Chapter 9 The NSW Health Service
Part 1 Employment of staff in the NSW Health Service
(1) The NSW Health Service consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown.(2) This Part does not affect any other means (statutory or otherwise) by which persons may be employed in the service of the Crown.Note. Other ways in which persons are employed in the service of the Crown include employment in the Government Service (see Chapter 1A of the Public Sector Employment and Management Act 2002), employment in the Teaching Service or employment in the NSW Police Force.
116 Employment of staff generally
(1) The Government of New South Wales may employ staff under this Part:(a) to enable local health districts and statutory health corporations, and the public hospitals that they control, to exercise their functions, and(b) to enable declared affiliated health organisations to exercise their functions in relation to their recognised establishments and recognised services, and(c) to enable the Director-General to exercise his or her functions under Chapter 5A in relation to ambulance services, and(d) to enable the Director-General to exercise his or her functions under Part 1A of Chapter 10 in relation to the provision of services to public health organisations and the public hospitals that they control, and(e) to enable the Health Administration Corporation to exercise its functions under this or any other Act.(2) The employment of staff in the NSW Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff.(3) The Director-General may, subject to subsection (2), exercise on behalf of the Government of New South Wales, the employer functions of the Government in relation to the staff employed in the NSW Health Service.Note. The Director-General’s functions under this or any other Act may, under section 21 of the Health Administration Act 1982, be delegated to any person.(4) The Director-General may create divisions (however described) of staff in the NSW Health Service.(5) This section does not limit the purposes for which, or the manner in which, staff may be employed in the NSW Health Service.
116A Salary, conditions etc of staff employed in the NSW Health Service
(1) The Director-General may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law.(2) The Director-General may give directions to a public health organisation requiring the payment by the organisation, on behalf of the Government of New South Wales, of the salary, wages and other employment-related costs (such as superannuation, workers compensation, public liability insurance and vicarious tortious liability) of those members of the NSW Health Service who are employed under this Part to enable the public health organisation to exercise its functions.(3) The Director-General may enter into an agreement with any association or organisation representing a group or class of members of the NSW Health Service with respect to the conditions of employment (including salaries, wages or remuneration) of that group or class. Any such agreement may (subject to Part 2) extend to conditions in respect of the employment of persons convicted of, or charged with, serious sex or violence offences.(4) An agreement under subsection (3) binds all members of staff in the group or class affected by the agreement, and no such member, whether a member of the association or organisation with which the agreement was entered into or not, has any right of appeal against the terms of the agreement.(5) This section does not apply in relation to any conditions of employment determined under Part 3 of this Chapter of any member of staff of the NSW Health Service whose employment is subject to that Part.
116B Special provisions relating to staff employed in connection with declared affiliated health organisations
(1) A person cannot be employed under this Part to enable a declared affiliated health organisation to exercise its functions in connection with its recognised establishments and recognised services unless the affiliated health organisation is satisfied that the person is suitable to carry out duties in connection with the organisation having regard to the health care philosophy of the organisation.(2) Section 56 of the Anti-Discrimination Act 1977 applies in relation to the employment under this Part of staff in connection with a declared affiliated health organisation.
116C Transfer of staff within the NSW Health Service
(1) The Director-General may, on the ground of redundancy, direct the transfer of a member of the NSW Health Service (the staff member) from one position in the NSW Health Service to another position in the Service at a salary in accordance with any general determination under section 116A (1), but only if:(a) the Director-General is satisfied that:(i) the number of persons who are employed in or in connection with the public health organisation concerned exceeds the number that appears to be necessary for the effective, efficient and economical management of the functions and activities of the organisation, either generally or at a particular location, or(ii) the mix of skills or other expertise of the persons who are employed in or in connection with the public health organisation concerned appears to be unsuitable for the effective, efficient and economical management of the functions and activities of the organisation, either generally or at a particular location, and(b) the Director-General is satisfied that the staff member possesses the essential qualifications specified for the other position and the work assigned to the other position is appropriate to the skills and qualifications of the staff member, and(c) if the staff member is to be transferred to a position in connection with a declared affiliated health organisation—the affiliated health organisation has been consulted by the Director-General as to the suitability of the staff member to carry out duties in connection with the organisation having regard to the health care philosophy of the organisation.(2) If a staff member refuses a transfer from one position to another under this section, the Director-General may, if satisfied that the staff member has no valid reason for so refusing, dismiss the member from the NSW Health Service.(3) No compensation is payable in respect of the dismissal.(4) Nothing in this section affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 or any other statutory right that a member of staff may have in relation to his or her dismissal from the NSW Health Service under this section.(5) Nothing in this section prevents the transfer, under any other law, of members of staff of the NSW Health Service.
116D Director-General may arrange for use of services or facilities outside of NSW Health Service
For the purposes of facilitating the exercising of functions within the public health system, the Director-General may arrange for the use of the services of any staff (including by way of secondment to the NSW Health Service) or facilities of any Division of the Government Service or of a public or local authority.
116E Obligations of declared affiliated health organisations under certain legislation
(1) For the purposes of the Work Health and Safety Act 2011, a declared affiliated health organisation has, in respect of the staff employed in the NSW Health Service to enable the organisation to exercise its functions, the functions and liabilities of the person conducting the business or undertaking conducted by a recognised establishment or recognised service of the organisation.(2) A reference in the Anti-Discrimination Act 1977 to an employer in relation to employment in the NSW Health Service in connection with a declared affiliated health organisation and its recognised establishments and recognised services is taken to be a reference to the declared affiliated health organisation.
116F Operation of privacy legislation
If any staff are employed under this Part in the NSW Health Service to enable a public health organisation to exercise its functions, the staff are (however described) taken, for the purposes of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002, to be part of the public health organisation.
116G Miscellaneous provisions relating to civil liability
(1) A reference in this section to a public health organisation does not include a reference to an affiliated health organisation unless it is a declared affiliated health organisation.(2) Part 5 of the Workers Compensation Act 1987 applies to work injury damages recoverable from the Government of New South Wales, and to work injury damages recoverable from a public health organisation, by or in respect of a person employed in the NSW Health Service to enable the public health organisation to exercise its functions. That Part so applies as if the public health organisation:(a) were an employer of the person in addition to the Government, and(b) were an employer liable to pay compensation under that Act.(3) A policy of insurance may be issued to the Government of New South Wales under the Workers Compensation Act 1987 that is limited to workers employed in connection with a particular public health organisation.(4) If:(a) a person is employed in the NSW Health Service to enable a public health organisation to exercise its functions, and(b) the Government of New South Wales is, as the person’s employer, proceeded against for any negligence or other tort of the person (whether the damages are recoverable in an action for tort or breach of contract or in any other action), and(c) the public health organisation is entitled under a policy of insurance or indemnity to be indemnified in respect of liability that the organisation may incur in respect of that negligence or other tort,the Government is subrogated to the rights of the public health organisation under that policy in respect of the liability incurred by the Government arising from that negligence or other tort.(5) For the purposes of Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996:(a) if a person who is member of the NSW Health Service is appointed (otherwise than on an acting basis) to another position in the NSW Health Service in connection with a different public health organisation or a different division of that Service, the person is taken to have entered into a new contract of employment in respect of that other position, and(b) the cessation of a person’s appointment (whether by way of dismissal, resignation, transfer or otherwise) to a position in the NSW Health Service is taken to terminate the person’s contract of employment in respect of that position.(6) However, a person who holds an appointment to a position that is abolished does not, for the purposes of subsection (5) (b), cease to be appointed to that position until:(a) such time as the person is appointed to another position in the NSW Health Service, or(b) such time as the person’s employment in the NSW Health Service is terminated,whichever occurs first.(7) In this section:work injury damages means damages recoverable from a public health organisation or the Government of New South Wales in respect of injury to or the death of a person employed in the NSW Health Service to enable the public health organisation to exercise its functions caused by the negligence or other tort of the public health organisation or the Government and arising out of the employment of the person by the Government, whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies.
Part 2 Criminal and disciplinary matters concerning staff of NSW Health Service
In this Part:member of staff means a member of the NSW Health Service who is employed under Part 1 of this Chapter to enable a public health organisation to exercise its functions.
117 Duty to report certain criminal conduct and disciplinary matters
(1) A member of staff who is charged with having committed, or is convicted of, a serious sex or violence offence must, within 7 days of the charge being laid or conviction, report that fact in writing to the chief executive of the relevant organisation.Note. The term serious sex or violence offence is defined in the Dictionary to mean an offence involving sexual activity, acts of indecency, physical violence or the threat of physical violence that:(a) if committed in New South Wales, is punishable by imprisonment for 12 months or more, or(b) if committed elsewhere than in New South Wales, would have been an offence punishable by imprisonment for 12 months or more if committed in New South Wales.(2) A member of staff who has a misconduct finding made against him or her under the Health Practitioner Regulation National Law (NSW) must, within 7 days of receiving notice of the finding:(a) report that fact to the chief executive of the relevant organisation, and(b) provide the chief executive with a copy of that finding.(3) In this section:chief executive of the relevant organisation, in relation to a member of staff, means the chief executive of the public health organisation to which the member of staff has been assigned.
misconduct finding includes a finding of professional misconduct or unsatisfactory professional conduct.
Note. Section 142 of the Health Practitioner Regulation National Law imposes obligations on employers to notify the Australian Health Practitioner Regulation Agency of misconduct by health practitioners.
117A Duty of chief executive to report certain conduct
(1) The chief executive of a public health organisation is to report to the relevant professional council any conduct of a member of staff that the chief executive suspects on reasonable grounds may constitute professional misconduct or unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).(2) In this section, relevant professional council means:(a) in relation to a chiropractor, the Chiropractic Council of New South Wales, or(b) in relation to a dentist, dental hygienist, dental prosthetist, dental therapist or an oral health therapist, the Dental Council of New South Wales, or(c) in relation to a medical practitioner, the Medical Council of New South Wales, or(d) in relation to a nurse or midwife, the Nursing and Midwifery Council of New South Wales, or(e) in relation to an optometrist, the Optometry Council of New South Wales, or(f) in relation to an osteopath, the Osteopathy Council of New South Wales, or(g) in relation to a pharmacist, the Pharmacy Council of New South Wales, or(h) in relation to a physiotherapist, the Physiotherapy Council of New South Wales, or(i) in relation to a podiatrist, the Podiatry Council of New South Wales, or(j) in relation to a psychologist, the Psychology Council of New South Wales.
118 Disciplinary action in certain cases of serious sex or violence offences
(1) The chief executive of a public health organisation is, within 30 days (or such further period as may be agreed to by the Director-General) of becoming aware that a member of staff has been convicted (whether before or during his or her employment) of a serious sex or violence offence, to notify the Director-General of the staff member’s conviction.(2) On being notified under subsection (1), the Director-General is to afford the member of staff concerned a reasonable opportunity to make written submissions concerning any matter relevant to the conviction that the staff member wishes to have considered in determining what (if any) disciplinary action should be taken in relation to the staff member.(3) The Director-General may take such disciplinary action as the Director-General considers appropriate (having regard to section 119) against a member of staff who has been convicted (whether before or during his or her employment) of a serious sex or violence offence.(4) This section does not apply to a conviction that occurred before a person was employed if, before that employment, the person notified the Director-General in writing of the fact of the conviction.(5) This section extends to a conviction that occurred before the commencement of this section (as substituted by the Public Sector Employment Legislation Amendment Act 2006).(6) In this section:disciplinary action means:
(a) dismissal from the NSW Health Service, or(b) imposing conditions in respect of the supervision of, or reporting by, a member of staff or in respect of the scope of a staff member’s duties, or(c) transferring a member of staff to another position in the NSW Health Service.
119 Protection of patients, clients and children to be paramount consideration
The protection of a public health organisation’s patients and clients and of children for which it is responsible is to be the paramount consideration in relation to determining whether to take disciplinary action against a member of staff under this Part.
120 No compensation for termination of employment
No compensation (whether for breach of contract or otherwise) is payable in respect of the termination of the employment of a member of staff under this Part.
120A Suspension of members of staff from duty pending decision in relation to misconduct or serious criminal charge
(1) If:(a) the registration of a member of staff as a registered health practitioner is suspended under section 150 of the Health Practitioner Regulation National Law (NSW), or(b) conditions are imposed on the registration of a member of staff as a registered health practitioner under section 150 (1) (b) of that Law that, in the opinion of the Director-General, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(c) an interim prohibition order is made in respect of a member of staff under section 41AA of the Health Care Complaints Act 1993 that prohibits the staff member from providing health services or specified health services, or(d) an interim prohibition order is made in respect of a member of staff under section 41AA of that Act that places conditions on the provision of health services or specified health services by the staff member that, in the opinion of the Director-General, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(e) a member of staff is charged with having committed a serious criminal offence,the Director-General may suspend the member of staff from duty until the suspension, interim prohibition order or conditions have been removed or expire or the criminal charge has been dealt with.Note. Under section 3J of the Public Sector Employment and Management Act 2002 the Public Service Commissioner may, for the purposes of exercising his or her functions, give a direction in writing to the head of a public sector agency in relation to the staff of that agency. The head of a public sector agency to whom such a direction is given must comply with the direction.(2) Any salary payable to a person as a member of staff while the person is suspended from duty under this section is (if the Director-General so directs) to be withheld.(3) If:(a) the registration of the member of staff as a registered health practitioner is cancelled or suspended under section 149C of the Health Practitioner Regulation National Law (NSW), or(b) conditions are imposed on the registration of the member of staff as a registered health practitioner under section 149A (1) (b) of that Law that, in the opinion of the Director-General, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(c) a prohibition order is made in respect of the member of staff under section 41A of the Health Care Complaints Act 1993 that prohibits the staff member from providing health services or specified health services, or(d) a prohibition order is made in respect of the member of staff under section 41A of that Act that places conditions on the provision of health services or specified health services by the staff member that, in the opinion of the Director-General, are inconsistent with any of the inherent requirements of the terms of employment of the staff member, or(e) the person is convicted of the offence concerned,the salary withheld under subsection (2) is forfeited to the State unless the Director-General otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed.(4) If, at the time that the relevant suspension, interim prohibition order or conditions referred to in subsection (1) (a)–(d) are removed or expire, action referred to in subsection (3) (a)–(d) is not taken in relation to the member of staff, the salary withheld under subsection (2) is to be paid to that member of staff unless the Director-General directs that the salary is to be forfeited to the State (other than any salary that was due to the person in respect of a period before the suspension was imposed).(5) If the Director-General has suspended a member of staff from duty under this section, the Director-General may at any time remove the suspension.(6) Nothing in this section prevents the Director-General from suspending a member of staff under any other provision of this Act or any other law (with or without pay) or from taking any other action against a member of staff under this Part.(7) In this section:salary does not include any payment in connection with sick leave, recreation leave or any other leave.
serious criminal offence means an offence committed in New South Wales that is punishable by imprisonment for 5 years or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable.
(1) (Repealed)(2) Nothing in this Part affects the operation of Part 6 (Unfair dismissals) of Chapter 2 of the Industrial Relations Act 1996 or any other statutory right that a member of staff may have in relation to the termination of his or her employment under this Part. However, in exercising its functions under that Part, the Industrial Relations Commission is to have regard to section 119 of this Act.Note. Part 6 of Chapter 2 of the Industrial Relations Act 1996 enables certain employees specified in section 83 of that Act to make an application to the Industrial Relations Commission in respect of a claim that his or her dismissal or threatened dismissal from employment has been or will be harsh, unreasonable or unjust.(3) Nothing in this Part affects the operation of the Criminal Records Act 1991 in relation to spent convictions within the meaning of that Act.Note. Section 22 of the Health Administration Act 1982 makes it an offence for a person to disclose any information obtained in connection with the administration or execution of that Act or any other Act conferring or imposing functions on the Director-General, except in the circumstances specified in that section.
Part 3 The Health Executive Service
(cf PSE&M Act s 63)
(1) In this Part:contract of employment means a contract of employment under this Part between a health executive and the Director-General.
executive position means:
(a) the position of chief executive of a local health district, or(b) a position the subject of a determination referred to in section 121B (1) (b).health executive means a person holding an executive position.
remuneration package means the remuneration package for a health executive determined for the time being by the Director-General under section 121J.
(2) In this Part, a reference to the remuneration package for a health executive is, if a range of amounts has been determined by the Director-General, a reference to:(a) the amount within that range nominated in the executive’s contract of employment, or(b) in any other case, the minimum amount within that range.
Division 2 Composition of Health Executive Service
121B Composition of Health Executive Service
(cf PSE&M Act s 65)
(1) The Health Executive Service comprises:(a) the chief executives of the local health districts, and(a1) the chief executive of the Ambulance Service of NSW, and(b) the persons holding:(i) such positions in the NSW Health Service (including the Ambulance Service of NSW), and(ii) such positions as chief executive of a health corporation board, and(iii) such positions in the Health Professional Registration Boards Division of the Government Service,as are for the time being determined by the Director-General to be executive positions.(2) A list of the positions determined for the time being under subsection (1) (b) is to be made publicly available on the website of the Department of Health.
Division 3 Appointment and employment of health executives
121C Appointment of health executives
(cf PSE&M Act ss 17 and 24)
(1) Appointments to vacant executive positions are to be made by the Director-General.(2) The Director-General may appoint any person employed in the NSW Health Service to act in an executive position while the position is vacant or its holder is suspended, sick or absent.(3) While acting in an executive position, a person has all the functions of the holder of the position, but does not thereby become a health executive.(4) The Director-General may, at any time, terminate the appointment of a person to act in an executive position.(5) This section does not prevent the payment of an allowance to a person employed in the NSW Health Service for exercising all or any of the functions of an executive position while the position is vacant or its holder is suspended, sick or absent.
(cf PSE&M Act s 68)
(1) Subject to this Act, a health executive holds office for such period (not exceeding 5 years) as is specified in the executive’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.(2) A health executive may be re-appointed with effect before the expiry of the executive’s term of office. In that case, the executive’s existing term of office expires.
121E Employment of health executives to be governed by contract of employment
(cf PSE&M Act s 69)
(1) The employment of a health executive is to be governed by a contract of employment between the executive and the Director-General.(2) A contract of employment may be made before or after the appointment of the health executive concerned.(3) A health executive is not appointed by, nor is a health executive’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 health executive concerned.(5) A contract of employment may be varied at any time by a further contract between the parties.(6) A contract of employment may not vary or exclude a provision of this Act or the regulations.
121F Matters regulated by contract of employment
(cf PSE&M Act s 70)
(1) The matters to be dealt with in a contract of employment between a health executive and the Director-General include the following:(a) the duties of the executive’s position (including performance criteria for the purpose of reviews of the executive’s performance),(b) the monetary remuneration and employment benefits for the executive 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).(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 health executive concerned and some other person specified in the contract, or(c) by the Director-General or by some other person or body specified in the contract.
(cf PSE&M Act s 71)
(1) A health executive’s performance must be reviewed, at least annually, by such person as may be nominated by the Director-General.(2) Any such review is to have regard to the agreed performance criteria for the position and any other relevant matter.
121H Industrial arbitration or legal proceedings excluded
(cf PSE&M Act s 72)
(1) In this section, a reference to the employment of a health executive 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 a health executive, or(c) any disciplinary proceedings or disciplinary action taken against a health executive, or(d) the remuneration or conditions of employment of a health executive.(2) The employment of a health executive, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.(3) Subsection (2) applies whether or not any person has been appointed to a vacant executive position.(4) Part 6 (Unfair dismissals) and Part 9 (Unfair contracts) of Chapter 2 of the Industrial Relations Act 1996 do not apply to or in respect of the employment of a health executive.(5) Any State industrial instrument (whether made before or after the commencement of this section) does not have effect in so far as it relates to the employment of health executives.(6) Subsection (5) does not prevent the regulations from applying the provisions of an award or industrial agreement to the employment of a health executive.(7) An appeal does not lie to the Industrial Relations Commission in relation to the employment of a health executive.(8) 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.(9) In this section, industrial agreement includes any determination under section 115.
Division 4 Remuneration of health executives
(cf PSE&M Act s 73)
In this Division:approved means approved for the time being, in writing, by the Director-General, either generally or in relation to any health executive or class of health executives.
employment benefit means:
(a) contributions payable to a superannuation scheme by the Director-General in respect of a health executive, including any liability of the Director-General to make any such contributions or to pay approved costs associated with that scheme, or(b) the provision by the Director-General of a motor vehicle for private use by a health executive, or(c) any other approved benefit provided to a health executive at the cost of the Director-General (being a benefit of a private nature).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 a health executive’s duties.superannuation scheme means a superannuation scheme established by or under an Act or approved for the purposes of this definition.
121J Determination of remuneration packages
(1) The Director-General may from time to time determine the remuneration packages for health executives.(2) The amount of the remuneration package for a health executive is to be no less than the minimum amount that may be determined by the Statutory and Other Offices Remuneration Tribunal under Part 3A of the Statutory and Other Offices Remuneration Act 1975 with respect to the remuneration package for an executive officer within the meaning of Part 3.1 of the Public Sector Employment and Management Act 2002.(3) In making a determination of the remuneration packages for health executives, the Director-General is to give effect to the same policies on increases in remuneration as those that the Industrial Relations Commission is required to give effect to under section 146C of the Industrial Relations Act 1996 when making or varying awards or orders relating to the conditions of employment of public sector employees.
121K Monetary remuneration and employment benefits for health executives
(cf PSE&M Act s 74)
(1) Health executives are entitled to monetary remuneration at such rate, and employment benefits of such kinds, as are provided in their contract of employment.(2) Contributions payable to a superannuation scheme by the Director-General in respect of a health executive that are required to be made by the Director-General under a law of the State relating to superannuation are, until provided for by the executive’s contract of employment, taken to be an employment benefit provided in the contract.(3) The total amount of:(a) the annual rate of monetary remuneration for a health executive, and(b) the annual cost of employment benefits provided for a health executive under the relevant contract of employment,is to be equal to the amount of the remuneration package for the executive.(4) The cost of an employment benefit is the approved amount or an amount calculated in the approved manner.(5) This section does not affect:(a) any approved performance-related incentive payments made to a health executive, or(b) any remuneration or benefits to which a health executive is otherwise entitled by law (such as statutory or agreed fees for attendance at meetings or the like).(6) 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.(7) A health executive is entitled to be paid an amount equivalent to the approved cost of a part of any entitlement to take annual or extended leave with pay if the executive forgoes (with the approval of the Director-General) the right to take that part of that leave. This subsection has effect despite anything to the contrary in the Annual Holidays Act 1944 or any other Act.(8) During any period when the monetary remuneration and employment benefits for a health executive cannot be determined under subsection (1), the executive is entitled to monetary remuneration at the rate of the amount of the remuneration package for the executive, subject to any subsequent adjustment of payments in accordance with the executive’s contract of employment.(9) If the remuneration package for a health executive is varied, the executive is entitled to monetary remuneration and employment benefits in accordance with the executive’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.
121L Travelling and subsistence allowances etc
(cf PSE&M Act s 75)
(1) A health executive 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 executive’s duties,as the Director-General may from time to time determine in respect of the executive.(2) A health executive’s contract of employment:(a) may provide for the payment to the executive of allowances of the kind referred to in this section, and(b) may regulate the payment of allowances to the executive under this section.
Division 5 Removal, retirement etc of health executives
121M Vacation of executive positions
(cf PSE&M Act s 76)
(1) The position of a health executive becomes vacant if the executive:(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 Director-General and the Director-General accepts the resignation.(2) This section does not affect any other provision by or under which a health executive vacates his or her position.
121N Removal of health executives from office
(cf PSE&M Act s 77)
(1) The Director-General may remove a health executive from an executive position at any time for any or no reason and without notice.(2) The Director-General:(a) may declare a health executive who is removed from an executive position by the Director-General under subsection (1) to be an unattached officer, and(b) may revoke any such declaration.(3) While a declaration under subsection (2) remains in force, the person to whom the declaration relates:(a) is to be regarded as a health executive, although not holding an executive position, and(b) is entitled to monetary remuneration and employment benefits as if the person had not been removed from his or her position.(4) If:(a) a health executive is removed from an executive position under subsection (1) and a declaration is not made in relation to the executive under subsection (2), or(b) a declaration under subsection (2) made in relation to a health executive is revoked,the executive ceases to be a health executive, unless appointed to some other executive position.(5) A person who ceases to be a health executive because of subsection (4) ceases to be a member of staff of the NSW Health Service unless appointed to some other position in the NSW Health Service.(6) The making of a declaration under subsection (2) in relation to a health executive does not prevent the executive from ceasing to be a health executive because of the completion of the executive’s term of office.(7) Clause 11 of Schedule 4 to the Public Sector Employment and Management Act 2002 applies to and in respect of a person:(a) who ceases to be a health executive pursuant to this section, and(b) who, immediately before he or she became a health executive, was an executive officer to whom that clause applied,as it would have applied to the person had he or she ceased to be an executive officer, as referred to in clause 11 (7) of that Schedule, when he or she ceased to be a health executive.
121O Compensation etc where health executive is removed from office
(cf PSE&M Act s 78)
(1) This section applies to the following persons:(a) a health executive who is removed from office under section 121N (1) and ceases to be a health executive because of section 121N (4),(b) a health executive who is otherwise removed from office (except for misbehaviour after due inquiry),(c) a health executive who was employed in the NSW Health Service when first appointed as a health executive, whose term of office as a health executive expires and who is not re-appointed.However, this section does not apply to or in respect of a health executive who consents to a transfer at a lower level of remuneration.
(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) may determine that compensation is payable for the failure to re-appoint a health executive only if the Tribunal is satisfied that the person had a reasonable expectation of being re-appointed, and(b) must have regard to any general directions given to the Tribunal by the Minister as to the matters to be taken into consideration when it makes determinations under this section.(4) The maximum compensation payable is an amount equal to the person’s remuneration package for the period of 38 weeks.(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) A health executive who is removed from office or not re-appointed is not entitled to compensation under this section if:(a) the person is appointed on that removal or expiry of term of office:(i) to another executive position within the meaning of this Part, or(ii) to an executive position within the meaning of the Public Sector Employment and Management Act 2002, and(b) the remuneration package for the holder of that position is not less than the remuneration package for the holder of the former position.(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) During the period so specified, the person:(a) may not be employed in a public sector service within the meaning of the Public Sector Employment and Management Act 2002, and(b) may not be employed in the service of a State owned corporation or a subsidiary of a State owned corporation, and(c) may not be appointed to any statutory office,unless arrangements are made for a refund of the proportionate amount of the compensation.
121P Incumbent officers’ accrued leave
(cf PSE&M Act s 80)
(1) A person who:(a) was a chief executive of a statutory health corporation, or was employed in the public sector, when appointed to an executive position, and(b) had a right to accrued extended or annual leave with pay immediately before that appointment, and(c) has not taken that leave before taking up duties in the executive position,is entitled, on taking up those duties, to be paid instead of that leave (or any part of that leave) the money value of that leave (or part) as a gratuity if the person so elects.(2) An election under this section is to be made within the time and in the manner determined by the Director-General.(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 a chief executive of a statutory health corporation, or was employed in the public sector, when appointed to an executive position retains any right to extended, annual, sick or other leave accrued or accruing to the person immediately before the appointment (except any accrued leave which is paid out by a gratuity under subsection (1)).(5) In this section, a reference to employment in the public sector is a reference to:(a) employment in the NSW Health Service, the Government Service or the Teaching Service, or(b) employment as a member of the NSW Police Force, or(c) employment as an officer in the service of a public authority within the meaning of Part 3.1 of the Public Sector Employment and Management Act 2002, or(d) appointment to a statutory office.
121Q Effect on incumbent when position ceases to be executive position
(cf PSE&M Act s 81)
(1) If a position ceases to be designated as an executive position by a determination under section 121B (1) (b):(a) the position is abolished, and(b) any person holding the position ceases to be a member of staff of the NSW Health Service (or of the Government Service in the case of a person holding a position referred to in section 121B (1) (b) (iii)) unless appointed to some other position in the NSW Health Service (or in the Government Service in the case of a person holding a position referred to in section 121B (1) (b) (iii)) or unless declared to be an unattached officer under section 121N (2).(2) A person referred to in subsection (1) (b) has the same rights and obligations as if the person had ceased to be a health executive because of section 121N (4).(3) A determination under section 121B (1) (b) that omits or adds an executive position may contain other provisions of a savings or transitional nature consequent on a position becoming or ceasing to be an executive position or becoming a different kind of executive position.
121R Change in title of positions
(cf PSE&M Act s 82)
A position referred to in a determination under section 121B (1) (b) does not cease to be an executive position merely because of a change in the title of the position.
121S Approval to undertake other paid work
(cf PSE&M Act s 83)
A health executive is not to undertake any paid work outside the duties of the executive position without the consent of the Director-General.
(cf PSE&M Act s 84)
This Part prevails over any inconsistent provision of any other Act or law or of the terms of appointment of or contract with a person.