This Act is the Public Sector Employment and Management Act 2002.
This Act commences on a day or days to be appointed by proclamation.
(1) In this Act:Advisory Board means the Public Service Commission Advisory Board established under Part 1.4.
appropriate Division Head means:
(a) where the expression is used in connection with a Division of the Government Service—the Head of the Division, or(b) where the expression is used in connection with a member of the staff of a Division of the Government Service—the Head of the Division to which the member of staff belongs.Note.In the case of a Division that is designated as a Department of the Public Service (see section 6), the term appropriate Department Head is also used in this Act.
chief executive position means a position referred to in section 64 and chief executive officer means a person holding such a position.
Commissioner (or Public Service Commissioner) means the Public Service Commissioner appointed under Part 1.3.
Department—see section 6.
Division of the Government Service—see section 4C.
Division Head means a Division Head referred to in section 4D.
exercise a function includes perform a duty.
extended leave includes leave in the nature of extended leave.
function includes a power, authority or duty.
Government Service means the Government Service of New South Wales referred to in section 4A.
member of staff of a Division means a member of the group of staff comprising the Division (whether employed as an officer, temporary employee, casual employee or in any other capacity).
member of the Government Service means a member of staff of any Division of the Government Service.
public sector agency means the whole or a part of a public sector service or an employer constituting, or within, a public sector service and head of a public sector agency means:
(a) (subject to paragraph (b)) the person who is the chief executive officer, or who exercises the functions of chief executive officer, of the agency, or(b) the person prescribed by the regulations.Note.A public sector agency would include a Division of the Government Service.
public sector service means any of the following:
(a) the Government Service,(b) the Teaching Service,(c) the NSW Police Force,(d) the NSW Health Service,(d1) the Transport Service,(e) the service of either House of Parliament, or the President or Speaker, or the President and the Speaker jointly,(f) any other service of the Crown (including the service of any NSW Government agency),(g) the service of any other person or body constituted by or under an Act or exercising public functions (such as a State owned corporation), being a person or body that is prescribed, or that is of a class prescribed, for the purposes of this definition.Public Service—see section 6.
Note. The Public Service comprises the Divisions of the Government Service specified in Part 1 of Schedule 1.senior executive position means a position referred to in section 65 and senior executive officer means a person holding such a position.
(2) Notes included in this Act do not form part of this Act.
Part 1.2 Ethical framework for the public sector
This Part:(a) recognises the role of the public sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day, and(b) establishes an ethical framework for a merit-based, apolitical and professional public sector that implements the decisions of the Government of the day.
The core values for the public sector and the principles that guide their implementation are as follows:Integrity(a) Consider people equally without prejudice or favour.(b) Act professionally with honesty, consistency and impartiality.(c) Take responsibility for situations, showing leadership and courage.(d) Place the public interest over personal interest.Trust(a) Appreciate difference and welcome learning from others.(b) Build relationships based on mutual respect.(c) Uphold the law, institutions of government and democratic principles.(d) Communicate intentions clearly and invite teamwork and collaboration.(e) Provide apolitical and non-partisan advice.Service(a) Provide services fairly with a focus on customer needs.(b) Be flexible, innovative and reliable in service delivery.(c) Engage with the not-for-profit and business sectors to develop and implement service solutions.(d) Focus on quality while maximising service delivery.Accountability(a) Recruit and promote staff on merit.(b) Take responsibility for decisions and actions.(c) Provide transparency to enable public scrutiny.(d) Observe standards for safety.(e) Be fiscally responsible and focus on efficient, effective and prudent use of resources.
(1) The Public Service Commissioner has the function of promoting and maintaining the public sector core values.(2) There is no hierarchy among the core values and each is of equal importance.(3) Nothing in this Part gives rise to, or can be taken into account in, any civil cause of action.(4) For the purposes of this Part, the public sector comprises all the public sector services (other than special temporary employees under Part 2.5).
Part 1.3 Public Service Commissioner
3D Appointment of Commissioner
(1) The Governor may appoint a Public Service Commissioner.(2) A person may only be appointed as Commissioner if the Advisory Board has recommended to the Premier that the person be appointed as the Commissioner.(3) The Governor may remove the Commissioner from office for incapacity, incompetence or misbehaviour.(4) The Commissioner may only be removed from office:(a) following an independent review of the performance or conduct of the Commissioner, and(b) if the Advisory Board has recommended to the Premier that the Commissioner be removed from office.(5) Any such independent review may be initiated:(a) by the Advisory Board at the request of the Premier, or(b) by the Premier.(6) An independent review of the performance or conduct of the Commissioner is not required under this section before the Commissioner can be removed from office if the performance or conduct giving rise to the Advisory Board’s recommendation for removal has been the subject of:(a) an inquiry and report by the Independent Commission Against Corruption, a Special Commission of Inquiry or other body constituted by a judicial officer, or(b) a finding by a court.(7) The Premier is, if the Commissioner is removed from office, to cause the reasons for the removal to be tabled in both Houses of Parliament.(8) The Commissioner must not be present during any deliberation of the Advisory Board on any matter that relates to the making of a recommendation under this section.(9) Schedule 2A contains ancillary provisions relating to the Commissioner, including term of office.
3E Principal objectives of Commissioner
(1) The principal objectives of the Commissioner are as follows:(a) to promote and maintain the highest levels of integrity, impartiality, accountability and leadership across the public sector,(b) to improve the capability of the public sector to provide strategic and innovative policy advice, implement the decisions of the Government and meet public expectations,(c) to attract and retain a high calibre professional public sector workforce,(d) to ensure that public sector recruitment and selection processes comply with the merit principle and adhere to professional standards,(e) to foster a public service culture in which customer service, initiative, individual responsibility and the achievement of results are strongly valued,(f) to build public confidence in the public sector,(g) to support the Government in achieving positive budget outcomes through strengthening the capability of the public sector workforce.(2) For the purposes of this Part, the public sector comprises all the public sector services (including the service of a State owned corporation).
3F General functions of Commissioner
(1) The Commissioner has the following functions:(a) to identify reform opportunities for the public sector workforce and to advise the Government on policy innovations and strategy in those areas of reform,(b) to lead the strategic development and management of the public sector workforce in relation to the following:(i) workforce planning, including identifying risks and strategies to minimise risks,(ii) recruitment, particularly compliance with the requirements relating to appointment and promotion on merit,(iii) performance management and recognition,(iv) equity and diversity, including strategies to ensure the public sector reflects the diversity of the wider community,(v) general conduct and compliance with ethical practices,(vi) learning and development,(vii) succession planning,(viii) redeployment, including excess employees,(ix) staff mobility,(x) executive staffing arrangements,(c) to advise the Government on leadership structure for the public sector,(d) to advise the Government on appropriate strategies, policies and practices in relation to the structure of the public sector workforce,(e) to advise the Government on appropriate strategies, policies and practices in relation to such other public sector matters as the Minister may direct from time to time, and to monitor, co-ordinate and assist the implementation of Government strategies, policies and practices in such other areas as the Minister may direct from time to time,(f) to develop and advise the Government on service delivery strategies and models for the public sector through collaboration with the private business sector, the not-for-profit sector and the wider community,(g) to set standards, subject to any legislative requirements, for the selection of persons for appointment as members of boards or committees of public authorities (including Government business enterprises).(2) The Commissioner has and may exercise such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.Note. The other functions of the Commissioner include promoting and maintaining the public sector core values (see section 3C) and functions relating to EEO under Part 9A of the Anti-Discrimination Act 1977. The Commissioner may also issue guidelines under sections 9 (3) (b), 28 (2), 33 (3A), 38 (1), 44, 86 (9), 86A (11), 88, 88A, 89, 98 (6), 100 (4) (c) and 101A.(3) The Commissioner is to exercise his or her functions in accordance with the general policies and strategic directions determined by the Advisory Board.
3G Commissioner to report to Premier
(1) The Commissioner is to report to the Premier in connection with the exercise of the Commissioner’s functions but is not subject to the control and direction of the Premier in the exercise of those functions.(2) This section does not limit any other provisions of this Act relating to the exercise of the functions of the Premier or the Commissioner.
3H Annual reports of the Commissioner
(1) The Commissioner is, as soon as practicable after 30 June in each year, to prepare and forward to the Premier:(a) a report on the Commissioner’s work and activities for the 12 months ending on that 30 June, and(b) a report on the state of the public sector in relation to the period of 12 months ending on that 30 June.(2) The report on the state of the public sector is to include the following:(a) an assessment of the performance of the whole of the public sector, including notable achievements, challenges and priorities,(b) an analysis of public sector workforce data.(3) The Premier is to table any report under this section, or cause it to be tabled, in both Houses of Parliament as soon as practicable after it is received by the Premier.
3I Provision of reports and information by agencies
(1) The Commissioner may require the head of a public sector agency to provide the Commissioner with a report on such matters relating to the staff of the agency, or to the personnel policies and practices of the agency, as the Commissioner requires.(2) In particular, the Commissioner may require inclusion in the report of information of a kind specified by the Commissioner as to:(a) the personnel policies and practices concerning the recruitment, selection, appointment, transfer, promotion or discipline of the staff of the public sector agency and the means by which the job satisfaction and opportunities for personal development of the staff are promoted, and(b) the application of any such policies and practices to different groups of members of the staff.(3) The Commissioner may also require the head of a public sector agency to provide the Commissioner with information collected or held by the agency in dealing with matters relating to public sector staff.(4) The head of the public sector agency concerned must comply with a requirement under this section within such time and in such manner as the Commissioner directs.(5) Any law relating to the protection of personal information (within the meaning of the Privacy and Personal Information Protection Act 1998) does not operate to prevent the furnishing of information, or affect a duty to furnish information, under this section.(6) In this section, public sector agency includes any person or body, constituted by or under an Act, that is prescribed by the regulations for the purposes of this section, and the head of any such prescribed agency means the person prescribed by the regulations in relation to that agency.
3J Directions by Commissioner to public sector agencies
(1) The 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.(2) Before giving a direction the Commissioner is to consult the head of the public sector agency to whom the direction is to be given and such other persons affected by the direction as the Commissioner considers appropriate.(3) The head of the public sector agency to whom a direction under this section is given must comply with the direction.(4) A direction under this section:(a) must not be inconsistent with this Act or the principal objectives of the Commissioner referred to in section 3E, and(b) must be made publicly available by the Commissioner as soon as practicable after it is given.
3K Inquiries by Commissioner into public sector agencies
(1) The Commissioner or a person authorised by the Commissioner may conduct an inquiry into any matter relating to the administration or management of a public sector agency.(2) This section does not affect the operation of section 159.
3L Powers of entry and inspection
(1) The Commissioner or a person authorised by the Commissioner may, for the purposes of enabling the Commissioner to exercise the Commissioner’s functions or in connection with the conduct of an inquiry under section 3K:(a) enter and inspect the premises of a public sector agency, and(b) require the production of, and take copies of, any documents in the custody of a member of staff of the public sector agency, and(c) for the purposes of further examination, take possession of, and remove, any of those documents, and(d) require a member of staff of the public sector agency to answer questions, and(e) require a member of staff of the public sector agency to provide such assistance and facilities as is or are necessary to enable the Commissioner or authorised person to exercise his or her functions.(2) A reference in this section to a member of staff of a public sector agency includes a reference to any person who is engaged by the agency (whether directly or indirectly) under a contract for services.
The Commissioner may delegate the exercise of any function of the Commissioner (other than this power of delegation) to:(a) the head of any public sector agency or a member of staff of any public sector agency, or(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
The staff of the Commissioner are to be employed under Chapter 1A.
3O Approvals or directions given by Commissioner
An approval or direction given by the Commissioner under this Act may be given so as to apply to a particular case, or to all cases within a class of cases or generally.
3P Confidentiality of personal information
(1) The Commissioner is, to the extent that it is reasonable and practicable to do so, remove any personal information from any report or other document prepared by the Commissioner under this Part that is, or is to be, publicly available.(2) In this section:personal information means information about an individual whose identity is apparent, or can reasonably be ascertained, from the information.
Part 1.4 Public Service Commission Advisory Board
(1) There is to be a Public Service Commission Advisory Board.(2) The Advisory Board is to consist of the following members:(a) a person appointed by the Premier as the Chairperson of the Advisory Board,(b) 4 other persons appointed by the Premier,(c) the Commissioner or a senior member of staff of the Commissioner nominated by the Commissioner,(d) the Director-General of the Department of Premier and Cabinet or a member of staff of that Department nominated by the Director-General.(3) The members appointed by the Premier are to be persons who together have expertise in human resources management, probity and accountability, strategic planning, budget and performance management and service delivery in the public, private, tertiary and not-for-profit sectors.(4) Schedule 2B contains ancillary provisions relating to the members and procedure of the Advisory Board.
3R Functions of Advisory Board
(1) The Advisory Board has the following functions:(a) to determine general policies and strategic directions in relation to the functions of the Commissioner,(b) to provide the Premier, either at the request of the Premier or on its own initiative, with advice on any matter relating to the management and performance of the public sector.(2) The Advisory Board has such other functions as are conferred or imposed on it by or under this or any other Act.