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2014
THE
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
PUBLIC SECTOR BILL 2014
EXPLANATORY STATEMENT
Presented by
Ms
Katy Gallagher MLA
Chief Minister
Contents
Since the establishment of the ACT Public Sector (ACTPS) in 1994 and the
commencement of the Public Sector Management Act 1994 (the PSM Act),
there have been significant changes in culture, structure, administration and
expectations of the Service. These developments have in some cases led, and in
others followed, developments in other jurisdictions. In that same period, there
has also been a growth of regulation governing all private and public sector
employers in the arena of workplace rights and obligations.
In the
Governing the City State: One ACT Government - One ACT Public Service
Report released in February 2011, Dr Allan Hawke AC recommended a complete
overhaul of the PSM Act on the basis that it was out of date and did not support
a modern ACTPS.
The current ACTPS employment framework comprises
enterprise agreements made under Fair Work Act 2009 (Cwlth) as the
primary source of entitlements for non-executive staff. These agreements
prevail over Territory legislation. The role of the PSM Act and Standards
therefore has been to provide the main source of entitlements for executives, as
well as additional rights, protections and entitlements for non-executive staff.
However, the PSM Act and Standards have not been maintained to complement the
changing agreements, with the tendency being to use the Standards to plug gaps
in legal authority without discarding outdated concepts.
The resulting
complex employment framework has created inconsistent practices across the
service and led to confusion about the application of the law, as well as a high
administrative burden in managing staff.
The Bill has been drafted to repeal and replace the PSM Act to cover all ACT Public Sector entities except Territory Owned Corporations. The Bill also formally establishes the ACTPS and contains heads of power for the employment of ACT public servants. The Bill further embeds the concept of a values-based service by vesting all employment powers at the Head of Service level and applying the ACTPS values to the whole of the public sector.
The major features of the Bill are:
• high level employment
heads of power with detail left to regulations and policy;
• new
public sector principles that set expectations of a high-performing, efficient
and accountable public sector;
• inclusion of the ACTPS values
which will explicitly apply to the whole public sector, including statutory
officeholders and agency heads;
• creation of the office of Public
Sector Standards Commissioner (which will be a statutory appointment made by the
Chief Minister) with functions relating to upholding public service
values;
• establishment of a Senior Executive Service in the
ACTPS;
• removal of the anachronistic concept of
‘office’ to facilitate staff mobility across ACTPS directorates;
and
• the key concept of merit is refocused to concentrate on
outcomes rather than simply an expression of process.
Consistent with the
objective to create a principles-based legislative framework, the Bill is much
shorter than the PSM Act. It has seven parts with the substantive content
organised as follows:
• values and operation of the public sector
(Part 2);
• the office of Public Sector Standards Commissioner role
(Part 3);
• establishing provisions for the public service (i.e.
the administrative arrangements) and the top management structure comprising the
Head of Service, directors-general and senior executive service (Part 4);
• employment powers (Part 5); and
• clarification of
the application of the new legislation to public sector bodies (Part
6).
The transitional and consequential impacts of the Bill are addressed
in Public Sector Regulation 2014 and the Public Sector (Consequential
Amendments) Bill 2014 respectively.
Human rights issues
A
number of human rights issues are called up by the Bill that require
clarification and are justified below.
For avoidance of doubt, the
legislation does not apply to members of the judiciary, or to members of the ACT
Civil and Administrative Tribunal when exercising its hearing functions –
see Part 6.
There are no misconduct procedures for staff included in the
Bill, despite the standards for conduct and sanctions being included in the
legislation. This is a deliberate omission as the process for deciding
misconduct allegations in respect of staff below the executive level is
articulated in detail in federal enterprise agreements which prevail over ACT
legislation. Agreement-making is a negotiated process requiring the consent of
employees and their representatives so that, in effect, employees subscribe to
its content including the misconduct procedures.
Misconduct procedures
for the proposed Senior Executive Service are not legislatively prescribed and
are likely to be the subject of policy. This is considered reasonable and
proportionate as this is a small cohort (approximately 200 people) where
misconduct matters need to be dealt with efficiently on a case-by-case basis
because of the extent of influence over staff and their interface with the
Executive.
There are scant provisions regarding termination of
appointment for the Public Sector Standards Commissioner. This is are similar
to termination provisions for other statutory office holders such as the
Auditor-General and provide a means to suspend, and if necessary end, the
appointment of a Commissioner for alleged misconduct, physical or mental
incapacity or criminal convictions where the offence is punishable by
imprisonment for at least one year. It is essential to the maintenance of
public confidence that where there is demonstrable concern that the office
holder may not be fit and proper to hold office that there is an efficient
process which can end the appointment so that public confidence in the office
can be restored. It is not possible to expect that in such circumstances, the
appointment continue and accommodate a lengthy termination process. The
prescribed process includes Assembly consideration which is an appropriate
safeguard.
Information privacy requirements in relation to employee
details are partially lifted in the Bill but only to enable the sharing of
information between directorates. This is consistent with a single service
model under the head of service. The privacy principles apply in full to the
storage and publication of employee information.
This is a technical provision stating the name of the Bill if enacted, which
is the Public Sector Act 2014.
This is a technical provision setting the commencement date for the
Act.
This is a technical provision indicating that the dictionary that is found at
the rear of the Bill should be read as part of and in conjunction with the
remainder.
This is a technical provision indicating that notes should be read in conjunction with the Bill to assist the reader with comprehension, although in accordance with the Legislation Act 2001, they have no legal status.
This part defines the ACT Public Sector and
outlines the basis for public sector operations and performance, and equates how
the sector goes about its work with what is to be achieved in terms of
importance. The focus is on a high-performing, values-based organisation,
acting with a single purpose in a co-ordinated manner to serve the Government of
the day.
Section 5 (a) specifies how the public sector is to conduct itself in
how it performs its functions. The provision emphasises the importance of
political neutrality and the desire to be a values-based organisation.
Section 5 (b) provides a high level statement of the role of the ACTPS
that recognises the dual nature of what the public service does serving both the
Government of the day and the community on behalf of the
Government.
Section 5 (c) reinforces the first object by emphasizing a
continuous obligation to model and advance the public sector principles and
values.
Section 6 defines the public sector as being made up of the ACTPS and public
sector members.
The service refers to those within the ACTPS
Directorate structure, and is made up of the Head of Service and their
employees, including directors-general and the senior executive service (see
proposed section 19).
Public sector members refers to statutory
office-holders and any person employed, appointed or engaged by the statutory
office-holders (see proposed Part 6).
Section 7 prescribes the public sector values as respect, integrity,
collaboration and innovation. These values were developed following extensive
consultation with staff in 2011 and currently enshrined in the ACTPS Code of
Conduct first issued by the Commissioner for Public Administration in
October 2012.
Section 7 requires that the values be demonstrated by all
employees at all times when carrying out their duties. However, the provision
recognises that how this looks in practice will differ depending on the nature
of the work undertaken by the employee concerned. The values are also to be the
lens through which the workings of the public sector are viewed, to judge and
assess performance.
Note that while the provision refers to
employment, an expansive definition of this term is applied for the
purposes of the section. This is to ensure that all who comprise the public
sector are subject to the values regardless of their method of engagement or
appointment.
Section 8 contains new public sector principles that are to be applied in the
course of employment by employees. There are two principles: 1) the best
practice principle and 2) the merit and equity principle.
The best
practice principle, like the values, must be demonstrated and applied by
employees when doing their jobs. They are to work collaboratively, use
resources wisely, focus on the needs of Government and the community, be
responsible for their actions and make sound, justifiable decisions.
The
merit and equity principle is directed at the head of service as it applies to
the management of the public service. However, it is expected that most
employees will be required to uphold the merit and equity principle from time to
time through delegation.
The provision requires that the head of service
must exercise his or her management functions so as to be an equitable employer,
which is defined in the dictionary at the end of the legislation. The intention
is to place a requirement on those managing people to be proactive in ensuring a
diverse workplace through their hiring decisions and the development
opportunities provided to staff.
The merit and equity principle also
requires that decisions around who is to exercise a function are made in
accordance with the best practice principle. This requirement is intended to be
a modern recasting of the previous merit principle, with the focus now on
staffing decisions that produce the most efficient and effective outcome for the
public sector, rather than simply on procedural matters. They are also intended
to ensure that a person selected is not just the best technically qualified or
experienced candidate, but someone who is the best fit for the workplace on an
overall assessment that also takes into account their personal characteristics
and workplace circumstances.
A fair and transparent process will still be
necessary to fulfil aspects of the best practice principle around being
accountable and making fair decisions. The regulations will provide further
detail around how the merit aspects of this principle can be satisfied.
Like section 9 of the PSM Act, section 9 of the Bill prescribes the minimum
standard of conduct expected of public sector members. Section 9 is founded on
the values and signature behaviours contained in the ACTPS Code of
Conduct, and remain the formal mechanism against which misconduct by
employees will be judged. In this sense, they are the inverse of the
deliberately aspirational and positive statements of expectation set out in the
ACTPS Code of Conduct.
Section 9 covers the same ground as section
9 of the PSM Act. It remains the case that misconduct procedures are articulated
in enterprise agreements for non-SES employees, and the regulations will mirror
those procedures in relation to the SES.
Section 9(1) specifies minimum
requirements for what an employee must do in exercising his or her functions
(i.e. doing their job). The requirements include avoidance or management of
conflicts of interest, obeying a reasonable direction, and complying with the
law, unremarkably, an employee must be careful, unbiased, honest and courteous.
The obligation to offer assistance the public in understanding the obligations
on them, or the entitlements available to them, under Territory laws is carried
over unamended from the PSM Act.
Section 9(2) is deliberately broader in
its application than section 9(1) and it prescribes actions that a public sector
member must not do. It applies outside the performance of official functions.
The proscribed behaviours are completely inconsistent with an individual
continuing as an employee. They include using information gained through
employment or Territory resources improperly, making comments that appear to be
on behalf of Government without requisite authority and damaging the reputation
of the public sector or the ACT Executive.
Proscribed behaviour, when
acting in connection with employment, includes bullying, harassment and
intimidation. These requirements apply not only when an employee is doing his
or her job, but at any time that a member is in the workplace, or interacting
with other members or doing anything that relates to his or her work and/or
employment.
A public sector member must not apply improper influence,
favouritism or patronage when doing their job.
Failure to act in a way
that is consistent with section 9 may lead to misconduct proceedings and a
finding of misconduct with any attendant sanctions. Misconduct procedure
is defined in the dictionary at the end of the legislation, and mentions
that processes may be located in industrial instruments (which is the case for
the majority of staff at the time the proposed Bill is being introduced) or
regulations.
Section 9(4) replaces section 9(q) of the PSM Act, and
requires an employee to tell either the head of their agency, or if that person,
is allegedly involved, the Public Sector Standards Commissioner, about
maladministration or misconduct of another employee. While it is unlikely that
misconduct action would be instigated against an employee who fails to disclose
maladministration or misconduct by another employee unless that employee was
also involved in the maladministration or misconduct – in which case the
misconduct would be the alleged act or omission itself – this provision
plays an important role in providing legal authority for an employee to report
alleged misconduct. It sits alongside provisions in the Public Interest
Disclosure Act 2012 in this regard.
The obligations in section 9 are
to be read subject to other legal rights or requirements. This was also the
case under previous section 9, and is important as an employee’s functions
in their job can appear to conflict with their section 9 requirements on paper.
It is not intended that section 9 curtail the ability of an employee to fulfil
his or her role in any aspect.
As is the case in section 7 above, an
expansive definition of employment is applied for the purposes of section
9. This is to ensure that all employees are subject to the minimum conduct
requirements.
In this regard, later sections of the Bill provide for
allegations regarding breaches of section 9 by statutory office-holders and
heads of public sector entities to be considered by the Public Sector Standards
Commissioner. This is a new avenue of complaint that did not feature in the PSM
Act, and a new role for the Commissioner. These provisions are not intended to
displace or amend the bases on which a statutory office holder might be removed.
Such requirements and grounds will remain in the relevant legislation
establishing the office.
This part establishes the office of Public Sector Standards Commissioner (the
Commissioner). The Commissioner is responsible for whole of sector matters
– i.e. a reach wider than that of the Head of Service - with a particular
emphasis on promoting and upholding the public sector principles and
values.
Section 10 provides for the appointment by the Chief Minister of a person as
the Public Sector Standards Commissioner. Unlike the PSM Act, the Chief
Minister must make such an appointment.
The Commissioner is expected to
be a part-time office, and the incumbent cannot also be a public servant.
Section 10(2) requires a member of the ACTPS to resign from the ACTPS before
taking up an appointment as Commissioner. The same condition would apply to a
person appointed as acting Commissioner, but an ACTPS employee could hold
delegated Commissioner functions without needing to resign.
The
Commissioner is to be appointed for a term of up to five years but can be
re-appointed.
As is the case with the Commissioner for Public
Administration under the PSM Act, the appointment of the Commissioner is not
subject to consultation and it is proposed this arrangement continue.
Section 11 sets out the functions of the Commissioner with a focus on a whole
of public sector role. It includes advising the Chief Minister, promoting,
upholding and advising on the public sector principles and values, developing
and implementing equitable employment strategies and conducting investigations
into management of the public sector.
Section 11 explicitly includes a
power for the Commissioner to conduct investigations. The regulations will
prescribe the scope and powers at the Commissioner’s disposal. They are
expected to include the significant powers held by the Commissioner for Public
Administration under the PSM Act in relation to Management Reviews, but also a
more general investigations function at the request of the Head of Service or
Agency Head.
Importantly, the Commissioner’s functions also
include exercising any function given to the Commissioner under the Bill or any
other law applying in the Territory. An example of the way this section extends
the scope of the Commissioner’s functions is demonstrated in section 17
below (Commissioner may make public sector standards). The Commissioner will
also have further functions to perform deriving from other Territory laws (for
example, the Public Interest Disclosure Act 2012).
Section 12 provides that the Chief Minister may approve leave for the
Commissioner.
Section 13 provides an appropriate means to suspend, and if necessary end,
the appointment of a Commissioner for alleged misconduct, physical or mental
incapacity or criminal convictions where the offence is punishable by
imprisonment for at least one year. It is similar to the prescription in other
legislation where provision is made to suspend and remove statutory office
holders. Where the Commissioner is suspended, the prescribed process requires
the Legislative Assembly to consider a statement of reasons for the suspension
from the Chief Minister, and to resolve the matter by either ending the
suspension or ending the Commissioner’s appointment.
Where the Commissioner becomes bankrupt or insolvent or is absent without
approval in excess of the prescribed period of time then the Chief Minister must
end the appointment. The Chief Minister may also end the appointment with the
consent of the Commissioner for physical or mental incapacity.
Section 15 enables the Commissioner to make appropriate arrangements for the
provision of staff and facilities with the Head of Service. This provision
will ensure that the Commissioner has appropriate support to perform the
functions prescribed and replicates existing arrangements without going to the
expense of establishing a separate office.
Section 16 enables the Commissioner to delegate functions to both an employee
and non-public sector delegates. The provision does not prescribe when
delegation can occur, leaving it open for delegation to public service employees
to cover the Commissioner being on leave for example.
It is necessary,
given the broad range of functions prescribed for the Commissioner, that there
are adequate arrangements for delegating powers to others. In the case of the
functions of the Commissioner it is appropriate to provide for non-public sector
delegates to cover the possibility that the Commissioner may need to use
services outside of the public sector when, for example, investigating the
management of all or part of the public sector. However, the ability to
delegate to a non-public sector delegate is to be used sparingly, as reflected
in section 16(2) which requires the Commissioner to consider whether the
function needs to be exercised by an external person.
Section 17 enables the Commissioner, in consultation with the Head of
Service, to make enforceable Public Sector Standards about a range of specified
matters including the public sector principles and values, conduct and
strategies for equitable employment and to eliminate disadvantage. It also
enables Public Sector Standards to be made about matters prescribed by
regulation.
This capacity of the Commissioner to make Public Sector
Standards continues the previous arrangements in the PSM Act under which the
Commissioner for Public Administration has promulgated, for example, the
ACTPS Code of Conduct and the Respect, Equity and Diversity
Framework.
Accordingly, the range of matters about which the
Commissioner being able to make standards has been reduced to focus on public
sector values and fair employment opportunities which reflects the role’s
revised functions. Those matters currently in a public sector standard but no
longer within the Commissioner’s capacity to make public sector standards
will, if necessary, be included in regulations (see section 58).
Section 17(2) specifically provides that the Commissioner is able to
declare a holiday for all or part of the public sector. This preserves the
current arrangement.
Section 17(3) continues the arrangement in the PSM
Act under which the Chief Minister must approve standards before they are
made.
Appropriately, a public sector standard is to be a notifiable
instrument given its new role and status.
Section 18 requires the Commissioner to establish a forum for the public
sector and employee organisations to meet and consult on public sector
employment issues. The terms of reference (a notifiable instrument) must be
approved by the Commissioner with the agreement of the Head of
Service.
These arrangements continue the approach under the PSM Act.
Part 4 establishes the ACTPS. It also provides for a senior leadership
and management structure for the effective and efficient operation of the
service.
Division 4.1 houses the administrative arrangements for the ACTPS (i.e. the
Head of Service and Directorates).
Section 19 establishes the Australian Capital Territory Public Service,
comprising the Head of Service and their employees, which include
directors-general and the senior executive service.
Section 19(2)
indicates that the role of the public service is to act on behalf of the ACT
Executive (i.e. the government of the day). It is important to formally bestow
this function on the ACTPS, as other establishing legislation specifies
functions for the bodies and offices it creates.
Section 20 provides for the formal establishment of the structure of the
ACTPS in accordance with the provisions of the Australian Capital Territory
(Self-Government) Act 1988 (Cwlth). Under the Administrative
Arrangements, the Chief Minister allocates responsibility to Ministers for
stated matters, Acts, Executive powers under a Commonwealth law and prerogatives
of the Crown.
The Chief Minister also determines which directorates are
responsible for matters.
Division 4.2 houses the arrangements for the appointment, functions and
operations of the Head of Service, the most senior official in the
ACTPS.
Section 21 requires the Chief Minister to appoint a Head of Service. The
Head of Service can be appointed for a term of up to five years and can be
re-appointed.
Section 21(4) means the appointment is not subject to the
Legislative Assembly committee consultation provisions of the Legislation Act,
as it is not appropriate to do so. This is because although the Head of Service
is a statutory appointment, it is more akin to an employment relationship with
the Territory on conditions similar to that of a director-general in the public
service. However, for the head of the service there is no other public service
employee or member who can stand in the shoes of the employer and so this is
most appropriately done by the Chief Minister as a statutory
appointment.
Section 22 prescribes that the Head of Service is responsible for leadership
and management of the ACTPS and is answerable to the Chief
Minister.
Section 22 specifies discrete leadership and management
functions dealing with stewardship of Government policy, programs and services
across the directorates and people management issues in the public service. The
leadership functions emphasise the role of the Head of Service to co-ordinate
the work occurring throughout the ACTPS, take control in emergencies and on the
most important issues and to promote the values within the service. The
management functions centre around the Head of Service deciding the public
service structure and numbers, promoting equity and ensuring the public service
employs people with the correct skills and approach to values.
Section 23 prescribes the conditions of appointment for the Head of Service,
which are to be the same as for a director-general, subject to any additional
terms set out in the Head of Service’s instrument of
appointment.
This approach reflects the uniqueness of the position, being
more of an employment-like arrangement in practice as the most senior official
in the public service despite being a statutory appointment.
Section 24 enables the Head of Service to delegate functions, and to
sub-delegate a function, to both employees and people outside the ACTPS, whether
they are public sector members or outside the public sector
altogether.
It is necessary, given the broad range of functions
prescribed for the Head of Service, that there are adequate arrangements for
delegating powers to others. In the case of the functions of the Head of
Service it is appropriate to provide for non-service delegates to cover the
possibility that the Head of Service may need to use services outside of the
public service when, for example, exercising some of the prescribed management
functions. However, the decision to delegate to a non-public service delegate
is not to be taken lightly, as reflected in section 24(2) which requires the
Head of Service to consider whether the function needs to be exercised by an
external person.
Division 4.3 houses the arrangements for the senior management structure,
their functions and role in the service.
Section 25 prescribes that a director-general is responsible for leadership
of a directorate and leadership in the ACTPS, and is answerable to both the
Minister responsible for the directorate and the Head of Service.
The
directorate functions and the leadership functions for a director-general are
prescribed and endeavour to recognise the tension between a director-general
fulfilling their individual remit on the one hand and addressing
whole-of-service responsibilities on the other. The prescribed directorate
functions emphasise managing the business of the directorate and providing
advice and reporting to both the Minister and the Head of Service. The
prescribed leadership functions emphasise the responsibility for implementing
whole of government strategies, working in a co-operative and collegiate manner
and promoting and upholding the public sector values and principles and
appropriate conduct.
Section 26 enables a director-general to delegate functions, and to
sub-delegate a function delegated to him or her by the Head of Service, to both
employees and non-service delegates.
It is necessary, given the broad
range of functions prescribed for directors-general, that there are adequate
arrangements for delegating powers to others. In the case of the functions of
the director-general it is appropriate to provide for non-service delegates to
cover the possibility that a director-general may need to use services outside
of the public service when, for example, exercising some management functions.
However, the decision to delegate to a non-public service delegate is not to be
taken lightly, as reflected in section 26(2) which requires the Head of Service
to consider whether the function needs to be exercised by an external
person.
Section 27 establishes the Senior Executive Service (SES).
The
provision specifies that an SES employee is responsible for leadership in the
service and is answerable to the Head of Service and the director-general. The
leadership functions for an SES employee are prescribed and endeavour to
recognise the tension between an SES employee fulfilling their individual
responsibilities on the one hand and addressing whole-of-service
responsibilities on the other. Leadership functions emphasise responsibility
for implementing whole of government strategies, promoting co-operation and
collegiality and promoting and upholding public sector values and principles and
appropriate conduct.
Part 5 of the Bill deals with employment in the ACT Public Sector and
presents a marked departure from the PSM Act.
The Bill, for the most
part, eliminates the present distinction between officers (permanent appointees)
and (other) employees. Under the PSM Act, an office needs to exist for a person
to be permanently appointed to the Service.
The Bill removes the concept
of office as it no longer serves a useful purpose, and adds an unnecessary level
of administration. It is envisaged that the service will continue to be
organised through position identifiers. However, the processes to organise
people and resources where required is to be a purely administrative process
capable of being easily changed and adapted, rather than a legal
requirement.
Sections 28 to 31 of the Bill set the foundations for the powers of the Head
of Service in relation to employment in the ACT public service.
Sections 28 and 29 define terms that are relevant to Part 5 of the Bill.
Section 28 defines the term employment matter for Part 5. This term
indicates that the reach of the legislation covers the whole breadth of the
employment relationship from recruitment activities to termination and, to a
limited extent, beyond.
Section 29 specifies the eligibility requirements that a person must meet for
employment in the Service.
The citizenship requirements for employment
are met if a person is an Australian citizen, a permanent resident, or holds a
visa permitting employment (in terms of functions, hours per week and period of
employment). The section also includes an example of how a person may be
employed depending on their visa conditions.
The person must also
demonstrate they are capable of upholding the public sector values, satisfying
conduct requirements and doing the job they are engaged to do. This is
consistent with and follows on from the merit and equity principle in section
8.
The third limb of the eligibility requirements is that a person must
hold the qualifications that are required for the position. Section 29(2)
provides a non-exclusive list of what these qualifications may be –
essentially any qualification, occupational registration or other documentary
permission.
Eligibility requirements may also be prescribed by
regulation.
Section 30(1) requires the Head of Service to manage employment matters in
accordance with the public sector principles in section 8. The Head of Service
must also comply with any relevant industrial instrument, which will be the
enterprise agreements for public servants that are not executives, and what is
prescribed in the regulations for directors-general and the senior executive
service.
In managing employment matters, section 30(2) requires the Head
of Service to make and keep a record for the service of employees, decisions
made in relation to employment matters and any information prescribed by
regulation about the management of employment matters.
Section 30(3)
provides that the regulations may prescribe requirements for the publication of
a record (or part of a record) made under sub-section (2).
Sections 31 and 32 of the proposed Bill contain the basic powers and
requirements for the Head of Service to employ people in the ACT public service.
Section 31 gives the Head of Service the power to employ people in the ACT
public service. The limitations on this provision are that the person must meet
any eligibility requirements, and any selection process or other requirements
prescribed by regulation.
Section 31 also provides that the Head of
Service may set a period of probation that applies from the start of a
person’s employment. For non-SES employees, probation provisions are set
out in ACTPS enterprise agreements. For SES employees, probation provisions will
be prescribed in the regulations.
Sections 32 to 35 of the Bill describe the circumstances in which an
employee’s job may change either at the request of the employee or at the
discretion of the Head of Service. These provisions are intended to cover the
full range of changes to a public servant’s employment throughout the
course of their career.
The sections introduce the phrase
‘statutory employment terms’ or SETs which are defined in the
dictionary as describing aspects on an employee’s job including the
functions assigned to them, the directorate in which they are employed, their
classification, hours of work and period of employment
The sections cover
all previously distinct movement powers under the PSM Act (for example the
powers to transfer, promote, reassign or redeploy officers within and between
directorates, machinery of government changes and restructures) but create more
general grounds on which changes to jobs and SETs can be made. These changes
also cover powers previously related to the management of offices including
change from full-time to part-time hours, change between permanent, temporary or
casual employment and reclassification.
For non SES employees, the
procedures through which a decision can be reached in relation to these issues
are prescribed in the relevant industrial agreement.
Section 32 gives the Head of Service the power to change an employee’s
job on a permanent or temporary basis. The section describes the numerous ways
in which the job may be changed. The change must be in accordance with any
requirement or notice period provided for in an industrial instrument or
regulation and be consistent with the public sector principles. There must be a
written record of new statutory employment terms.
Section 33 applies in situations where an employee no longer meets an
eligibility requirement or the movement is a disciplinary action as a result of
a misconduct finding. Examples of the operation of this provision
include:
• Matt is employed on a permanent basis in the ACTPS. The
introduction of new legislation requires Matt to hold a new registration do each
of the functions in his job. This means that the eligibility requirements have
changed. Until Matthew obtains the new registration the Head of Service changes
Matt’s SETs by assigning new functions to him. If Matt is unable to obtain
the new registration, the Head of Service may make further changes to
Matt’s SETs including changing the directorate he works in and assigning
new functions to him.
• A misconduct procedure finds the appropriate
disciplinary action for Russell is that he is ‘demoted’. Accordingly
the Head of Service ends the assignment of Russell’s old functions assigns
new functions, changes his classification and reduces his salary. If
disciplinary action was simply the reduction of an increment, the Head of
Service would reduce Russell’s salary.
Section 34 describes all of the circumstances where an employee’s job
may be changed by the Head of Service.
Section 34(1)(a) enables employees
to request a change in their SETs. Examples of the operation of this provision
include:
• Greg is looking to retire within the next 12 months and
requests a move to a job at a lower level. To assist in his transition to
retirement, the Head of Service changes Greg’s SETs by ending the
assignment of his current functions, assigning new functions to him and reducing
his classification and salary.
• David gets medical advice that he
should be employed on a part-time basis. The Head of Service reviews the
functions assigned to him and may changes David’s SETs by varying or
ending the current assignment if required. The Head of Service further changes
David’s SETs by reducing the hours he is required to
work.
• Julie is employed on a long-term SES contract. Her request to
be engaged in a non-SES classification on a permanent basis is accepted by the
Head of Service. The Head of Service changes Julie’s SETs by ending the
assignment of her current functions, assigning her new functions and changing
her classification, salary and the period for which she is
employed.
Section 34(1)(b) applies in situations such as organisation of
the workforce, or to respond to an emergency or an emerging issue. Examples of
the operation of this provision include:
• The restructure of the
Public Sector Management Group in the Chief Minister and Treasury Directorate
results in Stella being declared excess. She is considered in isolation for a
vacancy in the Commerce and Works Directorate and assessed as suitable. The Head
of Service changes Stella’s SETs by changing the directorate that she
works in and assigns new functions to her.
• The Head of Service needs
to put together a task force to quickly respond to a natural disaster. The Head
of Service can identify the relevant employees to be included in the taskforce
and change their SETs by assigning new functions to them and changing the
directorate in which they are employed to establish the taskforce.
• To ensure all the functions in a team are exercised while one team
member is on extended leave for 4 months, the Head of Service changes
Denise’s SETs by assigning new functions to her, changing her
classification and increasing her salary for the period her colleague is on
leave—formerly known as temporary transfer with a higher duties
allowance.
Section 34(1)(c) applies when an employee applies for a
different position and is successful in a selection process. Examples of the
operation of this provision include:
• Monique is employed in a job for
a 6 month period. During that period the job is advertised for permanent
filling. Monique applies successfully for the job so the Head of Service changes
the period for which Monique is employed from 6 months to
permanent.
• Oliver is an ASO6 in ACT Health. He is successful in his
application for promotion to a SOGC position in the Education and Training
Directorate. The Head of Service changes Oliver’s SETs by assigning new
functions to him, changing the directorate in which he is employed, his
classification and his salary.
Section 35 applies in situations where the Chief Minister makes changes to
the service structure. For example, changes to administrative arrangements
result in the movement of the Office of the Status of Women from the Community
Services Directorate to the Chief Minister and Treasury Directorate. The Head of
Service changes the jobs of the employees who are affected by this move by
changing the directorate in which they are engaged.
It should be noted
that, in the situation of a change to the Administrative Arrangements, the
powers of the Head of Service are limited under section 35(2). The Head of
Service is not able to change an employee’s classification, salary, hours
or the period for which they are employed.
The Bill provides for secondments to and from the ACT public service.
Normally an ACTPS employee working for another Government would raise an
immediate (and insoluble) conflict of interest. However, secondment is a
long-standing practice that is widely accepted as an exception to this rule. It
supports the temporary meeting of specialist skills needs, and career
development through rotations or particular on the job experiences.
Section 36 allows for secondments into the ACTPS. The section provides that
a person on secondment is taken to be an employee for the purposes of sections
7, 8 and 9 of the Bill (public sector values, principles and conduct).
Section 37 allows for the secondment of ACTPS employees to another employer,
including another Government or the private sector. The section provides that
employees on secondment will not be in breach ACT legislation if they are
performing the job or task that they have been lawfully directed to do. This
overcomes the possibility of misconduct provision applying or contraventions of
other Territory law because a public servant is working for another employer
doing work that may be at odds with the ACT Government agenda.
Division 5.5 sets out arrangements relating to the end of the employment relationship. Section 38 of the Bill contains provisions relating to the suspension of public service employees on the basis of possible misconduct allegations. Sections 39 to 45 deal with the end of the employment relationship on various grounds.
Section 38 provides a basic head of power for the Head of Service to suspend
an employee’s employment with or without pay, in accordance with an
industrial instrument or regulation.
Section 39 prescribes the grounds on which the Head of Service can end an
employee’s employment, being:
• loss of one of the eligibility
requirements listed in section 29;
• invalidity retirement in
accordance with the Commonwealth Superannuation Scheme (CSS) or either of the
Public Sector Superannuation (PSS) Schemes;
• a misconduct
sanction;
• underperformance;
• the function performed by the
employee is no longer required, and he or she is made redundant;
• failure of probation; or
• termination of temporary
employment.
Section 40 reiterates the common law that an employee can end the employment
relationship by resigning with the requisite amount of notice. There is an
additional requirement that a public service employee must advise the Head of
Service of the resignation in writing. Also, an employee requires the approval
of the Head of Service to withdraw their resignation.
Section 41 provides for the end of employment where an employee has abandoned
his or her employment. Given that the employee’s action has caused the
end of the employment relationship in this circumstance, the proposed Bill
characterises this type of ending as a resignation rather than a
termination.
Generally, these provisions replace the forfeiture of office
provisions in the PSM Act but with some significant differences. Apart from the
term (required because of the removal of ‘offices’ from the
legislation) and that it is a form of resignation, there are new timeframes and
information requirements for the provision. They have been changed as a result
of feedback from the service that forfeiture processes are difficult to finalise
and are based on the absence provisions commonly seen in relation to statutory
officeholders.
Accordingly, the provision applies if the employee has
been absent without approval for 14 consecutive days, or 28 days in a 12 month
period. Note the 12 month period is not set to calendar, or financial year
periods – it can be at any time in their employment. Further, the public
service employee must have failed to seek approval for the absence, either
personally or through a delegate, not given a reasonable explanation for absence
and not provided an intention to return to work within a reasonable time.
The intent of the provisions is to still allow for abandonment
provisions to be applied only in genuine circumstances where the employee is
missing from the workplace and had made no attempt to explain the situation,
effectively frustrating the employment relationship. However, there is a
greater onus on employees to provide sufficient information for the employer to
make appropriate arrangements.
Section 42 indicates that an employee’s employment may end on terms
agreed between the Head of Service and employee. This provision is required to
provide a legislative basis for those circumstances where settlements to exit
the service are agreed between the Head of Service and an employee.
Section 43 relates to termination of employment where an employee no longer
meets eligibility requirements. This encompasses situations including
where:
• an employee’s visa has expired or been
revoked
• an employee is no longer able to work for medical reasons
(and does not meet the criteria for invalidity requirement in section 44)
or
• an employee loses his or her licence or other mandatory
qualification.
Section 43 also applies to where a new eligibility
requirement is imposed by law after employment has commenced, an employee cannot
meet the requirement, and transfer to another position is not possible.
Section 44 enables the Head of Service to terminate the employee’s
employment on the grounds of invalidity retirement for employees under the CSS
and the PSS. For the provision to apply, a service employee must meet the
criteria for invalidity retirement under the governing legislation for the
scheme to which the employee belongs.
Note that section 44 has narrow
application and only applies to CSS and PSS employees. Where an employee is not
in those schemes and is no longer able to work because of a medical condition,
the employee’s employment can be terminated for loss of an eligibility
requirement (as he or she is no longer capable of performing a function in
accordance with the best practice principle).
Section 45 provides that at the end of an employee’s employment on any
ground, the Head of Service is to pay any monies owed to the employee. However,
this amount can be reduced by any amounts owed by the employee.
The
regulations will prescribe the process and further detail around how this
provision will be applied.
Section 46 provides a discretion for the Head of Service power to re-employ a
person who has left the public service. The regulations will prescribe the
categories of a person who can be re-employed and any accompanying requirements.
Also, the person must be able to meet the eligibility requirements at the time
of re-employment.
Sections 47 to 51 contain a range of provisions relating to obligations and
circumstances that may arise during and after employment.
Section 47 provides legal authority for the ACT Public Service Performance
Framework. The provision indicates that the Head of Service may determine a
performance expectation for an employee in exercising a function. It is intended
that these expectations will set the standard against which managers assess an
employee’s performance.
Note that if an employee does not meet a
performance expectation, this may be grounds for termination under section 39.
For non SES employees, the relevant enterprise agreements contain the process
for managing underperformance. For SES employees, processes will be in the
regulations and policy.
Section 48 requires an employee to provide certain types of information to
the Head of Service, and that failing to comply may result in misconduct. The
rationale for having an express disclosure provision is that it relates to
matters that could impact on a person’s continuing employment, but are
unlikely to come within the Head of Service’s knowledge in a timely
fashion, if at all, as a matter of course.
The regulations will provide
further detail around the type of information required to be disclosed and when
disclosure should occur.
Section 49 requires an employee to repay any amount paid to them by the
Territory to which they were not legally entitled. For non SES employees, the
relevant enterprise agreements specify the process for recovering overpayments.
For SES employees, processes will be in the regulations and policy.
Section 50 provides that the regulations may contain sanctions for where
disciplinary action should be taken. The provision also requires the Head of
Service to follow any disciplinary action prescribed in regulations or in
industrial instruments.
Section 51 imposes obligations on former employees around information gained
in the course of their previous employment in the public service. The provision
mirrors section 9 conduct requirements for current employees not to disclose
confidential information without lawful authority and not to take improper
advantage of information gained during employment.
This provision
supports and sits alongside the Crimes Act 1900, s153 which deals with
the disclosure of information by public sector members.
Part 6 of the Bill defines the various individuals and bodies that comprise
the ACT Public Sector.
Section 52 provides the meaning of ‘public sector member’ and
refers to those statutory office holders and employees that are not within the
public service (and do not report to the head of service) but are part of the
broader public sector. The provision also lists public officials that are not
part of the public sector, preserving the independence of the judiciary and
members of the ACT Civil and Administrative Tribunal in the exercise of their
hearing functions. (Note that a separate complaints system will apply in
respect of those matters.) There is also the option for a person prescribed by
regulation to be excluded from the public sector for the purposes of the
legislation. The definitions in this section are necessary in order to
determine whether a particular office or person is subject to the the
application of the public sector standards and conduct provisions.
Section 53 clarifies that a public sector member is only subject to the
standards and conduct provisions in Part 2 to the extent that they are
consistent with his or her functions. This section is necessary to ensure that
the independence of statutory office holders is preserved and they are able to
discharge their responsibilities without fear of being in breach of the
provisions in proposed section 9. For example, the effect of the provision is
that a statutory office holder charged with being critical of Government will
not be damaging the reputation of Government if he or she produces an adverse
finding or report.
Section 54 provides for the application of the Part 5 employment powers of
the head of service to a statutory office holder who engages staff directly.
These public sector employers are those statutory office holders whose
establishing or other legislation prescribes that they may employ staff under
the Bill when enacted. In effect, for those public sector employers that
engage staff directly, references to Part 5 employment powers are read as
references to the relevant public sector employer. While a director-general in
the public service might exercise such powers under delegation from the head of
service, a statutory office holder who is a public sector employer will exercise
the powers in their own right and without reference to the head of service.
Section 55 prescribes that the commissioner is to investigate alleged
misconduct by a statutory office holder in the same way and utilising the same
powers as if the alleged misconduct was by an employee. However, the
commissioner must only investigate such alleged misconduct if requested to do so
by the person who has the responsibility for appointing the statutory office
holder.
This section appropriately ensures that the commissioner is only
called upon to investigate the personal conduct of a statutory office holder
where the person who has the responsibility for appointing the statutory office
holder is sufficiently concerned about an allegation of misconduct as to warrant
sanctions under the establishing legislation.
Section 56 prescribes that the commissioner may investigate an allegation of
mismanagement of the staff of a statutory office holder, who is a public sector
employer, in the same way and utilising the same powers as for a public servant
employed by the head of service.
Section 57 enables a regulation to identify a ‘prescribed public
sector member’ which refers to any other bodies prescribed in the
regulations as being part of the public sector for the purposes of this Part.
Given the diverse programs and services offered by the ACT Government and the
corresponding variation in the bodies responsible for such services, the Bill
allows the ACT Executive to prescribe other organisations as being within the
public sector for the purposes of the legislation.
Furthermore, this
section enables a regulation to prescribe which parts of Part 5 apply to a
person employing a public sector member, procedures in relation to alleged
misconduct and procedures in relation to alleged mismanagement of a public
sector member.
Section 58 sets out that the Minister may approve forms. It is intended that
forms will be prescribed where guidance and consistency is required in
collecting or providing information. An approved form is to be a notifiable
instrument.
Section 59 enables the Execuctive to make regulations about a range of
specified matters including the public sector values and principles, the
structure and organisation of the service, employment in the service and
secondments.
Section 60 will allow employment information to be shared across the public
sector. The provision authorises the sharing and disclosure of certain
information between information holders, or a person authorised by an
information holder to receive information. Disclosure includes communicating or
publishing the information.
Under the PSM Act framework, ACTPS
directorates were considered separate entities. The Bill proposes a framework
in relation to employee information that allows it to be held and shared at a
whole of service level. Only the sharing of employee information and records is
authorised by this section.
The Public Sector Bill 2014 has introduced a range of different terms. Most
of the terms defined in the dictionary signpost definitions contained in the
body of the proposed Bill. Where this occurs, please refer to that part of the
explanatory statement with commentary on the relevant provision.
For
those terms used in the proposed Bill that are defined in the Legislation Act,
definitions are signposted but not reproduced. Further explanation of the terms
is to be found in the relevant provision of that Act and its accompanying
explanatory material.
Those terms with full definitions in the dictionary
to the proposed Bill are outlined below.
Definition of
classification
This term is used in the context of SETs and refers
to an employee’s job level. These are listed in enterprise agreements
and, for executives, regulations.
Definition of equitable
employer
This term is used in the context of the public sector
principles. To be an equitable employer requires proactive effort to achieve a
diverse workforce in a number of areas, being background, gender, sexual
orientation, disability, and working age.
Definition of industrial
instrument
This term is used regularly in the proposed Bill to refer
to other possible sources of conditions and entitlements for public service
employees. In practice, the most common type of industrial instrument would be
enterprise agreements, but there can be other documents such as contracts or
deeds.
Definition of Minister, responsible for a
directorate
This term is used mostly in Parts 3 and 4 of the proposed
Bill. The definition identifies who is the relevant Minister in each of
circumstance, including the possibility that there may be more than one Minister
involved.
Definition of misconduct procedure in relation to
a public sector member
This term is used throughout the proposed Bill. The
definition directs the reader to an industrial instrument (most likely the
relevant enterprise agreement) and, for executives, the
regulations.
Definition of permanent resident
This term
is used in the context of the eligibility requirements. The definition refers
to a person who holds a permanent visa (under the federal Migration Act
1958, section 30), or a New Zealand citizen who holds a special category
visa (under the federal Migration Act 1958, section 32).
Definition of public sector member
This term is used
throughout the proposed Bill and refers to a person who is in the public sector
but is not part of the public service (see section 6).
Definition
of SES employee
This term is used throughout the proposed Bill and
refers to an employee who is employed to perform the functions of a senior
executive in the public service.
Definition of whole-of-government
strategy
This term is used in the context of the Head of Service,
director-general and senior executive service functions. The definition refers
to any strategy, target, policy, program or service that impacts more than one
directorate.