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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to make provision for employment, management and governance matters
relating to the public sector of the State; to repeal the Public Sector
Management Act 1995; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
Part 2—Objects of Act
4 Objects of
Act
Part 3—Public sector principles and
practices
5 Public sector principles
6 Public sector code of
conduct
7 Public sector performance management and development
8 Flexible
arrangements for transfer within public sector
9 Agencies to pursue
whole-of-Government objectives
10 Uniform and transparent governance
arrangements
11 Agencies to report annually
Part 4—Commissioner for Public Sector
Employment
12 Office of Commissioner
13 Functions of
Commissioner
14 Public sector code of conduct
15 Public sector employment
determinations
16 Extent to which Commissioner is subject to Ministerial
direction
17 Investigative powers
18 Power to require statistical
information
19 Delegation by Commissioner
20 Annual report of
Commissioner
Part 5—South Australian Executive
Service
21 Purpose of SAES
22 SAES charter
Part 6—Public Service
Division 1—Composition of Public
Service
23 Public Service administrative units
24 Public Service
employees
Division 2—Administrative
units
25 Establishment of departments
26 Establishment of attached
offices
27 Minister responsible for administrative unit
Division 3—Chief
executives
28 Administrative units to have chief
executives
29 Chief executive to employ persons for administrative
unit
30 General duties of chief executive
31 Duties with respect to
objects of Act and public sector principles and code of conduct
32 Protection
of independence in certain matters
33 Employment or assignment of persons as
chief executives
34 Conditions of chief executive's employment
35 Transfer
of chief executives
36 Resignation of chief executive
37 Termination of
chief executive's employment
38 Delegation by chief executive
39 Provision
for statutory office holder to have powers etc of chief executive
Part 7—Public sector employment
Division 1—Application of Part
40 Public
Service and declared public sector employment
Division 2—Executives
41 Conditions of
executive's employment
42 Resignation of executives
43 Termination of
executive's employment by notice
Division 3—General employment processes and
conditions
44 Engagement of employees
45 Merit-based selection
processes
46 Assignment of
duties
47 Probation
48 Remuneration
49 Additional duties
allowance
50 Hours of duty and leave
51 Resignation (other than
executives)
52 Reduction in remuneration
level
53 Termination
54 Disciplinary action
55 Power to require medical
examination
56 Power to suspend from duty
Division 4—Review of employment
decisions
Subdivision 1—Review of dismissal
57 Application of unfair
dismissal provisions of Fair Work Act
Subdivision 2—Review of employment decisions (other than
dismissal)
58 Right of review
59 Conciliation
60 Internal
review
61 External review
62 Special provision for review of selection
processes
63 Application of Fair Work Act 1994
Part 8—Miscellaneous
64 Employment
opportunity programs
65 Re-engagement of employee who resigns to contest
election
66 Multiple appointments etc
67 Payment of remuneration on
death
68 Reduction in remuneration arising from refusal or failure to carry
out duties
69 Action where overpayment or liability to Crown
70 Employment
of Ministerial staff
71 Appointment of other special staff
72 Operation of
Fair Work Act 1994
73 Immunity relating to official powers or
functions
74 Delegation by Minister
75 Temporary exercise of statutory
powers
76 Designation of positions
77 Obsolete
references
78 Evidentiary provision
79 Service of
notices
80 Regulations
Schedule 1—Leave and working
arrangements
Part 1—Flexible leave and working
arrangements
1 Flexible leave and working arrangements
Part 2—Hours of attendance
2 Hours of
attendance
Part 3—Holidays and closure of
offices
3 Holidays
4 Closure of workplaces etc
Part 4—Recreation leave
5 Recreation
leave
Part 5—Sick leave
6 Sick leave etc
Part 6—Long service leave
7 Long service
leave
8 Salary or wages and allowances while on long service
leave
9 Payment in lieu of long service leave
Part 7—Adjustment to leave rights based on prior
service
10 Adjustment to leave rights based on prior service
Part 8—Payments on death
11 Payment in
respect of leave on death
Schedule 2—Public Sector Grievance Review
Commission
1 Establishment and membership of
Commission
2 Constitution of Commission for proceedings
3 Powers of
Commission
Schedule 3—Repeal and transitional
provisions
Part 1—Repeal of Public Sector Management
Act 1995
1 Repeal of Act
Part 2—Transitional
provisions
2 Administrative units continued as departments or attached
offices
3 Public Service employees continue in same employment
4 Probation
continued
5 Remuneration levels
6 Leave
rights
7 Commissioner
8 Equal employment opportunity
programs
9 Determinations and decisions continued
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Public Sector Act 2008.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the Acts Interpretation Act 1915 does not
apply to clause 1 of Schedule 3.
(1) In this Act, unless the contrary intention appears—
administrative decision means—
(a) a decision; or
(b) failure or refusal to make a decision,
in the exercise or purported exercise of administrative
authority;
administrative unit means—
(a) a department; or
(b) an attached office;
attached office means an attached office established under
Part 6 or an administrative unit continued as an attached office under Schedule
3;
casual employee means a person engaged on the basis that the
employment will continue for not more than 4 weeks or will have hours that
are irregular or do not exceed 15 hours in a week;
chief executive of an administrative unit means a person
employed or assigned to act as the chief executive of the unit under Part
6;
Commissioner means a person appointed or assigned to act as
the Commissioner for Public Sector Employment under Part 4;
department means a department established under Part 6 or
continued under Schedule 3;
disciplinary action means action against an employee of a
public sector agency on the ground of the employee's misconduct;
employee of a public sector agency—see
subsection (2);
employing authority means a person designated as an employing
authority, and empowered to employ persons on behalf of the Crown, under an
Act;
employment decision means an administrative decision relating
to the employment of a person, including an administrative decision relating to
the engagement, promotion, transfer, remuneration, entitlements or termination
of employment of a person and a decision to take disciplinary action against a
person;
employment opportunity program—see
section 64;
executive employee means—
(a) a member of SAES; or
(b) an employee to whom clause 3(3) of Schedule 3 applies and who is
not a member of SAES;
Industrial Relations Commission means the Industrial
Relations Commission of South Australia under the Fair Work
Act 1994;
merit, in relation to selection processes,
means—
(a) the extent to which each of the applicants has abilities, aptitude,
skills, qualifications, knowledge, experience (including community experience)
and personal qualities relevant to the carrying out of the duties in question;
and
(b) if relevant—
(i) the manner in which each of the applicants carried out any previous
employment or occupational duties or functions; and
(ii) the extent to which each of the applicants has potential for
development;
misconduct means—
(a) a breach of a disciplinary provision of the public sector code of
conduct while in employment as a public sector employee; or
(b) other misconduct while in employment as a public sector
employee,
the term includes making a false statement in connection with an
application for engagement as a public sector employee and being convicted,
while in employment as a public sector employee, of an offence punishable by
imprisonment;
public sector means the administrative units of the Public
Service and all other public sector agencies and public sector
employees;
public sector agency means—
(a) a Minister; or
(b) a chief executive of an administrative unit; or
(c) an administrative unit; or
(d) an employing authority; or
(e) any other agency or instrumentality of the Crown; or
(f) a body corporate—
(i) comprised of persons, or with a governing body comprised of persons, a
majority of whom are appointed by the Governor, a Minister or an agency or
instrumentality of the Crown; or
(ii) subject to control or direction by a Minister; or
(g) a person or body declared under subsection (3) to be a public
sector agency; or
(h) a subsidiary of a Minister or a person or body referred to in a
preceding paragraph,
but does not include—
(i) a person or body declared under an Act not to be part of the Crown or
not to be an agency or instrumentality of the Crown; or
(j) a person or body declared under subsection (3) not to be a public
sector agency;
public sector code of conduct means the public sector code of
conduct issued by the Commissioner under Part 4;
public sector employee means a chief executive of an
administrative unit or an employee in an administrative unit or other employee
of a public sector agency;
Public Sector Grievance Review Commission—see Schedule
2;
public sector principles means the principles set out in
section 5;
public sector representative organisation means an
association registered under the Fair Work Act 1994 or the
Workplace Relations Act 1996 of the Commonwealth that represents the
interests of public sector employees;
Public Service—see Part 6;
remuneration means salary, allowances or other monetary
benefits payable to an employee;
remuneration level means the remuneration level fixed by a
public sector agency for an employee of the agency from a classification
structure in accordance with the appropriate determination of the Commissioner
under Part 4 or, if there is no applicable determination, has the meaning
assigned by the regulations;
SAES means the South Australian Executive Service constituted
under Part 5;
SAES charter—see section 22;
selection processes means the processes by which applications
are sought and applicants selected for the purpose of employment in the public
sector;
subsidiary has the same meaning as in the Corporations
Act 2001 of the Commonwealth;
substantive remuneration level of an employee of a public
sector agency means the remuneration level determined by the public sector
agency in accordance with the regulations to be the employee's substantive
remuneration level;
term employee means an employee engaged for a specified term
or for the duration of a specified project;
whole-of-Government objectives means objectives for
Government that are approved in Cabinet from time to time and relate to the
functions or operations of all or various public sector agencies.
(2) For the purposes of this Act and any other Act or law—
(a) a person employed in, or for the purposes of, an administrative unit
is treated as an employee employed by the chief executive (from time to time) of
the unit on behalf of the Crown; and
(b) a person employed or appointed under another Act, on behalf of the
Crown, by an unincorporated public sector agency (including a chief executive of
an administrative unit) is treated as an employee of the agency (as constituted
from time to time); and
(c) a change in the chief executive of an administrative unit or the
person who constitutes an unincorporated public sector agency will not affect
the continuity of employment of a person employed in, or for the purposes of,
the unit or by the agency.
(3) The Minister may, by notice in the Gazette—
(a) declare that a specified person or body is or is not a public sector
agency for the purposes of this Act; or
(b) vary or revoke a notice under this subsection.
(4) For the purposes of this Act, in determining whether a company is a
subsidiary of a public sector agency, any shares held, or powers exercisable by,
the agency or any other body are not to be taken to be held or exercisable in a
fiduciary capacity by reason of the fact that the agency is an instrumentality
of the Crown or holds its property on behalf of the Crown.
The objects of this Act are as follows:
(a) to promote a high performing public sector that—
• focuses on the delivery of services to the public; and
• is responsive to Government priorities;
(b) to establish—
• general principles to guide public sector operations;
and
• a code of conduct to enforce ethical behaviour and professional
integrity in the public sector;
(c) to ensure the public sector is viewed as an employer of
choice;
(d) to encourage public sector agencies and employees to apply a public
sector-wide perspective in the performance of their functions;
(e) to make performance management and development a priority in the
public sector;
(f) to ensure accountability in the public sector;
(g) to facilitate the integration of employment and management practices
across the public sector;
(h) to promote uniformity and transparency in governance arrangements for
the public sector;
(i) to provide the framework for the State's Public Service and the
effective and fair employment and management of Public Service and other public
sector employees.
Part 3—Public
sector principles and practices
(1) Public focus
The public sector is to—
• focus on the provision of services to the public;
• recognise the diversity of public needs and respond to changing
needs;
• consult and involve the public, where appropriate, to improve
services and outcomes on an ongoing basis.
(2) Responsiveness
The public sector is to—
• implement the Government's policies in a timely manner and
regardless of the political party forming Government;
• provide accurate, timely and comprehensive advice;
• align structures and systems to achieve major strategies while
continuing to deliver core services.
(3) Collaboration
The public sector is to—
• ensure there is ongoing collaboration between public sector
agencies;
• focus on whole-of-Government, as well as agency-specific, services
and outcomes.
(4) Excellence
The public sector is to—
• provide services with a high level of efficiency and
effectiveness;
• move resources rapidly in response to changing needs;
• devolve decision-making authority to the lowest appropriate
level;
• manage resources effectively, prudently and in a fully accountable
manner;
• maintain and enhance the value of public assets.
(5) Employer of choice
Public sector agencies are to—
• treat public sector employees fairly, justly and
reasonably;
• prevent unlawful discrimination against public sector employees or
persons seeking employment in the public sector;
• ensure that public sector employees may give frank advice without
fear of reprisal;
• encourage public sector employees to undertake professional
development and to pursue opportunities throughout the public sector;
• set clear objectives for public sector employees and make them
known;
• acknowledge employee successes and achievements and address under
performance;
• ensure that public sector employees may join, or choose not to
join, organisations that represent their interests;
• consult public sector employees and public sector representative
organisations on matters that affect public sector employment.
(6) Ethical behaviour and professional integrity
Public sector employees are to—
• be honest;
• promptly report and deal with improper conduct;
• avoid conflicts of interest, nepotism and patronage;
• treat the public and public sector employees with respect and
courtesy;
• make decisions and provide advice fairly and without bias,
caprice, favouritism or self interest;
• deal with agency information in accordance with law and agency
requirements;
• avoid conduct that will reflect adversely on the public
sector;
• accept responsibility for decisions and actions;
• submit to appropriate scrutiny.
(7) Legal requirements
Public sector agencies are to—
• implement all legislative requirements relevant to the
agencies;
• properly administer and keep under review legislation for which
the agencies are responsible.
6—Public sector
code of conduct
Public sector employees must observe the public sector code of
conduct.
7—Public
sector performance management and development
(1) Each public sector agency must establish and administer effective
performance management and development systems in respect of the employees of
the agency.
(2) Performance management and development must be directed towards
advancement of the objects of this Act and observance of the public sector
principles and code of conduct.
(3) Performance management and development must be integrated with the
agency's employment practices and inform its employment decisions relating to
particular employees.
(4) Each public sector agency must make information about its performance
management and development system available to employees of the
agency.
8—Flexible
arrangements for transfer within public sector
(1) The Premier may, in order to reorganise public sector operations, by
notice in the Gazette—
(a) transfer employees within the public sector; and
(b) make transitional or ancillary provisions that may be necessary or
expedient in the circumstances.
(2) A notice under subsection (1) has effect according to its terms
and despite any other Act.
(3) A public sector agency may transfer an employee of the agency to other
employment within the public sector, on conditions that maintain the substantive
remuneration level of the employee or are agreed to by the employee.
(4) A public sector agency is not to transfer employees under this section
except with the agreement of any other public sector agency directly affected by
the transfer.
(5) The regulations may prescribe rules relating to the movement of
employees within the public sector, including movement initiated by
employees.
(6) A transfer of an employee under this section does not constitute a
breach of the person's contract of employment or termination of the person's
employment, or affect the continuity of the person's employment for any
purpose.
9—Agencies to
pursue whole-of-Government objectives
(1) The Premier may give directions to public sector agencies about the
implementation of specified whole-of-Government objectives and the sharing of
information and collaboration required for that purpose.
(2) A direction under this section is not binding on a public sector
agency to the extent (if any) to which it would impede or affect the performance
of a quasi-judicial or statutorily independent function of the agency.
10—Uniform and
transparent governance arrangements
(1) The Premier may give directions to public sector agencies
designed—
(a) to guide agencies, in preparing proposals and making decisions, on the
question of whether a Government activity should be assigned to a
Public Service body or some other form of public sector agency;
and
(b) to otherwise deal with matters relating to structural arrangements in
the public sector and the formation of new entities.
(2) The Premier must ensure the publication in the Gazette and on a
website determined by the Premier of—
(a) any directions given by the Premier under subsection (1);
and
(b) information relating to structural arrangements in the public sector
and the formation of new entities.
11—Agencies to
report annually
(1) Each public sector agency must, once in each year, present a report on
the agency's operations to the agency's Minister.
(2) Subject to this section, the report must be related to a financial
year and must be presented within 3 months after the end of the financial
year to which it relates.
(3) If a public sector agency is under some other statutory obligation to
make an annual report to the agency's Minister—
(a) the report required by this section may be incorporated with that
other report; and
(b) the period to which the report relates must be the same as for that
other report; and
(c) the report must be presented within 3 months after the end of the
reporting period referred to above.
(4) A chief executive of an administrative unit is not required to report
separately from the unit.
(5) An employing authority or employee of a public sector agency is not
required to report under this section.
(6) The public sector agency must ensure that the report is accurate,
comprehensive, deals with all significant issues affecting the agency and is
written and presented in a manner that aids ready comprehension.
(7) The report must contain the information required by the regulations or
by any directions issued by the Premier.
(8) A Minister must, within 12 sitting days after receipt of a report
under this section, cause copies of the report to be laid before each House of
Parliament.
(9) The copy of the report to be laid before Parliament must set out in a
prominent position the date on which it was presented to the agency's Minister
and if a report is presented to the agency's Minister after the end of the
period allowed under this section, the report must be accompanied by a written
statement of the reasons for the delay and the statement must be laid before
each House of Parliament together with the report.
Part
4—Commissioner for Public Sector Employment
(1) There is to be a Commissioner for Public Sector Employment.
(2) The Commissioner is to be appointed by the Governor for a term not
exceeding 5 years and on conditions determined by the Governor.
(3) The Commissioner is, at the end of a term of appointment, eligible for
reappointment.
(4) The Commissioner's appointment may be terminated by the Governor on
the ground that the Commissioner—
(a) has been guilty of misconduct; or
(b) has been convicted of an offence punishable by imprisonment;
or
(c) has engaged in any remunerative employment, occupation or business
outside the duties of the Commissioner without the consent of the Minister;
or
(d) has become bankrupt or has applied to take the benefit of a law for
the relief of insolvent debtors; or
(e) has, because of mental or physical incapacity, failed to carry out
duties of the Commissioner satisfactorily; or
(f) is incompetent or has neglected the duties of the position.
(5) The Commissioner's appointment is terminated if the
Commissioner—
(a) becomes a member, or a candidate for election as a member, of the
Parliament of the State or the Commonwealth; or
(b) is sentenced to imprisonment for an offence.
(6) The Commissioner may resign as Commissioner by not less than
3 months notice in writing to the Minister (unless notice of a shorter
period is accepted by the Minister).
(7) The Minister may assign a public sector employee to act as the
Commissioner during any period for which—
(a) no person is for the time being appointed as the Commissioner;
or
(b) the Commissioner is absent from, or unable to discharge, official
duties.
(1) The Commissioner has the function of advancing the objects of this
Act, and promoting observance of the public sector principles, in so far as they
relate to public sector employment and for that purpose is to—
(a) issue the public sector code of conduct (see section 14);
and
(b) issue public sector employment determinations (see section 15);
and
(c) monitor and report to the Minister on observance of the public sector
principles, code of conduct and employment determinations; and
(d) issue guidelines relating to public sector employment matters;
and
(e) provide advice on public sector employment matters at the request of
public sector agencies; and
(f) provide advice on and conduct reviews of public sector employment or
industrial relations matters as required by the Premier or the Minister;
and
(g) investigate or assist in the investigation of matters in connection
with public sector employee conduct or discipline as required by the Premier or
at the request of a public sector agency.
(2) The Commissioner has any other functions assigned to the Commissioner
under this Act or by the Minister.
14—Public
sector code of conduct
(1) The public sector code of conduct may contain—
(a) provisions directed towards advancement of the objects of this Act and
observance of the public sector principles; and
(b) provisions governing the conduct of public sector employees (within
and outside their employment) that are expressed to be disciplinary
provisions.
(2) The regulations may preserve employee rights relating to the
disclosure of information and the making of public comment and impose other
limitations on the contents of the code.
(3) The Commissioner must keep the code under review and may vary the
code, or revoke and substitute the code.
(4) The code, and any variation of the code, must be published in
accordance with the regulations.
(5) The code, or a variation of the code, has effect from a date fixed by
the Commissioner.
15—Public
sector employment determinations
(1) The Commissioner may issue determinations relating to—
(a) employment in the Public Service; and
(b) public sector employment outside the Public Service that is declared
by another Act or the regulations under this Act to be employment to which this
section applies.
(2) A determination by the Commissioner may determine—
(a) classification structures in accordance with which remuneration levels
must be fixed for employees; and
(b) conditions of employment other than remuneration; and
(c) processes that must be followed in fixing remuneration levels and
other employment conditions; and
(d) allowances payable to employees and the circumstances in which they
are payable; and
(e) charges payable by employees in respect of accommodation, services,
goods or other benefits provided to them in connection with their employment;
and
(f) any other matter of a class prescribed by the regulations.
(3) A determination by the Commissioner—
(a) may be expressed to apply to all employees or particular employees or
classes of employees; and
(b) may leave a matter or thing to be determined or dispensed with
according to the discretion of a public sector agency or the Commissioner,
either generally or in a particular case or class of cases; and
(c) may be varied or revoked by subsequent determination; and
(d) must be published in accordance with the regulations; and
(e) has effect from a date fixed by the Commissioner which may be a date
earlier than the date of the determination; and
(f) is binding on public sector agencies in relation to public sector
employment to which the determination applies.
16—Extent to which
Commissioner is subject to Ministerial direction
(1) Subject to this section, the Commissioner is subject to direction by
the Minister.
(2) No Ministerial direction may be given to the Commissioner requiring
that material be included in, or excluded from, a report that is to be laid
before Parliament.
(3) A Ministerial direction to the Commissioner—
(a) must be communicated to the Commissioner in writing; and
(b) must be included in the annual report of the Commissioner.
(1) The powers conferred by this section may be exercised as reasonably
required for a review or investigation referred to in section 13.
(2) The Commissioner may—
(a) by notice in writing—
(i) require a public sector employee or former public sector employee to
appear at a specified time and place for examination; or
(ii) require a public sector employee or former public sector employee to
produce a specified record or object that is relevant to the subject matter of
the review or investigation; and
(b) require a public sector employee or former public sector employee to
answer truthfully questions that are relevant to the subject matter of the
review or investigation; and
(c) enter and inspect premises occupied by the Crown or a public sector
agency.
(3) A public sector employee who fails to comply with a requirement under
this section or hinders the exercise of powers under this section is guilty of
misconduct (for the purposes of this and any other Act).
(4) A former public sector employee who fails to comply with a requirement
under this section or hinders the exercise of powers under this section is
guilty of an offence.
Maximum penalty: $5 000.
(5) A person is not obliged to answer a question or to produce a record or
object (other than a record or object of the Government) under this section if
to do so would tend to incriminate the person of an offence.
18—Power to
require statistical information
The Commissioner may, by notice in writing, require public sector agencies
to provide statistical reports to the Commissioner relating to public sector
employment matters at intervals specified by the Commissioner.
(1) The Commissioner may, by instrument in writing, delegate a power or
function under this or any other Act—
(a) to a particular person or committee; or
(b) to the person for the time being performing particular duties or
holding or acting in a specified position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act personally in
a matter; and
(c) is revocable at will.
20—Annual report
of Commissioner
(1) The Commissioner must, before 30 September in each year, present
a report to the Minister on matters relating to the Commissioner's functions
under this Part.
(2) The report must—
(a) relate to the financial year preceding the making of the report;
and
(b) describe the extent of observance of the public sector principles in
so far as they relate to public sector employment and measures taken by the
Commissioner to promote observance of those principles; and
(c) deal with any other matters stipulated by the regulations.
(3) The Minister must, within 12 sitting days after receipt of a
report under this section, cause copies of the report to be laid before each
House of Parliament.
Part
5—South Australian Executive Service
SAES is established to provide the public sector with high performing
leaders who have a shared sense of purpose and direction and who together will
actively engage the public sector in the pursuit of the objects of this Act and
the public sector principles.
(1) The Minister must approve a charter for SAES (the SAES
charter).
(2) The charter may specify or elaborate on the following:
(a) rules governing membership of SAES;
(b) functions of SAES;
(c) rules and arrangements to facilitate mobility within the public sector
of SAES members;
(d) employment contracts and performance management and development
systems for SAES members;
(e) competencies expected of SAES members;
(f) any other matter affecting SAES.
(3) The Minister must ensure that the charter is kept under review and may
vary the charter, or revoke and substitute the charter.
(4) The Minister must cause the charter, or a variation of the charter, to
be published within the public sector.
Division
1—Composition of Public Service
23—Public Service
administrative units
The Public Service consists of administrative units which may take the form
of—
(a) a department; or
(b) an attached office.
(1) Subject to subsection (2), all persons employed by or on behalf
of the Crown must be employed in the Public Service under this Act.
(2) The following persons are excluded from the Public Service:
(a) members of the judiciary;
(b) police officers;
(c) protective security officers appointed under the Protective
Security Act 2007;
(d) the Auditor-General;
(e) the Ombudsman;
(f) the Police Complaints Authority;
(g) the Electoral Commissioner and the Deputy Electoral
Commissioner;
(h) an officer of either House of Parliament or a person under the
separate control of the President of the Legislative Council or the Speaker of
the House of Assembly or a member of the joint parliamentary service;
(i) the Commissioner;
(j) members of the Public Sector Grievance Review Commission;
(k) an employee appointed by the employing authority under the
Education Act 1972;
(l) an officer or employee appointed by the employing authority under the
Technical and Further Education Act 1975;
(m) a person appointed by the Premier or the Minister under Part
8;
(n) a person who is remunerated solely by fees, allowances or
commission;
(o) an employee who is remunerated at hourly, daily, weekly or piece-work
rates of payment (other than a person expressly engaged by writing as a casual
employee in the Public Service);
(p) a person who is excluded under any other Act from the Public
Service;
(q) a person whose terms and conditions of appointment or employment are
under another Act to be determined by the Governor, a Minister or any specified
person or body;
(r) a person excluded from the Public Service by proclamation under
subsection (3).
(3) The Governor may, by proclamation—
(a) exclude a person or class of persons from the Public Service;
or
(b) vary or revoke a proclamation under this subsection.
Division
2—Administrative units
25—Establishment
of departments
The Governor may, by proclamation—
(a) establish a department and assign a title to it; or
(b) alter the title of a department; or
(c) abolish a department.
26—Establishment
of attached offices
The Governor may, by proclamation—
(a) establish an attached office, assign a title to the office and attach
the office to a department or departments; or
(b) vary the department or departments to which an office is an attached
office; or
(c) alter the title of an attached office; or
(d) abolish an attached office.
27—Minister
responsible for administrative unit
(1) The Governor may, by proclamation, designate the Minister who will be
an administrative unit's Minister with responsibility for the unit.
(2) A proclamation under subsection (1) will have the effect of
revoking the previous designation (if any).
28—Administrative
units to have chief executives
There is to be a chief executive of each administrative unit.
29—Chief executive
to employ persons for administrative unit
(1) The chief executive of an administrative unit may, on behalf of the
Crown, engage persons as employees for the purposes of the unit.
(2) A person engaged as an employee under subsection (1) becomes an
employee in the unit unless excluded from the Public Service under
section 24.
30—General duties
of chief executive
(1) The chief executive of a department is responsible to the Premier and
the department's Minister for—
(a) making an effective contribution to the attainment of the
whole-of-Government objectives that are communicated in writing by the Premier
or the department's Minister and relate to the functions or operations of the
department; and
(b) the attainment of the performance objectives set from time to time by
the Premier and the department's Minister under the contract relating to the
chief executive's employment; and
(c) the effective management of the department and the general conduct of
its employees.
(2) The chief executive of an office that is an attached office to a
department or departments is responsible—
(a) to the Premier and the office's Minister for—
(i) making an effective contribution to the attainment of the
whole-of-Government objectives that are communicated in writing by the Premier
or the office's Minister and relate to the functions or operations of the
office; and
(ii) the attainment of the performance objectives set from time to time by
the Premier and that Minister under the contract relating to the
chief executive's employment; and
(b) to the chief executive of the department, or the chief executives of
the departments, for—
(i) any specific matters relating to the attainment of whole-of-Government
objectives; and
(ii) the effective management of the office and the general conduct of its
employees.
31—Duties with
respect to objects of Act and public sector principles and code of
conduct
The chief executive of an administrative unit is to ensure, as far as
practicable, that the objects of this Act are advanced and the public sector
principles and code of conduct are observed in the management and day-to-day
operations of the unit.
32—Protection of
independence in certain matters
The chief executive of an administrative unit is not subject to direction
in respect of—
(a) the performance of a quasi-judicial or statutorily independent
function of the chief executive; or
(b) the making of an employment decision relating to a particular
person.
33—Employment or
assignment of persons as chief executives
(1) A chief executive of an administrative unit is to be engaged by the
Premier.
(2) The Premier may assign a public sector employee to act as the chief
executive of an administrative unit, or an administrative unit's Minister may
assign an employee in the unit to act as the chief executive of the unit, during
any period for which—
(a) no person is for the time being employed as the chief executive of the
unit; or
(b) the chief executive of the unit is absent from, or unable to
discharge, official duties.
34—Conditions of
chief executive's employment
(1) The employment of a chief executive of an administrative unit is to be
subject to a contract made between the chief executive and the Premier in
consultation with the unit's Minister.
(2) The contract must specify—
(a) that the chief executive is employed for a term not exceeding
5 years specified in the contract; and
(b) that the chief executive is to meet performance objectives as set from
time to time by the Premier and the unit's Minister.
(3) Subject to the regulations, the contract may make any other provision
considered appropriate, including provision excluding or modifying a provision
of this Act.
(4) The decision whether to engage the chief executive for a further term
must be made and notified to the chief executive not less than the
prescribed period before the end of the chief executive's current term of
employment.
(5) In this section—
prescribed period means—
(a) if the contract is for a term of 5 years—6 months;
(b) if the contract is for a term less than 5 years—the period
determined by applying to the period of 6 months the proportion that the
number of months in the term of the contract bears to 60 months.
35—Transfer of
chief executives
(1) The Premier may transfer a chief executive of an administrative unit
to other duties in the public sector, whether or not as chief executive of
another administrative unit, on conditions that maintain the remuneration of the
chief executive.
(2) A transfer of a chief executive under this section does not constitute
a breach of the person's contract of employment or termination of the person's
employment, or affect the continuity of the person's employment for any
purpose.
36—Resignation of
chief executive
A chief executive of an administrative unit may resign by not less than
3 months notice in writing to the Premier (unless notice of a shorter
period is accepted by the Premier).
37—Termination of
chief executive's employment
(1) The Premier may, by notice in writing, terminate the employment of a
chief executive of an administrative unit—
(a) on the ground that the chief executive has become bankrupt or has
applied to take the benefit of a law for the relief of insolvent debtors;
or
(b) on any ground on which the employment of an employee of a public
sector agency may be terminated under Part 7 Division 3.
(2) The Premier may, by notice in writing, terminate the employment of a
chief executive of an administrative unit without specifying any
grounds.
(3) Subject to the contract relating to the chief executive's employment,
if a chief executive's employment is terminated by the Premier by notice
under subsection (2), the chief executive is entitled to a termination
payment of an amount equal to 4 months remuneration (at the rate determined
for the purposes of this subsection under the chief executive's contract) for
each uncompleted year of the chief executive's employment (with a
pro rata adjustment in relation to part of a year) up to a maximum of
16 months remuneration.
(4) The period of notice under subsection (2) must be at least
4 months except where the chief executive is compensated by payment of an
amount equal to the remuneration that would have been payable during the balance
of the period of 4 months (at the rate determined for the purposes of this
subsection under the chief executive's contract).
38—Delegation by
chief executive
(1) The chief executive of an administrative unit may, by instrument in
writing, delegate a power or function under this Act—
(a) to a particular person or committee; or
(b) to the person for the time being performing particular duties or
holding or acting in a specified position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act personally in
a matter; and
(c) is revocable at will.
39—Provision for
statutory office holder to have powers etc of chief
executive
Despite the preceding provisions of this Part, the Minister may, by notice
in the Gazette—
(a) declare that the person for the time being holding or acting in a
specified statutory office established under an Act will have the powers and
functions of a chief executive in relation to a specified administrative
unit; and
(b) revoke a declaration under this section.
Part
7—Public sector employment
Division
1—Application of Part
40—Public
Service and declared public sector employment
(1) This Part applies to employment in the Public Service.
(2) This Part also applies to public sector employment outside the
Public Service to the extent provided by another Act or the regulations
under this Act.
(3) The regulations under this Act may apply or modify the application of
this Part or a provision of this Part to public sector employment outside
the Public Service.
(4) Regulations may be made for the purposes of this section, and will
have effect according to their terms, despite the provisions of any other
Act.
41—Conditions of
executive's employment
(1) The employment of a person as an executive employee of a public sector
agency is to be subject to a contract made between the employee and the
agency.
(2) The contract must specify—
(a) that the employee is employed for a term not exceeding 5 years
specified in the contract; and
(b) that the employee is to meet performance objectives as set from time
to time by the agency.
(3) Subject to the regulations, the contract may make any other provision
considered appropriate, including provision excluding or modifying a provision
of this Act.
(4) The decision whether to engage the employee for a further term must be
made and notified to the employee not less than the prescribed period before the
end of the employee's current term of employment.
(5) In this section—
prescribed period means—
(a) if the contract is for a term of
5 years—6 months;
(b) if the contract is for a term less than 5 years—the period
determined by applying to the period of 6 months the proportion that the
number of months in the term of the contract bears to 60 months.
An executive employee of a public sector agency may resign by not less than
8 weeks notice in writing to the agency (unless notice of a shorter period
is accepted by the agency).
43—Termination of
executive's employment by notice
(1) A public sector agency may, by notice in writing, terminate the
employment of an executive employee of the agency without specifying any
grounds.
(2) Subject to the contract relating to the employee's employment, if the
employee's employment is terminated by the agency by notice under
subsection (1), the employee is entitled to a termination payment of an
amount equal to 4 months remuneration (at the rate determined for the
purposes of this subsection under the employee's contract) for each uncompleted
year of the employee's employment (with a pro rata adjustment in relation
to part of a year) up to a maximum of 16 months remuneration.
(3) The period of notice under subsection (1) must be at least
4 months except where the employee is compensated by payment of an amount
equal to the remuneration that would have been payable during the balance of the
period of 4 months (at the rate determined for the purposes of this
subsection under the employee's contract).
(4) The power conferred by this section is in addition to the power to
terminate an executive employee's employment under section 53.
Division
3—General employment processes and conditions
(1) This section applies to employees of a public sector agency other than
executive employees.
(2) The basis on which a person is engaged as an employee must be
as—
(a) an ongoing employee; or
(b) a term employee; or
(c) a casual employee.
(3) A person is only to be engaged as a term employee, and the person's
engagement is only to be extended, as follows:
(a) a person may be engaged as a term employee for duties required for the
carrying out of a project of a duration not exceeding 5 years and the
engagement may be extended (including beyond a total of 5 years) but not so
that the term extends beyond the duration of the project;
(b) a person may be engaged as a term employee for a specified term for
duties required to be performed because of the absence of another employee or
while selection processes are conducted in respect of the duties and the
engagement may be extended but not so that the term extends beyond the absence
of the employee or the completion of the selection processes;
(c) a person may be engaged as a term employee for a specified term not
exceeding 5 years in cases of a special or exceptional kind prescribed by
the regulations and the engagement may be extended but not so that the term
extends beyond a total of 5 years;
(d) a person may be engaged as a term employee for a specified term not
exceeding 2 years for duties that are otherwise of a temporary nature and
the engagement may be extended but not so that the term extends beyond a total
of 2 years.
(4) The regulations may impose further limits on the exercise of the power
to engage or extend the engagement of persons as term or casual
employees.
(5) A public sector agency may change the basis on which a person is
engaged as an employee at any time with the employee's agreement.
(6) In this section—
absence of an employee from duties means the absence of an
employee in circumstances in which the employee may return to the
duties;
extend the engagement of a person as a term employee includes
re-engage the person as a term employee so as to continue the same or similar
duties.
45—Merit-based
selection processes
(1) The following may only occur as a consequence of selection processes
conducted on the basis of merit in accordance with the regulations:
(a) engagement of a person as an employee of a public sector
agency;
(b) promotion of an employee of a public sector agency to a higher
remuneration level;
(c) changing the basis on which a person is engaged as an employee of a
public sector agency to engagement as an ongoing employee.
(2) Subsection (1) does not apply—
(a) to the engagement of a casual employee; or
(b) to the promotion of an employee by way of reclassification of the
employee's remuneration level in accordance with the regulations; or
(c) to the engagement of an employee under an employment opportunity
program; or
(d) in circumstances prescribed by the regulations.
A public sector agency may from time to time determine the duties of a
person as an employee of the agency and the place or places at which the duties
are to be performed.
(1) This section does not apply to an executive employee.
(2) A person who is not already in the employment of a public sector
agency is, when engaged as an employee of a public sector agency, at first on
probation for 12 months, unless the agency determines that no probation is
required or determines a lesser period of probation.
(3) The employment of an employee who is on probation may be terminated by
the public sector agency at any time.
(4) If an employee has been on probation for at least half of the period
of probation, the agency may confirm the employee's employment and, in that
event, the employee ceases to be on probation.
(5) Unless the employee's employment is sooner confirmed or terminated,
the employee ceases to be on probation at the end of the period of
probation.
(6) For the purposes of this section, probationary service does not
include a period for which the employee has been absent on leave without
pay.
(7) A period of probation that applies to an employee under this section
will be taken to be reasonable for the purposes of the Fair Work
Act 1994.
(1) An employee of a public sector agency is entitled to remuneration in
accordance with the employee's remuneration level.
(2) A deduction may be made from an employee's remuneration for any charge
payable by the employee under a determination of the Commissioner under Part 4
in respect of accommodation, services, goods or any other benefit provided to
the employee in connection with his or her employment.
49—Additional
duties allowance
(1) A public sector agency may direct an employee of the agency to perform
specified duties in addition to those on which the employee's remuneration level
is based.
(2) The agency may authorise payment to the employee of an allowance
appropriate to the duties being performed.
The hours of duty of an employee of a public sector agency and the rights
of an employee of a public sector agency to holidays and leave are governed by
Schedule 1.
51—Resignation
(other than executives)
(1) An employee of a public sector agency, other than an executive
employee, may resign from his or her employment by not less than 14 days
notice in writing to the agency (unless notice of a shorter period is accepted
by the agency).
(2) If an employee of a public sector agency—
(a) is absent, without authority, from his or her employment for a period
of 10 working days; and
(b) gives no proper written explanation or excuse for the absence to the
agency before the end of that period,
the employee will, if the agency so determines, be taken to have resigned
from his or her employment.
52—Reduction
in remuneration level
(1) A public sector agency may reduce the remuneration level of an
employee of the agency without the employee's consent on any of the following
grounds:
(a) the employee is excess to the requirements of the agency at the higher
remuneration level;
(b) the employee's physical or mental incapacity to perform duties
satisfactorily at the higher remuneration level;
(c) the employee's unsatisfactory performance of duties at the higher
remuneration level;
(d) the employee's misconduct;
(e) the employee's lack of an essential qualification for performing
duties at the higher remuneration level;
(f) any other ground prescribed by the regulations.
(2) A public sector agency may not reduce an employee's remuneration level
under subsection (1)(a) or (b) unless the agency has made reasonable
endeavours to find, but has failed to find, other suitable duties in the agency,
or other public sector employment (to which this Part applies), to which the
employee might be assigned or transferred on conditions that maintain the
employee's substantive remuneration level.
(3) If an employee's remuneration level is reduced under
subsection (1)(a), the employee is entitled to supplementation of the
employee's remuneration in accordance with the relevant provisions of an award
or enterprise agreement or, if there is no award or enterprise agreement
covering the matter, in accordance with a scheme prescribed by the
regulations.
(4) The power to reduce an employee's remuneration level under this
section includes (without limitation) power—
(a) to reduce an employee's remuneration level to a remuneration level
from a classification structure, or different classification structure, fixed by
a determination of the Commissioner under Part 4; and
(b) to reduce an employee's remuneration level to a remuneration level for
a class of employees not subject to a determination of the Commissioner under
Part 4; and
(c) to reduce an employee's remuneration level as a preliminary step to
assigning or transferring the employee to other duties in the agency or other
public sector employment (whether or not employment to which this Part
applies).
(1) A public sector agency may terminate the employment of an employee of
the agency on any of the following grounds:
(a) the employee is excess to the requirements of the agency;
(b) the employee's physical or mental incapacity to perform his or her
duties satisfactorily;
(c) the employee's unsatisfactory performance of his or her
duties;
(d) the employee's misconduct;
(e) the employee's lack of an essential qualification for performing his
or her duties;
(f) any other ground prescribed by the regulations.
(2) A public sector agency may not terminate the employment of an employee
under subsection (1)(a) or (b) unless the agency has made reasonable
endeavours to find, but has failed to find, other suitable duties in the agency,
or other public sector employment (to which this Part applies), to which the
employee might be assigned or transferred on conditions that maintain the
employee's substantive remuneration level.
(1) A public sector agency may—
(a) reprimand an employee of the agency; or
(b) suspend an employee of the agency from duty without remuneration or
accrual of leave rights for a specified period,
on the ground of the employee's misconduct.
Note—
Disciplinary action may also take the form of—
(a) reduction of the remuneration level of an employee under
section 52; or
(b) termination of an employee's employment under
section 53.
A public sector agency may, in conjunction with taking disciplinary
action—
(a) assign an employee to different duties or to a different place under
section 46; or
(b) transfer an employee to other employment under
section 8.
(2) Nothing prevents a public sector agency from taking more than
1 form of disciplinary action against an employee for misconduct.
55—Power to
require medical examination
(1) If—
(a) an employee of a public sector agency is not performing the employee's
duties satisfactorily; and
(b) it appears to the agency that the employee's unsatisfactory
performance may be caused by mental or physical incapacity,
the agency may require the employee to undergo a medical examination by a
medical practitioner selected by the employee from a panel of medical
practitioners nominated by the agency.
(2) If an employee refuses or fails, without reasonable excuse, to submit
to a medical examination as required under subsection (1), the public
sector agency may suspend the employee from duty (without remuneration and
accrual of leave rights) until the employee submits to a medical examination as
required by the agency.
(3) The public sector agency must—
(a) furnish the employee with a copy of any report on the results of a
medical examination required under this section; and
(b) before taking any action on the basis of the report, allow the
employee a period of not less than 14 days from the date of the employee's
receipt of the report to furnish the agency with any medical reports obtained by
the employee on his or her mental or physical condition.
(1) A public sector agency may suspend an employee of the agency from duty
pending the completion of any investigation, process or proceedings in respect
of alleged misconduct by the employee if the agency decides that it is in the
public or agency's interest to do so.
(2) A suspension may be without remuneration if—
(a) the employee has been charged with an offence punishable by
imprisonment; or
(b) the employee has been given notice setting out details of alleged
misconduct on the part of the employee and inviting the employee to show cause
why disciplinary action should not be taken against the employee.
(3) A public sector agency must reimburse remuneration withheld as a
result of the suspension of an employee from duty if a court finds the person
not guilty of the offence or the agency decides that the person was not guilty
of misconduct (or both if the employee has been both charged with the offence
and given notice setting out details of alleged misconduct).
(4) A public sector agency may revoke a suspension at any time.
Division
4—Review of employment decisions
Subdivision
1—Review of dismissal
57—Application of
unfair dismissal provisions of Fair Work Act
(1) Chapter 3 Part 6 of the Fair Work Act 1994
(Unfair dismissal) applies in accordance with its terms to dismissal of a
public sector employee.
Note—
Consequently, subject to Chapter 3 Part 6 of the Fair Work
Act 1994, if a public sector agency dismisses an employee, the employee
may, before the end of a period of 21 days from the date the dismissal
takes effect, apply to the Industrial Relations Commission for relief under that
Part.
(2) If the Industrial Relations Commission, on application under
Chapter 3 Part 6 of the Fair Work Act 1994
(Unfair dismissal) by an employee of a public sector agency, orders
that the applicant be re-employed but is satisfied, on the application of the
public sector agency, that some other disciplinary action is appropriate to deal
with misconduct of the employee, the Industrial Relations Commission may make an
order that the agency take specified disciplinary action.
Subdivision
2—Review of employment decisions (other than
dismissal)
(1) This Subdivision provides public sector employees with rights to apply
for review of employment decisions.
(2) This Subdivision does not apply—
(a) to the dismissal of a public sector employee; or
(b) to a decision to select a person who is not a public sector employee
as a consequence of selection processes conducted on the basis of merit;
or
(c) in circumstances prescribed by the regulations.
A public sector agency is required to endeavour to resolve its employees'
grievances by conciliation (regardless of the fact that employees may apply for
review of its decisions).
(1) An employee aggrieved by an employment decision of a public sector
agency directly affecting the employee may apply for an internal review of the
decision by the public sector agency.
(2) The regulations may make provision relating to—
(a) applications for internal reviews by agencies; and
(b) the conduct of internal reviews by agencies.
(1) An employee aggrieved by an employment decision of a public sector
agency directly affecting the employee may apply to the appropriate review body
for a review of the decision.
(2) Subject to the regulations, an employee may not apply to the
appropriate review body for a review of a decision unless—
(a) the employee has applied for an internal review of the decision by the
agency; and
(b) the internal review has been completed, or has not commenced, as
required by the regulations.
(3) The appropriate review body may decline to review a
decision—
(a) if the application for review is frivolous or vexatious; or
(b) if the applicant for review has made a complaint under the Equal
Opportunity Act 1984 in respect of the decision; or
(c) in circumstances prescribed by the regulations.
(4) On a review, the appropriate review body—
(a) must examine the decision on the evidence or material before the
agency, but may, as it thinks fit, allow further evidence or material to be
presented to it; and
(b) must determine whether, on the balance of probabilities, the decision
is harsh, unjust or unreasonable; and
(c) may—
(i) affirm the decision;
(ii) in the case of a prescribed decision—rescind the decision and
substitute the decision with a decision that the body considers appropriate
(including a decision restoring any entitlements lost up to the time of the
decision);
(iii) remit matters to the agency for consideration or further
consideration in accordance with any directions or recommendations of the
body.
(5) The parties to a review are not to be legally represented unless the
appropriate review body considers that either party would be at a significant
disadvantage in the absence of legal representation.
(6) The regulations may make provision relating to—
(a) applications for reviews under this section; and
(b) the conduct of reviews under this section.
(7) This section does not apply in circumstances prescribed by the
regulations.
(8) In this section—
appropriate review body means—
(a) in the case of a prescribed decision—the Industrial Relations
Commission; or
(b) in any other case—the Public Sector Grievance Review
Commission;
prescribed decision means—
(a) a decision to take disciplinary action; or
(b) any decision to reduce an employee's remuneration level; or
(c) a decision to transfer an employee, or to assign an employee to
different duties or a different place, made in conjunction with a decision to
take disciplinary action or reduce an employee's remuneration level.
62—Special
provision for review of selection processes
Despite any other provision of this Subdivision, a review of a decision to
select an employee as a consequence of selection processes conducted on the
basis of merit must be limited to considering whether the processes should be
recommenced from the beginning or some later stage on the ground
that—
(a) the employee was not eligible for appointment; or
(b) the processes were affected by nepotism or patronage or were otherwise
not properly based on assessment of the respective merits of the applicants;
or
(c) there was some other serious irregularity in the processes.
63—Application of
Fair Work Act 1994
(1) The regulations may modify the application of the Fair Work
Act 1994 to proceedings of the Industrial Relations Commission under
this Subdivision.
(2) Section 194(2) of the Fair Work Act 1994 does not apply to
a grievance about an employment decision affecting a public sector
employee.
64—Employment
opportunity programs
(1) The Minister may, by notice in the Gazette—
(a) declare an employment program designed to—
(i) ensure that persons of a defined class have equal opportunities in
relation to employment in the public sector with persons not of that class;
or
(ii) to assist persons of a defined class to gain employment, training or
experience in the public sector; or
(iii) to assist persons of a defined class employed in the public sector
to pursue careers in the public sector as effectively as persons not of that
class,
to be an employment opportunity program; or
(b) vary or revoke a notice under this subsection.
(2) Any special provision in an employment opportunity program will,
despite the provisions of this or any other Act, be lawful.
65—Re-engagement
of employee who resigns to contest election
(1) If—
(a) an employee of a public sector agency resigns from his or her
employment for the purpose of standing as a candidate for election to the
Parliament of the State or the Commonwealth; and
(b) the resignation takes effect not more than 1 month before the
issue of the writ for the election; and
(c) the former employee is not elected and applies to be re-engaged as an
employee of the agency within 2 months after the return of the writ for the
election,
the employee must be re-engaged as an employee of the agency without
probation and with the same remuneration level as before his or her
resignation.
(2) For the purpose of determining the rights of an employee who is
re-engaged as an employee under this section, the period between the person's
resignation and re-engagement is to be taken to be leave without pay.
(1) The Commissioner may approve arrangements under which—
(a) a person may be employed in the Public Service or elsewhere in the
public sector for a period during which the person remains in some other
employment outside the Public Service or the public sector;
or
(b) a person who is employed in the Public Service or elsewhere in
the public sector may remain in that employment for a period during which
the person is engaged in some other employment outside the Public Service
or the public sector,
and any such arrangements will have effect according to their terms and
despite the provisions of this or any other Act.
(2) If a person holding an office is or has been appointed to a further
office, he or she is not to be taken to have vacated the first mentioned office
or to have been invalidly appointed to the further office
because—
(a) the potential exists or has existed for the duties of the offices to
be in conflict; or
(b) the duties of either 1 or more of the offices require, by
implication, the person's full time attention.
(3) The Minister may give directions in relation to an actual or potential
conflict of duty between offices held concurrently, or in relation to some other
incompatibility between offices held concurrently, and, if the office holder
concerned complies with those directions, he or she is excused from any breach
that would otherwise have occurred.
(4) In this section—
office means—
(a) a public office; or
(b) any employment in the public sector.
67—Payment of
remuneration on death
On the death of an employee of a public sector agency, the agency may, if
of the opinion that it is appropriate to do so, direct that an amount payable in
respect of the employee's remuneration be paid to dependants of the employee and
not to the personal representative.
68—Reduction in
remuneration arising from refusal or failure to carry out
duties
(1) If an employee of a public sector agency is absent from his or her
duties without lawful authority, the agency may direct that the employee not be
paid remuneration for the period of the absence.
(2) If, in consequence or furtherance of industrial action, an employee of
a public sector agency refuses or fails to carry out duties that the employee
has been lawfully instructed to perform, the agency may direct that the employee
not be paid remuneration for any day (or part of a day) on which the employee
refuses or fails to carry out those duties.
(3) A direction under subsection (2) is effective to prevent payment
of remuneration to an employee despite the fact that, on any day (or part of a
day) to which the direction relates, the employee performs some (but not all) of
the duties that the employee has been lawfully instructed to perform.
(4) The power conferred by this section is in addition to the power to
take action to deal with the employee's misconduct under Part 7 Division
3.
69—Action where
overpayment or liability to Crown
(1) A public sector agency may make deductions from the remuneration of an
employee, or from an amount payable in respect of a person's employment, in
order to recover an amount overpaid through an administrative error.
(2) If a public sector employee or former public sector employee has
incurred a liability to a public sector agency or the Crown in connection
with the person's employment or former employment as a public sector employee,
an amount that would otherwise be required to be paid to the person in respect
of his or her employment may be applied in or towards satisfaction of the
liability.
(3) Without limiting subsection (1) or (2), a deduction may be made
or an amount may be withheld pending the determination of proceedings relating
to the person's liability to the agency or the Crown.
70—Employment of
Ministerial staff
(1) The Premier may engage a person as a member of a Minister's personal
staff on conditions determined by the Premier.
(2) A person employed under this section is not an employee in the
Public Service.
(3) The number of persons employed under this section must not at any time
exceed 1% of all employees in the Public Service.
(4) Employment as a member of a Minister's personal staff continues while
the Minister continues to be a Minister (whether or not in the same
Ministerial office) unless it sooner expires or is terminated under the
conditions of employment.
(5) The Premier must cause a report to be prepared not less frequently
than once every 12 months setting out with respect to each
Minister—
(a) details of the engagement of persons as members of the Minister's
personal staff under this section (other than those described in previous
reports under this section); and
(b) the number of persons for the time being employed on the Minister's
personal staff under this section; and
(c) the remuneration and other conditions of employment of each person for
the time being employed on the Minister's personal staff under this
section.
(6) A report under subsection (5) must—
(a) be published in the Gazette next issued after its presentation to the
Premier; and
(b) be laid before each House of Parliament within 12 sitting days
after preparation of the report.
71—Appointment of
other special staff
(1) The Minister may engage—
(a) a person as a member of the staff of a Member of Parliament;
or
(b) a person in employment of a class prescribed by the
regulations,
on conditions determined by the Minister.
(2) A person employed under this section is not an employee in the Public
Service.
72—Operation of
Fair Work Act 1994
A determination, direction or decision under this Act affecting
remuneration or conditions of employment is subject to an award, determination
or enterprise agreement in force under the Fair Work
Act 1994.
73—Immunity
relating to official powers or functions
(1) This section applies to—
(a) a public official; and
(b) a public sector employee; and
(c) a person to whom a function or power of a public sector agency, public
sector employee or public official is delegated in accordance with an Act;
and
(d) a person who is, in accordance with an Act, assisting a public sector
employee or public official in the enforcement of the Act.
(2) Subject to this Act, no civil liability attaches to a person to whom
this section applies for an act or omission in the exercise or purported
exercise of official powers or functions.
(3) An action that would, but for subsection (2), lie against a
person lies instead against the Crown, except in the case of a member of a body
corporate or the governing body of a body corporate or a person employed or
appointed by, or a delegate of, a body corporate, in which case it lies instead
against the body corporate.
(4) This section does not prejudice rights of action of the Crown or a
public sector agency in respect of an act or omission of a person not in good
faith.
(5) This section does not apply to a person if section 22 or the
Schedule clause 11 of the Public Corporations Act 1993 applies
to the person.
(6) In this section—
public official means a person appointed by the Governor or a
public sector agency to an office (including to be a member of a body, whether
incorporated or unincorporated).
(1) The Minister may, by instrument in writing, delegate a power or
function under this Act—
(a) to a particular person; or
(b) to the person for the time being performing particular duties or
holding or acting in a specified position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act personally in
a matter; and
(c) is revocable at will.
75—Temporary
exercise of statutory powers
(1) If—
(a) a statutory power or function is exercisable by an employee of a
public sector agency; and
(b) the employee is absent or is for any reason unable to exercise the
power or function,
the power or function may be exercised by the public sector agency or some
other employee nominated by the public sector agency by instrument in
writing.
(2) An apparently genuine document purporting to be a copy of an
instrument of nomination under this section will be accepted in any legal
proceedings, in the absence of proof to the contrary, as proof that the employee
referred to as the nominee was duly authorised to exercise the power or function
referred to in the instrument.
A public sector agency may, but is not required to, designate specified
duties in the employment of the agency as a position with a specified
title.
If the title of a public sector agency or position is altered, a reference
in an Act or statutory instrument to the agency or position under an earlier
title is, unless the contrary intention appears, to be read as a reference to
the agency or position under its new title.
(1) A certificate signed by the Minister certifying—
(a) as to the existence of a specified public sector agency at a specified
time or over a specified period (including a time or period before the
commencement of this Act); or
(b) that a specified person was performing specified duties or the holder
of or acting in a specified office or position in the public sector at a
specified time or over a specified period (including a time or period before the
commencement of this Act),
will be accepted in any legal proceedings as proof of the matter so
certified, in the absence of proof to the contrary.
(2) An apparently genuine document purporting to be a certificate under
this section will be accepted in any legal proceedings as such a certificate, in
the absence of proof to the contrary.
(3) In this section—
public sector agency and the public sector
include a department or administrative unit under a repealed Act.
A notice or document required or authorised by this Act to be given to or
served on a public sector employee may be given to or served on the employee
personally or by post addressed to the employee at the address last notified by
the employee in accordance with the regulations.
(1) The Governor may make such regulations as are contemplated by this
Act, or as are necessary or expedient for the purposes of this Act.
(2) A regulation—
(a) may be of general or limited application and may vary in operation
according to factors stated in the regulation; and
(b) may leave a matter or thing to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister, the
Commissioner or a public sector agency, either generally or in a particular case
or class of cases; and
(c) may exempt (conditionally or unconditionally) a person or class of
persons from specified provisions of this Act; and
(d) may prescribe fines (not exceeding $2 500) for offences against
the regulations.
Schedule
1—Leave and working arrangements
Part 1—Flexible leave and working
arrangements
1—Flexible leave
and working arrangements
(1) The Commissioner may make determinations relating to leave and working
arrangements—
(a) to enable public sector employees to move within the public sector,
gain other work experience and undertake professional development; and
(b) to assist public sector employees to balance work demands and family
and personal pursuits and responsibilities; and
(c) for other purposes.
(2) Without limiting subclause (1), the Commissioner may
determine—
(a) arrangements under which public sector employees may be granted leave
(with pay or without pay), or have an entitlement to be granted leave (with pay
or without pay), including—
(i) study leave and leave for a secondment; and
(ii) parental leave; and
(iii) family carer's leave; and
(iv) leave to fulfill community responsibilities; and
(b) voluntary flexible working arrangements for public sector employees,
including—
(i) part-time employment; and
(ii) flexible working hours; and
(iii) purchased leave; and
(iv) compressed working weeks.
(3) Regulations may be made relating to the matters referred to in
subclauses (1) and (2) and the making of determinations by the Commissioner
relating to those matters.
(4) The regulations and determinations of the Commissioner
—
(a) may modify other provisions of this Schedule relating to hours of
attendance, leave entitlements or the calculation of service and effective
service; and
(b) will have effect according to their terms.
Part 2—Hours of attendance
(1) Subject to this Schedule and any direction of the agency, an employee
of a public sector agency is obliged to attend at the employee's place of
employment throughout the hours fixed by the regulations as ordinary business
hours in relation to the agency.
(2) A public sector agency may, at the request and with the consent of an
employee of the agency, determine that the duties of the employee be performed
under flexible working arrangements, and, in that event, the employee is not
required to attend at his or her place of employment except according to the
basis determined by the agency.
(3) This clause does not apply to a casual employee.
Part 3—Holidays and closure of
offices
(1) Subject to subclause (2), the following days are to be observed
as holidays in the employment of a public sector agency:
(a) all public holidays;
(b) any other days declared by proclamation to be holidays in that
employment.
(2) A public sector agency may require employees of the agency to attend
for duty on a holiday.
(1) The Minister may direct—
(a) that all or any of the workplaces of employees of a public sector
agency be closed; and
(b) that specified classes of employees be not required to work,
on a specified day or days.
(2) If an employee is not required to work on a particular day because of
a direction under subclause (1) then, subject to subclause (3), the
employee is to be taken to have been granted recreation leave on that day or
those days.
(3) An employee who is not required to work on a day by reason of a
direction under subclause (1) must, if the employee would, but for
subclause (2), have been entitled to sick leave on that day, be granted the
sick leave, and, in that event, the employee is to be taken not to have been
granted recreation leave on that day.
(4) An employee who is not required to work on a day by reason of a
direction under subclause (1) may, if the employee would, but for
subclause (2), have been entitled to be absent from the employee's place of
employment under flexible working arrangements adopted by the agency, be absent
on that basis, and, in that event, the employee is to be taken not to have been
granted recreation leave on that day.
Part 4—Recreation leave
(1) Subject to this Schedule, the regulations and any determinations of
the Commissioner, an employee of a public sector agency is entitled to
1⅔ days recreation leave for each completed month of the employee's
service.
(2) A public sector agency may, subject to any determinations of the
Commissioner, increase the entitlement to recreation leave of a particular
employee or employees of a particular class.
(3) Recreation leave must be granted by a public sector agency in
accordance with the regulations and any determinations of the
Commissioner.
(4) Recreation leave may, subject to the regulations and any
determinations of the Commissioner, be taken in anticipation of the leave
accruing to the employee.
(5) If an employee who is entitled to recreation leave dies or ceases for
any reason to be an employee, the employee, or the employee's personal
representative, as the case requires, must, unless the agency otherwise
determines, be paid a sum calculated in accordance with the determinations of
the Commissioner as being the monetary value of the leave.
(6) If an employee of a public sector agency has taken recreation leave
before the entitlement to the leave accrues to the employee and the employee
ceases for any reason to be an employee then, unless the agency otherwise
determines, a sum equal to the sum paid to the employee in respect of that leave
is payable to the public sector agency as a debt by the employee.
(7) If an employee of a public sector agency has been given a direction to
take accrued recreation leave within a specified period but has not done
so, the public sector agency may give the employee written notice cancelling the
entitlement of the employee to specified accrued recreation leave.
(8) This clause does not apply to a casual employee.
Part 5—Sick leave
(1) An employee of a public sector agency is, subject to this clause and
the regulations, entitled to take sick leave not exceeding the amount of
sick leave standing to the credit of the employee.
(2) Subject to this Schedule, the regulations and any determinations of
the Commissioner, an employee must be credited with 1 days sick leave
for each completed month of the employee's service.
(3) The agency may, subject to any determinations of the Commissioner, in
appropriate cases, increase the entitlement to sick leave of a particular
employee or employees of a particular class.
(4) Sick leave may, subject to the regulations and any determinations of
the Commissioner, be taken in anticipation of the leave accruing to the
employee.
(5) The agency may, subject to any determinations of the Commissioner,
approve a scheme in relation to a class of employees under which this clause
will apply in a modified way in relation to employees of that class who
individually apply to come under the scheme.
(6) If an employee of a public sector agency has taken
sick leave before the entitlement to the leave accrues to the employee and
the employee ceases for any reason to be an employee then, unless the agency
otherwise determines, a sum equal to the sum paid to the employee in respect of
that leave is payable to the public sector agency as a debt by the
employee.
(7) This clause does not apply to a casual employee.
Part 6—Long service leave
(1) Subject to this Schedule, the regulations and any determinations of
the Commissioner, an employee will accrue an entitlement to long service leave
at the rate of—
(a) 9 calendar days for each completed year of effective service for
the first 15 years of service; and
(b) 15 calendar days for each subsequent completed year of effective
service.
(2) Despite subclause (1)—
(a) an employee does not become entitled to take long service leave, or
receive a payment in lieu of long service leave, before completing 7 years
of effective service; and
(b) the Commissioner may make a determination under which accrual of the
entitlement referred to in subclause (1) will be calculated instead as a
number of working hours long service leave for each completed month of effective
service and an employee will be granted long service leave as a number of
working hours.
(3) A public sector agency may, subject to any determinations of the
Commissioner, increase the entitlement to long service leave of a particular
employee or employees of a particular class.
(4) Long service leave must be granted by a public sector agency in
accordance with the regulations and any determinations of the
Commissioner.
(5) In this clause—
effective service of an employee of a public sector agency
means the period of the employee's continuous service in the employment of the
public sector agency.
8—Salary or wages
and allowances while on long service leave
(1) Subject to this clause, the regulations and any determinations of the
Commissioner, the salary or wages to which an employee is entitled during long
service leave is the salary or wages appropriate to the employee's remuneration
level during that leave.
(2) An employee is, while on long service leave, entitled to receive, in
addition to salary or wages, the allowances (if any) determined by the
Commissioner.
9—Payment in lieu
of long service leave
(1) The Minister may, on application by a chief executive, and a public
sector agency may, on application by an employee of the agency, authorise that
the chief executive or employee be paid, in lieu of a period of long service
leave to which the person has accrued an entitlement, an amount equal to the
salary or wages and allowances (if any) that the person would have been entitled
to receive during such a period of leave.
(2) If an employee of a public sector agency who is entitled to long
service leave dies or ceases for any reason to be an employee of the agency,
then—
(a) in the case of death—the employee's personal representative;
or
(b) in the case of cessation of service for any other reason—the
employee,
must be paid the salary or wages that would have been payable if the long
service leave had commenced on the day of cessation of service.
(3) In determining a sum payable under this clause, no allowance may be
made for an increase in salary or wages granted or payable after the date of the
payment.
Part 7—Adjustment to leave rights based on prior
service
10—Adjustment to
leave rights based on prior service
If a person becomes an employee of a public sector agency within
3 months after ceasing to be—
(a) an officer or employee of the Crown in right of this State, the
Commonwealth or another State or a Territory of the Commonwealth; or
(b) an officer or employee of a prescribed class,
then, for the purpose of determining the person's entitlement to
recreation leave, sick leave or long service leave, the period of the
person's service in that capacity is, to the extent determined by the
Commissioner and subject to the conditions (if any) imposed by the Commissioner,
to be counted as service or effective service for the purposes of this
Act.
Part 8—Payments on death
11—Payment in
respect of leave on death
Despite any other provisions of this Schedule, a public sector agency may,
if of the opinion that it is appropriate to do so, direct that a sum payable in
respect of leave on the death of an employee of the agency be paid to dependants
of the employee and not to the personal representative.
Schedule
2—Public Sector Grievance Review Commission
1—Establishment
and membership of Commission
(1) There is to be a Public Sector Grievance Review Commission.
(2) The Commission is to consist of a presiding commissioner appointed by
the Governor and assistant commissioners appointed by the Governor.
(3) A commissioner is to be appointed for a term not exceeding
5 years and is, at the end of a term of appointment, eligible for
reappointment.
(4) A commissioner is to be appointed on conditions determined by the
Governor.
(5) A commissioner's appointment may be terminated by the Governor on the
ground that the commissioner—
(a) has been guilty of misconduct; or
(b) has been convicted of an offence punishable by imprisonment;
or
(c) has become bankrupt or has applied to take the benefit of a law for
the relief of insolvent debtors; or
(d) has, because of mental or physical incapacity, failed to carry out
duties of the commissioner satisfactorily; or
(e) is incompetent or has neglected the duties of the position.
(6) A commissioner may resign by notice in writing to the
Minister.
2—Constitution of
Commission for proceedings
(1) The Commission will, for the purposes of hearing and determining
proceedings, be constituted of the presiding commissioner or, at the direction
of the presiding commissioner, an assistant commissioner.
(2) Commissioners may sit contemporaneously to hear separate
proceedings.
(3) A person who ceases to hold office as a commissioner may nevertheless
continue to act in the office for the purpose of completing the hearing and
determination of proceedings part-heard by the person when he or she ceased to
hold office.
(1) A commissioner may—
(a) by notice in writing—
(i) require a public sector employee or former public sector employee to
appear at a specified time and place for examination; or
(ii) require a public sector employee or former public sector employee to
produce a specified record or object that is relevant to the subject matter of
the review; and
(b) require a public sector employee or former public sector employee to
answer truthfully questions that are relevant to the subject matter of the
review.
(2) A public sector employee who fails to comply with a requirement under
this section or hinders the exercise of powers under this section is guilty of
misconduct (for the purposes of this and any other Act).
(3) A former public sector employee who fails to comply with a requirement
under this section or hinders the exercise of powers under this section is
guilty of an offence.
Maximum penalty: $5 000.
(4) A person is not obliged to answer a question or to produce a record or
object (other than a record or object of the Government) under this section if
to do so would tend to incriminate the person of an offence.
Schedule
3—Repeal and transitional provisions
Part 1—Repeal of Public Sector Management
Act 1995
The Public Sector Management Act 1995 is repealed.
Part 2—Transitional provisions
2—Administrative
units continued as departments or attached offices
(1) At the commencement of this Act, the Public Service will consist of
the administrative units continued as departments or attached offices by
proclamation.
(2) The Governor may make a proclamation for the purposes of
subclause (1).
(3) A proclamation under this clause may assign the same or a new title to
a department or attached office and, in the case of an attached office, attach
the office to a department or departments.
3—Public
Service employees continue in same employment
(1) A person (including a chief executive) employed in an administrative
unit of the Public Service under the Public Sector Management
Act 1995 immediately before the commencement of this Act continues to
be employed in the same administrative unit with the same duties, subject to
this Act.
(2) A person (including a chief executive but excluding an executive
within the meaning of the Public Sector Management Act 1995)
employed under a contract under the Public Sector Management
Act 1995 immediately before the commencement of this Act continues to
be employed on the same contractual terms, subject to this Act.
(3) The following provisions apply to an employee who was an executive
within the meaning of the Public Sector Management Act 1995
immediately before the commencement of this clause while the person remains
employed in the public sector on a basis that is determined by the Commissioner
to result in the employee being an executive employee:
(a) despite Part 7 Division 2, the conditions of the person's employment
as an executive employee need not be made subject to a contract under that
Division;
(b) if the employee's conditions of employment were not, immediately
before the commencement of this clause, subject to a contract under Part 7
Division 1 of the Public Sector Management Act 1995—
(i) Part 7 Division 2 of this Act does not apply to the employee unless
the employee becomes party to a contract of the kind required under Part 7
Division 2 of this Act; and
(ii) until the employee becomes party to such a contract, the employee may
resign by not less than 3 months notice in writing to the agency (unless
notice of a shorter period is accepted by the agency);
(c) if, immediately before the commencement of this clause, the employee's
conditions of employment were subject to a contract under Part 7
Division 1 of the Public Sector Management Act 1995 and the
employee was, if not reappointed, entitled to some other appointment in the
Public Service on an ongoing basis—
(i) the employee continues to be employed on the same contractual terms
and to have that same entitlement, subject to this Act; and
(ii) Part 7 Division 2 of this Act does not apply to the employee unless
the employee becomes party to a contract of the kind required under Part 7
Division 2 of this Act; and
(iii) until the employee becomes party to such a contract, the employee
may resign by not less than 3 months notice in writing to the agency
(unless notice of a shorter period is accepted by the agency);
(d) if, immediately before the commencement of this clause, the employee's
conditions of employment were subject to a contract under Part 7 Division 1 of
the Public Sector Management Act 1995 (the former Act
contract) and the employee was, if not reappointed, entitled to some
other appointment in the Public Service on a contractual basis—
(i) the employee continues to be employed on the same contractual terms
and to have that same entitlement, subject to this Act; and
(ii) Part 7 Division 2 of this Act does not apply to the employee for the
balance of the term of the former Act contract and for the term of the contract
relating to any such other appointment (in the event of such other appointment
having been made) unless the employee becomes party to a contract of the kind
required under Part 7 Division 2 of this Act;
(e) if, immediately before the commencement of this clause, the employee's
conditions of employment were subject to a contract under Part 7
Division 1 of the Public Sector Management Act 1995 (the
former Act contract) and the employee was not, if not reappointed,
entitled to some other appointment in the Public Service—
(i) the employee continues to be employed on the same contractual terms,
subject to this Act; and
(ii) Part 7 Division 2 of this Act does not apply to the employee for the
balance of the term of the former Act contract unless the employee becomes party
to a contract of the kind required under Part 7 Division 2 of this
Act;
(f) in the circumstances described in paragraphs (d) and (e), until
the employee becomes party to a contract of the kind required under Part 7
Division 2 of this Act, the following provisions apply:
A—Conditions of executive's
employment
(1) The employment of a person as an executive employee of a public sector
agency is to be subject to a contract made between the employee and the
agency.
(2) The contract must specify—
(a) that the employee is employed for a term not exceeding 5 years
specified in the contract; and
(b) that the employee is to meet performance objectives as set from time
to time by the agency.
(3) Subject to the regulations, the contract may make any other provision
considered appropriate, including provision excluding or modifying a provision
of this Act.
(4) The decision whether to engage the employee for a further term must be
made and notified to the employee not less than 3 months before the end of
the employee's current term of employment.
B—Resignation of executives
An executive employee of a public sector agency may resign by not less than
3 months notice in writing to the agency (unless notice of a shorter period
is accepted by the agency).
C—Termination of executive's employment by
notice
(1) A public sector agency may, by notice in writing, terminate the
employment of an executive employee of the agency without specifying any
grounds.
(2) Subject to the contract relating to the employee's employment, if the
employee's employment is terminated by the agency by notice under
subclause (1), the employee is entitled to a termination payment of an
amount equal to 3 months remuneration (at the rate determined for the
purpose under the employee's contract) for each uncompleted year of the
employee's employment (with a pro rata adjustment in relation to part of a
year) up to a maximum of 12 months remuneration.
(3) The period of notice under subclause (1) must be at least
3 months except where the employee is compensated by payment of an amount
equal to the remuneration that would have been payable during the balance of the
period of 3 months (at the rate determined for the purpose under the
employee's contract).
(4) If the employee's employment is terminated by notice under
subclause (1) and the employee was, immediately before the commencement of
this clause, entitled under section 36(3)(a) of the Public Sector
Management Act 1995 to some other appointment in the
Public Service in the event of termination of the employee's employment by
notice under section 36(2) of the Public Sector Management
Act 1995—
(a) subclauses (2) and (3) do not apply; and
(b) section 36(3) and (5) of the Public Sector Management
Act 1995 apply as if those provisions continued in force.
(5) The power conferred by this clause is in addition to the power to
terminate an executive employee's employment under section 53 of this
Act.
A person employed on probation under the Public Sector Management
Act 1995 immediately before the commencement of this Act continues to
be employed on probation subject to this Act.
The remuneration levels of positions occupied by employees in the
Public Service under the Public Sector Management Act 1995
immediately before the commencement of this Act continue as the remuneration
levels of the employees subject to this Act.
Subject to this Act, existing and accruing rights in respect of leave of
employees continued in employment under this Act remain in full force and
effect.
The person appointed as Commissioner for Public Employment under the
Public Sector Management Act 1995 immediately before the
commencement of this Act continues as the Commissioner, on the same conditions
of appointment, subject to this Act.
8—Equal
employment opportunity programs
An equal employment opportunity program under section 67 of the
Public Sector Management Act 1995 immediately before the
commencement of this Act continues as an employment opportunity program subject
to this Act.
9—Determinations
and decisions continued
A determination or decision made under a provision of the Public Sector
Management Act 1995 and in force under the Public Sector Management
Act 1995 immediately before the commencement of this Act continues in
force subject to this Act as if made under the corresponding provision of this
Act.