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This is a Bill, not an Act. For current law, see the Acts databases.
2014
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Chief Minister)
Contents
Page
2014
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Chief Minister)
A Bill for
An Act about the values, principles, accountability and administration of the public sector
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Public Sector Act 2014
.
This Act commences on a day fixed by the Minister by written notice.
Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act
, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act
, s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see
, s 79).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.
For example, the signpost definition ‘eligibility requirements, for a job, for part 5 (Employment in the service)—see section 29.’ means that the term ‘eligibility requirements’ is defined in that section for part 5.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see
, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this Act.
Note See the
, s 127 (1), (4) and (5) for the legal status of notes.
Part 2 Public sector standards
The main objects of this Act are to—
(a) establish and maintain an apolitical public sector with clear values, clear standards of conduct and a best practice focus; and
(b) establish and maintain a public service that assists the Executive to meet the needs of the community and serves the community on behalf of the Executive; and
(c) promote and uphold the public sector values, standards of conduct and best practice focus.
Note 1 The
(Cwlth) and industrial instruments apply to the employment of an employee and, to the extent of any inconsistency between this Act and that Commonwealth law, the Commonwealth law prevails to the extent of any inconsistency.
Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act
, s 104).
In this Act:
public sector means the following:
(a) the service;
(b) public sector members.
7 What are public sector values?
(1) The public sector values are—
(a) respect; and
(b) integrity; and
(c) collaboration; and
(d) innovation.
(2) The public sector values must be—
(a) demonstrated by an employee when acting in connection with the employee’s job; and
(b) applied in a way that is appropriate to the employee’s job; and
(c) used to inform and evaluate the operation of the public sector.
8 What are public sector principles?
(1) The public sector principles are—
(a) the best practice principle; and
(b) the merit and equity principle.
(2) An employee must do the employee’s job in accordance with the best practice principle.
(3) The head of service must exercise a function under this Act in accordance with the merit and equity principle.
(4) In this section:
best practice principle—an employee does the employee’s job in accordance with the best practice principle if the employee—
(a) works efficiently, effectively and constructively; and
(b) is responsive and accountable; and
(c) makes fair and reasonable decisions.
merit and equity principle—the head of service exercises a function under this Act in accordance with the merit and equity principle if the head of service—
(a) is an equitable employer; and
(b) employs a person in a job who is best able to do the job in all the circumstances.
(1) An employee must—
(a) take all reasonable steps to avoid a conflict of interest; and
(b) declare or manage a conflict of interest that cannot reasonably be avoided; and
(c) when acting in connection with the employee’s job—
(i) comply with laws applying in the Territory; and
(ii) comply with any lawful and reasonable direction given by a person with the authority to give the direction; and
(iii) if dealing with a member of the public—make all reasonable efforts to help the person to understand the person’s entitlements, and any requirement the person is obliged to meet, under a territory law; and
(iv) treat all people with courtesy and sensitivity to their rights and aspirations; and
(d) do the employee’s job with reasonable care and diligence, impartiality and honesty.
(2) An employee must not—
(a) damage the reputation of the public sector or the Executive; or
(b) take improper advantage of the employee’s job or information gained through the employee’s job; or
(c) improperly use a Territory resource, including information, accessed through the employee’s job; or
(d) without lawful authority—
(i) disclose confidential information gained through the employee’s job; or
Note The
, s 153 (1) makes it an offence for an employee to disclose information that it is the employee’s duty not to disclose.
(ii) make a comment that reasonably appears to be an official comment; or
(e) when acting in connection with the employee’s job—bully, harass or intimidate anyone; or
(f) when doing the employee’s job—apply improper influence, favouritism or patronage.
(3) For a misconduct procedure, failing to act in a way that is consistent with subsection (1) or (2) may be misconduct.
Note A misconduct procedure means a procedure set out in an industrial instrument or prescribed by regulation (see dict, def misconduct procedure).
(4) An employee (a discloser) must tell the following person about any maladministration or misconduct by another employee of which the discloser becomes aware:
(a) the head of service;
(b) if the alleged maladministration or misconduct is by the head of service—the commissioner.
(5) This section does not—
(a) affect the operation of any other Act; or
(b) create or affect any other legal right.
Part 3 Public Sector Standards Commissioner
10 Appointment of commissioner
(1) The Chief Minister must appoint a person as the Public Sector Standards Commissioner (the commissioner).
Note 1 For the making of appointments (including acting appointments),
see the
, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act
, s 207).
(2) If an employee is appointed as the commissioner, the employee must resign from the service before the appointment commences.
(3) An appointment must be for a period of not longer than 5 years.
Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act
, s 208 and dict, pt 1, def appoint).
(4) The
, division 19.3.3 (Appointments—Assembly consultation) does not apply to the appointment of a person as commissioner.
(5) An appointment is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act
.
The commissioner has the following functions:
(a) to advise the Chief Minister on the management of the public sector as a whole;
(b) to promote, uphold and provide advice about the public sector values, the public sector principles and the conduct required under this Act;
(c) to develop, oversee the implementation of and coordinate strategies to ensure the Territory is an equitable employer;
(d) to conduct investigations about the management of an employee in the way prescribed by regulation;
(e) to provide advice about the movement of a public sector member within the public sector;
(f) to exercise any function given to the commissioner under this Act or another law applying in the territory.
Note 1 Function includes authority, duty and power (see Legislation Act
, dict, pt 1).
Note 2 A provision of a law that gives an entity (including a person)
a function also gives the entity powers necessary and convenient to exercise the
function (see
, s 196 and dict, pt 1, def entity).
12 Leave of absence for commissioner
The Chief Minister may approve, in writing, leave of absence for the commissioner on the terms the Chief Minister decides in writing.
13 Suspension and removal of commissioner
(1) The Chief Minister may suspend the commissioner—
(a) for alleged misconduct; or
(b) for physical or mental incapacity, if the incapacity affects the commissioner’s ability to exercise a function; or
(c) if the commissioner is convicted, or found guilty, in the ACT of an offence punishable by imprisonment for at least 1 year; or
(d) if the commissioner is convicted, or found guilty, outside the ACT of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year.
Note Found guilty—see the Legislation Act
, dictionary, pt 1.
(2) The Chief Minister must present the Legislative Assembly with a statement of the reasons for the suspension not later than the first sitting day after the day the commissioner is suspended.
(3) If, not later than 6 sitting days after the day the statement is presented, the Legislative Assembly resolves to require the Chief Minister to end the commissioner’s appointment, the Chief Minister must end the commissioner’s appointment.
(4) The commissioner’s suspension ends—
(a) if the Chief Minister does not comply with subsection (2)—at the end of the day the Chief Minister should have presented to the Legislative Assembly the statement mentioned in that subsection; or
(b) if the Assembly does not pass a resolution mentioned in subsection (3) before the end of the 6 sitting days—at the end of the 6th sitting day.
Note An appointment also ends if the appointee resigns (see Legislation Act
, s 210).
(5) The commissioner is entitled to be paid salary and allowances while suspended.
14 Ending commissioner’s appointment without suspension
(1) The Chief Minister must end the commissioner’s appointment if the commissioner—
(a) becomes bankrupt or personally insolvent; or
(b) is absent, other than on approved leave, for 14 consecutive days or for 28 days in any 12-month period.
(2) The Chief Minister may, with the consent of the commissioner, end the commissioner’s appointment on the ground of physical or mental incapacity.
15 Arrangements for staff and facilities
The commissioner may make arrangements with the head of service to use the services of employees or Territory facilities.
Note The head of service may delegate powers in relation to the management of employees to the commissioner (see s 24).
(1) The commissioner may—
(a) delegate to an employee or another person a function under this Act or any other law applying in the territory; or
(b) subdelegate to an employee or another person a function delegated to the commissioner under a law other than this Act.
Note For the making of delegations and the exercise of a delegated
function, see the
, pt 19.4.
(2) However, the commissioner must not delegate or subdelegate a function to a person who is not an employee unless the commissioner considers that the tasks to be undertaken by the person require the exercise of the function.
17 Commissioner may make public sector standards
(1) The commissioner may make standards (the public sector standards) about the following:
(a) the public sector values;
(b) the public sector principles;
(c) strategies to ensure the Territory is an equitable employer;
(d) the conduct required under this Act;
(e) strategies designed to eliminate disadvantage in relation to public sector employment;
(f) a matter prescribed by regulation.
(2) The commissioner may make a standard declaring that a day will be a holiday for all or part of the public sector.
(3) A standard may only be made—
(a) in consultation with the head of service; and
(b) with the written approval of the Chief Minister.
(4) A standard is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act
.
18 Establishment of joint council
(1) The commissioner must establish a consultative forum for the service and an employee organisation (the joint council).
Note Establish includes constitute and continue in existence
(see
, dict, pt 1).
(2) The joint council must operate in accordance with terms of reference approved by the commissioner and agreed by the head of service.
(3) The terms of reference are a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act
.
Division 4.1 Service structure
19 Establishment of the service
(1) The Australian Capital Territory Public Service (the service) is established.
Note Established includes constitute and continue in existence
(see
, dict, pt 1, def establish).
(2) The service is made up of—
(a) the head of service; and
(b) employees.
Note An employee includes a director-general and an SES employee.
(3) The service acts on behalf of the Executive.
(1) For the
(Cwlth), section 43 (1) the Chief Minister may make a determination allocating responsibility to a Minister in relation to the following matters:
(a) governing the Territory in relation to a stated matter;
(b) an Act;
(c) the Executive’s powers under a Commonwealth law;
(d) prerogatives of the Crown for the matters mentioned in paragraphs (a) to (c).
(2) The Chief Minister must determine which part of the service (a directorate) is responsible for a matter mentioned in subsection (1).
(3) For the
(Cwlth), section 43 (2) any Minister is authorised to act on the Chief Minister’s behalf or on behalf of another Minister.
(4) Subsection (3) is subject to the Legislation Act
, section 41 (Making of certain statutory instruments by Executive).
(5) A determination is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act
.
21 Appointment of head of service
(1) The Chief Minister must appoint a person as the Head of Service.
Note 1 For the making of appointments (including acting appointments),
see the
, pt 19.3.
Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act
, s 207) and the power to appoint a person includes the power to end the
appointment (see
, s 208 and dict, pt 1, def appoint).
(2) An appointment must be for a period of not longer than 5 years.
Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act
, s 208 and dict, pt 1, def appoint).
(3) The Chief Minister must present a copy of the instrument appointing the head of service to the Legislative Assembly within 6 sitting days of it being made.
(4) The
, division 19.3.3 (Appointments—Assembly consultation) does not apply to the appointment of a person as head of service.
(5) An appointment is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act
.
22 Functions of head of service
(1) The head of service—
(a) is responsible for the leadership and management of the service; and
(b) is answerable to the Chief Minister.
(2) The head of service has the following leadership functions:
(a) to develop, oversee the implementation of, coordinate and provide advice and reports to the Chief Minister about whole-of-government strategies;
(b) to provide direction across the service in relation to critical or potentially critical issues;
(c) to promote cooperation and collegiality within and between directorates;
(d) to promote and uphold in the service the public sector values, the public sector principles and the conduct required of an employee, including by personal example;
(e) any other function given to the head of service by the Chief Minister.
Note 1 Function includes authority, duty and power (see Legislation Act
, dict, pt 1).
Note 2 A provision of a law that gives an entity (including a person)
a function also gives the entity powers necessary and convenient to exercise the
function (see
, s 196 and dict, pt 1, def entity).
(3) The head of service has the following management functions:
(a) to employ people on behalf of the Territory in accordance with the merit and equity principle;
(b) to organise employees in the service;
Note Subsection (4) sets out requirements for the organisation of the service.
(c) to manage how an employee does the employee’s job;
(d) to provide advice and reports to the Chief Minister about employment in the service;
(e) any other function given to the head of service by the Chief Minister.
(4) For subsection (3) (b), the organisation of the service must—
(a) give effect to the service structure determined under section 20; and
(b) enable efficient and effective management of the service; and
(c) promote the administration of the service in a way that is consistent with the public sector values, the public sector principles and the conduct required of an employee.
23 Conditions of appointment of head of service
(1) The conditions of appointment of the head of service are—
(a) any term set out in the head of service’s instrument of appointment; and
(b) the relevant part 5 conditions.
(2) In this section:
relevant part 5 conditions means the relevant provisions read—
(a) as if a reference to—
(i) the head of service is a reference to the Chief Minister; and
(ii) the employment of a person is a reference to the appointment of the head of service; and
(iii) an employee is a reference to the head of service; and
(b) with any other necessary change.
relevant provisions means—
(a) section 31 (Head of service may employ a person); and
(b) division 5.3 (Change in employment); and
(c) division 5.5 (Suspension and end of employment); and
(d) division 5.7 (Public service employment).
24 Delegation by head of service
(1) The head of service may—
(a) delegate to an employee or another person a function under this Act (other than a function under section 42 (End of employment on agreed terms)) or any other law applying in the territory; or
(b) subdelegate to an employee or another person a function delegated to the head of service under this Act or any other law applying in the territory.
Note For the making of delegations and the exercise of a delegated
function, see the
, pt 19.4.
(2) However, the head of service must not delegate or subdelegate a function to a person who is not an employee without first being satisfied that the tasks to be undertaken by the person require the exercise of the function.
Division 4.3 Directors-general and SES employees
25 Functions of director-general
(1) A director-general is—
(a) responsible for leadership of a directorate and leadership in the service; and
(b) answerable to the Minister responsible for the directorate and to the head of service.
Note A directorate may be responsible for matters allocated to more than 1 Minister (see dict, def Minister).
(2) A director-general has the following directorate functions:
(a) to provide advice and reports to the Minister responsible for the directorate and the head of service on matters relating to the directorate;
(b) to manage the business of the directorate;
(c) any other function given to the director-general—
(i) by the Minister responsible for the directorate; or
(ii) by the head of service; or
(iii) under this Act or another territory law;
(d) to exercise a function mentioned in paragraphs (a) to (c) taking into account the responsibilities of the government as a whole, including by collaborating with other directors-general.
Note 1 Function includes authority, duty and power (see Legislation Act
, dict, pt 1).
Note 2 A provision of a law that gives an entity (including a person)
a function also gives the entity powers necessary and convenient to exercise the
function (see
, s 196 and dict, pt 1, def entity).
(3) A director-general has the following leadership functions:
(a) to provide advice to the head of service about the development and coordination of whole-of-government strategies;
(b) to lead the implementation of whole-of-government strategies;
(c) to implement, at the direction of the head of service—
(i) strategies for the administration of the service; and
(ii) responses to critical or potentially critical issues;
(d) to work efficiently, effectively and constructively with other directors-general to ensure a whole-of-government focus and promote cooperation and collegiality within and between directorates;
(e) to promote and uphold in the service the public sector values, the public sector principles and the conduct required of an employee, including by personal example;
(f) any other function given to the director-general by—
(i) the Minister responsible for the directorate; or
(ii) the head of service.
26 Delegation by director-general
(1) A director-general may—
(a) delegate to an employee or another person a function under this Act or any other law applying in the territory; or
(b) subdelegate to an employee or another person a function delegated to the director-general under this Act or any other law applying in the territory.
Note For the making of delegations and the exercise of a delegated
function, see the
, pt 19.4.
(2) However, a director-general must not delegate or subdelegate a function to a person who is not an employee without first being satisfied that the tasks to be undertaken by the person require the exercise of the function.
(1) The senior executive service is made up of SES employees.
(2) An SES employee—
(a) is responsible for leadership in the service; and
(b) is answerable to the head of service and the director-general for the directorate in which the SES employee is employed.
(3) An SES employee has the following leadership functions:
(a) to advance whole-of-government strategies as part of the senior executive service;
(b) to promote and demonstrate cooperation and collegiality within and between directorates;
(c) to promote and uphold in the service the public sector values, the public sector principles and the conduct required of an employee, including by personal example;
(d) any other function given to the SES employee by—
(i) the head of service; or
(ii) the director-general for the directorate in which the SES employee is employed.
Note 1 Function includes authority, duty and power (see Legislation Act
, dict, pt 1).
Note 2 A provision of a law that gives an entity (including a person)
a function also gives the entity powers necessary and convenient to exercise the
function (see
, s 196 and dict, pt 1, def entity).
Part 5 Employment in the service
Division 5.1 Management of employment matters
28 Meaning of employment matter—pt 5
In this part:
employment matter means—
(a) the employment of a person in a job; or
(b) a change to an employee’s job; or
(c) the end of an employee’s employment.
29 Meaning of eligibility requirements—pt 5
(1) For this part, a person meets the eligibility requirements for a job if the person—
(a) satisfies any of the following:
(i) is an Australian citizen;
(ii) is a permanent resident of Australia;
(iii) holds a visa that permits—
(A) the person to exercise each function assigned to the job; and
(B) employment for the hours of the job; and
(C) employment for the period of the job; and
Example—subpar (iii)
Annie has 2 years remaining on a visa that permits her to work for 20 hours a week. Annie may be employed for up to 2 years on a part-time basis of up to 20 hours a week.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(b) is capable of—
(i) upholding the public sector values; and
(ii) exercising each function assigned to the job in accordance with the best practice principle; and
(iii) acting consistently with section 9 (Public sector conduct); and
(c) holds all qualifications required to lawfully exercise every function assigned to the job; and
(d) meets any requirement prescribed by regulation.
Note The power to make a regulation includes the power to make
different provisions that apply differently by reference to stated exceptions or
factors (see
, s 48).
(2) In this section:
qualification includes the following:
(a) an academic qualification;
(b) an apprenticeship;
(c) a licence;
(d) membership of a professional body;
(e) a registration;
(f) a security clearance.
30 Head of service must manage employment matters
(1) The head of service must manage an employment matter in accordance with—
(a) the public sector principles; and
(b) any requirement prescribed by regulation; and
(c) any relevant industrial instrument.
(2) For the management of employment matters, the head of service must make and keep a record for the service of—
(a) employees; and
(b) decisions made in relation to an employment matter; and
(c) information prescribed by regulation about the management of employment matters.
(3) A regulation may prescribe a requirement in relation to the publication of a record, or part of a record, made under subsection (2).
31 Head of service may employ a person
(1) The head of service may employ a person on behalf of the Territory in a job.
(2) The head of service may only employ a person in a job—
(a) if the person meets the eligibility requirements for the job; and
(b) in accordance with the following:
(i) a selection process;
(ii) any requirement prescribed by regulation; and
(c) for a director-general—if the head of service has consulted with the Chief Minister and the Minister responsible for the directorate.
Note The head of service must employ a person in accordance with the merit and equity principle (see s 8 (3)).
(3) The head of service may employ a person subject to a probation period applying from the start of the person’s employment.
Note An industrial instrument may set out circumstances when the head of service may, must or must not employ a person subject to a probation period.
Division 5.3 Change in employment
32 Head of service may change employee’s job
(1) The head of service may make a permanent or temporary change to an employee’s job—
(a) in accordance with any requirement or notice period—
(i) prescribed by regulation; or
(ii) set out in an industrial instrument; and
(b) in 1 or more of the following ways:
(i) assigning a new function to the employee;
(ii) ending the assignment of a function to the employee;
(iii) changing 1 or more of the following:
(A) the directorate in which the employee is employed;
(B) the employee’s classification;
(C) the employee’s salary;
(D) the hours the employee is employed to work;
(E) the period for which the employee is employed;
(F) any SETs prescribed by regulation.
Note An industrial instrument may set out circumstances when the head of service may, must or must not change an employee’s job.
(2) The head of service—
(a) must be satisfied that making the change is consistent with the public sector principles; and
(b) may only—
(i) change an employee’s job if the employee meets the eligibility requirements for the new job; and
(ii) change a director-general’s job if the head of service has consulted with the Chief Minister and the Minister responsible for the directorate.
(3) To change an employee’s job, the head of service must state the new SETs in writing.
33 Circumstances when head of service must change employee’s job
The head of service must change an employee’s job if—
(a) the employee can no longer be employed in the employee’s job and the head of service is able to give the employee another suitable job; or
(b) if a regulation prescribes, or an industrial instrument sets out, that an employee’s job must be changed in certain circumstances—the prescribed circumstances are met.
Example—par (a)
Eunice’s job requires her to drive. Eunice acquires a disability that prevents her from holding a driver licence. The head of service changes her job so that she could do work that did not require her to drive. None of Eunice’s other SETs are changed.
Note 1 An employee’s job may be changed by changing 1 or more SETs (see s 32 (1) (b)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see
, s 126 and s 132).
34 Circumstances when head of service may change employee’s job
The head of service may change an employee’s job if—
(a) the employee, in writing, asks for the change and the head of service is satisfied the request is reasonable; or
(b) the head of service is satisfied the change is required for the efficient and effective management of the service; or
(c) the employee is selected for another job in accordance with a selection process.
Example—par (a)
Gillian asks to change from full-time to part-time employment.
Example—par (b)
John has expertise that is relevant to an emerging critical issue. John’s directorate and functions are changed when he is moved to a whole-of-government taskforce to address the issue. None of John’s other SETs are changed.
Example—par (c)
Barlow, a part-time, temporary employee, is selected for a full-time, permanent job in a different directorate, at a different classification. All of Barlow’s SETs are changed.
Note 1 An employee’s job may be changed by changing 1 or more SETs (see s 32 (1) (b)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see
, s 126 and s 132).
35 Job changed by change in service structure
(1) This section applies if the Chief Minister makes a change to the service structure under section 20 (2).
(2) The head of service may make 1 or more of the following changes to the employee’s job:
(a) assign a new function to an employee;
(b) end the assignment of a function to an employee;
(c) change the directorate in which an employee is employed.
(1) The head of service may approve the secondment of a person to the service.
(2) The person on secondment must exercise a function assigned to the person while on secondment in accordance with this Act and any other law applying in the territory.
(3) A person on secondment is taken to be an employee for section 7 (What are public sector values?), section 8 (What are public sector principles?) and section 9 (Public sector conduct).
(4) In this section:
secondment, of a person to the service, means a written arrangement between the Territory and the employer of the person, under which the person works in the public sector as if the person was employed by the Territory.
37 Secondment of employee to another employer
(1) The head of service may approve the secondment of an employee to another employer.
(2) Any function lawfully exercised by an employee on secondment will not contravene this Act or another territory law if the function is exercised in the way the employee is lawfully directed to exercise it.
(3) In this section:
secondment, of an employee to another employer, means a written arrangement between the Territory and the other employer, under which the employee exercises a function for the other employer as if the employee was employed by the other employer.
Division 5.5 Suspension and end of employment
38 Head of service may suspend employee
The head of service may suspend an employee’s employment with pay or without pay in accordance with any requirement—
(a) prescribed by regulation; or
(b) set out in an industrial instrument.
39 Head of service may end employee’s employment
The head of service may on behalf of the Territory end an employee’s employment in accordance with any requirement or notice period prescribed by regulation or set out in an industrial instrument—
(a) under section 43 (Loss of eligibility requirement); or
(b) under section 44 (Invalidity retirement); or
(c) if a misconduct procedure finds the disciplinary action to be taken is to end the employee’s employment; or
(d) if the employee fails to meet a performance expectation applying to the employee; or
Note Performance expectation—see s 47.
(e) if the employee’s job is no longer required for the efficient and effective operation of the service—if the head of service is unable to give the employee another suitable job; or
Note An industrial instrument may set out a redundancy process or requirement.
(f) if the employee is employed on probation and fails to comply with a requirement of the probation; or
(g) if the employee is employed on a temporary basis (other than in a circumstance prescribed by regulation)—at any time.
Note An industrial instrument may set out circumstances when the head of service may, must or must not end an employee’s employment.
40 End of employment by resignation
(1) An employee’s employment ends if, in accordance with any notice period prescribed by regulation or set out in an industrial instrument, the employee tells the head of service, in writing, that the employee resigns.
(2) The employee may only withdraw the employee’s resignation with the approval of the head of service.
41 End of employment by resignation—abandonment of employment
(1) This section applies if the head of service is reasonably satisfied an employee has abandoned the employee’s employment because—
(a) the employee has been absent for—
(i) 14 consecutive days; or
(ii) 28 days in a 12-month period; and
(b) the employee—
(i) fails to seek approval for the absence; and
(ii) fails to give a reasonable explanation for the absence; and
(iii) does not indicate an intention to return to work within a reasonable time.
Note Fail includes refuse (see Legislation Act
, dict, pt 1).
(2) For subsection (1) (b), another person may seek approval, give an explanation or indicate an intention on behalf of an employee if the employee is not able to do it.
(3) An employee’s employment ends if—
(a) the head of service follows the process prescribed by regulation; and
(b) after following the prescribed process, the head of service remains satisfied that the employee has abandoned the employee’s employment.
42 End of employment on agreed terms
An employee’s employment may be ended on terms agreed at any time between the head of service and the employee.
43 Loss of eligibility requirement
The head of service must end an employee’s employment if—
(a) the employee no longer meets the eligibility requirements for the employee’s job; and
(b) the head of service is unable to give the employee another suitable job.
(1) The head of service may end an employee’s employment if the employee is unable to do the employee’s job because of physical or mental incapacity.
(2) However, the head of service may only end an employee’s employment because of physical or mental incapacity if—
(a) for an eligible employee under the Superannuation Act 1976
(Cwlth)—the requirements for invalidity retirement under that Act are met; or
(b) for a member of the superannuation scheme established under the Superannuation Act 1990
(Cwlth)—the requirements for invalidity retirement under that Act are met; or
(c) for an ordinary employer sponsored member of the PSSAP within the
meaning of the
(Cwlth)—the requirements for invalidity retirement under that Act are met; or
(d) for a member of a superannuation scheme declared by the head of service—the requirements for invalidity retirement under the scheme are met.
(3) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act
.
45 Payment at end of employment
If an employee’s employment ends, the head of service must pay, or withhold from, the employee any amount prescribed by regulation or set out in an industrial instrument.
46 Head of service may re-employ employee
(1) The head of service may re-employ a person on behalf of the Territory in a job.
(2) The head of service may only re-employ a person in a job—
(a) if the person meets the eligibility requirements for the job; and
(b) in the circumstances prescribed by regulation; and
(c) in accordance with any requirement prescribed by regulation.
Division 5.7 Public service employment
The head of service may—
(a) decide expectations for how an employee does an employee’s job (a performance expectation); and
(b) manage an employee’s performance in accordance with any process prescribed by regulation or set out in an industrial instrument.
48 Disclosure of certain information
(1) An employee must give the head of service information about—
(a) a change in the employee’s circumstances that affects the employee’s ability to meet the eligibility requirements for the employee’s job; and
Note If an employee no longer meets an eligibility requirement for the employee’s job, the employee’s job may be changed under s 33 or the employee’s employment may be ended under s 39.
(b) employment outside the service as prescribed by regulation; and
(c) any matter prescribed by regulation.
(2) For a misconduct procedure, failing to disclose information in accordance with this section may be misconduct.
Note Fail includes refuse (see Legislation Act
, dict, pt 1).
An employee must repay any amount paid by the Territory to the employee to which the employee is not legally entitled.
(1) For a misconduct procedure, a regulation may prescribe a disciplinary action that must be taken by the head of service.
Note An industrial instrument may set out a disciplinary action for a misconduct procedure.
(2) If the head of service must take a disciplinary action, the head of service must take the action in accordance with—
(a) the industrial instrument; and
(b) anything else prescribed by regulation.
51 Obligations of former employees
(1) This section applies to an employee after an employee’s employment ends.
(2) The former employee must not—
(a) without lawful authority, disclose confidential information gained as a result of the employee’s employment; or
Note The
, s 153 (2) makes it an offence for a former employee to disclose information that it is the member’s duty not to disclose.
(b) take improper advantage of information gained as a result of the employee’s employment.
(3) The former employee must repay any amount paid by the Territory to the
former employee to which the former employee is not legally entitled.
52 Meaning of public sector member etc
(1) In this Act:
public sector member—
(a) means the following:
(i) a statutory office-holder;
Note 1 Statutory office-holder—see the Legislation Act
, dictionary, pt 1.
Note 2 A statutory office-holder may also be an employee.
(ii) a person employed by a statutory office-holder;
(iii) if a statutory office-holder enters into an arrangement with the head of service under a territory law for the use of the services of an employee—the employee; but
(b) does not include the following:
(i) the Chief Justice, a judge or the master;
(ii) the Chief Magistrate, a magistrate or any office that must be occupied by a magistrate;
(iii) a person mentioned in paragraph (a) to the extent that the person exercises a judicial function;
(iv) an ACAT tribunal member to the extent that the member exercises a function in relation to a hearing of a proceeding before the ACAT;
(v) a person prescribed by regulation.
Note A regulation may prescribe that a person is a public sector member (see s 57).
(2) In this part:
employ, includes appoint or engage.
53 Public sector standards for public sector member
Part 2 (Public sector standards) applies to a public sector member to the extent that the application of part 2 is consistent with the exercise of the member’s functions.
Example
A public sector member has a function under an Act that requires the member to report to the Legislative Assembly on the Territory’s compliance with certain territory laws and to advocate for compliance with the laws. The member tables a report in the Assembly that identifies non-compliance by the Territory. The member does not fail to comply with s 9 (2) (a) which is about damage to the reputation of the public sector or the Executive by tabling the report or publicly commenting on the report.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
54 Certain statutory office-holders have pt 5 management powers
(1) This section applies if a territory law states that—
(a) a statutory office-holder (a public sector employer) may employ staff; and
(b) the staff must be employed under this Act.
(2) Part 5 applies to the public sector employer as if—
(a) a reference to the head of service is taken to be a reference to the public sector employer, to the extent that the application of part 5 is consistent with the exercise of the statutory office-holder’s functions; and
(b) a reference to an employee is taken to be a reference to a public sector employer’s staff member; and
(c) a reference to an employee’s job is a reference to the staff member’s terms of employment; and
(d) any other necessary change is made.
(3) The public sector employer—
(a) must give the head of service any information about a staff member that is requested by the head of service and relevant to a record mentioned in section 30 (2); and
(b) may exercise a function under an industrial instrument in relation to a staff member, as if the public sector employer were the head of service; and
(c) unless otherwise stated in a territory law—may delegate a function under this part to the following:
(i) a staff member;
(ii) an employee;
(iii) the head of service.
55 Alleged misconduct by statutory office-holder
(1) For alleged misconduct by a statutory office-holder, the commissioner must investigate the allegation if requested to do so by the person with responsibility for appointing the statutory office-holder (the appointer).
Note If an industrial instrument covers a statutory office-holder’s staff the industrial instrument may include procedures for misconduct.
(2) The commissioner, unless otherwise stated, in writing, by the appointer—
(a) must investigate the alleged misconduct in the same way alleged misconduct would be investigated by the commissioner under this Act; and
(b) has the same powers to investigate the alleged misconduct as the commissioner has to investigate alleged misconduct by an employee.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act
, s 104).
56 Alleged mismanagement of public sector employer’s staff
If the commissioner receives a complaint about the management of a public sector employer’s staff (a management matter), the commissioner—
(a) must investigate the management matter in the same way a management matter in the service would be investigated by the commissioner under this Act; and
(b) has the powers given to the commissioner under this Act to investigate a management matter in relation to a staff member as if the member was an employee.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act
, s 104).
57 Prescribed public sector member
A regulation may prescribe—
(a) that a person is a public sector member (a prescribed public sector member); and
(b) that all or part of part 5 applies to a person employing a prescribed public sector member; and
(c) procedures in relation to alleged misconduct by a prescribed public sector member; and
(d) procedures in relation to alleged mismanagement of a prescribed public
sector member.
(1) The Minister may approve forms for this Act.
(2) If the Minister approves a form for a particular purpose, the approved form must be used for the purpose.
Note For other provisions about forms, see the Legislation Act
, s 255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act
.
(1) The Executive may make regulations for this Act about the following:
(a) the public sector values;
(b) the public sector principles;
(c) public sector conduct;
(d) the appointment or a function of the commissioner;
(e) the structure and organisation of the service;
(f) employment in the service including employment matters, jobs, SETs, eligibility requirements, employee wellbeing and employee performance;
(g) a whole-of-government strategy;
(h) management and administration in the public sector;
(i) terms of employment, appointment or engagement for a public sector member;
(j) secondment to or from the public sector.
Note A regulation must be notified, and presented to the Legislative
Assembly, under the
.
(2) A regulation may apply, adopt or incorporate a law of another jurisdiction or an instrument, or a provision of a law of another jurisdiction or instrument, as in force from time to time.
Note 1 The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act
, s 47 (5) or (6) is not disapplied (see s 47 (7)).
Note 2 A notifiable instrument must be notified under the Legislation Act
.
60 Authorisation to share protected information
(1) This section applies despite any other territory law.
(2) An information holder is authorised to disclose protected information to the following people, if the protected information is required by the person for the exercise of a function under this Act or an industrial instrument:
(a) another information holder;
(b) a person authorised by an information holder to receive the information.
(3) In this section:
disclose includes communicate or publish.
information means information, whether true or not, in any form and includes an opinion and advice.
information holder means—
(a) a person who is or has been—
(i) the commissioner; or
(ii) the head of service; or
(iii) a director-general; or
(iv) a public sector employer; or
(v) an employer prescribed under section 57 (b); and
(b) a person who exercises or has exercised a function on behalf of the Territory under the public sector employment legislation.
protected information means information about a person that is disclosed to, or obtained by, an information holder because of the exercise of a function under the public sector employment legislation by the information holder or someone else.
Examples
1 a record kept by the head of service for managing an employment matter
2 information about whether the person meets an eligibility requirement for a job
3 information about an employee disclosed in relation to a strategy designed to ensure the Territory is an equitable employer
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
public sector employment legislation means—
(a) this Act; and
(b) the
(repealed); and
(c) the
(Cwlth); and
(d) an industrial instrument; and
(e) any other law prescribed by regulation.
(see s 3)
Note 1 The
contains definitions and other provisions relevant to this Act.
Note 2 For example, the Legislation Act
, dict, pt 1, defines the following terms:
• ACAT
• ACT
• appoint
• Australian citizen
• bankrupt or personally insolvent
• body
• Chief Justice
• Chief Magistrate
• Chief Minister
• commencement
• Commonwealth
• director-general (see s 163)
• disallowable instrument (see s 9)
• document
• establish
• Executive
• exercise
• fail
• found guilty
• function
• judge
• law
• Legislation Act
• Legislative Assembly
• magistrate
• master
• Minister (see s 162)
• notifiable instrument (see s 10)
• notification day
• person (see s 160)
• position
• power
• prescribed
• provision
• registrar
• regulation
• sitting day
• statutory office-holder
• territory law
• the Territory
• writing.
best practice principle—see section 8 (4).
classification, for a job, means—
(a) if a classification in an industrial instrument applies to a job—the classification; or
(b) in any other case—a classification prescribed by regulation.
commissioner means the Public Sector Standards Commissioner appointed under section 10 (1).
directorate—see section 20 (2).
eligibility requirements, for a job, for part 5 (Employment in the service)—see section 29.
employ, for part 6 (Public sector members)—see section 52 (2).
employee means a person employed under section 31 (Head of service may employ a person).
employee’s job means a job defined by SETs stated, in writing, by the head of service for the employee.
Note 1 An industrial instrument may set out other conditions of employment.
Note 2 An employee includes a director-general and an SES employee.
employment matter, for part 5 (Employment in the service)—see section 28.
equitable employer means an employer that—
(a) employs, and provides fair and equitable opportunities for career development to, individuals—
(i) from diverse cultural, language and religious backgrounds; and
(ii) of different gender; and
(iii) of different sexual orientation; and
(iv) with disability; and
(v) of different working age; and
(b) complies with and models commitment to anti-discrimination legislation.
Example—par (b)
including a reasonable adjustment guide in procedures for staff management
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
head of service means the Head of Service appointed under section 21 (1).
industrial instrument means an instrument—
(a) made under, or recognised by, a workplace law within the meaning of the
(Cwlth); and
(b) about the relationship between employers and employees; and
(c) that covers 1 or more employees.
job means employment in the service defined by SETs stated, in writing, by the head of service.
joint council means the forum established under section 18.
merit and equity principle—see section 8 (4).
Minister, responsible for a directorate—
(a) means the Minister with responsibility for a matter the directorate is responsible for under section 20; and
(b) includes all Ministers with responsibility for a matter the directorate is responsible for under section 20.
misconduct procedure, in relation to an employee, means—
(a) if an industrial instrument covers the employee and includes procedures for misconduct—the misconduct procedures in the industrial instrument; or
(b) in any other case—a procedure prescribed by regulation.
performance expectation, for an employee—see section 47 (a).
permanent resident means—
(a) a person who holds a permanent visa under the Migration Act 1958
(Cwlth), section 30; or
(b) a New Zealand citizen who holds a special category visa under the Migration Act 1958
(Cwlth), section 32.
public sector—see section 6.
public sector employer—see section 54.
public sector member—see section 52.
public sector principles—see section 8 (1).
public sector standards—see section 17.
public sector values—see section 7.
selection process means a process, prescribed by regulation, for determining the suitability of a person for employment in a job.
service means the Australian Capital Territory Public Service established under section 19.
service structure means the structure determined by the Chief Minister under section 20.
SES employee means an employee employed as a senior executive in the service.
SETs—see statutory employment terms.
statutory employment terms (or SETs), for an employee’s job, means—
(a) each function assigned to the employee; and
(b) the directorate in which the employee is employed; and
(c) the employee’s classification; and
(d) the employee’s salary; and
(e) the hours the employee is employed to work; and
(f) the employee’s period of employment; and
Note An employee may be employed on a permanent or temporary basis.
(g) any SETs prescribed by regulation.
Note The power to make a regulation includes the power to make
different provisions that apply differently by reference to stated exceptions or
factors (see
, s 48).
visa means a visa granted under the Migration Act 1958
(Cwlth), section 29.
whole-of-government strategy, for the service, means a formal or informal strategy, target, policy, program or service that—
(a) relates to matters for which more than 1 directorate is responsible; and
(b) requires employees in more than 1 directorate to exercise a function.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 27 November 2014.
2 Notification
Notified under the
on 2014.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2014
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