Part 3.1Part 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—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.