Part 2.3Part 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.