Government Management and Employment Act 1985 (SA)
(Reprint No. 4)
SOUTH AUSTRALIA
1. Short title
2. Commencement
3. Repeal of Public Service Act 1967
4. Interpretation
5. General principles of public administration
6. General principles of personnel management
7. General principles of conduct
8. Annual report
9. Establishment of the Board
10. Constitution of the Board
11. Conditions of office
12. Procedure at meetings of the Board
13. Proceedings may be conducted in public or private
14. Validity of acts of the Board
15. Conflict of interest
16. Extent to which Board is subject to Ministerial direction
17. The functions of the Board
18. General policy directions
19. Delegation by Board
20. Annual report
21. The structure of the Public Service
22. Administrative unit comprised of unattached positions
23. Establishment of office of Commissioner for Public Employment
24. Conditions of appointment of the Commissioner
25. Appointment of deputy of Commissioner
26. Commissioner to disclose pecuniary interests
27. Conflict of interest
28. Extent to which Commissioner is subject to Ministerial direction
29. Functions of the Commissioner
30. Commissioner may issue instructions
31. Reviews of personnel management
32. Investigative powers of Commissioner
33. Delegation by the Commissioner
34. Right of recognised organisations to make representations to Commissioner on certain matters
35. Annual report
iii |
36. Each administrative unit to have a Chief Executive Officer
37. Special provisions relating to appointment of Chief Executive Officers
38. Provision for statutory office holder to have powers, etc., of Chief Executive Officer
39. Extent to which Chief Executive Officer is subject to Ministerial direction
40. Chief Executive Officer responsible to Minister
41. Functions of Chief Executive Officer
42. Right of recognised organisations to make representations to Chief Executive Officers on certain matters
43. Delegation
44. Governor may withdraw powers of a Chief Executive Officer
45. Creation and abolition of positions in the Public Service
46. Reclassification of positions
47. Classifications and reclassifications to be published in
Gazette 48. Review of classifications
49. Appointment to the Public Service
50. Basis of appointment to the Public Service
51. Filling of positions through selection processes
52. Reassignment
53. Promotion appeals
54. Remuneration of employees
55. Additional duties allowance
56. Special allowances and deductions
57. Reduction in salary arising from refusal or failure to carry out duties lawfully assigned
57A. | Payment of remuneration on death |
58. Hours of duty, etc.
59. Excess employees
60. Procedure where employee found to be incapacitated
60A. | Incompetent employees |
61. Resignation of employee
62. Re-appointment of employee who resigns to contest an election
63. Retirement from the Public Service
64. Grievance appeals
65. Certain employees to disclose pecuniary interests
66. All employees to disclose interests in conflict with their duties
67. General rules of conduct
68. Inquiries and disciplinary action
69. Suspension or transfer where disciplinary inquiry or serious offence charged
70. Disciplinary action on conviction of offence
71. Governor may transfer or dismiss on recommendation under this Division
72. Disciplinary appeals
73. Preservation of powers of Governor to appoint, transfer, and dismiss
73A. | Transfers of excess employees within public sector |
74. | Discharge of State functions by Commonwealth employees and |
74A. | Commissioner may approve arrangements for multiple appointments, etc. |
74B. | Directions relating to part-time employment |
75. | Extension of operation of certain provisions of Act |
76. | Recognised organisations |
77. | Operation of Industrial Conciliation and Arbitration Act in relation to this Act |
78. | Immunity from liability |
79. | Temporary exercise of statutory functions by persons other than those to whom they are assigned |
80. | Obsolete references |
81. | Evidentiary provision |
82. | War Service (Preference in Employment) Act 1943 |
83. | Service of notices |
84. | Summary proceedings |
85. | Regulations |
being
Government Management and Employment Act 1985 No. 117 of 1985
[Assented to 10 November 1985]
as amended by
Statutes Repeal and Amendment (Remuneration) Act 1990 No. 18 of 1990 [Assented to 19 April 1990]
Government Management and Employment (Miscellaneous) Amendment Act 1993 No. 20 of 1993 [Assented to 8 April | 1993] |
Statutes Amendment (Abolition of Compulsory Retirement) Act 1993 No. 75 of 1993 [Assented to 21 October 1993]
1 Came into operation 1 July 1986:
Gaz . 26 June 1986, p. 1636.2 Came into operation 19 April 1990:
Gaz . 19 April 1990, p. 1136.3 S. 21 came into operation 1 July 1986: s. 2(2); remainder of Act came into operation 1 July 1993:
Gaz . 24 June 1993, p. 2045.
4 Came into operation 1 January 1994: s. 2.
NOTE:
Asterisks indicate repeal or deletion of text. type indicate the amendments incorporated since the last reprint.
An Act to provide for the efficient and effective management of the public sector and the provision of public services of the highest practicable standard; to provide for the proper supervision and review of management structures and practices in the public sector; to provide for and regulate employment in the Public Service; to repeal the Public Service Act 1967; and for other purposes.
The Parliament of South Australia enacts as follows:
1. This Act may be cited as theGovernment Management and Employment Act 1985 .
2. This Act shall come into operation on a day to be fixed by proclamation.
3. ThePublic Service Act 1967 is repealed.
4. (1) In this Act, unless the contrary intention appears—"
administrative act " means an act or decision, or failure or refusal to act or make a decision, in the exercise or purported exercise of administrative authority, but does not include any act, decision, failure or refusal on the part of the Governor or a Minister, tribunal or review panel;"
administrative unit " means an administrative structure—
in which persons are or are to be employed; and | |
that is established, or continued in existence, under this Act as a department or other administrative unit; |
"
appointed member " in relation to the Board means a member of the Board appointed by theGovernor under this Act;
"
appointing authority " means—
in relation to a senior position—the Commissioner; | |
in relation to any other position—the Chief Executive Officer of the administrative unit in which the position is comprised; |
"
the Board " means the Government Management Board constituted under this Act;"
Chief Executive Officer " means a person appointed to, or assigned to act in, the position ofChief Executive Officer of an administrative unit;
"
classification " of a position in the Public Service means the assignment of the position to a level in a classification structure determined by the Commissioner, and "classify ", "reclassification " and "reclassify " have corresponding meanings;"
the Commissioner " means the person holding, or acting in, the position of Commissioner forPublic Employment;
"
department " means an administrative unit established, or continued in existence, under thisAct as a department;
"
the Disciplinary Appeals Tribunal " means the Tribunal of that name constituted underschedule 3;
"
disciplinary authority " means—
in relation to an employee (not being a Chief Executive Officer)—the Chief Executive Officer of the administrative unit in which the employee is employed; | |
in relation to the Chief Executive Officer of an administrative unit—the responsible Minister for that administrative unit or a nominee of that Minister, being another Minister, the Commissioner, or another Chief Executive Officer (or person having the powers and functions of a Chief Executive Officer) remunerated at a level at least equivalent to that of the Chief Executive Officer in question; |
"
effective service " of an employee means the period of the employee’s continuous service in the Public Service (whether pursuant to appointment on a permanent or other basis or appointment on more than one basis) together with any period required by or under this Act or the regulations to be counted as part of the employee’s effective service, but does not include any period required by the regulations to be excluded from the employee’s effective service;"
employee " means—
in relation to Part 2—a public employee; | |
in relation to the remainder of this Act—a person appointed to the Public Service (including a Chief Executive Officer); |
"
government agency " means an administrative unit or a State instrumentality;"
member of the judiciary " means—
a Judge or Master of the Supreme Court; | |
a Judge of the Industrial Court of South Australia; | |
a District Court Judge; | |
a Magistrate or Industrial Magistrate holding salaried office as such; |
"
merit " in relation to selection processes for the filling of positions means—
the extent to which each of the applicants has abilities, aptitude, skills, qualifications, knowledge, experience (including community experience), characteristics and personal qualities relevant to the carrying out of the duties in question; and | ||||
where relevant— | ||||
|
"
position " includes an office created by or under an Act;"
the Promotion and Grievance Appeals Tribunal " means the Tribunal of that nameconstituted under schedule 3;
"
public employee " means a person appointed to the Public Service or employed by the Crownor a State instrumentality;
"
the public sector " means all government agencies and public employees and the operationsand activities carried on by government agencies and public employees;
"
public sector operations " means all the operations and activities carried on by governmentagencies and public employees;
"
the Public Service " means the Public Service as defined in section 21;"
recognised organisation " means an association that—
is registered under the | |
is declared to be a recognised organisation by the Commissioner under this Act; |
"
remuneration " means salary and allowances;
* * * * * * * * * *
"
the repealed Act " means thePublic Service Act 1967 repealed by this Act;"
the responsible Minister " in relation to an administrative unit means the Minister responsiblefor the administration of the administrative unit;
"
selection processes " means the processes by which applications are sought and applicantsselected for the purpose of filling positions in the public sector;
"
senior position " means—
a position classified in accordance with the classification structure for Executive Officers; or | |
a position classified in accordance with any other classification structure at a level the rate of remuneration for which equals or exceeds that for positions classified at the lowest level in the classification structure for Executive Officers, |
but does not include a position of Chief Executive Officer;
"
serious offence " means an indictable offence, or an offence punishable by imprisonment for 2years or more;
"
State instrumentality " means an agency or instrumentality of the Crown and includes anybody corporate that is established by or under an Act and—
is comprised of persons, or has a governing body comprised of persons, a majority of whom are appointed by the Governor, a Minister or an agency or instrumentality of the Crown; or | |
is subject to control or direction by a Minister; or | |
is declared under subsection (2) to be a State instrumentality, |
but does not include—
an administrative unit; or | |
the State Bank of South Australia constituted under the | |
the State Government Insurance Commission established under the | |
the | |
a body declared under subsection (2) not to be a State instrumentality; |
"
working day " in relation to an employee means a day on which the employee would, if not onleave, be required to work.
(2) The Governor may, by proclamation—
declare that a specified body is or is not a State instrumentality for the purposes of this Act; | |
vary or revoke a proclamation under this subsection. |
(3) All appointments to the Public Service shall be regarded as having been made on behalf of the Crown and all persons appointed to the Public Service shall be regarded for all purposes as employees of the Crown.
5. The following principles of public administration shall be observed in the public sector:
the public sector shall be administered in a manner which emphasises the importance of service to the community; | |
the public sector shall be structured and organised so as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities; | |
government agencies shall be structured and administered so as to enable decisions to be made, and action taken, without excessive formality and with a minimum of delay; | |
administrative responsibilities shall be clearly defined and authority shall be sufficiently delegated to ensure that those to whom responsibilities are assigned have adequate authority to deal expeditiously with questions that arise in the course of discharging those responsibilities; | |
government agencies should have as their goal a continued improvement in the efficiency and effectiveness of their performance and shall be administered with that goal always in view; | |
resources shall be deployed so as to ensure their most efficient and effective use; | |
proper standards of financial management and accounting shall be exercised at all times. |
6. (1) The following principles of personnel management shall be observed in the public sector:
all selection processes shall be directed towards and based on a proper assessment of merit; and | |
no power with regard to personnel management shall be exercised on the basis of nepotism or patronage; and | |
employees shall be treated fairly and consistently and shall not be subjected to arbitrary or capricious administrative acts; and | |
there shall be no unlawful discrimination against employees or persons seeking employment in the public sector on the ground of sex, sexuality, marital status, pregnancy, race, physical impairment or any other ground nor shall any form of unjustifiable discrimination be exercised against employees or persons seeking employment in the public sector; and | |
employees shall be afforded equal opportunities to secure promotion and advancement in their employment; and | |
employees shall be employed in worthwhile and constructive employment and be afforded proper access to training and development; and | |
employees shall be afforded reasonable avenues of redress against improper or unreasonable administrative acts; and | |
employees shall be provided with safe and healthy working conditions; and |
(i) employees shall be remunerated at rates commensurate with their responsibilities.
(2) The Minister responsible for the administration of this Act may publish in the
(3) The Minister may in an equal employment opportunity programme make special provision—
for young persons, or persons of a defined class disproportionately represented amongst the unemployed, in securing employment in the public sector; | |
for persons of a defined class employed in the public sector with a view to enabling them to compete for other positions or pursue careers in the public sector as effectively as persons not of that class, |
and any such special provision shall, notwithstanding the provisions of this or any other Act, be
lawful.
(4) The Minister responsible for the administration of this Act may, by notice published in the
7. The following principles of conduct shall be observed by all employees:
employees shall comply with the provisions of this and any other Act governing their conduct; | |
employees shall be conscientious in the performance of official duties and scrupulous in the use of official information, equipment and facilities; | |
employees shall, in their dealings with members of the public or fellow employees, exercise proper courtesy, consideration and sensitivity; | |
employees shall not conduct themselves in their private capacities in a manner that would reflect seriously and adversely on their employers or fellow employees. |
(2) The report must contain information required by regulation.
(3) Subject to subsection (4), the report must be related to a financial year and must be
presented within 3 months after the end of the financial year to which it relates.
(4) Where a government agency is under some other statutory obligation to make an annual report to the Minister responsible for the agency—
the report required by this section may be incorporated with that other report; and | |
the period to which the report relates shall be the same as for that other report; and | |
the report must be presented within 3 months after the end of the reporting period referred to in paragraph |
(5) A Minister shall, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament.
9. There shall be a Board entitled the "Government Management Board".
10. (1) The Board shall consist of not more than 7 members, of whom—
one shall be the Commissioner; and | |
the remainder shall be persons appointed by the Governor. |
(2) Of the persons appointed by the Governor—
one shall be a person employed in the public sector who has been nominated by the United Trades and Labor Council; and | |
the remainder shall be persons who, in the opinion of the Governor, have appropriate knowledge and experience in the area of management. |
(2a) The membership of the Board must include at least two men and at least two women.
(3) One member of the Board shall be appointed by the Governor to preside at meetings of the
Board.
(2) The Governor may remove an appointed member of the Board from office for—
misconduct; or | |
neglect of duty; or | |
incompetence; or | |
mental or physical incapacity to carry out satisfactorily the duties of the office. |
(3) The office of an appointed member of the Board shall become vacant if the member—
dies; or | |
completes a term of office and is not re-appointed; or | |
resigns by written notice addressed to the Minister responsible for the administration of this Act; or | |
was appointed as a member of the Board by reason of occupying or holding a particular position or capacity referred to in the instrument of appointment and ceases to occupy or hold that position or capacity; or | |
is removed from office by the Governor under subsection (2). |
(4) Upon the office of an appointed member of the Board becoming vacant, a person shall be appointed in accordance with this Act to the vacant office.
(5) The Governor may appoint a suitable person to be the deputy of a member of the Board.
(6) The deputy of a member may, during the absence of the member, act as a member of the
Board.
(2) The prescribed number of members of the Board constitute a quorum of the Board.
(3) For the purposes of subsection (2), a reference to the prescribed number of members of the Board is a reference to the number ascertained by dividing the total number of members for the time being appointed to the Board by two, ignoring any fraction resulting from the division, and adding one.
(4) A decision in which a majority of the members present at a meeting of the Board concur shall be a decision of the Board.
(5) Subject to this Act, the business of the Board shall be conducted in such manner as the Board determines.
an appointed member of the Board has a pecuniary or other personal interest in a matter; and | |
that interest conflicts, or may conflict, with the member’s official duties, |
the member shall disclose the nature of the interest to the Minister responsible for the administration of this Act and shall not take any further action in relation to the matter except as may be authorised by that Minister.
(2) The Minister responsible for the administration of this Act may direct an appointed member of the Board to take specified action with a view to resolving a conflict between a pecuniary or other personal interest and an official duty as a member of the Board.
(3) Failure to comply with subsection (1) or a direction under subsection (2) constitutes misconduct.
(2) No Ministerial direction shall be given to the Board—
requiring that material be included in, or excluded from, a report that is to be laid before Parliament; | |
requiring the Board to make, or refrain from making, any particular recommendation or comment when providing any advice or making any other report to a Minister or Ministers under this Act; | |
requiring the Board to refrain from making any particular review of public sector operations. |
(3) A Ministerial direction to the Board—
must be communicated to the Board in writing; and | |
must be included in the annual report of the Board. |
17. (1) The functions of the Board are as follows:
to keep all aspects of management in the public sector under review and— | ||||
| ||||
to advise the Minister responsible for the administration of this Act and other Ministers on structural changes that should, in the opinion of the Board, be made in order to improve the efficiency and effectiveness of public sector operations; and | ||||
to carry out, or recommend the carrying out of, necessary planning for the future of the public sector; and | ||||
to review, on its own initiative or at the request of the Minister responsible for the administration of this Act or any other Minister, the efficiency and effectiveness of any aspect of public sector operations and to make such reports upon the results of the review as may be required; and | ||||
to devise in co-operation with government agencies programmes and initiatives for management improvement in the public sector and to recommend their implementation to the Minister responsible for the administration of this Act and other Ministers; and | ||||
to carry out any other functions assigned to the Board by the Minister responsible for the administration of this Act. |
(2) In carrying out its functions under this Act, the Board may investigate any matter within or affecting any government agency and, for that purpose, may require, and shall be afforded, the co-operation of the agency and persons employed in or by the agency.
19. (1) The Board may, by instrument in writing, delegate any of its powers or functions.(2) A delegation under this section—
may be absolute or conditional; and | |
does not derogate from the power of the Board to act itself in any matter; and | |
is revocable at will. |
(3) A copy of every instrument of delegation under this section shall be retained by the Board as part of its records.
(2) The report must refer to—
any significant improvements in the management of public sector operations effected during the period to which the report relates; and | |
any major changes to the structure of the public sector during the period to which the report relates; and | |
any significant reviews undertaken by the Board during the period to which the report relates with respect to the efficiency and effectiveness of public sector operations; and | |
any other matters stipulated by the regulations. |
(3) The Minister shall, within 12 sitting days after receipt of a report under subsection (1), cause copies of the report to be laid before each House of Parliament.
21. (1) The Public Service consists of—
the administrative units established, or continued in existence, under this Act as departments; and | |
such other administrative units as are established under this Act, |
and, subject to schedule 2, all persons employed by or on behalf of the Crown must be employed
in the Public Service under this Part.
(2) The Governor may, by proclamation—
establish an administrative unit (whether as a department or not) and assign a title to it; | |
alter the title of an administrative unit; | |
abolish an administrative unit. |
(3) The Governor may, by a proclamation under subsection (2), or by a separate proclamation—
transfer positions or a group of positions from an administrative unit to another administrative unit; | |
incorporate a group of public employees (not forming part of the Public Service) into an administrative unit; | |
exclude from the Public Service a group of public employees previously incorporated into an administrative unit in pursuance of this Act; | |
make any appointment or any transitional or ancillary provision that may be necessary or expedient in the circumstances. |
(4) The Governor may, by proclamation, vary or revoke a proclamation under this section.
(5) The Minister responsible for the administration of this Act shall, so far as is practicable, before making a recommendation as to a matter referred to in subsection (3) that will affect a significant number of the members of a recognised organisation, notify the organisation of the proposed recommendation and hear any representations or argument that the organisation may desire to present in relation to the proposed recommendation.
(6) The provisions of a proclamation under this section shall have effect according to their terms and notwithstanding the provisions of any other Act.
22. (1) There shall be an administrative unit of the Public Service—
that consists of or includes unattached positions; and | |
in relation to which the Commissioner has the powers and functions of a Chief Executive Officer. |
(2) Where an administrative unit is abolished by proclamation and no provision is made in the proclamation for the transfer of the positions in the administrative unit, the positions shall become unattached positions in the administrative unit referred to in subsection (1).
23. (1) There shall be a Commissioner for Public Employment.(2) The Commissioner shall be appointed by the Governor.
* * * * * * * * * *
(3) The Commissioner shall be appointed for a term of office, not exceeding 5 years and is, on the expiration of a term of office, eligible for re-appointment.
(4) Where a person employed in the Public Service is appointed as the Commissioner, the person’s service as Commissioner shall, for the purpose of determining all the person’s existing and accruing rights in respect of leave, be counted as service in the Public Service.
(5) Where a person employed in the Public Service is appointed as the Commissioner and is not re-appointed at the expiration of the term of office, then, subject to the conditions of the appointment, the person is entitled to be re-appointed to the Public Service and assigned to a position that carries a salary not less than—
the salary of a position at the same classification level as the position occupied by the person immediately before appointment as Commissioner; or | |
80 per cent of the person’s salary as at the end of the term of office as Commissioner, |
whichever is the greater.
(6) The Governor may remove the Commissioner from office for—
misconduct; or | |
neglect of duty; or | |
incompetence; or | |
mental or physical incapacity to carry out satisfactorily the duties of the office. |
(7) The office of the Commissioner shall become vacant if the Commissioner—
dies; or | |
completes a term of office and is not re-appointed; or | |
resigns by notice in writing addressed to the Minister responsible for the administration of this Act; or | |
engages in any remunerative employment, occupation or business outside the duties of the office without the consent of the Minister responsible for the administration of this Act; or | |
becomes a member of the Parliament of the State or the Commonwealth; or | |
is convicted of a serious offence or is sentenced to imprisonment for an offence; or | |
is removed from office by the Governor under subsection (6). |
25. (1) The Governor may appoint a suitable person to be the deputy of the Commissioner.
(2) The deputy of the Commissioner may, during the absence or suspension of the Commissioner, or during a vacancy in the office of the Commissioner, act as the Commissioner.
(3) The deputy shall, while acting as the Commissioner, be entitled to such remuneration as may be determined by the Governor, which may, where the deputy is an employee, be an allowance payable in addition to the person’s salary as an employee.
(2) The Minister shall, at the request of any person, review the information disclosed by the Commissioner under this section and report whether there is, in the Minister’s opinion, a conflict between the Commissioner’s pecuniary interests and official duties.
(3) Failure to comply with subsection (1) constitutes misconduct.
the Commissioner has a pecuniary or other personal interest in a matter; and | |
that interest conflicts or may conflict with the Commissioner’s official duties, |
the Commissioner shall disclose the nature of the interest to the Minister responsible for the administration of this Act and shall not take any further action in relation to that matter except as may be authorised by that Minister.
(2) The Minister responsible for the administration of this Act may direct the Commissioner to take specified action with a view to resolving a conflict between a pecuniary or other personal interest and an official duty attaching to the office of the Commissioner.
(3) Failure to comply with subsection (1) or a direction under subsection (2) constitutes misconduct.
(2) No Ministerial direction shall be given to the Commissioner—
relating to the appointment, assignment, re-assignment, transfer, retirement or dismissal of a particular person; | |
relating to the classification of a particular position; | |
requiring that material be included in, or excluded from, a report that is to be laid before Parliament; | |
requiring the Commissioner to refrain from making a particular review under section 31; | |
requiring the Commissioner to declare or refrain from declaring a particular association to be a recognised organisation or to revoke or refrain from revoking such a declaration. |
(3) A Ministerial direction to the Commissioner—
must be communicated to the Commissioner in writing; and | |
must be included in the annual report of the Commissioner. |
29. (1) The functions of the Commissioner are as follows:
to ensure the implementation of the general policies in relation to personnel management and industrial relations established by the Board; | ||||
to establish and ensure the implementation of appropriate practices and procedures in relation to personnel management and industrial relations in the Public Service; | ||||
to determine the occupational groups within the Public Service and— | ||||
| ||||
to determine in respect of the various occupational groups classification structures in accordance with which positions in the Public Service are to be classified and, for that purpose— | ||||
| ||||
to determine conditions of service in respect of positions or classes of positions in the Public Service; | ||||
to determine criteria, standards and procedures for the classification of positions or classes of positions in the Public Service; | ||||
to determine the educational, vocational or professional qualifications required in respect of positions or classes of positions in the Public Service; | ||||
to classify senior positions in the Public Service; |
(i) to provide advisory and other services to the various administrative units in relation to personnel management and industrial relations;
to assist in establishing and ensure the implementation of equal employment opportunity programmes; | |
to establish and implement programmes of management training and staff development; | |
to assist in the recruitment, deployment and redeployment of public employees; | |
to investigate or assist in the investigation of matters in connection with the conduct or discipline of employees; | |
to carry out any other functions assigned to the Commissioner by or under this Act or by the Minister responsible for the administration of this Act. |
(2) The determinations of the Commissioner contemplated by subsection (1)
(c) ,(d) ,(e) ,(f) and
(g) | — | |||||
|
(3) In carrying out the functions or exercising the powers of the Commissioner under this Act, the Commissioner shall—
observe the principles of personnel management prescribed by this Act and endeavour to ensure their observance in the Public Service in general; and | |
observe the directions given from time to time by the Minister responsible for the administration of this Act or by the Board; and | |
observe any binding industrial award, determination or agreement. |
(4) Without limiting the effect of any other provision of this Act, the Commissioner shall, for the purpose of assisting in the recruitment, deployment and redeployment of employees, have power—
to create unattached positions in the administrative unit referred to in section 22; | |
to appoint persons to the Public Service and assign them to unattached positions; | |
to re-assign employees to or from unattached positions; | |
to abolish unattached positions. |
a particular employee; or | |
a particular class of employees; or | |
employees in general. |
(2) An instruction issued by the Commissioner under this section is binding on the employee or employees to whom the instruction is directed.
(3) In this section—
"
employee " has the meaning assigned to the term by section 4 and includes a person for the time being holding or acting in an office created by or under an Act who has the powers and functions of a Chief Executive Officer in pursuance of this Act.
for the purpose of determining the extent to which the principles of personnel management prescribed by this Act are being observed in an administrative unit; or | |
for the purpose of investigating any other aspect of personnel management in an administrative unit. |
(2) The Commissioner may during the course of a review and shall at the conclusion of a review report to the Chief Executive Officer of the administrative unit to which the review relates—
the Commissioner’s findings on the review; and | |
any recommendations affecting personnel management that should, in the Commissioner’s opinion, be adopted by the Chief Executive Officer. |
(3) The Chief Executive Officer, if not in agreement with a recommendation in the report, shall report the disagreement, together with the reasons for the disagreement, to the Commissioner within 1 month after receipt of the report.
(4) If the Chief Executive Officer makes a report under subsection (3), or fails to implement recommendations of the Commissioner made under this section, the Commissioner may report the matter to the responsible Minister.
(5) Where a report is made to a Minister under subsection (4)—
the Minister shall respond to the report by indicating agreement or disagreement with the Commissioner’s recommendations and, if in agreement with those recommendations, may take appropriate steps to ensure that they are implemented; and | |
if the Minister fails to respond as required by paragraph |
by notice in writing— | ||||
| ||||
require a public employee or former public employee appearing before the Commissioner (whether required to appear or not) to answer truthfully questions relevant to the subject-matter of the review or investigation. |
(2) For the purpose of assisting the Commissioner with a review or investigation, a person authorised by the Commissioner to exercise the powers conferred by this subsection may—
enter and inspect premises occupied by the Crown or a government agency; and | |
require a public employee to answer truthfully any relevant question; and | |
require a public employee to produce any relevant document, object or material. |
(3) A public employee or former public employee who fails to comply with a requirement of the Commissioner or an authorised person issued or made in pursuance of this Act, or hinders the Commissioner or an authorised person in the exercise of powers conferred by this section, shall—
in the case of a public employee—be liable to disciplinary action (whether under this Act or otherwise, as the case may require); or | |
in the case of a former public employee—be guilty of an offence and liable to a penalty not exceeding $1 000. |
(4) A person shall not be obliged to answer a question under this section if the answer to that question would tend to incriminate that person of an offence, or to produce any document, object or material (other than any document, object or material of the Government) if it or its contents would tend to incriminate that person of an offence.
to a particular person or committee; or | |
to the person for the time being occupying a particular position. |
(2) A power or function delegated under this section may, if the instrument of delegation so provides, be sub-delegated.
(3) Where a delegation is made to a committee under this section—
the instrument of delegation may regulate the procedures to be followed by the committee when acting in pursuance of the delegation; and | |
the committee may, if the instrument of delegation so provides, act by a majority of the members present at a meeting of the committee. |
(4) A delegation or sub-delegation under this section—
may be absolute or conditional; and | |
does not derogate from the power of the delegator to act personally in any matter; and | |
is revocable at will by the delegator. |
(5) A copy of every instrument of delegation under this section shall be retained by the Commissioner as part of the Commissioner’s records.
notify that organisation of the proposed decision, determination or action; and | |
hear any representations or argument that that organisation may desire to present in relation to the proposed decision, determination or action. |
(2) Nothing in subsection (1) shall be construed as limiting or restricting the carrying out of any function, or the exercise of any power, of the Commissioner under this Act.
(2) The report must refer to—
the extent to which observance of the principles of personnel management prescribed by this Act has been achieved in the Public Service over the period to which the report relates, including reference to— | ||||
| ||||
measures taken to improve personnel management in the various administrative units; and | ||||
the extent to which disciplinary procedures were invoked in the Public Service; and | ||||
any other matters stipulated by the regulations. |
(3) The Commissioner may, at any time, submit to the Minister a special report under this section upon any matter relating to personnel management or industrial relations in the Public Service or any part of the Public Service.
(4) The Minister shall, within 12 sitting days after receipt of a report under subsection (1) or (3), cause copies of the report to be laid before each House of Parliament.
36. (1) There shall be a Chief Executive Officer of each administrative unit.(2) The Chief Executive Officer of an administrative unit shall be appointed by the Governor.
(3) The Governor may assign a title to a position of Chief Executive Officer and may subsequently alter the title.
(4) The responsible Minister may assign an employee to act in the position of Chief Executive Officer of an administrative unit—
during a vacancy in the position of Chief Executive Officer; or | |
when the Chief Executive Officer is absent from, or unable to discharge, official duties. |
(5) An employee shall, while acting in the position of Chief Executive Officer of an administrative unit, be entitled to such allowance (in addition to the person’s salary as an employee) as may be determined by the responsible Minister.
the appointment shall be for a term not exceeding 5 years (but the appointee shall, at the expiration of a term of appointment, be eligible for re-appointment); and | ||||
the remuneration of a Chief Executive Officer shall be as determined by the Governor; and | ||||
where a person appointed as a Chief Executive Officer— | ||||
|
then, subject to the conditions of the appointment, the person is entitled to be assigned by the Commissioner or transferred by the Governor to some other position in the Public Service that carries a salary not less than—
|
whichever is the greater; and
where a person ceases to occupy a position of Chief Executive Officer before the expiration of the term of appointment otherwise than through a prescribed process, then— | ||||
| ||||
the appointment is subject to such conditions (not inconsistent with any other provisions of this Act) as may be determined by the Governor. |
(1a) For the purposes of subsection (1), a person ceases to occupy a position of Chief Executive Officer of an administrative unit if the administrative unit is abolished or ceases to exist.
(2) In subsection (1)—
"
prescribed process " means—
resignation; | |
voluntary retirement; | |
retirement or transfer pursuant to section 60; | |
dismissal or transfer pursuant to section 71. |
(2) The provisions of sections 36 and 37 do not apply in relation to an administrative unit to which a declaration under subsection (1) relates.
(3) The Governor may revoke a declaration under subsection (1).
(4) Where—
an administrative unit is established under this Act; but | ||||
no person is— | ||||
|
the Commissioner shall have the powers and functions of Chief Executive Officer in relation to the
unit until such an appointment, assignment or declaration is made.
(2) No Ministerial direction shall be given to a Chief Executive Officer—
relating to the appointment, assignment or re-assignment of a particular person; or | |
relating to the classification of a particular position; or | |
requiring the Chief Executive Officer to hold or refrain from holding an inquiry in relation to the discipline of a particular employee, or to take or refrain from taking disciplinary action in relation to a particular employee. |
(2) Where the functions of an administrative unit are solely or principally those of assisting a State instrumentality, or the holder of an office created by an Act, in the administration of an Act or in the performance of statutory functions, the Governor may, by proclamation, declare that the Chief Executive Officer of the administrative unit shall be responsible to the State instrumentality, or the holder of the statutory office, for the efficient and effective management of the unit and, in that event, the State instrumentality, or the holder of the statutory office, shall in turn be responsible to the responsible Minister for the efficient and effective management of the unit.
(3) The Governor may, by proclamation, vary or revoke a declaration made for the purposes of subsection (2).
the proper organisation of the administrative unit, and the establishment of an appropriate staffing level; | |
financial and other management planning in relation to the administrative unit; | |
the appropriate division of responsibilities between, and assignment of duties to, the employees employed in the administrative unit; | |
the appropriate deployment and redeployment of resources within the administrative unit; | |
the establishment of effective procedures to ensure that the use of resources of the administrative unit is properly controlled and audited; | |
the implementation of any applicable equal employment opportunity programme and the devising and implementation of other initiatives to ensure that employees have equal opportunities in relation to their employment; | |
the establishment and implementation of necessary management training and staff development programmes; | |
the implementation of any health and safety programmes adopted with respect to employment in the Public Service; |
(i) resolving or redressing the grievances of employees within the administrative unit.
(2) In carrying out the functions or exercising the powers of a Chief Executive Officer, the Chief Executive Officer of an administrative unit shall—
endeavour to attain performance objectives set by the Minister responsible for the administrative unit; and | |
observe the principles of public administration and personnel management prescribed by this Act; and | |
observe the directions and instructions given from time to time by the Minister responsible for the administrative unit, the Commissioner or any authority empowered under any other Act to give directions or instructions to the Chief Executive Officer; and | |
observe any binding industrial award, determination or agreement (including any binding determination of the Commissioner). |
notify that organisation of the proposed decision or action; and | |
hear any representations or argument that that organisation may desire to present in relation to the proposed decision or action. |
(2) Nothing in subsection (1) shall be construed as limiting or restricting the carrying out of any function, or the exercise of any power, of a Chief Executive Officer under this Act.
to a particular person or committee; or | |
to the person for the time being occupying a particular position. |
(2) A power or function delegated under this section may, if the instrument of delegation so provides, be sub-delegated.
(3) Where a delegation is made under this section to a committee—
the instrument of delegation may regulate the procedures to be followed by the committee when acting in pursuance of the delegation; and | |
the committee may, if the instrument of delegation so provides, act by a majority of the members present at a meeting of the committee. |
(4) A delegation or sub-delegation under this section—
may be absolute or conditional; and | |
does not derogate from the power of the delegator to act personally in any matter; and | |
is revocable at will by the delegator. |
(5) A copy of every instrument of delegation issued by the Chief Executive Officer of an administrative unit under this section shall be retained as part of the records of the administrative unit.
(2) A power or powers withdrawn from the Chief Executive Officer of an administrative unit under this section shall instead be exercisable by the Commissioner in relation to the unit.
(3) The Governor may, on the recommendation of the Commissioner, restore to a Chief Executive Officer a power or powers previously withdrawn under this section.
45. (1) Subject to this section, positions in the Public Service may be created—
where the position is to be a senior position—by the Commissioner; | |
in any other case—by the Chief Executive Officer of the administrative unit in which the position is to be comprised. |
(2) A position is created by—
assigning a title to it; and | |
defining the duties that are to appertain to it; and | |
classifying the position; and | |
where the position is to be a senior position—determining the administrative unit in which the position is to be comprised. |
(3) A position may be abolished or its title altered or duties redefined—
in the case of a senior position—by the Commissioner; | |
in any other case—by the Chief Executive Officer of the administrative unit in which the position is comprised. |
(4) A position shall not be abolished while occupied by an employee.
46. (1) Positions in the Public Service may be reclassified—
by the Commissioner where— | ||||||
| ||||||
in any other case—by the Chief Executive Officer of the administrative unit in which the position is comprised. |
(2) A position may be reclassified at the initiative of the Commissioner or Chief Executive Officer, as the case may require, or upon application made in accordance with the regulations by the employee occupying the position.
(2) At least 14 days before publication of a classification under subsection (1), the Commissioner shall forward the classification to the Minister responsible for the administration of this Act together with any comments that should, in the Commissioner’s opinion, be considered by the Minister.
(3) If the Minister responsible for the administration of this Act comments on a proposed classification, those comments shall be fully considered before publication of the classification.
(4) This section does not apply in relation to the classification of a position that is being created for the performance of urgent work and for temporary purposes only.
(5) In this section (other than subsection (4))—
"
classification " includes reclassification.
(2) A classification review panel shall consist of—
the Commissioner or a delegate of the Commissioner; | |
an employee selected by the Commissioner from a panel of employees nominated by recognised organisations; | |
an employee selected by the Commissioner from a panel of employees nominated by the Commissioner. |
(3) The Minister responsible for the administration of this Act may from time to time invite the recognised organisations to nominate employees to constitute the panel referred to in subsection (2)
(4) If any recognised organisation fails to make a nomination in response to an invitation under subsection (3) within the time allowed in the invitation, the Minister responsible for the administration of this Act may choose employees in lieu of nominees of the recognised organisation and any employees so chosen shall be deemed to have been nominated to the relevant panel.
(5) A person shall cease to be a member of a panel if that person—
ceases to be an employee; or | |
resigns by notice in writing addressed to the Minister responsible for the administration of this Act; or | |
is removed from the panel by the Minister responsible for the administration of this Act on the ground of misconduct, neglect of duty, incompetence or mental or physical incapacity to carry out official duties; or | |
has completed a period of 2 years as a member of the panel since being nominated, or last renominated, as a member of the panel, and is not renominated to the panel. |
(6) Subject to subsection (7), an employee who—
has made an application under this Act for reclassification of the employee’s position; and | |
is dissatisfied with the decision upon the application, |
may, within 30 days after receiving notice of the decision, apply to the Commissioner for a review
of the classification of the employee’s position.
(7) The following employees are not entitled to make an application under subsection (6):
any employee occupying a senior position; | ||||||
any employee whose appointment to the Public Service is on a temporary basis and who has had continuous service in the Public Service of less than 12 months; | ||||||
any employee whose appointment to the Public Service is— | ||||||
|
(8) Where an application for review of a classification is made to the Commissioner under subsection (6), the Commissioner shall refer the application to a classification review panel.
(9) A classification review panel to which an application for review of a classification is referred under this section shall afford—
the applicant; and | |
the Chief Executive Officer, or a nominee of the Chief Executive Officer, of the administrative unit in which the applicant is employed, |
a reasonable opportunity to make submissions orally or in writing to the panel on the questions
raised by the application.
(10) Where an applicant wishes to make oral submissions, the applicant may appear before the panel personally or be represented by an officer of a recognised organisation of which the applicant is a member.
(11) On completion of a review, the review panel may—
confirm the existing classification of the applicant’s position; or | |
determine that the position be reclassified with effect from a date determined by the panel, |
as the panel considers appropriate.
(11a) The date of effect of a reclassification determined by the review panel must be—
not earlier than the date on which the employee applied for reclassification of the position; and | |
not later than 3 months from the date of that application. |
(12) A decision in which any two or more members of a classification review panel concur shall be a decision of the panel.
(13) Where a review panel determines that a position be reclassified under this section, the Commissioner or Chief Executive Officer, as the case may require, must reclassify the position in accordance with that determination.
49. (1) Appointments to the Public Service shall be made—
where the appointment is to be made for the purpose of filling a senior position—by the Commissioner; | |
where the appointment is to be made for the purpose of filling any other position—by the Chief Executive Officer of the administrative unit in which the position is comprised. |
(2) The appointing authority may, before making an appointment, require the person that the authority proposes to appoint to produce satisfactory evidence that the person is healthy and physically fit to carry out the duties of the position in respect of which the appointment is to be made.
50. (1) An appointment to the Public Service may be made—
on a permanent basis; or | |
on a temporary basis; or | |
on a casual basis; or | |
for a fixed term; or | |
for a fixed term and subject to negotiated conditions. |
(2) The following provisions apply to appointment on a permanent basis:
a person shall not be appointed on that basis unless selected through selection processes conducted in pursuance of this Act; and | ||||||
subject to paragraph | ||||||
the appointing authority may make an appointment without probation— | ||||||
| ||||||
the appointment of an employee who is on probation may be terminated by the appropriate authority at any time; and | ||||||
where an employee has been on probation for 6 months or more, the appropriate authority may confirm the appointment and, in that event, the employee shall cease to be on probation; and | ||||||
unless the appointment is sooner confirmed or terminated, the appointment of an employee shall be deemed to have been confirmed by the appropriate authority when the employee completes a period of 12 months on probation; and | ||||||
in determining for the purposes of this subsection the period for which an employee has been on probation, any period for which the employee has been absent on leave without pay shall be disregarded. |
(3) The following provisions apply to an appointment on a temporary basis:
an appointment may be made on that basis for the purpose of filling a position without seeking applications in respect of the position and, in that event, the appointee shall, on being appointed to the Public Service, be assigned to the position by the appointing authority; and | ||||
an appointment shall not be made for the purpose of filling a position with duties of a continuing nature unless, in the opinion of the appointing authority— | ||||
| ||||
an appointment shall be made for a term (not exceeding 12 months) determined by the appointing authority; and | ||||
the term of an appointment may be extended from time to time by the appropriate authority but not so that the aggregate period of appointment exceeds 2 years; and | ||||
an appointment may be terminated by the appropriate authority at any time. |
(4) The following provisions apply to an appointment on a casual basis:
an appointment may not be made on that basis except for the performance of duties— | ||||
| ||||
an appointment may be made on that basis without seeking applications; and | ||||
the conditions of an appointment (including conditions fixing the duties and remuneration)— | ||||
| ||||
an appointment may be terminated at any time by the appointing authority. |
(4a) The following provisions apply to an appointment for a fixed term:
an appointment may be made for a term (not less than 12 months nor more than 5 years) determined by the appointing authority; and | ||||
a person must not be appointed on that basis unless selected through selection processes conducted in pursuance of this Act; and | ||||
the term of an appointment may be extended from time to time by the appropriate authority provided that the aggregate term of appointment of any employee does not exceed 5 years, or such longer period as the Commissioner may allow in a particular case; and | ||||
where, immediately before appointment for a term as provided by this subsection— | ||||
|
then, on the expiration of the term, the person—
|
(4b) The following provisions apply to an appointment for a fixed term and subject to negotiated conditions:
a person must not be appointed on that basis unless selected through selection processes conducted in pursuance of this Act; and | ||||
the conditions of an appointment (including conditions fixing the term of an appointment and remuneration)— | ||||
|
(4c) Where, immediately before appointment to the Public Service on a particular basis, a person was employed in the Public Service through appointment on some other basis, the process involved in the change from one basis of appointment to another will be taken not to affect the person’s continuity of service as an employee or the person’s existing or accruing rights in respect of leave.
(5) In this section—
"
the appropriate authority " means—
in relation to an employee assigned to a senior position—the Commissioner; | |
in any other case—the Chief Executive Officer of the administrative unit in which the employee is for the time being employed; |
"
prescribed employment " means—
employment by the Commonwealth or a State or Territory of the Commonwealth or any agency or instrumentality of the Commonwealth or a State or Territory of the Commonwealth; or | |
any other employment declared by regulation to be prescribed employment for the purposes of this section. |
(2) The Chief Executive Officer of an administrative unit may, for the purpose of filling a position (other than a senior position) in the administrative unit—
cause applications to be sought and an applicant selected in accordance with the regulations; or | |
where a pool of applicants has been established under subsection (3) for the purpose of filling positions of a class to which the position belongs—cause an applicant to be selected in accordance with the regulations from amongst applicants in the pool. |
(3) The Commissioner or, with the approval of the Commissioner, the Chief Executive Officer of an administrative unit may, for the purpose of filling positions below a prescribed classification level that are vacant or may be created or become vacant in the future—
cause applications to be sought in accordance with the regulations; and | |
cause selections to be made in accordance with the regulations for the purpose of establishing a pool of applicants from which further selections may be made in order to fill positions as from time to time required. |
(4) Where an applicant selected for the purpose of filling a position is not an employee, the appointing authority shall, upon appointing the person to the Public Service, assign the person to that position.
(5) Where an applicant selected for the purpose of filling a position is an employee, then the employee shall—
in any case where— | ||||
|
(A) | for a fixed term; or |
(B) | for a fixed term and subject to negotiated conditions; and |
(iii) some other employee also made an application in respect of the position,
be nominated in accordance with the regulations and, subject to section 53, reassigned
to the position;
in any other case—be re-assigned to the position. |
(6) Where an employee is nominated under this section for reassignment to a position—
the nomination may be withdrawn by the authority who made the nomination at any time before the employee is reassigned to the position— | ||||
| ||||
another applicant may be selected for assignment or reassignment to the position. |
(2) Re-assignments (including re-assignments pursuant to section 51(5)) shall be made—
by the Commissioner where— | ||||
| ||||
in any other case—by the Chief Executive Officer of the administrative unit in which the employee is for the time being employed. |
(3) An employee may not be reassigned to a position at a classification level higher than the classification level of the position for the time being occupied by the employee except—
where the employee has been selected for reassignment to the position through selection processes conducted in pursuance of this Act; or | |
by a temporary promotional reassignment. |
(4) A temporary promotional reassignment—
may not be made except subject to any conditions determined by the Commissioner; and | |
is, in any event, subject to the requirement that the employee is within 12 months (or such longer period not exceeding three years as the Commissioner may allow in a particular case) reassigned to the position formerly occupied by the employee or, if that position is no longer available, to a position at the same classification level as the position formerly occupied by the employee. |
(5) Except with the employee’s consent, or as provided by subsection (4)
(6) A reassignment may not be made by the Commissioner except at the request of, or after consultation with, the Chief Executive Officer of any administrative unit affected by the reassignment.
(2) An appeal against a nomination may only be made on one or more of the following
grounds:
that the employee nominated is not eligible for reassignment to the position; or | |
that the selection processes leading to the nomination were not properly directed towards and based on assessment of the respective merits of the applicants; or | |
that the selection processes were affected by nepotism or patronage; or | |
that there was some other serious irregularity in the selection processes resulting from non-observance of principles or procedures governing selection processes under this Act, |
and may not be made merely on the basis that the Tribunal should redetermine the respective
merits of the appellant and the employee nominated.
(2a) The Tribunal may, if of the opinion that an appeal is frivolous or vexatious, decline to entertain the appeal.
(3) Where on an appeal under this section the Tribunal is satisfied that there has been some serious irregularity in the selection processes leading to the nomination such that it would be unreasonable for the nomination to stand, the Tribunal may—
quash the nomination; and | |
order that the selection processes be recommenced from the beginning or some later stage specified by the Tribunal. |
(4) For the purposes of this section—
a person is not eligible for re-assignment to a position if the person does not have qualifications determined by the Commissioner to be essential in respect of the position; and | |
a determination by the authority seeking to fill a position that specific qualifications, experience or other attributes are essential or desirable in respect of the position shall be binding on the Tribunal. |
(5) Where an employee has been nominated for re-assignment to a vacant position and no-one is entitled to appeal, or no-one successfully appeals, against the nomination, the nominee shall be re-assigned to the position.
* * * * * * * * * *
(7) The following employees are not entitled to appeal against a nomination under this section:
any employee whose appointment to the Public Service is on a temporary basis and who has had continuous service in the Public Service of less than 12 months; | ||||||
any employee whose appointment to the Public Service is— | ||||||
|
3. (1) Subject to this clause, a person employed as an officer under the repealed Act immediately before the commencement of this Act shall be deemed to have been appointed to the Public Service on a permanent basis under this Act and shall, subject to this Act, continue in employment on that basis.
(2) Where a person was holding office on probation under the repealed Act immediately before the commencement of this Act, the person’s appointment to the Public Service shall, unless sooner confirmed or terminated by the Commissioner, be deemed to have been confirmed at the expiration of the period of probation fixed by or under the repealed Act.
(3) A person employed as a temporary officer under the repealed Act immediately before the commencement of this Act shall be deemed to have been appointed to the Public Service on a temporary basis under this Act and shall continue in employment on that basis subject to the power of the Commissioner, or the Chief Executive Officer of the administrative unit in which the person is for the time being employed, to terminate the appointment at any time.
(4) A person who was, immediately before the commencement of this Act, performing the duties of an office to which the person had been appointed under the repealed Act shall (whether or not the person was also performing additional duties) be deemed to have been assigned to the corresponding position under this Act.
(5) A person who was, immediately before the commencement of this Act, performing duties other than the duties of an office to which the person had been appointed under the repealed Act shall—
if those other duties were classified at the same classification level as the person’s office—be deemed to have been re-assigned under this Act to a position with those other duties; | |
if those other duties were classified at a higher classification level than the person’s office—be deemed to have been re-assigned under this Act to a position with those other duties subject to the requirement that the person shall, at the expiration of the period for which the person had been directed under the repealed Act to perform those other duties, be re-assigned to the position that corresponds to the person’s office under the repealed Act, or, if that position is no longer available, to a position at the same classification level as the person’s office under the repealed Act. |
(6) Subject to this Act, the classification of positions in the Public Service remains the same as under the repealed Act immediately before the commencement of this Act.
(7) The existing and accruing rights in respect of leave of employees continued in employment under this Act remain in full force and effect.
(8) All special payments, allowances (other than other duties allowances) or charges payable or liable to deduction from salaries under the repealed Act immediately before the commencement of this Act remain so payable or liable to deduction subject to any determination of the Commissioner under this Act.
(9) A person holding office as Permanent Head of a department under the repealed Act immediately before the commencement of this Act shall—
on the commencement of this Act, be deemed to have been appointed as Chief Executive Officer of that department for a term of 5 years commencing on the date of commencement of this Act; and |
57 |
be entitled to be assigned to some other position in the Public Service upon ceasing to be a Chief Executive Officer otherwise than through a prescribed process. |
(10) Where a person to whom subclause (9) applies ceases to be a Chief Executive Officer otherwise than through a prescribed process but remains an employee, the person is entitled for the period for which the person continues to be an employee to be remunerated at a rate not less than the rate that would have applied if the person had continued to occupy the position of Chief Executive Officer.
(11) In subclauses (9) and (10)—
"
prescribed process " means—
resignation; | |
voluntary retirement; | |
retirement or transfer pursuant to section 60; | |
dismissal or transfer pursuant to section 71. |
4. (1) Where an Act or instrument provides for an appointment to a particular position, or for an appointment of particular staff or employees, to be made by the Governor in pursuance of the repealed Act, that provision shall be construed as if it provided for a person or persons to be appointed to the Public Service and assigned to the position or positions by the appropriate appointing authority under this Act.
(2) A reference in any Act or instrument to the Public Service Board shall be construed, where the context admits, as a reference to the Commissioner.
(3) Where, immediately before the commencement of this Act, a provision in an Act or instrument referred or was required to be construed as referring to a particular department, office, officer or permanent head, that provision shall, subject to this Act, be construed as referring to the corresponding department, position, employee or Chief Executive Officer under this Act.
5. The
6. (1) Subject to this clause, where a person, having been appointed by the Chief Executive Officer of an administrative unit, was employed immediately before the commencement of this clause to perform duties—
of a kind ordinarily performed by persons employed in the Public Service; and | ||||
— | ||||
|
the person will be taken to have been appointed to the Public Service on a casual basis.
(2) Subclause (1) does not apply to a person employed in the Public Service whose appointment to the Public Service is on a permanent basis or a temporary basis.
(3) A person whose appointment to the Public Service was, immediately before the commencement of this clause, on the basis of negotiated conditions will be taken to have been appointed to the Public Service for a fixed term and subject to negotiated conditions.
(4) A reference in this Act to a temporary promotional reassignment includes a reference to a reassignment made before the commencement of this clause for temporary purposes under section 52(3)
(5) The
59 |
(1) The following persons are excluded from the Public Service:
members of the judiciary; | |
members of the police force; | |
the Auditor-General; | |
the Ombudsman; | |
the Police Complaints Authority; | |
the Electoral Commissioner and the Deputy Electoral Commissioner; |
* * * * * * * * * *
any officer of either House of Parliament or any person under the separate control of the President of the Legislative Council or the Speaker of the House of Assembly or under their joint control; |
(i) any officer or employee appointed by the Minister under theEducation Act 1972 ;
any officer or employee appointed by the Minister under the | ||||||
subject to a proclamation under Division 1 of Part 3— | ||||||
|
* * * * * * * * * *
any officer or employee excluded from the Public Service by proclamation under subclause (2). |
(2) The Governor may, by proclamation—
exclude an officer or employee or class of officers or employees from the Public Service; | |
vary or revoke a proclamation under this subclause. |
1. (1) There shall be tribunals entitled respectively—
the "Promotion and Grievance Appeals Tribunal"; and | |
the "Disciplinary Appeals Tribunal". |
(2) Except where the contrary intention appears, the remaining provisions of this schedule apply in relation to both the Promotion and Grievance Appeals Tribunal and the Disciplinary Appeals Tribunal.
2. (1) The Governor may appoint—
a suitable person to be Presiding Officer of the Tribunal; and | |
a suitable person to be Deputy Presiding Officer of the Tribunal. |
(2) Before the Governor makes an appointment under subclause (1) the Minister responsible for the administration of this Act shall invite representations from recognised organisations on the proposed appointment.
(3) A person is not eligible to be appointed as Presiding Officer or Deputy Presiding Officer of the Disciplinary Appeals Tribunal unless that person is a member or a former member of the judiciary of the State or the Commonwealth.
(4) A person is not eligible to be appointed as Presiding Officer or Deputy Presiding Officer of the Promotion and Grievance Appeals Tribunal—
if the person is an employee; or | |
unless the person has, in the opinion of the Governor, appropriate knowledge and experience of principles and practices of personnel management in the public sector. |
(5) In the absence of the Presiding Officer of the Tribunal, or if there is temporarily no Presiding Officer of the Tribunal, the Deputy Presiding Officer shall have all the powers and functions of the Presiding Officer.
(6) A person appointed as Presiding Officer or Deputy Presiding Officer of the Tribunal shall be appointed for such term of office (not exceeding 5 years) as the Governor may determine and specifies in the instrument of appointment and, on the expiration of a term of office, is eligible for re-appointment.
(7) A person shall cease to be Presiding Officer or Deputy Presiding Officer of the Promotion and Grievance Appeals Tribunal if that person—
completes a term of office and is not re-appointed; or | ||||||||
resigns by written notice addressed to the Minister responsible for the administration of this Act; or | ||||||||
is removed from office by the Governor on the ground of— | ||||||||
| ||||||||
is convicted of a serious offence or sentenced to imprisonment for an offence; or | ||||||||
becomes a member of the Parliament of the State or the Commonwealth. |
61 |
(8) A person shall cease to be Presiding Officer or Deputy Presiding Officer of the Disciplinary Appeals Tribunal if that
person—
completes a term of office and is not re-appointed; or | |
resigns by written notice addressed to the Minister responsible for the administration of this Act; or | |
ceases to be a member of the judiciary. |
(9) A person who ceases to be Presiding Officer or Deputy Presiding Officer of the Tribunal on completion of a term of office, on resignation under this clause, or on retirement or resignation as a member of the judiciary, may continue to act in the relevant office for the purpose of completing the hearing and determination of proceedings part-heard at the completion of the term of office, or at the time of the retirement or resignation.
3. (1) For the purpose of constituting the Tribunal there shall be—
a panel of employees nominated by the Commissioner; and | |
a panel of employees nominated by recognised organisations. |
(2) The Minister responsible for the administration of this Act may from time to time invite the recognised organisations to nominate employees to constitute the panel referred to in subclause (1)
(3) If any recognised organisation fails to make a nomination in response to an invitation under subclause (2) within the time allowed in the invitation, the Minister responsible for the administration of this Act may choose employees in lieu of nominees of the recognised organisation and any employees so chosen shall be deemed to have been nominated to the relevant panel.
(4) A person shall cease to be a member of a panel if that person—
ceases to be an employee; or | |
resigns by notice in writing addressed to the Minister responsible for the administration of this Act; or | |
is removed from the panel by the Minister responsible for the administration of this Act on the ground of misconduct, neglect of duty, incompetence or mental or physical incapacity to carry out official duties; or | |
has completed a period of 2 years as a member of the panel since being nominated, or last renominated, as a member of the panel, and is not renominated to the panel. |
(5) A person who ceases to be a member of a panel on retirement or resignation from the Public Service, on resignation under this clause, or on completion of a period of 2 years as a member of the panel, may continue as a member of the panel for the purpose of completing the hearing and determination of proceedings of the Tribunal part-heard at the completion of the period as a member, or at the time of the retirement or resignation.
4. (1) For the purpose of hearing and determining any proceedings, the Tribunal shall be constituted of—
the Presiding Officer or Deputy Presiding Officer of the Tribunal; and | ||||
a member of the panel of nominees of the Commissioner selected by the Presiding Officer for the purpose of those proceedings; and | ||||
a member of the panel of nominees of recognised organisations selected for the purpose of those proceedings— | ||||
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(2) The Presiding Officer, if of the opinion that it is expedient that separate Divisions of the Tribunal should be constituted, may direct that the Tribunal sit in separate Divisions.
(3) A Division of the Tribunal shall be constituted in accordance with subclause (1).
(4) Separate Divisions of the Tribunal may sit contemporaneously to hear separate proceedings.
5. (1) The Presiding Officer or Deputy Presiding Officer of the Tribunal shall preside at the hearing of any proceedings by the Tribunal.
(2) The Presiding Officer or Deputy Presiding Officer of the Disciplinary Appeals Tribunal shall decide any question of law arising in proceedings before that Tribunal but any other decision in which any 2 or more members of the Tribunal concur shall be a decision of the Tribunal.
(3) A decision in which any 2 or more members of the Promotion and Grievance Appeals Tribunal concur shall be a decision of that Tribunal.
6. A member of the Tribunal who is an employee is not subject to direction as an employee in respect of the performance of duties as a member of the Tribunal.
7. There shall be a Secretary to the Tribunal.
8. In proceedings under this Act, the Promotion and Grievance Appeals Tribunal—
shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and | |
is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks fit. |
9. (1) The Presiding Officer or the Secretary to the Tribunal shall give to a party to proceedings before the Tribunal reasonable notice of the time and place at which the Tribunal is to hear those proceedings.
(1a) The Commissioner is to be treated as a party to all proceedings before the Tribunal.
(2) A party shall be afforded a reasonable opportunity to call or give evidence, to examine or cross-examine witnesses, and to make submissions to the Tribunal.
(3) If a party does not attend at the time and place fixed by the notice, the Tribunal may hear the proceedings in the absence of that party.
10. (1) Subject to subclause (2), a person is entitled to appear personally, or by representative, in proceedings before the
Tribunal.
(2) A person is not entitled to be represented by a legal practitioner except in proceedings before the Disciplinary Appeals Tribunal.
11. (1) In the exercise of its powers or functions under this Act, the Tribunal may—
by summons signed on behalf of the Tribunal by a member of the Tribunal, or the Secretary to the Tribunal, require the attendance before the Tribunal of any person; and | |
by summons signed on behalf of the Tribunal by a member of the Tribunal, or the Secretary to the Tribunal, require the production of any document, object or material; and | |
require any person to make an oath or affirmation truly to answer all questions put by the Tribunal, or any person appearing before the Tribunal; and |
63 |
require any person appearing before the Tribunal to answer any relevant questions put by any member of the Tribunal or by any other person appearing before the Tribunal. |
(2) Subject to subclause (3), if any person—
who has been served with a summons to attend before the Tribunal fails without reasonable excuse to attend in obedience to the summons; or | |
who has been served with a summons to produce any document, object or material, fails without reasonable excuse to comply with the summons; or | |
misbehaves before the Tribunal, wilfully insults the Tribunal or any member of the Tribunal, or interrupts the proceedings of the Tribunal; or | |
refuses to be sworn or to affirm, or to answer any relevant question when required to do so by the Tribunal, |
that person shall be guilty of an offence and liable to a penalty not exceeding $2 000.
(3) A person shall not be obliged to answer a question under this clause if the answer to that question would tend to incriminate that person of an offence, or to produce any document, object or material if it or its contents would tend to incriminate that person of an offence.
(4) In the course of any proceedings, the Tribunal may—
receive in evidence any transcript of evidence in proceedings before a court or tribunal and draw any conclusions of fact from the evidence that it considers proper; or | |
adopt any findings, decision or judgment of a court or tribunal that may be relevant to the proceedings. |
12. Any person who appears as a witness in proceedings before the Tribunal shall be entitled to re-imbursement of expenses in accordance with the regulations.
13. At the conclusion of an appeal, the Tribunal shall, at the request of a party to the appeal, furnish that party with a statement of the reasons for the Tribunal’s decision on the appeal.
14. (1) The Presiding Officer of the Tribunal shall, within 3 months after the end of each financial year, report to the Minister responsible for the administration of this Act on the work of the Tribunal during that financial year.
(2) The Minister shall, within 12 sitting days after receipt of a report under this clause, cause copies of the report to be laid before each House of Parliament.
1. (1) Subject to this clause and any direction of the Chief Executive Officer of the relevant administrative unit, an employee is obliged to attend at the employee’s place of employment throughout the hours fixed by the regulations as ordinary business hours in relation to the Public Service.
(2) The Chief Executive Officer of an administrative unit may, at the request and with the consent of an employee occupying a position in the unit, determine that the duties of the position be performed on a part-time basis, and, in that event, the employee is not required to attend at the employee’s place of employment except according to the basis determined by the Chief Executive Officer.
(3) Where an employee performs the duties of a position on a part-time basis pursuant to subclause (2), then,
notwithstanding the other provisions of this Act, the employee’s effective service and the period of the employee’s service
for the purposes of clause 4 shall be determined in accordance with the regulations and any directions of the Commissioner.
(4) An employee is entitled to be absent from the employee’s place of employment if the absence is authorised by or under a flexi-time scheme adopted by the Chief Executive Officer of the relevant administrative unit.
(5) This clause does not apply to an employee whose appointment to the Public Service is on a casual basis.
2. (1) Subject to subclause (2), the following days shall be observed as holidays in the Public Service—
all public holidays; and | |
any other days declared by proclamation to be holidays in the Public Service. |
(2) The Chief Executive Officer of an administrative unit may require employees employed in that administrative unit to attend for duty on a holiday.
3. (1) The Minister responsible for the administration of this Act may direct—
that all or any of the offices of an administrative unit be closed; and | |
that specified classes of employees be not required to work, |
on a specified day or days.
(2) Where an employee is not required to work on a particular day by reason of a direction under subclause (1) then, subject to subclause (3), the employee shall be deemed to have been granted recreation leave on that day or those days.
(3) An employee who is not required to work on a day by reason of a direction under subclause (1) shall if, the employee would, but for subclause (2), have been entitled to sick leave on that day, be granted the sick leave, and, in that event, the employee shall be deemed not to have been granted recreation leave on that day.
4. (1) Subject to this clause and the regulations, an employee is entitled to 1 | days recreation leave for each completed |
month of the employee’s service.
(2) The Commissioner may, in appropriate cases, increase the entitlement to recreation leave of a particular employee or employees of a particular class.
(3) Recreation leave shall be granted by the Chief Executive Officer in accordance with the regulations and any directions of the Commissioner.
65 |
(4) Recreation leave may, in accordance with the regulations and any directions of the Commissioner, be taken in anticipation of the entitlement to that recreation leave accruing to the employee.
(5) Where an employee who is entitled to recreation leave dies or ceases for any reason to be an employee, then the employee, or the employee’s personal representative, as the case may require, shall, unless the Commissioner otherwise directs, be paid a sum calculated in accordance with the directions of the Commissioner as being the monetary value of the leave.
(6) Where—
an employee has taken recreation leave in anticipation of the entitlement to that leave accruing to the employee; and | |
before the entitlement to the leave accrues to the employee, the employee ceases for any reason to be an employee, |
then, unless the Commissioner otherwise directs, a sum equal to the sum paid to the employee in respect of that leave shall
be payable to the Treasurer as a debt by the employee.
(7) This clause does not apply to an employee whose appointment to the Public Service is on a casual basis.
5. (1) An employee is, subject to the regulations, entitled to take sick leave not exceeding the amount of such leave standing to the credit of that employee.
(2) Sick leave shall be credited to an employee as follows:
on the commencement of the employee’s employment, 6 days sick leave shall be credited to the employee; | |
where an employee’s employment commenced after the 30th day of June in any year but before the 1st day of January in the next succeeding year, then on that 1st day of January a further 6 days sick leave shall be credited to the employee; | |
on the 1st day of July next succeeding the commencement of an employee’s employment and on each succeeding 1st day of July, a further 12 days sick leave shall be credited to the employee. |
(3) Notwithstanding the other provisions of this clause—
an employee is not entitled to take— | ||||
| ||||
the sick leave to be credited to an employee shall— | ||||
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be reduced in accordance with the regulations and any directions of the Commissioner;
the Commissioner may, in appropriate cases, increase the entitlement to sick leave of a particular employee or employees of a particular class. |
(4) This clause does not apply to an employee whose appointment to the Public Service is on a casual basis.
6. (1) Special leave with pay may be granted for purposes prescribed by regulation.
(2) The Chief Executive Officer of the administrative unit in which an employee is employed may, subject to the
directions of the Commissioner, grant to the employee special leave with pay—
for a period determined in accordance with regulations and the directions of the Commissioner in relation to the purpose for which special leave is to be taken; or | |
for such other period as may be authorised, in the particular circumstances, by the Minister responsible for the administration of this Act. |
(3) The Chief Executive Officer of the administrative unit in which an employee is employed—
shall, subject to the directions of the Commissioner, grant to the employee special leave without pay for a period determined in accordance with the regulations and the directions of the Commissioner where the employee applies for such leave on the ground— | ||||
| ||||
may, subject to the directions of the Commissioner, grant to the employee special leave without pay for such other reason and such period as appears to the Chief Executive Officer to be reasonable in the particular circumstances. |
(4) The granting of any special leave under this clause shall be on such conditions as the Chief Executive Officer may, subject to the directions of the Commissioner, determine.
(5) The Chief Executive Officer shall, subject to the directions of the Commissioner, determine for what purposes (if any) and to what extent (if any) special leave without pay granted by the Chief Executive Officer shall be counted as service or effective service for the purposes of this Act.
7. (1) An employee who has 10 years or more effective service is entitled to the following long service leave—
ninety days in respect of the first 10 years of effective service; and | |
nine days in respect of each subsequent year of effective service up to and including the 15th year of effective service; and | |
fifteen days in respect of the 16th and each subsequent year of effective service. |
(2) Subclause (1) does not affect an entitlement to long service leave that accrued before the commencement of this
Act.
(3) Every day occurring during a period of long service leave shall (whether it is a working day or not) be regarded as a day of that leave.
(4) Where long service leave has been taken by an employee or a payment in lieu of long service leave has been made to an employee (either before or after the commencement of this Act), the employee’s entitlement to long service leave shall be reduced accordingly.
8. (1) Subject to the regulations, long service leave shall be taken at times and for periods agreed upon by the employee entitled to the leave and the Chief Executive Officer of the administrative unit in which the employee is employed.
(2) Subject to the regulations, the Chief Executive Officer may permit an employee who has not less than 7 years effective service to take
67 |
9. (1) Subject to this clause, the salary to which an employee is entitled during long service leave shall be—
the salary appropriate to the classification level of the employee’s position during that leave; and | |
subject to the regulations, where the employee was employed at a higher classification level (either before or after the commencement of this Act) during part of the employee’s effective service, such additional salary as is determined by the Commissioner. |
(2) Where the effective service of an employee consists in whole or in part of part-time service or service on a casual basis, the salary to which the employee is entitled during long service leave shall be such salary as is determined by the Commissioner by reference to the rate of remuneration applying to the employee’s position during the period of the leave and the extent to which the employee’s effective service was part-time or on a casual basis.
(3) An employee may elect to take long service leave on half salary, and in that event—
the period of leave shall be twice the period to which the employee would otherwise have been entitled; and | |
the first half of the leave shall be on full pay; and | |
the second half of the leave shall be deemed to be leave without pay. |
(4) An employee shall, while on long service leave, be entitled to receive, in addition to salary, such allowances (if any) as may be determined by the Commissioner.
10. (1) Where an employee—
who is entitled to long service leave; or | |
to whom |
dies or ceases for any reason to be an employee, then—
in the case of death—the employee’s personal representative; or | |
in the case of cessation of service for any other reason—the employee, |
shall be paid a sum determined in accordance with this clause.
(2) The sum referred to in subclause (1) shall be—
in the case of an employee who was entitled to long service leave, the salary that would have been payable if the long service leave had commenced on the day of cessation of service; and | ||||
in the case of an employee to whom | ||||
in either case— | ||||
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(3) In determining a sum payable under this clause no allowance shall be made for any increase in salary that may or would have been made if the employee’s service had not ceased.
11. Where a person becomes an employee within 3 months after ceasing to be—
an officer or employee of the Crown in right of this State, the Commonwealth or another State or Territory of the Commonwealth; or | |
an officer or employee of a prescribed class, |
then, for the purpose of determining the person’s entitlement to recreation leave, sick leave or long service leave, the period of the person’s service in that capacity shall, to the extent determined by the Commissioner and subject to such conditions as may be imposed by the Commissioner, be counted as service or effective service for the purposes of this Act.
12. Notwithstanding any other provisions of this schedule, the Commissioner may, if of the opinion that it is appropriate to do so, direct that any sum payable in respect of leave on the death of an employee be paid to such dependant or dependants of the employee as the Commissioner directs and not to the personal representative.
69 |
(
Section 4(1): | definition of "the Remuneration Tribunal" repealed by 18, 1990, s. 8 |
Section 10(1): | amended by 20, 1993, s. 3(a) |
Section 10(2a): | inserted by 20, 1993, s. 3(b) |
Section 21(1): | amended by 20, 1993, s. 4 |
Section 24(1): | amended by 18, 1990, s. 9(a) |
Section 24(2): | repealed by 18, 1990, s. 9(b) |
Section 37(1): | amended by 18, 1990, s. 10; 20, 1993, s. 5(a)-(c) |
Section 37(1a): | inserted by 20, 1993, s. 5(d) |
Section 48(7): | amended by 20, 1993, s. 6(a) |
Section 48(11): | substituted by 20, 1993, s. 6(b) |
Section 48(11a): | inserted by 20, 1993, s. 6(b) |
Section 48(13): | substituted by 20, 1993, s. 6(c) |
Section 50(1): | amended by 20, 1993, s. 7(a) |
Section 50(4): | substituted by 20, 1993, s. 7(b) |
Section 50(4a) - 4(c): | inserted by 20, 1993, s. 7(b) |
Section 51(5): | amended by 20, 1993, s. 8(a) |
Section 51(6): | inserted by 20, 1993, s. 8(b) |
Section 52(3): | substituted by 20, 1993, s. 9 |
Section 52(4) - (6): | inserted by 20, 1993, s. 9 |
Section 53(2): | substituted by 20, 1993, s. 10(a) |
Section 53(2a): | inserted by 20, 1993, s. 10(a) |
Section 53(3): | amended by 20, 1993, s. 10(b) |
Section 53(6): | repealed by 20, 1993, s. 10(c) |
Section 53(7): | amended by 20, 1993, s. 10(d) |
Section 57A: | inserted by 20, 1993, s. 11 |
Section 59(1) - (3): | substituted by 20, 1993, s. 12(a) |
Section 59(4): | repealed by 20, 1993, s. 12(a) |
Section 60: | substituted by 20, 1993, s. 13 |
Section 60A and heading: | inserted by 20, 1993, s. 14 |
amended by 20, 1993, s. 15; | |
Section 68(5): | amended by 20, 1993, s. 16(a), (b) |
Section 68(6a): | inserted by 20, 1993, s. 16(c) |
Section 69(1): | substituted by 20, 1993, s. 17(a) |
Section 69(1a): | inserted by 20, 1993, s. 17(a) |
Section 69(2): | amended by 20, 1993, s. 17(b) |
Section 69(4): | amended by 20, 1993, s. 17(c) |
Section 69(5): | amended by 20, 1993, s. 17(d) |
Section 69(6) - (8): | inserted by 20, 1993, s. 17(e) |
Heading preceding | |
section 73: | substituted by 20, 1993, s. 18 |
Section 73A: | inserted by 20, 1993, s. 19 |
Sections 74A and 74B: | inserted by 20, 1993, s. 20 |
Section 75(2): | substituted by 20, 1993, s. 21 |
Section 75(3) and (4): | inserted by 20, 1993, s. 21 |
Schedule 1 | |
Clause 6 and heading: | inserted by 20, 1993, s. 22 |
Schedule 2 | |
Subclause (1): | amended by 18, 1990, s. 11(a); 20, 1993, s. 23 |
Subclause (1)(g): | repealed by 18, 1990, s. 11(a) |
Subclause (1) |
and (m): | repealed by 20, 1993, s. 23 |
Schedule 3
Clause 2(9): | inserted by 20, 1993, s. 24(a) |
Clause 3(5): | inserted by 20, 1993, s. 24(b) |
Clause 9(1a): | inserted by 20, 1993, s. 24(c) |
Schedule 4 | |
Clause 1(5): | inserted by 20, 1993, s. 25(a) |
Clause 4(1): | amended by 20, 1993, s. 25(b) |
Clause 4(7): | inserted by 20, 1993, s. 25(c) |
Clause 5(3): | amended by 20, 1993, s. 25(d) |
Clause 5(4): | inserted by 20, 1993, s. 25(e) |
Clause 9(2): | amended by 20, 1993, s. 25(f), (g) |
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