State Service Amendment Act 2012 (TAS)

State Service Amendment Act 2012

An Act to amend the State Service Act 2000 , the Audit Act 2008 , the Industrial Relations Act 1984 and the Integrity Commission Act 2009

[Royal Assent 22 November 2012]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1Preliminary1Short titleThis Act may be cited as the State Service Amendment Act 2012 . 2CommencementThis Act commences on a day to be proclaimed. PART 2State Service Act 2000 Amended3Principal ActIn this Part, the State Service Act 2000 is referred to as the Principal Act. 4Section 3 amended (Interpretation) Section 3 of the Principal Act is amended as follows: (a) by inserting the following definition after the definition of appropriate Minister in subsection (1) : Auditor-General means the person holding the office of Auditor-General by virtue of section 9(1) of the Audit Act 2008 ; (b) by omitting the definitions of Commissioner and Commissioner’s Directions from subsection (1) ; (c) by inserting the following definitions after the definition of employee in subsection (1) : Employer means the Minister administering this Act; Employment Directions means the directions issued by the Employer under section 17(1) ; (d) by inserting the following definition after the definition of Head of Agency in subsection (1) : Head of the State Service means the person appointed and holding office under section 20 ; (e) by omitting the definition of Ministerial Directions from subsection (1) ; (f) by omitting " section 7 ." from the definition of State Service Principles in subsection (1) and substituting " section 7 ;"; (g) by inserting the following definition after the definition of State Service Principles in subsection (1) : Tasmanian Industrial Commission means the Tasmanian Industrial Commission constituted under section 5 of the Industrial Relations Act 1984 . (h) by omitting subsection (3) and substituting the following subsection: (3)  In this Act – this Act, except in section 17 , includes Employment Directions. 5Section 10 amended (Breaches of Code of Conduct) Section 10 of the Principal Act is amended as follows: (a) by omitting from subsection (3) "Commissioner" and substituting "Employer"; (b) by omitting from subsection (5) "Commissioner or a Head of Agency" and substituting "Employer, a Head of Agency or the Integrity Commissioner". 6Parts 4 and 5 substituted Parts 4 and 5 of the Principal Act are repealed and the following Parts are substituted: PART 4The Employer 14The Employer The Employer is the Minister administering this Act. 15Functions of Employer (1)  The Employer has the following functions: (a) to take such steps as the Employer considers necessary to uphold, promote and ensure adherence to the State Service Principles; (b) to determine practices, procedures and standards in relation to management of, and employment in, the State Service and to evaluate their application within Agencies; (c) to consult with, and provide assistance to, Heads of Agencies in relation to the implementation of the State Service Principles and the Code of Conduct; (d) to evaluate the adequacy of systems and procedures in Agencies for ensuring compliance with the Code of Conduct; (e) to determine requirements for the employment of employees or groups of employees in the State Service; (f) to determine duties to be of a senior executive nature or equivalent specialist nature; (g) to develop and coordinate training, education and development programs for the State Service; (h) to develop and implement recruitment programs for the State Service; (i) to develop classification standards for officers not covered by an award and, where appropriate, procedures to enable Heads of Agencies to classify duties to be performed by officers within the State Service and, where no classification standards have been developed, to approve the assignment of classifications to duties of officers; (j) to develop principles and standards to assist Heads of Agencies in the management of the performance of employees. (2)  The Employer, in performing the functions referred to in subsection (1) , is to act according to equity and good conscience and in a manner that is consistent with the provisions of this Act. (3)  The Employer is to keep a record of all officers and employees showing such details as are prescribed. 16Powers of Employer (1)  The Employer may, consistent with the provisions of this Act, do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of the Employer’s functions under this Act. (2)  Without limiting subsection (1) , in addition to any power conferred on the Employer by any other provision of this Act, the Employer may, for the purpose of carrying out the Employer’s functions under this Act – (a) conduct such investigations as the Employer considers necessary for the purposes of this Act; and (b) refer any matter arising under this Act to the Ombudsman, Integrity Commission, Tasmanian Industrial Commission, Anti-Discrimination Commissioner or any other person or body that may be prescribed by the regulations; and (c) disclose information to the Integrity Commission if the information is relevant to the performance or exercise by the Integrity Commission of its functions or powers. 17Employment Directions (1)  The Employer may issue Employment Directions which relate to the administration of the State Service and employment matters relevant to this Act and which have effect according to their tenor unless they are inconsistent with or repugnant to other provisions of this Act. (2)  Employment Directions may be issued under this section – (a) so as to apply – (i) to employees generally or to a specified class or classes of employees; and (ii) to officers generally or to a specified class or classes of officers; and (iii) generally or in a particular case or class of cases or in particular cases or classes of cases; and (iv) at all times or at a specified time or at specified times; and (v) throughout the State or in a specified part or specified parts of the State; and (vi) throughout the State Service or in a specified Agency or Agencies; and (b) so as to require a matter affected by them to be – (i) in accordance with a specified standard or specified requirement; or (ii) as approved by, or to the satisfaction of, a specified person or body or a specified class of persons or bodies; and (c) so as to confer on a specified person or body or a specified class of persons or bodies a discretionary authority; and (d) so as to provide that, in a specified case or a specified class of cases, whether on specified conditions or unconditionally, persons or things of a class, or classes of persons or things, may be exempted from the Employment Directions, either wholly or to such extent as is specified; and (e) so as to – (i) revoke any Ministerial Directions or Commissioner’s Directions in force under this Act immediately before the commencement of the State Service Amendment Act 2012 ; or (ii) vary or revoke any Employment Directions. (3)  In subsection (2)  – specified means specified in the Employment Directions. (4)  Employment Directions issued under this section are not statutory rules within the meaning of the Rules Publication Act 1953 . (5)  The Ministerial Directions and Commissioner’s Directions in force under this Act immediately before the commencement of the State Service Amendment Act 2012 remain in force until revoked under subsection (2)(e)(i) . 18Investigations into administrative and management matters (1)  The Employer may request the Auditor-General to conduct an investigation into any matter which relates to the administration or management of the State Service. (2)  The Employer may make arrangements with any Head of Agency for such officers, employees and resources as the Employer considers necessary to be made available to the Auditor-General to enable an investigation referred to in subsection (1) to be conducted. (3)  The Auditor-General may examine the performance and exercise of the Employer’s functions and powers under this Act. (4) The Auditor-General is to include in the annual plan referred to in section 11 of the Audit Act 2008 such matters as the Auditor-General considers necessary to be examined pursuant to the exercise of the Auditor-General’s power under subsection (3) . 19Reports by Employer The Employer, on or before 31 October in each year, is to send to both Houses of Parliament a report on the performance and exercise of the Employer’s functions and powers during the period of 12 months ending on 30 June in that year. PART 5Head of the State Service 20Head of the State Service (1)  The Premier is to appoint a person holding an office specified in Column 2 of Part 1 of Schedule 1 to be the Head of the State Service. (2)  The Head of the State Service is to perform and exercise the functions and powers of the Employer under this Act (other than the power to issue Employment Directions). (3)  Anything done by the Head of the State Service pursuant to subsection (2) is taken to have been done, and is as valid and effectual as if it had been done, by the Employer. (4)  In addition to performing the functions and exercising the powers referred to in subsection (2) , the Head of the State Service is to perform and exercise such other functions and powers as may be specified in this Act. 21Delegation by Head of the State Service The Head of the State Service may delegate – (a) any of the functions and powers of the Employer that the Head of the State Service is to perform or exercise by virtue of section 20(2) ; and (b) any of his or her other functions or powers (other than this power of delegation). 7Section 29 amended (Creation of certain offices of Head of Agency and senior executive) Section 29(4) of the Principal Act is amended by omitting "Commissioner" and substituting "Employer". 8Section 31 amended (Appointment, &c., of officers) Section 31 of the Principal Act is amended as follows: (a) by omitting from subsection (10) “Ministerial Directions and Commissioner’s Directions that relate to that officer” and substituting "Employment Directions"; (b) by inserting the following subsections after subsection (10) : (11)  A person appointed as an officer, whose appointment is not renewed or whose appointment is terminated before the expiration of the term for which he or she was appointed, may, subject to subsection (12) , by notice in writing served on the Employer, elect, within 14 days after the termination or expiration, to be reappointed as a permanent employee. (12)  A person referred to in subsection (11) may only make an election if, immediately before his or her first appointment as an officer, the person was a permanent employee and has since that appointment been continuously appointed as an officer. (13)  A person who elects under subsection (11) to be reappointed as a permanent employee is taken to be a permanent employee in the Agency in which the employee was appointed immediately before the employee so elected. (14)  A person who is taken to be a permanent employee under subsection (13) is entitled to be paid a salary not less than the salary which the person would have been entitled to be paid if the person had remained at the classification applicable to the person’s appointment as a permanent employee immediately before his or her appointment as an officer. 9Section 31A insertedAfter section 31 of the Principal Act , the following section is inserted in Part 6: 31AAppointments under other Acts Where the Minister administering this Act is required in any other Act to make an appointment under this Act, the appointment is to be made by the Premier if the appointment is to an office created under section 29 or any prescribed office. 10Section 34 amended (Functions and powers of Heads of Agencies) Section 34 of the Principal Act is amended as follows: (a) by omitting from subsection (1) “Ministerial Directions and Commissioner’s Directions” and substituting "Employment Direction"; (b) by inserting in subsection (1)(b) "in that Agency" after "employees"; (c) by inserting in subsection (1)(c) "in that Agency" after "positions"; (d) by omitting from subsection (1)(d)(ii) "Commissioner" twice occurring and substituting "Employer"; (e) by inserting in subsection (1)(h) "in that Agency" after "program"; (f) by omitting from subsection (2) "Minister" and substituting "Employer". 11Section 36 amended (Annual reports by Heads of Agencies) Section 36 of the Principal Act is amended by inserting after subsection (1) the following subsection: (1A)  Each Head of Agency, in each year, is to submit to the Head of the State Service in a form approved by the Head of the State Service, for the period of 12 months that ended on the last preceding 30 June, a report relating to the employment of persons under this Act. 12Section 37 amended (Appointment and promotion of employees) Section 37 of the Principal Act is amended as follows: (a) by omitting from subsection (1)(a) “the Commissioner’s” and substituting "Employment"; (b) by omitting from subsection (1)(b) "Minister" and substituting "Employer"; (c) by omitting subsection (2) ; (d) by omitting from subsection (4) "Minister, on the recommendation of the Commissioner," and substituting "Employer"; (e) by omitting from subsection (5) "Commissioner" and substituting "Employer"; (f) by omitting from subsection (6) "Commissioner" and substituting "Employer"; (g) by omitting from subsection (7) "Commissioner" and substituting "Employer". 13Section 38 amended (Terms and conditions of employment of employees) Section 38 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "Minister" and substituting "Employer"; (b) by omitting subsections (4) , (5) , (6) and (7) . 14Section 39 amended (Procedure for appointments and promotions) Section 39 of the Principal Act is amended as follows: (a) by omitting from subsection (1) “the Commissioner’s” and substituting "Employment"; (b) by omitting from subsection (1) "Commissioner" and substituting "Employer"; (c) by omitting from subsection (4) "Minister" and substituting "Employer"; (d) by omitting from subsection (5) "Commissioner" first occurring and substituting "Tasmanian Industrial Commission"; (e) by omitting from subsection (5) "Commissioner" second occurring and substituting "Tasmanian Industrial Commission". 15Section 40 amended (Request by Head of Agency to promote permanent employee without advertising) Section 40 of the Principal Act is amended as follows: (a) by omitting from subsection (1) “Commissioner’s” and substituting “Employer’s”; (b) by omitting from subsection (1) "Commissioner" twice occurring and substituting "Employer"; (c) by omitting from subsection (2) "Commissioner" twice occurring and substituting "Employer"; (d) by omitting from subsection (3) "Commissioner" and substituting "Tasmanian Industrial Commission"; (e) by omitting from subsection (4) "Commissioner" first occurring and substituting "Tasmanian Industrial Commission"; (f) by omitting from subsection (4) "Commissioner" second occurring and substituting "Employer". 16Section 41 amended (Voluntary transfers between Agencies) Section 41(4) of the Principal Act is amended by omitting “the Commissioner’s” and substituting "Employment". 17Section 42 amended (Compulsory transfers between Agencies) Section 42 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "Minister" and substituting "Employer"; (b) by omitting from subsection (2) "Minister" and substituting "Employer"; (c) by omitting from subsection (3) "Minister" and substituting "Employer"; (d) by omitting subsection (4) . 18Section 43 amended (Suspension) Section 43 of the Principal Act is amended by omitting "The regulations" and substituting "Employment Directions". 19Section 45 amended (Termination of employment of fixed-term employees) Section 45 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "Minister" and substituting "Employer"; (b) by omitting subsection (2) . 20Section 46 amended (Arrangements relating to secondment of persons) Section 46 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "Commissioner" twice occurring and substituting "Employer"; (b) by omitting "Commissioner" from paragraph (a) of the definition of parties in subsection (6) and substituting "Employer"; (c) by omitting "Commissioner" from paragraph (b) of the definition of parties in subsection (6) and substituting "Employer". 21Section 47 amended (Redeployment) Section 47 of the Principal Act is amended as follows: (a) by omitting from subsection (1)(a) "Commissioner" and substituting "Employer"; (b) by omitting from subsection (2) "Commissioner" and substituting "Employer"; (c) by omitting from subsection (3) "Commissioner" and substituting "Employer"; (d) by omitting from subsection (4) "Commissioner" three times occurring and substituting "Employer"; (e) by omitting from subsection (5) "Commissioner" first occurring and substituting "Employer"; (f) by omitting from subsection (5)(b) "Commissioner" and substituting "Employer"; (g) by omitting from subsection (6) "Commissioner" twice occurring and substituting "Employer"; (h) by omitting from subsection (9) "Commissioner" three times occurring and substituting "Employer"; (i) by omitting from subsection (9) “Commissioner’s” and substituting “Employer’s”; (j) by omitting from subsection (10) "Commissioner" three times occurring and substituting "Employer"; (k) by omitting from subsection (10) “Commissioner’s” and substituting “Employer’s”; (l) by omitting from subsection (11) "Commissioner" and substituting "Employer"; (m) by omitting from subsection (11) “Commissioner’s” and substituting “Employer’s”; (n) by omitting from subsection (12) "Commissioner" twice occurring and substituting "Employer". 22Section 48 amended (Inability of employees to perform duties) Section 48 of the Principal Act is amended as follows: (a) by omitting from subsection (1) "Minister" and substituting "Employer"; (b) by omitting from subsection (2) "Minister" and substituting "Employer"; (c) by omitting from subsection (3) "Commissioner" and substituting "Employer". 23Section 50 amended (Review of actions) Section 50 of the Principal Act is amended as follows: (a) by omitting from subsection (1) “Commissioner for a review, in accordance with the Commissioner’s Directions” and substituting "Tasmanian Industrial Commission for a review"; (b) by omitting the note from subsection (3) ; (c) by inserting the following subsection after subsection (3) : (4)  Notwithstanding anything contained in subsection (1) , (2) or (3) , disputes in relation to the decision to terminate employment are to be dealt with by the appropriate industrial tribunal in accordance with the legislation under which that tribunal is established. 24Section 50A insertedAfter section 50 of the Principal Act , the following section is inserted in Division 4: 50ARelationship with Ombudsman and other persons The Tasmanian Industrial Commission is not empowered to determine a matter under section 51 that is within the jurisdiction of and is being dealt with by the Ombudsman, Integrity Commission or Anti-Discrimination Commissioner, or any other person or body that may be prescribed, until the matter has been dealt with. 25Section 51 amended (Determination of a review) Section 51 of the Principal Act is amended as follows: (a) by omitting subsection (1) and substituting the following subsections: (1)  Subject to subsection (1A) , the procedure for a review under section 50(1) is to be determined by the President of the Tasmanian Industrial Commission. (1A)  Timeframes for an employee to apply for a review under section 50(1) are as prescribed by the regulations. (b) by omitting from subsection (2) "Commissioner" first occurring and substituting "President of the Tasmanian Industrial Commission"; (c) by omitting from subsection (2) "Commissioner" second occurring and substituting "Tasmanian Industrial Commission"; (d) by omitting from subsection (4) "Commissioner" twice occurring and substituting "Tasmanian Industrial Commission"; (e) by omitting from subsection (5) "Commissioner" twice occurring and substituting "Tasmanian Industrial Commission"; (f) by omitting from subsection (6) "Commissioner" first occurring and substituting "Tasmanian Industrial Commission"; (g) by omitting from subsection (6)(a) "Commissioner" and substituting "Tasmanian Industrial Commission"; (h) by omitting from subsection (6)(b) "Commissioner" and substituting "Tasmanian Industrial Commission"; (i) by omitting from subsection (6)(c) "Minister" twice occurring and substituting "Employer"; (j) by omitting from subsection (6)(c) "Commissioner" and substituting "Tasmanian Industrial Commission"; (k) by omitting from subsection (7) "Commissioner" and substituting "Tasmanian Industrial Commission"; (l) by inserting the following subsection after subsection (7) : (8)  The Tasmanian Industrial Commission, on or before 31 October or such other date as may be prescribed, is to lay before each House of Parliament a report on the performance of its functions and exercise of its powers under this Act during the period of 12 months ending on the last preceding 30 June. 26Section 51C amended (Underperformance, &c., of officer or employee) Section 51C of the Principal Act is amended as follows: (a) by omitting from subsection (1) "Minister" first occurring and substituting "Employer"; (b) by omitting from subsection (1) "a Ministerial" and substituting "an Employment"; (c) by omitting from subsection (1)(b) "Minister" and substituting "Employer"; (d) by omitting from subsection (2) "Ministerial" and substituting "Employment"; (e) by omitting from subsection (3) "Ministerial" and substituting "Employment"; (f) by omitting from subsection (3)(b) "Minister" and substituting "Employer"; (g) by omitting from subsection (4) "Ministerial" and substituting "Employment"; (h) by omitting from subsection (5) "Minister" and substituting "Employer". 27Section 52 amended (Public notification) Section 52 of the Principal Act is amended by omitting "Commissioner" and substituting "Employer". 28Section 53 amended (Holidays) Section 53 of the Principal Act is amended as follows: (a) by omitting from subsection (3) "Minister" and substituting "Employer"; (b) by omitting from subsection (4) "Minister" and substituting "Employer"; (c) by omitting from subsection (5) "Minister" twice occurring and substituting "Employer". 29Section 55 amended (Regulations) Section 55 of the Principal Act is amended as follows: (a) by omitting from subsection (2)(c) "terminated;" and substituting "terminated."; (b) by omitting paragraph (d) from subsection (2) ; (c) by omitting from subsection (4) "Minister, the Commissioner" and substituting "Employer". PART 3Audit Act 2008 Amended30Principal ActIn this Part, the Audit Act 2008 is referred to as the Principal Act. 31Section 4 amended (Interpretation) Section 4(1) of the Principal Act is amended by inserting after the definition of authorised person the following definition: Employer has the same meaning as in the State Service Act 2000 ; 32Section 12 amended (Application of State Service Act 2000 limited) Section 12 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection: (2)  The State Service Act 2000 applies in relation to the Auditor-General to the extent that that Act confers powers or imposes functions on the Auditor-General – (a) as Head of Agency in his or her capacity as an employing authority; or (b) under section 18 of that Act. 33Section 23 amended (Examinations and investigations) Section 23(1) of the Principal Act is amended as follows: (a) by omitting from paragraph (f)(iii) "entity." and substituting "entity;"; (b) by inserting the following paragraph after paragraph (f) : (g) examining the performance and exercise of the Employer’s functions and powers under the State Service Act 2000 . 34Section 26C insertedAfter section 26B of the Principal Act , the following section is inserted in Division 1: 26CInvestigations at request of Employer (1) If the Employer requests the Auditor-General to investigate any matter under section 18 of the State Service Act 2000 , the Auditor-General may carry out that investigation. (2)  Any investigation carried out by the Auditor-General under subsection (1) is to be carried out in accordance with his or her powers under this Act. 35Section 30 amended (Report on examination or investigation) Section 30(2) of the Principal Act is amended as follows: (a) by inserting in paragraph (a) "Employer," after "Treasurer,"; (b) by inserting in paragraph (b) "Employer," after "invite the Treasurer,"; (c) by inserting in paragraph (b) "Employer," after "to the Treasurer,". PART 4Industrial Relations Act 1984 Amended36Principal ActIn this Part, the Industrial Relations Act 1984 is referred to as the Principal Act. 37Section 5 amended (Constitution of the Commission) Section 5 of the Principal Act is amended as follows: (a) by omitting subsection (2) and substituting the following subsection: (2)  Subject to this section, the Commission consists of a minimum of 2 members, one of whom is the President, and one of whom is the Deputy President, appointed by the Governor, and such additional Commissioners as may be appointed under section 10A . (b) by omitting from subsection (4)(b)(iii) "Commissioner; and" and substituting "Commissioner; or"; (c) by inserting the following subparagraph after subparagraph (iii) in subsection (4)(b) : (iv) has demonstrated understanding of public sector administration; and 38Section 10 amended (Substitute to act during absence of certain Commissioners) Section 10 of the Principal Act is amended by omitting subsection (6) . 39Section 10A insertedAfter section 10 of the Principal Act , the following section is inserted in Division 1: 10AAdditional Commissioners (1)  The Minister may appoint additional Commissioners. (2)  The appointment of an additional Commissioner is to be for such period as the Minister may determine to enable the Commission to perform a function specified by the Minister. (3)  Subject to subsection (4) , the provisions of section 5(3) and (4) , section 6(3) and (4) , section 7(1) , sections 8 , 9 , 11 and 12 apply to the appointment of an additional Commissioner as if the reference in those provisions to Commissioner were read as a reference to additional Commissioner. (4)  A person who holds office as a member of a Commission or similar body having jurisdiction in relation to industrial matters that is constituted under an enactment of another State or a Territory may, with the approval of the Minister, be appointed as an additional Commissioner. 40Section 15 amended (General functions and powers of President) Section 15(1) of the Principal Act is amended as follows: (a) by omitting from paragraph (j) " section 75 (7A) ." and substituting " section 75 (7A) ; and"; (b) by inserting the following paragraph after paragraph (j) : (k) appoint a Commissioner to hear an application for review under section 50 of the State Service Act 2000 . 41Section 19AA insertedAfter section 19 of the Principal Act , the following section is inserted in Division 2: 19AACommission to review matters under section 50 of the State Service Act 2000 (1) The Commission is to review a matter in respect of which an application for review has been made to it under section 50(1) of the State Service Act 2000 . (2) The Commission may refer any matter in respect of which an application for review has been made to it under section 50(1) of the State Service Act 2000 to the Ombudsman, the Integrity Commission or the Anti-Discrimination Commissioner or any other person or body that may be prescribed in the regulations. (3) A person is not entitled to make application to the Full Bench of the Commission in respect of a matter referred to in section 50(1) of the State Service Act 2000 . 42Section 29 amended (Hearings for settling disputes) Section 29(1AA) of the Principal Act is amended by omitting "by the State Service Commissioner under section 24(2) of the State Service Act 2000 " and substituting "by the Employer under section 16(2)(b) of the State Service Act 2000 ". PART 5Integrity Commission Act 2009 Amended43Principal ActIn this Part, the Integrity Commission Act 2009 is referred to as the Principal Act. 44Section 4 amended (Interpretation) Section 4(1) of the Principal Act is amended by omitting paragraph (d) from the definition of integrity entity . 45Section 14 amended (Members of Board) Section 14(1) of the Principal Act is amended by omitting paragraph (d) . PART 6Miscellaneous46Review of Act (1)  The Minister is to review the operation of the amendments effected by this Act as soon as practicable after the third anniversary of its commencement. (2)  The Minister is to cause a report on the outcome of the review to be tabled in each House of Parliament within 10 sitting-days of that House after the review is completed.

[Second reading presentation speech made in:

House of Assembly on 23 OCTOBER 2012

Legislative Council on 1 NOVEMBER 2012]