Schedule 3A Recognition of prior government service for public sector employees extended leave entitlements
(Section 94)
In this Schedule:Australian Defence Force includes the armed forces of the Commonwealth, however described.
Commonwealth or interstate agency means:
(a) a body that:(i) is established under an Act of the Commonwealth or another State or Territory, and(ii) is under the control of a Minister of the Commonwealth or other State or Territory, and(iii) is part of the public service (however described) of the Commonwealth or other State or Territory, and(iv) is a body in which persons are employed under conditions substantially equivalent to the conditions under which officers are employed under this Act, or(b) a body that is declared to be a Commonwealth or interstate agency for the purposes of this Schedule pursuant to an order under clause 2,but, subject to paragraph (b), does not include:(c) a local government authority, or(d) a university or the governing body of a university, or(e) a corporation owned by the Commonwealth or another State or Territory, or by the Crown in right of the Commonwealth or another State or Territory, or(f) a body that is declared not to be a Commonwealth or interstate agency for the purposes of this Schedule pursuant to an order under clause 2.continuous is defined in clause 3.
immediately follows is defined in clause 4.
judicial officer has the meaning it has in the Judicial Officers Act 1986.
public sector agency has the same meaning as public sector service.
public sector employee means a person who is employed in a public sector agency.
recognised service, in relation to a public sector employee, means service that is recognised service in relation to the employee pursuant to Part 2.
2 Declarations concerning Commonwealth or interstate agencies
(1) The Commissioner may, by order in writing, declare that a specified body is, or is not, a Commonwealth or interstate agency for the purposes of this Schedule.(2) An order under this clause:(a) takes effect on such day as is specified in the order, being a day occurring before, on or after the day on which the order is made, and(b) may be subject to specified limitations, but not so as to operate to the prejudice of any person who was a public sector employee immediately before the order took effect.(3) There are to be made publicly available at the Public Service Commission:(a) a list of the names of each body that is declared under this clause to be a Commonwealth or interstate agency, and(b) a list of the names of each body that is declared under this clause not to be a Commonwealth or interstate agency.
(1) For the purposes of this Schedule, a person’s employment by an employer is continuous, in relation to a period, if the person remains employed by that employer for the whole of the period.(2) The person is taken to remain employed by the employer for the whole of any period even if, during that period, the person ceases to be employed by the employer on the grounds of retrenchment or reduction of work but is re-employed by the employer within the next 12 months.
4 Definition of “immediately follows”
(1) For the purposes of this Schedule, a person’s period of employment immediately follows another period of employment if:(a) the later period commences:(i) except as provided by subparagraph (ii), within 2 months after the end of the earlier period, or(ii) if the earlier period comprises full-time war service as a member of the Australian Defence Force, within 12 months after the end of the earlier period, and(b) the earlier period ends otherwise than by reason of the person’s dismissal for disciplinary reasons.(2) For the purposes of subclause (1) (a) (ii), war service means:(a) service occurring during, or partly during, a period of war in which the Australian Defence Force is engaged, or(b) service of a kind declared by the regulations to be war service for the purposes of this clause.
Part 2 Recognition of former government service for public sector employees generally
The object of this Part is to provide for the recognition of former government service in the calculation of a public sector employee’s extended leave entitlement, whether such an entitlement arises:(a) under Schedule 3 (in the case of an officer or temporary employee), or(b) under some other Act or law, such as an award or industrial agreement (in any other case).
6 Recognition of former government service
(1) For the purpose of calculating a public sector employee’s extended leave entitlement, the public sector employee’s service with his or her current employer is taken to include his or her recognised service.(2) The person’s employment in a public sector agency or a Commonwealth or interstate agency (the former agency) is recognised service in relation to the person’s subsequent employment in a public sector agency (the current agency) if:(a) the period of employment in the former agency has been continuous, and(b) either:(i) the person’s employment in the current agency has immediately followed the person’s employment in the former agency, or(ii) the person is entitled, by law or administrative practice, to have the service in the former agency form part of the service in the current agency for the purpose of calculating the person’s extended leave entitlement.(3) A period of recognised service may not be counted more than once for the purpose of calculating the person’s extended leave entitlement.
7 Leave already taken, paid or deemed to have been taken excluded
(1) The following amounts of leave are to be deducted from a public sector employee’s extended leave entitlement:(a) the amount of any extended leave taken by the public sector employee in relation to recognised service,(b) the amount of any extended leave in respect of which the public sector employee has elected to be paid the money value under clause 8 in respect of recognised service,(c) the amount of any extended leave that the public sector employee is deemed to have taken under clause 9 in respect of recognised service.(2) For the purposes of subclause (1) (a), the public sector employee is deemed to have taken extended leave if he or she has been paid the money value of that leave.(3) A period of extended leave is not to be deducted more than once under this clause.
8 Public sector employee may elect to be paid money value of accrued leave if former employer a public sector agency
(cf s 95)
(1) A public sector employee who ceases to be employed in a public sector agency (the prior employment) and immediately commences employment in another public sector agency (the current employment) may elect:(a) to be paid the money value of the public sector employee’s accrued extended leave, or(b) to retain the entitlement to that accrued extended leave.(1A) Such an election cannot be made by a public sector employee if the employee is only moving between different Departments of the Public Service.(1B) However, such an election may, without limiting subclause (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) Subclause (1B) has effect despite anything to the contrary in the Annual Holidays Act 1944 or the Long Service Leave Act 1955.(2) This clause does not apply to an officer or temporary employee who has been paid the money value of his or her accrued extended leave under clause 4 of Schedule 3.Note. Whichever election the public sector employee makes, his or her service with the current employer will, pursuant to clause 6, be deemed to include service with the former employer.
9 Employee who has recognised interstate service and was entitled to take leave in former agency deemed to have taken leave
(1) For the purposes of clause 7 (1) (c), a public sector employee:(a) whose employment in a public sector agency (the current agency) immediately follows employment in a Commonwealth or interstate agency (the former agency), or(b) who is entitled, by law or administrative practice, to have the service in the former agency form part of the service in the current agency,and who, at any time during his or her employment in the former agency, has been entitled under the relevant Commonwealth or interstate law to take extended leave or be paid the money value of extended leave is deemed to have taken the leave.(2) The amount of extended leave that the public sector employee is deemed to have taken is calculated as if:(a) leave had accrued in relation to his or her service in the former agency at the same rate as leave accrues in relation to his or her service in the current agency, and(b) the service in the former agency in respect of which leave accrued was the whole of the service recognised by the former agency for the purpose of calculating his or her extended leave entitlement, and(c) the amount of leave taken before the calculation of the entitlement was nil, and(d) the money value of leave paid before the calculation of the entitlement was nil.
Part 3 Additional provisions for former members of Australian Defence Force and for holders of certain statutory offices
10 Recognition of service with Australian Defence Force
For the purposes of this Schedule:(a) a public sector employee who has previously been employed, on a full-time basis, as a member of the Australian Defence Force is taken to have been employed in a Commonwealth or interstate agency during the period for which he or she was so employed, and(b) the Australian Defence Force is taken to have been the public sector employee’s employer during that period.
11 Recognition of service in certain statutory offices
(1) For the purposes of this Schedule:(a) a person who:(i) in relation to a body referred to in the Table to this clause, holds or acts in an office specified in that Table, on a full-time basis, and(ii) has previously been a public sector employee,is taken to be employed in a public sector agency during the period for which the person holds or acts in that office, and(b) the body concerned is taken to be the person’s employer during that period.(2) For the purposes of this Schedule:(a) a public sector employee who, in relation to a body referred to in the Table to this clause, has previously held or acted in an office specified in that Table, on a full-time basis, is taken to have been employed in a public sector agency during the period for which he or she held or acted in that office, and(b) the body concerned is taken to have been the public sector employee’s employer during that period.(3) Without limiting any other law preserving rights to extended leave, a person who, in relation to a body referred to in the Table to this clause, holds an office specified in that Table, on a full-time basis, is entitled to have his or her recognised service as a public sector employee recognised as service for the purposes of the law or arrangement that provides for his or her entitlement, as the holder of the office, to extended leave.Table
Administrative Decisions Tribunal of New South Wales
Deputy President (not being a judicial officer)
Non-presidential judicial member (not being a judicial officer)
Non-judicial member
Assessor
Consumer, Trader and Tenancy Tribunal of New South Wales
Deputy Chairperson
Member
Government and Related Employees Appeal Tribunal
Senior Chairperson
Chairperson
Industrial Relations Commission of New South Wales
Member
Police Integrity Commission
Commissioner
Inspector
Transport Appeal Boards
Chairperson
Workers Compensation Commission of New South Wales
Deputy President (not being a judicial officer)
Registrar
Arbitrator