Public Sector Management (Executives) Amendment Act 1989 (NSW)
PUBLIC SECTOR MANAGEMENT (EXECUTIVES)
AMENDMENT ACT 1989 No. 103
NEW SOUTH WALES
TABLE OF PROVISIONS
1. Short title
Z Commencement
3. Amendment of Public Sector Management Act 1988 No. 33
SCHEDULE 1 - AMENDMENTS
PUBLIC SECTOR MANAGEMENT (EXECUTIVES)
AMENDMENT ACT 1989 No. 103
NEW SOUTH WALES
Act No. 103,1989
An Act to amend the Public Sector Management Act 1988 with respect to chief executive officers and senior executive officers, and for other purposes. [Assented to 15 August 1989]
See also Statutory and Other OCDces Remuneration (E iecutiva) Amendment Act 1989; Miscellaneous
Aces (Public Sector Esccutiws Employineiit) Amendment Act 198^ Public Sector Executives
Superannuation Act 1989; Miscellaneous Acts (Public Sector Executives Supersnmiation) Amendment
Act 1989.
Public Sector Management (Executives) Amendment 1989
The Legislature of New South Wales enacts;
Short title
1. This Act may be cited as the Public Sector Management
(Executives) Amendment Act 1989.
Commencement
2. This Act commences on a day or days to be appointed by
proclamatioa
Amendment of Public Sector Management Act 1988 No. 33
3. The Public Sector Management Act 1988 is amended as set out
in Schedule 1.
SCHEDULE 1 - AMENDMENTS
(Sec. 3)
(1) Section 3 (Definitions):
| (a) | Section 3(1): Insert, in alphabetical order, the following definitions: |
"chief executive officer" means a person holding a
position referred to in Schedule 3A; "chief executive position" means a position
referred to in Schedule 3A;
"senior executive officer" means a person holding
a position referred to in Schedule 3B;
"senior executive position" means a position
referred to in Schedule 3B;
| (b) |
Section 3 (1), definition of "disciplinary inquiry": executive officer in the Public Service".
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| (c) | Section 3 (1), definition of "management review": After "Department", insert "or declared authority". |
| (d) |
Section 3 (1), definition of "officer": executive officer or a senior executive officer appointed under that Part".
| (e) |
Section 3 (1), definitions of "special division officer", Omit the definitions.
| (2) | Section 4 (Act not to apply to certain positions): | |||
| ||||
| (3) | Section 6 (Special Division of the Public Service etc.): |
Omit the sectioa
(4) Section 8 (Staff positions in a Department):
Omit section 8 (3), insert instead:
| (3) | 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 - with the approval of the Industrial Authority. |
(5) Sections lOA, lOB:
After section 10, insert
Appointments to Department Head positions
lOA (1) Appointments to vacant Department Head positions are to be made by the Governor.
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(2) It does not matter whether the person appointed is or is not already an officer of the Public Service.
(3) The employment under this Part of the Department Head is subject to Part 2A (Public Sector Executives).
(4) in this section and section lOB:
"Department Head position" means a position specified
in column 2 of Schedule 1, and any position in the
Public Service specified in column 2 of Schedule 2.
Acting appointments to Department Head positions
lOB. (1) The Governor may appoint an officer of the Public Service to act in a Department Head position which is vacant or the holder of which is suspended, sick or absent
(2) 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).
(3) The Governor may, at any time, terminate the appointment of an officer to act in a Department Head position.
(6) Part 2, Division 3:
Omit the Division, insert instead:
Division 3 - Senior executive officers
Appointments to senior executive positions
13. (1) 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.
(2) It does not matter whether the person appointed is or is not already an officer of the Public Service.
(3) The employment under this Part of the senior executive officer is subject to Part 2A (Public Sector Executives).
(4) Subsection (1) is subject to any express provision to the contrary in this or any other Act
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Acting appointments to senior executive positions
14. (1) 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.
(2) An officer, while acting in any such senior ejKcutive position, has all the functions of the holder of the position (but is not to be taken to be a senior erecutive officer for the purposes of Part 2A).
(3) The appropriate Department Head may, at any time, terminate the appointment of an officer to act in any such senior ejfficutive position.
Merit appointment etc.
15. (1) Sections 26 (Selection for appointment to be on merit) and 31 (Advertising vacancies) apply to and in respect of appointments to senior executive positions in the Public Service.
| (2) | An administrative unit for the purposes of the |
application of section 26 includes all senior executive
positions in the Public Service or a Teaching Service.
(7) Part 2, Division 4, heading:
Omit the heading, insert instead;
Division 4 - Officers (other than
Department Heads and senior
executive ofQcers)
(8) Section 22:
Omit the section, insert instead
Officers to nhora Division applies
22. (1) 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:
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(a) chief executive positions; and
| (b) | except in the case of sections 26 and 31 - senior executive prositions. |
| (2) | Sections 35 - 37 do not apply to officers holding |
positions referred to in subsection (1) (a) or (b).
| (9) | P a rt2 A |
After Part 2, insert
PART 2A - PUBLIC SECTOR EXECUTIVES
Division 1 - Preliminary
Definitions
42A (1) In this Part
"contract of employment" means a contract of
employment under this Part between an executive
officer and the officer’s employer;
"executive officer" means a chief executive
officer or a senior executive officer, "executive position" means a chief executive
position or a senior eiKcutive position;
"public authority" means a declared authority or an
authority which is established by or under an Act and which is (or whose governing body is) constituted by persons appointed by the Governor or a Minister,
"remuneration package" means the remuneration
package for an executive officer determined for the time being under the Statutory and Other Offices Remuneration Act 1975.
(2) In this Part, a reference to the employer of an e?ECutive 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 |
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| (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. |
| (3) | 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. |
Division 2 - Composition of Executive Services
Composition of Chief Executive Service
42B, The Chief Executive Service comprises the persons holding the positions referred to in Schedule 3A
Composition of Senior Executive Service
42C. The Senior Efficutive Service comprises the
persons holding the positions referred to in Schedule 3B.
Amendment or substitution of Schedule 3A or 3B
42D. (1) The Governor may, by proclamation, amend
Schedule 3A or 3B by inserting the description of any
jXDsition, or by omitting or amending any such description.
(2) The Governor may, by proclamation, omit Schedule
3A or 3B and insert instead a Schedule containing
descriptions of positions.
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Positions which may be included in Schedule 3A or 3B
42E 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. |
Division 3 - Employment of executive officers
Term appointments
42F. Subject to this Act, an ejECutive officer holds office
for such period (not eiaceeding 5 years) as is specified in the officer’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment
Employment of executive officers to be governed by contract of employment
42G. (1) The employment of an executive officer shall be governed by a contract of employment between the officer and his or her employer,
(2) A contract of employment may be made before or
after the appointment of the executive officer concerned.
(3) An executive officer is not appointed by, nor is an
executive officer’s term of office fixed by, the contract of
employment
(4) 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.
| (5) A contract of employment may be varied at any time by a further contract | tween the parties. |
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(6) 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
(7) The employer of an ejcecutive officer (being an officer in the seiMce of the Crown) acts for and on behalf of the Crown in any contract of employment between the officer and the employer.
Matters regulated by contract of employment
42H- (1) 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. |
| (2) | 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 |
Performance reviews
421. (1) 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.
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| (2) | Any such review is to have regard to the agreed |
performance criteria for the position and any other
relevant matter.
Industrial arbitration or legal proceedings excluded
42J. (1) 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 efficutive officer. |
(2) 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 Arbitration Act 1940.
(3) Subsection (2) applies whether or not any person has been appointed to a vacant executive position.
(4) Any award or industrial agreement (whether made before or after the commencement of this section) does not have effect in so for as it relates to the employment of executive officers.
(5) 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.
(6) An appeal does not lie to the Government and Related Employees Appeal Tribunal in relation to the employment of an executive officer.
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(7) 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
(8) In this section, "industrial agreement" includes any agreement under section 64 and any determination under section 63.
Division 4 - Remuneration of executive ofDcers
DeHnitions
42K. (1) In this Division:
"approved" means approved for the time being for the
purposes of this Division by the Minister in writing, either generally or in relation to any executive officer or class of executive officers;
"employment benefit" means:
| (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 etKcutive officer at the cost of the officer’s employer (being a benefit of a private nature); |
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"monetary remuneration" includes allowances paid in
money, but does not include:
(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 e?«cutive officer’s duties; |
"superannuation scheme" means a superannuation
scheme established by or under an Act or approved
for the purposes of this definition.
(2) A reference in the definition of "employment benefit" to an executive officer’s employer is a reference to the person in whose service the officer is employed.
Monetary remuneration and employment benefits for executive officers
42L (1) Executive officers are entitled to monetary remuneration at such rate, and employment benefits of such kinds, as are provided in their contract of employment
(2) The total amount o£
| (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.
(3) The cost of an employment benefit is the approved
amount or an amount calculated in the approved manner.
(4) 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 |
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or agreed fees for attendance at meetings or the
like).
(5) 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
(6) 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 i£
| (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 |
(7) Subsection (6) has effect despite anything to the
contrary in the Aimual Holidays Act 1944 or any other Act
(8) 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
officers contract of employment
(9) 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.
Travelling and subsistence allowances etc,
42M (1) 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, |
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as the officer’s employer may from time to time determine
in respect of the officer.
(2) 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 sectioa |
Division 5 - Removal, retirement etc.
of executive officers
Definitions
42N. A reference in this Division to:
| (a) | employment in the public sector is a reference to employment as an officer in the Public Service or a Teaching 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. |
Vacation of executive positions
420. (1) 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 or is retired 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. |
(2) This section does not affect any other provision by or under which an executive officer vacates his or her position.
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Retirement of executive officers
42P. (1) An executive ofScen
| (a) | may retire on or after reaching 60 years of age; or | |||
| (b) | may be retired: | |||
| ||||
| at any time after the officer has reached 60 years of age. |
(2) An executive officer is not required to retire on reaching 65 years of age.
(3) However, the period of appointment or re-appointment o£
| (a) | an executive officer who has not reached 64 years of age must not extend beyond the time that the officer would reach 65 years of age; or |
| (b) | an executive officer who has reached 64 years of age but who has not reached 65 years of age must not eM:eed 12 months; or |
| (c) | an executive officer wiio has reached 65 years of age must not exceed 12 months at any one time. |
Removal of executive officers from office
42Q. (1) The Governor may remove an eiEcutive officer from an executive position at any time.
(2) 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, a Teaching Service or another service of the Crown, as the case requires; and |
(b) may revoke any such declaration.
(3) While a declaration under subsection (2) remains in
force, the person to whom the declaration relates:
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| (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 positioiL |
| (4) I£ | |
| (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 another executive position.
(5) An officer in the Public Service, a Teaching Service or another service of the Crown w îo ceases to be an executive officer because of subsection (4) ceases to be an officer in that service, unless appointed to another position in that service.
(6) 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.
(7) In the case of an executive officer in the service of a public authority, 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. |
(8) This section does not prevent an executive officer being removed from office apart from this section.
Right to return to public sector for certain executive oDicers
42R (1) An executive officer may elect to retain a right of return to the public sector i£
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| (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. |
(2) Any such election;
| (a) | may be made in the first contract of employment entered into by the executive officer, but (unless made in that firet contract) may not be made in any subsequent contract for the same or another ejKcutive 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.
(3) 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.
(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 e:fficutive 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. |
(5) A person is not entitled to an engagement in the public sector under this section it
| (a) | the person ceased to be an executive officer because the person resigned or was (after due inquiry) removed from office for misbehaviour, or |
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(b) the person is over 60 years of age.
(6) 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 fon | |||
|
whichever is the lesser,
(7) 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).
(8) 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.
(9) 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. |
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| (10) | A reference in this section to an executive officer |
ceasing to be an executive officer is, in the case of an ejfficutive 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).
Compensation etc. where executive officer has no right to return to public sector
42S. (1) 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) | an executive officer who is, after reaching the age of 60 years and before reaching the age of 65 years, retired from office under section 42P; or |
| (d) | an executive officer who was employed in the public sector when first appointed as an e>Ecutive officer, whose term of office as an executive officer expires, who has not reached the age of 60 years and who is not re-appointed, |
being a person who is not entitled to be engaged in the
public sector under section 42R.
(2) A person to whom this section applies is entitled to such compensation (if any) as the Statutory and Other Offices Remuneration Tribunal determines.
(3) The Statutory and Other Offices Remuneration Tribunal:
| (a) | maydetermine 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 genera! directions given to the Tribunal by the Minister as to the matters to be |
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| taken | into | consideration | when | it | makes |
determinations under this section, (4) The maximum compensation payable is an amount
equal to the person’s remuneration package for.
(a) the period of one year, or
| (b) | if the person was removed or retired from office - the period starting from that removal or retirement and ending when the person’s term of office would have expired; or |
| (c) | if the person’s term of office expired - the period starting from that expiry and ending when the person would reach the age of 60 years, |
whichever is the shorter or shortest period.
(5) 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).
(6) An executive officer who is removed from office or not re-appointed is not entitled to compensation under this section i£
| (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 positioiL |
(7) 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.
(8) The person may not be engaged in the public sector during the period so specified, unless arrangements are made for a refund of the proportionate amount of the compensatioiL
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Election to take compensation
42T. (1) 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.
(2) On the election taking effect, the person ceases to be entitled to be engaged in the public sector under section 42R.
Division 6 - General
Appointment of incumbent officers to senior executive positions
42U. (1) When a position becomes a senior ejKcutive 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.
(2) 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 positioiL
(3) The person who continues to hold the position may be appointed to the position without the vacancy being advertised.
(4) 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.
(5) This section does not apply to a senior executive position referred to in Part 2 of Schedule 3B (statutory positions).
Incumbent officers - accrued leave
42V. (1) A person who:
| (a) | was engaged in the public sector when appointed to an executive position; and |
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| (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.
(2) An election under this section is to be made within
the time and in the manner determined by the Minister.
(3) The money value of leave is to be calculated at the
rate of pay of the person immediately before appointment
to the executive position.
(4) 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 wWch is paid out by a gratuity under subsection (1)).
(5) A reference in this section to an engagement in the public sector has the same meaning as in Division 5.
Change in status of positions
42W. (1) 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
(2) If a position ceases to be an e^cutive position became 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. |
(3) However, the proclamation by which a position is
omitted from Schedule 3 A or 3B may direct that the
person holding the position is to cease to hold the position,
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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.
(4) 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).
(5) 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 l ^ d of executive positioa
Change in title of positions
42X 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 positioa
Approval to engage in other paid employment
42Y. 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.
Operation of Part
42Z. (1) This Part prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or contract with a persoa
| (2) | 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.
| (10) | Part 3, heading: |
Omit "PUBUC SERVICE", insert instead "PUBUC
SECTOR".
Public Sector Management (Executives) Amendment 1989
SCHEDULE 1 - AMENDMENTS - continued
| (11) | Section 43 (Functions of the Minister): |
Omit "Public Service" wherever occurring, insert instead
"public sector".
| (12) | Sections 45 (Power to enter Department’s premises etc.); 46 (Management assistance and advice); 47 (Reports on personnel practices and policies); 48 (Power of Minister to carry out management reviews): |
After "Department" and "Department Head" wherever occurring, insert "or declared authority".
| (13) | Part 3, Division 3, heading: |
After "management", insert "of the Public Service".
| (14) | Section 53A |
After section 53, insert
Provisions applying to senior executive officers in the
Public Service
53 A (1) Sections 50 - 53 do not apply to senior eirecutive officers in the Public Service.
(2) If the Department Head considers it to be in the interests of the Department to do so, the Department Head may transfer a senior executive officer from one position in the Department to another position in the Department (being a position with the same remuneration package).
(3) If the appropriate Department Head considers it to be in the interests of the Public Service to do so, the Department Head may, with the approval of the Minister and the Department Head of the other Department concerned, transfer a senior ejEcutive officer from a position in the Department to a position in another Department (being a position with the same remuneration package).
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SCHEDULE 1 - AMENDMENTS - continued
| (4) | A transfer under this section may be made only if the |
senior executive officer possesses the qualifications
required for the other position.
| (15) | Section 63 (Industrial Authority may determine salaries, wages etc.); | |||||
|
(4) This section does not apply in relation to
remuneration or allowances fixed under Part 2A or under
the Statutory and Other Offices Remuneration Act 1975.
| (16) | Section 64 (Industrial Authority may enter into agreements): |
Omit section 64 (3), insert instead:
(3) This section does not apply in relation to
remuneration or allowances fixed under Part 2A or under
the Statutory and Other Offices Remuneration Act 1975.
| (17) | Part 5, Division 1, heading |
Omit the heading insert instead;
Division 1 - Application and interpretation
| (18) | Section 65A: |
Before section 66, insert: officers)
65A This Part applies to officers in the Public Service
but (unless otherwise expressly provided by this Act) does
not apply to chief ejfficutive officers in the Public Service.
Public Sector Management (Executives) Amendment 1989
SCHEDULE 1 - AMENDMENTS - continued
| (19) | Part 5, Division 2: |
Omit the Division.
| (20) | Part 5, Division 3> heading: |
Omit the heading, insert instead:
Division 3 - Officers (other than chief
executive officers)
| (21) | Section 73 (Division not to apply to special division officers): Omit the sectioa | ||
| (22) |
| ||
| (23) | Section 77A |
After section 77, insert
Effect of dismissal of senior executive officers
77A If a senior executive officer is dismissed from the Public Service under this Division;
| (a) | the term for which the officer was appointed is to be regarded as having come to an end; and |
| (b) | no compensation is payable in respect of the dismissal |
| (24) | Section 80 (Officer not to engage in other employment without permission): |
Omit section 80 (7), insert instead:
(7) This section does not apply to chief executive officers or senior executive officers.
| (25) | Section 81 (Officers retiring or resigning before breach of discipline dealt with); |
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Public Sector Management (Executives) Amendment 1989
SCHEDULE 1 - AMENDMENTS - continued
| (a) | Section 81 (1); Omit "an inquiry", insert instead "a disciplinary inquiry", |
| (b) | Section 81 (5): Omit the subsection. |
| (26) | Section 82 (Minister may direct holding of special inquiry): | |
| ||
| (b) At the end of the section, insert |
(2) A special inquiry may be conducted under this section into a matter involving an alleged breach of discipline by a chief executive officer or a senior executive officer (whether or not the person has ceased to be such an officer).
(3) If a special inquiry is conducted under this section into a matter involving an alleged breach of discipline by a senior executive officer in the Public Service, a disciplinary inquiry is not required to be held under Part 5.
| (27) | Sections 82, 83: |
After "Department" wherever occurring, insert "or declared authority".
| (28) | Section 86 (Power to amend Schedule 3 relating to declared authorities): |
Section 86 (2): section 87, or the provisions of section 88,", insert instead "any of the provisions of this Act relating to declared authorities".
Public Sector Management (Executives) Amendment 1989
SCHEDULE 1 - AMENDMENTS - continued
| (29) | Section 87: |
Omit the section, insert instead: Certain provisions not to apply
87. A provision of this Act relating to declared authorities does not apply to a particular declared authority if the provision is specified after the name of that authority in Schedule 3 as not applying to that authority.
| (30) | Section 89 (Definitions): | |
|
Section 89 (1), definitions of "office holder", "term Governor or a Minister".
| (b) | Section 89 (4): Omit the subsection. |
| (31) | Section 89A |
After section 89, insert
Part not to apply to executive officers
89A This Part does not apply to a person in the person’s capacity as a chief executive officer or a senior executive officer.
| (32) | Section 90 (Removal of term appointee from office): |
Section 90 (4) (a):
Omit the paragraph.
| (33) | Section 91 (Re-appointment to public sector following removal of term appointee): |
Omit section 91 (1), insert instead:
(1) This section applies to a person who is removed from office under section W and who has not reached the age of 60 years.
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| (34) | Section 92 (Compensation for office holder following removal or retirement): | |||
| ||||
| (35) | Section 95 (Certain other Acts not to be affected); | |||
|
Section 95; 1987’, insert instead ", the State Authorities Superannuation Act 1987 and the Public Sector Executives Superannuation Act 1989".
| (b) | At the end of the section, insert (2) Subsection (1) does not limit section 42J. |
| (36) | Section 99 (Deductions for rent etc. in certain cases): |
After section 99 (4), insert
| (5) | This section is subject, in the case of a chief eifficutive |
officer or senior executive officer, to the contract of
employment entered into by the officer under Part 2A
| (37) | Sections 100 (Extended leave for officers etc.); 101 (Attachment of wages or salary of officers etc.); |
After "has effect" wherever occurring, insert "in relation to officers and temporary employees".
| (38) | Section 102 (Regulations): |
|
Section 102 (2) (d): executive position".
Public Sector Management (Executives) Amendment 1989
SCHEDULE 1 - AMENDMENTS - continued
| (b) | Section 102 (2) (i): Omit "(other than special division officers)". |
| (39) | Schedule 3 (Declared Authorities): |
Omit "(section 7 not to apply)" wherever occurring.
| (40) | Schedules 3A, 3B: |
After Schedule 3, insert
SCHEDULE 3A - CHIEF EXECUTIVE
POSITIONS
(Sec. 42B)
Part 1 - Heads of Government
Departments
Department Head positions specified in Column 2 of
Schedule 1.
Part 2 - Heads of Administrative
Offices
Director-General of Corrective Services
General Manager of the New South Wales Dairy
Corporation
General Manager of the Darling Harbour Authority
Director of the Office of the Minister for the
Environment
Chairman of the Ethnic Affairs Commission
Commissioner constituting the Forestry Commission
Director of the Legal Aid Commission
General Manager of the Motor Accidents Authority
Director of National Parks and Wildlife
Chairman of the New South Wales Meat Industry
Authority
Director of Planning
Commissioner of the Soil Conservation Service
Director of State Lotteries
Director of the State Pollution Control Commission
General Manager of the Tourism Commission
General Manager of the Workers Compensation and
Rehabilitation Authority
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SCHEDULE 1 - AMENDMENTS - continued
Part 3 - Heads of Public Authorities
President of the Board of Fire Commissioners of New
South Wales
President of the Broken Hill Water Board
Managing Director of the New South Wales Egg
Corporation
General Manager of the Electricity Commission of New
South Wales
General Manager of the Fish Marketing Authority
Managing Director of the Grain Handling Authority of
New South Wales
General Manager of the Homebush Abattoir
Corporation
Managing Director of the Hunter Water Board Chief Executive of the Maritime Services Board Chief Executive of the Roads and Traffic Authority
President of the State Authorities Superannuation
Board
Chief Executive of the State Rail Authority
Chief Executive of the State Transit Authority
Director of the Sydney Cove Redevelopment Authority
Managing Director of the Sydney Market Authority
General Manager of the Totalizator Agency Board
Managing Director of the Waste Management Authority
of New South Wales
Managing Director of the Water Board Director of the Zoological Parks Board Full-time member of a Water Supply Authority (other
than the President of the Broken Hill Water Board)
Public Sector Management (Executives) Amendment 1989
SCHEDULE 1 - AMENDMENTS - continued
SCHEDULE 3B - SENIOR EXECUTIVE
POSITIONS
(Sec. 42C)
Part 1 - Public Service Positions
Part 2 - Statutory Positions
Chairman of the Council of Auctioneers and Agents
Commissioner for Corporate Affairs
Deputy Director-General of Corrective Services
Director of Equal Opportunity in Public Employment
Deputy Chairman of the Ethnic Affairs Commission
(being a full-time commissioner)
Assistant Commissioner under the Forestry Act 1916 General Manager of the Home Care Service of New
South Wales
Deputy General Manager of the Homebush Abattoir
Corporation
Deputy Managing Director of the Hunter Water Board
Deputy General Manager of the Motor Accidents
Authority
Chief EjKCutive of the New South Wales Rural
Assistance Authority
Full-time member of the State Authorities
Superannuation Board
Vice-President of the State Authorities Superannuation
Board
Deputy Managing Director of the Waste Management
Authority of New South Wales
Deputy Managing Director of the Water Board
Western Lands Commissioner
Assistant Western Lands Commissioner
Deputy General Manager of the Workers
Compensation and Rehabilitation Authority
Part 3 - Teaching Service Positions Part 4 - Public Authorities Positions
| (41) | Schedule 4 (Special provisions relating to special division term officers): |
Omit the Schedule.
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SCHEDULE 1 - AMENDMENTS - continued
| (42) | Schedule 7 (Savings, transitional and other provisions): | |
|
Public Sector Management (Executives) Amendment
Act 1989;
Statutory and Other Offices Remuneration
(Executives) Amendment Act 1989;
Miscellaneous Acts (Public Sector Executives
Employment) Amendment Act 1989.
| (b) | Part 3; After Part 2, insert |
PART 3 - PROVISIONS CONSEQUENT ON
ENACTMENT OF PUBUC SECTOR
MANAGEMENT (EXECUTIVES) AMENDMENT
ACT 1989 AND COGNATE ACTS
Existing chief executive and other statutory office holders
22. (1) A person who, immediately before the
commencement of Part 2A of this Act
| (a) | was holding a position referred to in Schedule 3 A or Part 2 of &hedule 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.
| (2) | A | person | who, | immediately | before | the |
commencement of Part 2A of this Act
| (a) | was holding a position referred to in Schedule 3 A or Part 2 of &hedule 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.
Public Sector M ana^ment (EMCUtives) Amendment 1989
SCHEDULE 1 - AMENDMENTS - continued
(3) 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 2 A
(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 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 officfer (or a similar position); and |
| (f) | with duties appropriate to that salary. |
(5) In subclause (4), "special division position" and "special division officer" have the same meanings they had in the Public Service Act 1979 (before its repeal) and in this Act (before the commencement of Part 2A of this Act).
(6) 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) | resigm or is removed from office (e?a:ept for misbehaviour) during the term for which the person |
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SCHEDULE 1 - AMENDMENTS - continued
is continued in office under this clause or completes that terra 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
Progressive commencement of Schedules 3A and 3B
23. 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
Saving for officers on unattached list
24. 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.
[Ministers second reading speech made in -
Legislative Assembly on 27 Ally 1989
Legislative Council on 8 Aigust 1989]
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