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the service of another public sector agency with the approval of the heads of the home agency and the host agency.(2) (Repealed)(3) A temporary transfer under this section may be:(a) at the request, or with the consent, of the member of staff concerned (an employee-initiated temporary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.