Part 3.1 Public sector executives
(1988 Act, s 42A)
(1) In this Part:contract of employment means a contract of employment under this Part between an executive officer and the officer’s employer.
executive officer means a chief executive officer or a senior executive officer.
executive position means a chief executive position or a senior executive position.
public authority means an authority which is established by or under an Act and which is (or whose governing authority is) constituted by persons appointed by (or with the approval of) the Governor or a Minister, but does not include the Teaching Service, the Government Service, the NSW Health Service, the Transport Service or the NSW Police Force.
remuneration package means, subject to subsection (4), the remuneration package for an executive officer determined for the time being under the Statutory and Other Offices Remuneration Act 1975.
(2) In this Part, a reference to the employer of an executive officer is a reference to:(a) in the case of a chief executive officer (other than a chief executive officer referred to in paragraph (a1))—the Minister, or(a1) in the case of a chief executive officer appointed as the chief executive of Rail Corporation New South Wales, Roads and Maritime Services, the State Transit Authority or Sydney Ferries or the Country Rail Infrastructure Authority—the Director-General of the Department of Transport, or(b) in the case of a senior executive officer in the Government Service—the appropriate Division Head, or(c) in the case of a senior executive officer in the Teaching Service—the Director-General of the Department of Education and Training, or(d) in the case of a senior executive officer in the service of a public authority—the public authority or a person nominated by the public authority, or(e) in any other case—the Minister or a person nominated for the time being by the Minister.(3) In this Part, a reference to the remuneration package for an executive officer is, if a range of amounts has been determined by the Statutory and Other Offices Remuneration Tribunal, a reference to:(a) the amount within that range nominated in the officer’s contract of employment, or(b) in any other case—the minimum amount within that range.(4) For the purposes of this Part, the remuneration package for a chief executive officer to whom subsection 2 (a1) applies is the remuneration package determined by the Director-General of the Department of Transport with the concurrence of the Commissioner.
Division 2 Composition of executive services
64 Composition of Chief Executive Service
(1988 Act, s 42B)
The Chief Executive Service comprises the persons holding the positions referred to in Parts 1 and 2 of Schedule 2.
65 Composition of Senior Executive Service
(1988 Act, s 42C)
(1) The Senior Executive Service comprises:(a) the persons holding positions for the time being determined by the Minister to be senior executive positions, being positions in the Government Service, on the staff of a public authority or in the Teaching Service (other than positions referred to in Part 3 of Schedule 2), and(b) the persons holding the positions referred in Part 3 of Schedule 2.(2) A list of the positions determined under subsection (1) (a) is to be made publicly available on a Government website.
66 Amendment or substitution of Schedule 2
(1988 Act, s 42D)
(1) The Governor may, by order published on the NSW legislation website, amend Schedule 2 by inserting the description of any position, or by omitting or amending any such description.(2) The Governor may, by order published on the NSW legislation website, omit Schedule 2 and insert instead a Schedule containing descriptions of positions.
67 Positions which may be included in Schedule 2
(1988 Act, s 42E)
The description of a position may be included in Schedule 2 by order under this Division only if the position is:(a) a position in the Government Service, or(b) a statutory office (being an office that is established by or under an Act and to which appointments are made by the Governor or a Minister), but only if the employment of a person in the office is declared by or under that Act to be subject to this Part, or(c) a position on the staff of a public authority, or(d) a position in the Teaching Service.
Division 3 Employment of executive officers
(1988 Act, s 42F)
(1) Subject to this Act, an executive officer holds office for such period (not exceeding 5 years) as is specified in the officer’s instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.(2) An executive officer may, with the approval of the Commissioner, be re-appointed with effect before the expiry of the officer’s term of office. In that case, the officer’s existing term of office expires.
69 Employment of executive officers to be governed by contract of employment
(1988 Act, s 42G)
(1) The employment of an executive officer is to be governed by a contract of employment between the officer and his or her employer.(2) A contract of employment may be made before or after the appointment of the executive officer concerned.(3) An executive officer is not appointed by, nor is an executive officer’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 executive officer.(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 of any other Act under which the executive officer concerned is appointed or a provision of the regulations under this Act or any such other Act.(7) The employer of an executive officer (being an officer in the service of the Crown) acts for and on behalf of the Crown in any contract of employment between the officer and the employer.
70 Matters regulated by contract of employment
(1988 Act, s 42H)
(1) The matters to be dealt with in a contract of employment between an executive officer and his or her employer include the following:(a) the duties of the executive officer’s position (including performance criteria for the purpose of reviews of the officer’s performance),(b) the monetary remuneration and employment benefits for the executive officer 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 executive officer and some other person specified in the contract, or(c) by the Minister or other person or body specified in the contract.
(1988 Act, s 42I)
(1) An executive officer’s performance must be reviewed, at least annually, by the officer’s employer or by some other person nominated by that employer.(2) Any such review is to have regard to the agreed performance criteria for the position and any other relevant matter.
72 Industrial arbitration or legal proceedings excluded
(1988 Act, s 42J)
(1) In this section, a reference to the employment of an executive officer 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 an executive officer, or(c) any disciplinary proceedings or disciplinary action taken against an executive officer, or(d) the remuneration or conditions of employment of an executive officer.(2) The employment of an executive officer, 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), Part 7 (Public sector promotions 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 an executive officer.(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 executive officers.(6) Subsection (5) does not prevent the regulations or other statutory instruments under this Act (or any other Act under which the executive officer concerned is appointed) from applying the provisions of an award or industrial agreement to the employment of an executive officer.(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 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 130.
Division 4 Remuneration of executive officers
(1988 Act, s 42K)
(1) In this Division:approved means approved for the time being for the purposes of this Division by the Minister in writing, either generally or in relation to any executive officer or class of executive officers.
employment benefit means:
(a) contributions payable to a superannuation scheme by an executive officer’s employer in respect of the officer, including any liability of that employer to make any such contributions or to pay approved costs associated with that scheme, or(b) the provision by an executive officer’s employer of a motor vehicle for private use by the officer, or(c) any other approved benefit provided to an executive officer at the cost of the officer’s employer (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 an executive officer’s duties.superannuation scheme means a superannuation scheme established by or under an Act or approved for the purposes of this definition.
(2) A reference in the definition of employment benefit to an executive officer’s employer is a reference to the person in whose service the officer is employed.
74 Monetary remuneration and employment benefits for executive officers
(1988 Act, s 42L)
(1) Executive officers 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 an executive officer’s employer in respect of the officer that are required to be made by the employer under a law of the State relating to superannuation are, until provided for by the officer’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 an executive officer, and(b) the annual cost of employment benefits provided for the executive officer under the contract of employment,is to be equal to the amount of the remuneration package for the executive officer.(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 an executive officer, or(b) any remuneration or benefits to which an executive officer 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) An executive officer 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 officer forgoes (with the approval of the officer’s employer) 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 an executive officer cannot be determined under subsection (1), the officer is entitled to monetary remuneration at the rate of the amount of the remuneration package for the officer, subject to any subsequent adjustment of payments in accordance with the officer’s contract of employment.(9) If the remuneration package for an executive officer is varied, the officer is entitled to monetary remuneration and employment benefits in accordance with the officer’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.
75 Travelling and subsistence allowances etc
(1988 Act, s 42M)
(1) An executive officer 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 officer’s duties,as the officer’s employer may from time to time determine in respect of the officer.(2) An executive officer’s contract of employment:(a) may provide for the payment to the officer of allowances of the kind referred to in this section, and(b) may regulate the payment of allowances to the officer under this section.
Division 5 Removal, retirement etc of executive officers
76 Vacation of executive positions
(1988 Act, s 42O)
(1) The position of an executive officer becomes vacant if the officer:(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 officer’s employer and that employer accepts the resignation.(2) This section does not affect any other provision by or under which an executive officer vacates his or her position.
77 Removal of executive officers from office
(1988 Act, ss 42Q, 100D)
(1) The employer of an executive officer may remove the executive officer from an executive position at any time for any or no reason and without notice.(2) The employer:(a) may declare an executive officer who is removed from an executive position by the employer 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 an executive officer, 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, and(c) is, for the purposes of sections 19 (1), (2), (3) and (5) and 87, to be regarded as holding an equivalent (though notional) executive position in the Division of the Government Service or organisation from which he or she was removed.(4) If the person referred to in subsection (3) was removed from a chief executive position, then for the purposes of sections 19 (1), (2), (3) and (5) and 87:(a) the person is to be regarded as a senior executive officer, and(b) the person’s notional executive position referred to in subsection (3) (c) is to be regarded as a senior executive position.(5) If:(a) an executive officer is removed from an executive position under subsection (1) and a declaration is not made in relation to the officer under subsection (2), or(b) a declaration under subsection (2) made in relation to an executive officer is revoked,the officer ceases to be an executive officer, unless appointed to an executive position.(6) An officer in the Public Service, the Teaching Service, another service of the Crown or the service of a public authority who ceases to be an executive officer because of subsection (5) ceases to be an officer in that service, unless appointed to a position in that service.(6A) A member of staff of a Division of the Government Service referred to in Part 2 of Schedule 1 who ceases to be an executive officer because of subsection (5) ceases to be a member of the Government Service unless appointed to another position in that Division.(7) The making of a declaration under subsection (2) in relation to an executive officer does not prevent the officer from ceasing to be an executive officer because of the completion of the officer’s term of office.(8) This section does not prevent an executive officer being removed from office apart from this section.(9) If a Division of the Government Service or organisation referred to in subsection (3) (c) ceases to exist or to be identifiable, the Director-General of the Department of Premier and Cabinet may determine that the executive position concerned is to be regarded for the purposes of that paragraph as being in some other specified Division or organisation.
78 Compensation etc where executive officer has no right to return to public sector
(1988 Act, ss 42N, 42S)
(1) This section applies to:(a) an executive officer who is removed from office under section 77 and who ceases to be an executive officer as referred to in section 77 (5), or(b) an executive officer who is otherwise removed from office (except for misbehaviour after due inquiry), or(c) an executive officer who was employed in the public sector when first appointed as an executive officer, whose term of office as an executive officer expires and who is not re-appointed.However, this section does not apply to an executive officer who consents to a transfer at a lower level of remuneration.
Note. Clause 11 (10) and (11) of Schedule 4 provide that the person is not entitled to compensation if the person is entitled to an engagement in the public sector in the exercise of a right of return, unless the person elects to take the compensation instead of the engagement.(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 an executive officer 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) An executive officer 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 the term of office to another executive position, 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) The person may not be engaged in the public sector or employed in the service of a State owned corporation or a subsidiary of such a State owned corporation during the period so specified, unless arrangements are made for a refund of the proportionate amount of the compensation.(9) A reference in this section to:(a) employment in the public sector is a reference to employment in the Government Service, the Teaching Service, the NSW Health Service, the NSW Police Force or in the service of a public authority, and(b) engagement in the public sector is a reference to employment in the public sector or to the holding of a statutory office.
79 Appointment of incumbent officers to senior executive positions
(1988 Act, s 42U)
(1) When a position becomes a senior executive position, the person (if any) holding the position is to continue to hold that position until the person or some other person is duly appointed to the position.(2) While the person continues to hold the position, the conditions of employment (including remuneration) of the person are to be the same as those which applied to the person immediately before the position became a senior executive position.(3) The person who continues to hold the position may be appointed to the position without the vacancy being advertised.(4) If the person who continues to hold the position is not appointed to the position or to any other executive position, clause 11 of Schedule 4 applies to the person as if he or she had elected to retain a right of return to the public sector.(5) This section does not apply to a senior executive position referred to in Part 3 of Schedule 2.
80 Incumbent officers—accrued leave
(1988 Act, s 42V)
(1) A person who:(a) was engaged 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 Minister.(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 engaged 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) A reference in this section to an engagement in the public sector has the same meaning as it has for the purposes of section 78.
81 Change in status of positions
(1988 Act, s 42W)
(1) If a chief executive position becomes a senior executive position or a senior executive position becomes a chief executive position, the existing contract of employment continues in force until a new contract is made under this Part.(2) If a position ceases to be designated as an executive position by order or determination under this Part:(a) the position is not thereby abolished, and(b) any person holding the position is to be taken to have been appointed to the position in accordance with the relevant provisions.(3) However, the order or determination by which a position is omitted may direct that the person holding the position is to cease to hold the position, but only if the person was not employed in the public sector (as referred to in section 78) immediately before last becoming an executive officer.(4) The person to whom any such direction relates ceases to hold the position concerned and has the same rights and obligations as if the person had ceased to be an executive officer as referred to in section 77 (5).(5) An order or determination 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.
82 Change in title of positions
(Act 1988, s 42X)
A position referred to in Schedule 2 or in a determination of the Minister under this Part does not cease to be an executive position merely because of a change in the title of the position.
83 Approval to undertake other paid work
(1988 Act, s 42Y)
An executive officer is not to undertake any paid work outside the duties of the executive position without the consent of the officer’s employer (whether or not that paid work is employment to which this Act applies).
(1988 Act, s 42Z)
(1) 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.(2) The provisions of this Part apply to a person appointed to an executive position under any Act even though the Act excludes the application of this Act, unless it expressly excludes the application of those provisions.
Division 1 Movement of staff within and between public sector agencies
86 Temporary staff transfers (secondments between agencies)
(1) A member of staff of a public sector agency may transfer temporarily to the service of another public sector agency with the approval of the heads of the home agency and the host agency.(2) (Repealed)(3) A temporary transfer under this section may be:(a) at the request, or with the consent, of the member of staff concerned (an employee-initiated temporary transfer), or(b) at the direction of the head of the home agency (an employer-initiated temporary transfer).(4) A person may be temporarily transferred under this section at the person’s existing level of remuneration or at a different level of remuneration. However, an employer-initiated temporary transfer cannot be made at a lower level of remuneration.(5) A person who transfers to the service of another public sector agency under this section remains an employee of the home agency.(6) However, in the case of an employee-initiated temporary transfer, the person ceases to be an employee of the home agency and becomes an employee of the host agency if:(a) the transfer has continued for at least 2 years, and(b) the head of the home agency notifies the person of the proposed cessation of employment, and(c) the person decides to remain with the host agency with the consent of the head of that agency.(6A) The head of the host agency may appoint the person who becomes an employee of the agency under subsection (6) (the relevant person) to a position in the agency (the new position) that is:(a) at the same grade as (or at a grade similar to) the relevant person’s original position in the home agency, or(b) at any grade higher than the relevant person’s original position in the home agency.(6B) The new position may, but need not, be advertised. Accordingly, if the new position is a position in the Public Service and it is not advertised, an appointment under subsection (6A) is not an appointment to which section 19 applies.(6C) If the relevant person is appointed to the new position, the head of the host agency may decide to make the appointment without requiring the person to serve any period of probation.(6D) The relevant person may be appointed to the new position only if each of the following requirements is satisfied:(a) the rate of salary or wages payable to the person at the time of appointment to the new position must not exceed the maximum rate payable for Grade 12, Administrative and Clerical Division, of the Public Service,(b) the head of the host agency must be satisfied that ongoing work is available in respect of the person in the agency,(c) the head of the host agency must be satisfied that the person has the qualifications, experience, standard of work performance and capabilities to enable the person to perform the duties of the new position.(6E) Without limiting subsection (6D), if:(a) the grade of the new position is higher than the grade of the relevant person’s original position in the home agency, and(b) the new position has not been advertised,the relevant person may be appointed to the new position only if the person has been performing duties in the host agency at a grade that is the same as (or similar to) the grade of the new position and was performing those duties following some form of open competition that involved the selection of the person as the person who, in the opinion of the head of the host agency, had the greatest merit among the candidates concerned.(7) In the case of an employee-initiated temporary transfer, a permanent appointment may be made to the original position of the person (and without the person ceasing to be employed by the agency) if:(a) the transfer has continued or is likely to continue for more than 12 months, and(b) the person is advised of the proposed appointment, and(c) the person is given a reasonable opportunity to terminate the transfer and return to his or her original position.(8) In the case of an employer-initiated temporary transfer, a permanent appointment cannot be made to the person’s original position except with the consent of the person.(9) The following is to be determined in accordance with such guidelines as are issued from time to time by the Commissioner:(a) the procedures for obtaining the consent of an employee under this section,(b) the circumstances in which an employer-initiated temporary transfer to a different workplace location in the State may be made.(10) In this section:home agency means the public sector agency from which the transfer of a member of staff is made under this section.
host agency means the public sector agency to which the transfer of a member of staff of another agency is made under this section.
Note. See also section 24 for acting appointments to vacant public service positions or where the holder of the position is suspended, sick or absent.
86A Temporary staff transfers (internal secondments)
(1) A member of staff of a public sector agency may transfer temporarily to another position or other employment within the agency with the approval of the head of the agency.(2) A temporary transfer under this section may be:(a) at the request, or with the consent, of the member of staff concerned (an employee-initiated temporary transfer), or(b) at the direction of the head of the public sector agency (an employer-initiated temporary transfer).(3) A person may be temporarily transferred under this section at the person’s existing level of remuneration or at a different level of remuneration. However, an employer-initiated temporary transfer cannot be made at a lower level of remuneration.(4) If, in the case of an employee-initiated temporary transfer, the transfer has continued for at least 2 years, the head of the public sector agency may appoint the person to a position in the agency (the new position) that is:(a) at the same grade as (or at a grade similar to) the person’s original position in the agency, or(b) at any grade higher than the person’s original position in the agency.(5) The new position may, but need not, be advertised. Accordingly, if the new position is a position in the Public Service and it is not advertised, an appointment under subsection (4) is not an appointment to which section 19 applies.(6) If the person is appointed to the new position, the head of the agency may decide to make the appointment without requiring the person to serve any period of probation.(7) The person may be appointed to the new position only if each of the following requirements is satisfied:(a) the rate of salary or wages payable to the person at the time of appointment to the new position must not exceed the maximum rate payable for Grade 12, Administrative and Clerical Division, of the Public Service,(b) the head of the agency must be satisfied that ongoing work is available in respect of the person in the agency,(c) the head of the agency must be satisfied that the person has the qualifications, experience, standard of work performance and capabilities to enable the person to perform the duties of the new position.(8) Without limiting subsection (7), if:(a) the grade of the new position is higher than the grade of the person’s original position in the agency, and(b) the new position has not been advertised,the person may be appointed to the new position only if the person has been performing duties in the agency at a grade that is the same as (or similar to) the grade of the new position and was performing those duties following some form of open competition that involved the selection of the person as the person who, in the opinion of the head of the agency, had the greatest merit among the candidates concerned.(9) In the case of an employee-initiated temporary transfer, a permanent appointment may be made to the original position of the person if:(a) the transfer has continued or is likely to continue for more than 12 months, and(b) the person is advised of the proposed appointment, and(c) the person is given a reasonable opportunity to terminate the transfer and return to his or her original position.(10) In the case of an employer-initiated temporary transfer, a permanent appointment cannot be made to the person’s original position except with the consent of the person.(11) The following is to be determined in accordance with such guidelines as are issued from time to time by the Commissioner:(a) the procedures for obtaining the consent of an employee under this section,(b) the circumstances in which an employer-initiated temporary transfer to a different workplace location in the State may be made.(12) (Repealed)
87 Employer-sponsored permanent transfers
(1988 Act, ss 50, 51, 53A, 100A)
(1) The head of a public sector agency may, subject to this section, transfer a member of staff of the agency to the service of another public sector agency:(a) with the approval of the head of the other agency and of the Commissioner, and(b) following consultation with the member of staff.(2) The head of a public sector agency may, subject to this section, transfer a member of staff of the agency to another position or other employment within the agency, following consultation with the member of staff.(3) The following provisions apply to the transfer of a person under this section:(a) the transfer is to be made at the person’s existing level of remuneration, unless the person consents to the transfer at a lower level of remuneration,(b) if the person is employed in a staff position or on a temporary basis, the person is to be transferred to another staff position or to other temporary employment, respectively,(c) the person must possess the qualifications required for the position or employment to which the person is transferred or have the capacity to perform the work after a reasonable period of time in the position or in that employment.(4) In this section, public sector agency includes a State owned corporation.
88 Temporary assignment of public sector staff to other public sector agencies
(1) A person who is employed in or by a public sector agency may be temporarily assigned to carry out work for another public sector agency in accordance with:(a) the arrangements that are made between the heads of those agencies, and(b) such guidelines as are issued from time to time by the Commissioner.(2) Without limiting subsection (1), any such assignment may be made for the purposes of utilising the person’s services in connection with a special project or event or to assist in disaster recovery activities.(3) A person may be temporarily assigned to carry out work for another public sector agency on a full-time or part-time basis.(4) The person’s employment in or by a public sector agency (including the continuity of that employment) is not affected by the temporary assignment of the person to carry out work for another public sector agency.(5) In this section, public sector agency includes a local council or other local authority or a State owned corporation.
88A Other temporary assignments
(1) The head of a public sector agency and the person responsible for the employment of persons in or by a relevant body may enter into an arrangement under which a person:(a) who is employed in or by the public sector agency is temporarily assigned to carry out work in or for the relevant body, or(b) who is employed in or by the relevant body is temporarily assigned to carry out work in or for the public sector agency,in accordance with the arrangement and with such guidelines as are issued from time to time by the Commissioner.(2) Without limiting subsection (1):(a) any such assignment may be made for the purposes of utilising the person’s services in connection with a special project or event, and(b) the arrangement under which a person is assigned may provide for the person to carry out work in or for the public sector agency or relevant body concerned on a full-time or part-time basis.(3) A person who is employed in or by a relevant body may not be temporarily assigned under this section to carry out work in or for a public sector agency unless the head of the public sector agency is satisfied that the temporary assignment is justified because of the special skills of the person or the special circumstances of the case.(4) The maximum period for which a person may be temporarily assigned under this section to carry out work in or for a public sector agency at any one time is 12 months.(5) A person’s employment in or by a public sector agency (including the continuity of that employment) is not affected by the temporary assignment under this section of the person to carry out work in or for a relevant body.(6) In this section:private sector entity means any person or body (whether incorporated or unincorporated) who or which is not a public sector agency or public authority, and includes any such person or body in the not-for-profit sector.
relevant body means any of the following:
(a) a private sector entity,(b) a public authority or government agency of the Commonwealth or of another State or Territory,(c) a university.
89 Variations in remuneration on transfer
(1988 Act, s 100C)
(1) For the purposes of this Division, an officer’s existing salary or an officer’s existing level of remuneration is that salary or level of remuneration as varied in accordance with the guidelines issued by the Commissioner in connection with the transfer of public sector staff.(2) A person is not entitled to appeal under section 94 of the Industrial Relations Act 1996 in respect of a decision relating to a vacant office, where the maximum salary applicable to the vacant office is greater than the salary paid to an employee, because of the application of the guidelines.(3) An officer is not entitled to any compensation in respect of any reduction of remuneration because of the application of the guidelines.(4) For the purposes of this Division, the transfer of a senior executive officer at a level of remuneration that is lower than the officer’s existing level of remuneration includes a reference to the transfer of the officer to a position without a remuneration package (within the meaning of Part 3.1) and with a salary and other benefits that are lower in value than the officer’s existing remuneration package (within the meaning of that Part). The relative values are to be determined in accordance with any relevant principles in the guidelines.
90 Dismissal of staff refusing transfer
(1988 Act, s 53)
(1) If a member of staff of a public sector agency refuses a transfer that the head of the agency is authorised to make under section 87, the head of the agency may, if satisfied that the member of staff had no valid reason for refusing the transfer:(a) dismiss the member from the service of the agency, or(b) in the case of a member of staff of a Division of the Government Service—dismiss the member from the Government Service.(2) A member of staff of a Department may be dismissed only with the approval of the Commissioner.(3) Subsection (1) does not affect the power of removal under section 77 or any similar statutory provision.(4) Nothing in this section prevents the taking of disciplinary action against a member of staff of a public sector agency for refusing a transfer that the head of the agency is authorised to make under this Division.
(1) This Division does not affect any other method (statutory or otherwise) by which members of staff of public sector agencies can transfer or be transferred.(2) This Division does not affect any provisions of any other Act to the extent that they specifically deal with the transfer of any members of staff from or within a public sector agency.(3) The approval of the Commissioner under this Division may be given unconditionally or subject to conditions, including conditions that provide for the retention of accrued or accruing rights or benefits where they are not otherwise preserved by a statutory or other provision.(4) The approval of the head of a public sector agency to the transfer of a person to a protected position in the agency (that is, a position that is subject to the requirements of some other Act or law with respect to appointments to such a position) is effective only after substantial compliance with:(a) such of those requirements as relate to probity or integrity, and(b) such of those requirements as are specified in any conditions subject to which an approval of the Commissioner is given, and(c) such of those requirements as are prescribed by the regulations.For the purposes of this subsection, the relevant provisions of the other Act or law imposing any such requirement apply with any necessary modifications.
Note. An example of a protected position is a “key official” within the meaning of the Casino, Liquor and Gaming Control Authority Act 2007, which includes certain officers in the Department of Gaming and Racing who are required to undergo criminal record checks and probity assessments in connection with their appointment.
Division 2 Cross-public sector leave arrangements
In this Division:employee means a person who is employed in any public sector service.
cessation of employment includes cessation of employment by resignation, retirement or otherwise.
93 Division applies despite State industrial instruments
(1988 Act, cl 2 Sch 5A)
This Division has effect despite any provision of any State industrial instrument.
94 Recognition of prior government service for purpose of calculating extended leave
Schedule 3A has effect in relation to employees.
(1988 Act, cl 4 Sch 5A)
(1) An employee who ceases to be employed in a public sector service and immediately commences employment in another public sector service may elect:(a) to be paid the money value of the employee’s accrued annual leave, or(b) to retain the entitlement to that accrued annual leave.(1A) Such an election cannot be made by an employee if the employee is only moving between different Departments of the Public Service.(1B) However, such an election may, without limiting subsection (1), be made by:(a) an employee in a Division of the Government Service referred to in Part 2 or 3 of Schedule 1 who is moving to another Division (including a Department) or to any other public sector service, or(b) an employee in a Department who is moving to a Division of the Government Service referred to in Part 2 or 3 of Schedule 1.(1C) Subsection (1B) has effect despite anything to the contrary in the Annual Holidays Act 1944 or the Long Service Leave Act 1955.(2) An employee who elects to retain the entitlement to accrued annual leave is taken to have, on commencing employment in the other public sector service, the amount of accrued annual leave to which the employee was entitled immediately before the end of his or her previous employment. This leave is in addition to any annual leave which accrues after that commencement.(3) For the purpose of calculating an entitlement under this section, the money value of accrued annual leave owing to a chief executive officer or senior executive officer is to be determined on the basis of the officer’s notional salary.(4) In this section:accrued annual leave means annual leave owing to an employee (but not taken), and includes any such leave accrued because of the operation of this section.
notional salary, in relation to a chief executive officer or a senior executive officer, means the total amount of the remuneration package for the officer as last determined before the time of payment, less the superannuation guarantee amount payable in respect of the officer.
superannuation guarantee amount means the minimum amount payable to a superannuation fund or scheme in respect of an officer that is sufficient to avoid an individual superannuation guarantee shortfall, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, in respect of the officer.
(5) This section is taken to have applied on and from 3 May 1993.
(1988 Act, cl 5 Sch 5A)
(1) An employee who ceases to be employed in a public sector service and immediately commences employment in another public sector service is taken to have, on commencing that employment, the amount of accrued sick leave to which the employee was entitled before that commencement. This leave is in addition to any sick leave which accrues after that commencement.(2) The eligibility of an employee for sick leave that includes any period of accrued sick leave is to be determined in accordance with the conditions relating to the granting of sick leave in the employee’s current employment.(3) In this section:accrued sick leave means the amount of sick leave to which the employee would have been entitled in the event of illness, and includes any such leave accrued because of the operation of this section.
(4) This section is taken to have applied on and from 3 May 1993.
(1988 Act cl 6 Sch 5A)
(1) This section applies for the purposes of determining whether an employee who ceases to be employed in a public sector service and immediately commences employment in another public sector service is entitled to maternity leave, partner leave, adoption leave or any other leave (other than extended leave) for which a condition of eligibility is a minimum period of service.(2) For the purposes of determining an employee’s entitlement to leave referred to in this section:(a) service with the employee’s previous employer is taken to be service with the employee’s current employer, if the previous employment was in another public sector service and if that period of service was continuous with the employee’s current employment, and(b) service with any other former employers is taken to be service with the person’s current employer, if the service was in other public sector services and the periods of service with those bodies were continuous with each other and the employee’s previous employment in a public sector service.(3) Except as provided by this section, the eligibility of an employee for leave referred to in this section is to be determined in accordance with the conditions applying to that leave in the employee’s current employment.(4) A reference in this section to service with a previous or former employer extends to include a reference to any such service before the commencement of this section.(5) This section is taken to have applied on and from 3 May 1993.
98 Access to forfeited sick leave—transitional arrangements
(1988 Act, cl 7 Sch 5A)
(1) If an employee is eligible for sick leave for any absence from duty but has exhausted his or her sick leave entitlement, the employee’s employer may grant to the employee any of the employee’s forfeited sick leave as sick leave for the absence.(2) An employee’s forfeited sick leave is the total amount of sick leave that the employee ceased to be entitled to up to 13 October 1995 (the date of commencement of Schedule 5A to the Public Sector Management Act 1988), being sick leave that he or she would presently be entitled to had section 96 been in force from when the employee was first employed in a public sector service.(3) Once any period of an employee’s forfeited sick leave has been granted as sick leave under this section, it is no longer regarded as forfeited sick leave for the purposes of any further grant of sick leave to the employee under this section (whether by the same or a different employer).(4) For the purposes of this section, the employer of an employee is the person who exercises the functions of chief executive officer in relation to the public sector service in which the employee is employed (being the appropriate Division Head in the case of a member of the Government Service for example).(5) In determining whether or not an employee is entitled to sick leave, all the employee’s entitlements to sick leave are to be taken into account, including special sick leave and sick leave to which the employee is entitled by operation of section 96.(6) The Commissioner may issue guidelines to employers of employees as to the circumstances in which, and the matters to be taken into account in determining whether, forfeited sick leave should or should not be granted as sick leave under this section.
99 Funding of leave entitlements
(1988 Act, cl 8 Sch 5A)
The Treasurer may give directions and issue guidelines requiring the transfer of funds between public sector employers for the purpose of making due allowance and appropriate adjustments for liabilities incurred by reason of the operation of this Division and Schedule 3, or liabilities with respect to extended or long service leave.
Part 3.3 Miscellaneous provisions relating to public sector staff
(1) A person may be employed (as an officer or on any other basis):(a) in 2 or more Departments, or(b) in the Public Service and in any other public sector service (including in a Division of the Government Service other than a Department).(1A) A separate staff position (however described) is not required to be created in each of the Departments, or in each of the public sector services, in which the person is employed.(2) If the person is employed in 2 or more Departments, the relevant Department Heads may determine that the person is to be regarded as employed in one of those Departments for the purposes of the conditions of employment of the person.(3) If the person is employed in the Public Service and in any other public sector service (including in a Division of the Government Service other than a Department), the relevant Department Head and the chief executive officer or Division Head (as the case requires) of that other public sector service may determine that the person is to be regarded as employed in the relevant Department or in that other service or Division for the purposes of the conditions of employment of the person.(4) Any such determination:(a) may be limited to particular conditions of employment, and(b) may make different provision for different conditions of employment, and(c) is to be made in accordance with such guidelines as are issued from time to time by the Commissioner.(5) For the purposes of this section, conditions of employment include:(a) the provisions of or made under this Act or any other Act under which a public sector service is established, and(b) in the case of a Division of the Government Service in which staff are employed to enable a statutory corporation to exercise its functions, the provisions of or made under the Act under which the statutory corporation is established.
100A Appointment may be made to position pending vacation of position
(1) This section applies in relation to:(a) a chief executive position or senior executive position (whether or not in the Government Service), or(b) any other position in the Government Service.(2) If a person who holds any such position (the incumbent officer) notifies the person’s employer in writing that the person:(a) intends to resign or retire from the position on a specified date, or(b) does not intend to seek re-appointment to the position on completion of the current term of employment,the employer may, before the position becomes vacant, take action to recruit and appoint another person (the new officer) to the position.(3) The appointment of the new officer may, if the instrument of appointment so provides, take effect before the incumbent officer vacates the position.(4) In any such case, the incumbent officer and the new officer:(a) both hold the same position, and(b) may jointly exercise the functions of the position.(5) If in the joint exercise of any statutory function of the position any inconsistency arises in connection with the exercise of that function, the decision of the incumbent officer in relation to the matter prevails.(6) In this section:employer means:
(a) in the case of a person who is a chief executive officer or senior executive officer—the person’s employer as referred to in section 63 (2), or(b) in any other case—the appropriate Division Head.
102 Employees contesting State elections
(Act No 45 of 1916)
(1) If a person who is employed in any public sector service is nominated for election to the Legislative Assembly or Legislative Council, the person is to be granted leave of absence until the day on which the result of the election is declared.(2) If the person is elected, the person is required to resign from the public sector service concerned.(3) Unless the person is entitled to leave with pay (and duly applies for such leave), any leave of absence under this section is to be leave without pay.
102A Appointment to position in public sector service not affected by additional appointment
(1) The doctrine of incompatibility of office:(a) does not operate to prevent the holder of a position in any public sector service (the original position) from being appointed to another position in that or any other public sector service (the additional position), and(b) does not operate to effect or require the holder of the original position to surrender or vacate that position as a result of the appointment to the additional position.(2) This section:(a) applies even if the original position or the additional position is held on an acting or temporary basis, and(b) extends to an appointment made before the commencement of this section (and applies to such an appointment as if this section had been in force when the appointment was made).
103 Re-appointment of employees resigning to contest Commonwealth elections
(Act No 12 of 1943)
(1) If a person who is employed in any public sector service:(a) resigns in writing from the public sector service and the resignation takes effect not earlier than 3 months before the date appointed for the taking of the poll at an election of a member or members of either House of Parliament of the Commonwealth and before the day fixed for nominations for the election, and(b) includes in the resignation notice of the person’s intention to become a candidate at that election, and(c) becomes a candidate at that election, and(d) fails to be elected at that election, and(e) makes written application for re-appointment to a position or other employment in the public sector service concerned within 2 months after the declaration of the result of the poll at that election,the person is entitled to be re-appointed to a position or other employment in the public sector service not lower in remuneration than the current remuneration for the position or employment of the person at the date of the person’s resignation (or a similar position or employment).(2) A person, on being re-appointed under this section, is taken:(a) to have never resigned from the public sector service concerned, and(b) to have been on leave without pay during the period between resignation and re-appointment.(3) If a person is employed in a Division of the Government Service referred to in Part 2 of Schedule 1, a reference in this section to a public sector service in relation to that person is taken to be a reference to that Division only.