In this Chapter:casual employee means a casual employee as referred to in section 7.
officer means an officer as referred to in section 7.
temporary employee means a temporary employee as referred to in section 7, being a Departmental temporary employee or a special temporary employee.
(1) The Divisions of the Government Service specified in Part 1 of Schedule 1 comprise the Public Service of New South Wales.(2) Any such Division may be referred to as a Department (or a Department of the Public Service) for the purposes of this or any other Act. Accordingly, the person exercising functions as Division Head of such a Division may be referred to as the Department Head.(3) If a branch of any such Division is specified in Part 3 of Schedule 1, that branch is not part of the Public Service of New South Wales.
(1) Staff may be employed in a Department in the following categories:(a) officers—being persons employed in chief or senior executive positions or other staff positions in the Department,(b) temporary employees—being persons employed to carry out work in the Department on a temporary basis,(c) casual employees—being persons employed in the Department on a casual basis.(2) Temporary employees may be employed in following subcategories:(a) Departmental temporary employees—being persons employed under Part 2.4 to carry out work in a Department,(b) special temporary employees—being persons employed under Part 2.5 to carry out work for a political office holder.(3) The usual basis for the employment of staff in a Department is to be the employment of officers.(4) Subsection (3) does not apply to the employment of staff for the purpose of carrying out work for a political office holder.
8 Maximum number of staff of a Department
(1988 Act, s 7)
(1) The Treasurer may, after obtaining a report from the appropriate Department Head on the matter, determine from time to time the maximum number of staff to be employed in a Department (being the number which the Treasurer considers necessary for the effective, efficient and economical management of the functions and activities of the Department).(2) The number of staff employed in a Department is not to exceed the maximum number so determined in respect of the Department.
9 Staff positions in a Department for officers
(1988 Act, s 8)
(1) The staff positions in a Department consist of:(a) the position of the appropriate Department Head (except where the position is created otherwise than under section 10), and(b) such other positions as the appropriate Department Head from time to time determines in accordance with this Act.(2) A Department Head may create, abolish or otherwise deal with any staff position in the Department, other than his or her own position.(3) A Department Head must classify and grade each position created under subsection (2), but may only do so:(a) in the case of a senior executive position—with the approval of the Minister, or(b) in any other case—in accordance with such guidelines as may be issued from time to time by the Commissioner.(4) A person does not cease to be an officer merely because the staff position held by the person is abolished.(5) Temporary employees and casual employees are members of staff of, but do not hold positions in, a Department.
10 Creation of Department Head positions
(1988 Act, s 9)
(1) Each position specified in Column 2 of Part 1 of Schedule 1 is taken to be created by virtue of this section unless it is created by another provision of this Act or by any other Act.(2) If the title or other description of a position created by virtue of this section is omitted from Column 2 of Part 1 of Schedule 1 (or any such title or other description is amended by an amendment of this Act), the position is taken to be abolished (or correspondingly amended) by virtue of this Act.
12 Appointments to Public Service Department Head positions
(1988 Act, s 10A)
(1) Appointments to vacant Department Head positions in the Public Service are to be made by the Minister.(2) The employment of a Department Head is subject to Part 3.1.
13 Acting appointments to Department Head positions
(1988 Act, s 10B)
(1) The Minister may appoint an officer of the Public Service to act in a Department Head position in the Public Service that is vacant or the holder of which is suspended, sick or absent.(2) An officer, while acting in a Department Head position, has all the functions of the holder of the position. However, a person who is not a chief executive officer does not become a chief executive officer for the purposes of Part 3.1 when acting in a Department Head position.(3) The Minister may, at any time, terminate the appointment of an officer to act in a Department Head position.
14 General responsibility of Department Heads
(1988 Act, s 11)
(1) A Department Head is responsible to the Minister responsible for the Department for the general conduct and the effective, efficient and economical management of the functions and activities of the Department.(2) For the purpose of exercising that responsibility, a Department Head may take such action as the Department Head considers appropriate in the circumstances, but may not take action that is inconsistent with the functions specified in this Act of the Minister administering this Act or the Commissioner.(3) A Department Head is responsible for the equitable management of staff of the Department.
Part 2.3 Officers (other than Department Heads)
16 Officers to whom Part applies
(1988 Act, s 22)
This Part applies to and in respect of appointments to positions in the Public Service, but does not apply to or in respect of appointments to chief executive positions.
(1988 Act, ss 13, 24, 25, 30)
(1) Appointments to vacant positions in a Department are to be made by the appropriate Department Head.(2) It does not matter:(a) whether the person appointed is or is not already an officer of the Public Service, or(b) that the person appointed has previously retired or been removed from the Public Service.(3) The employment of a senior executive officer in the Public Service is subject to Part 3.1.(4) Subsection (1) is subject to any express provision to the contrary in this or any other Act.
(1988 Act, ss 15, 31)
(1) If it is proposed to make an appointment under this Part to a vacant position in a Department, the Department Head must advertise the vacancy on the NSW Government’s recruitment website and in such publication (if any) as the Department Head determines.(2) The Department Head need not advertise a vacant position if the Commissioner so approves.
(1988 Act ss 15, 26)
(1) A Department Head is, for the purpose of determining the merit of the persons eligible for appointment to a vacant position under this section, to have regard to:(a) the nature of the duties of the position, and(b) the qualifications, experience, standard of work performance and capabilities of those persons that are relevant to the performance of those duties.(2) In deciding to appoint a person to a vacant position that has been advertised in accordance with this Part:(a) the appropriate Department Head may only select a person who has duly applied for appointment to the vacant position, and(b) the appropriate Department Head must, from among the applicants eligible for appointment to the vacant position, select the applicant who has, in the opinion of the Department Head, the greatest merit.(3) In deciding to appoint a person to a vacant position in a Department that has not been advertised in accordance with this Part:(a) the appropriate Department Head may only select a qualified member of staff of the Department, and(b) the appropriate Department Head must, from among those qualified members of staff, select the member of staff who has, in the opinion of the Department Head, the greatest merit.(3A) For the purposes of subsection (3), a qualified member of staff of a Department is:(a) an officer employed in the Department, or(b) a Departmental temporary employee who is employed in the Department and whose employment as such an employee in that or any other Department falls within a continuous period of at least 2 years, or(c) a person who is employed in a Division of the Government Service specified in Part 3 of Schedule 1 (a Special Employment Division) that is associated with the Department, other than any such person who is employed on a casual basis or, if employed on a temporary basis, has not been employed in the Special Employment Division for a continuous period of at least 2 years.(3B) For the purposes of subsection (3A) (c), a Special Employment Division is taken to be associated with a Department if the Head of that Department is also the Division Head of the Special Employment Division.(4) Despite anything to the contrary in this section, the appropriate Department Head may decide to appoint a person (whether or not a qualified member of staff of the Department within the meaning of subsection (3A)) to a vacant position that has not been advertised if:(a) the person has, in accordance with the regulations, passed a competitive examination prescribed for appointment to vacant positions of the class to which that vacant position belongs, or(b) the person is qualified for appointment in accordance with procedures prescribed by the regulations for entry to positions in the Public Service in special cases.(5) In the case of a vacant senior executive position, a Department for the purposes of the application of subsection (3) includes all senior executive positions in the Public Service or the Teaching Service and all notional executive positions referred to in section 77 (3) (c) in the Public Service or the Teaching Service.
(1988 Act, ss 15, 26A)
(1) When a vacant position is advertised in accordance with this Part, the appropriate Department Head may, in connection with a determination of the merit of the persons eligible for appointment to the position, create an eligibility list for the position.(2) An eligibility list for a position is a list of eligible applicants (namely the persons who duly applied for appointment to the position and who are eligible for appointment but not selected for appointment) arranged in order of merit (with merit determined by the appropriate Department Head in accordance with section 19 (1)).(3) An eligibility list for a position remains current for 12 months after the list was created.(4) An eligibility list need not comprise all the eligible applicants so long as the list contains the applicant or applicants of greatest merit.(5) An eligibility list is applicable not only to the position in relation to which it was created (the relevant position) but also:(a) to any other position in the Department that the appropriate Department Head determines the list should be applicable to on the basis that the other position is substantially the same as the relevant position, and(b) to any other position in another Department that the Department Head for that Department determines the list should be applicable to on the basis that the other position is substantially the same as the relevant position.(5A) Any such determination by the Department Head may be made at any time during the currency of the eligibility list.(6) In deciding to appoint a person to a vacant position that has not been advertised in accordance with this Part, the appropriate Department Head may, despite section 19 (3), select from among the persons who are on an eligibility list that is current and applicable to the position (and who are available for appointment) the person with the greatest merit according to the order of merit in the eligibility list.(7) (Repealed)
21 Appointments subject to promotion appeal
(1988 Act, ss 26 (4), 32)
(1) This section applies where a person selected for appointment to a position is an officer and some other officer has a right of appeal to the Industrial Relations Commission against the appointment.(2) The appointment must not be made (except by way of acting appointment under this Act):(a) until the expiration of the time for lodging a notice of such an appeal under the Industrial Relations Act 1996 against the Department Head’s decision to make the appointment, or(b) if such a notice of appeal is lodged within that time, until the Industrial Relations Commission has determined the appeal or the appeal is withdrawn.Note. See section 93 of the Industrial Relations Act 1996 which requires the appropriate Department Head to cause notice of the proposed appointment to be published and distributed to employees.(3) (Repealed)
22 Legal proceedings not to be brought in respect of appointments etc
(1988 Act, s 27)
(1) The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996 (other than Part 7 of Chapter 2 of that Act).(2) Subsection (1) applies whether or not any person has been appointed to the vacant position.(3) No proceedings, whether 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 or failure to appoint a person to a position in the Public Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.(4) Subsection (3) does not affect the operation of Part 7 of Chapter 2 of the Industrial Relations Act 1996.(5) Nothing in this section prevents any of the following proceedings being brought by a member of staff of a Department in relation to the appointment of another member of staff of any Department to a position in the Public Service:(a) proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation to a complaint under that Part,(b) proceedings under section 213 of the Industrial Relations Act 1996 to enforce the provisions of section 210 (Freedom from victimisation) of that Act.
(1988 Act, ss 28, 29, 30)
(1) Subject to this Act, every person admitted to the Public Service as an officer must, in the first instance, be appointed to a position on probation for a period of 6 months or such longer period as the appropriate Department Head directs.(1A) A period of probation may be extended for such further period as the appropriate Department Head directs. Any such direction may be made at any time before the person’s appointment is confirmed or annulled under this section.(2) A person may be appointed to a position in the Public Service without being required to serve such a period of probation if the person has previously been an officer or the Department Head thinks it appropriate in the particular case.(3) The period for which a person is appointed on probation may not exceed 2 years without the approval of the Commissioner.(4) If a person is appointed to a position on probation, the appropriate Department Head may:(a) after the period of probation—confirm the appointment, or(b) during or after the period of probation—annul the appointment.(5) If a person’s appointment is so annulled, the person ceases to be an officer, unless appointed to another position as an officer.(6) Part 2.7 does not prevent a Department Head from exercising at any time the power to annul an appointment under this section.(7) This section does not apply to a chief or senior executive position.
24 Acting appointments to positions
(1988 Act, ss 14, 33)
(1) The appropriate Department Head may appoint to act in a position in the Department that is vacant or the holder of which is suspended, sick or absent:(a) a member of staff the Department, or(b) a member of staff of another Department.(2) A person, while acting in a position under this section, has all the functions of the holder of the position. However, a person who is not a senior executive officer does not become a senior executive officer for the purposes of Part 3.1 when acting in a senior executive position.(3) The appropriate Department Head may, at any time, terminate the appointment of a person to act in a position under this section.(4) This section does not prevent the payment of an allowance to a member of staff of a Department for exercising all or any of the functions of a position if a person is not appointed to act in the position under this section.
25 Incapable officer may be retired
(1988 Act, s 36)
If:(a) an officer is found to be unfit to discharge or incapable of discharging the duties of the officer’s position, and(b) the officer’s unfitness or incapacity:the appropriate Department Head may cause the officer to be retired.(i) appears likely to be of a permanent nature, and(ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer’s control,
(1988 Act, s 37)
(1) An officer’s position becomes vacant if the officer:(a) dies, or(b) is removed from the position, or retires or is retired from the position, under this or any other Act, or(c) resigns the position in writing addressed and delivered to the appropriate Department Head and that Department Head accepts the resignation, or(d) abandons his or her employment in the Public Service.(2) This section does not affect any other provision by or under which an officer’s position becomes vacant.(3) This section does not apply to officers holding chief or senior executive positions.Note. Section 76 makes provision for the vacation of chief or senior executive positions.
Part 2.4 Departmental temporary employees
27 Employment of Departmental temporary employees
(1988 Act, s 38 (1)–(2))
(1) The appropriate Department Head may employ a person who has appropriate qualifications to carry out work in the Department for a particular period.(2) Persons employed under this Part are Departmental temporary employees.(3) A person may be employed as a Departmental temporary employee:(a) for the duration of a specified task or project, or(b) to carry out the duties of a position that is temporarily vacant, or(c) to provide additional assistance in a particular work area, or(d) in connection with the secondment or exchange of staff, or(e) to undertake a traineeship or cadetship, or(f) for any other temporary purpose.(4) The employment of persons under this Part is subject to:(a) section 7 (3), and(b) any other provision of this Act or the regulations concerning the employment of Departmental temporary employees.
(1988 Act, s 38 (3), (4))
(1) The maximum period for which a Departmental temporary employee may be employed under this Part at any one time is 3 years.(2) The re-employment of a Departmental temporary employee is to be in accordance with such guidelines as are issued by the Commissioner from time to time.
29 Employment after selection on merit
(1) In this section, the selection on merit of a Departmental temporary employee means employment after some form of open competition involving the selection of the employee as the person who, in the opinion of the appropriate Department Head, has the greatest merit among candidates for employment.(2) A Departmental temporary employee may only be employed for a period exceeding 12 months at any one time if the employee is selected on merit.(3) The Commissioner may exempt the employment of a person from subsection (2) if the Commissioner determines that the special circumstances of the case justify the exemption.
(1988 Act, s 38 (5))
The appropriate Department Head may dispense with the services of a Departmental temporary employee at any time.
31 Appointment of long-term employees to officer positions
(1988 Act, s 38A)
(1) For the purposes of this section, a long-term employee is a Departmental temporary employee whose employment as such an employee falls within a continuous employment period of at least 2 years.(2) A long-term employee may, with the approval of the Commissioner, be appointed to an officer’s position (other than a senior executive position) in a Department if the appropriate Department Head has made a recommendation in accordance with this section for the appointment of the employee to the position.(3) A recommendation for the appointment of a long-term employee to an officer’s position may be made only if each of the following requirements is satisfied:(a) the employee must, at some stage of the temporary employment, have been selected to perform duties at a grade that is the same as (or similar to) the grade of the position concerned (whether or not the duties of the position are substantially the same as the duties performed during the temporary employment),(a1) the employee was performing duties at that grade following some form of open competition that involved the selection of the employee as the person who, in the opinion of the Department Head, had the greatest merit among the candidates concerned,(b) the rate of salary or wages proposed to be payable to the holder of the position concerned at the time of appointment must not exceed the maximum rate payable for Grade 12, Administrative and Clerical Division, of the Public Service,(c) the appropriate Department Head must be satisfied that ongoing work is available in respect of the employee in the Department,(d) the appropriate Department Head must be satisfied that the employee has the qualifications, experience, standard of work performance and capabilities to enable the employee to perform the duties of the position concerned,(e) (Repealed)(4) An appointment under this section is not an appointment to which section 19 applies.(5) Section 23 does not apply to an appointment under this section unless the Department Head otherwise directs in a particular case.
Part 2.5 Special temporary employees
32 Meaning of “political office holder”
(1988 Act, s 38B)
In this Part:political office holder means:
(a) a Minister, or(b) a Parliamentary Secretary, or(c) the Leader of the Opposition in the Legislative Assembly.
33 Employment of special temporary employees
(1988 Act, ss 38C, 38H)
(1) The Director-General of the Department of Premier and Cabinet may, if of the opinion that it is necessary to do so, employ a person who has appropriate qualifications to carry out work for a political office holder.(2) Persons employed under this Part are special temporary employees.(3) The employment of persons under this Part is subject to any provisions of this Act or the regulations concerning the employment of special temporary employees.(3A) Without limiting subsection (3), the employment of special temporary employees is to be in accordance with such guidelines as are issued by the Commissioner from time to time.(4) The instrument of employment of a special temporary employee must specify the name of the political office holder concerned.(5) This section does not prevent the appointment or employment of staff to or in an office of a political office holder in any other manner.
34 Period of employment of special temporary employees
(1988 Act, s 38D)
(1) A person may be employed as a special temporary employee for an indefinite term or for a term specified in the instrument of employment.(2) However, the employment of a special temporary employee terminates:(a) if the political office holder concerned dies, or(b) if the political office holder concerned ceases to hold the office by reason of which he or she was a political office holder (even if he or she immediately or subsequently becomes a political office holder after ceasing to hold that office), or(c) on the day appointed for the taking of the poll for the next general election, or(d) if the employee resigns by letter addressed to the Director-General of the Department of Premier and Cabinet, or(e) if the services of the employee are dispensed with.(3) The Director-General of the Department of Premier and Cabinet may direct in a particular case that the employment of a special temporary employee that would otherwise terminate because of the operation of subsection (2) (a), (b) or (c) does not terminate.(4) The Director-General of the Department of Premier and Cabinet may dispense with the services of a special temporary employee at any time.
35 Industrial arbitration or legal proceedings excluded
(1988 Act, s 38E)
(1) In this section, a reference to the employment of a special temporary employee is a reference to:(a) the employment of, or failure to employ, a person as a special temporary employee, or(b) dispensing with the services of, or other termination of the employment of, a special temporary employee, or(c) any disciplinary proceedings or disciplinary action taken against a special temporary employee, or(d) the remuneration or conditions of employment of a special temporary employee.(2) The employment of a special temporary employee, 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. This subsection applies whether or not any person has been appointed to a vacant position of special temporary employee.(3) Part 6 (Unfair dismissals), Part 7 (Public sector promotion and disciplinary appeals) 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 special temporary employee.(4) 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 special temporary employees.(5) Subsection (4) does not prevent the regulations or other statutory instruments under this Act from applying the provisions of a State industrial instrument to the employment of a special temporary employee.(6) This section does not affect the operation of any determination under section 130 or agreement under section 131, in its application to special temporary employees.(7) (Repealed)(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 employment of or failure to employ a person as a special temporary employee, the entitlement or non-entitlement of a person to be so employed or the validity or invalidity of any such employment.
36 Delegation by Director-General
(1988 Act, s 38F)
(1) The Director-General of the Department of Premier and Cabinet may delegate any function of the Director-General under this Part (other than this power of delegation) to any other Department Head.(2) The power of delegation conferred by this section is in addition to and does not limit the power conferred by section 4F.
37 Status of special temporary employees
(1988 Act, s 38G)
(1) All special temporary employees are taken to constitute a branch of the Department of Premier and Cabinet, except any who are employed by a Department Head as delegate of the Director-General of the Department of Premier and Cabinet.(2) Special temporary employees employed by a Department Head as delegate of the Director-General of the Department of Premier and Cabinet are taken to constitute a branch of the Department concerned.(3) Accordingly, the Director-General of the Department of Premier and Cabinet has the functions of Department Head in relation to those special temporary employees who constitute a branch of the Department of Premier and Cabinet, and the relevant Department Head has the functions of Department Head in relation to those special temporary employees who constitute a branch of the Department concerned.
38 Employment of casual employees
(1) The appropriate Department Head may, in accordance with such guidelines as are issued from time to time by the Commissioner, employ persons to carry out work in the Department on a casual basis.(2) Persons employed under this Part are casual employees.(3) A person may be employed as a casual employee:(a) to carry out work that is irregular or intermittent, or(b) to carry out work, on a short-term basis, in an area of the Department with a flexible workload, or(c) to carry out the work of a position for a short period pending the completion of the selection process for the position, or(d) to carry out urgent work or to deal with an emergency.(4) The employment of persons under this Part is subject to:(a) section 7 (3), and(b) any other provisions of this Act or the regulations concerning the employment of casual employees.
The appropriate Department Head may dispense with the services of a casual employee at any time.
Part 2.7 Management of conduct and performance
40 Part applies to officers (except chief executive officers)
(1988 Act, s 65A)
This Part applies to officers in the Public Service but (unless otherwise expressly provided by this Act) does not apply to chief executive officers in the Public Service.
The objects of this Part are as follows:(a) to maintain appropriate standards of conduct and work-related performance in the Public Service,(b) to protect and enhance the integrity and reputation of the Public Service,(c) to ensure that the public interest is protected.
(1) In this Part:disciplinary action, in relation to an officer, means any one or more of the following:
(a) dismissal from the Public Service,(b) directing the officer to resign, or to be allowed to resign, from the Public Service within a specified time,(c) if the officer is on probation—annulment of the officer’s appointment,(d) except in the case of a senior executive officer—reduction of the officer’s salary or demotion to a lower position in the Public Service,(e) the imposition of a fine,(f) a caution or reprimand.misconduct—see section 43.
procedural guidelines means the guidelines in force from time to time under section 44.
remedial action, in relation to an officer, means any one or more of the following:
(a) counselling,(b) training and development,(c) monitoring the officer’s conduct or performance,(d) implementing a performance improvement plan,(e) the issuing of a warning to the officer that certain conduct is unacceptable or that the officer’s performance is not satisfactory,(f) transferring the officer to another position in the Public Service that does not involve a reduction of salary or demotion to a lower position,(g) any other action of a similar nature.(2) In this Part, a reference to an allegation that an officer may have engaged in misconduct includes a reference to the appropriate Department Head being made aware, or becoming aware, by any means that the officer may have engaged in misconduct.
(1988 Act, s 66)
(1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following:(a) a contravention of any provision of this Act or the regulations,(b) performance of duties in such a manner as to justify the taking of disciplinary action,(c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act,(d) taking any action against another officer that is substantially in reprisal for an internal disclosure made by that officer.(2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened:(a) while the officer concerned was not on duty, or(b) before the officer was appointed to his or her position.(3) In this section, internal disclosure means a disclosure made by an officer regarding the alleged misconduct of another officer belonging to the same Department as that to which the officer belongs.
Division 2 Dealing with misconduct
44 Issuing of procedural guidelines
(1) The Commissioner may, from time to time, issue guidelines for the purposes of:(a) dealing with allegations of misconduct as a disciplinary matter, and(b) the taking of disciplinary action with respect to officers under this Division.(2) The Commissioner may from time to time amend, revoke or replace the procedural guidelines.(3) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Commissioner thinks appropriate.(4) The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the latter is to prevail.
45 Requirements relating to procedural guidelines
(1) The procedural guidelines must be consistent with the rules for procedural fairness.(2) Without limiting subsection (1), the procedural guidelines are to ensure that:(a) the officer to whom an allegation of misconduct relates is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the officer, and(b) the officer is given an opportunity to respond to the allegation.(3) A formal hearing involving the legal representation of parties and the calling and cross-examination of witness is not to be held in relation to an allegation of misconduct and the taking of disciplinary action with respect to an officer.(4) However, subsection (3) does not prevent the appropriate Department Head from:(a) conducting such investigations into an allegation of misconduct as the Department Head considers necessary, or(b) conducting interviews with the officer to whom the allegation relates or with any other person in connection with the matter concerned, or(c) taking signed statements from the officer or any such person.
46 Dealing with allegations of misconduct
(1) If an allegation is made to the appropriate Department Head that an officer may have engaged in any misconduct, the appropriate Department Head may:(a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or(b) decide that it is appropriate to take remedial action with respect to the officer.(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the appropriate Department Head may, if the Department Head is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer.(3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.(4) Even though the appropriate Department Head decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Department Head may, at any stage of the process:(a) decide to take remedial action with respect to the officer concerned, or(b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both.(5) A decision under this section by the appropriate Department Head to take remedial action with respect to an officer does not, if it appears to the Department Head that the officer may have engaged in any misconduct while the remedial action is being taken, prevent the Department Head from dealing with the alleged misconduct as a disciplinary matter under this section.
Division 3 Dealing with unsatisfactory performance and other matters
47 Dealing with unsatisfactory performance
(1) If the appropriate Department Head is of the opinion that an officer is not performing the officer’s duties in a satisfactory manner, the Department Head may decide to take remedial action with respect to the officer.(2) If:(a) remedial action is taken with respect to an officer, and(b) the appropriate Department Head is, after the officer has been given a reasonable opportunity in which to improve his or her performance, of the opinion that the officer’s performance is still unsatisfactory,the Department Head may notify the officer in writing that the officer’s performance is still unsatisfactory and that the officer’s performance may lead to disciplinary action being taken with respect to the officer. The officer must be given an opportunity to respond to the Department Head’s opinion about the officer’s performance.(3) The Department Head may, after considering any response by the officer, decide to take disciplinary action with respect to the officer.(4) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.
48 Disciplinary action may be taken if officer is convicted of serious offence
(1988 Act, s 76)
(1) If an officer is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the appropriate Department Head may:(a) decide to take disciplinary action with respect to the officer, or(b) decide to take remedial action with respect to the officer.(2) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.(3) A reference in subsection (1) to the conviction of an officer for an offence punishable by imprisonment for 12 months or more includes a reference to the officer having been found guilty by a court of such an offence but where no conviction is recorded.
Division 4 Miscellaneous provisions
49 Suspension of officers from duty pending decision in relation to misconduct or criminal charge
(1988 Act, s 77)
(1) If:(a) an allegation that an officer has engaged in misconduct is being dealt with as a disciplinary matter in accordance with the procedural guidelines, or(b) an officer is charged with having committed an offence referred to in section 48,the appropriate Department Head may suspend the officer from duty until the allegation of misconduct or the criminal charge (or any action that the Department Head is considering taking under section 48) has been dealt with.(2) Any salary payable to a person as an officer while the person is suspended from duty under this section is (if the appropriate Department Head so directs) to be withheld.(3) If:(a) it is decided to take disciplinary action with respect to the person for the misconduct, or(b) the person is convicted of the offence concerned,the salary withheld under subsection (2) is forfeited to the State unless the appropriate Department Head otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed.(4) If the appropriate Department Head has suspended an officer from duty under this section, that Department Head may at any time remove the suspension.
50 Implementation of decisions under this Part
A decision of the appropriate Department Head to take disciplinary action or remedial action under this Part with respect to an officer may be carried into effect at any time.
51 Effect of dismissal of senior executive officers
(1988 Act, s 77A)
If a senior executive officer is dismissed from the Public Service under this Part:(a) the term for which the officer was appointed is to be regarded as having come to an end, and(b) no compensation is payable in respect of the dismissal.
52 Provisions relating to certain forms of disciplinary action
(1988 Act, s 75 (7), (8))
(1) Any appointment required as the result of the taking of disciplinary action comprising demotion to a lower position in a Department is to be made by the appropriate Department Head.(2) If a fine is imposed under this Part on an officer, the person responsible for paying the officer’s salary is, on receiving notice of the imposition of the fine, to deduct the amount of the fine from the salary payable to the officer in such manner as the appropriate Department Head directs.
53 Officers retiring or resigning before disciplinary action is taken
(1988 Act, s 81)
(1) An allegation that an officer has engaged in misconduct may be dealt with under this Part, and disciplinary action may be taken with respect to the officer, even though the officer has retired or resigned.(2) The taking of disciplinary action (other than a fine) with respect to the former officer does not affect the former officer’s retirement or resignation or the benefits, rights and liabilities arising from the retirement or resignation.(3) A fine imposed under any such disciplinary action may be recovered from the former officer as a debt due to the Crown in any court of competent jurisdiction, or out of any money payable to or in respect of the former officer by the Crown, or both.(4) Nothing in this section affects any power under this Act to refuse to accept the resignation of an officer.
Part 2.8 Miscellaneous provisions relating to the Public Service
54 Requirements as to citizenship or permanent residency
(1988 Act, s 39)
(1) A person is eligible to be appointed as an officer in the Public Service only if the person is:(a) an Australian citizen, or(b) a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law.(2) An officer who is not an Australian citizen and who ceases to satisfy or does not satisfy the requirements of subsection (1) (b) is no longer eligible to continue in employment as an officer in the Public Service and is to be dismissed from that employment by the appropriate Department Head.(3) The Commissioner may exempt a person from the operation of this section in any case the Commissioner considers appropriate.
55 Extended leave for Departmental staff
(1988 Act, s 100)
Schedule 3 has effect in relation to officers and temporary employees of a Department.
56 Excess officers of Departments
(1) If the appropriate Department Head is satisfied that the number of officers employed in the Department or in any part of the Department exceeds the number that appears to be necessary for the effective, efficient and economical management of the functions and activities of the Department or part of the Department:(a) the Department Head is to take all practicable steps to secure the transfer of the excess officers to on-going public sector positions, and(b) the Department Head may, with the approval of the Commissioner, dispense with the services of any such excess officer who is not transferred to an on-going public sector position.(2) An officer does not cease to be an excess officer merely because the officer is engaged (on a temporary basis) to carry out other work in a public sector agency.(3) In this section:on-going public sector position means a position in a Department, or in any other public sector service, that is not temporary.
57 Excessive salaries of officers of Departments
(1988 Act, s 52)
(1) This section applies where:(a) the appropriate Department Head is satisfied that an officer of the Department is in receipt of a greater salary than the maximum fairly appropriate to the work performed by the officer, and(b) the Department Head has taken all practicable steps to secure the transfer of the officer to an on-going public sector position (within the meaning of section 56) that is appropriate to the salary of the officer.(2) The appropriate Department Head may, with the approval of the Commissioner, reduce the salary of any such officer who is not performing work appropriate to his or her salary to the maximum determined by that Department Head to be appropriate to the work performed by the officer.(3) An officer whose salary is reduced under this section:(a) remains eligible for promotion as if the officer’s salary had not been reduced, and(b) is entitled to obtain work in the Department at the previous salary of the officer as soon as such work becomes available in preference to any other officer whose salary has not been reduced.
58 Officer to report bankruptcy etc
(1988 Act, s 79)
(1) If an officer becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the officer’s creditors, the officer must:(a) immediately give to the appropriate Department Head notice of the bankruptcy, composition, arrangement or assignment, and(b) within such period as the Department Head specifies, provide that Department Head with such further information with respect to the cause of the bankruptcy or of the making of the composition, arrangement or assignment as that Department Head requires.(2) If any such officer is the Department Head, subsection (1) applies as if references to the appropriate Department Head were references to the Minister responsible for the Department.
59 Departmental staff not to undertake other paid work without permission
(1988 Act, s 80)
(1) A person employed in the Public Service is not to undertake any other paid work without the permission of the appropriate Department Head.(2) This section does not apply:(a) to a casual employee, or(b) to a person working part-time,during the period that the person is not required to discharge duties in the Public Service, but only if the discharge of those duties is not adversely affected and no conflict of interest arises.
60 Right of the Crown to dispense with person’s services not affected by the Act
(1988 Act, s 54)
The right or power of the Crown to dispense with the services of any person employed in the Public Service, as it existed immediately before the commencement of this section, is not abrogated or restricted by any of the provisions of this Act.
61 No compensation to be paid where person’s services dispensed with or salary reduced
(1988 Act, s 55)
A person employed in the Public Service is not, except as provided by this or any other Act, entitled to any compensation as a result of the person’s services being dispensed with or the person’s remuneration being reduced.
62 Regulations with respect to Public Service
(1988 Act, s 102)
The regulations may make provision for or with respect to regulating the employment of officers, temporary employees or casual employees, including provision for or with respect to the following:(a) providing for the medical assessment and standards of medical fitness for the appointment of persons to positions in the Public Service,(b) prescribing the educational qualifications for appointments to positions in the Public Service,(c) prescribing the procedure to be adopted for selecting an appointee from among candidates for a vacant position (other than a chief executive position),(d) determining the eligibility of persons for appointment as temporary employees or casual employees,(e) providing for the hours of attendance of staff,(f) prescribing the leave which may be granted to staff,(g) providing for the payment of travelling and subsistence allowances for staff, allowances for the increased cost of living in remote areas, and other allowances for staff,(h) prescribing the procedures to be adopted consequent on the appointment of a person to a position,(i) providing for the exercise of the functions of suspended, sick or absent staff by other staff, and the exercise by staff of the functions attaching to vacant positions,(j) providing for entry to positions in the Public Service in special cases.