Public Sector Management Act 1988 (NSW)
An Act for the management of the Public Service of New South Wales and of other public sector employment; and for other purposes.
This Act may be cited as the Public Sector Management Act 1988.
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 Department—the Head of the Department, or
(b) where the expression is used in connection with an officer or temporary employee—the Head of the Department to which the officer or employee belongs.
(a) where the expression is used in connection with a Department—the Minister responsible for the Department, or
(b) where the expression is used in connection with an officer or temporary employee—the Minister responsible for the Department to which the officer or employee belongs.
(a) for the purposes of calculating the amount of an entitlement paid on or before 31 August 1996—72.5 per cent of the amount of the remuneration package for the officer as last determined before the time of payment, or
(b) for the purposes of calculating the amount of an entitlement paid between 1 September 1996 and 30 June 1998 (inclusive)—94.3 per cent of the amount of the remuneration package for the officer as last determined before the time of payment, or
(c) for the purposes of calculating the amount of an entitlement paid on or after 1 July 1998—the total amount of the remuneration package for the officer as last determined before the time of payment, less the superannuation guarantee amount payable in respect of the officer.
(a) a chief executive officer or a senior executive officer appointed under that Part, and
(b) an officer on probation,
but does not include a temporary employee.
In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
This Act does not apply to any of the following positions or to any person holding such a position (except to the extent that a provision of this Act otherwise expressly provides):
(a) any position of a judicial officer within the meaning of the Judicial Officers Act 1986,
(b) any position in the Police Service,
(c) any position of officer of either House of Parliament or any position under the separate control of the President or Speaker, or under their joint control.
(d) (Repealed)
(Repealed)
Subsection (1) does not prevent a person holding a position referred to in that subsection from having or exercising any functions of a Department Head.
The Public Service of New South Wales consists of the persons who are for the time being employed under this Part.
(Repealed)
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 shall not exceed the maximum number so determined in respect of the Department.
The staff positions in a Department consist of:
(a) the position (if any) created under section 9 in relation to the Department, and
(b) such other positions as the appropriate Department Head from time to time determines in accordance with this Act.
Subject to subsection (3), a Department Head may create, abolish or otherwise deal with any staff position in the Department, other than the position created under section 9 in relation to the Department.
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 Public Employment Office.
A Department Head may establish, or abolish, or change the name of, any branch of the Department.
If the Governor removes a branch from any Department and adds it to another Department under section 55A (Creation and change in relation to departments):
(a) so much of the staff of the first-mentioned Department as relates to the branch becomes correspondingly part of the staff of the other Department, and
(b) the staff of the branch continue to occupy their positions in the branch but as members of the staff of that other Department.
In this section,
Each position specified in column 2 of Schedule 1 shall be deemed to be created by virtue of this Act if it is not created by some other Act.
If the title or other description of a position created by virtue of this Act is omitted from column 2 of Schedule 1, the position shall be taken to be abolished by virtue of this Act.
If this Act is amended by amending the title or other description of a position appearing in column 2 of Schedule 1, being a position created by virtue of this Act, the title or other description of the position shall be taken to be correspondingly amended by virtue of this Act.
The person holding the position specified in Column 2 of Schedule 1 opposite the title or other description of a department, body, organisation or group is, for the purposes of this Act, the Department Head in relation to the Department concerned.
(Repealed)
For the purposes of this Act, a reference in Schedule 1 to a department, body, organisation or group shall be taken not to include a reference to any part of the department, body, organisation or group specified separately in that Schedule.
(Repealed)
A provision contained in any Act enacted before the date of assent to this Act does not have any effect to the extent that it would, but for this subsection, operate:
(a) to make a person a Department Head, or
(b) to authorise or require a person to exercise any functions conferred or imposed by or under this Act on a Department Head.
If a person is duly authorised or required to exercise functions attaching to a position specified in Schedule 1, but is not himself or herself the holder of the position, nothing in subsection (5) prevents the person from exercising any functions that are referred to in subsection (5) (b) and exercisable by the holder (if any) of the position.
(Repealed)
Appointments to vacant Department Head positions in the Public Service are to be made by the Governor.
It does not matter whether the person appointed is or is not already an officer of the Public Service.
The employment under this Part of the Department Head is subject to Part 2A (Public Sector Executives).
(Repealed)
The Governor may appoint an officer of the Public Service to act in a Department Head position in the Public Service which 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 (but is not to be taken to be a chief executive officer for the purposes of Part 2A).
The Governor may, at any time, terminate the appointment of an officer to act in a Department Head position.
A Department Head is responsible to the appropriate Minister for the general conduct and the effective, efficient and economical management of the functions and activities of the Department.
For the purpose of exercising the responsibility imposed by subsection (1), 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 of the Minister or the Public Employment Office specified in this Act.
A Department Head is responsible for the equitable management of staff of the Department.
A Department Head may delegate to an officer of the Department any of the Department Head’s functions under this Act, other than this power of delegation.
If:
(a) a function of a Department Head is delegated to an officer of the Department 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 officer may sub-delegate the function to another officer of the Department.
In this section:
(a) a reference to the functions of a Department Head includes a reference to any functions delegated to the Department Head under this Act, and
(b) a reference to an officer of a Department includes:
(i) a reference to a person holding an appointment to or in the Department, and
(ii) where the Department is the group of staff attached to a body, organisation or group specified in Schedule 1—a reference to a person holding an appointment to or in that body, organisation or group, and
(iii) a reference to a temporary employee.
Appointments to vacant senior executive positions in the Public Service are to be made by the Governor on the recommendation of the appropriate Department Head.
It does not matter whether the person appointed is or is not already an officer of the Public Service.
The employment under this Part of the senior executive officer is subject to Part 2A (Public Sector Executives).
Subsection (1) is subject to any express provision to the contrary in this or any other Act.
The appropriate Department Head may appoint an officer of the Public Service to act in a senior executive position in the Public Service which is vacant or the holder of which is suspended, sick or absent.
An officer, while acting in any such senior executive position, has all the functions of the holder of the position (but is not to be taken to be a senior executive officer for the purposes of Part 2A).
The appropriate Department Head may, at any time, terminate the appointment of an officer to act in any such senior executive position.
Sections 26 (Selection for appointment to be on merit), 26A (Eligibility lists) and 31 (Advertising vacancies) apply to and in respect of appointments to senior executive positions in the Public Service.
A Department for the purposes of the application of section 26 (3) includes all senior executive positions in the Public Service or the Education Teaching Service and all notional executive positions referred to in section 42Q (3) (c) in the Public Service or the Education Teaching Service.
(Repealed)
This Division applies to and in respect of appointments to positions in the Public Service, but does not apply to or in respect of appointments to:
(a) chief executive positions, and
(b) except in the case of sections 26, 26A and 31—senior executive positions.
Sections 35–37 do not apply to officers holding positions referred to in subsection (1) (a) or (b).
(Repealed)
If a vacancy exists in a position in a Department and the appropriate Department Head decides that it is expedient to fill the vacancy, the position may, subject to and in accordance with this Division, be filled:
(a) by the appointment, by way of transfer or promotion, of an officer, or
(b) by the appointment of a person who, immediately before his or her appointment, was not an officer.
An appointment (whether by way of transfer or promotion or otherwise) to a position in the Public Service shall be made by the Governor on the recommendation of the appropriate Department Head.
Subsection (1) is subject to any express provision to the contrary in this or any other Act.
A Department Head shall, for the purpose of determining the merit of the persons eligible for appointment to a vacant position under this section, have regard to:
(a) the nature of the duties of the position, and
(b) the abilities, qualifications, experience, standard of work performance and personal qualities of those persons that are relevant to the performance of those duties.
In deciding to make a recommendation for the appointment of a person to a vacant position which has been advertised in accordance with this Act:
(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 make a recommendation for the appointment of a person to a vacant position which has not been advertised in accordance with this Act:
(a) the appropriate Department Head may only select an officer holding a position in the Department in which the vacant position exists at the time the decision of the Department Head is made, and
(b) the appropriate Department Head must, from among the officers holding positions in that Department, select the officer who has, in the opinion of the Department Head, the greatest merit.
If the person recommended for appointment to a position under this section is an officer and some other officer has a right of appeal to the Tribunal against the recommendation, the recommendation must not be acted on (except by way of temporary appointment under section 33):
(a) until the expiration of the time for lodging a notice of such an appeal under the Government and Related Employees Appeal Tribunal Act 1980 against the Department Head’s decision to make the recommendation, or
(b) if such a notice of appeal is lodged within that time, until the Tribunal has determined the appeal or the appeal is withdrawn.
Notwithstanding anything to the contrary in this section, the appropriate Department Head may decide to make a recommendation for the appointment of a person (whether or not an officer) to a vacant position which has not been advertised if 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.
When a vacant position is advertised in accordance with this Act, 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 are eligible for appointment) arranged in order of merit (with merit determined by the appropriate Department Head in accordance with section 26 (1)). An eligibility list for a position remains current:
(a) in the case of a list prepared in relation to a base grade or entry level position, for 12 months after the list was created, or
(b) in the case of a list prepared in relation to a position that is not a base grade or entry level position, for 6 months after the list was created.
An eligibility list need not comprise all the eligible applicants so long as the applicants on the list are those of greatest merit. An eligibility list may even comprise only one eligible applicant so long as that applicant is the applicant of greatest merit.
An eligibility list is applicable not only to the position in relation to which it was created but also to any other position that the appropriate Department Head determines it should be applicable to on the basis that the position is substantially the same as the position in relation to which the list was created.
In deciding to make a recommendation for the appointment of a person to a vacant position that has not been advertised in accordance with this Act, the appropriate Department Head may (despite section 26 (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.
In this section:
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.
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 the Government and Related Employees Appeal Tribunal Act 1980.
Subject to this Division, every person admitted to the Public Service as an officer shall, 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 person may be appointed to a position in the Public Service without being required to serve such a period of probation if 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 Public Employment Office.
If a person is appointed to a position on probation under section 28, the Governor may, on the recommendation of the appropriate Department Head based on inquiry and report:
(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 annulled under subsection (1), the person ceases to be an officer, unless appointed to another position as an officer.
Section 75 does not prevent the Governor from exercising at any time the power to annul an appointment under subsection (1).
An officer who has been retired from the Public Service or whose services have been dispensed with under section 51 may be appointed to a vacant position.
An appointment under this section shall be made by the Governor on the recommendation of the appropriate Department Head.
An appointment under this section may be made without examination or probation.
(Repealed)
If it is proposed to make an appointment under this Division to a vacant position in a Department, the Department Head shall advertise the vacancy in the Public Service Notices and in such other publication (if any) as the Department Head determines.
The Department Head need not advertise a vacant position if the Public Employment Office so approves.
The appropriate Department Head shall cause to be published in the Public Service Notices in accordance with section 19 of the Government and Related Employees Appeal Tribunal Act 1980 particulars of any decision of the Department Head to make a recommendation to the Governor to appoint an officer to fill a vacant position.
An officer who:
(a) is proceeding on duty outside the State for a period exceeding 6 weeks or on leave for a period exceeding 6 weeks, and
(b) has made application to the appropriate Department Head,
is entitled to have sent to the officer during that period by the Department Head, by post addressed to the officer at the address specified in that application, a copy of all Public Service Notices published during that period.
If:
(a) a position in a Department is vacant, or
(b) the holder of such a position is suspended from duty, sick or absent,
the Department Head may appoint an officer to the position temporarily.
An officer who is appointed to a position temporarily may not continue in that position for a period of more than 6 months except with the approval of the Public Employment Office.
The Public Employment Office shall not give an approval for the purpose of subsection (1) unless satisfied that it should be given having regard to the exigencies of the Public Service.
(Repealed)
If:
(a) an officer employed in a Department 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 Governor may, on the recommendation of the appropriate Department Head, cause the officer to be retired.
An officer’s position becomes vacant if the officer:
(a) dies, or
(b) is removed, or retires or is retired, from the position in accordance with this Division, or
(c) resigns the position in writing addressed and delivered to the appropriate Department Head and that Department Head accepts the resignation.
This section does not affect any other provision by or under which an officer’s position becomes vacant.
The appropriate Department Head may, if of the opinion that it is necessary to do so, employ temporarily a person who has appropriate qualifications to carry out work in the Department.
Persons employed under this section are departmental temporary employees.
The employment of a person under subsection (1) is subject to the regulations (if any) concerning the employment of departmental temporary employees.
The appropriate Department Head:
(a) may employ a person under this section for a period not exceeding 4 months, and
(b) subject to the regulations, may from time to time employ the person at the end of that period, or at the end of any subsequent period, for a further period not exceeding 4 months.
A person may not be employed under this section for:
(a) a continuous period in excess of 12 months, or
(b) 2 or more periods that together are in excess of 12 months in any period of 2 years,
except with the approval of the Public Employment Office.
The appropriate Department Head may dispense with the services of a departmental temporary employee at any time, but may not dispense with the services of a person employed as referred to in subsection (4) without the approval of the Public Employment Office.
For the purposes of this section, a
A long-term departmental temporary employee may, with the approval of the Public Employment Office, 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 departmental temporary employee to an officer’s position may be made only if each of the following requirements is satisfied:
(a) the duties of the position concerned must be substantially the same as the duties performed by the employee at the time of the employee’s initial employment on merit (that is, the employment referred to in paragraph (e)),
(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 on-going work is available in respect of the employee in the Department,
(d) the appropriate Department Head must be satisfied that the employee has the relevant skills, qualifications, experience, work performance standards and personal qualities to enable the employee to perform the duties of the position concerned,
(e) the employee must (initially or at some later stage) have been employed as a temporary employee in some form of open competition involving the selection of the employee as the person who, in the opinion of the then relevant Department Head, had the greatest merit among candidates for appointment.
An appointment under this section is not an appointment to which section 26 (Selection for appointment to be on merit) applies.
Section 28 (Appointments on probation) does not apply to an appointment under this section unless the Department Head otherwise directs in a particular case.
In this Division:
(a) a Minister, or
(b) a Parliamentary Secretary, or
(c) the Leader of the Opposition in the Legislative Assembly.
The Director-General of the Premier’s Department may, if of the opinion that it is necessary to do so, employ temporarily a person who has appropriate qualifications to carry out work for a political office holder.
Persons employed under this section are special temporary employees.
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 Premier’s Department, or
(e) if the services of the employee are dispensed with.
The Director-General of the Premier’s Department 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 Premier’s Department 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) of Chapter 2 of the Industrial Relations Act 1996 does not apply to 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 63 or agreement under section 64, in its application to special temporary employees.
An appeal does not lie to the Tribunal in relation to the employment of a special temporary employee.
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 Premier’s Department may delegate any function of the Director-General under this Division (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 12 (Delegation by Department Head).
All special temporary employees are taken to constitute a branch of the Premier’s Department, except any who are employed by a Department Head as delegate of the Director-General of the Premier’s Department.
Special temporary employees employed by a Department Head as delegate of the Director-General of the Premier’s Department are taken to constitute a branch of the Department concerned.
Accordingly, the Director-General of the Premier’s Department has the functions of Department Head in relation to those special temporary employees who constitute a branch of the Premier’s Department, 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 employment of a person under this Division is subject to the regulations (if any) concerning the employment of special temporary employees.
A person is eligible to be appointed as an officer 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.
A person who is seeking appointment as an officer must, if so required by or under the regulations, produce such evidence with respect to the person’s Australian citizenship or entitlement to reside in Australia as the regulations require.
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.
The Governor shall dismiss from the Public Service an officer who is no longer eligible to continue in employment as an officer by virtue of subsection (3).
Notice of all appointments, promotions, transfers, resignations, retirements and removals of officers under this Act must be published in a special Gazette to be issued, as far as practicable, weekly.
A notice so published is conclusive evidence of the appointment, promotion, transfer, resignation, retirement or removal specified in the notice.
The appropriate Department Head may, with the approval of the Director-General of the Department of School Education, on such terms and conditions as may be arranged, make use of the services of any member of the Education Teaching Service.
The services of a person may not be made use of under subsection (1) for:
(a) a continuous period exceeding 12 months, or
(b) 2 or more periods that together exceed 12 months in any period of 2 years,
except with the approval of the Public Employment Office.
An officer who has been offered a promotion or appointment in the Public Service may decline the promotion or appointment without prejudice to any rights that the officer would, if the promotion or appointment had not been declined, have had to any future promotion or appointment.
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—the Minister, or
(b) in the case of a senior executive officer in the Public Service—the appropriate Department Head, or
(c) in the case of a senior executive officer in a Teaching Service—the appropriate Director-General within the meaning of the Teaching Services Act 1980, 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.
The Chief Executive Service comprises the persons holding the positions referred to in Schedule 3A.
The Senior Executive Service comprises the persons holding the positions referred to in Schedule 3B.
The Governor may, by proclamation, amend Schedule 3A or 3B by inserting the description of any position, or by omitting or amending any such description.
The Governor may, by proclamation, omit Schedule 3A or 3B and insert instead a Schedule containing descriptions of positions.
The description of a position may be included in Schedule 3A or 3B by proclamation under this Division only if the position is:
(a) a position in the Public Service, or
(b) a statutory office (being an office that is established by or under an Act and to which appointments are made by the Governor or a Minister), but only if the employment of a person in the office is declared by or under that Act to be subject to this Part, or
(c) a position on the staff of a public authority, or
(d) a position in the Education Teaching Service or the Technical and Further Education Teaching Service.
Subject to this Act, an executive officer holds office for such period (not exceeding 5 years) as is specified in the officer’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
The employment of an executive officer shall be governed by a contract of employment between the officer and his or her employer.
A contract of employment may be made before or after the appointment of the executive officer concerned.
An executive officer is not appointed by, nor is an executive officer’s term of office fixed by, the contract of employment.
However, a contract of employment may constitute the instrument of appointment if the person authorised to make the appointment is also the person who signs the contract with the executive officer.
A contract of employment may be varied at any time by a further contract between the parties.
A contract of employment may not vary or exclude a provision of this Act or of any other Act under which the executive officer concerned is appointed or a provision of the regulations under this Act or any such other Act.
The employer of an executive officer (being an officer in the service of the Crown) acts for and on behalf of the Crown in any contract of employment between the officer and the employer.
The matters to be dealt with in a contract of employment between an executive officer and his or her employer include the following:
(a) the duties of the executive officer’s position (including performance criteria for the purpose of reviews of the officer’s performance),
(b) the monetary remuneration and employment benefits for the executive officer as referred to in Division 4 (including the nomination of the amount of the remuneration package if a range of amounts has been determined for the remuneration package),
(c) any election by the executive officer to retain a right of return to the public sector under section 42R.
A contract of employment may provide for any matter to be determined:
(a) by further agreement between the parties, or
(b) by further agreement between the executive officer and some other person specified in the contract, or
(c) by the Minister or other person or body specified in the contract.
An executive officer’s performance must be reviewed, at least annually, by the officer’s employer or by some other person nominated by that employer.
Any such review is to have regard to the agreed performance criteria for the position and any other relevant matter.
In this section, a reference to the employment of an executive officer is a reference to:
(a) the appointment of, or failure to appoint, a person to a vacant executive position, or
(b) the removal, retirement, termination of employment or other cessation of office of an executive officer, or
(c) any disciplinary proceedings or disciplinary action taken against an executive officer, or
(d) the remuneration or conditions of employment of an executive officer.
The employment of an executive officer, 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.
Subsection (2) applies whether or not any person has been appointed to a vacant executive position.
Any award or industrial agreement (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of executive officers.
Subsection (4) does not prevent the regulations or other statutory instruments under this Act (or any other Act under which the executive officer concerned is appointed) from applying the provisions of an award or industrial agreement to the employment of an executive officer.
An appeal does not lie to the Government and Related Employees Appeal Tribunal in relation to the employment of an executive officer.
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 appointment of or failure to appoint a person to an executive position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.
In this section,
In this Division:
(a) contributions payable to a superannuation scheme by an executive officer’s employer in respect of the officer, including any liability of that employer to make any such contributions or to pay approved costs associated with that scheme, or
(b) the provision by an executive officer’s employer of a motor vehicle for private use by the officer, or
(c) the right of return to the public sector under section 42R by an executive officer who elects to retain that right, or
(d) the entitlement of an executive officer to approved leave with pay, or
(e) any other approved benefit provided to an executive officer at the cost of the officer’s employer (being a benefit of a private nature).
(a) travelling or subsistence allowances, or
(b) allowances in relation to relocation expenses, or
(c) any other allowances in relation to expenses incurred in the discharge of an executive officer’s duties.
A reference in the definition of
Executive officers are entitled to monetary remuneration at such rate, and employment benefits of such kinds, as are provided in their contract of employment.
Contributions payable to a superannuation scheme by an executive officer’s employer in respect of the officer that are required to be made by the employer under a law of the State relating to superannuation are, until provided for by the officer’s contract of employment, taken to be an employment benefit provided in the contract.
The total amount of:
(a) the annual rate of monetary remuneration for an executive officer, and
(b) the annual cost of employment benefits provided for the executive officer under the contract of employment,
is to be equal to the amount of the remuneration package for the executive officer.
The cost of an employment benefit is the approved amount or an amount calculated in the approved manner.
This section does not affect:
(a) any approved performance-related incentive payments made to an executive officer, or
(b) any remuneration or benefits to which an executive officer is otherwise entitled by law (such as statutory or agreed fees for attendance at meetings or the like).
A contract of employment may provide for the payment of part of the monetary remuneration under the contract to be made in the form of a periodic leave loading.
An executive officer is entitled to be paid an amount equivalent to the cost of a part of any entitlement to take annual or extended leave with pay if:
(a) the officer forgoes (with the approval of the officer’s employer) the right to take that part of that leave, and
(b) the cost of that part of that leave has been included in the officer’s contract of employment as an employment benefit.
Subsection (6) has effect despite anything to the contrary in the Annual Holidays Act 1944 or any other Act.
During any period when the monetary remuneration and employment benefits for an executive officer cannot be determined under subsection (1), the officer is entitled to monetary remuneration at the rate of the amount of the remuneration package for the officer, subject to any subsequent adjustment of payments in accordance with the officer’s contract of employment.
If the remuneration package for an executive officer is varied, the officer is entitled to monetary remuneration and employment benefits in accordance with the officer’s contract of employment pending any necessary variation of the contract and adjustment of payments to comply with this section with effect from the date of the variation.
The cost of an executive officer’s entitlement to take annual or extended leave with pay is to be determined on the basis of the officer’s notional salary.
An executive officer is entitled to be paid:
(a) such travelling and subsistence allowances, and
(b) such allowances in relation to relocation expenses, and
(c) such other allowances in relation to expenses incurred in the discharge of the officer’s duties,
as the officer’s employer may from time to time determine in respect of the officer.
An executive officer’s contract of employment:
(a) may provide for the payment to the officer of allowances of the kind referred to in this section, and
(b) may regulate the payment of allowances to the officer under this section.
A reference in this Division to:
(a) employment in the public sector is a reference to employment as an officer in the Public Service, the NSW Health Service or a 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.
The position of an executive officer becomes vacant if the officer:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) is removed from office, or retires from office, under this or any other Act, or
(d) resigns his or her position in writing addressed to the officer’s employer and that employer accepts the resignation.
This section does not affect any other provision by or under which an executive officer vacates his or her position.
(Repealed)
The Governor may remove an executive officer from an executive position at any time.
The Governor:
(a) may declare an executive officer who is removed from an executive position under subsection (1) to be an unattached officer in the Public Service, the NSW Health Service, a Teaching Service or another service of the Crown, as the case requires, and
(b) may revoke any such declaration.
While a declaration under subsection (2) remains in force, the person to whom the declaration relates:
(a) is to be regarded as an executive officer, although not holding an executive position, and
(b) is entitled to monetary remuneration and employment benefits as if the person had not been removed from his or her position, and
(c) is, for the purposes of sections 15 (2), 26, 53A and 100A, to be regarded as holding an equivalent (though notional) executive position in the Department or organisation from which he or she was removed.
If the person referred to in subsection (3) was removed from a chief executive position, then for the purposes of sections 15 (2), 26, 53A and 100A:
(a) the person is to be regarded as a senior executive officer, and
(b) the person’s notional executive position referred to in subsection (3) (c) is to be regarded as a senior executive position.
If:
(a) an executive officer is removed from an executive position under subsection (1) and a declaration is not made in relation to the officer under subsection (2), or
(b) a declaration under subsection (2) made in relation to an executive officer is revoked,
the officer ceases to be an executive officer, unless appointed to an executive position.
An officer in the Public Service, the NSW Health Service, a Teaching Service or another service of the Crown who ceases to be an executive officer because of subsection (4) ceases to be an officer in that service, unless appointed to a position in that service.
The making of a declaration under subsection (2) in relation to an executive officer does not prevent the officer from ceasing to be an executive officer because of the completion of the officer’s term of office.
In the case of an executive officer in the service of a public authority (other than an authority to which subsection (7A) applies), a reference in this section to:
(a) the Governor is to be read as a reference to the public authority, and
(b) the Public Service, a Teaching Service or another service of the Crown is to be read as a reference to the service of the public authority.
In the case of an executive officer in the service of a public health organisation within the meaning of the Health Services Act 1997:
(a) in the case of a chief executive officer of such an organisation—a reference in this section to the Governor is to be read (except in subsection (1)) as a reference to the Health Administration Corporation constituted by the Health Administration Act 1982, and
(b) in the case of an executive officer (other than a chief executive officer) of such an organisation—a reference in this section to the Governor is to be read as a reference to the Health Administration Corporation constituted by the Health Administration Act 1982, and
(c) a reference in this section to the NSW Health Service is to be read as a reference to the service of the public health organisation.
This section does not prevent an executive officer being removed from office apart from this section.
An executive officer 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.
Despite any other provision of this section, an executive officer may not make an election under this section after the commencement of this subsection (as inserted by the Public Sector Management Amendment Act 1995) unless an election by the executive officer under this section was in force immediately before the commencement of this subsection.
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.
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 section 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 section 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).
Subsection (7) does not prevent the payment of additional remuneration to a person who is engaged in the public sector under this section 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 section:
(a) the officer is (until the officer enters into a contract of employment) to be taken to have made an election under this section, but may revoke that election, and
(b) the cost (under Division 4) 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 section to an executive officer ceasing to be an executive officer is, in the case of an executive officer removed from office under section 42Q, a reference to an executive officer ceasing to be such an officer as referred to in section 42Q (4).
This section applies to:
(a) an executive officer who is removed from office under section 42Q and who ceases to be an executive officer as referred to in section 42Q (4), or
(b) an executive officer who is otherwise removed from office (except for misbehaviour after due inquiry), or
(c) (Repealed)
(d) an executive officer who was employed in the public sector when first appointed as an executive officer, whose term of office as an executive officer expires and who is not re-appointed,
being a person who is not entitled to be engaged in the public sector under section 42R. However, this section does not apply to an executive officer who consents to a transfer at a lower level of remuneration.
A person to whom this section applies is entitled to such compensation (if any) as the Statutory and Other Offices Remuneration Tribunal determines.
The Statutory and Other Offices Remuneration Tribunal:
(a) may determine that compensation is payable for the failure to re-appoint an executive officer only if the Tribunal is satisfied that the person had a reasonable expectation of being re-appointed, and
(b) must have regard to any general directions given to the Tribunal by the Minister as to the matters to be taken into consideration when it makes determinations under this section.
The maximum compensation payable is an amount equal to the person’s remuneration package for the period of 38 weeks.
The person is not entitled to any other compensation for the removal or retirement from office or for the failure to re-appoint the person 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).
An executive officer who is removed from office or not re-appointed is not entitled to compensation under this section if:
(a) the person is appointed on that removal or expiry of the term of office to another executive position, and
(b) the remuneration package for the holder of that position is not less than the remuneration package for the holder of the former position.
If the Statutory and Other Offices Remuneration Tribunal determines that compensation is payable under this section, it must, in its determination, specify the period to which the compensation relates.
The person may not be engaged in the public sector or employed in the service of a State owned corporation established under the State Owned Corporations Act 1989 or a subsidiary of such a State owned corporation during the period so specified, unless arrangements are made for a refund of the proportionate amount of the compensation.
An executive officer who is entitled to be engaged in the public sector under section 42R may, before being so engaged, elect in writing to take compensation referred to in section 42S.
On the election taking effect, the person ceases to be entitled to be engaged in the public sector under section 42R.
When a position becomes a senior executive position, the person (if any) holding the position is to continue to hold that position until the person or some other person is duly appointed to the position.
While the person continues to hold the position, the conditions of employment (including remuneration) of the person are to be the same as those which applied to the person immediately before the position became a senior executive position.
The person who continues to hold the position may be appointed to the position without the vacancy being advertised.
If the person who continues to hold the position is not appointed to the position or to any other executive position, sections 42R–42T apply to the person as if he or she had elected to retain a right of return to the public sector.
This section does not apply to a senior executive position referred to in Part 2 of Schedule 3B (statutory positions).
A person who:
(a) was engaged in the public sector when appointed to an executive position, and
(b) had a right to accrued extended or annual leave with pay immediately before that appointment, and
(c) has not taken that leave before taking up duties in the executive position,
is entitled, on taking up those duties, to be paid instead of that leave (or any part of that leave) the money value of that leave (or part) as a gratuity if the person so elects.
An election under this section is to be made within the time and in the manner determined by the Minister.
The money value of leave is to be calculated at the rate of pay of the person immediately before appointment to the executive position.
A person who was engaged in the public sector when appointed to an executive position retains any right to extended, annual, sick or other leave accrued or accruing to the person immediately before the appointment (except any accrued leave which is paid out by a gratuity under subsection (1)).
A reference in this section to an engagement in the public sector has the same meaning as in Division 5.
If a chief executive position becomes a senior executive position or a senior executive position becomes a chief executive position, the existing contract of employment continues in force until a new contract is made under this Part.
If a position ceases to be an executive position because of its omission from Schedule 3A or 3B by a proclamation:
(a) the position is not thereby abolished, and
(b) any person holding the position is to be taken to have been appointed to the position in accordance with the relevant provisions.
However, the proclamation by which a position is omitted from Schedule 3A or 3B may direct that the person holding the position is to cease to hold the position, but only if the person was not employed in the public sector (within the meaning of Division 5) immediately before last becoming an executive officer.
The person to whom any such direction relates ceases to hold the position concerned and has the same rights and obligations as if the person had ceased to be an executive officer as referred to in section 42Q (4).
A proclamation which amends Schedule 3A or 3B may contain other provisions of a savings or transitional nature consequent on a position becoming or ceasing to be an executive position or becoming a different kind of executive position.
A position referred to in Schedule 3A or 3B does not cease to be an executive position merely because of a change in the title of the position.
An executive officer shall not engage in any paid employment outside the duties of the executive position without the consent of the officer’s employer.
This Part prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or contract with a person.
The provisions of this Part apply to a person appointed to an executive position under any Act even though the Act excludes the application of this Act, unless it expressly excludes the application of those provisions.
A Council on the Cost of Government is established.
The Council is to consist of 7 members, as follows:
(a) 3 Department Heads, being the Director-General of the Premier’s Department, the Director-General of the Cabinet Office and the Secretary of the Treasury,
(b) 4 persons appointed by the Governor on the recommendation of the Minister, being persons who are not public sector employees (as defined in subsection (3)).
The Minister may from time to time nominate some other Department Head in place of any of the Department Heads specified in subsection (1).
A public sector employee is a person who is an officer or temporary employee under this Act, or an employee or member of staff of a declared authority.
One of the members appointed by the Governor is, by the instrument of appointment as a member or by another instrument executed by the Governor, to be appointed as Chairperson of the Council.
Schedule 8 has effect with respect to the members and procedure of the Council.
The Council has the following functions and is to exercise those functions with a view to achieving a cost effective and world class public sector:
(a) reviewing management and operational effectiveness and efficiency in the public sector, including reporting and making recommendations to the Government on its reviews,
(b) advising the Government on any changes that are necessary to ensure that the public sector provides “value for money” and quality services to its customers and the community within the framework of the Government’s policies,
(c) developing and overseeing the implementation of reform initiatives for the achievement in the longer term of improvements in performance in the public sector and reduction in its costs and of such other public sector initiatives as the Minister may direct,
(d) advising the Government on recommendations made by the Public Accounts Committee or the Auditor-General, including advice as to whether and how any such recommendations should be implemented, and monitoring the implementation of any of those recommendations that are to be implemented,
(e) such other functions with respect to the review of matters concerning the public sector as the Minister may direct, including advising and reporting and making recommendations to the Government on the results of any such review and developing and overseeing the implementation of reform initiatives,
(f) such other functions as are conferred or imposed on it by or under this Act or any other law.
The Council is subject to the control and direction of the Minister, except in relation to the contents of any report or recommendation made by it.
For the purpose of the exercise of the Council’s functions under this Act, a member of the Council authorised by the Council or an officer authorised by the Council may request a Department Head or declared authority:
(a) to produce any document in the custody of any member of staff of the Department or declared authority, or
(b) to provide any information, or
(c) to provide a report into such matters as are specified in the request.
If the Department Head or declared authority does not comply with the request, the Minister may require the Department Head or declared authority to comply with the request or with any other direction regarding the subject matter of the request.
For the purpose of the exercise of the Council’s functions under this Act, a member of the Council authorised by the Council or an officer authorised by the Council may request the Auditor-General to provide any information.
The Auditor-General may provide such information despite the provisions of section 38 (Secrecy) of the Public Finance and Audit Act 1983.
The Council may provide a Department or declared authority or the Police Service with such assistance and advice as will foster improvement in the efficiency or management and organisational performance of the Department or declared authority or the Police Service.
The Director-General of the Premier’s Department may arrange for the use by the Council of the services of any staff (by secondment or otherwise) or facilities of a Department or declared authority.
The Council is to prepare and forward to the Minister a report of the Council’s work and activities for each consecutive period of 6 months commencing on the commencement of this section. The report for a period is to be prepared and forwarded to the Minister within 2 months after the end of the period.
The Minister is to lay each such report or cause it to be laid before both Houses of Parliament as soon as practicable after receiving the report.
The Council is dissolved on 1 May 1999.
On the dissolution of the Council, a person who held office as a member of the Council immediately before that dissolution:
(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.
(Repealed)
There is constituted by this Act a body corporate with the corporate name of the Public Employment Office.
The Public Employment Office is, for the purposes of any Act, a statutory body representing the Crown.
The affairs of the Public Employment Office are to be managed by the Commissioner for Public Employment.
Any act, matter or thing done in the name of, or on behalf of, the Public Employment Office by the Commissioner, or with the authority of the Commissioner, is taken to have been done by the Public Employment Office.
In this section,
The Public Employment Office is subject to the control and direction of the Minister, except in relation to the following:
(a) salaries, wages or other remuneration, and other conditions of employment,
(b) a dispute relating to an industrial matter.
The Public Employment Office has the following functions:
(a) advising the Government on appropriate policies in relation to personnel management and industrial relations in the public sector and, in particular, appropriate policies in relation to the use of consultants by the public sector, standards of conduct for public sector employees and management-staff consultation,
(b) monitoring the implementation of Government policies in those areas and assisting the implementation of those policies (including the issuing of implementation guidelines),
(c) monitoring recruitment, appointment and promotion practices in the public sector and, in particular, compliance with requirements relating to appointment and promotion on merit,
(d) co-ordinating and assisting in the redeployment of excess staff in the public sector,
(e) advising the Minister on the creation, classification and grading of chief and senior executive officer positions within the public sector,
(f) assisting in the recruitment, deployment and redeployment of executive officers within the public sector,
(g) advising the Government on appropriate policies and practices in relation to such other public sector matters as the Minister may direct from time to time, and monitoring, co-ordinating and assisting the implementation of Government policies and practices in such other areas as the Minister may direct from time to time,
(h) such other functions as are conferred or imposed on it by or under this Act or any other law.
The Public Employment Office may require the appropriate Department Head or declared authority to provide the Public Employment Office with a report on such matters relating to the personnel policies and practices of a Department or declared authority as the Public Employment Office requires.
In particular, the Public Employment Office may require inclusion in the report of information of a kind specified by the Public Employment Office as to:
(a) the personnel policies and practices concerning the recruitment, selection, appointment, transfer, promotion or discipline of the staff of the Department or declared authority 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 Department Head or declared authority concerned must comply with a requirement under this section within such time and in such manner as the Public Employment Office directs.
This section applies to the Police Service in the same way it applies to a Department, and for that purpose a reference to the Department Head is to be taken to be a reference to the Commissioner of Police.
The Public Employment Office may delegate to a Department Head or any other officer of a Department any of the functions of the Public Employment Office, other than this power of delegation.
Any delegation of a function with respect to the making of a determination fixing salaries, wages or other remuneration of officers or temporary employees is subject to the condition that any such determination must be at a level that is lower than the lowest amount of the remuneration packages for executive officers determined for the time being under the Statutory and Other Offices Remuneration Act 1975.
In this section:
(a) a reference to the functions of the Public Employment Office includes a reference to any functions delegated to the Public Employment Office under this Act, and
(b) a reference to an officer of a Department includes a reference to a person holding an appointment to or in the Department and a reference to a temporary employee, and (where the Department is the group of staff attached to, but not comprising, a body, organisation or group specified in Schedule 1) a reference to a person holding an appointment to or in that body, organisation or group.
The regulations may make provision for or with respect to the principles, practices and procedures to be observed in connection with the exercise of the functions of the Public Employment Office.
In particular, the regulations may:
(a) prescribe the circumstances in which an approval by the Public Employment Office under this or any other Act may be regarded as having been given, or
(b) prescribe the procedure for obtaining any such approval.
An approval or direction given by the Public Employment Office 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.
If the Department Head considers it to be in the interests of the Department to do so, the Department Head may direct the transfer of an officer from one position in the Department to another position in the Department at the officer’s existing salary, provided the officer possesses the qualifications required for the other position and the work assigned to the other position is appropriate to that salary.
If the appropriate Department Head considers it to be in the interests of the Public Service to do so, that Department Head may, with the approval of the Department Head of the other Department concerned, transfer an officer from a position in the Department to a position in another Department at the officer’s existing salary, provided the officer has the qualifications required for the other position and the work assigned to the other position is appropriate to that salary.
If the Minister, after consideration of the report of a relevant management review or special inquiry, is satisfied that the number of persons who are employed in a Department exceeds the number that appears to be necessary for the effective, efficient and economical management of its functions and activities, then, subject to subsection (3), the appropriate Department Head, as directed by the Minister shall take such steps as are practicable to secure the transfer of the excess persons to vacant positions in other Departments at their existing salaries.
If the appropriate Department Head is satisfied that the number of persons who are employed in the Department exceeds the number that appears to be necessary for the effective, efficient and economical management of its functions and activities, then, subject to subsection (3), that Department Head shall take such steps as are practicable to secure the transfer of the excess persons to vacant positions in other Departments at their existing salaries.
If any such excess person cannot be usefully employed in any other Department in accordance with this section, the Governor may, on the recommendation of the appropriate Department Head made with the approval of the Public Employment Office, dispense with the person’s services.
A transfer of a person under this section may be made only by the appropriate Department Head with the approval of the Department Head of the Department to which the person is being transferred.
If:
(a) the Minister, after consideration of the report of a relevant management review or special inquiry, or
(b) the appropriate Department Head,
is satisfied that an officer employed in a Department is in receipt of a greater salary than the maximum fairly appropriate to the work performed by the officer, then, subject to subsection (2), the Department Head shall take such steps as are practicable to assign the officer work of a class appropriate to the officer’s salary.
If:
(a) the officer cannot be assigned sufficient work of the kind referred to in subsection (1), or
(b) the officer is unfitted for or incapable of performing work appropriate to the officer’s salary,
the appropriate Department Head shall take such steps as are practicable to secure the officer’s transfer to a vacant position in any other Department at the officer’s existing salary.
If a transfer cannot be made in accordance with subsection (2) or the officer is unfitted for or incapable of performing the work attached to a position referred to in that subsection, the appropriate Department Head, with the approval of the Public Employment Office:
(a) shall reduce the officer’s salary to the maximum determined by that Department Head to be appropriate to the work performed by the officer, and
(b) may take such steps as are practicable to secure the officer’s transfer to a vacant position in the Department to which the officer belongs or in any other Department at that salary.
If a reduction of salary of an officer under this section is certified by the appropriate Department Head to have been made on the ground only that appropriate work or an appropriate position is not available, the officer:
(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 before the date of its publication.
The Public Service Board is abolished.
A person who, immediately before the commencement of this clause, held office as a member of the Public Service Board:
(a) ceases to hold office as such on that commencement, and
(b) is not entitled to any remuneration or compensation because of the loss of that office.
Nothing in this Act affects any arrangement made by or on behalf of the Government for the appointment of any such person to a position in the service of the Government or for the payment of any compensation.
Any assets, rights, liabilities or obligations of the Public Service Board shall be assets, rights, liabilities or obligations of the Crown.
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) shall be read as a reference to:
(i) subject to subparagraph (ii)—the Public Employment Industrial Relations Authority, 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 or the Public Service Act 1979 shall be read as a reference to this Act.
Any officers and temporary employees employed under the former Act shall be taken to be officers and temporary employees respectively employed under this Act.
If any procedures have been commenced before the commencement of this clause 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).
For the purposes of any Act, statutory instrument, award, industrial agreement or other instrument, a reference to a Division of the Public Service is a reference to such class of officers as the regulations prescribe.
Until the regulations otherwise provide, the officers included in any such Division shall be determined by the Industrial Authority.
The staff establishments of the Departments and Administrative Offices determined by the Public Service Board under section 38 of the former Act and in force immediately before the commencement of this clause shall, on that commencement, be taken to have been determined by the appropriate Department Heads under section 8 of this Act as the staff positions of those Departments and Administrative Offices.
A list and declaration in force under section 59 of the former Act immediately before the commencement of this clause shall be taken to be in force under section 23 of this Act.
A reference in this Act to Public Service Notices includes a reference to Public Service Notices issued under the former Act.
Any agreement between the Public Service Board and an association or organisation (under section 83 of the former Act or under any other law relating to industrial matters) and in force immediately before the commencement of this clause shall be taken to be, after that commencement, an agreement between the Industrial Authority and the association or organisation made under section 64 of this Act or under that other law.
Any determination by the Public Service Board of remuneration of officers and temporary employees under section 82 of the former Act, and in force immediately before the commencement of this clause, shall be taken to be, after that commencement, a determination made by the Industrial Authority under section 63 of this Act.
Part 5 of this Act applies to and in respect of acts and omissions committed or alleged to have been committed before as well as after the commencement of that Part.
Any disciplinary proceedings pending under the former Act immediately before the relevant commencement shall be taken to be pending under this Act and may continue to be heard and disposed of by the persons delegated under the former Act to do so, unless replaced by such persons as the appropriate Department Head may delegate under this Act to do so.
Any suspension in force under section 96 of the former Act immediately before the commencement of this clause shall be taken to have been imposed under section 77 of this Act.
A special inquiry pending under section 101 of the former Act immediately before the commencement of this clause shall be taken to be pending under this Act and may continue to be conducted by the persons delegated under the former Act to conduct the inquiry, unless replaced by such persons as the Minister may delegate under this Act to conduct the inquiry.
Any appeal pending under section 116 of the former Act immediately before the commencement of this clause may continue to be heard by the persons delegated under the former Act to hear the appeal, unless replaced by persons nominated by the Industrial Authority.
The Industrial Authority may decide any such appeal and, for that purpose, exercise the functions of the Public Service Board under the former Act.
Notwithstanding the amendment made to section 21 (1) (g) of the Government and Related Employees Appeal Tribunal Act 1980 by the Miscellaneous Acts (Public Sector Management) Amendment Act 1988, that paragraph, as in force immediately before the commencement of that amendment continues to apply to decisions against which an appeal has been lodged under section 20 of that Act before the commencement of that amendment.
An appeal to the Tribunal against a decision of the Public Service Board which is pending on the commencement of this clause, shall, for the purposes of the appeal, be taken to be a decision of the appropriate Department Head.
A person nominated by the Public Service Board in accordance with Schedule 2 to the Government and Related Employees Appeal Tribunal Act 1980 as an employer’s representative does not cease to be so nominated because of this Act or the Miscellaneous Acts (Public Sector Management) Amendment Act 1988, but may be removed as an employer’s representative by the Industrial Authority.
A person who is a member of a committee under the Industrial Arbitration Act 1940 immediately before the commencement of this clause and who was nominated by the Public Service Board as an employer’s representative does not cease to be so nominated because of this Act or the Miscellaneous Acts (Public Sector Management) Amendment Act 1988.
The Industrial Authority may, in accordance with the Industrial Arbitration Act 1940, withdraw the nomination of any such person.
Anything done or omitted under section 131 of the former Act shall be taken to have been done or omitted under Schedule 6 to this Act.
Any directions made under section 130 (1) of the former Act and in force immediately before the commencement of this Act shall be taken to be directions under section 99 (1) and (2).
The Public Service (General) Regulation 1984 is repealed.
The Public Service (Stores and Services) Regulation 1984 is repealed.
The Public Service (Savings and Transitional Provisions) Regulation 1980 is repealed.
A person who, immediately before the commencement of Part 2A of this Act:
(a) was holding a position referred to in Schedule 3A or Part 2 of Schedule 3B, and
(b) was appointed to that position for a term,
shall, on that commencement, be taken to have been appointed to that position for the balance of the person’s term of office.
A person who, immediately before the commencement of Part 2A of this Act:
(a) was holding a position referred to in Schedule 3A or Part 2 of Schedule 3B, and
(b) was not appointed to that position for a term,
shall, on that commencement, be taken to have been appointed to that position for a term ending on the date on which the person reaches the age of 60 years or the fifth anniversary of that commencement, whichever is the earlier.
Until otherwise determined under Part 2A of this Act, the conditions of employment (including remuneration) of a person continued in office under this clause shall be the same as those which applied to the person immediately before the commencement of Part 2A.
A person who:
(a) is continued in office under this clause, and
(b) immediately before the commencement of Part 2A of this Act, held a special division position and was not holding office for a term, and
(c) resigns or is removed from office (except for misbehaviour) during the term for which the person is continued in office under this clause or completes that term and is not re-appointed to the same position, and
(d) has not reached the age of 60 years,
is entitled to be appointed to a position in the Public Service:
(e) not lower in salary than the current salary for the position in the Public Service which the person held immediately before becoming a special division officer (or a similar position), and
(f) with duties appropriate to that salary.
In subclause (4),
A person who:
(a) is continued in office under this clause, and
(b) immediately before the commencement of Part 2A of this Act, held a statutory office, and
(c) had an entitlement by law to an appointment in the service of the Government on ceasing to hold that office, and
(d) resigns or is removed from office (except for misbehaviour) during the term for which the person is continued in office under this clause or completes that term and is not re-appointed to the same position, and
(e) has not reached the age of 60 years,
retains the entitlement to that appointment in the service of the Government.
A position:
(a) which is referred to in Schedule 3A or 3B on the commencement of that Schedule, and
(b) which is established by or under an Act (other than this Act),
does not become a chief executive position or a senior executive position until the employment of a person in that position is declared by or under that Act to be subject to Part 2A of this Act.
An officer who was, immediately before the repeal of section 16, an unattached officer in the special division because of that section or section 52 of the Public Service Act 1979 shall, on that repeal, be taken to be an unattached officer in the Public Service under section 42Q.
The amendments made by Schedule 2 to the Anti-Discrimination (Compulsory Retirement) Amendment Act 1990 do not apply to a person referred to in section 49ZU (1) (c) of that Act before 1 January 1993.
In this Part:
The Public Employment Industrial Relations Authority is abolished on the commencement of section 49A of this Act. The assets, rights and liabilities of that Authority immediately before its abolition become assets, right and liabilities of the Public Employment Office.
After the abolition of the Industrial Authority, a reference to that Authority in any other Act, or in any instrument made under any Act or in any other instrument of any kind, is taken to be a reference to the Public Employment Office.
Any agreement between the Industrial Authority and any association, organisation or person with respect to industrial matters (including any enterprise agreement) that is in force immediately before the abolition of the Industrial Authority is taken on and from that abolition to have been entered into between the Public Employment Office and the association, organisation or person.
Any determination by the Industrial Authority under this Act of the salary, wages or other remuneration of officers and temporary employees that is in force immediately before the abolition of the Industrial Authority is taken on and from that abolition to have been made by the Public Employment Office.
Any approval, delegation, direction or notification given by the Industrial Authority under this Act that is in force immediately before the abolition of the Industrial Authority is taken on and from that abolition to have been given by the Public Employment Office.
The amendment made to section 42S or 92 by the 1995 Act does not apply in respect of a person during a term of office as an executive officer (even as an unattached officer) or term appointee that commenced before the commencement of the amendment.
A proclamation under section 49 of the Constitution Act 1902 is taken to have been made as an order under Division 1 of Part 3A of this Act (and may be amended or repealed accordingly).
An order under the Administrative Changes Act 1976 is taken to have been made under Division 2 of Part 3A of this Act (and may be amended or repealed accordingly).
The amendments to the Darling Harbour Authority Act 1984 made by the 1995 Act do not affect the appointment or term of office of any part-time member of the Authority under that Act.
A position specified in Column 1 of the Table to this clause is referred to in this clause as an abolished position and the position specified opposite that position in Column 2 of that Table is referred to in this clause as the equivalent Department Head position for the abolished position.
The person holding office in an abolished position immediately before its abolition by the 1995 Act is taken to have been appointed under this Act to the equivalent Department Head position for the abolished position. Such an appointment is for the remainder of the period of appointment to the abolished position.
Appointment by virtue of this clause to an equivalent Department Head position does not change the contract of employment under Part 2A between the person as an executive officer and the executive officer’s employer. The contract is taken to be with the executive officer’s employer in the equivalent Department Head position.
A person holding an appointment (whether as deputy or otherwise) to act in the office of the holder of an abolished position immediately before its abolition by the 1995 Act is taken to have been appointed by the Governor under section 10B to act in the equivalent Department Head position (even if the person appointed is not an officer of the Public Service). This subclause only applies to an appointment for 6 months after the commencement of this clause (unless the appointment is sooner terminated by the Governor under section 10B).
Column 1 | Column 2 |
Abolished position | New public service position |
Director of Planning under the Environmental Planning and Assessment Act 1979. | Director-General of the Department of Urban Affairs and Planning. |
Director-General of National Parks and Wildlife under the National Parks and Wildlife Act 1974. | Director-General of National Parks and Wildlife. |
Commissioner of Corrective Services under the Prisons Act 1952. | Commissioner of Corrective Services. |
Deputy Commissioner of Corrective Services under the Prisons Act 1952. | Deputy Commissioner of Corrective Services. |
General Manager of the Motor Accidents Authority under the Motor Accidents Act 1988. | General Manager of the Motor Accidents Authority. |
Deputy General Manager of the Motor Accidents Authority under the Motor Accidents Act 1988. | Deputy General Manager of the Motor Accidents Authority. |
General Manager of the Darling Harbour Authority under the Darling Harbour Authority Act 1984. | General Manager of the Darling Harbour Authority. |
Chief Executive Officer of the Home Purchase Assistance Authority under the Home Purchase Assistance Authority Act 1993. | Chief Executive Officer of the Home Purchase Assistance Authority. |
Chairperson of the Ethnic Affairs Commission under the Ethnic Affairs Commission Act 1979. | Chairperson of the Ethnic Affairs Commission. |
General Manager of the WorkCover Authority under the WorkCover Administration Act 1989. | General Manager of the WorkCover Authority. |
Director-General of the Environment Protection Authority under the Protection of the Environment Administration Act 1991. | Director-General of the Environment Protection Authority. |
In this Part:
An amendment made by the 1998 amending Act does not affect the employment of a person as a temporary employee that commenced before the commencement of the amendment, except as provided by this clause.
The employee becomes a departmental temporary employee unless a determination is made under subclause (3) in relation to the employee.
The Director-General of the Premier’s Department can make a determination that the employee was, immediately before the commencement of section 38B, employed to do work for a political office holder as defined in that section, and such a determination has the following effect:
(a) the employee becomes a special temporary employee,
(b) the employee is to be issued with an instrument of employment specifying the name of the political office holder concerned and specifying an indefinite term as the term of that employment.
Section 38A extends to periods of employment that occurred before the commencement of that section.
A determination in force under section 63 immediately before the commencement of the amendment of that section by the 1998 amending Act is taken to have been made under that section as so amended.
In this Part:
The Council is taken not to have been dissolved by the operation of section 47E (1) merely because the amending Act is assented to on or after 13 October 1998.
A member of the Council is taken not to have ceased to hold office as a member of the Council merely because the amending Act is assented to on or after 13 October 1998.
Despite clause 3 of Schedule 8, the term of office of a person who is or was an appointed member immediately before 13 October 1998 expires on 31 December 1998.
Anything done or omitted to be done in the name of the Council:
(a) on or after 13 October 1998, and
(b) before the date of assent to the amending Act,
is as valid as it would have been had this Act, as amended by the amending Act, been in force when the thing was done or omitted to be done.
(Section 44)
In this Schedule:
The Minister may, from time to time, appoint a person to be the deputy of a member, and may at any time revoke any such appointment.
In the absence of a member, the member’s deputy:
(a) may, if available, act in the place of the member, and
(b) while so acting, has all the functions of the member and is taken to be the member.
A person while acting in the place of an appointed member is entitled to be paid such fees and allowances as the Minister may from time to time determine in respect of the person.
Subject to this Schedule, an appointed member holds office for such term (not exceeding 3 years) as is specified in the instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.
An appointed member is entitled to be paid such fees and allowances as the Minister from time to time determines in respect of the member.
The office of an appointed member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Minister, or
(d) is removed from office by the Minister under this clause, or
(e) becomes a public sector employee (as defined in subclause (3)), or
(f) is absent from 3 consecutive meetings of the Council of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Minister or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Minister for having been absent from those meetings, or
(g) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(h) becomes a mentally incapacitated person, or
(i) 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 committed in New South Wales, would be an offence so punishable.
The Minister may remove an appointed member from office at any time.
A public sector employee is a person who is an officer or temporary employee under this Act, or an employee or member of staff of a declared authority.
If the office of an appointed member becomes vacant, a person is, subject to this Act, required to be appointed to fill the vacancy.
A matter or thing done by the Council, a member of the Council or any person acting under the direction of the Council does not, if the matter or thing was done in good faith for the purposes of executing this or any other Act, subject the member or a person so acting personally to any action, liability, claim or demand.
The procedure for the calling and holding of meetings of the Council is to be determined by the Council.
The quorum for a meeting of the Council is 4 of its members.
The Chairperson of the Council or, in the absence of the Chairperson, another member elected to chair the meeting by the members present is to preside at a meeting of the Council.
The person presiding at a meeting of the Council has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
A decision supported by a majority of the votes cast at a meeting of the Council at which a quorum is present is the decision of the Council.
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