award" in line one and again in line ten, the passage "law,"; and |
| (c) | by adding after subsection (5) the following subsection |
(6) The Chairman of the Board shall give all such directions and do all such things as he deems necessary or expedi- ent to give effect to the intention of this Act. .
Section IS
| amended. | 19. Section 18 of the principal Act is amended |
(a) by substituting for the passage "appointing authority, to the recommending authority, to the applicant recommended" in lines three, four and five of subsection (1) the passage "promoting authority, to the appli- cant promoted";
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(Promotions Appeal Board).
| (b) | by substituting for the words "appointing authority and the recommending auth- ority" in lines three and four of subsection (3) the words "promoting authority"; and |
| (c) | by substituting for the word "appointing" in line seven of subsection (3) the word "promoting". |
Section 19
| 20. Section 19 of the principal Act is amended | amended. |
| (a) | by substituting for the word "appointment" in line one, the word "promotion"; and |
| (b) | by substituting for the words "an appoint- ing" in line one, the words "a promoting". |
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