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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Government Sector Employment Legislation
Amendment Bill 2016
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The objects of this Bill are as follows:
(a) to align employment arrangements for senior executives in the NSW Health Service, the
NSW Police Force and the Transport Service of NSW generally with the new employment
arrangements for Public Service senior executives under the Government Sector
Employment Act 2013 (the GSE Act),
(b) to align employment arrangements for employees of the NSW Police Force who are not
police officers (ie administrative employees) generally with the new employment
arrangements for non-executive employees of the Public Service under the GSE Act,
(c) to amend the GSE Act to make further provision with respect to misconduct and other
matters,
(d) to make amendments of a minor or consequential nature to certain other legislation.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act.
b2015-008.d23
Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Explanatory note
Schedule 1 Amendment of Government Sector Employment
Act 2013 No 40
The Government Sector Employment Act 2013 is amended as follows:
(a) to enable Public Service, NSW Health Service, NSW Police Force or Transport Service
senior executives whose employment has been terminated for making a public interest
disclosure to be reinstated to their former roles (or to be re-employed in a government sector
agency if reinstatement to the former role is impracticable),
(b) to provide for the Secretary of the Treasury (or the Secretary's nominee) to be a member of
the Public Service Commission Advisory Board,
(c) to enable the transfer and assignment of Public Service senior executives to the NSW
Health Service, the NSW Police Force (other than as police officers) or the Transport
Service (noting that other amendments made by the proposed Act provide for the transfer
of senior executives from those other services to the Public Service),
(d) to clarify provisions relating to the termination of employment of Public Service senior
executives and the payment of compensation for termination of employment,
(e) to clarify provisions relating to the transfer or secondment of government sector employees
between agencies and to other bodies,
(f) to extend the misconduct provisions of the GSE Act to findings of guilt for offences in
addition to convictions and to interstate offences,
(g) to expressly exclude statutory Crown law officers from provisions of the GSE Act that
enable the summary removal of those statutory officers from office,
(h) to provide that the Public Service Commissioner or the Secretary of the Department of
Premier and Cabinet may appoint persons to act on behalf of the Commissioner or the
Secretary for the purposes of conducting inquiries into the administration or management
of a government sector agency,
(i) to make other amendments of a minor or consequential nature.
Schedule 2 Amendment of Health Services Act 1997 No 154
The Health Services Act 1997 is amended as follows:
(a) to align employment arrangements for senior executives in the NSW Health Service
generally with the new employment arrangements for senior executives in the Public
Service under the GSE Act,
(b) to ensure that existing Health Service senior executives will be employed as senior
executives under the new employment arrangements and will retain their existing
remuneration packages and allowances,
(c) to transfer employer functions for chief executives of local health districts and specialty
network governed health corporations from the Secretary of the Ministry of Health to the
board of those districts and specialty networks and transfer the employer functions for
senior executives in those districts and specialty networks from that Secretary to the chief
executives of those districts and specialty networks,
(d) to enable the Secretary of the Ministry of Health to give directions to statutory health
organisations, and to attach conditions to the payment of subsidies to such organisations,
that relate to the employment of NSW Health Service senior executives,
(e) to make other amendments of a minor or consequential nature.
Page 2
Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Explanatory note
Schedule 3 Amendment of Police Act 1990 No 47
The Police Act 1990 is amended as follows:
(a) to align employment arrangements for the Commissioner of Police and senior police and
administrative executives in the NSW Police Force generally with the new employment
arrangements for senior executives in the Public Service under the GSE Act,
(b) to align employment arrangements for administrative employees of the NSW Police Force
generally with the new employment arrangements for Public Service non-executive
employees under the GSE Act,
(c) to provide that existing police senior executives will be employed as NSW Police Force
senior executives under the new employment arrangements and to include transitional
arrangements for existing senior executives or senior managers who are administrative
employees.
Schedule 4 Amendment of Transport Administration Act
1988 No 109
The Transport Administration Act 1988 is amended as follows:
(a) to provide for the following 3 classifications of employment in the Transport Service:
(i) Transport Service senior executives (who are Transport Service employees
employed in a Public Service senior executive band),
(ii) Transport Service senior managers (who are Transport Service employees
designated by the Transport Secretary and whose remuneration level is generally less
than the level for Transport Service senior executives but higher than that for clerk
(grade 12) in the Public Service),
(iii) Transport Service non-executive employees (who are Transport Service employees
other than senior executives or senior managers),
(b) to align employment arrangements for Transport Service senior executives generally with
the new employment arrangements for senior executives in the Public Service under the
GSE Act,
(c) to continue the current employment arrangements for Transport Service senior managers
and non-executive employees,
(d) to include transitional arrangements for existing Transport Service employees.
Schedule 5 Amendment of other legislation
Schedule 5.1 amends the Annual Reports (Departments) Act 1985 to provide that the annual
report of a Public Service agency that is related to a Department under the GSE Act may be
included in that Department's annual report.
Schedule 5.2 amends the Constitution Act 1902:
(a) to make it clear that Parliamentary officers and staff may continue to be appointed and
employed outside of the GSE Act, and
(b) to provide that when a Public Service agency is abolished by an administrative
arrangements order under Part 7 of the Act, the Public Service agency to which the parts of
the abolished agency are transferred is taken to be the successor of the abolished agency.
Schedule 5.3 amends the Government Sector Employment Regulation 2014 to provide that
allowances for Public Service senior executives are subject to any determination by the Public
Service Commissioner as to the circumstances in which such allowances may be paid and the
amount of such allowances.
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Explanatory note
Schedule 5.4 amends the Statutory and Other Offices Remuneration Act 1975 to enable the
Statutory and Other Offices Remuneration Tribunal:
(a) to determine remuneration packages for NSW Health Service senior executives, NSW
Police Force senior executives (including the Commissioner of Police) and Transport
Service senior executives in addition to existing arrangements relating to Public Service
senior executives, and
(b) to fix remuneration packages for particular executives or classes of executives, or for
particular roles, offices or positions, that are higher than the remuneration range otherwise
determined for the band in which the executives concerned are employed, and
(c) to make a determination in relation to a particular role, office or position even though no
person is assigned to the role, or holds the office or position, for the time being.
Schedule 5.5 amends the Sydney Cricket and Sports Ground Act 1978:
(a) to authorise the Sydney Cricket and Sports Ground Trust to employ its own staff (including
a chief executive officer) outside of the GSE Act, and
(b) to enable the Trust to delegate its functions.
Schedule 5.6 amends the Transport Administration (Staff) Regulation 2012 to remove a provision
that currently enables the Transport Secretary to create groups of staff in the Transport Service
(the same provision is to be inserted into the Transport Administration Act 1988 by Schedule 4 to
the proposed Act).
Page 4
First print
New South Wales
Government Sector Employment Legislation
Amendment Bill 2016
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40 3
Schedule 2 Amendment of Health Services Act 1997 No 154 14
Schedule 3 Amendment of Police Act 1990 No 47 26
Schedule 4 Amendment of Transport Administration Act 1988 No 109 47
Schedule 5 Amendment of other legislation 59
b2015-008.d23
New South Wales
Government Sector Employment Legislation
Amendment Bill 2016
No , 2016
A Bill for
An Act to amend the Government Sector Employment Act 2013, the Health Services Act 1997, the
Police Act 1990, the Transport Administration Act 1988 and other legislation in relation to senior
executive and other employment in the government sector.
Government Sector Employment Legislation Amendment Bill 2016 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Government Sector Employment Legislation Amendment Act 2016. 3
2 Commencement 4
(1) This Act commences on 1 January 2017, except as provided by subsections (2) 5
and (3). 6
(2) The Governor may, by proclamation made before 1 January 2017, appoint a day or 7
days (whether before or after that date) as the date on which specified provisions of 8
this Act commence. 9
(3) However, any such proclamation may not appoint a date earlier than 1 January 2017 10
for the commencement of Schedule 2, 3, 4, 5.4 [1]-[3] or 5.6. 11
Page 2
Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
Schedule 1 Amendment of Government Sector Employment 1
Act 2013 No 40 2
[1] Section 3 Definitions 3
Omit "employed in a" from the definition of Public Service employee in section 3 (1). 4
Insert instead "employed, or on secondment, in the". 5
[2] Section 5 Persons to whom Act does not apply 6
Omit ", or of the Inspector of the Independent Commission Against Corruption," from 7
section 5 (1) (d). 8
[3] Section 12 Government sector employment rules 9
Insert "or any other" after "under this" in section 12 (1). 10
[4] Section 13 Directions by Commissioner to heads of government sector agencies 11
Insert after section 13 (1): 12
(1A) If any such direction is given to the Secretary of a Department, the direction 13
may extend to the Public Service senior executives employed in a Public 14
Service executive agency related to the Department. 15
[5] Section 16 Provision of reports and information by agencies 16
Insert after section 16 (1): 17
(1A) If the Secretary of a Department is required to provide any such report, the 18
requirement may extend to the Public Service senior executives employed in 19
a Public Service executive agency related to the Department. 20
[6] Section 18 Establishment and members of Advisory Board 21
Insert after section 18 (2) (d): 22
(e) the Secretary of the Treasury or a senior employee of the Treasury 23
nominated by the Secretary. 24
[7] Section 23 Secretaries of Departments 25
Insert after section 23 (5): 26
(6) The Minister may, subject to this and any other Act or law, exercise on behalf 27
of the Government of New South Wales the employer functions of the 28
Government (as referred to in section 26 (3)) in relation to the Secretary of a 29
Department. 30
[8] Section 26 Employer functions of Secretaries of Departments 31
Omit section 26 (2). 32
[9] Section 28 Heads of agencies other than Departments 33
Omit section 28 (6). Insert instead: 34
(6) Appointments to an office of head established by this section are, subject to 35
subsection (6A), to be made: 36
(a) in the case of a Public Service executive agency related to a 37
Department--by the Secretary of the Department, or 38
(b) in the case of a separate Public Service agency--by the Minister. 39
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
(6A) If Schedule 1 provides that some other person exercises the employer 1
functions of the Government of New South Wales in relation to the head: 2
(a) appointments to the office of the head are to be made by that other 3
person, and 4
(b) that other person may delegate to an authorised person any of those 5
employer functions (other than the power to appoint a person to the 6
office of head of the agency concerned or to terminate the office 7
holder's employment). 8
For the purposes of this subsection, authorised person means the holder of a 9
statutory office, a person employed in the government sector or a person 10
authorised by the regulations. 11
[10] Section 35 Minister may determine bands in which senior executives to be employed 12
Insert at the end of the section: 13
Note. The senior executive bands determination also applies under relevant legislation 14
relating to the employment of Transport Service senior executives, Police Force senior 15
executives and Health Service senior executives. 16
[11] Section 36 Government sector employment rules relating to senior executives 17
Insert "(including temporary assignment)" after "assignment" in section 36 (d). 18
[12] Section 36, note 19
Insert at the end of the section: 20
Note. The legislation under which Police Force senior executives, Health Service 21
senior executives and Transport Service senior executives are employed also provides 22
for the making of government sector employment rules under section 12 of this Act 23
relating to the employment of those executives. 24
[13] Section 38 Assignment of senior executives (other than heads of agencies) to roles 25
in bands across government sector 26
Omit "within the Public Service" from section 38 (4). 27
[14] Section 38 (4A) 28
Insert after section 38 (4): 29
(4A) A Public Service senior executive employed in a Public Service agency may 30
be assigned under this section to a role in another Public Service agency: 31
(a) by an agreement between the current employer of the executive and the 32
person who will, on the assignment, be the employer of the executive, or 33
(b) by the Commissioner. 34
In that case, the executive becomes an employee of the other agency. 35
[15] Section 38 (7A) 36
Insert after section 38 (7): 37
(7A) A Public Service senior executive may: 38
(a) be transferred by the employer of the executive to the NSW Health 39
Service (with the agreement of the Secretary of the Ministry of Health) 40
and assigned to a role by that Secretary in the band in which the 41
executive is employed, or 42
Note. A Public Service senior executive may not be assigned to the role of chief 43
executive of a local health district or specialty network governed health 44
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
corporation except with the concurrence of the board of the organisation 1
concerned--see section 121D (11) of the Health Services Act 1997. 2
(b) be transferred by the employer of the executive to the NSW Police 3
Force (with the agreement of the Commissioner of Police) and assigned 4
to a role (other than as a police officer) by the Commissioner of Police 5
in the band in which the executive is employed, or 6
(c) be transferred by the employer of the executive to the Transport Service 7
of New South Wales (with the agreement of the Secretary of the 8
Department of Transport) and assigned to a role by that Secretary in the 9
band in which the executive is employed. 10
[16] Section 38 (8) 11
Insert "under this section (including when transferred under subsection (7A))" after "a 12
different role". 13
[17] Section 39 Contract of employment of senior executives 14
Omit section 39 (4) (b). 15
[18] Section 39 (5) 16
Omit the subsection. Insert instead: 17
(5) The contract of employment of a Public Service senior executive does not 18
limit, and is not terminated or otherwise affected by: 19
(a) the transfer of the executive under section 38 (7A) to the NSW Health 20
Service, the NSW Police Force or the Transport Service of New South 21
Wales, or 22
(b) the assignment of the executive to a different role or any other change 23
to the title, place of work or duties of the executive. 24
[19] Section 39 (6) 25
Omit "varied at any time by further agreement". 26
Insert instead "varied at any time in accordance with the contract or by further agreement". 27
[20] Section 39 (7) 28
Insert after section 39 (6): 29
(7) The regulations may make provision with respect to the compensation (if any) 30
to which a Public Service senior executive whose employment is terminated is 31
entitled under his or her contract of employment. 32
[21] Section 40 Remuneration, benefits and allowances for senior executives 33
Omit section 40 (2). Insert instead: 34
(2) The kinds and value of employment benefits and the allowances for a Public 35
Service senior executive are to be determined in accordance with the 36
regulations or (subject to the regulations) by the Commissioner. 37
[22] Section 41 Termination of employment of senior executives 38
Insert at the end of section 41 (1): 39
Note. The employment of a senior executive may also be terminated for unsatisfactory 40
performance under section 68 or for misconduct under section 69. 41
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
[23] Section 41 (2) 1
Omit "so terminated is entitled to the compensation". 2
Insert instead "terminated under this section is entitled to such compensation (if any) as may 3
be". 4
[24] Section 41 (2) 5
Insert "other than superannuation entitlements" after "for the termination of employment". 6
[25] Section 41 (3) 7
Omit "the compensation relates,". Insert "any such compensation relates". 8
[26] Sections 41 (5) (definition of "public sector"), 64 (5) (b), 71 (4), 72 (3) and 78 (8) 9
(definition of "public sector") 10
Omit "any service excluded by section 5" wherever occurring. 11
Insert instead "any service in which persons excluded from this Act by section 5 are 12
employed". 13
[27] Section 44 Conditions of engagement 14
Omit the section. 15
[28] Section 47 Termination of employment 16
Omit "condition of engagement as an employee imposed under section 44" from 17
section 47 (1) (a). 18
Insert instead "condition of engagement as an employee under section 54". 19
[29] Section 47 (1) (f) 20
Omit "duties to which the employee has been duly assigned". 21
Insert instead "the duties of the role assigned to the employee". 22
[30] Section 47 (1) (i) 23
Omit the paragraph. 24
[31] Section 48 Matters that government sector employment rules may deal with 25
Omit section 48 (g) and (h). Insert instead: 26
(g) the assignment of any such employees to roles (including temporary 27
assignment to another role), 28
[32] Section 54 29
Renumber section 54 as section 54A and insert before that renumbered section: 30
54 Conditions of engagement 31
(1) The engagement of a Public Service employee may be made subject to 32
conditions notified to the employee on his or her engagement. 33
(2) The conditions may include (without limitation) conditions dealing with any 34
of the following matters: 35
(a) probation, 36
(b) citizenship or residency requirements, 37
(c) formal qualifications, 38
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
(d) security and other clearances, 1
(e) health clearances. 2
(3) The imposition of conditions of engagement is subject to the government 3
sector employment rules. 4
(4) The contract of employment of a Public Service senior executive may include 5
conditions of engagement. 6
[33] Section 56 7
Omit the section. Insert instead: 8
56 Retirement on medical grounds 9
The person who exercises employer functions in relation to a Public Service 10
employee may retire the employee if: 11
(a) the employee is found to be unfit to perform or incapable of performing 12
the duties of his or her employment, and 13
(b) the employee's unfitness or incapacity: 14
(i) appears likely to be of a permanent nature, and 15
(ii) has not arisen from actual misconduct on the part of the 16
employee, or from causes within the employee's control. 17
[34] Section 59 Construction of references to employees etc of statutory bodies or 18
officers in other Acts, instruments and contracts 19
Insert "or statutory officer" after "statutory body" wherever occurring. 20
[35] Section 59 (1) 21
Omit "its functions" wherever occurring. Insert instead "functions". 22
[36] Section 59 (1) (b) 23
Omit "its capacity as". Insert instead "the capacity of". 24
[37] Section 64 Employee transfers and secondments between government sector 25
agencies 26
Omit section 64 (1), but not the note to that subsection. Insert instead: 27
(1) The government sector employment rules may deal with the transfer or 28
secondment of employees between government sector agencies (whether or 29
not at the request of the employees). 30
[38] Section 64 (2) and (4) 31
Insert "or secondment" after "transfer" wherever occurring. 32
[39] Section 64 (3) 33
Insert "or seconded" after "transferred". 34
[40] Section 64 (4A) and (4B) 35
Insert after section 64 (4): 36
(4A) The government sector employment rules may make provision with respect to 37
the recognition of service for the accrual of leave and to other matters 38
consequent on the transfer or secondment of employees between government 39
sector agencies. 40
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
(4B) This section does not apply to the transfer or secondment of an employee to or 1
from that part of the NSW Police Force comprising police officers. 2
[41] Section 64 (5) (b) 3
Insert "or secondments" after "transfers". 4
[42] Section 66 Secondments of staff between government sector agencies and other 5
relevant bodies 6
Omit section 66 (1) (a). 7
[43] Section 66 (1) (b) and (c) and (3) 8
Omit "temporarily assigned" wherever occurring. Insert instead "seconded". 9
[44] Section 66 (1) and (3) (b) 10
Omit "assignment" wherever occurring. Insert instead "secondment". 11
[45] Section 66 (2), (3) (a) and (5) 12
Omit "temporary assignment" wherever occurring. Insert instead "secondment". 13
[46] Section 66 (2) 14
Omit "between the heads of the government sector agencies or". 15
[47] Section 66 (4) 16
Omit "temporary assignments". Insert instead "secondments". 17
[48] Section 66 (6) 18
Omit paragraph (e) of the definition of non-government sector body. 19
[49] Sections 68 (2) and 69 (4) 20
Omit "head of the agency" wherever occurring. 21
Insert instead "person who exercises employer functions in relation to the employee". 22
[50] Section 68 Unsatisfactory performance of government sector employees 23
Insert after section 68 (2): 24
(3) This section does not apply to that part of the NSW Police Force comprising 25
police officers or to any employees of a government sector agency excluded 26
from this section by the regulations. 27
[51] Section 69 Misconduct--Public Service and other prescribed government sector 28
employees 29
Insert after paragraph (a) of the definition of government sector agency in section 69 (1): 30
(a1) that part of the NSW Police Force comprising administrative employees 31
under the Police Act 1990, and 32
[52] Section 69 (1), definition of "misconduct" 33
Insert after paragraph (c) of the definition: 34
(d) a conviction or finding of guilt for a serious offence. 35
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
[53] Section 69 (1), definition of "serious offence" 1
Omit the definition. Insert instead: 2
serious offence means an offence punishable by imprisonment for life or for 3
12 months or more (including an offence committed outside New South Wales 4
that would be an offence so punishable if committed in New South Wales). 5
[54] Section 69 (2) 6
Omit the subsection. Insert instead: 7
(2) The person who exercises employer functions in relation to an employee of a 8
government sector agency is responsible for dealing with any misconduct by 9
that employee in accordance with this section. 10
[55] Section 69 (3) (a) 11
Omit "or the conviction of any such employees for a serious offence". 12
[56] Section 69 (4) 13
Omit "or any such employee is found to have been convicted of a serious offence". 14
[57] Section 69 (6) 15
Omit the subsection. Insert instead: 16
(6) This section does not apply to that part of the NSW Police Force comprising 17
police officers or to any employees of a government sector agency excluded 18
from this section by the regulations. 19
[58] Section 69, note 20
Insert "also" after "See". 21
[59] Section 70 Suspension of employees from duty pending decision in relation to 22
misconduct, criminal charge or corrupt conduct 23
Insert after paragraph (a) of the definition of government sector agency in section 70 (1): 24
(a1) that part of the NSW Police Force comprising administrative employees 25
under the Police Act 1990, and 26
[60] Section 70 (2) (a) 27
Omit "head of the agency". 28
Insert instead "person who exercises employer functions in relation to the employee (the 29
employer)". 30
[61] Section 70 (2) 31
Omit "head of the agency" where secondly and thirdly occurring. 32
Insert instead "employer". 33
[62] Section 70 (3)-(6) 34
Omit "head of the agency" wherever occurring. Insert instead "employer". 35
[63] Section 76 Statutory officers to whom Part does not apply 36
Omit section 76 (h). Insert instead: 37
(h) the Solicitor General, the Crown Advocate, the Director of Public 38
Prosecutions, a Deputy Director of Public Prosecutions, the Solicitor for 39
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
Public Prosecutions, the Senior Public Defender, a Deputy Senior 1
Public Defender, a Public Defender, the Senior Crown Prosecutor, a 2
Deputy Senior Crown Prosecutor or a Crown Prosecutor, or 3
[64] Section 78 Compensation for office holder following removal 4
Insert "(if any) paid under this section" after "the compensation" in section 78 (7). 5
[65] Section 83 Inquiries by Public Service Commissioner or DPC Secretary into 6
government sector agencies 7
Omit ", or a person authorised by the Commissioner or DPC Secretary," from 8
section 83 (2). 9
[66] Section 83 (2A) 10
Insert after section 83 (2): 11
(2A) The Commissioner or DPC Secretary may appoint a person to act on behalf of 12
the Commissioner or DPC Secretary for the purposes of conducting an inquiry 13
under this section. Any such person is to act under the direction of the 14
Commissioner or DPC Secretary and has the functions conferred on the 15
Commissioner or DPC Secretary under this section. 16
[67] Section 83 (3) 17
Omit "or on behalf of" wherever occurring. 18
[68] Section 83 (4) 19
Omit ", or a person authorised by the Commissioner or DPC Secretary,". 20
[69] Section 83 (4) (e) 21
Omit ", Secretary or authorised person". Insert instead "or DPC Secretary". 22
[70] Section 83 (6) 23
Omit "(or authorise the conduct of)". 24
[71] Section 83A 25
Insert after section 83: 26
83A Reinstatement of senior executives whose employment has been terminated 27
for making public interest disclosure 28
(1) This section applies in relation to a person whose employment as a senior 29
executive has been terminated by the person's employer (the former 30
employer). 31
(2) If the Commissioner is satisfied that: 32
(a) the person's employment was terminated substantially in reprisal for the 33
person making a public interest disclosure, and 34
(b) the person wishes to be reinstated or otherwise re-employed as a senior 35
executive, 36
the person may be reinstated by the former employer to the role assigned to the 37
person immediately before the termination of employment (the former role). 38
(3) If reinstatement to the person's former role is considered to be impracticable, 39
the person may be re-employed (whether in the same government sector 40
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
agency in which the former role was located or in another government sector 1
agency) in some other similar or appropriate role: 2
(a) that is within the same band (or, in the case of a senior executive who is 3
not employed in a band, within the same level of work) as the former 4
role, and 5
(b) that has a level of remuneration no less than the remuneration payable 6
to the person in the former role. 7
(4) The Commissioner may give a direction under section 13 to the head of a 8
government sector agency that a person be reinstated or re-employed under 9
this section. In the case where the person's employer is the Minister, the 10
Commissioner may make a recommendation to the Minister that the person be 11
reinstated or re-employed under this section. 12
Note. Section 13 (2) requires the Commissioner to consult the agency head before 13
giving any such direction. 14
(5) If a person is reinstated or re-employed under this section, the person is 15
entitled to such salary and other employment benefits as if the person had 16
continued to be employed during the period following the termination of 17
employment. However any such entitlement is subject to the repayment of any 18
compensation or other amount paid to the person on the termination of 19
employment. 20
(6) The reinstatement or re-employment of a person under this section is not 21
subject to the provisions of the government sector employment rules relating 22
to the recruitment of employees. 23
(7) The re-employment of a person under this section in a role other than the 24
person's former role is not for any purpose to be regarded as a continuation of 25
the reprisal action that resulted in the person's employment being terminated. 26
(8) If a person to whom this section applies: 27
(a) was, immediately before his or her termination of employment, a 28
transitional former senior executive within the meaning of clause 8 of 29
Schedule 4, and 30
(b) is subsequently reinstated under this section to the person's former role, 31
the person is to be reinstated as a transitional former senior executive if the 32
implementation date (as referred to in that clause) for the agency (or part of the 33
agency) in which the person is reinstated has not occurred at the time of the 34
reinstatement. 35
(9) In this section: 36
amending Act means the Government Sector Employment Legislation 37
Amendment Act 2016. 38
public interest disclosure has the same meaning as in the Public Interest 39
Disclosures Act 1994. 40
role includes office or position and assigned, in the case where the person 41
concerned has been appointed to an office or a position, includes held by the 42
person. 43
senior executive means any of the following: 44
(a) a Public Service senior executive, 45
(b) a health executive within the meaning of Part 3 of Chapter 9 of the 46
Health Services Act 1997 or a NSW Health Service senior executive to 47
whom that Part (as substituted by the amending Act) applies, 48
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
(c) an executive officer within the meaning of Part 5 of the Police Act 1990 1
or a NSW Police Force senior executive to whom that Part (as 2
substituted by the amending Act) applies, 3
(d) an executive officer within the meaning of section 68G of the Transport 4
Administration Act 1988 (as in force before its repeal by the amending 5
Act) or a Transport Service senior executive or senior manager to whom 6
Part 7A of the Transport Administration Act 1988 (as substituted by the 7
amending Act) applies. 8
[72] Section 88 Regulations 9
Insert ", allowances" after "leave" in section 88 (2) (a). 10
[73] Section 88 (3A) 11
Insert after section 88 (3): 12
(3A) The regulations may make provision relating to the calculation of the 13
proportionate amount of a payment to be refunded under subsection (3) or 14
under section 41 (3) or 78 (7). 15
[74] Schedule 1 Public Service agencies 16
Omit the matter relating to the Sydney Cricket and Sports Ground Trust Staff Agency from 17
Part 2. 18
[75] Schedule 4 Savings, transitional and other provisions 19
Omit clause 13C. 20
[76] Schedule 4, Part 4 21
Insert after Part 3: 22
Part 4 Provisions consequent on enactment of 23
Government Sector Employment Legislation 24
Amendment Act 2016 25
16 Definition 26
In this Part: 27
amending Act means the Government Sector Employment Legislation 28
Amendment Act 2016. 29
17 Pending inquiries under section 83 30
A person who, before the commencement of the amendments made to 31
section 83 of this Act by the amending Act, was authorised to conduct an 32
inquiry under that section is, if the inquiry has not been completed before that 33
commencement, taken to have been appointed under that section (as so 34
amended) to act on behalf of the Commissioner or DPC Secretary (as the case 35
requires) for the purposes of conducting the inquiry. 36
18 Reinstatement of senior executives whose employment has been terminated 37
for making public interest disclosure 38
Section 83A of this Act (as inserted by the amending Act) extends to the 39
termination of a person's employment before the commencement of that 40
section. 41
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Schedule 1 Amendment of Government Sector Employment Act 2013 No 40
19 Appointment or employment of parliamentary officers and staff 1
(1) The amendments to the Constitution Act 1902 made by Schedule 5.2 [1]-[3] 2
to the amending Act extend to persons appointed or employed as 3
parliamentary officers and staff after the commencement of this Act and 4
before the commencement of those amendments as if those amendments had 5
been in force at that time. 6
(2) For the purposes of this clause, parliamentary officers and staff are officers 7
or employees of either House of Parliament or officers under the separate 8
control of the President or Speaker or under their joint control. 9
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 2 Amendment of Health Services Act 1997 No 154
Schedule 2 Amendment of Health Services Act 1997 No 154 1
[1] Section 23 2
Omit the section. Insert instead: 3
23 Appointment of chief executive 4
(1) A chief executive is to be appointed for each local health district by the local 5
health district board with the concurrence of the Health Secretary. 6
(2) Any such chief executive is employed in the NSW Health Service and is a 7
NSW Health Service senior executive. 8
[2] Section 28 Functions of local health district boards 9
Omit section 28 (e). Insert instead: 10
(e) to appoint, and exercise employer functions in relation to, the chief 11
executive of the local health district, 12
(e1) to ensure that the number of NSW Health Service senior executives 13
employed to enable the local health district to exercise its functions, and 14
the remuneration paid to those executives, is consistent with any 15
direction by the Health Secretary or condition referred to in 16
section 122 (2), 17
[3] Section 51 Appointment of chief executive of board governed health corporation 18
Omit section 51 (1)-(3). Insert instead: 19
(1) A chief executive is to be appointed by the Health Secretary for each board 20
governed health corporation. 21
(2) Any such chief executive is employed in the NSW Health Service. 22
[4] Section 52 Removal of members and appointment of administrator 23
Omit section 52 (6). Insert instead: 24
(6) If the chief executive of a board governed health corporation is a NSW Health 25
Service senior executive, the removal of the chief executive from office under 26
this section is taken to be a termination of employment under section 121H. 27
[5] Section 52A 28
Omit the section. Insert instead: 29
52A Appointment of chief executive of chief executive governed health corporation 30
(1) A chief executive is to be appointed by the Health Secretary for each chief 31
executive governed health corporation. 32
(2) Any such chief executive is employed in the NSW Health Service. 33
(3) If any such chief executive is not a NSW Health Service senior executive, the 34
provisions of Part 3 of Chapter 9 relating to the termination of employment of 35
senior executives extend to the chief executive. 36
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Schedule 2 Amendment of Health Services Act 1997 No 154
[6] Section 52G Appointment of chief executive of specialty network governed health 1
corporations 2
Omit section 52G (1). Insert instead: 3
(1) A chief executive is to be appointed for each specialty network governed 4
health corporation by the board for the specialty network with the concurrence 5
of the Health Secretary. 6
(1A) Any such chief executive is employed in the NSW Health Service and is a 7
NSW Health Service senior executive. 8
[7] Section 52G (2) 9
Omit "The provisions of Division 1 of Part 2 of Chapter 3 (except section 23 (1))". 10
Insert instead "Sections 24 and 25". 11
[8] Section 52G (2) (a)-(c) 12
Omit "provisions (however expressed)" wherever occurring. Insert instead "sections". 13
[9] Section 67A Ambulance Service of NSW 14
Omit section 67A (2) and (3). Insert instead: 15
(2) A chief executive of the Ambulance Service of NSW may be appointed by the 16
Health Secretary. 17
(3) Any such chief executive is employed in the NSW Health Service and is a 18
NSW Health Service senior executive. 19
[10] Section 115 The NSW Health Service 20
Insert after section 115 (1): 21
(1A) Those persons are not employed in the Public Service of New South Wales. 22
[11] Section 115, note 23
Omit the note. Insert instead: 24
Note. Other ways in which persons are employed in the service of the Crown include 25
employment in the Public Service, the Teaching Service or the Transport Service. 26
[12] Section 116 Employment of staff generally 27
Omit section 116 (3) (but not the note to that subsection). Insert instead: 28
(3) The Health Secretary may, subject to this and any other Act or law, exercise 29
on behalf of the Government of New South Wales the employer functions of 30
the Government in relation to the staff employed in the NSW Health Service 31
(except as otherwise provided by subsections (3A)-(3D)). 32
(3A) A local health district board may, subject to this and any other Act or law, 33
exercise on behalf of the Government of New South Wales the employer 34
functions of the Government in relation to the chief executive of the local 35
health district. 36
(3B) The chief executive of a local health district may, subject to this and any other 37
Act or law, exercise on behalf of the Government of New South Wales the 38
employer functions of the Government in relation to the other NSW Health 39
Service senior executives employed to enable the local health district to 40
exercise its functions. 41
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Schedule 2 Amendment of Health Services Act 1997 No 154
(3C) The board of a specialty network governed health corporation may, subject to 1
this and any other Act or law, exercise on behalf of the Government of New 2
South Wales the employer functions of the Government in relation to the chief 3
executive of the health corporation. 4
(3D) The chief executive of a specialty network governed health corporation may, 5
subject to this and any other Act or law, exercise on behalf of the Government 6
of New South Wales the employer functions of the Government in relation to 7
the other NSW Health Service senior executives employed to enable the health 8
corporation to exercise its functions. 9
[13] Section 116A Salary, conditions etc of staff employed in the NSW Health Service 10
(other than senior executives) 11
Omit section 116A (5). Insert instead: 12
(5) This section does not apply to the conditions of employment of NSW Health 13
Service senior executives under Part 3 of this Chapter. This subsection does 14
not prevent particular conditions of employment under this section from being 15
adopted by reference in the contract of employment of the executives. 16
[14] Section 116C Transfer of staff within the NSW Health Service on ground of 17
redundancy 18
Insert after section 116C (5): 19
(6) This section does not apply to NSW Health Service senior executives. 20
[15] Section 116D Health Secretary may arrange for use of services or facilities outside 21
of NSW Health Service 22
Omit "any Division of the Government Service". 23
Insert instead "any government sector agency (within the meaning of the Government 24
Sector Employment Act 2013)". 25
[16] Section 116G Miscellaneous provisions relating to civil liability 26
Insert after section 116G (6): 27
(6A) Subsections (5) and (6) do not apply in relation to NSW Health Service senior 28
executives. 29
[17] Section 118 Disciplinary action in certain cases of serious sex or violence offences 30
Insert after section 118 (3): 31
(3A) The Health Secretary is, in the case of a member of staff who is a NSW Health 32
Service senior executive, authorised to take any such action regardless of 33
whether the Health Secretary exercises employer functions in relation to the 34
executive. 35
(3B) If, under this section, a member of staff who is a NSW Health Service senior 36
executive is assigned to or from a division of the NSW Health Service for 37
which the Health Secretary does not exercise employer functions in relation to 38
the Health Service senior executives employed in that division, the Health 39
Secretary is to consult the person or body that exercises or will exercise 40
employer functions in relation to the executive. 41
(3C) A person may not, under this section: 42
(a) be transferred and assigned to the role of chief executive of a local 43
health district or specialty network governed health corporation without 44
the concurrence of the board of the local health district or specialty 45
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Schedule 2 Amendment of Health Services Act 1997 No 154
network governed health corporation to which the person is transferred, 1
or 2
(b) in the case of a person who is the chief executive of a local health district 3
or specialty network governed health corporation--be assigned to 4
another role unless the Health Secretary has consulted the board of the 5
local health district or the specialty network governed health 6
corporation (as the case requires). 7
[18] Section 118 (6) 8
Omit paragraph (c) of the definition of disciplinary action. Insert instead: 9
(c) transferring a member of staff who is not a NSW Health Service senior 10
executive to another position in the NSW Health Service or assigning a 11
member of staff who is a NSW Health Service senior executive to 12
another role in the NSW Health Service. 13
[19] Section 120A (1), note 14
Omit the note. 15
[20] Chapter 9 The NSW Health Service 16
Omit Part 3. Insert instead: 17
Part 3 NSW Health Service senior executives 18
121A NSW Health Service senior executives 19
(1) Persons who are employed in the NSW Health Service in a Public Service 20
senior executive band are NSW Health Service senior executives. For that 21
purpose, the Public Service senior executive bands under the Government 22
Sector Employment Act 2013 apply to employment in the NSW Health 23
Service. 24
(2) The following chief executives are to be employed as NSW Health Service 25
senior executives: 26
(a) chief executives of local health districts, 27
(b) chief executives of specialty network governed health corporations, 28
(c) the chief executive of the Ambulance Service of NSW. 29
Note. See section 23 (2) in the case of the chief executive of a local health district, 30
section 52G (1A) in the case of the chief executive of a specialty network governed 31
health corporation and section 67A (3) in the case of the chief executive of the 32
Ambulance Service. 33
(3) The chief executive of a statutory health corporation (other than a specialty 34
network governed health corporation) may, but need not, be employed as a 35
NSW Health Service senior executive. 36
(4) Persons who are employed under Part 4 of the Government Sector 37
Employment Act 2013 and assigned to roles to enable a Council established 38
under section 41B of the Health Practitioner Regulation National Law (NSW) 39
to exercise its functions may be designated by the Health Secretary as NSW 40
Health Service senior executives. Any such person, if so designated, ceases to 41
be employed under the Government Sector Employment Act 2013 and 42
becomes employed in the NSW Health Service as a NSW Health Service 43
senior executive. 44
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Schedule 2 Amendment of Health Services Act 1997 No 154
121B Employer of senior executives 1
For the purposes of this Part, the person who is authorised to exercise the 2
employer functions of the Government of New South Wales in relation to a 3
NSW Health Service senior executive is referred to in this Part as the employer 4
of the executive. 5
Note. The Health Secretary is the employer of Health Service senior executives, 6
except that: 7
(a) the employer of the chief executive of a local health district or of a specialty 8
network governed health corporation is the board of the district or corporation, 9
and 10
(b) the employer of the other senior executives of any such district or corporation is 11
the chief executive of the district or corporation. 12
121C Kinds of employment 13
(1) Employment as a NSW Health Service senior executive may be any one of the 14
following kinds of employment: 15
(a) ongoing employment, 16
(b) term employment. 17
(2) Ongoing employment is employment that continues until the executive resigns 18
or his or her employment is terminated. 19
(3) Term employment is employment for a specified period or for the duration of 20
a specified task (unless the executive sooner resigns or his or her employment 21
is terminated). 22
121D Employment in bands and assignment to roles 23
(1) A NSW Health Service senior executive is to be employed in the Public 24
Service senior executive band that the employer of the executive considers 25
appropriate for the role of the executive. 26
(2) In determining the number of NSW Health Service senior executives and the 27
appropriate band in which they are employed, the employer is to apply the 28
applicable work level standards and have regard to any guidance provided by 29
the Public Service Commissioner. 30
(3) In the case of a local health district or specialty network governed health 31
corporation, the number of NSW Health Service senior executives, the bands 32
in which they are employed and the roles they perform are required to be 33
approved by the Health Secretary. 34
(4) A NSW Health Service senior executive may, from time to time, be assigned 35
to a role in any division of the NSW Health Service in the band in which the 36
executive is employed. 37
(5) A NSW Health Service senior executive may be assigned to a role (in the band 38
in which the executive is employed) by the employer of the executive within 39
the relevant division of the NSW Health Service for which the employer 40
exercises employer functions. 41
(6) A NSW Health Service senior executive employed in a division of the NSW 42
Health Service may, subject to this section, be assigned to a role (in the band 43
in which the executive is employed) by the Health Secretary in another 44
division of the NSW Health Service. 45
(7) If a NSW Health Service senior executive is assigned to a role in or from a 46
division of the NSW Health Service for which the Health Secretary does not 47
exercise employer functions in relation to the Health Service senior executives 48
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employed in that division, the Health Secretary is to consult the person or body 1
that exercises or will exercise employer functions in relation to the executive. 2
(8) A NSW Health Service senior executive may not be assigned to the role of 3
chief executive of a local health district or specialty network governed health 4
corporation without the concurrence of the board of the local health district or 5
specialty network governed health corporation to which the executive is to be 6
assigned. 7
(9) A NSW Health Service senior executive may: 8
(a) be transferred by the Health Secretary to the Public Service of New 9
South Wales and assigned to a role in any Public Service agency in the 10
band in which the executive is employed (with the agreement of the 11
head of that agency), or 12
(b) be transferred by the Health Secretary to the NSW Police Force and 13
assigned to a role (other than as a police officer) in the band in which 14
the executive is employed (with the agreement of the Commissioner of 15
Police), or 16
(c) be transferred by the Health Secretary to the Transport Service of New 17
South Wales and assigned to a role in the band in which the executive 18
is employed (with the agreement of the Secretary of the Department of 19
Transport). 20
(10) If, under subsection (9) or under a corresponding provision of the Government 21
Sector Employment Act 2013 or other Act, an executive is transferred to or 22
from a division of the NSW Health Service for which the Health Secretary 23
does not exercise employer functions in relation to the Health Service senior 24
executives employed in that division, the Health Secretary is to consult the 25
person or body that exercises or will exercise employer functions in relation to 26
the executive. 27
(11) A person may not, under subsection (9) or under a corresponding provision of 28
the Government Sector Employment Act 2013 or other Act: 29
(a) be transferred and assigned to the role of chief executive of a local 30
health district or specialty network governed health corporation without 31
the concurrence of the board of the local health district or specialty 32
network governed health corporation to which the person is transferred, 33
or 34
(b) in the case of a person who is the chief executive of a local health district 35
or specialty network governed health corporation--be transferred and 36
assigned to another role unless the Health Secretary has consulted the 37
board of the local health district or the specialty network governed 38
health corporation (as the case requires). 39
(12) NSW Health Service senior executives may be assigned to roles under this 40
section to enable the flexible deployment of staff resources and to develop the 41
capabilities of staff. 42
(13) A NSW Health Service senior executive is not to be assigned to a different role 43
under this section unless the executive has been consulted. The remuneration 44
payable to the executive is not to be reduced because of the assignment to the 45
different role without the consent of the executive. This subsection extends to 46
a transfer under subsection (9). 47
(14) In this section: 48
assign to a role includes assign to a different role. 49
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121E Government sector employment rules and employment directions and 1
conditions 2
(1) The Public Service Commissioner may make government sector employment 3
rules under section 12 of the Government Sector Employment Act 2013 on any 4
matter relating to the employment of NSW Health Service senior executives 5
(including, without limitation, matters of the kind referred to in section 36 of 6
that Act). 7
(2) The Public Service Commissioner must consult the Health Secretary before 8
making any such rules. 9
(3) This section does not limit any direction, or any condition referred to in 10
section 122 (2), that the Health Secretary is otherwise authorised to give or 11
impose in relation to the employment of NSW Health Service senior 12
executives. However, if any such direction or condition is inconsistent with the 13
applicable government sector employment rules: 14
(a) the direction or condition does not have any effect unless the Public 15
Service Commissioner has agreed to the inconsistency (unless it is a 16
direction or condition referred to in paragraph (b)), or 17
(b) if the direction or condition relates to the health or safety of any person 18
or persons or the provision of essential health services--the Health 19
Secretary is to consult the Public Service Commissioner about the 20
inconsistency (whether before or after the direction or condition is given 21
or attached). 22
121F Contract of employment 23
(1) A NSW Health Service senior executive is to be employed under a written 24
contract of employment signed by the executive and by the employer of the 25
executive on behalf of the Government. 26
(2) Without limiting section 121E (1), the government sector employment rules 27
made under section 12 of the Government Sector Employment Act 2013 may 28
prescribe model contracts of employment for NSW Health Service senior 29
executives and may specify any model provisions that are mandatory and that 30
prevail in the event of any inconsistency with the provisions of a contract of 31
employment. 32
(3) Subject to this Part, the government sector employment rules and any direction 33
issued by the Public Service Commissioner under the Government Sector 34
Employment Act 2013, a contract of employment of a NSW Health Service 35
senior executive is to deal with the following matters: 36
(a) the band in which the executive is employed, 37
(b) the duration of the contract if the executive is not employed in ongoing 38
employment, 39
(c) the total remuneration package of the executive (comprising monetary 40
remuneration and employment benefits) and any allowances, 41
(d) performance obligations, and reviews of performance, of the executive, 42
(e) progression in the total remuneration package of the executive based on 43
performance, 44
(f) leave and other conditions of employment of the executive, 45
(g) the compensation for any termination of employment of the executive 46
by the Health Secretary or other employer of the executive (including 47
the period to which the compensation relates), 48
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Schedule 2 Amendment of Health Services Act 1997 No 154
(h) any other matter prescribed by the regulations under section 39 (4) of 1
the Government Sector Employment Act 2013. 2
(4) The contract of employment of a NSW Health Service senior executive may, 3
subject to this Act, include conditions of engagement. 4
(5) The contract of employment of a NSW Health Service senior executive does 5
not limit, and is not terminated or otherwise affected by: 6
(a) the transfer of the executive under section 121D (9) to the Public 7
Service of New South Wales, the NSW Police Force or the Transport 8
Service of New South Wales, or 9
(b) the assignment of the executive to a different role or any other change 10
to the title, place of work or duties of the executive. 11
(6) A contract of employment of a NSW Health Service senior executive may, 12
subject to this section, be varied at any time in accordance with the contract or 13
by further agreement. 14
(7) The regulations under the Government Sector Employment Act 2013 may 15
make provision with respect to the compensation to which a NSW Health 16
Service senior executive whose employment is terminated is entitled under his 17
or her contract of employment. 18
121G Remuneration, benefits and allowances 19
(1) The remuneration package of a NSW Health Service senior executive must be 20
within the range determined under the Statutory and Other Offices 21
Remuneration Act 1975 for the band in which the executive is employed, 22
except as provided by subsection (2). 23
Note. See also section 24R (3) of the Statutory and Other Offices Remuneration 24
Act 1975. 25
(2) The Health Secretary may, in accordance with parameters agreed on by the 26
Health Secretary and the Public Service Commissioner, determine a 27
remuneration package for a NSW Health Service senior executive or class of 28
NSW Health Service senior executives that is within a range higher than the 29
range determined under the Statutory and Other Offices Remuneration 30
Act 1975 for the band in which the executive or class of executives is 31
employed. 32
(3) The kinds and value of employment benefits and the allowances for a NSW 33
Health Service senior executive are to be determined by the Health Secretary. 34
In making any such determination, the Health Secretary is to have regard to 35
any similar determinations that apply to Public Service senior executives. 36
(4) A NSW Health Service senior executive is only entitled to the remuneration, 37
employment benefits or allowances provided in the executive's contract of 38
employment. 39
(5) For the purposes of this section, employment benefits for a NSW Health 40
Service senior executive are: 41
(a) contributions by the executive's employer to a superannuation scheme 42
or fund of the executive, and 43
(b) other benefits provided to the executive at the cost of the executive's 44
employer that are of a private nature. 45
121H Termination of employment 46
(1) The employer of a NSW Health Service senior executive, or the Health 47
Secretary if the Health Secretary is not the employer, may terminate the 48
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employment of the executive at any time, for any or no stated reason and 1
without notice. 2
Note. The termination of employment of a senior executive may also be effected by 3
other means (for example under Part 2 of this Chapter or under section 68 of the 4
Government Sector Employment Act 2013). 5
(2) A NSW Health Service senior executive whose employment is terminated 6
under this section is entitled to such compensation (if any) as may be provided 7
in the contract of employment of the executive (and to no other compensation 8
or entitlement for the termination of employment other than superannuation 9
entitlements). 10
(3) A NSW Health Service senior executive whose employment is so terminated 11
is not to be employed in the public sector during the period specified in the 12
contract of employment to which any such compensation relates unless 13
arrangements have been made for a refund of the proportionate amount of the 14
compensation. 15
(4) The regulations under the Government Sector Employment Act 2013 may 16
make provision relating to the calculation of the proportionate amount of a 17
payment to be refunded under subsection (3). 18
(5) The employment of the chief executive of a local health district or of a 19
specialty network governed health corporation may not be terminated under 20
this section without the concurrence of the Health Secretary. 21
(6) For the purposes of this section, employment of a former executive in the 22
public sector and public sector have the same meanings as in section 41 of the 23
Government Sector Employment Act 2013. 24
121I Acting in executive roles 25
(1) A NSW Health Service senior executive or other employee of the NSW Health 26
Service may be assigned to act in the role of a NSW Health Service senior 27
executive if: 28
(a) the person who is usually assigned to that other role is unavailable for 29
any reason, or 30
(b) there is no person performing duties in that other role for the time being. 31
(2) An assignment to act in the role of a NSW Health Service senior executive 32
under this section may be made: 33
(a) in any case--by the Health Secretary, or 34
(b) in the case of a NSW Health Service senior executive being assigned to 35
act in the role of another such executive--by the employer of the 36
executive assigned to act (but only if the employer is also the employer 37
of the other executive). 38
If the Health Secretary assigns an executive to act in the role of an executive 39
for whom the Health Secretary is not the employer, the Health Secretary is to 40
consult the employer of that executive. 41
(3) While assigned to act in the role of a NSW Health Service senior executive the 42
person has all the functions of the executive, but does not thereby become a 43
NSW Health Service senior executive if not already such an executive. 44
(4) An assignment to act in the role of a NSW Health Service senior executive 45
under this section may be terminated at any time by a person authorised to 46
make the assignment. 47
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(5) This Part does not prevent the payment of an applicable allowance to a person 1
when assigned to act in the role of a NSW Health Service senior executive 2
under this section. 3
121J Industrial or legal proceedings excluded 4
(1) The employment of a NSW Health Service senior executive, or any matter, 5
question or dispute relating to any such employment, is not an industrial matter 6
for the purposes of the Industrial Relations Act 1996. 7
(2) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply 8
to or in respect of the employment of a NSW Health Service senior executive. 9
(3) Any State industrial instrument (whether made before or after the 10
commencement of this section) does not have effect in so far as it relates to the 11
employment of NSW Health Service senior executives. This subsection does 12
not prevent the provisions of any such industrial instrument being adopted by 13
reference in the conditions of employment of any such executive. 14
(4) No proceedings for an order in the nature of prohibition, certiorari or 15
mandamus or for a declaration or injunction or for any other relief, lie in 16
respect of a matter that is declared by this section not to be an industrial matter 17
for the purposes of the Industrial Relations Act 1996. 18
(5) In this section, a reference to the employment of a NSW Health Service senior 19
executive is a reference to: 20
(a) the engagement of, or failure to engage, a person as such an executive, 21
or 22
(b) the assignment or re-assignment of the executive to a role in a band, or 23
(c) the removal, retirement, termination of employment or other cessation 24
of employment of the executive, or 25
(d) any disciplinary proceedings or action taken against the executive, or 26
(e) the remuneration or other conditions of employment of the executive. 27
121K Delegation of employer functions 28
(1) If the employer of a NSW Health Service senior executive is a board, the 29
employer functions of the board under this Chapter in relation to the executive 30
(other than the function of employing or terminating the employment of the 31
executive) may be delegated by the board to the chairperson or any other 32
member of the board. 33
(2) If the employer of a NSW Health Service senior executive is a chief executive, 34
the employer functions of the chief executive under this Chapter in relation to 35
the senior executive may be delegated by the chief executive to any member 36
of the NSW Health Service (other than the senior executive) or to any person 37
employed in the Public Service. 38
[21] Section 122 Functions of the Health Secretary 39
Insert ", including (subject to section 121E (3)) directions relating to the employment of 40
NSW Health Service senior executives" after "directions to statutory health organisations" 41
in section 122 (f1). 42
[22] Section 122 (2) 43
Insert at the end of section 122: 44
(2) Without limiting subsection (1) (f1), the Health Secretary may, in exercising 45
any power delegated by the Minister to attach conditions under section 127 (4) 46
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to the payment of a subsidy under that section to a statutory health 1
organisation, attach conditions relating to the employment of NSW Health 2
Service senior executives who are employed to enable the statutory health 3
organisation to exercise its functions. Any such condition is subject to 4
section 121E (3). 5
[23] Schedule 7 Savings, transitional and other provisions 6
Insert at the end of the Schedule with appropriate Part and clause numbering: 7
Part Provisions consequent on enactment of 8
Government Sector Employment Legislation 9
Amendment Act 2016 10
Definitions 11
In this Part: 12
amending Act means the Government Sector Employment Legislation 13
Amendment Act 2016. 14
existing Health Service senior executive means a member of the NSW Health 15
Service who was, immediately before the substitution of Part 3 of Chapter 9 of 16
this Act by the amending Act, employed in an executive position under the 17
former senior executive provisions, and includes any such member of the 18
NSW Health Service holding office as a chief executive under section 23, 51, 19
52A, 52G or 67A of this Act. 20
former senior executive provisions means the provisions of Part 3 of 21
Chapter 9 of this Act (and any other provisions of this Act that relate to the 22
operation of that Part), as in force immediately before the substitution of that 23
Part by the amending Act. 24
new senior executive provisions means the provisions of Part 3 of Chapter 9 25
of this Act (and any other provisions of this Act that relate to the operation of 26
that Part), as amended by the amending Act, and the provisions of Part 3B of 27
the Statutory and Other Offices Remuneration Act 1975. 28
Application of new senior executive provisions to existing Health Service 29
senior executives 30
(1) On the commencement of the new senior executive provisions, the following 31
provisions apply in relation to an existing Health Service senior executive: 32
(a) the executive is taken to be employed in ongoing employment as a 33
Health Service senior executive under the new senior executive 34
provisions, 35
(b) for that purpose, a contract of employment under the new senior 36
executive provisions is taken to have been entered into in relation to 37
employment of the executive, 38
(c) the terms and conditions of that contract are taken to be those contained 39
in the model contract of employment for NSW Health Service senior 40
executives that is prescribed by the government sector employment 41
rules as at the date of commencement of the new senior executive 42
provisions, 43
(d) the executive is taken to be employed in the band under the Public 44
Service senior executive band determination that: 45
(i) the employer of the executive considers appropriate for the role 46
of the executive, and 47
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Schedule 2 Amendment of Health Services Act 1997 No 154
(ii) is approved by the Health Secretary (in the case where the Health 1
Secretary is not the employer), 2
(e) the executive is to be assigned to the same (or a similar) role to the role 3
in which the executive was employed immediately before the 4
commencement of the new senior executive provisions, 5
(f) the executive has a remuneration package that is equivalent to the 6
executive's remuneration package under the former senior executive 7
provisions (unless the remuneration package is increased as a result of 8
arrangements in force under those provisions) even if it exceeds the 9
band in which the person is employed, 10
(g) the executive continues to be entitled to any recruitment or other 11
allowance payable to the executive under the former senior executive 12
provisions immediately before the commencement of the new senior 13
executive provisions. 14
(2) Subclause (1) (f) and (g) apply in relation to a NSW Health Service senior 15
executive until such time as the executive: 16
(a) is assigned to a role in the NSW Health Service that has a remuneration 17
package exceeding the remuneration package paid to the executive 18
immediately before the assignment to the new role, or 19
(b) ceases to be employed in the NSW Health Service. 20
Savings and transitional regulations 21
(1) The provisions of any regulation made under Part 1 of this Schedule 22
consequent on the enactment of the amending Act have effect despite anything 23
to the contrary in this Part. 24
(2) The regulations made under Part 1 of this Schedule consequent on the 25
enactment of the amending Act may make separate savings and transitional 26
provisions or amend this Part to consolidate the savings and transitional 27
provisions. 28
[24] Dictionary 29
Omit the definition of Health Executive Service from Part 1. 30
[25] Dictionary, Part 1 31
Insert in appropriate order: 32
NSW Health Service senior executive means a person employed in the NSW 33
Health Service as a NSW Health Service senior executive. 34
role of a NSW Health Service senior executive means the duties and 35
responsibilities of the executive. 36
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Schedule 3 Amendment of Police Act 1990 No 47
Schedule 3 Amendment of Police Act 1990 No 47 1
[1] Section 3 (1), definitions of "administrative officer" and "non-executive 2
administrative officer" 3
Omit the definitions. 4
[2] Section 3 (1), definitions of "Assistant Commissioner" and "Deputy Commissioner" 5
Omit "Division 2 of Part 5" wherever occurring. Insert instead "Part 5". 6
[3] Section 3 (1), definition of "NSW Police Force Senior Executive Service" 7
Omit the definition. 8
[4] Section 3 (1) 9
Insert in alphabetical order: 10
administrative employee means a member of the NSW Police Force other than 11
a police officer. 12
non-executive administrative employee means a member of the NSW Police 13
Force, other than a police officer or a NSW Police Force senior executive. 14
NSW Police Force senior executive--see section 32. 15
position, in relation to NSW Police Force senior executives or non-executive 16
administrative employees, includes role. 17
role of a NSW Police Force senior executive or a non-executive administrative 18
employee means the duties and responsibilities of any such executive or 19
employee. 20
[5] Section 3 (1), definition of "temporary employee" 21
Omit the definition. 22
[6] Section 5 Composition of NSW Police Force 23
Omit section 5 (b)-(d). Insert instead: 24
(b) NSW Police Force senior executives, 25
(c) all other police officers or non-executive administrative employees who 26
are employed under this Act. 27
[7] Section 10 Positions in the NSW Police Force 28
Omit section 10 (5). 29
[8] Section 10 (6) 30
Omit "(other than the NSW Police Force Senior Executive Service)". 31
[9] Section 11 Designation of police officers 32
Omit "administrative officer" from section 11 (3). 33
Insert instead "administrative employee". 34
[10] Section 11 (5) 35
Omit the subsection. 36
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 3 Amendment of Police Act 1990 No 47
[11] Section 12 Ranks and grades of police officers 1
Omit section 12 (1) (b) and (c). Insert instead: 2
(b) NSW Police Force senior executive. 3
(c) Superintendent. 4
[12] Section 12 (2) 5
Omit "within the NSW Police Force Senior Executive Service". 6
Insert instead "who are NSW Police Force senior executives". 7
[13] Section 27 Employment and remuneration of Commissioner 8
Omit section 27 (2). Insert instead: 9
(2) The provisions of sections 36 (1), 38, 39 and 42 apply to the Commissioner in 10
the same way as they apply to a NSW Police Force senior executive (subject 11
to a reference in those provisions to the Commissioner being construed as a 12
reference to the Minister). 13
[14] Section 28 Removal of Commissioner 14
Omit "no reason" from section 28 (1). Insert instead "no stated reason". 15
[15] Section 28 (1A)-(1C) 16
Insert after section 28 (1): 17
(1A) A Commissioner who is removed from office is entitled to such compensation 18
(if any) as may be provided in the contract of employment of the 19
Commissioner (and to no other compensation or entitlement for the removal 20
from office). 21
(1B) A Commissioner who is removed from office is not to be employed in the 22
public sector during the period specified in the contract of employment to 23
which any such compensation relates unless arrangements have been made for 24
a refund of the proportionate amount of the compensation. 25
(1C) For the purposes of this section, employment of a former Commissioner in the 26
public sector and public sector have the same meanings as in section 41 of the 27
Government Sector Employment Act 2013. 28
[16] Section 28 (2) and (4)-(7) 29
Omit the subsections. 30
[17] Part 5 31
Omit the Part. Insert instead: 32
Part 5 NSW Police Force senior executives 33
32 NSW Police Force senior executives 34
(1) Persons who are employed in the NSW Police Force in a Public Service senior 35
executive band, whether as police officers or as administrative employees, are 36
NSW Police Force senior executives. For that purpose, the Public Service 37
senior executive bands under the Government Sector Employment Act 2013 38
apply to employment in the NSW Police Force. 39
(2) The Commissioner is not a NSW Police Force senior executive. 40
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Schedule 3 Amendment of Police Act 1990 No 47
(3) Deputy Commissioners and Assistant Commissioners are to be employed as 1
NSW Police Force senior executives. 2
(4) A police officer is not to be employed as a NSW Police Force senior executive 3
unless the police officer is above the rank of superintendent. 4
(5) The Commissioner may, subject to this and any other Act or law, exercise 5
employer functions in relation to persons employed as NSW Police Force 6
senior executives. 7
33 Appointment of senior executives 8
(1) Deputy Commissioners and Assistant Commissioners are to be appointed by 9
the Governor. The persons appointed are to be persons recommended to the 10
Minister by the Commissioner and approved by the Minister. 11
(2) Other NSW Police Force senior executives are to be appointed by the 12
Commissioner. 13
(3) The appointment of a person under this section to a position in the NSW Police 14
Force is to be based on an assessment of the capabilities, experience and 15
knowledge of the person against the pre-established standards for the position 16
to determine the person best suited to the requirements of the position and the 17
needs of the NSW Police Force. 18
(4) It does not matter whether a person appointed under this section is or is not 19
already a member of the NSW Police Force, and it does not matter that a 20
person appointed to a position designated as a position to be held by a police 21
officer is not a police officer at the time of appointment. 22
(5) The Commissioner may appoint a member of the NSW Police Force to act as 23
a Deputy Commissioner, Assistant Commissioner or other NSW Police Force 24
senior executive if the executive is suspended, sick or absent or has vacated 25
office, and may terminate the appointment at any time. 26
(6) A person, while so acting as a NSW Police Force senior executive, has all the 27
functions of the executive, but does not thereby become a NSW Police Force 28
senior executive if not already such an executive. 29
34 Integrity matters 30
(1) It is the duty of the Commissioner, before recommending the appointment of, 31
or appointing, a person as a NSW Police Force senior executive: 32
(a) to make inquiries (from the Police Integrity Commission, and the 33
Commander, Professional Standards Command, and from any other 34
person or body the Commissioner considers appropriate) as to the 35
person's integrity, and 36
(b) to have regard to any information that comes to the Commissioner's 37
attention (whether as a result of inquiries under paragraph (a) or 38
otherwise) as to the person's integrity. 39
(2) The Police Integrity Commission, subject to the Police Integrity Commission 40
Act 1996, and the Commander, Professional Standards Command, are 41
required to furnish a report to the Commissioner (on the basis of the 42
information available to the Commission or the Commander and without the 43
need for any special investigation or inquiry) on the person the subject of an 44
inquiry by the Commissioner. 45
(3) As soon as practicable after a person is appointed as a NSW Police Force 46
senior executive, the Commissioner is required to notify the Police Integrity 47
Commission of the identity of the person so appointed. 48
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(4) The Commissioner must, before recommending the appointment of, or 1
appointing, a person as a NSW Police Force senior executive: 2
(a) require the person to provide a statutory declaration, in such form (if 3
any) as may be prescribed by the regulations, that the person has not 4
knowingly engaged in specified misconduct or any other misconduct, 5
and 6
(b) have regard to the statutory declaration so provided. 7
(5) Subsection (4) does not apply to a person who is not, and has never been, a 8
police officer (whether a member of the NSW Police Force, or the Police 9
Force, by whatever name described, of another State or Territory, or of another 10
country). 11
(6) A person who does not provide a statutory declaration in accordance with a 12
requirement under subsection (4) is ineligible for appointment. 13
(7) The fact that a person does not provide a statutory declaration in accordance 14
with such a requirement is not to be taken into consideration for a purpose 15
other than the assessment of the person's eligibility to be appointed as a NSW 16
Police Force senior executive. 17
(8) In the case of the appointment of a person as the Commander, Professional 18
Standards Command, the functions of that Commander under this section are 19
to be exercised by a Deputy Commissioner nominated by the Commissioner. 20
35 Kinds of employment 21
(1) Employment as a NSW Police Force senior executive may be any one of the 22
following kinds of employment: 23
(a) ongoing employment, 24
(b) term employment. 25
(2) Ongoing employment is employment that continues until the executive resigns 26
or his or her employment is terminated. 27
(3) Term employment is employment for a specified period or for the duration of 28
a specified task (unless the executive sooner resigns or his or her employment 29
is terminated). 30
36 Employment in bands and assignment to roles 31
(1) A NSW Police Force senior executive is to be employed in the Public Service 32
senior executive band that the Commissioner considers appropriate for the role 33
of the executive. 34
(2) In determining the number of NSW Police Force senior executives and the 35
appropriate band in which they are employed, the Commissioner is to apply 36
the applicable work level standards and have regard to any guidance provided 37
by the Public Service Commissioner. 38
(3) A NSW Police Force senior executive may, from time to time, be assigned to 39
a role in any part of the NSW Police Force in the band in which the executive 40
is employed. 41
(4) A NSW Police Force senior executive may be assigned to a role by the 42
Commissioner. 43
(5) A NSW Police Force senior executive (other than a police officer) may: 44
(a) be transferred by the Commissioner to the Public Service of New South 45
Wales and assigned to a role in any Public Service agency in the band 46
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Schedule 3 Amendment of Police Act 1990 No 47
in which the executive is employed (with the agreement of the head of 1
that agency), or 2
(b) be transferred by the Commissioner to the NSW Health Service and 3
assigned to a role in the band in which the executive is employed (with 4
the agreement of the Secretary of the Ministry of Health), or 5
Note. A Police Force senior executive may not be assigned to the role of chief 6
executive of a local health district or specialty network governed health 7
corporation except with the concurrence of the board of the organisation 8
concerned--see section 121D (11) of the Health Services Act 1997. 9
(c) be transferred by the Commissioner to the Transport Service of New 10
South Wales and assigned to a role in the band in which the executive 11
is employed (with the agreement of the Secretary of the Department of 12
Transport). 13
Note. See also section 95A which enables a police officer to be seconded to other 14
government agencies. While seconded, the police officer retains his or her rank, 15
seniority and remuneration and may continue to act as a police officer of that rank. 16
(6) NSW Police Force senior executives may be assigned to roles under this 17
section to enable the flexible deployment of staff resources and to develop the 18
capabilities of staff. 19
(7) A NSW Police Force senior executive is not to be assigned to a different role 20
under this section unless the executive has been consulted. The remuneration 21
payable to the executive is not to be reduced because of the assignment to the 22
different role without the consent of the executive. This subsection extends to 23
a transfer under subsection (5). 24
(8) In this section: 25
assign to a role includes assign to a different role. 26
37 Government sector employment rules and employment directions 27
(1) The Public Service Commissioner may make government sector employment 28
rules under section 12 of the Government Sector Employment Act 2013 on any 29
matter relating to the employment of NSW Police Force senior executives 30
(including, without limitation, matters of the kind referred to in section 36 of 31
that Act and the application of the principle of employment on merit). 32
(2) The Public Service Commissioner must consult the Commissioner of Police 33
before making any such rules. 34
(3) This section does not limit any direction that the Commissioner is otherwise 35
authorised to give in relation to the management or control of the NSW Police 36
Force (including employment arrangements). The Commissioner is to consult 37
with the Public Service Commissioner on any inconsistency between any such 38
directions given and applicable government sector employment rules. 39
38 Contract of employment 40
(1) A NSW Police Force senior executive is to be employed under a written 41
contract of employment signed by the executive and by the Commissioner on 42
behalf of the Government. 43
(2) Without limiting section 37 (1), the government sector employment rules 44
made under section 12 of the Government Sector Employment Act 2013 may 45
prescribe model contracts of employment for NSW Police Force senior 46
executives and may specify any model provisions that are mandatory and that 47
prevail in the event of any inconsistency with the provisions of a contract of 48
employment. 49
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Schedule 3 Amendment of Police Act 1990 No 47
(3) Subject to this Part, the government sector employment rules and any direction 1
issued by the Public Service Commissioner under the Government Sector 2
Employment Act 2013, a contract of employment of a NSW Police Force 3
senior executive is to deal with the following matters: 4
(a) the band in which the executive is employed, 5
(b) the duration of the contract if the executive is not employed in ongoing 6
employment, 7
(c) the total remuneration package of the executive (comprising monetary 8
remuneration and employment benefits) and any allowances, 9
(d) performance obligations, and reviews of performance, of the executive, 10
(e) progression in the total remuneration package of the executive based on 11
performance, 12
(f) leave and other conditions of employment of the executive, 13
(g) the compensation for any termination of employment of the executive 14
by the Commissioner (including the period to which the compensation 15
relates), 16
(h) any other matter prescribed by the regulations under section 39 (4) of 17
the Government Sector Employment Act 2013. 18
(4) The contract of employment of a NSW Police Force senior executive may, 19
subject to this Act, include conditions of engagement. 20
(5) The contract of employment of a NSW Police Force senior executive does not 21
limit, and is not terminated or otherwise affected by: 22
(a) the transfer of the executive under section 36 (5) to the Public Service 23
of New South Wales, the NSW Health Service or the Transport Service 24
of New South Wales, or 25
(b) the assignment of the executive to a different role or any other change 26
to the title, place of work or duties of the executive. 27
(6) A contract of employment of a NSW Police Force senior executive may, 28
subject to this section, be varied at any time in accordance with the contract or 29
by further agreement. 30
(7) The regulations under the Government Sector Employment Act 2013 may 31
make provision with respect to the compensation to which a NSW Police 32
Force senior executive whose employment is terminated is entitled under his 33
or her contract of employment. 34
39 Remuneration, benefits and allowances 35
(1) The remuneration package of a NSW Police Force senior executive must be 36
within the range determined under the Statutory and Other Offices 37
Remuneration Act 1975 for the band in which the executive is employed, 38
except as provided by subsection (2). 39
Note. See also section 24R (3) of the Statutory and Other Offices Remuneration 40
Act 1975. 41
(2) The Commissioner may, in accordance with parameters agreed on by the 42
Commissioner and the Public Service Commissioner, determine a 43
remuneration package for a NSW Police Force senior executive or class of 44
NSW Police Force senior executives that is within a range higher than the 45
range determined under the Statutory and Other Offices Remuneration Act 46
1975 for the band in which the executive or class of executives is employed. 47
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Schedule 3 Amendment of Police Act 1990 No 47
(3) The kinds and value of employment benefits and the allowances for a NSW 1
Police Force senior executive are to be determined by the Commissioner. In 2
making any such determination, the Commissioner is to have regard to any 3
similar determinations that apply to Public Service senior executives. 4
(4) A NSW Police Force senior executive is only entitled to the remuneration, 5
employment benefits or allowances provided in the executive's contract of 6
employment. 7
(5) For the purposes of this section, employment benefits for a NSW Police Force 8
senior executive are: 9
(a) contributions by the executive's employer to a superannuation scheme 10
or fund of the executive, and 11
(b) other benefits provided to the executive at the cost of the executive's 12
employer that are of a private nature. 13
40 Termination of employment 14
(1) The Governor may terminate the appointment of a person as Deputy 15
Commissioner or Assistant Commissioner at any time, for any or no stated 16
reason and without notice. The Governor is not to do so unless the termination 17
is recommended to the Minister by the Commissioner and the Minister 18
approves the recommendation. 19
(2) The Commissioner may terminate the employment of any other NSW Police 20
Force senior executive at any time, for any or no stated reason and without 21
notice. 22
(3) The Commissioner: 23
(a) may declare a person whose appointment is terminated under 24
subsection (1) to be an unattached officer in the NSW Police Force (an 25
unattached declaration), and 26
(b) may revoke an unattached declaration. 27
(4) While an unattached declaration is in force, the person to whom the 28
declaration relates: 29
(a) is to be regarded as a NSW Police Force senior executive (although not 30
as the holder of any position), and 31
(b) is entitled to remuneration and employment benefits as if the person's 32
appointment had not been terminated. 33
(5) If, in the case of a person whose appointment has been terminated under 34
subsection (1), an unattached declaration is not made or is revoked by the 35
Commissioner, the employment of the person as a NSW Police Force senior 36
executive is to be terminated by the Commissioner unless the person is 37
appointed to another position in the NSW Police Force (including a position 38
as a non-executive police officer). 39
(6) Nothing in this section prevents: 40
(a) a NSW Police Force senior executive who is a police officer being 41
removed from the NSW Police Force under section 181D, or 42
(b) a NSW Police Force senior executive who is an administrative 43
employee from having his or her employment terminated under 44
section 68 or 69 of the Government Sector Employment Act 2013. 45
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Schedule 3 Amendment of Police Act 1990 No 47
41 Compensation for termination of employment 1
(1) A NSW Police Force senior executive whose employment is terminated under 2
section 40 is entitled to such compensation (if any) as may be provided in the 3
contract of employment of the executive (and to no other compensation or 4
entitlement for the termination of employment). 5
(2) A NSW Police Force senior executive whose employment is so terminated is 6
not to be employed in the public sector during the period specified in the 7
contract of employment to which any such compensation relates unless 8
arrangements have been made for a refund of the proportionate amount of the 9
compensation. 10
(3) The regulations under the Government Sector Employment Act 2013 may 11
make provision relating to the calculation of the proportionate amount of a 12
payment to be refunded under subsection (2). 13
(4) For the purposes of this section, employment of a former executive in the 14
public sector and public sector have the same meanings as in section 41 of the 15
Government Sector Employment Act 2013. 16
42 Industrial or legal proceedings excluded 17
(1) The employment of a NSW Police Force senior executive, or any matter, 18
question or dispute relating to any such employment, is not an industrial matter 19
for the purposes of the Industrial Relations Act 1996. 20
(2) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply 21
to or in respect of the employment of a NSW Police Force senior executive. 22
(3) Any State industrial instrument (whether made before or after the 23
commencement of this section) does not have effect in so far as it relates to the 24
employment of NSW Police Force senior executives. This subsection does not 25
prevent the provisions of any such industrial instrument being adopted by 26
reference in the conditions of employment of any such executive. 27
(4) No proceedings for an order in the nature of prohibition, certiorari or 28
mandamus or for a declaration or injunction or for any other relief, lie in 29
respect of: 30
(a) the engagement of, or failure to engage, a person as such a NSW Police 31
Force senior executive, or 32
(b) the assignment or re-assignment of a NSW Police Force senior 33
executive to a role in a band. 34
(5) In this section, a reference to the employment of a NSW Police Force senior 35
executive is a reference to: 36
(a) the engagement of, or failure to engage, a person as such an executive, 37
or 38
(b) the assignment or re-assignment of the executive to a role in a band, or 39
(c) the removal, retirement, termination of employment or other cessation 40
of employment of the executive, or 41
(d) any disciplinary proceedings or action taken against the executive, or 42
(e) the remuneration or other conditions of employment of the executive. 43
[18] Section 62 Officers to whom Part applies 44
Omit "members of the NSW Police Force Senior Executive Service". 45
Insert instead "NSW Police Force senior executives". 46
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Schedule 3 Amendment of Police Act 1990 No 47
[19] Section 65 Filling non-executive positions by either police officers or non-executive 1
administrative employees 2
Omit section 65 (1). Insert instead: 3
(1) If the Commissioner is satisfied that a position is suitable for either a police 4
officer or a non-executive administrative employee, the position may, for the 5
purpose of the selection process, be designated as a position available to both 6
police officers and non-executive administrative employees. 7
[20] Section 65 (2) 8
Omit "an administrative officer". 9
Insert instead "a non-executive administrative employee". 10
[21] Section 67 Temporary appointments 11
Omit "Without limiting section 90, the" from section 67 (2). Insert instead "The". 12
[22] Section 67 (4) 13
Omit "administrative officer". Insert instead "administrative employee". 14
[23] Section 69 Transfer of non-executive police officers 15
Omit "non-executive administrative officer" in section 69 (1) and (5) wherever occurring. 16
Insert instead "non-executive administrative employee". 17
[24] Section 72 Vacation of non-executive police officer positions 18
Omit section 72 (2). 19
[25] Section 72A Incapable non-executive police officer may be retired 20
Omit the section. 21
[26] Section 73 Approval to engage in other paid employment 22
Omit the section. 23
[27] Part 6A 24
Omit the Part. Insert instead: 25
Part 6A Non-executive administrative employees 26
81 Application of Part 27
This Part applies to non-executive administrative employees. 28
81A Kinds of employment 29
(1) Employment in the NSW Police Force as a non-executive administrative 30
employee may be any one of the following kinds of employment: 31
(a) ongoing employment, 32
(b) temporary employment, 33
(c) casual employment. 34
(2) Ongoing employment is employment that continues until the employee 35
resigns or his or her employment is terminated. 36
(3) Temporary employment is employment for a temporary purpose. 37
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Schedule 3 Amendment of Police Act 1990 No 47
(4) Casual employment is employment to carry out irregular, intermittent, 1
short-term, urgent or other work as and when required. 2
81B Integrity matters 3
(1) It is the duty of the Commissioner before employing a non-executive 4
administrative employee, to make inquiries (from any person or body the 5
Commissioner thinks appropriate), as to the person's integrity. 6
(2) It is the duty of the Commissioner to have regard to any information that 7
comes to the Commissioner's attention (whether as a result of inquiries under 8
subsection (1) or otherwise) as to the integrity of a person referred to in that 9
subsection. 10
(3) The Police Integrity Commission is authorised (but not required) to furnish a 11
report to the Commissioner on any person the subject of an inquiry under this 12
section. 13
(4) The Commissioner is required to notify the Police Integrity Commission of the 14
identity of each person employed as a non-executive administrative employee 15
as soon as practicable after the person is so employed. 16
81C Employment in classifications of work 17
(1) Non-executive administrative employees are to be employed in a classification 18
of work determined by the Commissioner in which the person is employed in 19
accordance with this and any other Act or law. 20
(2) A classification of work extends to any kind of work and any grade of that 21
work. 22
81D Assignment of roles in work classifications 23
(1) In this section: 24
assign to a role includes assign to a different role. 25
(2) The Commissioner may from time to time assign non-executive 26
administrative employees to roles in the NSW Police Force in the 27
classification of work in which the employees are employed. 28
(3) Non-executive administrative employees may be assigned to roles to enable 29
the flexible deployment of staff resources within the NSW Police Force and to 30
develop the capabilities of staff. 31
(4) A non-executive administrative employee is not to be assigned to a different 32
role unless the employee has been consulted. The remuneration payable to the 33
employee is not to be reduced because of the assignment to the different role 34
without the consent of the employee. 35
(5) The Commissioner may also transfer a non-executive administrative 36
employee to a non-executive police officer position. 37
81E Termination of employment 38
(1) The Commissioner may, by instrument in writing, terminate the employment 39
of a non-executive administrative employee on any of the following grounds 40
if the employment is ongoing employment: 41
(a) the employee has failed to meet a condition of engagement as an 42
employee imposed under Part 8, 43
(b) the employee lacks, or has lost, an essential qualification for performing 44
the duties of the role assigned to the employee, 45
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Schedule 3 Amendment of Police Act 1990 No 47
(c) the performance of the employee is determined under section 68 of the 1
Government Sector Employment Act 2013 to be unsatisfactory, 2
(d) the employee is unable to perform the duties of the role assigned to the 3
employee because of physical or mental incapacity, 4
(e) the employee is retired on medical grounds under section 94B, 5
(f) the employee has refused to perform duties to which the employee has 6
been duly assigned, 7
(g) the employee has abandoned his or her employment, 8
(h) a finding of misconduct has been made against the employee under 9
section 69 of the Government Sector Employment Act 2013, 10
(i) the employee is determined in accordance with the government sector 11
employment rules under the Government Sector Employment Act 2013 12
or the regulations under that Act to be excess to the requirements of the 13
NSW Police Force, 14
(j) on any other ground prescribed by the regulations under this Act or by 15
the regulations under section 47 (1) (k) of the Government Sector 16
Employment Act 2013. 17
The instrument is to set out the ground or grounds on which the employment 18
is terminated. 19
(2) The Commissioner may, by instrument in writing, terminate the employment 20
of a non-executive administrative employee at any time if the employment is 21
not ongoing employment. 22
81F Government sector employment rules relating to employment of 23
non-executive administrative employees 24
(1) The Public Service Commissioner may make government sector employment 25
rules under section 12 of the Government Sector Employment Act 2013 on any 26
matter relating to the employment of NSW Police Force non-executive 27
administrative employees (including, without limitation, matters of the kind 28
referred to in section 48 of that Act). 29
(2) The Public Service Commissioner must consult the Commissioner of Police 30
before making any such rules. 31
(3) This section does not limit any direction that the Commissioner is otherwise 32
authorised to give in relation to the management or control of the NSW Police 33
Force (including employment arrangements). The Commissioner is to consult 34
with the Public Service Commissioner on any inconsistency between 35
directions given and applicable government sector employment rules. 36
81G Employment of special constables 37
(1) The Commissioner may employ a person under this Part as a non-executive 38
administrative employee (special constable). A person so employed is a 39
special constable. 40
(2) Employment as a special constable may be made subject to such conditions as 41
the Commissioner determines, including (but not limited to) conditions as to 42
the kinds of functions conferred or imposed and the purposes for and 43
circumstances in which such functions may be exercised. 44
(3) Without limiting the generality of subsection (2), the Commissioner may 45
confer or impose on a special constable any of the functions of a police officer 46
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of the rank of constable, including any of the functions of a police officer that 1
are specified in the Law Enforcement (Powers and Responsibilities) Act 2002. 2
Note. Accordingly, section 13 of this Act, for example, would apply to any such special 3
constable. 4
(4) Sections 207A and 211A-211AB apply to a special constable who is 5
authorised to exercise functions of a police officer in the same way as those 6
sections apply to a police officer. 7
(5) Part 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 8
(Safeguards relating to powers) applies to a special constable who is 9
authorised to exercise functions of a police officer in the same way as that Part 10
applies to a police officer. 11
(6) Part 4 of the Law Reform (Vicarious Liability) Act 1983 applies to a special 12
constable who is authorised to exercise functions of a police officer in the 13
same way as that Part applies to a police officer. 14
[28] Section 84 Application of Part 15
Omit ", members of the NSW Police Force Senior Executive Service and temporary 16
employees" from section 84 (1). 17
Insert instead "or NSW Police Force senior executives". 18
[29] Section 88 19
Omit the section. Insert instead: 20
88 Industrial or legal proceedings excluded 21
(1) The engagement of, or the failure to engage, a person as a non-executive 22
officer, or any matter, question or dispute relating to any such engagement (or 23
failure to engage), is not an industrial matter for the purposes of the Industrial 24
Relations Act 1996. 25
(2) No proceedings for an order in the nature of prohibition, certiorari or 26
mandamus or for a declaration or injunction or for any other relief, lie in 27
respect of a matter that is declared by this section not to be an industrial matter 28
for the purposes of the Industrial Relations Act 1996. 29
(3) The failure of a non-executive commissioned police officer to be appointed for 30
a further term of office as provided by section 75 is, for the purposes of this 31
section, taken to be a failure to engage the person as a non-executive officer. 32
(4) Nothing in this section prevents any of the following proceedings from being 33
brought by a member of the NSW Police Force in relation to the employment 34
of another member of the NSW Police Force: 35
(a) proceedings under Part 9 of the Anti-Discrimination Act 1977 in relation 36
to a complaint under that Part, 37
(b) proceedings under section 213 of the Industrial Relations Act 1996 to 38
enforce the provisions of section 210 (Freedom from victimisation) of 39
that Act. 40
[30] Part 7 Temporary employees of NSW Police Force 41
Omit the Part. 42
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Schedule 3 Amendment of Police Act 1990 No 47
[31] Section 93A 1
Insert before section 94: 2
93A Conditions of engagement of administrative employees 3
(1) The engagement of an administrative employee may be made subject to 4
conditions notified to the employee on his or her engagement. 5
(2) The conditions may include (without limitation) conditions dealing with any 6
of the following matters: 7
(a) probation, 8
(b) citizenship or residency requirements, 9
(c) formal qualifications, 10
(d) security and other clearances, 11
(e) health clearances. 12
(3) The imposition of conditions of engagement is subject to the government 13
sector employment rules under the Government Sector Employment Act 2013 14
and the regulations under this Act. 15
(4) The contract of employment of a NSW Police Force senior executive may 16
include conditions of engagement. 17
[32] Section 94 Requirements as to citizenship 18
Omit section 94 (4). 19
[33] Sections 94B-94D 20
Insert before section 95: 21
94B Retirement on medical grounds 22
The Commissioner may retire a member of the NSW Police Force if: 23
(a) the person is found on medical grounds to be unfit to perform or 24
incapable of discharging the duties of the person's position, and 25
(b) the person's unfitness or incapacity: 26
(i) appears likely to be of a permanent nature, and 27
(ii) has not arisen from actual misconduct on the part of the person, 28
or from causes within the person's control. 29
94C Resignation or retirement 30
(1) A member of the NSW Police Force may resign from the NSW Police Force 31
by written notice to the Commissioner. 32
(2) The resignation of a member of the NSW Police Force does not take effect 33
until: 34
(a) the Commissioner accepts the resignation, or 35
(b) the member has given the Commissioner at least 4 weeks' notice in 36
writing of the day on which the member intends to resign and the 37
member is not under suspension from duty on that day. 38
(3) In this section, resignation includes retirement and member of the NSW 39
Police Force does not include the Commissioner. 40
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Schedule 3 Amendment of Police Act 1990 No 47
94D Approval to engage in other paid employment 1
A member of the NSW Police Force (other than the Commissioner) must not 2
engage in any paid employment outside his or her duties as such a member 3
without the approval of the Commissioner. 4
[34] Section 184 Conduct and performance of administrative officers 5
Omit the section. 6
[35] Section 185 Disciplinary appeals to Industrial Relations Commission by 7
non-executive administrative employees 8
Omit "administrative officers (not being members of the NSW Police Force Senior 9
Executive Service) as if those officers". 10
Insert instead "non-executive administrative employees as if those employees". 11
[36] Section 203 Wearing or possession of police uniforms by others 12
Omit "appointed under section 82L" from section 203 (1). 13
Insert instead "employed under section 81G". 14
[37] Section 218 Industrial Relations Act 1996 not affected 15
Omit "section 44" from section 218 (2). Insert instead "section 42". 16
[38] Schedule 4 Savings, transitional and other provisions 17
Insert after Part 31: 18
Part 32 Provisions consequent on enactment of 19
Government Sector Employment Legislation 20
Amendment Act 2016 21
88 Definitions 22
In this Part: 23
amending Act means the Government Sector Employment Legislation 24
Amendment Act 2016. 25
former senior executive provisions means: 26
(a) the provisions of Part 5 of this Act (and any other provisions of this Act 27
that relate to the operation of that Part) as in force immediately before 28
the substitution of that Part by the amending Act, and 29
(b) the provisions of Part 3A of the Statutory and Other Offices 30
Remuneration Act 1975 as in force immediately before the 31
commencement of the amendments made by the amending Act to that 32
Part. 33
implementation date for a transitional police senior executive or transitional 34
administrative senior executive--see clause 90. 35
new senior executive provisions means the provisions of Part 5 of this Act 36
(and any other provisions of this Act that relate to the operation of that Part), 37
as substituted by the amending Act, and the provisions of Part 3B of the 38
Statutory and Other Offices Remuneration Act 1975. 39
senior executive bands determination has the same meaning as in the 40
Government Sector Employment Act 2013. 41
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Schedule 3 Amendment of Police Act 1990 No 47
transitional administrative senior executive means a person (other than a 1
police officer): 2
(a) who, immediately before the substitution of Part 5 of this Act by the 3
amending Act, was employed as an executive officer under the former 4
senior executive provisions (such a person is referred to in this Part as a 5
transitional administrative SES executive), or 6
(b) who, immediately before the substitution of Part 6A of this Act by the 7
amending Act, was employed under that Part in the NSW Police Force 8
as an administrative officer in the classification or grade of senior 9
officer (or in any equivalent classification or grade determined by the 10
Commissioner for the purposes of this definition) and whose salary was 11
more than the maximum salary for a clerk (Grade 12) in the Public 12
Service (such a person is referred to in this Part as a transitional 13
administrative SO executive). 14
transitional police senior executive means a police officer who, immediately 15
before the substitution of Part 5 of this Act by the amending Act, was 16
employed as an executive officer under the former senior executive 17
provisions. 18
89 Existing Police Commissioner 19
(1) The person holding office as Commissioner on the commencement of the 20
amendment made to section 27 of this Act by the amending Act continues in 21
office as Commissioner for the balance of the person's existing term of office. 22
However, the person ceases to hold office as Commissioner under this clause 23
if the person vacates that office in accordance with Part 4 of this Act or if the 24
person is subsequently appointed as Commissioner under Part 4 of this Act (as 25
amended by the amending Act). 26
(2) A person who continues in office as Commissioner under this clause: 27
(a) is taken to be employed in accordance with this Act (as amended by the 28
amending Act) in the Public Service senior executive band determined 29
in respect of that office, and 30
(b) is not required to enter into a contract of employment under the new 31
senior executive provisions for the purposes of the period of continued 32
employment, and 33
(c) has a remuneration package that is equivalent to the remuneration 34
package of the person immediately before the commencement of this 35
clause (unless the remuneration package is increased in accordance with 36
the former senior executive provisions or as a result of progression 37
within the applicable remuneration range), and 38
(d) is, if the person is removed from office under this Act (as amended by 39
the amending Act) on or after the commencement of this clause, entitled 40
to the compensation (if any) provided under and in accordance with 41
section 28 (7) of this Act (as in force immediately before the repeal of 42
that subsection by the amending Act). 43
90 Review of senior executive structure for implementation of new senior 44
executive provisions 45
(1) The Commissioner is to review the senior executive structure of the NSW 46
Police Force in order to transition senior executive employment in the NSW 47
Police Force to the arrangements under the new senior executive provisions. 48
(2) The Commissioner is, in consultation with the Public Service Commissioner, 49
to prepare an implementation schedule for the staged implementation of the 50
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Schedule 3 Amendment of Police Act 1990 No 47
new senior executive provisions to the extent they relate to transitional police 1
senior executives and transitional administrative senior executives. 2
(3) The implementation schedule is to set out the date on which the new senior 3
executive provisions will apply to transitional police senior executives and 4
transitional administrative senior executives. Different dates may be set for 5
different transitional senior executives. 6
(4) The date so set is the implementation date for the transitional senior executive 7
concerned. 8
(5) The implementation date for a transitional police senior executive or 9
transitional administrative senior executive may be changed by the 10
Commissioner in consultation with the Public Service Commissioner. 11
(6) The implementation date for a transitional police senior executive cannot be 12
earlier than the end of the person's term of office under the former senior 13
executive provisions. 14
91 Police senior executives--transitional arrangements 15
(1) Until the implementation date for a transitional police senior executive, the 16
new senior executive provisions apply to the executive subject to the 17
following: 18
(a) the executive is employed under the new senior executive provisions in 19
term employment in the band under the senior executive bands 20
determination that includes the remuneration package to which the 21
executive continues to be entitled under this subclause, 22
(b) the term for which the executive is taken to be so employed is (subject 23
to this subclause): 24
(i) the balance of the person's term of office as a transitional police 25
senior executive, and 26
(ii) any additional period before the implementation date that the 27
Commissioner may approve, 28
(c) the executive is not required to enter into a contract of employment 29
under the new senior executive provisions for the purposes of that 30
period of continued employment, 31
(d) the executive has a remuneration package that is equivalent to the 32
remuneration package of the person under the former senior executive 33
provisions (unless the remuneration package is increased in accordance 34
with those provisions or as a result of progression within the applicable 35
remuneration range), 36
(e) if the executive's employment is terminated under section 40 of this Act 37
(as inserted by the amending Act), the executive is entitled to the 38
compensation provided under the former senior executive provisions 39
(and is subject to any requirements under those provisions relating to 40
the refund of that compensation) as if the termination had been a 41
removal of the executive from office under those former provisions. 42
(2) On the implementation date for a transitional police senior executive, the 43
person: 44
(a) ceases to be a transitional police senior executive, and 45
(b) is employed as a NSW Police Force senior executive under the new 46
senior executive provisions. 47
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Schedule 3 Amendment of Police Act 1990 No 47
92 Administrative senior executives--transitional arrangements 1
(1) Until the implementation date for a transitional administrative SES executive, 2
the new senior executive provisions apply to the executive subject to the 3
following: 4
(a) the executive is taken to be employed in the band under the Public 5
Service senior executive bands determination that the Commissioner 6
considers appropriate for the role of the executive, 7
(b) the term for which the executive is taken to be so employed is (subject 8
to this clause): 9
(i) the balance of the person's term of office as a transitional 10
administrative SES executive, and 11
(ii) any additional period before the implementation date that the 12
Commissioner may approve, 13
(c) the executive is not required to enter into a contract of employment 14
under the new senior executive provisions for the purposes of that 15
period of continued employment, 16
(d) the executive has a remuneration package that is equivalent to the 17
remuneration package of the person under the former senior executive 18
provisions even if it exceeds the band in which the executive is 19
employed, 20
(e) if the executive's employment is terminated under section 40 of this Act 21
(as inserted by the amending Act), the executive is entitled to the 22
compensation provided under the former senior executive provisions 23
(and is subject to any requirements under those provisions relating to 24
the refund of that compensation) as if the termination had been a 25
removal of the executive from office under the former senior executive 26
provisions. 27
(2) The following provisions apply in relation to a person who is a transitional 28
administrative SO executive until the person's implementation date: 29
(a) the person is employed under Part 6A of this Act (as substituted by the 30
amending Act) in ongoing employment, 31
(b) the person is not employed in a band under the senior executive bands 32
determination, 33
(c) the conditions of employment applying to the person immediately 34
before the commencement of this clause continue to apply to the person, 35
subject to this clause, 36
(d) if the person's employment is terminated under section 81E of this Act 37
(as inserted by the amending Act), the person is entitled to the 38
compensation that the person would have received had the person's 39
employment been terminated immediately before the commencement 40
of this clause. 41
(3) If a transitional administrative senior executive is assigned to a different role 42
in the NSW Police Force: 43
(a) the person does not cease to be a transitional administrative senior 44
executive, and 45
(b) the remuneration package of the transitional administrative senior 46
executive is, despite subclause (1) (d) and subject to section 36 (7) of 47
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Schedule 3 Amendment of Police Act 1990 No 47
this Act, the remuneration package for the role to which the executive 1
has been so assigned. 2
Note. See also subclause (7) for consequences of temporary assignments outside the 3
NSW Police Force. 4
(4) On the implementation date for a transitional administrative senior executive: 5
(a) the person ceases to be a transitional administrative senior executive, 6
and 7
(b) the employment of the person in the NSW Police Force is terminated 8
unless the person is employed in the NSW Police Force on and from the 9
implementation date in accordance with this Act (whether as a NSW 10
Police Force senior executive or as a non-executive administrative 11
employee, and whether following recruitment action or, in the case of a 12
transitional administrative SO executive, following redeployment as an 13
excess employee), and 14
(c) any such termination of the employment of a person who was a 15
transitional administrative SES executive is taken to be a termination 16
under section 40 of this Act to which subclause (1) (e) applies, and 17
(d) any such termination of the employment of a person who was a 18
transitional administrative SO executive is taken to be a termination 19
under section 81E of this Act to which this Act (including the conditions 20
of employment preserved by this clause) applies, and 21
(e) section 42 of this Act applies to any such termination of employment of 22
a person (whether an existing administrative SES executive or an 23
existing administrative SO executive) on the basis that the person is an 24
executive employee for the purposes of that section. 25
(5) The following applies to the creation of a role within the new senior executive 26
structure of the NSW Police Force (to the extent that it relates to administrative 27
employees) and to the initial recruitment action under this Act to fill that role: 28
(a) the work level and other employment arrangements relating to a new 29
role within that new structure are to be determined under this Act and 30
are not determined by the work level and other arrangements that 31
applied to roles in the former executive structure of the NSW Police 32
Force, 33
(b) transitional administrative senior executives may be recruited to any 34
such new role before or at the end of the period of their continued 35
employment as transitional administrative senior executives, 36
(c) the initial recruitment action to fill any such role is to be limited to the 37
following candidates (having regard to the type and level of the role and 38
any other relevant matter): 39
(i) any transitional administrative senior executives who occupy a 40
similar role in the NSW Police Force, 41
(ii) any NSW Police Force senior executives employed in a similar 42
role after the substitution of Part 5 of this Act by the amending 43
Act, 44
(iii) any other persons employed in the NSW Police Force whom the 45
Commissioner considers appropriate. 46
(6) Initial recruitment action to fill a role within the new senior executive structure 47
of the NSW Police Force Public Service agency (to the extent that it relates to 48
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Schedule 3 Amendment of Police Act 1990 No 47
administrative employees) is not required to be limited as referred to in 1
subclause (5) (c) if: 2
(a) there are no candidates of the kind referred to in subclause (5) (c) (i) or 3
(ii) for the recruitment action concerned, or 4
(b) the role is not similar to any role in the former executive structure of the 5
NSW Police Force. 6
(7) If a transitional administrative senior executive is temporarily assigned to 7
work outside the NSW Police Force: 8
(a) the person does not cease to be a transitional administrative senior 9
executive, and the implementation date for the executive does not 10
change, because of that temporary assignment, and 11
(b) the person retains his or her eligibility under subclause (5) as a 12
candidate for initial recruitment action in the NSW Police Force, and 13
(c) the person is also eligible under subclause (5) as a candidate for initial 14
recruitment action in relation to a similar role in the other government 15
sector agency to which the person is temporarily assigned. 16
93 Transitional provisions relating to remuneration of senior executives 17
(1) For the purposes of clauses 91 and 92, the remuneration package of a person 18
under the former senior executive provisions includes any of the following 19
determined by the Statutory and Other Offices Remuneration Tribunal and 20
payable to the person under those provisions: 21
(a) a remuneration package that is payable to the person as the holder of the 22
relevant position under the former senior executive provisions that 23
exceeds the remuneration package otherwise determined for the senior 24
executive level of the person, 25
(b) an additional amount payable as a recruitment allowance. 26
(2) If a person referred to in subclause (1) to whom a recruitment allowance is 27
payable is subsequently employed in accordance with the new senior 28
executive provisions as a NSW Police Force senior executive, the person 29
continues to be entitled to so much of that former recruitment allowance as 30
will ensure that the remuneration payable after that subsequent employment is 31
not less than the remuneration payable before that subsequent employment. 32
Any general increase in remuneration packages to account for an annual 33
determination of the Statutory and Other Offices Remuneration Tribunal is to 34
be excluded and does not operate to reduce the amount of recruitment 35
allowance payable. 36
(3) This subclause applies to a transitional administrative SES executive who is 37
subsequently employed in accordance with the new senior executive 38
provisions as a NSW Police Force senior executive and who is assigned to a 39
new role (or subsequently assigned to a different role) that is of equivalent 40
work value as the person's former position, office or role. The remuneration 41
package of the person in any such new or different role is to be not less than 42
the remuneration package of the person immediately before the person was so 43
subsequently employed. 44
(4) This subclause applies to a transitional administrative SO executive who is 45
subsequently employed in accordance with the new senior executive 46
provisions as a NSW Police Force senior executive and who is assigned to a 47
role (when first so employed) that is of equivalent work value as the person's 48
position immediately before the commencement of this clause. The person 49
may be paid an allowance, determined by the Commissioner in accordance 50
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with guidance provided by the Public Service Commissioner, to avoid any 1
financial disadvantage as a NSW Police Force senior executive in that role (or 2
any other assigned role of equivalent work value) compared to the 3
remuneration payable immediately before the person was so subsequently 4
employed. 5
(5) A retention allowance payable under the former senior executive provisions to 6
a person to whom clause 91 or 92 applies is payable for completed years of 7
service (or pro rata for completed parts of years of service) on the date the 8
person ceases to be a person to whom that clause applies (otherwise than by 9
resignation). 10
94 Existing non-executive administrative officers 11
(1) A person (other than a transitional administrative SO executive) who was 12
employed in the NSW Police Force as a non-executive administrative officer 13
immediately before the substitution of Part 6A of this Act by the amending Act 14
is, on that substitution, taken to be employed in ongoing employment as a 15
non-executive administrative employee under that Part. 16
(2) The application of the provisions of this Act, the regulations and the 17
government sector employment rules to any such person is subject to the 18
provisions of this Schedule. 19
(3) The substitution of Part 6A of this Act does not affect the continuity of service 20
of a person taken to be employed under this clause, any accrued rights to leave 21
under the former Part 6A or any accrual of rights to leave under this Act. 22
(4) A person who is taken to be employed under this clause is taken to be 23
employed in a role or classification of work that corresponds to the kind and 24
grade of work of the person's position or work on the substitution of Part 6A. 25
95 Existing temporary employees 26
(1) A person who was employed in the NSW Police Force as a temporary 27
employee immediately before the repeal of Part 7 of this Act by the amending 28
Act (an existing temporary employee) is, on that repeal, taken to be employed 29
in temporary employment as a non-executive administrative employee under 30
Part 6A of this Act (as substituted by the amending Act). 31
(2) The application of the provisions of this Act, the regulations and the 32
government sector employment rules to an existing temporary employee is 33
subject to the provisions of this Schedule. 34
(3) The repeal of Part 7 of this Act (the repealed Part) does not affect the 35
continuity of service of an existing temporary employee, any accrued rights to 36
leave under the repealed Part or any accrual of rights to leave under this Act 37
(as amended by the amending Act). 38
(4) A person who is taken to be employed under this clause is taken to be 39
employed in a role or classification of work that corresponds to the kind and 40
grade of the person's work on the repeal of Part 7. 41
(5) The Commissioner is to determine a date for the purposes of this clause in 42
respect of each existing temporary employee (the determined date). 43
(6) If the term of employment of an existing temporary employee is due to expire 44
before the determined date, the person's temporary employment may be 45
extended before it expires in accordance with the repealed Part as if that Part 46
had not been repealed. However, if the temporary employment is to be 47
extended beyond the determined date, the extension of the existing temporary 48
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employee's employment must satisfy the requirements of the government 1
sector employment rules relating to temporary employment. 2
(7) On and from the determined date, any extension of the temporary employee's 3
employment must be made in accordance with the provisions of the 4
government sector employment rules relating to temporary employment. 5
(8) Despite its repeal, section 91A of this Act continues to apply, until the 6
determined date, in relation to an existing temporary employee who is a 7
long-term temporary employee within the meaning of that section. Any 8
appointment of the employee under that section as so continued by this clause 9
is taken to be employment in ongoing employment under this Act in a relevant 10
role. 11
(9) On and from the determined date, any conversion of an existing temporary 12
employee's employment to ongoing employment must be made in accordance 13
with the provisions of the government sector employment rules. 14
96 References to special constables 15
In any other Act, in any statutory or other instrument, or in any contract or 16
agreement, a reference to a special constable within the meaning of 17
section 82L of this Act is to be construed as a reference to a special constable 18
within the meaning of section 81G of this Act. 19
97 Savings and transitional regulations 20
(1) The provisions of any regulation made under Part 1 of this Schedule 21
consequent on the enactment of the amending Act have effect despite anything 22
to the contrary in this Part. 23
(2) The regulations made under Part 1 of this Schedule consequent on the 24
enactment of the amending Act may make separate savings and transitional 25
provisions or amend this Part to consolidate the savings and transitional 26
provisions. 27
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 4 Amendment of Transport Administration Act 1988 No 109
Schedule 4 Amendment of Transport Administration Act 1
1988 No 109 2
[1] Part 7A 3
Omit the Part. Insert instead: 4
Part 7A The Transport Service 5
68B The Transport Service 6
(1) The Transport Service of New South Wales consists of those persons who are 7
employed under this Part by the Government of New South Wales in the 8
service of the Crown. 9
(2) Those persons are not employed in the Public Service of New South Wales. 10
68C Employment in the Transport Service 11
(1) The Government of New South Wales may employ persons in the Transport 12
Service to enable the following bodies (and their public subsidiary 13
corporations) to exercise their functions: 14
(a) TfNSW, 15
(b) State Transit Authority, 16
(c) RMS. 17
Note. Section 68Q (10) provides that the persons so employed may be referred to as 18
officers or employees, or members of staff, of the body or corporation concerned. 19
Section 47A of the Constitution Act 1902 precludes TfNSW, the State Transit Authority 20
and RMS (and any of their public subsidiary corporations) from employing staff. 21
(2) The Government of New South Wales may also employ persons in the 22
Transport Service to enable RailCorp (or a public subsidiary corporation of 23
RailCorp) to exercise its functions. 24
Note. RailCorp also has the power to employ staff separately (see section 58A). Staff 25
employed by RailCorp are not employed in the Transport Service. 26
(3) The Transport Secretary may, subject to this and any other Act or law, exercise 27
on behalf of the Government of New South Wales the employer functions of 28
the Government in relation to the persons employed in the Transport Service. 29
(4) The employer functions of the Government are all the functions of an 30
employer in respect of employees, including (without limitation) the power to 31
employ persons, to assign them to roles and to terminate their employment. 32
68D Transport Service senior executives, senior managers and non-executive 33
employees 34
(1) Persons who are employed in the Transport Service in a Public Service senior 35
executive band are Transport Service senior executives. For that purpose, the 36
Public Service senior executive bands under the Government Sector 37
Employment Act 2013 apply to employment in the Transport Service. 38
(2) Persons who are employed in the Transport Service and designated by the 39
Transport Secretary as senior managers are Transport Service senior 40
managers. 41
(3) All other persons employed in the Transport Service who are not Transport 42
Service senior executives or Transport Service senior managers are Transport 43
Service non-executive employees. 44
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Schedule 4 Amendment of Transport Administration Act 1988 No 109
68E Kinds of employment in the Transport Service 1
(1) Employment in the Transport Service may be any one of the following kinds 2
of employment: 3
(a) ongoing employment, 4
(b) term employment (in the case of Transport Service senior executives or 5
senior managers), 6
(c) temporary employment (in the case of Transport Service non-executive 7
employees), 8
(d) casual employment (in the case of Transport Service non-executive 9
employees). 10
(2) Ongoing employment is employment that continues until the employee 11
resigns or his or her employment is terminated. 12
(3) Term employment is employment for a specified period or for the duration of 13
a specified task (unless the employee sooner resigns or his or her employment 14
is terminated). 15
(4) Temporary employment is employment for a temporary purpose. 16
(5) Casual employment is employment to carry out irregular, intermittent, 17
short-term, urgent or other work as and when required. 18
68F Senior executives--employment in bands and assignment to roles 19
(1) A Transport Service senior executive is to be employed in the Public Service 20
senior executive band that the Transport Secretary considers appropriate for 21
the role of the executive. 22
(2) In determining the number of Transport Service senior executives and the 23
appropriate band in which they are employed, the Transport Secretary is to 24
apply the applicable work level standards and have regard to any guidance 25
provided by the Public Service Commissioner. 26
(3) A Transport Service senior executive may, from time to time, be assigned by 27
the Transport Secretary to a role in any part of the Transport Service in the 28
band in which the executive is employed. 29
(4) A Transport Service senior executive may: 30
(a) be transferred by the Transport Secretary to the Public Service of New 31
South Wales and assigned to a role in any Public Service agency in the 32
band in which the executive is employed (with the agreement of the 33
head of that agency), or 34
(b) be transferred by the Transport Secretary to the NSW Police Force and 35
assigned to a role (other than as a police officer) in the band in which 36
the executive is employed (with the agreement of the Commissioner of 37
Police), or 38
(c) be transferred by the Transport Secretary to the NSW Health Service 39
and assigned to a role in the band in which the executive is employed 40
(with the agreement of the Secretary of the Ministry of Health). 41
Note. A Transport Service senior executive may not be assigned to the role of 42
chief executive of a local health district or specialty network governed health 43
corporation except with the concurrence of the board of the organisation 44
concerned--see section 121D (11) of the Health Services Act 1997. 45
(5) Transport Service senior executives may be assigned to roles under this 46
section to enable the flexible deployment of staff resources and to develop the 47
capabilities of staff. 48
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(6) A Transport Service senior executive is not to be assigned to a different role 1
under this section unless the executive has been consulted. The remuneration 2
payable to the executive is not to be reduced because of the assignment to the 3
different role without the consent of the executive. This subsection extends to 4
a transfer under subsection (4). 5
(7) In this section: 6
assign to a role includes assign to a different role. 7
role of a Transport Service senior executive means the duties and 8
responsibilities of the executive. 9
68G Senior executives--government sector employment rules 10
(1) The Public Service Commissioner may make government sector employment 11
rules under section 12 of the Government Sector Employment Act 2013 on any 12
matter relating to the employment of Transport Service senior executives 13
(including, without limitation, matters of the kind referred to in section 36 of 14
that Act). 15
(2) The Public Service Commissioner must consult the Transport Secretary before 16
making any such rules. 17
68H Senior executives--contract of employment 18
(1) A Transport Service senior executive is to be employed under a written 19
contract of employment signed by the executive and by the Transport 20
Secretary on behalf of the Government. 21
(2) Without limiting section 68G (1), the government sector employment rules 22
made under section 12 of the Government Sector Employment Act 2013 may 23
prescribe model contracts of employment for Transport Service senior 24
executives and may specify any model provisions that are mandatory and that 25
prevail in the event of any inconsistency with the provisions of a contract of 26
employment. 27
(3) Subject to this Part, the government sector employment rules and any direction 28
issued by the Public Service Commissioner under the Government Sector 29
Employment Act 2013, a contract of employment of a Transport Service senior 30
executive is to deal with the following matters: 31
(a) the band in which the executive is employed, 32
(b) the duration of the contract if the executive is not employed in ongoing 33
employment, 34
(c) the total remuneration package of the executive (comprising monetary 35
remuneration and employment benefits) and any allowances, 36
(d) performance obligations, and reviews of performance, of the executive, 37
(e) progression in the total remuneration package of the executive based on 38
performance, 39
(f) leave and other conditions of employment of the executive, 40
(g) the compensation for any termination of employment of the executive 41
by the Transport Secretary (including the period to which the 42
compensation relates), 43
(h) any other matter prescribed by the regulations under section 39 (4) of 44
the Government Sector Employment Act 2013. 45
(4) The contract of employment of a Transport Service senior executive may, 46
subject to this Act, include conditions of engagement. 47
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(5) The contract of employment of a Transport Service senior executive does not 1
limit, and is not terminated or otherwise affected by: 2
(a) the transfer of the executive under section 68F (4) to the Public Service 3
of New South Wales, the NSW Police Force or the NSW Health 4
Service, or 5
(b) the assignment of the executive to a different role or any other change 6
to the title, place of work or duties of the executive. 7
(6) A contract of employment of a Transport Service senior executive may, 8
subject to this section, be varied at any time in accordance with the contract or 9
by further agreement. 10
(7) The regulations under the Government Sector Employment Act 2013 may 11
make provision with respect to the compensation to which a Transport Service 12
senior executive whose employment is terminated is entitled under his or her 13
contract of employment. 14
68I Senior executives--remuneration, benefits and allowances 15
(1) The remuneration package of a Transport Service senior executive must be 16
within the range determined under the Statutory and Other Offices 17
Remuneration Act 1975 for the band in which the executive is employed 18
(except as provided by subsection (2)). 19
Note. See also section 24R (3) of the Statutory and Other Offices Remuneration Act 20
1975. 21
(2) The Transport Secretary may, in accordance with parameters agreed on by the 22
Transport Secretary and the Public Service Commissioner, determine a 23
remuneration package for a Transport Service senior executive or class of 24
Transport Service senior executives that is within a range higher than the range 25
determined under the Statutory and Other Offices Remuneration Act 1975 for 26
the band in which the executive or class of executives is employed. 27
(3) The kinds and value of employment benefits and the allowances for a 28
Transport Service senior executive are to be determined by the Transport 29
Secretary. In making any such determination, the Transport Secretary is to 30
have regard to any similar determinations that apply to Public Service senior 31
executives. 32
(4) A Transport Service senior executive is only entitled to the remuneration, 33
employment benefits or allowances provided in the executive's contract of 34
employment. 35
(5) For the purposes of this section, employment benefits for a Transport Service 36
senior executive are: 37
(a) contributions by the executive's employer to a superannuation scheme 38
or fund of the executive, and 39
(b) other benefits provided to the executive at the cost of the executive's 40
employer that are of a private nature. 41
68J Senior managers--remuneration level and conditions of employment 42
(1) The remuneration level for Transport Service senior managers is to be less 43
than that for any Transport Service senior executive and more than that for a 44
clerk (grade 12) in the Public Service with general administrative duties. 45
(2) However, the Transport Secretary may, in such cases as the Transport 46
Secretary considers appropriate, determine a remuneration level for any 47
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Schedule 4 Amendment of Transport Administration Act 1988 No 109
particular Transport Service senior manager or class of senior managers that is 1
above the range referred to in subsection (1). 2
Note. See also the relevant savings and transitional provisions of Schedule 7 which 3
provide that existing senior managers (ie members of the Transport Service who were 4
designated as senior managers before the commencement of the substitution of this 5
Part by the Government Sector Employment Legislation Amendment Act 2016) have 6
on that commencement the same remuneration as paid to them under the former 7
executive provisions. 8
(3) The conditions of employment of Transport Service senior managers are the 9
conditions set out in a written contract of employment between the Transport 10
Secretary and the senior manager. 11
(4) The contract of employment may adopt by reference conditions of 12
employment applicable to Transport Service senior executives. 13
(5) In this section: 14
conditions of employment has the same meaning as in the Industrial Relations 15
Act 1996. 16
68K Non-executive employees--conditions of employment 17
(1) The Transport Secretary may fix the conditions of employment of Transport 18
Service non-executive employees in so far as they are not fixed by or under 19
any other law. Conditions of employment fixed under this subsection may 20
adopt by reference conditions of employment applicable to Transport Service 21
senior executives or senior managers. 22
(2) The Transport Secretary may enter into an agreement with any association or 23
organisation representing Transport Service non-executive employees with 24
respect to the conditions of employment of those employees in so far as they 25
are not fixed by or under any other law. 26
(3) The Transport Secretary is, for the purposes of any proceedings relating to 27
Transport Service non-executive employees held before a competent tribunal 28
having jurisdiction to deal with industrial matters, taken to be the employer of 29
those employees. 30
(4) In this section: 31
conditions of employment has the same meaning as in the Industrial Relations 32
Act 1996. 33
68L Senior managers and non-executive employees--assignment to different roles 34
within Transport Service 35
(1) The Transport Secretary may, subject to this section, assign a person who is a 36
Transport Service senior manager or non-executive employee to another role 37
within the Transport Service following consultation with the person. 38
(2) The following provisions apply to the assignment of a person under this 39
section: 40
(a) the assignment is to be made at the person's existing level of 41
remuneration, unless the person consents to the assignment at a lower 42
level of remuneration, 43
(b) the Transport Secretary must be satisfied that the person possesses the 44
essential qualifications specified for the other role and the work 45
assigned to the other role is appropriate to the skills and qualifications 46
of the person, 47
(c) the person is entitled, on the assignment date, to any conditions of 48
employment applicable to that person under section 67 immediately 49
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before the assignment, until such time as further provision is made 1
under this Act or any other law. 2
68M Acting in senior executive or senior manager roles 3
(1) The Transport Secretary may assign a Transport Service senior manager to act 4
in the role of a Transport Service senior executive if: 5
(a) the person who is usually assigned to that other role is unavailable for 6
any reason, or 7
(b) there is no person performing duties in that other role for the time being. 8
(2) The Transport Secretary may assign a Transport Service non-executive 9
employee to act in the role of a Transport Service senior executive or senior 10
manager if: 11
(a) the person who is usually assigned to that other role is unavailable for 12
any reason, or 13
(b) there is no person performing duties in that other role for the time being. 14
(3) While assigned to act in the role of a Transport Service senior executive or 15
senior manager the person has, subject to any determination by the Transport 16
Secretary, all the functions of the executive or senior manager but does not 17
thereby become a Transport Service senior executive or senior manager if not 18
already such an executive or manager. 19
(4) An assignment to act in the role of a Transport Service senior executive or 20
senior manager under this section may be terminated at any time by the 21
Transport Secretary. 22
(5) This Part does not prevent the payment of an applicable allowance to a person 23
when assigned to act in the role of a Transport Service senior executive or 24
senior manager under this section. 25
68N Senior executives and managers--termination of employment 26
(1) The Transport Secretary may terminate the employment of a Transport 27
Service senior executive or senior manager at any time, for any or no stated 28
reason and without notice. 29
Note. The regulations also provide for the termination of the employment of members 30
of the Transport Service senior executive on disciplinary grounds. 31
(2) A Transport Service senior executive or senior manager whose employment is 32
terminated under this section is entitled to such compensation (if any) as may 33
be provided in the contract of employment of the executive or manager (and 34
to no other compensation or entitlement for the termination of employment 35
other than superannuation entitlements). 36
(3) A Transport Service senior executive or senior manager whose employment is 37
so terminated is not to be employed in the public sector during the period 38
specified in the contract of employment to which any such compensation 39
relates unless arrangements have been made for a refund of the proportionate 40
amount of the compensation. 41
(4) The regulations under the Government Sector Employment Act 2013 may 42
make provision relating to the calculation of the proportionate amount of a 43
payment to be refunded under subsection (3). 44
(5) A Transport Service senior executive or senior manager whose employment is 45
terminated under the provisions of the regulations under this Part (or other 46
statutory provisions) relating to the termination of the employment of persons 47
employed in the Transport Service in connection with disciplinary action is not 48
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Schedule 4 Amendment of Transport Administration Act 1988 No 109
entitled to compensation under this section. Those provisions do not apply to 1
a termination of employment under this section. 2
(6) For the purposes of this section, employment of a former executive or manager 3
in the public sector and public sector have the same meanings as in section 41 4
of the Government Sector Employment Act 2013. 5
68O Senior executives and managers--industrial or legal proceedings excluded 6
(1) The employment of a Transport Service senior executive or senior manager, 7
or any matter, question or dispute relating to any such employment, is not an 8
industrial matter for the purposes of the Industrial Relations Act 1996. 9
(2) Parts 6, 7 and 9 of Chapter 2 of the Industrial Relations Act 1996 do not apply 10
to or in respect of the employment of a Transport Service senior executive or 11
senior manager. 12
(3) Any State industrial instrument (whether made before or after the 13
commencement of this section) does not have effect in so far as it relates to the 14
employment of Transport Service senior executives or senior managers. This 15
subsection does not prevent the provisions of any such industrial instrument 16
being adopted by reference in the conditions of employment of any such 17
executive or manager. 18
(4) No proceedings for an order in the nature of prohibition, certiorari or 19
mandamus or for a declaration or injunction or for any other relief, lie in 20
respect of a matter that is declared by this section not to be an industrial matter 21
for the purposes of the Industrial Relations Act 1996. 22
(5) In this section, a reference to the employment of a Transport Service senior 23
executive or senior manager is a reference to: 24
(a) the engagement of, or failure to engage, a person as such an executive 25
or manager, or 26
(b) the assignment or re-assignment of the executive or manager to a role in 27
a band or a classification, or 28
(c) the removal, retirement, termination of employment or other cessation 29
of employment of the executive or manager, or 30
(d) any disciplinary proceedings or action taken against the executive or 31
manager, or 32
(e) the remuneration or other conditions of employment of the executive or 33
manager. 34
68P Regulations relating to employees in the Transport Service 35
(1) The regulations may make provision for or with respect to the employment of 36
persons in the Transport Service, including conditions of employment and 37
disciplinary matters. 38
(2) Any such regulations have effect: 39
(a) despite any determination of the Transport Secretary under this Part, 40
and 41
(b) except in the case of Transport Service senior executives or senior 42
managers--subject to any relevant award made by a competent 43
industrial tribunal and to any industrial agreement to which the 44
Transport Secretary is a party. 45
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Schedule 4 Amendment of Transport Administration Act 1988 No 109
68Q Miscellaneous provisions relating to the Transport Service 1
(1) Groups of staff 2
The Transport Secretary may create groups (however described) of staff and 3
designate persons employed in the Transport Service to any such group. 4
(2) Extended leave entitlements 5
Persons employed in the Transport Service have the same entitlements to 6
extended leave as Public Service employees under the Government Sector 7
Employment Act 2013. 8
(3) Retirement on medical grounds 9
The Transport Secretary may retire a person employed in the Transport 10
Service if: 11
(a) the employee is found to be unfit to perform or incapable of performing 12
the duties of the person's employment, and 13
(b) the employee's unfitness or incapacity: 14
(i) appears likely to be of a permanent nature, and 15
(ii) has not arisen from actual misconduct on the part of the 16
employee, or from causes within the employee's control. 17
(4) Resignation of employment 18
A person employed in the Transport Service may resign his or her employment 19
by written notice to the Transport Secretary. 20
(5) Civil liability with respect to employees 21
If: 22
(a) a person is employed in the Transport Service, and 23
(b) the Government of New South Wales is, as the person's employer, 24
proceeded against for any negligence or other tort of the person 25
(whether the damages are recoverable in an action for tort or breach of 26
contract or in any other action), and 27
(c) TfNSW, the State Transit Authority, RMS or RailCorp, or a public 28
subsidiary corporation of any such transport authority, is entitled under 29
a policy of insurance or indemnity to be indemnified in respect of 30
liability that it may incur in respect of that negligence or other tort, 31
the Government is subrogated to the rights of TfNSW, the State Transit 32
Authority, RMS, RailCorp or the public subsidiary corporation under that 33
policy in respect of the liability incurred by the Government arising from that 34
negligence or other tort. 35
(6) Operation of privacy legislation 36
The persons employed in the Transport Service to enable TfNSW, the State 37
Transit Authority, RMS or RailCorp, or a public subsidiary corporation of any 38
such transport authority, to exercise its functions are, for the purposes of the 39
Privacy and Personal Information Protection Act 1998 and the Health 40
Records and Information Privacy Act 2002, taken to be part of TfNSW, the 41
State Transit Authority, RMS, RailCorp or the public subsidiary corporation, 42
as the case requires. 43
(7) Delegation of Transport Secretary's functions under this Part 44
The Transport Secretary may delegate any of the Transport Secretary's 45
functions under this Part (other than this power of delegation) to a person 46
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Schedule 4 Amendment of Transport Administration Act 1988 No 109
employed in the Transport Service or to a person employed in the Department 1
of Transport. 2
(8) Delegation of Transport Secretary's functions under GSE Act 3
The power of the Transport Secretary under section 27 of the Government 4
Sector Employment Act 2013 to delegate a function referred to in that section 5
extends to a delegation of the function to a person employed in the Transport 6
Service. 7
(9) Acting Transport Secretary 8
A person employed in the Transport Service may also be appointed to act as 9
the Transport Secretary under section 24 of the Government Sector 10
Employment Act 2013. 11
(10) Construction of references relating to transport employees 12
In this or any other Act, or in any instrument made under this or any other Act 13
or in any other instrument of any kind, a reference to an officer or employee, 14
or a member of staff, of: 15
(a) TfNSW or a public subsidiary corporation of TfNSW is to be read as a 16
reference to a person employed in the Transport Service to enable 17
TfNSW or the public subsidiary corporation to exercise its functions, or 18
(b) the State Transit Authority or a public subsidiary corporation of the 19
Authority is to be read as a reference to a person employed in the 20
Transport Service to enable the Authority or the public subsidiary 21
corporation to exercise its functions, or 22
(c) RMS or a public subsidiary corporation of RMS is to be read as a 23
reference to a person employed in the Transport Service to enable RMS 24
or the public subsidiary corporation to exercise its functions, or 25
(d) RailCorp or a public subsidiary corporation of RailCorp is to be read as 26
including a reference to a person employed in the Transport Service to 27
enable RailCorp or the public subsidiary corporation to exercise its 28
functions. 29
[2] Schedule 7 Savings, transitional and other provisions 30
Insert at the end of the Schedule with appropriate Part and clause numbering: 31
Part Provisions consequent on enactment of 32
Government Sector Employment Legislation 33
Amendment Act 2016 34
Definitions 35
In this Part: 36
amending Act means the Government Sector Employment Legislation 37
Amendment Act 2016. 38
existing senior executive means a person (other than an existing senior 39
manager) who, immediately before the substitution of Part 7A of this Act by 40
the amending Act, was employed as an executive officer under the former 41
senior executive provisions. 42
existing senior manager means a person who, immediately before the 43
substitution of Part 7A of this Act by the amending Act, was: 44
(a) employed as an executive officer under the former senior executive 45
provisions, and 46
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Schedule 4 Amendment of Transport Administration Act 1988 No 109
(b) designated as a senior manager by the Transport Secretary. 1
former senior executive provisions means the provisions of section 68G of 2
this Act (and any other provisions of this Act that relate to the operation of that 3
section), as in force immediately before the repeal of that section by the 4
amending Act. 5
new senior executive provisions means the provisions of Part 7A of this Act 6
(and any other provisions of this Act that relate to the operation of that Part), 7
as substituted by the amending Act, and the provisions of Part 3B of the 8
Statutory and Other Offices Remuneration Act 1975. 9
Continuation of public transport chief executives 10
The appointment and term of office of a person holding office as a Chief 11
Executive to whom Schedule 2 applies, the Chief Executive of the ITSR or the 12
Chief Investigator of the Office of Transport Safety Investigations on the 13
commencement of the amendments made to this Act by the amending Act is 14
not affected by the amending Act. 15
Existing senior executives--transitional arrangements 16
(1) The Transport Secretary is, in consultation with the Public Service 17
Commissioner, to prepare an implementation schedule for the staged 18
implementation of the new senior executive provisions in relation to existing 19
senior executives. 20
(2) The implementation schedule is to set out the date on which the new senior 21
executive provisions will apply to existing senior executives. Different dates 22
may be set for different existing senior executives. 23
(3) The date so set is the implementation date for the existing senior executive 24
concerned. 25
(4) The implementation date for an existing senior executive may be changed by 26
the Transport Secretary in consultation with the Public Service Commissioner. 27
(5) Until the implementation date for an existing senior executive, the former 28
senior executive provisions continue to apply, and the new senior executive 29
provisions do not apply, to the person despite the repeal of the former senior 30
executive provisions by the amending Act. 31
(6) On the implementation date for an existing senior executive, the person: 32
(a) ceases to be employed under the former senior executive provisions, 33
and 34
(b) is employed as a Transport Service senior executive under the new 35
senior executive provisions in the same kind of employment in which 36
the person was employed as an existing senior executive. 37
(7) The employment of any such person as a Transport Service senior executive 38
under the new senior executive provisions is subject to the following: 39
(a) the person has a remuneration package that is equivalent to the person's 40
remuneration package under the former senior executive provisions 41
even if it exceeds the band in which the person is employed, 42
Note. The band in which the person is employed is determined by the Transport 43
Secretary in accordance with section 68F (1) and (2). 44
(b) the person's remuneration package may be increased in accordance 45
with the former senior executive provisions whether or not the person 46
remains within the band in which the person was employed on the 47
implementation date, 48
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Schedule 4 Amendment of Transport Administration Act 1988 No 109
(c) the person is not required to enter into a contract of employment under 1
the new senior executive provisions and section 68H (2) of this Act does 2
not apply in relation to the person, 3
(d) the person's contract of employment under the former senior executive 4
provisions continues to apply to the person, 5
(e) any such existing contract of employment may be extended or renewed, 6
or varied, in accordance with the former senior executive provisions. 7
Existing senior managers--transitional arrangements 8
(1) On the commencement of the new senior executive provisions, an existing 9
senior manager is taken to be employed under those provisions as a Transport 10
Service senior manager in the same kind of employment in which the person 11
was employed as an existing senior manager. 12
(2) The employment of any such senior manager under the new senior executive 13
provisions is subject to the following: 14
(a) the person has a remuneration package that is equivalent to the person's 15
remuneration package under the former senior executive provisions, 16
(b) any such remuneration package may be subsequently increased in 17
accordance with the arrangements in force under the former senior 18
executive provisions, 19
(c) if the person was employed under the former senior executive 20
provisions at a remuneration level equivalent to any person employed 21
as a Transport Service senior executive under the new senior executive 22
provisions, the person may, despite section 68J (1), continue to be paid 23
remuneration at the senior executive level, 24
(d) the person is not required to enter into a contract of employment under 25
the new senior executive provisions and the person's contract of 26
employment under the former senior executive provisions continues to 27
apply, 28
(e) any such existing contract of employment may be extended or renewed, 29
or varied, in accordance with the former senior executive provisions. 30
(3) Subclause (2) ceases to apply in relation to a Transport Service senior manager 31
if the manager is subsequently employed in a role that has a remuneration level 32
exceeding the remuneration paid to the manager immediately before being 33
employed in the new role. 34
Existing non-executive employees 35
(1) A person (other than an existing senior executive or existing senior manager) 36
who was employed in the Transport Service immediately before the 37
substitution of Part 7A of this Act by the amending Act is, on that substitution, 38
taken to be employed as a Transport Service non-executive employee in the 39
same kind of employment. 40
(2) The substitution of Part 7A of this Act by the amending Act does not affect the 41
continuity of service of a person taken to be employed under this clause, any 42
accrued rights to leave under the former Part 7A or any accrual of rights to 43
leave under this Act. 44
Savings and transitional regulations 45
(1) The provisions of any regulation made under Part 1 of this Schedule 46
consequent on the enactment of the amending Act have effect despite anything 47
to the contrary in this Part. 48
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(2) The regulations made under Part 1 of this Schedule consequent on the 1
enactment of the amending Act may make separate savings and transitional 2
provisions or amend this Part to consolidate the savings and transitional 3
provisions. 4
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 5 Amendment of other legislation
Schedule 5 Amendment of other legislation 1
5.1 Annual Reports (Departments) Act 1985 No 156 2
Section 6 Inclusion of other reports in annual reports 3
Insert after section 6 (2): 4
(3) The annual report of a Public Service agency that is related to a Department 5
under the Government Sector Employment Act 2013 may be included in the 6
annual report of that Department. 7
5.2 Constitution Act 1902 No 32 8
[1] Section 47 Appointment of officers 9
Omit section 47 (2) (b). Insert instead: 10
(b) persons referred to in section 47B (other than the Clerk of the 11
Parliaments or of either House of Parliament or any other officer of the 12
Parliament designated by order of the Governor). 13
[2] Section 47A Employment of staff 14
Insert after section 47A (3) (a): 15
(a1) the employment of persons referred to in section 47B, or 16
[3] Section 47B 17
Insert after section 47A: 18
47B Parliamentary officers and staff 19
Persons may be appointed and employed as officers or employees of either 20
House of Parliament or as officers under the separate control of the President 21
or Speaker or under their joint control. 22
[4] Section 50D Public Service agencies--creation, abolition and changes 23
Insert after section 50D (2): 24
(3) If the Governor abolishes a Public Service agency under this section, the 25
Public Service agency to which the Governor transfers all parts of the 26
abolished agency (or all parts other than specified parts) is taken for all 27
purposes to be the successor of the abolished agency. 28
5.3 Government Sector Employment Regulation 2014 29
[1] Clause 38 Allowances for Public Service senior executives 30
Omit "A Public". 31
Insert instead "Subject to section 40 (3) of the Act and this clause, a Public". 32
[2] Clause 38 (2) 33
Insert at the end of clause 38: 34
(2) The payment of an allowance determined by the employer in respect of a 35
Public Service senior executive is subject to any determination by the Public 36
Service Commissioner as to the circumstances in which an allowance of that 37
kind may be paid and the amount of the allowance. 38
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 5 Amendment of other legislation
5.4 Statutory and Other Offices Remuneration Act 1975 (1976 No 4) 1
[1] Section 24A, definition of "chief executive office holder" 2
Omit "or the Commissioner of Police". 3
[2] Section 24A, definition of "remuneration package" 4
Omit "or section 46 of the Police Act 1990". 5
[3] Section 24A, definition of "senior executive office holder" 6
Omit "or the holder of a position determined as an executive position under Division 2 of 7
Part 5 of the Police Act 1990". 8
[4] Part 3B, heading 9
Insert "and other" after "Public Service". 10
[5] Section 24M Definitions 11
Insert in alphabetical order: 12
amending Act means the Government Sector Employment Legislation 13
Amendment Act 2016. 14
government sector senior executive employment legislation means any of the 15
following: 16
(a) Division 4 of Part 4 of the Government Sector Employment Act 2013, 17
(b) Part 5 of the Police Act 1990 (as inserted by the amending Act), 18
(c) Part 3 of Chapter 9 of the Health Services Act 1997 (as inserted by the 19
amending Act), 20
(d) Part 7A of the Transport Administration Act 1988 (as inserted by the 21
amending Act). 22
[6] Section 24M, definition of "remuneration package" 23
Omit "under the Government Sector Employment Act 2013". 24
Insert instead "under the government sector senior executive employment legislation". 25
[7] Section 24M, definition of "senior executive" 26
Omit the definition. Insert instead: 27
senior executive means: 28
(a) the Secretary of a Department of the Public Service or any other Public 29
Service senior executive to whom Division 4 of Part 4 of the 30
Government Sector Employment Act 2013 applies, or 31
(b) any NSW Police Force senior executive to whom Part 5 of the Police 32
Act 1990 (as inserted by the amending Act) applies, or 33
(c) any NSW Health Service senior executive to whom Part 3 of Chapter 9 34
of the Health Services Act 1997 (as inserted by the amending Act) 35
applies, or 36
(d) any Transport Service senior executive to whom Part 7A of the 37
Transport Administration Act 1988 (as inserted by the amending Act) 38
applies, 39
and includes the Commissioner of Police (but only on and from the date of 40
commencement of Schedule 3 to the amending Act). 41
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 5 Amendment of other legislation
[8] Section 24N Initial determinations 1
Omit "under the Government Sector Employment Act 2013" from section 24N (1). 2
Insert instead "under the government sector senior executive employment legislation". 3
[9] Section 24R General provisions relating to determinations 4
Insert after section 24R (2): 5
(3) Despite subsection (1), the Tribunal may, in making a determination, fix a 6
remuneration package: 7
(a) for a particular senior executive named in the determination, or 8
(b) for a particular role, office or position specified in the determination, or 9
(c) for a particular class of senior executives specified in the determination, 10
that is higher than the remuneration range otherwise determined by the 11
Tribunal for the band in which a senior executive to whom the determination 12
relates is or is to be employed (but only if the Minister has directed the 13
Tribunal to do so). 14
(4) For the purposes of the government sector senior executive employment 15
legislation, any such higher remuneration package is taken to be within the 16
remuneration range for the band in which the senior executive concerned is 17
employed. 18
(5) The Tribunal may make a determination that applies in relation to a particular 19
role, office or position even though no person is assigned to the role, or holds 20
the office or position, for the time being. 21
5.5 Sydney Cricket and Sports Ground Act 1978 No 72 22
[1] Section 4 Definitions 23
Insert in alphabetical order in section 4 (1): 24
chief executive officer means the chief executive officer of the Trust. 25
[2] Section 4 (1), definition of "Secretary" 26
Omit the definition. 27
[3] Section 5 Constitution of Trust 28
Omit section 5 (3) (including the note). 29
[4] Section 7A 30
Insert after section 7: 31
7A Role of chief executive officer 32
The chief executive officer is responsible for the day to day management of 33
the affairs of the Trust in accordance with the general policies and specific 34
directions of the Trust. 35
[5] Sections 19A and 19B 36
Insert after section 19: 37
19A Employment of staff (including chief executive officer) 38
(1) The Trust may employ staff (including a person as chief executive officer of 39
the Trust). The provisions of the Government Sector Employment Act 2013 40
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 5 Amendment of other legislation
relating to the employment of Public Service employees do not apply to the 1
staff employed by the Trust. 2
(2) Schedule 1A contains provisions relating to the chief executive officer. 3
19B Delegation 4
(1) The Trust may delegate to an authorised person any of its functions, other than 5
this power of delegation. 6
(2) In this section: 7
authorised person means any of the following: 8
(a) a member of the Trust, 9
(b) the chief executive officer, 10
(c) any other member of staff of the Trust, 11
(d) a person or body authorised by the regulations for the purposes of this 12
section. 13
[6] Schedule 1 Provisions relating to constitution and procedure of the Trust 14
Omit "Public Service Act 1979" from clause 4. 15
Insert instead "Government Sector Employment Act 2013". 16
[7] Schedule 1, clause 12 17
Omit "Secretary" wherever occurring. 18
Insert instead "chief executive officer or other member of staff". 19
[8] Schedule 1, clause 13 (9) 20
Omit "Secretary". Insert instead "chief executive officer". 21
[9] Schedule 1A 22
Insert after Schedule 1: 23
Schedule 1A Provisions relating to chief executive officer 24
(Section 19A (2)) 25
1 Term of office 26
Subject to this Schedule, the chief executive officer holds office for such 27
period (not exceeding 5 years) as may be specified in the chief executive 28
officer's instrument of appointment, but is eligible for re-appointment. 29
2 Conditions of employment and remuneration 30
(1) The Trust is to fix the conditions of employment of the chief executive officer. 31
(2) The chief executive officer is entitled to be paid such remuneration (including 32
travelling and subsistence allowances) as the Trust may determine. 33
(3) The Trust may require the chief executive officer to enter into a performance 34
agreement with the Trust. 35
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Government Sector Employment Legislation Amendment Bill 2016 [NSW]
Schedule 5 Amendment of other legislation
3 Vacancy in office of chief executive officer 1
(1) The office of chief executive officer becomes vacant if the holder of that 2
office: 3
(a) dies, or 4
(b) completes a term of office and is not re-appointed, or 5
(c) resigns the office by instrument in writing addressed to the Chairperson 6
of the Trust, or 7
(d) is removed from office under clause 4, or 8
(e) becomes bankrupt, applies to take the benefit of any law for the relief of 9
bankrupt or insolvent debtors, compounds with his or her creditors or 10
makes an assignment of his or her remuneration for their benefit, or 11
(f) becomes a mentally incapacitated person, or 12
(g) is convicted in New South Wales of an offence that is punishable by 13
imprisonment for 12 months or more or is convicted elsewhere than in 14
New South Wales of an offence that, if committed in New South Wales, 15
would be an offence so punishable. 16
(2) If the office of chief executive officer becomes vacant, a person is, subject to 17
this Act, to be appointed to fill the vacancy. 18
4 Removal from office 19
The Trust may remove the chief executive officer from office at any time for 20
any or no stated reason and without notice. 21
5 Acting chief executive officer 22
(1) The Trust may appoint a person to act in the office of chief executive officer 23
during the illness or absence of the chief executive officer or during a vacancy 24
in the office of chief executive officer. The person, while so acting, has all the 25
functions of the chief executive officer and is taken to be the chief executive 26
officer. 27
(2) The Trust may remove a person from any office to which the person was 28
appointed under this clause at any time for any or no stated reason and without 29
notice. 30
(3) A person while acting in the office of chief executive officer is entitled to be 31
paid such remuneration (including travelling and subsistence allowances) as 32
the Trust may determine in respect of the person. 33
5.6 Transport Administration (Staff) Regulation 2012 34
Clause 32A Groups of staff within Transport Service 35
Omit the clause. 36
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