Schedule 4 Savings, transitional and other provisions
(Section 166)
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:this Act
Public Sector Employment and Management Amendment (Extended Leave) Act 2005
Public Sector Employment and Management Further Amendment Act 2008
Public Sector Employment and Management Amendment (Ethics and Public Service Commissioner) Act 2011
Public Sector Employment and Management Amendment (Procurement of Goods and Services) Act 2012
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
In any other Act, or in any instrument made under any Act or in any other instrument of any kind:(a) a reference to the Public Service Board (or the Chairman or a member of that Board) or to the Public Employment Industrial Relations Authority is to be read as a reference to:(i) subject to subparagraph (ii)—the Public Employment Office, or(ii) in the case of any particular reference—such person or body as is prescribed by the regulations in respect of that reference, and(b) a reference to the Public Service Act 1902, the Public Service Act 1979 or the Public Sector Management Act 1988 is to be read as a reference to this Act.
Part 2 Provisions consequent on enactment of this Act
In this Part:former Act means the Public Sector Management Act 1988.
4 Saving of regulations under former Act
(1) The following regulations under the former Act as in force immediately before the repeal of that Act and as amended by this Act, are taken to be regulations made under this Act:(a) the Public Sector Management (General) Regulation 1996,(b) the Public Sector Management (Goods and Services) Regulation 2000.(2) For the purposes of Part 3 of the Subordinate Legislation Act 1989, those regulations are taken to have been published on the commencement of this clause.
5 Construction of certain references
(1) In any other Act, or in any instrument made under any Act or in any other instrument of any kind:(a) a reference to the appointment or employment by the Governor of an officer or employee under and subject to the former Act is to be read as a reference to the appointment or employment of an officer or employee under Chapter 2 of this Act, and(b) a reference to Part 2A of the former Act is to be read as a reference to Part 3.1 of this Act, and(c) a reference to section 42Q of the former Act is to be read as a reference to section 77 of this Act, and(d) a reference to an officer or position being listed in Schedule 3B to the former Act is to be read as a reference to a senior executive officer, or senior executive position, respectively, within the meaning of this Act, and(e) a reference to Part 8 of the former Act is to be read as a reference to Chapter 5 of this Act, and(f) a reference to a declared authority under or within the meaning of former Act is to be read as a reference to a declared authority to which Part 6.4 of this Act applies.(2) Subclause (1) does not limit the operation of any provision of the Interpretation Act 1987.
6 Existing public service staff
(1) Any officers employed under the former Act immediately before the repeal of that Act are taken to be officers employed under this Act.(2) Any Departmental temporary employees or special temporary employees employed under the former Act immediately before the repeal of that Act are taken to be Departmental temporary employees and special temporary employees, respectively, employed under this Act.(3) If any procedures have been commenced before the commencement of this Act in relation to the filling of a vacancy in the Public Service or the appointment of a person to any position in the Public Service, the procedures must be completed in accordance with this Act (unless the regulations otherwise provide).
7 Continuation of certain bodies
(1) The Public Employment Office constituted by this Act is a continuation of, and the same legal entity as, the Public Employment Office constituted by the former Act.(2) The State Contracts Control Board established under Part 7.1 of this Act is a continuation of the State Contracts Control Board established under the Public Sector Management (Goods and Services) Regulation 2000 as in force immediately before the commencement of this subclause.
8 Management of conduct and performance and existing disciplinary proceedings
(1) Part 2.7 of this Act extends to conduct occurring before the commencement of that Part.(2) Any disciplinary proceedings pending under Part 5 of the former Act immediately before the commencement of the repeal of that Part by this Act are to continue to be dealt with under the provisions of that Part as if it had not been repealed.
9 Existing delegations under former Act
(1) Any delegation by a Department Head under section 12 of the former Act and in force immediately before the repeal of that section by this Act is taken to be a delegation by the Department Head that is in force under section 15 of this Act.(2) Any delegation by the Public Employment Office (as constituted by the former Act) under section 49F of the former Act and in force immediately before the repeal of that section by this Act is taken to be a delegation by the Public Employment Office that is in force under section 124 of this Act.
10 Saving of orders under Part 3A of former Act
An order under Part 3A of the former Act and in force immediately before the commencement of this clause is taken to have been made under Chapter 4 of this Act (and may be amended or repealed accordingly).
11 Right of return of existing executive officers
(1988 Act, ss 42N, 42R, 42T)
(1) This clause applies to an executive officer within the meaning of Part 3.1 of this Act who made an election to retain a right of return to the public sector under section 42R of the Public Sector Management Act 1988 and the election was in force on 13 October 1995 (the date of commencement of section 42R (2A) of that Act) and was also in force immediately before the repeal of that Act.(2) Any such election is taken to be an election under this clause.(3) For the purposes of Division 4 of Part 3.1 of this Act, an employment benefit includes a right of return to the public sector by an executive officer who elects to retain that right under this clause.(4) An executive officer to whom this clause applies may elect to retain a right of return to the public sector if:(a) the officer was engaged in the public sector on a full-time basis when he or she first became an executive officer, and(b) for at least some part of that engagement the person was an employee in the public sector.(5) Any such election:(a) may be made in the first contract of employment entered into by the executive officer, but (unless made in that first contract) may not be made in any subsequent contract for the same or another executive position, and(b) is revoked if the election is not made by the executive officer in a subsequent contract of employment, and(c) may be revoked by the executive officer by notice in writing to the officer’s employer, and(d) if revoked, may not be made again.(6) If an executive officer has elected to retain a right of return to the public sector, the officer’s contract of employment must provide for the cost of that right as part of the officer’s remuneration package under Division 4 of Part 3.1 of this Act.(7) An executive officer who has elected to retain a right of return to the public sector is entitled to an engagement in the public sector if the person ceases to be an executive officer and:(a) in the case of a chief executive officer—is not re-appointed to the same or another chief executive position, or(b) in the case of a senior executive officer—is not re-appointed to the same or another senior executive position.(8) A person is not entitled to an engagement in the public sector under this clause if the person ceased to be an executive officer because the person resigned or was (after due inquiry) removed from office for misbehaviour.(9) The engagement in the public sector to which a person is entitled under this clause is to be an engagement:(a) in the case of a chief executive officer—as a senior executive officer in any part of the public sector, or(b) in the case of a senior executive officer—in any part of the public sector at a salary not lower than the current maximum salary for:(i) the previous engagement of the person as such an employee within the public sector, or(ii) a clerk (grade 12) in the Public Service,whichever is the lesser.(10) A person who is entitled to such an engagement is not entitled to any compensation for ceasing to hold office as an executive officer 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).(11) Subclause (10) does not prevent the payment of additional remuneration to a person who is engaged in the public sector under this clause in order to maintain, in accordance with the employer’s redeployment policy, the level of the person’s previous remuneration package for a period after the person ceases to be an executive officer.(12) If an executive officer has not entered into a contract of employment and is eligible to make an election under this clause:(a) the officer is (until the officer enters into a contract of employment) to be taken to have made an election under this clause, but may revoke that election, and(b) the cost (under Division 4 of Part 3.1 of this Act) of the right of return to the public sector in accordance with that election is to be deducted from the officer’s remuneration.(13) A reference in this clause to an executive officer ceasing to be an executive officer is, in the case of an executive officer removed from office under section 77 of this Act, a reference to an executive officer ceasing to be such an officer as referred to in section 77 (5) of this Act.(14) An executive officer who is entitled to be engaged in the public sector under this clause may, before being so engaged, elect in writing to take compensation referred to in section 78 of this Act.(15) On the election taking effect, the person ceases to be entitled to be engaged in the public sector under this clause.(16) A reference in this clause to:(a) employment in the public sector is a reference to employment as an officer in the Public Service, the Health Service or the Teaching Service, as a member of the Police Service or as an officer 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.
Subject to this Act and the regulations, anything done or omitted to be done under or for the purposes of the former Act is taken to have been done or omitted to be done under or for the purposes of this Act.
Part 3 Provisions consequent on enactment of Public Sector Employment and Management Amendment (Extended Leave) Act 2005
(1) In this Part:the amending Act means the Public Sector Employment and Management Amendment (Extended Leave) Act 2005.
the repealed Act means the Transferred Officers Extended Leave Act 1961.
(2) Without limiting section 68 (3) of the Interpretation Act 1987, a reference in this Part to an award or enterprise agreement extends to the award or enterprise agreement (if any) that is the replacement, for the time being, for the award or enterprise agreement.
14 Section 30 of the Interpretation Act 1987 unaffected
Nothing in this Part limits the effect of section 30 of the Interpretation Act 1987.
15 Validation of matters relating to extended leave
(1) Anything that was done or omitted during the validation period, and that would have been valid had the amending Act been in force during that period, is taken to have been validly done or omitted.(2) In this clause, validation period means the period beginning on 1 January 2005 and ending on the commencement of Schedule 1 [4] to the amending Act.
16 Certain classes of persons to whom certain amendments do not apply
(1) In its application to the persons or classes of persons listed in the Table to this clause, Schedule 3, as substituted by the amending Act, applies with the following modifications:(a) a reference in clause 2 (1) of Schedule 3 to “7 years or more but not more than 10 years” is to be read as a reference to “10 years”,(b) a reference in clauses 3 (1) and (2) (b) and 5 (2) of Schedule 3 to “7” is to be read as a reference to “10”,(c) clauses 2 (1) (c) and (2) (c) and 8 (1) (c) and (2) of Schedule 3 do not have effect.(2) The Governor may, by proclamation published on the NSW legislation website, omit any of the items to the Table to this clause except for item 15.
Table
1–13
(Repealed) 14
officers covered by the Skilled Trades Staff—Department of Ageing, Disability and Home Care (State) Award 2001,
15
any persons or class of persons prescribed by the regulations for the purposes of this clause.
17 Certain references to Schedule 3
(1) In its application for the purposes of the Acts and instruments set out in the Table to this clause, Schedule 3, as substituted by the amending Act, applies with the following modifications unless the contrary intention appears:(a) a reference in clause 2 (1) of Schedule 3 to “7 years or more but not more than 10 years” is to be read as a reference to “10 years”,(b) a reference in clauses 3 (1) and (2) (b) and 5 (2) of Schedule 3 to “7” is to be read as a reference to “10”,(c) clauses 2 (1) (c) and (2) (c) and 8 (1) (c) and (2) of Schedule 3 do not have effect.(2) (Repealed)
Table
1–17
(Repealed) 18
an Act or instrument prescribed by the regulations for the purposes of this clause.
Part 4 Provisions consequent on enactment of Public Sector Employment Legislation Amendment Act 2006
In this Part:amending Act means the Public Sector Employment Legislation Amendment Act 2006.
19 Existing staff of statutory corporations
(1) A person who, immediately before the commencement of Chapter 1A (as inserted by the amending Act), was employed as a member of staff (however described) of a statutory corporation under an Act amended by Schedule 4 to the amending Act:(a) ceases, on that commencement, to be employed by the statutory corporation, and(b) is taken, on that commencement, to be a member of staff of the Division of the Government Service that comprises the group of staff who are employed under that Chapter to enable the statutory corporation to exercise its functions.Note. Subclause (1) only applies to staff who were employed by a statutory corporation and does not apply to existing departmental staff in the Public Service who, immediately before the relevant commencement, comprised a group of staff attached to a statutory corporation. Clause 25 of this Part deals with existing departmental staff.(2) Any such person who, under subclause (1), becomes a member of staff of a Division of the Government Service is, until such time as provision is otherwise made under this Act or any other law, to continue to be employed in accordance with the terms and conditions (including the terms of any State industrial instrument or of any determination made under any other Act) that applied to the person as a member of staff of the statutory corporation concerned.(3) If an award under the Workplace Relations Act 1996 of the Commonwealth (the Federal award) applied to the person concerned as a member of staff of the statutory corporation immediately before the commencement of Chapter 1A, a State industrial instrument in the nature of an award is taken to have been created in the same terms as the Federal award and is taken to apply to the person for the purposes of subclause (2).(4) If a certified agreement under the Workplace Relations Act 1996 of the Commonwealth (the Federal agreement) applied to the person concerned as a member of staff of the statutory corporation immediately before the commencement of Chapter 1A, a State industrial instrument in the nature of an enterprise agreement is taken to have been created in the same terms as the Federal agreement and is taken to apply to the person for the purposes of subclause (2).(5) The terms of any such instrument created as provided by subclause (3) or (4) have effect despite anything to the contrary in the Annual Holidays Act 1944, the Long Service Leave Act 1955, the Industrial Relations Act 1996 or any other law of the State.(6) A person who, under subclause (1), becomes a member of staff of a Division of the Government Service is, for the purposes of clause 21, taken to have been transferred to that Division from the statutory corporation concerned.(7) This clause does not apply in relation to a person holding office:(a) as Chief Executive of the Greyhound and Harness Racing Regulatory Authority, or(b) as the Director of the Zoological Parks Board,immediately before the commencement of Chapter 1A.(8) This clause extends to persons who were, immediately before the commencement of Chapter 1A, employed as members of staff of Western Sydney Buses.(9) This clause is subject to the provisions of this Act and the regulations.
20 Transfer of TAFE administrative staff
(1) On the commencement of Chapter 1A, each person who was, immediately before that commencement, a member of the TAFE administrative staff is transferred to the Department of Education and Training.(2) In this clause:TAFE administrative staff means the staff of the TAFE Commission other than the staff comprising either or both of the following:
(a) teaching or educational staff,(b) institute managers.
21 Provisions relating to transferred staff
(1) A person who is transferred under clause 19 or 20:(a) retains any rights to annual leave, extended or long service leave, sick leave, and other forms of leave, accrued or accruing in his or her employment with the statutory corporation from which the person is transferred, and(b) is not entitled to receive any payment or other benefit merely because the person ceases to be a member of staff of the statutory corporation from which the person is transferred, and(c) is not entitled to claim, both under this Act or any other Act, dual benefits of the same kind for the same period of service.(2) Without limiting subclause (1), a person who is transferred under clause 19 or 20 is not, despite any other provision of this Act, entitled to elect, because of that transfer, to be paid the money value of any extended or annual leave that the person accrued as a member of staff of the statutory corporation from which the person is transferred.
22 Abolition of Public Employment Office
(1) The Public Employment Office is abolished.(2) A reference, in any other Act, or in any instrument made under any Act or in any other instrument of any kind, to the Public Employment Office is to be read as a reference to the Director of Public Employment.
23 Declared authorities industrial relations functions
(1) Part 6.4 (as in force immediately before its repeal by the amending Act) continues to apply to and in respect of:(a) the State Rail Authority Residual Holding Corporation (as referred to in Schedule 8 to the Transport Administration Act 1988) until such time as that Corporation ceases to employ any staff under that Schedule, and(b) FSS Trustee Corporation until the registration day as referred to in clause 1 of Schedule 2A to the Superannuation Administration Act 1996.(2) The provisions of any other Act that would have applied to a statutory corporation if Part 6.4 was in force continue to apply to the corporation for so long as Part 6.4 continues to apply to the corporation as provided by subclause (1).
24 Ministerial responsibility for Divisions of the Government Service
Until such time as provision is otherwise made under section 106 in relation to the Division concerned, a Division of the Government Service in which staff are employed under Chapter 1A to enable a statutory corporation to exercise its functions is responsible to the Minister who is responsible for administering the Act under which the corporation is constituted.
25 Existing staff of Public Service Departments
(1) The substitution of Schedule 1 by the amending Act does not affect:(a) a person’s appointment to a position in the Public Service held by the person immediately before that substitution, or(b) the terms and conditions on which the person was employed in a Department immediately before that substitution.(2) A reference in any other Act or instrument to a Department (as listed in Schedule 1 immediately before the substitution of that Schedule by the amending Act) is, if the name of the Department is modified by the amending Act, taken to be a reference to the Department as so modified.
26 Existing workers compensation policies of insurance and self-insurer’s licences
(1) A policy of insurance issued to a statutory corporation under the Workers Compensation Act 1987 and in force immediately before the commencement of Chapter 1A is also taken to have been issued to the Government of New South Wales (but only as a policy that is limited to workers employed in a Division of the Government Service to enable the statutory corporation to exercise its functions).(2) A licence under Division 5 of Part 7 of the Workers Compensation Act 1987 granted to a statutory corporation and in force immediately before the commencement of Chapter 1A is also taken to have been issued to the Government of New South Wales (but only as a self-insurer’s licence that is limited to workers employed in a Division of the Government Service to enable the statutory corporation to exercise its functions).
Part 5 Provisions consequent on enactment of Public Sector Employment and Management Amendment Act 2008
(1) In this clause, amending Act means the Public Sector Employment and Management Amendment Act 2008.(2) Existing eligibility lists
Section 20, as amended by the amending Act, extends to eligibility lists having effect immediately before the commencement of those amendments.(3) Existing temporary employees
Section 31, as amended by the amending Act, extends to persons employed as Departmental temporary employees as at the commencement of those amendments.(4) Existing secondments
The amendment to section 86 made by the amending Act extends to a person who, as at the commencement of that amendment, is the subject of an employee-initiated temporary transfer under that section but who has not yet become an employee of the host agency concerned.
Part 6 Provisions consequent on enactment of Public Sector Employment and Management Further Amendment Act 2008
(1) In this clause, amending Act means the Public Sector Employment and Management Further Amendment Act 2008.(2) Existing appointments on probation
Section 23 (1A), as inserted by the amending Act, extends to any person who was appointed to a position on probation before the commencement of the amending Act and whose appointment has not been confirmed or annulled as at that commencement.(3) Existing internal secondments
A member of staff of a public sector agency who, immediately before the commencement of the amending Act, was the subject of a temporary transfer under section 86 to another position or other employment within that agency is, on the commencement of the amending Act, taken to have transferred to that other position or employment under section 86A (as inserted by the amending Act). Accordingly, section 86A extends to a person who is the subject of any such existing temporary transfer.(4) Existing delegations by Director of Public Employment
The amendments to section 124 by the amending Act do not affect the operation of any delegation in force under that section immediately before the commencement of the amending Act.(5) Existing members of State Contracts Control Board
A person holding office as a member of the State Contracts Control Board (including as the Chairperson of the Board) immediately before the commencement of the amending Act is, on that commencement, taken to have been appointed as a member or as the Chairperson of the Board (as the case requires) under section 137 (1) as substituted by the amending Act.(6) Inquiries into public sector agencies
Section 159A, as inserted by the amending Act, extends to conduct occurring (or any other matter arising) before the commencement of the amending Act.
Part 7 Provision consequent on enactment of World Youth Day Act 2006
29 Transitional provision consequent on dissolution of World Youth Day Co-ordination Authority
The regulations may make provision for or with respect to any matter that is consequent on the dissolution of the World Youth Day Co-ordination Authority constituted by the World Youth Day Act 2006.
Part 8 Provision consequent on enactment of Public Sector Employment and Management Amendment Act 2010
30 Proceedings in respect of appointing
Section 22 (5), as inserted by the Public Sector Employment and Management Amendment Act 2010, does not apply in relation to any appointment made before the commencement of that subsection.
Part 9 Provisions consequent on enactment of Public Sector Employment and Management Amendment (Ethics and Public Service Commissioner) Act 2011
In this Part:amending Act means the Public Sector Employment and Management Amendment (Ethics and Public Service Commissioner) Act 2011.
32 Recommendation of appointment of first Commissioner
The person appointed as the first Commissioner is to be a person whose appointment is recommended by a committee chaired by a person appointed by the Premier (whether before or after the commencement of this clause) as the Chairperson of the Public Service Commission Advisory Board.
33 Construction of references to Director of Public Employment
A reference, in any other Act, or in any instrument made under any other Act or in any other instrument of any kind, to the Director of Public Employment is to be read:(a) as a reference to the Public Service Commissioner, or(b) as a reference to the Director-General of the Department of Premier and Cabinet if the reference relates to the functions exercised by the Director of Public Employment under Part 6.3 (as in force immediately before the amendments to that Part by the amending Act).
Part 10 Provisions consequent on enactment of Public Sector Employment and Management Amendment Act 2012
(1) In this clause, amending Act means the Public Sector Employment and Management Amendment Act 2012.(2) Section 103A, as inserted by the amending Act, extends to members of staff of a public sector agency who were excess employees on the date that notice was given in Parliament for the introduction of the Bill for the amending Act and to proceedings instituted on or after that date under Division 2 of Part 9 of Chapter 2 of the Industrial Relations Act 1996.(3) Nothing in this clause affects any order of the Industrial Relations Commission or a court that is made before the commencement of the amending Act.
Part 11 Provisions consequent on enactment of Public Sector Employment and Management Amendment (Procurement of Goods and Services) Act 2012
35 Abolition of State Contracts Control Board
(1) The State Contracts Control Board is abolished.(2) Each person holding office as a member of the State Contracts Control Board immediately before the commencement of this clause:(a) ceases to hold office as such a member, and(b) is not entitled to any remuneration or compensation because of the loss of that office.(3) The assets, rights and liabilities of the State Contracts Control Board are the assets, rights and liabilities of the Crown.(4) The Director-General of the Department of Finance and Services may act for the Crown in connection with any contract or agreement entered into by the State Contracts Control Board and in force immediately before the commencement of this clause.(5) A reference in any document to the State Contracts Control Board is to be read as a reference to the NSW Procurement Board, except as provided by subclause (6).(6) A reference in or in relation to a contract or agreement entered into by the State Contracts Control Board is to be read as a reference to the Director-General of the Department of Finance and Services, subject to the regulations.(7) In this clause, document means an Act (other than this Act) or statutory instrument, or any other instrument, or any contract or agreement.