PUBLIC SECTOR BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. New clause, page 11, after line 2—

After clause 6 insert:

6A—Whistleblowing

Each public sector agency must—

(a) ensure that a public sector employee (with qualifications determined by the Commissioner) is designated as a responsible officer for the agency for the purposes of the Whistleblowers Protection Act 1993; and

(b) ensure that the Commissioner is informed of any disclosure of public interest information made to such a responsible officer under that Act if the person making the disclosure consents to the Commissioner being so informed; and

(c) ensure that an investigation of a disclosure of public interest information to such a responsible officer under that Act is completed within 28 days of the disclosure.

No. New clause, page 11, after line 38—

After clause 9 insert:

9A—Consultation with employees and representative organisations

(1) Before making a decision, or taking action, that will affect a significant number of public sector employees, a public sector agency must, so far as is practicable—

(a) give notice of the proposed decision or action—

(i) to the employees; and

(ii) if a significant number of the members of a public sector representative organisation will be affected by the proposed decision or action—to the organisation; and

(b) hear any representations or argument that representatives of the employees or the organisation may wish to present in relation to the proposed decision or action.

(2) Nothing in this section limits or restricts the carrying out of a function or exercise of a power by the public sector agency under this Act.

No. Clause 11, page 12, after line 34—

After subclause (7) insert:

(7a) The report must state the number of occasions on which public interest information has been disclosed to a responsible officer of the agency under the Whistleblowers Protection Act 1993 during the financial year to which the report relates.

No. Clause 13, page 14, line 6 [clause 13(1)(e)]—

After 'agencies' insert:

or on the Commissioner's own initiative

No. Clause 13, page 14, line 8 [clause 13(1)(f)]—

After 'Minister' insert:

or on the Commissioner's own initiative

No. Clause 13, page 14, line 11 [clause 13(1)(g)]—

After 'agency' insert:

and investigate such matters on the Commissioner's own initiative (including on receipt of public interest information under the Whistleblowers Protection Act 1993)

No. Clause 13, page 14, line 13 [clause 13(2)]—

Delete 'or by the Minister'.

No. Clause 14, page 14, lines 20 to 22 [clause 14(2)]—

Delete subclause (2) and substitute:

(2) The code will be taken to allow a public sector employee to engage in a private capacity in conduct intended to influence public opinion on an issue, or promote an outcome in relation to an issue of public interest, except if—

(a) it is reasonably foreseeable that the conduct may seriously prejudice the Government or a public sector agency in the conduct of its policies given the relative seniority of the employee, the extent to which the issue is relevant to the role or a previous role of the employee and the nature and circumstances of the conduct; or

(b) the conduct involves—

(i) disclosure of information in breach of intellectual property rights; or

(ii) disclosure of information contrary to any law or to any lawful instruction or direction relating to a specific matter; or

(iii) disclosure of information with a view to securing a pecuniary or other advantage for the employee or any other person; or

(iv) disclosure of information of commercial value the disclosure of which would diminish its value or unfairly advantage a person in commercial dealings with the Government or a public sector agency; or

(c) the conduct is disgraceful or improper conduct that reflects seriously and adversely on the public sector.

(2a) Subsection (2)(a) does not apply in respect of conduct engaged in by an employee in the employee's capacity as a member of the governing body of a public sector representative organisation.

No. Clause 14, page 14, after line 22—

After subclause (2) insert:

(2a) The code of conduct may not restrict participation by public sector employees in community activities unrelated to their employment except so as to ensure that public sector employees conduct themselves in public in a manner that will not reflect adversely on the public sector.

No. Clause 14, page 14, before line 23—

Before subclause (3) insert:

(2b) The code will be taken to require that an employee of a public sector agency may report actual or suspected maladministration or misconduct in the public sector to the Commissioner or an executive employee of the agency (or both), or participate in an official inquiry into such maladministration or misconduct, without suffering discrimination, disadvantage or adverse treatment in relation to his or her employment.

No. Clause 14, page 14, after line 27—

After subclause (5) insert:

(6) Sections 10 and 10A of the Subordinate Legislation Act 1978 apply to the code, or a variation of the code, as if it were a regulation within the meaning of that Act.

No. Clause 20, page 16, after line 34 [clause 20(2)]—

After paragraph (b) insert:

(ba) state the number of occasions on which public interest information has been disclosed to the Commissioner under the Whistleblowers Protection Act 1993; and

No. Clause 45, page 24, line 40 [clause 45(2)(b)]—

Delete 'in accordance with the regulations'

No. Clause 48, page 25, after line 29—

After subclause (2) insert:

(3) The remuneration level of an employee of a public sector agency may be reclassified by the agency on the initiative of the agency or on application to the agency by the employee.

(4) The regulations may not exclude the right of an employee to apply under Part 7 Division 4 to the Public Sector Grievance Review Commission for review of a decision on an application by the employee under subsection (3).

No. Clause 53, page 27, line 5 [clause 53(1)]—

Delete 'A public sector agency may' and substitute:

The Commissioner may, at the request of a public sector agency,

No. Clause 53, page 27, lines 14 and 15 [clause 53(2)]—

Delete 'A public sector agency may not terminate the employment of an employee under subsection (1)(a) or (b) unless the agency' and substitute:

The employment of an employee may not be terminated under subsection (1)(a) or (b) unless the public sector agency

No. Clause 56, page 28, after line 21—

After subclause (1) insert:

(1a) Subject to subsection (2), a suspension will be with remuneration.

No. Clause 61, page 31, after line 7 [clause 61(8)]—

After paragraph (c) insert:

(d) a decision to transfer an employee, or to assign an employee to a different place, that reasonably requires the employee to change his or her place of residence.

No. Schedule 2, clause 1, page 41, lines 26 and 27 [Schedule 2, clause 1(2)]—

Delete subclause (2) and substitute:

(2) The Governor may appoint a presiding commissioner and assistant commissioners to the Commission.

(2a) Before the Governor makes an appointment under subclause (2), the Minister must invite representations from public sector representative organisations on the proposed appointment.

(2b) A person appointed as a commissioner must have, in the opinion of the Governor, appropriate knowledge and experience of principles and practices of personnel management in the public sector.

Note—

The heading to clause 1 will be altered to "Establishment of Commission and appointment of commissioners".

No. Schedule 2, clause 2, page 42, lines 5 to 12—

Delete clause 2 and substitute:

2—Panels of nominees

(1) For the purposes of proceedings before the Commission there is to be—

(a) a panel of public sector employees nominated by the Commissioner for Public Sector Employment; and

(b) a panel of public sector employees nominated by public sector representative organisations.

(2) The Minister may, from time to time, invite the public sector representative organisations to nominate employees to constitute a panel.

(3) If a public sector representative organisation fails to make a nomination in response to an invitation within the time allowed in the invitation, the Minister may choose public sector employees instead of nominees of the organisation and any employees so chosen are to be taken to have been nominated to the relevant panel.

(4) A person ceases to be a member of a panel if the person—

(a) ceases to be a public sector employee; or

(b) resigns by notice in writing to the Minister; or

(c) is removed from the panel by the Minister on the ground of misconduct, neglect of duty, incompetence or mental or physical incapacity to carry out duties of the member satisfactorily; or

(d) has completed a period of 2 years as a member of the panel since being nominated, or last renominated, as a member of the panel, and is not renominated to the panel.

2A—Proceedings—constitution of Commission and other matters

(1) The Commission will, for the purposes of hearing and determining proceedings, be constituted of—

(a) the presiding commissioner or, at the direction of the presiding commissioner, an assistant commissioner; and

(b) a member of the panel of nominees of the Commissioner for Public Sector Employment selected by the presiding commissioner for the purpose of the proceedings; and

(c) a member of the panel of nominees of public sector representative organisations selected for the purpose of the proceedings—

(i) by the applicant for review; or

(ii) if there are 2 or more applicants and they do not agree on the selection of a nominee—by the presiding commissioner.

(2) The Commission may sit contemporaneously to hear separate proceedings.

(3) If proceedings are part-heard when a person ceases to hold office as a commissioner, or ceases to hold office as a member of a panel on retirement or resignation from public sector employment, on resignation, or on completion of a period of 2 years as a member of the panel, the person may continue to act in the office for the purpose of completing the hearing and determination of the proceedings.

(4) The presiding commissioner or assistant commissioner is to preside at the hearing of any proceedings of the Commission.

(5) A decision in which any 2 or more members of the Commission concur is a decision of the Commission.

(6) A member of the Commission who is a public sector employee is not subject to direction as an employee in respect of the performance of duties as a member of the Commission.

(7) The Commission must endeavour to complete any review within 3 months and must, in any event, proceed as quickly as a proper consideration of the matter allows.