Public Sector Employment and Management Act 2002 (NSW)
An Act relating to public sector employment and management; to repeal the Public Sector Management Act 1988; to amend the Government and Related Employees Appeal Tribunal Act 1980 and other Acts and regulations; and for other purposes.
This Act is the Public Sector Employment and Management Act 2002.
This Act commences on a day or days to be appointed by proclamation.
In this Act:
(a) where the expression is used in connection with a Division of the Government Service—the Head of the Division, or
(b) where the expression is used in connection with a member of the staff of a Division of the Government Service—the Head of the Division to which the member of staff belongs.
In the case of a Division that is designated as a Department of the Public Service (see section 6), the term
(a) (subject to paragraph (b)) the person who is the chief executive officer, or who exercises the functions of chief executive officer, of the agency, or
(b) the person prescribed by the regulations.
A
(a) the Government Service,
(b) the Teaching Service,
(c) the NSW Police Force,
(d) the NSW Health Service,
(d1) the Transport Service,
(e) the service of either House of Parliament, or the President or Speaker, or the President and the Speaker jointly,
(f) any other service of the Crown (including the service of any NSW Government agency),
(g) the service of any other person or body constituted by or under an Act or exercising public functions (such as a State owned corporation), being a person or body that is prescribed, or that is of a class prescribed, for the purposes of this definition.
The Public Service comprises the Divisions of the Government Service specified in Part 1 of Schedule 1.
Notes included in this Act do not form part of this Act.
This Part:
(a) recognises the role of the public sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day, and
(b) establishes an ethical framework for a merit-based, apolitical and professional public sector that implements the decisions of the Government of the day.
The core values for the public sector and the principles that guide their implementation are as follows:
• Integrity (a) Consider people equally without prejudice or favour.
(b) Act professionally with honesty, consistency and impartiality.
(c) Take responsibility for situations, showing leadership and courage.
(d) Place the public interest over personal interest.
• Trust (a) Appreciate difference and welcome learning from others.
(b) Build relationships based on mutual respect.
(c) Uphold the law, institutions of government and democratic principles.
(d) Communicate intentions clearly and invite teamwork and collaboration.
(e) Provide apolitical and non-partisan advice.
• Service (a) Provide services fairly with a focus on customer needs.
(b) Be flexible, innovative and reliable in service delivery.
(c) Engage with the not-for-profit and business sectors to develop and implement service solutions.
(d) Focus on quality while maximising service delivery.
• Accountability (a) Recruit and promote staff on merit.
(b) Take responsibility for decisions and actions.
(c) Provide transparency to enable public scrutiny.
(d) Observe standards for safety.
(e) Be fiscally responsible and focus on efficient, effective and prudent use of resources.
The Public Service Commissioner has the function of promoting and maintaining the public sector core values.
There is no hierarchy among the core values and each is of equal importance.
Nothing in this Part gives rise to, or can be taken into account in, any civil cause of action.
For the purposes of this Part, the
The Governor may appoint a Public Service Commissioner.
A person may only be appointed as Commissioner if the Advisory Board has recommended to the Premier that the person be appointed as the Commissioner.
The Governor may remove the Commissioner from office for incapacity, incompetence or misbehaviour.
The Commissioner may only be removed from office:
(a) following an independent review of the performance or conduct of the Commissioner, and
(b) if the Advisory Board has recommended to the Premier that the Commissioner be removed from office.
Any such independent review may be initiated:
(a) by the Advisory Board at the request of the Premier, or
(b) by the Premier.
An independent review of the performance or conduct of the Commissioner is not required under this section before the Commissioner can be removed from office if the performance or conduct giving rise to the Advisory Board’s recommendation for removal has been the subject of:
(a) an inquiry and report by the Independent Commission Against Corruption, a Special Commission of Inquiry or other body constituted by a judicial officer, or
(b) a finding by a court.
The Premier is, if the Commissioner is removed from office, to cause the reasons for the removal to be tabled in both Houses of Parliament.
The Commissioner must not be present during any deliberation of the Advisory Board on any matter that relates to the making of a recommendation under this section.
Schedule 2A contains ancillary provisions relating to the Commissioner, including term of office.
The principal objectives of the Commissioner are as follows:
(a) to promote and maintain the highest levels of integrity, impartiality, accountability and leadership across the public sector,
(b) to improve the capability of the public sector to provide strategic and innovative policy advice, implement the decisions of the Government and meet public expectations,
(c) to attract and retain a high calibre professional public sector workforce,
(d) to ensure that public sector recruitment and selection processes comply with the merit principle and adhere to professional standards,
(e) to foster a public service culture in which customer service, initiative, individual responsibility and the achievement of results are strongly valued,
(f) to build public confidence in the public sector,
(g) to support the Government in achieving positive budget outcomes through strengthening the capability of the public sector workforce.
For the purposes of this Part, the
The Commissioner has the following functions:
(a) to identify reform opportunities for the public sector workforce and to advise the Government on policy innovations and strategy in those areas of reform,
(b) to lead the strategic development and management of the public sector workforce in relation to the following:
(i) workforce planning, including identifying risks and strategies to minimise risks,
(ii) recruitment, particularly compliance with the requirements relating to appointment and promotion on merit,
(iii) performance management and recognition,
(iv) equity and diversity, including strategies to ensure the public sector reflects the diversity of the wider community,
(v) general conduct and compliance with ethical practices,
(vi) learning and development,
(vii) succession planning,
(viii) redeployment, including excess employees,
(ix) staff mobility,
(x) executive staffing arrangements,
(c) to advise the Government on leadership structure for the public sector,
(d) to advise the Government on appropriate strategies, policies and practices in relation to the structure of the public sector workforce,
(e) to advise the Government on appropriate strategies, policies and practices in relation to such other public sector matters as the Minister may direct from time to time, and to monitor, co-ordinate and assist the implementation of Government strategies, policies and practices in such other areas as the Minister may direct from time to time,
(f) to develop and advise the Government on service delivery strategies and models for the public sector through collaboration with the private business sector, the not-for-profit sector and the wider community,
(g) to set standards, subject to any legislative requirements, for the selection of persons for appointment as members of boards or committees of public authorities (including Government business enterprises).
The Commissioner has and may exercise such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.
The other functions of the Commissioner include promoting and maintaining the public sector core values (see section 3C) and functions relating to EEO under Part 9A of the Anti-Discrimination Act 1977. The Commissioner may also issue guidelines under sections 9 (3) (b), 28 (2), 33 (3A), 38 (1), 44, 86 (9), 86A (11), 88, 88A, 89, 98 (6), 100 (4) (c) and 101A.
The Commissioner is to exercise his or her functions in accordance with the general policies and strategic directions determined by the Advisory Board.
The Commissioner is to report to the Premier in connection with the exercise of the Commissioner’s functions but is not subject to the control and direction of the Premier in the exercise of those functions.
This section does not limit any other provisions of this Act relating to the exercise of the functions of the Premier or the Commissioner.
The Commissioner is, as soon as practicable after 30 June in each year, to prepare and forward to the Premier:
(a) a report on the Commissioner’s work and activities for the 12 months ending on that 30 June, and
(b) a report on the state of the public sector in relation to the period of 12 months ending on that 30 June.
The report on the state of the public sector is to include the following:
(a) an assessment of the performance of the whole of the public sector, including notable achievements, challenges and priorities,
(b) an analysis of public sector workforce data.
The Premier is to table any report under this section, or cause it to be tabled, in both Houses of Parliament as soon as practicable after it is received by the Premier.
The Commissioner may require the head of a public sector agency to provide the Commissioner with a report on such matters relating to the staff of the agency, or to the personnel policies and practices of the agency, as the Commissioner requires.
In particular, the Commissioner may require inclusion in the report of information of a kind specified by the Commissioner as to:
(a) the personnel policies and practices concerning the recruitment, selection, appointment, transfer, promotion or discipline of the staff of the public sector agency and the means by which the job satisfaction and opportunities for personal development of the staff are promoted, and
(b) the application of any such policies and practices to different groups of members of the staff.
The Commissioner may also require the head of a public sector agency to provide the Commissioner with information collected or held by the agency in dealing with matters relating to public sector staff.
The head of the public sector agency concerned must comply with a requirement under this section within such time and in such manner as the Commissioner directs.
Any law relating to the protection of personal information (within the meaning of the Privacy and Personal Information Protection Act 1998) does not operate to prevent the furnishing of information, or affect a duty to furnish information, under this section.
In this section,
The Commissioner may, for the purposes of exercising his or her functions, give a direction in writing to the head of a public sector agency in relation to the staff of that agency.
Before giving a direction the Commissioner is to consult the head of the public sector agency to whom the direction is to be given and such other persons affected by the direction as the Commissioner considers appropriate.
The head of the public sector agency to whom a direction under this section is given must comply with the direction.
A direction under this section:
(a) must not be inconsistent with this Act or the principal objectives of the Commissioner referred to in section 3E, and
(b) must be made publicly available by the Commissioner as soon as practicable after it is given.
The Commissioner or a person authorised by the Commissioner may conduct an inquiry into any matter relating to the administration or management of a public sector agency.
This section does not affect the operation of section 159.
The Commissioner or a person authorised by the Commissioner may, for the purposes of enabling the Commissioner to exercise the Commissioner’s functions or in connection with the conduct of an inquiry under section 3K:
(a) enter and inspect the premises of a public sector agency, and
(b) require the production of, and take copies of, any documents in the custody of a member of staff of the public sector agency, and
(c) for the purposes of further examination, take possession of, and remove, any of those documents, and
(d) require a member of staff of the public sector agency to answer questions, and
(e) require a member of staff of the public sector agency to provide such assistance and facilities as is or are necessary to enable the Commissioner or authorised person to exercise his or her functions.
A reference in this section to a member of staff of a public sector agency includes a reference to any person who is engaged by the agency (whether directly or indirectly) under a contract for services.
The Commissioner may delegate the exercise of any function of the Commissioner (other than this power of delegation) to:
(a) the head of any public sector agency or a member of staff of any public sector agency, or
(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
The staff of the Commissioner are to be employed under Chapter 1A.
An approval or direction given by the Commissioner under this Act may be given so as to apply to a particular case, or to all cases within a class of cases or generally.
The Commissioner is, to the extent that it is reasonable and practicable to do so, remove any personal information from any report or other document prepared by the Commissioner under this Part that is, or is to be, publicly available.
In this section:
There is to be a Public Service Commission Advisory Board.
The Advisory Board is to consist of the following members:
(a) a person appointed by the Premier as the Chairperson of the Advisory Board,
(b) 4 other persons appointed by the Premier,
(c) the Commissioner or a senior member of staff of the Commissioner nominated by the Commissioner,
(d) the Director-General of the Department of Premier and Cabinet or a member of staff of that Department nominated by the Director-General.
The members appointed by the Premier are to be persons who together have expertise in human resources management, probity and accountability, strategic planning, budget and performance management and service delivery in the public, private, tertiary and not-for-profit sectors.
Schedule 2B contains ancillary provisions relating to the members and procedure of the Advisory Board.
The Advisory Board has the following functions:
(a) to determine general policies and strategic directions in relation to the functions of the Commissioner,
(b) to provide the Premier, either at the request of the Premier or on its own initiative, with advice on any matter relating to the management and performance of the public sector.
The Advisory Board has such other functions as are conferred or imposed on it by or under this or any other Act.
(Renumbered as section 158A)
(Renumbered as section 158A)The Government Service of New South Wales consists of those persons who are employed under this Chapter by the Government of New South Wales in the service of the Crown.
This Chapter does not affect any other means (statutory or otherwise) by which a person may be employed in the service of the Crown.
Other ways in which persons are employed in the service of the Crown include employment in the Teaching Service, the NSW Health Service or the NSW Police Force.
The Government of New South Wales may, subject to subsection (2), employ staff in any Division of the Government Service.
The employment of staff in the Government Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff.
For example, Chapter 2 regulates the employment of staff in Divisions comprising the Public Service.
Without limiting the purposes for which staff may be employed in the Government Service, staff may be employed by the Government of New South Wales under this Chapter in a Division to enable a statutory corporation to exercise its functions.
The Divisions of the Government Service are the Divisions specified in Schedule 1.
A Division is the group of staff with the name specified in Schedule 1.
Some Divisions are designated as Departments of the Public Service (see Part 1 of Schedule 1).
The employment of staff in a Division specified in Part 3 of Schedule 1 is subject to such limitations (if any) as may be specified in Column 1 of that Part in relation to the Division.
See Chapter 4 for other provisions relating to Divisions.
The person holding the position or office specified in Column 2 of Schedule 1 opposite the name of a Division of the Government Service is, for the purposes of this or any other Act, the Division Head in relation to the Division concerned.
In the case of most of the Divisions of the Government Service that are designated as Departments, the Department Head positions are created by this Act—see section 10.
A Division Head may, subject to section 4B (2), exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the members of staff of the Division.
Section 129 provides that the Director-General of the Department of Premier and Cabinet is taken to be the employer of the staff of the Public Service in any industrial proceedings.
A Division Head may establish or abolish, or change the name of, any branch or other part of the Division.
The Government of New South Wales may fix the salary, wages and conditions of employment of staff employed under this Chapter in so far as they are not fixed by or under any other law.
The Minister or the Treasurer may give directions to a statutory corporation requiring the payment by the statutory corporation, on behalf of the Government of New South Wales, of the salary, wages and other employment-related costs (such as superannuation, workers compensation, public liability insurance and vicarious tortious liability) in respect of those members of the Government Service who are employed under this Chapter to enable the statutory corporation to exercise its functions.
If a fund is established under any Act in connection with a statutory corporation and the provisions of that Act authorise the payment of amounts from the fund in connection with the employment of staff, the statutory corporation is authorised to apply the fund for the purposes of any payment required to be made by the corporation pursuant to a direction under subsection (2).
The Division Head of a Division may delegate to any member of staff of that or any other Division of the Government Service:
(a) any of the Division Head’s functions under this Act (other than this power of delegation), and
(b) any employment-related functions under any other Act that the Division Head exercises on behalf of the Government of New South Wales in relation to the staff in that Division.
If:
(a) a function of a Division Head is delegated to a member of staff in accordance with subsection (1), and
(b) the instrument of delegation authorises the sub-delegation of the function,
then, subject to any conditions to which the delegation is subject, the person may sub-delegate the function to another member of staff of that or any other Division of the Government Service.
In this section:
(a) a reference to the functions of a Division Head includes a reference to any functions delegated to the Division Head under this Act, and
(b) a reference to a member of staff of a Division includes a reference to a person holding an appointment to or in a body or organisation in respect of which a Division of the Government Service is established to enable the body or organisation to exercise its functions.
In this section,
Regulations with respect to the Public Service may be made under section 62.
The regulations may make provision for or with respect to the employment of staff in a Division, including the conditions of employment and the discipline of any such staff.
Any such regulations relating to the conditions of employment or the discipline of staff employed in a Division:
(a) have effect subject to any State industrial instrument relating to that staff, and
(b) have effect despite any determination under section 4E (1), and
(c) are subject to Part 3.1 of this Act.
Any regulation that is made under another Act and that relates to the conditions of employment or the discipline of staff in a Division prevails, to the extent of any inconsistency, over any regulation made under this section.
(Repealed)
Part 5 of the Workers Compensation Act 1987 applies to work injury damages recoverable from the Government of New South Wales, and to work injury damages recoverable from a statutory corporation, by or in respect of a person employed in a Division of the Government Service to enable the statutory corporation to exercise its functions. That Part so applies as if:
(a) the statutory corporation were an employer of the person in addition to the Government, and
(b) the statutory corporation were an employer liable to pay compensation under that Act.
A policy of insurance may be issued to the Government of New South Wales under the Workers Compensation Act 1987 that is limited to workers employed in a particular Division of the Government Service.
A licence under Division 5 (Self-insurers) of Part 7 of the Workers Compensation Act 1987 that is limited to workers employed in a particular Division of the Government Service may be granted to the Government of New South Wales.
If:
(a) a person is employed in a Division of the Government Service to enable a statutory corporation to exercise its functions, and
(b) the Government of New South Wales is, as the person’s employer, proceeded against for any negligence or other tort of the person (whether the damages are recoverable in an action for tort or breach of contract or in any other action), and
(c) the statutory corporation is entitled under a policy of insurance or indemnity to be indemnified in respect of liability that the corporation may incur in respect of that negligence or other tort,
the Government is subrogated to the rights of the statutory corporation under that policy in respect of the liability incurred by the Government arising from that negligence or other tort.
For the purposes of Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996:
(a) if a person who is employed in a Division of the Government Service (other than a Department) is appointed (otherwise than on an acting basis) to another position in a different Division of the Government Service, the person is taken to have entered into a new contract of employment in respect of that other position, and
(b) the cessation of a person’s appointment (whether by way of dismissal, resignation, transfer or otherwise) to a position in the Government Service is taken to terminate the person’s contract of employment in respect of that position.
However, a person who holds an appointment to a position that is abolished does not, for the purposes of subsection (5) (b), cease to be appointed to that position until:
(a) such time as the person is appointed to another position in the Government Service, or
(b) such time as the person’s employment in the Government Service is terminated,
whichever occurs first.
In this section:
Any Division of the Government Service in which staff are employed by the Government of New South Wales under this Chapter to enable a statutory corporation to exercise its functions is, for the purposes of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002, taken to be part of the statutory corporation.
In any other Act, or in any instrument made under any Act or in any other instrument of any kind (whether enacted, made or executed before or after the commencement of this section):
(a) a reference to a member of staff (however described) of a statutory corporation (including as an officer or employee of the corporation concerned) is to be read as including a reference:
(i) to a member of staff of a Division of the Government Service comprising the group of staff who are employed under this Chapter to enable the statutory corporation to exercise its functions, and
(ii) to any other person whose services the statutory corporation makes use of (whether by way of secondment or otherwise), and
(b) a reference to a position in a statutory corporation is to be read as including a reference to the same position in the Division of the Government Service comprising the group of staff who are employed under this Chapter to enable the statutory corporation to exercise its functions, and
(c) a reference to a statutory corporation in its capacity as an employer of staff (however described) is, to the extent that the staff concerned comprise a group of staff employed under this Chapter to enable the statutory corporation to exercise its functions, to be read as including a reference to the Government of New South Wales or, as the case requires, to the Division Head of the Division of the Government Service in which the staff are employed, and
(d) a reference to the employment of a person under Chapter 2 of this Act is taken to include a reference to the employment of the person under Chapter 1A of this Act.
This section is subject to the regulations.
In this Chapter:
The Divisions of the Government Service specified in Part 1 of Schedule 1 comprise the Public Service of New South Wales.
Any such Division may be referred to as a
If a branch of any such Division is specified in Part 3 of Schedule 1, that branch is not part of the Public Service of New South Wales.
Staff may be employed in a Department in the following categories:
(a) officers—being persons employed in chief or senior executive positions or other staff positions in the Department,
(b) temporary employees—being persons employed to carry out work in the Department on a temporary basis,
(c) casual employees—being persons employed in the Department on a casual basis.
Temporary employees may be employed in following subcategories:
(a) Departmental temporary employees—being persons employed under Part 2.4 to carry out work in a Department,
(b) special temporary employees—being persons employed under Part 2.5 to carry out work for a political office holder.
The usual basis for the employment of staff in a Department is to be the employment of officers.
Subsection (3) does not apply to the employment of staff for the purpose of carrying out work for a political office holder.
The Treasurer may, after obtaining a report from the appropriate Department Head on the matter, determine from time to time the maximum number of staff to be employed in a Department (being the number which the Treasurer considers necessary for the effective, efficient and economical management of the functions and activities of the Department).
The number of staff employed in a Department is not to exceed the maximum number so determined in respect of the Department.
The staff positions in a Department consist of:
(a) the position of the appropriate Department Head (except where the position is created otherwise than under section 10), and
(b) such other positions as the appropriate Department Head from time to time determines in accordance with this Act.
A Department Head may create, abolish or otherwise deal with any staff position in the Department, other than his or her own position.
A Department Head must classify and grade each position created under subsection (2), but may only do so:
(a) in the case of a senior executive position—with the approval of the Minister, or
(b) in any other case—in accordance with such guidelines as may be issued from time to time by the Commissioner.
A person does not cease to be an officer merely because the staff position held by the person is abolished.
Temporary employees and casual employees are members of staff of, but do not hold positions in, a Department.
Each position specified in Column 2 of Part 1 of Schedule 1 is taken to be created by virtue of this section unless it is created by another provision of this Act or by any other Act.
If the title or other description of a position created by virtue of this section is omitted from Column 2 of Part 1 of Schedule 1 (or any such title or other description is amended by an amendment of this Act), the position is taken to be abolished (or correspondingly amended) by virtue of this Act.
(Repealed)
Appointments to vacant Department Head positions in the Public Service are to be made by the Minister.
The employment of a Department Head is subject to Part 3.1.
The Minister may appoint an officer of the Public Service to act in a Department Head position in the Public Service that is vacant or the holder of which is suspended, sick or absent.
An officer, while acting in a Department Head position, has all the functions of the holder of the position. However, a person who is not a chief executive officer does not become a chief executive officer for the purposes of Part 3.1 when acting in a Department Head position.
The Minister may, at any time, terminate the appointment of an officer to act in a Department Head position.
A Department Head is responsible to the Minister responsible for the Department for the general conduct and the effective, efficient and economical management of the functions and activities of the Department.
For the purpose of exercising that responsibility, a Department Head may take such action as the Department Head considers appropriate in the circumstances, but may not take action that is inconsistent with the functions specified in this Act of the Minister administering this Act or the Commissioner.
A Department Head is responsible for the equitable management of staff of the Department.
(Repealed)
This Part applies to and in respect of appointments to positions in the Public Service, but does not apply to or in respect of appointments to chief executive positions.
Appointments to vacant positions in a Department are to be made by the appropriate Department Head.
It does not matter:
(a) whether the person appointed is or is not already an officer of the Public Service, or
(b) that the person appointed has previously retired or been removed from the Public Service.
The employment of a senior executive officer in the Public Service is subject to Part 3.1.
Subsection (1) is subject to any express provision to the contrary in this or any other Act.
If it is proposed to make an appointment under this Part to a vacant position in a Department, the Department Head must advertise the vacancy on the NSW Government’s recruitment website and in such publication (if any) as the Department Head determines.
The Department Head need not advertise a vacant position if the Commissioner so approves.
A Department Head is, for the purpose of determining the merit of the persons eligible for appointment to a vacant position under this section, to have regard to:
(a) the nature of the duties of the position, and
(b) the qualifications, experience, standard of work performance and capabilities of those persons that are relevant to the performance of those duties.
In deciding to appoint a person to a vacant position that has been advertised in accordance with this Part:
(a) the appropriate Department Head may only select a person who has duly applied for appointment to the vacant position, and
(b) the appropriate Department Head must, from among the applicants eligible for appointment to the vacant position, select the applicant who has, in the opinion of the Department Head, the greatest merit.
In deciding to appoint a person to a vacant position in a Department that has not been advertised in accordance with this Part:
(a) the appropriate Department Head may only select a qualified member of staff of the Department, and
(b) the appropriate Department Head must, from among those qualified members of staff, select the member of staff who has, in the opinion of the Department Head, the greatest merit.
For the purposes of subsection (3), a
(a) an officer employed in the Department, or
(b) a Departmental temporary employee who is employed in the Department and whose employment as such an employee in that or any other Department falls within a continuous period of at least 2 years, or
(c) a person who is employed in a Division of the Government Service specified in Part 3 of Schedule 1 (a
Special Employment Division ) that is associated with the Department, other than any such person who is employed on a casual basis or, if employed on a temporary basis, has not been employed in the Special Employment Division for a continuous period of at least 2 years.
For the purposes of subsection (3A) (c), a Special Employment Division is taken to be
Despite anything to the contrary in this section, the appropriate Department Head may decide to appoint a person (whether or not a qualified member of staff of the Department within the meaning of subsection (3A)) to a vacant position that has not been advertised if:
(a) the person has, in accordance with the regulations, passed a competitive examination prescribed for appointment to vacant positions of the class to which that vacant position belongs, or
(b) the person is qualified for appointment in accordance with procedures prescribed by the regulations for entry to positions in the Public Service in special cases.
In the case of a vacant senior executive position, a Department for the purposes of the application of subsection (3) includes all senior executive positions in the Public Service or the Teaching Service and all notional executive positions referred to in section 77 (3) (c) in the Public Service or the Teaching Service.
When a vacant position is advertised in accordance with this Part, the appropriate Department Head may, in connection with a determination of the merit of the persons eligible for appointment to the position, create an eligibility list for the position.
An eligibility list for a position is a list of eligible applicants (namely the persons who duly applied for appointment to the position and who are eligible for appointment but not selected for appointment) arranged in order of merit (with merit determined by the appropriate Department Head in accordance with section 19 (1)).
An eligibility list for a position remains current for 12 months after the list was created.
An eligibility list need not comprise all the eligible applicants so long as the list contains the applicant or applicants of greatest merit.
An eligibility list is applicable not only to the position in relation to which it was created (
(a) to any other position in the Department that the appropriate Department Head determines the list should be applicable to on the basis that the other position is substantially the same as the relevant position, and
(b) to any other position in another Department that the Department Head for that Department determines the list should be applicable to on the basis that the other position is substantially the same as the relevant position.
Any such determination by the Department Head may be made at any time during the currency of the eligibility list.
In deciding to appoint a person to a vacant position that has not been advertised in accordance with this Part, the appropriate Department Head may, despite section 19 (3), select from among the persons who are on an eligibility list that is current and applicable to the position (and who are available for appointment) the person with the greatest merit according to the order of merit in the eligibility list.
(Repealed)
This section applies where a person selected for appointment to a position is an officer and some other officer has a right of appeal to the Industrial Relations Commission against the appointment.
The appointment must not be made (except by way of acting appointment under this Act):
(a) until the expiration of the time for lodging a notice of such an appeal under the Industrial Relations Act 1996 against the Department Head’s decision to make the appointment, or
(b) if such a notice of appeal is lodged within that time, until the Industrial Relations Commission has determined the appeal or the appeal is withdrawn.
See section 93 of the Industrial Relations Act 1996 which requires the appropriate Department Head to cause notice of the proposed appointment to be published and distributed to employees.
(Repealed)
The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996 (other than Part 7 of Chapter 2 of that Act).
Subsection (1) applies whether or not any person has been appointed to the vacant position.
No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position in the Public Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.
Subsection (3) does not affect the operation of Part 7 of Chapter 2 of the Industrial Relations Act 1996.
Nothing in this section prevents any of the following proceedings being brought by a member of staff of a Department in relation to the appointment of another member of staff of any Department to a position in the Public Service:
(a) proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation to a complaint under that Part,
(b) proceedings under section 213 of the Industrial Relations Act 1996 to enforce the provisions of section 210 (Freedom from victimisation) of that Act.
Subject to this Act, every person admitted to the Public Service as an officer must, in the first instance, be appointed to a position on probation for a period of 6 months or such longer period as the appropriate Department Head directs.
A period of probation may be extended for such further period as the appropriate Department Head directs. Any such direction may be made at any time before the person’s appointment is confirmed or annulled under this section.
A person may be appointed to a position in the Public Service without being required to serve such a period of probation if the person has previously been an officer or the Department Head thinks it appropriate in the particular case.
The period for which a person is appointed on probation may not exceed 2 years without the approval of the Commissioner.
If a person is appointed to a position on probation, the appropriate Department Head may:
(a) after the period of probation—confirm the appointment, or
(b) during or after the period of probation—annul the appointment.
If a person’s appointment is so annulled, the person ceases to be an officer, unless appointed to another position as an officer.
Part 2.7 does not prevent a Department Head from exercising at any time the power to annul an appointment under this section.
This section does not apply to a chief or senior executive position.
The appropriate Department Head may appoint to act in a position in the Department that is vacant or the holder of which is suspended, sick or absent:
(a) a member of staff the Department, or
(b) a member of staff of another Department.
A person, while acting in a position under this section, has all the functions of the holder of the position. However, a person who is not a senior executive officer does not become a senior executive officer for the purposes of Part 3.1 when acting in a senior executive position.
The appropriate Department Head may, at any time, terminate the appointment of a person to act in a position under this section.
This section does not prevent the payment of an allowance to a member of staff of a Department for exercising all or any of the functions of a position if a person is not appointed to act in the position under this section.
If:
(a) an officer is found to be unfit to discharge or incapable of discharging the duties of the officer’s position, and
(b) the officer’s unfitness or incapacity:
(i) appears likely to be of a permanent nature, and
(ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer’s control,
the appropriate Department Head may cause the officer to be retired.
An officer’s position becomes vacant if the officer:
(a) dies, or
(b) is removed from the position, or retires or is retired from the position, under this or any other Act, or
(c) resigns the position in writing addressed and delivered to the appropriate Department Head and that Department Head accepts the resignation, or
(d) abandons his or her employment in the Public Service.
This section does not affect any other provision by or under which an officer’s position becomes vacant.
This section does not apply to officers holding chief or senior executive positions.
Section 76 makes provision for the vacation of chief or senior executive positions.
The appropriate Department Head may employ a person who has appropriate qualifications to carry out work in the Department for a particular period.
Persons employed under this Part are
A person may be employed as a Departmental temporary employee:
(a) for the duration of a specified task or project, or
(b) to carry out the duties of a position that is temporarily vacant, or
(c) to provide additional assistance in a particular work area, or
(d) in connection with the secondment or exchange of staff, or
(e) to undertake a traineeship or cadetship, or
(f) for any other temporary purpose.
The employment of persons under this Part is subject to:
(a) section 7 (3), and
(b) any other provision of this Act or the regulations concerning the employment of Departmental temporary employees.
The maximum period for which a Departmental temporary employee may be employed under this Part at any one time is 3 years.
The re-employment of a Departmental temporary employee is to be in accordance with such guidelines as are issued by the Commissioner from time to time.
In this section, the
A Departmental temporary employee may only be employed for a period exceeding 12 months at any one time if the employee is selected on merit.
The Commissioner may exempt the employment of a person from subsection (2) if the Commissioner determines that the special circumstances of the case justify the exemption.
The appropriate Department Head may dispense with the services of a Departmental temporary employee at any time.
For the purposes of this section, a
A long-term employee may, with the approval of the Commissioner, be appointed to an officer’s position (other than a senior executive position) in a Department if the appropriate Department Head has made a recommendation in accordance with this section for the appointment of the employee to the position.
A recommendation for the appointment of a long-term employee to an officer’s position may be made only if each of the following requirements is satisfied:
(a) the employee must, at some stage of the temporary employment, have been selected to perform duties at a grade that is the same as (or similar to) the grade of the position concerned (whether or not the duties of the position are substantially the same as the duties performed during the temporary employment),
(a1) the employee was performing duties at that grade following some form of open competition that involved the selection of the employee as the person who, in the opinion of the Department Head, had the greatest merit among the candidates concerned,
(b) the rate of salary or wages proposed to be payable to the holder of the position concerned at the time of appointment must not exceed the maximum rate payable for Grade 12, Administrative and Clerical Division, of the Public Service,
(c) the appropriate Department Head must be satisfied that ongoing work is available in respect of the employee in the Department,
(d) the appropriate Department Head must be satisfied that the employee has the qualifications, experience, standard of work performance and capabilities to enable the employee to perform the duties of the position concerned,
(e) (Repealed)
An appointment under this section is not an appointment to which section 19 applies.
Section 23 does not apply to an appointment under this section unless the Department Head otherwise directs in a particular case.
In this Part:
(a) a Minister, or
(b) a Parliamentary Secretary, or
(c) the Leader of the Opposition in the Legislative Assembly.
The Director-General of the Department of Premier and Cabinet may, if of the opinion that it is necessary to do so, employ a person who has appropriate qualifications to carry out work for a political office holder.
Persons employed under this Part are
The employment of persons under this Part is subject to any provisions of this Act or the regulations concerning the employment of special temporary employees.
Without limiting subsection (3), the employment of special temporary employees is to be in accordance with such guidelines as are issued by the Commissioner from time to time.
The instrument of employment of a special temporary employee must specify the name of the political office holder concerned.
This section does not prevent the appointment or employment of staff to or in an office of a political office holder in any other manner.
A person may be employed as a special temporary employee for an indefinite term or for a term specified in the instrument of employment.
However, the employment of a special temporary employee terminates:
(a) if the political office holder concerned dies, or
(b) if the political office holder concerned ceases to hold the office by reason of which he or she was a political office holder (even if he or she immediately or subsequently becomes a political office holder after ceasing to hold that office), or
(c) on the day appointed for the taking of the poll for the next general election, or
(d) if the employee resigns by letter addressed to the Director-General of the Department of Premier and Cabinet, or
(e) if the services of the employee are dispensed with.
The Director-General of the Department of Premier and Cabinet may direct in a particular case that the employment of a special temporary employee that would otherwise terminate because of the operation of subsection (2) (a), (b) or (c) does not terminate.
The Director-General of the Department of Premier and Cabinet may dispense with the services of a special temporary employee at any time.
In this section, a reference to the employment of a special temporary employee is a reference to:
(a) the employment of, or failure to employ, a person as a special temporary employee, or
(b) dispensing with the services of, or other termination of the employment of, a special temporary employee, or
(c) any disciplinary proceedings or disciplinary action taken against a special temporary employee, or
(d) the remuneration or conditions of employment of a special temporary employee.
The employment of a special temporary employee, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996. This subsection applies whether or not any person has been appointed to a vacant position of special temporary employee.
Part 6 (Unfair dismissals), Part 7 (Public sector promotion and disciplinary appeals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of a special temporary employee.
Any State industrial instrument (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of special temporary employees.
Subsection (4) does not prevent the regulations or other statutory instruments under this Act from applying the provisions of a State industrial instrument to the employment of a special temporary employee.
This section does not affect the operation of any determination under section 130 or agreement under section 131, in its application to special temporary employees.
(Repealed)
No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the employment of or failure to employ a person as a special temporary employee, the entitlement or non-entitlement of a person to be so employed or the validity or invalidity of any such employment.
The Director-General of the Department of Premier and Cabinet may delegate any function of the Director-General under this Part (other than this power of delegation) to any other Department Head.
The power of delegation conferred by this section is in addition to and does not limit the power conferred by section 4F.
All special temporary employees are taken to constitute a branch of the Department of Premier and Cabinet, except any who are employed by a Department Head as delegate of the Director-General of the Department of Premier and Cabinet.
Special temporary employees employed by a Department Head as delegate of the Director-General of the Department of Premier and Cabinet are taken to constitute a branch of the Department concerned.
Accordingly, the Director-General of the Department of Premier and Cabinet has the functions of Department Head in relation to those special temporary employees who constitute a branch of the Department of Premier and Cabinet, and the relevant Department Head has the functions of Department Head in relation to those special temporary employees who constitute a branch of the Department concerned.
The appropriate Department Head may, in accordance with such guidelines as are issued from time to time by the Commissioner, employ persons to carry out work in the Department on a casual basis.
Persons employed under this Part are
A person may be employed as a casual employee:
(a) to carry out work that is irregular or intermittent, or
(b) to carry out work, on a short-term basis, in an area of the Department with a flexible workload, or
(c) to carry out the work of a position for a short period pending the completion of the selection process for the position, or
(d) to carry out urgent work or to deal with an emergency.
The employment of persons under this Part is subject to:
(a) section 7 (3), and
(b) any other provisions of this Act or the regulations concerning the employment of casual employees.
The appropriate Department Head may dispense with the services of a casual employee at any time.
This Part applies to officers in the Public Service but (unless otherwise expressly provided by this Act) does not apply to chief executive officers in the Public Service.
The objects of this Part are as follows:
(a) to maintain appropriate standards of conduct and work-related performance in the Public Service,
(b) to protect and enhance the integrity and reputation of the Public Service,
(c) to ensure that the public interest is protected.
In this Part:
(a) dismissal from the Public Service,
(b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time,
(c) if the officer is on probation—annulment of the officer’s appointment,
(d) except in the case of a senior executive officer—reduction of the officer’s salary or demotion to a lower position in the Public Service,
(e) the imposition of a fine,
(f) a caution or reprimand.
(a) counselling,
(b) training and development,
(c) monitoring the officer’s conduct or performance,
(d) implementing a performance improvement plan,
(e) the issuing of a warning to the officer that certain conduct is unacceptable or that the officer’s performance is not satisfactory,
(f) transferring the officer to another position in the Public Service that does not involve a reduction of salary or demotion to a lower position,
(g) any other action of a similar nature.
In this Part, a reference to an allegation that an officer may have engaged in misconduct includes a reference to the appropriate Department Head being made aware, or becoming aware, by any means that the officer may have engaged in misconduct.
For the purposes of this Part,
(a) a contravention of any provision of this Act or the regulations,
(b) performance of duties in such a manner as to justify the taking of disciplinary action,
(c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act,
(d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer.
For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened:
(a) while the officer concerned was not on duty, or
(b) before the officer was appointed to his or her position.
In this section,
The Commissioner may, from time to time, issue guidelines for the purposes of:
(a) dealing with allegations of misconduct as a disciplinary matter, and
(b) the taking of disciplinary action with respect to officers under this Division.
The Commissioner may from time to time amend, revoke or replace the procedural guidelines.
The procedural guidelines as in force from time to time must be made publicly available in such manner as the Commissioner thinks appropriate.
The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the latter is to prevail.
The procedural guidelines must be consistent with the rules for procedural fairness.
Without limiting subsection (1), the procedural guidelines are to ensure that:
(a) the officer to whom an allegation of misconduct relates is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the officer, and
(b) the officer is given an opportunity to respond to the allegation.
A formal hearing involving the legal representation of parties and the calling and cross-examination of witness is not to be held in relation to an allegation of misconduct and the taking of disciplinary action with respect to an officer.
However, subsection (3) does not prevent the appropriate Department Head from:
(a) conducting such investigations into an allegation of misconduct as the Department Head considers necessary, or
(b) conducting interviews with the officer to whom the allegation relates or with any other person in connection with the matter concerned, or
(c) taking signed statements from the officer or any such person.
If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may:
(a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or
(b) decide that it is appropriate to take remedial action with respect to the officer.
After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer.
Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.
Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process:
(a) decide to take remedial action with respect to the officer concerned, or
(b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both.
A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section.
If the appropriate Department Head is of the opinion that an officer is not performing the officer’s duties in a satisfactory manner, the Department Head may decide to take remedial action with respect to the officer.
If:
(a) remedial action is taken with respect to an officer, and
(b) the appropriate Department Head is, after the officer has been given a reasonable opportunity in which to improve his or her performance, of the opinion that the officer’s performance is still unsatisfactory,
the Department Head may notify the officer in writing that the officer’s performance is still unsatisfactory and that the officer’s performance may lead to disciplinary action being taken with respect to the officer. The officer must be given an opportunity to respond to the Department Head’s opinion about the officer’s performance.
The Department Head may, after considering any response by the officer, decide to take disciplinary action with respect to the officer.
Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.
If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may:
(a) decide to take disciplinary action with respect to the officer, or
(b) decide to take remedial action with respect to the officer.
Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.
A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded.
If:
(a) an allegation that an officer has engaged in misconduct is being dealt with as a disciplinary matter in accordance with the procedural guidelines, or
(b) an officer is charged with having committed an offence referred to in section 48,
the appropriate Department Head may suspend the officer from duty until the allegation of misconduct or the criminal charge (or any action that the Department Head is considering taking under section 48) has been dealt with.
Any salary payable to a person as an officer while the person is suspended from duty under this section is (if the appropriate Department Head so directs) to be withheld.
If:
(a) it is decided to take disciplinary action with respect to the person for the misconduct, or
(b) the person is convicted of the offence concerned,
the salary withheld under subsection (2) is forfeited to the State unless the appropriate Department Head otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed.
If the appropriate Department Head has suspended an officer from duty under this section, that Department Head may at any time remove the suspension.
A decision of the appropriate Department Head to take disciplinary action or remedial action under this Part with respect to an officer may be carried into effect at any time.
If a senior executive officer is dismissed from the Public Service under this Part:
(a) the term for which the officer was appointed is to be regarded as having come to an end, and
(b) no compensation is payable in respect of the dismissal.
Any appointment required as the result of the taking of disciplinary action comprising demotion to a lower position in a Department is to be made by the appropriate Department Head.
If a fine is imposed under this Part on an officer, the person responsible for paying the officer’s salary is, on receiving notice of the imposition of the fine, to deduct the amount of the fine from the salary payable to the officer in such manner as the appropriate Department Head directs.
An allegation that an officer has engaged in misconduct may be dealt with under this Part, and disciplinary action may be taken with respect to the officer, even though the officer has retired or resigned.
The taking of disciplinary action (other than a fine) with respect to the former officer does not affect the former officer’s retirement or resignation or the benefits, rights and liabilities arising from the retirement or resignation.
A fine imposed under any such disciplinary action may be recovered from the former officer as a debt due to the Crown in any court of competent jurisdiction, or out of any money payable to or in respect of the former officer by the Crown, or both.
Nothing in this section affects any power under this Act to refuse to accept the resignation of an officer.
A person is eligible to be appointed as an officer in the Public Service only if the person is:
(a) an Australian citizen, or
(b) a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law.
An officer who is not an Australian citizen and who ceases to satisfy or does not satisfy the requirements of subsection (1) (b) is no longer eligible to continue in employment as an officer in the Public Service and is to be dismissed from that employment by the appropriate Department Head.
The Commissioner may exempt a person from the operation of this section in any case the Commissioner considers appropriate.
Schedule 3 has effect in relation to officers and temporary employees of a Department.
If the appropriate Department Head is satisfied that the number of officers employed in the Department or in any part of the Department exceeds the number that appears to be necessary for the effective, efficient and economical management of the functions and activities of the Department or part of the Department:
(a) the Department Head is to take all practicable steps to secure the transfer of the excess officers to on-going public sector positions, and
(b) the Department Head may, with the approval of the Commissioner, dispense with the services of any such excess officer who is not transferred to an on-going public sector position.
An officer does not cease to be an excess officer merely because the officer is engaged (on a temporary basis) to carry out other work in a public sector agency.
In this section:
This section applies where:
(a) the appropriate Department Head is satisfied that an officer of the Department is in receipt of a greater salary than the maximum fairly appropriate to the work performed by the officer, and
(b) the Department Head has taken all practicable steps to secure the transfer of the officer to an on-going public sector position (within the meaning of section 56) that is appropriate to the salary of the officer.
The appropriate Department Head may, with the approval of the Commissioner, reduce the salary of any such officer who is not performing work appropriate to his or her salary to the maximum determined by that Department Head to be appropriate to the work performed by the officer.
An officer whose salary is reduced under this section:
(a) remains eligible for promotion as if the officer’s salary had not been reduced, and
(b) is entitled to obtain work in the Department at the previous salary of the officer as soon as such work becomes available in preference to any other officer whose salary has not been reduced.
If an officer becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the officer’s creditors, the officer must:
(a) immediately give to the appropriate Department Head notice of the bankruptcy, composition, arrangement or assignment, and
(b) within such period as the Department Head specifies, provide that Department Head with such further information with respect to the cause of the bankruptcy or of the making of the composition, arrangement or assignment as that Department Head requires.
If any such officer is the Department Head, subsection (1) applies as if references to the appropriate Department Head were references to the Minister responsible for the Department.
A person employed in the Public Service is not to undertake any other paid work without the permission of the appropriate Department Head.
This section does not apply:
(a) to a casual employee, or
(b) to a person working part-time,
during the period that the person is not required to discharge duties in the Public Service, but only if the discharge of those duties is not adversely affected and no conflict of interest arises.
The right or power of the Crown to dispense with the services of any person employed in the Public Service, as it existed immediately before the commencement of this section, is not abrogated or restricted by any of the provisions of this Act.
A person employed in the Public Service is not, except as provided by this or any other Act, entitled to any compensation as a result of the person’s services being dispensed with or the person’s remuneration being reduced.
The regulations may make provision for or with respect to regulating the employment of officers, temporary employees or casual employees, including provision for or with respect to the following:
(a) providing for the medical assessment and standards of medical fitness for the appointment of persons to positions in the Public Service,
(b) prescribing the educational qualifications for appointments to positions in the Public Service,
(c) prescribing the procedure to be adopted for selecting an appointee from among candidates for a vacant position (other than a chief executive position),
(d) determining the eligibility of persons for appointment as temporary employees or casual employees,
(e) providing for the hours of attendance of staff,
(f) prescribing the leave which may be granted to staff,
(g) providing for the payment of travelling and subsistence allowances for staff, allowances for the increased cost of living in remote areas, and other allowances for staff,
(h) prescribing the procedures to be adopted consequent on the appointment of a person to a position,
(i) providing for the exercise of the functions of suspended, sick or absent staff by other staff, and the exercise by staff of the functions attaching to vacant positions,
(j) providing for entry to positions in the Public Service in special cases.
In this Part:
In this Part, a reference to the employer of an executive officer is a reference to:
(a) in the case of a chief executive officer (other than a chief executive officer referred to in paragraph (a1))—the Minister, or
(a1) in the case of a chief executive officer appointed as the chief executive of Rail Corporation New South Wales, Roads and Maritime Services, the State Transit Authority or Sydney Ferries—the Director-General of the Department of Transport, or
(b) in the case of a senior executive officer in the Government Service—the appropriate Division Head, or
(c) in the case of a senior executive officer in the Teaching Service—the Director-General of the Department of Education and Training, or
(d) in the case of a senior executive officer in the service of a public authority—the public authority or a person nominated by the public authority, or
(e) in any other case—the Minister or a person nominated for the time being by the Minister.
In this Part, a reference to the remuneration package for an executive officer is, if a range of amounts has been determined by the Statutory and Other Offices Remuneration Tribunal, a reference to:
(a) the amount within that range nominated in the officer’s contract of employment, or
(b) in any other case—the minimum amount within that range.
For the purposes of this Part, the
The Chief Executive Service comprises the persons holding the positions referred to in Parts 1 and 2 of Schedule 2.
(a) a public sector employee who has previously been employed, on a full-time basis, as a member of the Australian Defence Force is taken to have been employed in a Commonwealth or interstate agency during the period for which he or she was so employed, and
(b) the Australian Defence Force is taken to have been the public sector employee’s employer during that period.
For the purposes of this Schedule:
(a) a person who:
(i) in relation to a body referred to in the Table to this clause, holds or acts in an office specified in that Table, on a full-time basis, and
(ii) has previously been a public sector employee,
is taken to be employed in a public sector agency during the period for which the person holds or acts in that office, and
(b) the body concerned is taken to be the person’s employer during that period.
For the purposes of this Schedule:
(a) a public sector employee who, in relation to a body referred to in the Table to this clause, has previously held or acted in an office specified in that Table, on a full-time basis, is taken to have been employed in a public sector agency during the period for which he or she held or acted in that office, and
(b) the body concerned is taken to have been the public sector employee’s employer during that period.
Without limiting any other law preserving rights to extended leave, a person who, in relation to a body referred to in the Table to this clause, holds an office specified in that Table, on a full-time basis, is entitled to have his or her recognised service as a public sector employee recognised as service for the purposes of the law or arrangement that provides for his or her entitlement, as the holder of the office, to extended leave.
Deputy President (not being a judicial officer)
Non-presidential judicial member (not being a judicial officer)
Non-judicial member
Assessor
Member who was taken to be employed in a public sector agency by operation of this clause immediately before the establishment day (within the meaning of the Civil and Administrative Tribunal Act 2013)
Deputy Chairperson
Member
Senior Chairperson
Chairperson
Member
Commissioner
Inspector
Chairperson
Deputy President (not being a judicial officer)
Registrar
Arbitrator
(Section 166)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• this Act
• Public Sector Employment and Management Amendment (Extended Leave) Act 2005
• Public Sector Employment Legislation Amendment Act 2006
• Public Sector Employment and Management Amendment Act 2008
• Public Sector Employment and Management Further Amendment Act 2008
• Public Sector Employment and Management Amendment Act 2010
• Public Sector Employment and Management Amendment (Ethics and Public Service Commissioner) Act 2011
• Public Sector Employment and Management Amendment Act 2012
• Public Sector Employment and Management Amendment (Procurement of Goods and Services) Act 2012
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
In any other Act, or in any instrument made under any Act or in any other instrument of any kind:
(a) a reference to the Public Service Board (or the Chairman or a member of that Board) or to the Public Employment Industrial Relations Authority is to be read as a reference to:
(i) subject to subparagraph (ii)—the Public Employment Office, or
(ii) in the case of any particular reference—such person or body as is prescribed by the regulations in respect of that reference, and
(b) a reference to the Public Service Act 1902, the Public Service Act 1979 or the Public Sector Management Act 1988 is to be read as a reference to this Act.
In this Part:
The following regulations under the former Act as in force immediately before the repeal of that Act and as amended by this Act, are taken to be regulations made under this Act:
(a) the Public Sector Management (General) Regulation 1996,
(b) the Public Sector Management (Goods and Services) Regulation 2000.
For the purposes of Part 3 of the Subordinate Legislation Act 1989, those regulations are taken to have been published on the commencement of this clause.
In any other Act, or in any instrument made under any Act or in any other instrument of any kind:
(a) a reference to the appointment or employment by the Governor of an officer or employee under and subject to the former Act is to be read as a reference to the appointment or employment of an officer or employee under Chapter 2 of this Act, and
(b) a reference to Part 2A of the former Act is to be read as a reference to Part 3.1 of this Act, and
(c) a reference to section 42Q of the former Act is to be read as a reference to section 77 of this Act, and
(d) a reference to an officer or position being listed in Schedule 3B to the former Act is to be read as a reference to a senior executive officer, or senior executive position, respectively, within the meaning of this Act, and
(e) a reference to Part 8 of the former Act is to be read as a reference to Chapter 5 of this Act, and
(f) a reference to a declared authority under or within the meaning of former Act is to be read as a reference to a declared authority to which Part 6.4 of this Act applies.
Subclause (1) does not limit the operation of any provision of the Interpretation Act 1987.
Any officers employed under the former Act immediately before the repeal of that Act are taken to be officers employed under this Act.
Any Departmental temporary employees or special temporary employees employed under the former Act immediately before the repeal of that Act are taken to be Departmental temporary employees and special temporary employees, respectively, employed under this Act.
If any procedures have been commenced before the commencement of this Act in relation to the filling of a vacancy in the Public Service or the appointment of a person to any position in the Public Service, the procedures must be completed in accordance with this Act (unless the regulations otherwise provide).
The Public Employment Office constituted by this Act is a continuation of, and the same legal entity as, the Public Employment Office constituted by the former Act.
The State Contracts Control Board established under Part 7.1 of this Act is a continuation of the State Contracts Control Board established under the Public Sector Management (Goods and Services) Regulation 2000 as in force immediately before the commencement of this subclause.
Part 2.7 of this Act extends to conduct occurring before the commencement of that Part.
Any disciplinary proceedings pending under Part 5 of the former Act immediately before the commencement of the repeal of that Part by this Act are to continue to be dealt with under the provisions of that Part as if it had not been repealed.
Any delegation by a Department Head under section 12 of the former Act and in force immediately before the repeal of that section by this Act is taken to be a delegation by the Department Head that is in force under section 15 of this Act.
Any delegation by the Public Employment Office (as constituted by the former Act) under section 49F of the former Act and in force immediately before the repeal of that section by this Act is taken to be a delegation by the Public Employment Office that is in force under section 124 of this Act.
An order under Part 3A of the former Act and in force immediately before the commencement of this clause is taken to have been made under Chapter 4 of this Act (and may be amended or repealed accordingly).
This clause applies to an executive officer within the meaning of Part 3.1 of this Act who made an election to retain a right of return to the public sector under section 42R of the Public Sector Management Act 1988 and the election was in force on 13 October 1995 (the date of commencement of section 42R (2A) of that Act) and was also in force immediately before the repeal of that Act.
Any such election is taken to be an election under this clause.
For the purposes of Division 4 of Part 3.1 of this Act, an
An executive officer to whom this clause applies may elect to retain a right of return to the public sector if:
(a) the officer was engaged in the public sector on a full-time basis when he or she first became an executive officer, and
(b) for at least some part of that engagement the person was an employee in the public sector.
Any such election:
(a) may be made in the first contract of employment entered into by the executive officer, but (unless made in that first contract) may not be made in any subsequent contract for the same or another executive position, and
(b) is revoked if the election is not made by the executive officer in a subsequent contract of employment, and
(c) may be revoked by the executive officer by notice in writing to the officer’s employer, and
(d) if revoked, may not be made again.
If an executive officer has elected to retain a right of return to the public sector, the officer’s contract of employment must provide for the cost of that right as part of the officer’s remuneration package under Division 4 of Part 3.1 of this Act.
An executive officer who has elected to retain a right of return to the public sector is entitled to an engagement in the public sector if the person ceases to be an executive officer and:
(a) in the case of a chief executive officer—is not re-appointed to the same or another chief executive position, or
(b) in the case of a senior executive officer—is not re-appointed to the same or another senior executive position.
A person is not entitled to an engagement in the public sector under this clause if the person ceased to be an executive officer because the person resigned or was (after due inquiry) removed from office for misbehaviour.
The engagement in the public sector to which a person is entitled under this clause is to be an engagement:
(a) in the case of a chief executive officer—as a senior executive officer in any part of the public sector, or
(b) in the case of a senior executive officer—in any part of the public sector at a salary not lower than the current maximum salary for:
(i) the previous engagement of the person as such an employee within the public sector, or
(ii) a clerk (grade 12) in the Public Service,
whichever is the lesser.
A person who is entitled to such an engagement is not entitled to any compensation for ceasing to hold office as an executive officer or to any remuneration in respect of the office for any period afterwards (except remuneration in respect of a subsequent re-appointment to the office).
Subclause (10) does not prevent the payment of additional remuneration to a person who is engaged in the public sector under this clause in order to maintain, in accordance with the employer’s redeployment policy, the level of the person’s previous remuneration package for a period after the person ceases to be an executive officer.
If an executive officer has not entered into a contract of employment and is eligible to make an election under this clause:
(a) the officer is (until the officer enters into a contract of employment) to be taken to have made an election under this clause, but may revoke that election, and
(b) the cost (under Division 4 of Part 3.1 of this Act) of the right of return to the public sector in accordance with that election is to be deducted from the officer’s remuneration.
A reference in this clause to an executive officer ceasing to be an executive officer is, in the case of an executive officer removed from office under section 77 of this Act, a reference to an executive officer ceasing to be such an officer as referred to in section 77 (5) of this Act.
An executive officer who is entitled to be engaged in the public sector under this clause may, before being so engaged, elect in writing to take compensation referred to in section 78 of this Act.
On the election taking effect, the person ceases to be entitled to be engaged in the public sector under this clause.
A reference in this clause to:
(a) employment in the public sector is a reference to employment as an officer in the Public Service, the Health Service or the Teaching Service, as a member of the Police Service or as an officer in the service of a public authority, and
(b) engagement in the public sector is a reference to employment in the public sector or to the holding of a statutory office.
Subject to this Act and the regulations, anything done or omitted to be done under or for the purposes of the former Act is taken to have been done or omitted to be done under or for the purposes of this Act.
In this Part:
Without limiting section 68 (3) of the Interpretation Act 1987, a reference in this Part to an award or enterprise agreement extends to the award or enterprise agreement (if any) that is the replacement, for the time being, for the award or enterprise agreement.
Nothing in this Part limits the effect of section 30 of the Interpretation Act 1987.
Anything that was done or omitted during the validation period, and that would have been valid had the amending Act been in force during that period, is taken to have been validly done or omitted.
In this clause,
In its application to the persons or classes of persons listed in the Table to this clause, Schedule 3, as substituted by the amending Act, applies with the following modifications:
(a) a reference in clause 2 (1) of Schedule 3 to “7 years or more but not more than 10 years” is to be read as a reference to “10 years”,
(b) a reference in clauses 3 (1) and (2) (b) and 5 (2) of Schedule 3 to “7” is to be read as a reference to “10”,
(c) clauses 2 (1) (c) and (2) (c) and 8 (1) (c) and (2) of Schedule 3 do not have effect.
The Governor may, by proclamation published on the NSW legislation website, omit any of the items to the Table to this clause except for item 15.
Table
1–13 | (Repealed) |
14 | officers covered by the Skilled Trades Staff—Department of Ageing, Disability and Home Care (State) Award 2001, |
15 | any persons or class of persons prescribed by the regulations for the purposes of this clause. |
In its application for the purposes of the Acts and instruments set out in the Table to this clause, Schedule 3, as substituted by the amending Act, applies with the following modifications unless the contrary intention appears:
(a) a reference in clause 2 (1) of Schedule 3 to “7 years or more but not more than 10 years” is to be read as a reference to “10 years”,
(b) a reference in clauses 3 (1) and (2) (b) and 5 (2) of Schedule 3 to “7” is to be read as a reference to “10”,
(c) clauses 2 (1) (c) and (2) (c) and 8 (1) (c) and (2) of Schedule 3 do not have effect.
(Repealed)
Table
1–17 | (Repealed) |
18 | an Act or instrument prescribed by the regulations for the purposes of this clause. |
In this Part:
A person who, immediately before the commencement of Chapter 1A (as inserted by the amending Act), was employed as a member of staff (however described) of a statutory corporation under an Act amended by Schedule 4 to the amending Act:
(a) ceases, on that commencement, to be employed by the statutory corporation, and
(b) is taken, on that commencement, to be a member of staff of the Division of the Government Service that comprises the group of staff who are employed under that Chapter to enable the statutory corporation to exercise its functions.
Subclause (1) only applies to staff who were employed by a statutory corporation and does not apply to existing departmental staff in the Public Service who, immediately before the relevant commencement, comprised a group of staff attached to a statutory corporation. Clause 25 of this Part deals with existing departmental staff.
Any such person who, under subclause (1), becomes a member of staff of a Division of the Government Service is, until such time as provision is otherwise made under this Act or any other law, to continue to be employed in accordance with the terms and conditions (including the terms of any State industrial instrument or of any determination made under any other Act) that applied to the person as a member of staff of the statutory corporation concerned.
If an award under the Workplace Relations Act 1996 of the Commonwealth (
If a certified agreement under the Workplace Relations Act 1996 of the Commonwealth (
The terms of any such instrument created as provided by subclause (3) or (4) have effect despite anything to the contrary in the Annual Holidays Act 1944, the Long Service Leave Act 1955, the Industrial Relations Act 1996 or any other law of the State.
A person who, under subclause (1), becomes a member of staff of a Division of the Government Service is, for the purposes of clause 21, taken to have been transferred to that Division from the statutory corporation concerned.
This clause does not apply in relation to a person holding office:
(a) as Chief Executive of the Greyhound and Harness Racing Regulatory Authority, or
(b) as the Director of the Zoological Parks Board,
immediately before the commencement of Chapter 1A.
This clause extends to persons who were, immediately before the commencement of Chapter 1A, employed as members of staff of Western Sydney Buses.
This clause is subject to the provisions of this Act and the regulations.
On the commencement of Chapter 1A, each person who was, immediately before that commencement, a member of the TAFE administrative staff is transferred to the Department of Education and Training.
In this clause:
(a) teaching or educational staff,
(b) institute managers.
A person who is transferred under clause 19 or 20:
(a) retains any rights to annual leave, extended or long service leave, sick leave, and other forms of leave, accrued or accruing in his or her employment with the statutory corporation from which the person is transferred, and
(b) is not entitled to receive any payment or other benefit merely because the person ceases to be a member of staff of the statutory corporation from which the person is transferred, and
(c) is not entitled to claim, both under this Act or any other Act, dual benefits of the same kind for the same period of service.
Without limiting subclause (1), a person who is transferred under clause 19 or 20 is not, despite any other provision of this Act, entitled to elect, because of that transfer, to be paid the money value of any extended or annual leave that the person accrued as a member of staff of the statutory corporation from which the person is transferred.
The Public Employment Office is abolished.
A reference, in any other Act, or in any instrument made under any Act or in any other instrument of any kind, to the Public Employment Office is to be read as a reference to the Director of Public Employment.
Part 6.4 (as in force immediately before its repeal by the amending Act) continues to apply to and in respect of:
(a) the State Rail Authority Residual Holding Corporation (as referred to in Schedule 8 to the Transport Administration Act 1988) until such time as that Corporation ceases to employ any staff under that Schedule, and
(b) FSS Trustee Corporation until the registration day as referred to in clause 1 of Schedule 2A to the Superannuation Administration Act 1996.
The provisions of any other Act that would have applied to a statutory corporation if Part 6.4 was in force continue to apply to the corporation for so long as Part 6.4 continues to apply to the corporation as provided by subclause (1).
Until such time as provision is otherwise made under section 106 in relation to the Division concerned, a Division of the Government Service in which staff are employed under Chapter 1A to enable a statutory corporation to exercise its functions is responsible to the Minister who is responsible for administering the Act under which the corporation is constituted.
The substitution of Schedule 1 by the amending Act does not affect:
(a) a person’s appointment to a position in the Public Service held by the person immediately before that substitution, or
(b) the terms and conditions on which the person was employed in a Department immediately before that substitution.
A reference in any other Act or instrument to a Department (as listed in Schedule 1 immediately before the substitution of that Schedule by the amending Act) is, if the name of the Department is modified by the amending Act, taken to be a reference to the Department as so modified.
A policy of insurance issued to a statutory corporation under the Workers Compensation Act 1987 and in force immediately before the commencement of Chapter 1A is also taken to have been issued to the Government of New South Wales (but only as a policy that is limited to workers employed in a Division of the Government Service to enable the statutory corporation to exercise its functions).
A licence under Division 5 of Part 7 of the Workers Compensation Act 1987 granted to a statutory corporation and in force immediately before the commencement of Chapter 1A is also taken to have been issued to the Government of New South Wales (but only as a self-insurer’s licence that is limited to workers employed in a Division of the Government Service to enable the statutory corporation to exercise its functions).
In this clause,
Section 20, as amended by the amending Act, extends to eligibility lists having effect immediately before the commencement of those amendments.
Section 31, as amended by the amending Act, extends to persons employed as Departmental temporary employees as at the commencement of those amendments.
The amendment to section 86 made by the amending Act extends to a person who, as at the commencement of that amendment, is the subject of an employee-initiated temporary transfer under that section but who has not yet become an employee of the host agency concerned.
In this clause,
Section 23 (1A), as inserted by the amending Act, extends to any person who was appointed to a position on probation before the commencement of the amending Act and whose appointment has not been confirmed or annulled as at that commencement.
A member of staff of a public sector agency who, immediately before the commencement of the amending Act, was the subject of a temporary transfer under section 86 to another position or other employment within that agency is, on the commencement of the amending Act, taken to have transferred to that other position or employment under section 86A (as inserted by the amending Act). Accordingly, section 86A extends to a person who is the subject of any such existing temporary transfer.
The amendments to section 124 by the amending Act do not affect the operation of any delegation in force under that section immediately before the commencement of the amending Act.
A person holding office as a member of the State Contracts Control Board (including as the Chairperson of the Board) immediately before the commencement of the amending Act is, on that commencement, taken to have been appointed as a member or as the Chairperson of the Board (as the case requires) under section 137 (1) as substituted by the amending Act.
Section 159A, as inserted by the amending Act, extends to conduct occurring (or any other matter arising) before the commencement of the amending Act.
The regulations may make provision for or with respect to any matter that is consequent on the dissolution of the World Youth Day Co-ordination Authority constituted by the World Youth Day Act 2006.
Section 22 (5), as inserted by the Public Sector Employment and Management Amendment Act 2010, does not apply in relation to any appointment made before the commencement of that subsection.
In this Part:
The person appointed as the first Commissioner is to be a person whose appointment is recommended by a committee chaired by a person appointed by the Premier (whether before or after the commencement of this clause) as the Chairperson of the Public Service Commission Advisory Board.
A reference, in any other Act, or in any instrument made under any other Act or in any other instrument of any kind, to the Director of Public Employment is to be read:
(a) as a reference to the Public Service Commissioner, or
(b) as a reference to the Director-General of the Department of Premier and Cabinet if the reference relates to the functions exercised by the Director of Public Employment under Part 6.3 (as in force immediately before the amendments to that Part by the amending Act).
In this clause,
Section 103A, as inserted by the amending Act, extends to members of staff of a public sector agency who were excess employees on the date that notice was given in Parliament for the introduction of the Bill for the amending Act and to proceedings instituted on or after that date under Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996.
Nothing in this clause affects any order of the Industrial Relations Commission or a court that is made before the commencement of the amending Act.
The State Contracts Control Board is abolished.
Each person holding office as a member of the State Contracts Control Board immediately before the commencement of this clause:
(a) ceases to hold office as such a member, and
(b) is not entitled to any remuneration or compensation because of the loss of that office.
The assets, rights and liabilities of the State Contracts Control Board are the assets, rights and liabilities of the Crown.
The Director-General of the Department of Finance and Services may act for the Crown in connection with any contract or agreement entered into by the State Contracts Control Board and in force immediately before the commencement of this clause.
A reference in any document to the State Contracts Control Board is to be read as a reference to the NSW Procurement Board, except as provided by subclause (6).
A reference in or in relation to a contract or agreement entered into by the State Contracts Control Board is to be read as a reference to the Director-General of the Department of Finance and Services, subject to the regulations.
In this clause,
(Repealed)
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0
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