Schedule 3 Transfer of health employees
(Section 33)
(1) In this Schedule:appointed day means the day appointed and notified under section 2 (2).
designated person means any statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997.
designated position means a position transferred pursuant to clause 2.
Instrumentality means:
(a) the Commission,(b) the Department,(c) the Administrative Office attached to the Commission, or(d) the Corporation.superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under an Act.
transfer date, in relation to a designated position, means the date upon which the transfer of the position pursuant to clause 2 takes effect.
transferred employee means a person who, on the transfer date, was employed in a designated position and who, in accordance with clause 3, becomes employed in that position as an employee of the person to whom the position is transferred.
transition period means:
(a) in relation to a person who is a transferred employee during the whole of the period of 3 years immediately following the transfer of the designated position in which the person was employed on the transfer date—that period of 3 years, or(b) in relation to a person who ceases to be a transferred employee during the period referred to in paragraph (a)—that part of the period during which the person was a transferred employee.(2) A reference (however expressed) in this Schedule to:(a) employment or service is a reference to employment or service under:(i) the Public Service Act 1979,(ii) section 14A of the Health Commission Act 1972, or(iii) section 14 of this Act, and(b) employment in an Instrumentality includes a reference to employment by an Instrumentality.(3) Where a person:(a) became a transferred employee pursuant to the transfer of a designated position in which the person was employed on the transfer date, and(b) ceases to be an employee of the person by whom, by virtue of clause 3, the person was employed,the person shall, on ceasing to be an employee of the person by whom, by virtue of clause 3, the person was employed, cease to be a transferred employee.(4) Where, by this Schedule, any rights of a person are to be determined as if the person had continued to be employed in the relevant Instrumentality or are to be determined by reference to a person’s service with the relevant Instrumentality, such a reference to the relevant Instrumentality is:(a) where the transfer date is on or after the appointed day—a reference to the Department, or the Corporation, as the case may require, or(b) where the transfer date is before the appointed day—a reference to:(i) the Administrative Office attached to the Commission, or the Commission, as the case may require, before the appointed day, and(ii) if the person continues to be employed by a designated employer on or after the appointed day—the Department, or the Corporation, respectively, on or after the appointed day.(5) This Schedule shall be construed before the appointed day as if section 4 had commenced on the date of assent to this Act.(6) The Governor may, by proclamation published in the Gazette, declare a person specified in the proclamation to be a designated person for the purposes of this Schedule.
2 Governor may transfer certain positions
(1) The Governor, may, on the recommendation of the Minister, by order published in the Gazette, transfer from an Instrumentality to a specified person positions in or in the service of the Instrumentality.(2) An order under subclause (1) in relation to the transfer of positions in or in the service of an Instrumentality shall specify:(a) the person to whom the positions are transferred,(b) the positions which are transferred, and(c) the date on which the transfer takes effect.(3) A position specified in an order under subclause (1) may be specified:(a) by reference to:(i) the functions or activities which a person employed in that position performs, or(ii) the location at which those functions or activities are performed,or both, or(b) in any other manner.(4) An order for the transfer of a position under subclause (1) has no effect if published after 1 July 1997.
(1) A person who, immediately before the transfer date in relation to a designated position, was employed in an Instrumentality in the designated position and who:(a) presents himself or herself for work, on the transfer date, in that position, or(b) has, in the opinion of the Minister, a reasonable excuse for not presenting himself or herself for work, on the transfer date, in that position but presents himself or herself for work in that position as soon as practicable after that date,shall, upon presenting himself or herself for work:(c) under paragraph (a), become, on the transfer date, an employee of the person to whom the position is transferred, or(d) under paragraph (b), be deemed to have become, on the transfer date, an employee of the person to whom the position is transferred.(2) A person who, immediately before the transfer date in relation to a designated position, is employed in an Instrumentality in the designated position ceases, on that date, to be employed under the Public Service Act 1979 or otherwise in an Instrumentality.(3) This clause has effect notwithstanding anything in Schedule 2.
(1) A transferred employee shall, in respect of service with the person by whom, by virtue of clause 3, the transferred employee is employed, be paid salary or wages, and allowances, at a rate not less than that at which the transferred employee would be paid salary or wages, and allowances, if the designated position in which the transferred employee was employed on the transfer date had not been transferred and the transferred employee had continued to be employed in the relevant Instrumentality.(2) Subclause (1) ceases to apply to or in respect of a transferred employee on the expiration of the transition period if the rate of salary or wages payable to the transferred employee on the transfer date exceeds the maximum rate payable at that date under the relevant award for Grade 10, Administrative and Clerical Division, of the Public Service.(3) Subclause (1) does not apply to or in respect of a transferred employee who has applied for, and been appointed to, another position in the service of the person by whom, by virtue of clause 3, the transferred employee is employed.
(1) Subject to subclause (2), where a transferred employee was, immediately before the transfer of the designated position in which the transferred employee was employed on the transfer date, a contributor to a superannuation scheme, the transferred employee:(a) shall retain any rights accrued or accruing to the transferred employee as such a contributor, and(b) may continue to contribute to any superannuation scheme to which the transferred employee was a contributor immediately before the transfer date,as if the transferred employee had continued to be employed in the relevant Instrumentality during the transferred employee’s service with the person by whom, by virtue of clause 3, the transferred employee is employed, and:(c) the transferred employee’s service in the employment of that person shall be deemed to be service with the Instrumentality for the purposes of any law under which those rights accrued or were accruing or under which the transferred employee continues to contribute, and(d) the transferred employee shall be deemed to be employed in the Instrumentality for the purposes of any superannuation scheme to which, by the operation of this subclause, the transferred employee is entitled to contribute.(2) A person who, but for this subclause, would be entitled under subclause (1) to contribute to a superannuation scheme shall not be so entitled upon the person’s becoming a contributor to any other superannuation scheme, and the provisions of subclause (1) (d) cease to apply to or in respect of the person in any case where the person becomes a contributor to another superannuation scheme.(3) Subclause (2) does not prevent the payment to a transferred employee, upon the transferred employee’s ceasing to be a contributor to a superannuation scheme, of such amount as would have been payable to the transferred employee if the transferred employee had ceased, by reason of resignation, to be a contributor.(4) Where, pursuant to subclause (1) (b), a transferred employee continues to contribute to a superannuation scheme, the person by whom, by virtue of clause 3, the transferred employee is employed shall contribute to that superannuation scheme the same amount as would have been payable by the transferred employee’s employer if the transferred employee had continued to be employed in the relevant Instrumentality and been paid salary or wages at the rate paid to the transferred employee by the person by whom the transferred employee is, by virtue of clause 3, employed.(5) Notwithstanding anything in this Schedule, if a person ceases to be a transferred employee by virtue of the person’s ceasing to be an employee of a designated person, but becomes an employee of another designated person, this clause (with any necessary adaptations) applies, as from the date the person becomes an employee of that other person, to and in relation to the person and that other person in the same way as if the person were employed by that other designated person by virtue of clause 3.(6) Except in circumstances and to the extent prescribed by the regulations, and subject to such conditions as may be prescribed by the regulations, subclause (5) does not apply if there is any period between service with designated persons that exceeds 3 days.
(1) A transferred employee shall, in respect of service with the person by whom, by virtue of clause 3, the transferred employee is employed, be entitled:(a) to such sick leave, annual leave, long service leave and leave in the nature of long service leave as the transferred employee would be entitled to if the designated position in which the transferred employee was employed on the transfer date had not been transferred pursuant to clause 2 and the transferred employee had continued to be employed in the relevant Instrumentality, or(b) on termination of the transferred employee’s services, to payment by the person by whom the transferred employee is employed of such gratuity or other benefit as the transferred employee would be entitled to if the designated position in which the transferred employee was employed had not been so transferred and the transferred employee had continued to be employed in the relevant Instrumentality.(2) (Repealed)(3) For the purposes of annual leave, long service leave or leave in the nature of long service leave, service by a transferred employee with the relevant Instrumentality before the transfer of the designated position in which the transferred employee was employed on the transfer date shall be deemed to be service with the person by whom the transferred employee is, by virtue of clause 3, employed.(4) For the purpose of calculating the entitlement of a transferred employee to long service leave or leave in the nature of long service leave at any time, there shall be deducted from the amount of long service leave or leave in the nature of long service leave to which, but for this subclause, the transferred employee would be entitled:(a) any long service leave or leave in the nature of long service leave, and(b) the equivalent, in long service leave or leave in the nature of long service leave, of any benefit instead of long service leave or leave in the nature of long service leave,taken or received by the transferred employee before that time.(5) For the purpose of calculating the entitlement of a transferred employee to any kind of leave as referred to in subclause (2) or (3), service by the transferred employee with the relevant Instrumentality before the transfer of the designated position in which the transferred employee was employed on the transfer date is the service to which, immediately before that transfer, regard would have been had for the purpose of calculating that entitlement.
7 Appointment to Public Service
(1) In this clause, special transition period means, in relation to a person who became a transferred employee by virtue of this Schedule, the period of 3 years immediately following the transfer of the designated position in which the transferred employee was employed on the transfer date.(2) A person who:(a) became a transferred employee by virtue of this Schedule,(b) immediately before the transfer of the designated position in which the person was employed on the transfer date, was employed in that position as an officer within the meaning of section 4 of the Public Service Act 1979, and(c) during the special transition period, applies for appointment, or is appointed to a position in the Public Service,shall, in relation to the application or appointment and any matter concerning the application or appointment, be deemed to be an officer within the meaning of that section employed in an Instrumentality.(3) Subclause (2) does not apply to a person who applies for appointment, or is appointed, to a position in the Public Service if the person has, on a previous occasion in the special transition period, been appointed to a position in the Public Service.
8 Redundancy of transferred employees
The employment of a transferred employee may not be terminated by the person by whom, by virtue of clause 3, the transferred employee is employed on the ground of redundancy arising from the operation of this Schedule.
Where an appeal by a transferred employee to the Government and Related Employees Appeal Tribunal or to the Public Service Board of New South Wales is pending or may be made:(a) immediately before the transfer of the designated position in which the transferred employee was employed on the transfer date, the appeal may be continued, or made, and heard and determined as if the designated position had not been transferred, or(b) immediately before the expiration of the special transition period referred to in clause 7, the appeal may be continued, or made, and heard and determined as if clause 7 continued to apply to and in respect of the transferred employee.
(1) A transferred employee is not entitled to claim, both under this Act and any other Act, benefits in respect of the same period of service.(2) Except as provided in this Schedule, nothing in this Schedule affects the operation of the Industrial Relations Act 1996.
(1) The Governor may make regulations containing other provisions of a savings or transitional nature consequent on the enactment of this Schedule.(2) A provision made under subclause (1) may take effect as from the date of assent to this Act or a later date.(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication therein, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication therein.(4) A reference in any provision of this Act (this clause excepted) to regulations does not include a reference to regulations made under this clause.