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Legislative Council - Fifty-First Parliament, Third Session (51-3)
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PUBLIC SECTOR BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (22:09): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Public Sector is the Government's means of acting. It is the main vehicle for designing and then implementing our agenda. It is an important asset, the value of which must be realised if we are to meet the challenges facing our community in the 21st century.

The public sector must deliver services the community needs, and in ways that make people's interaction with government as easy and consistent as possible. The public sector must be able to respond quickly to changes in communities' needs, and government's priorities. It must be able to tackle complex problems requiring multi agency and even multi jurisdictional solutions. The public sector must attract and retain talented staff and enable them to provide frank, impartial advice to government without fear or favour. The Public Sector Bill 2008 allows all of these things to happen, modernising the institutions and processes of government.

The new Bill is designed to provide a new, modern, flexible employment framework for managing the public sector and will enable the government's strategic agenda to be more effectively pursued.

This is enabling legislation. It is not rigid, and as the employment framework for the public sector it permits public servants to respond to change.

The Bill will:

encourage an innovative, high performing, customer focussed public sector with a strong sense of purpose and values

establish the South Australian Executive Service with enhanced opportunities for training and development of leadership and management skills

promote the public sector as an employer of first choice by increasing the breadth of employment and career opportunities within it

provide for high quality working environments, strengthening flexible working arrangements

maintain employment protections but streamline rights of review

facilitate the development of positive workplace cultures.

The Bill contains a set of public sector principles which will be the foundation of the new Act. They reflect the aspirations and demands of the South Australian Government for the public sector. In particular they emphasise excellence, responsiveness, public focus, collaboration and employer of choice principles that attract people to a career in the public sector. Adopting a principle based approach is about allowing the public sector to more readily achieve outcomes, create freedoms, yet ensures maximum effectiveness, and allows creativity whilst maintaining certainty and confidence about the underlying reliability and prudent management of public resources.

The Bill requires chief executives to ensure that the principles are observed in the management and day-to-day operations of their agencies. Employee behaviour must accord with the principles. The Commissioner for Public Sector Employment will have oversight of the principles in so far as they relate to public sector employment and will reflect them in a Code of Conduct covering all public sector employees.

The Bill is designed to enhance collaboration between all public sector agencies and to ensure that they develop the best solutions possible in meeting their responsibilities and the government's priorities. The Premier is provided with a new capacity to give directions to public sector agencies to attain specified whole-of-government objectives and can direct that agencies collaborate with each other and share information. The priorities of the government are made clear for the whole public sector. The adoption of whole-of-government objectives by public sector agencies will benefit customers of public services and the community as a result of increased co-operation.

The Bill also addresses public sector governance, making provision for the Premier to give directions to public sector agencies relating to structural arrangements in the public sector and the formation of new entities. This new capacity will be used to raise the standard and consistency of governance across the public sector.

The Bill enhances the attractiveness of a career in the public sector. A key focus of the Bill is greater flexibility in deployment across the whole public sector. New provisions streamline transfer processes without compromising the notion of ongoing employment for non-executives and a career in the public sector. Attraction and retention of employees to the public sector is an important objective behind the legislation. The Bill enables the public sector to promote itself as an employer of first choice. The processes for recruitment are streamlined and conditions of engagement are simplified. The focus will be on appointing people to carry out duties at a remuneration level. The Bill creates wider opportunities, encourages acknowledgment of extra effort and enshrines the principles that attract people to a career in the public sector. These provisions enable the public sector to respond more quickly to the ever changing needs and priorities of the South Australian community.

Changes have been made to leave provisions to more closely reflect modern employment conditions. The provisions for flexible leave and working arrangements have been reorganised and are strengthened. Administration of sick leave has been made simpler. And the manner in which leave is calculated has been standardised so that all leave can accrue on the same basis.

The government is committed to a public sector that is modern, high performing and efficient in order to meet both the challenges of today and those of the future. Essential elements of public sector employment are both quality of service and the capacity to provide independent advice without fear or favour.

The government wants to build on the strong executive leadership within the public sector. The Bill therefore establishes the South Australian Executive Service for the development and recognition of executive employees across the public sector. The aim is to improve leadership and encourage a connected sense of vision and purpose. The Minister will approve a charter setting out rules governing membership, functions, mobility, competencies expected of members and other matters such as training and development applying to the South Australian Executive Service.

The government has made leadership one of the first priorities for the Public Sector Performance Commission with a focus on the South Australian Executive Service in facilitating performance and executive leadership. Another priority for the Public Sector Performance Commission will be lifting performance with a focus on performance management and development.

The government acknowledges that South Australian public servants already deliver high quality services in many areas, sometimes in challenging circumstances. The Bill reinforces the professionalism of the public sector by requiring all public sector agencies to have in place effective performance management and development systems. The aim is to promote and acknowledge outstanding performance, improve satisfactory performance, and bring unsatisfactory performance up to standard. Chief executives must drive performance management and development in their agencies and will be expected to acknowledge success and deal with performance issues early.

The Bill provides a legislative basis for the structure of the public service. As well as establishing traditional departments, the Bill allows for the establishment of a new type of public service organisation, an 'attached office'. This new capacity provides greater flexibility in administrative structures, allowing offices to be established quickly to deliver a specific function or outcome for a given period of time or ongoing. 'Attached offices' allow the creation of flexible administrative structures to respond to the emerging demands on a modern public service. The chief executive of an 'attached office' reports to a Minister on matters of policy and to the chief executive of a department on administrative matters.

Under the Bill, responsibilities relating to the appointment, transfer and termination of employees will be given to chief executives making them fully accountable for human resource management within their agency. Chief executives will be required to exercise these powers in accordance with the public sector principles, and the Commissioner for Public Sector Employment's determinations.

In driving chief executive accountability for management of their workforces, one of the major changes contemplated in the Bill is that the power to terminate employees is given to chief executives. Chief executives must have the capacity to take action particularly in respect of misconduct warranting termination; indeed it is the capacity to act rather than the need to exercise the power that may be the deterrent to misconduct. The powers to terminate are similar to those currently divided between the chief executive and the Governor under the Public Sector Management Act 1995. The Bill retains the existing Public Sector Management Act 1995 power to terminate employment on the grounds that the employee is excess to requirements, however, there is no intention to interfere with the long-standing government policy of no forced redundancy.

Employees can take an action for unfair dismissal to the Industrial Relations Commission of South Australia. The provisions of the Fair Work Act 1994 will then apply. The Industrial Relations Commission of South Australia may, in circumstances where it orders the re-employment of the employee, direct an agency to take alternative disciplinary action against an employee.

The review of employment decisions has been updated and modernised. The new arrangements set out in the Bill will increase effectiveness and transparency. Review is now a two-step process. An employee aggrieved by an employment decision may apply for an internal review by the agency of the decision. The internal review mechanisms will provide a speedy opportunity for chief executives to remedy poor decisions. Agencies will be required to undertake conciliation prior to, and potentially as part of, the internal review. The quick resolution, by the agency itself, of any grievance will be in the interests of the employee concerned, his or her colleagues, and the government.

The Industrial Relations Commission of South Australia will undertake reviews of disciplinary actions and decisions to reduce an employee's remuneration and any associated transfers. Reviews of all other employment decisions will be by a new body, the Public Sector Grievance Review Commission. It is a streamlined body convened by a single presiding commissioner. There is capacity for assistant commissioners who may sit contemporaneously. Both review bodies will determine whether the decision, the subject of the review, is 'harsh, unjust or unreasonable'. This will ensure that employees' rights will be determined by reference to an objective, well-known standard.

The Industrial Relations Commission has the capacity to rescind a decision and substitute a new decision that will bind the chief executive and the employee. Both review bodies may remit a matter back to the agency for further consideration in accordance with any directions or recommendations. The benefits of these new arrangements will include improved clarity in rights of review and greater efficiency of review processes.

The Commissioner for Public Sector Employment's functions are designed to ensure observance of the public sector employment principles as they relate to employment matters. The Commissioner will issue the code of conduct and employment determinations plus provide guidelines relating to public sector employment matters. The Commissioner may provide advice or conduct reviews of public sector employment or industrial relations practices as required by the Premier or the Minister. The Premier or a public sector agency may also request the Commissioner investigate matters in connection with public sector employee conduct or discipline. The Commissioner will continue to report annually on the extent of observance of the public sector principles in so far as they relate to public sector employment and measures taken to ensure observance of the principles.

The Bill brings together the public service and the broader public sector as a more unified entity by extending the parts of the Bill that apply to the public sector. Parts that apply to the Public Sector include: public sector principles and the code of conduct, governance arrangements, whole-of-Government objectives, transfer of employees, performance management, and the South Australian Executive Service. Standardising these approaches will lead to more opportunities for employees, and enable the public sector to respond more effectively to changing needs.

The Bill enables the Commissioner's employment determinations to be applied to government agencies outside the public service and for public service employment conditions to be applied to the employees of such agencies. This will be achieved through regulations under the Bill, or changes to the specific legislation governing those agencies.

The aim of developing this new legislation is to provide a contemporary employment framework:

to encourage an innovative, high performing, public sector with a strong sense of purpose and values;

to maintain employment protections but streamline rights of review;

to facilitate the development of a more positive workplace culture;

to allow for an appropriate work life balance through flexible working arrangements; and

to ultimately create a more efficient and effective public sector in terms of the service delivery to the South Australian community.

In summary, the new legislation is designed to enhance careers in the public sector, to reflect the move to a citizen centred approach to service provision, and the desire to operate as one government.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause sets out definitions for the purposes of the measure. New definitions are necessary in relation to—

attached offices—a new type of administrative unit of the Public Service designed to provide a greater level of flexibility and accountability through a second tier of chief executives;

the Industrial Relations Commission—is defined to mean the Industrial Relations Commission of South Australia under the Fair Work Act 1994. The measure confers jurisdiction on the Industrial Relations Commission to hear applications by public sector employees for relief under the unfair dismissal provisions of the Fair Work Act 1994 (subject to that Act) and applications for review of disciplinary decisions and decisions to reduce an employee's remuneration level (see Part 7 Division 4 of the measure);

the Public Sector Grievance Review Commission—a new body to review other employment decisions (see Schedule 2);

the South Australian Executive Service (SAES)—a new arrangement for the development and recognition of executive employees.

The definition of public sector agency includes the chief executive of an administrative unit as it is the chief executive who will employ the staff of the unit and who should be subject to the obligations of a public sector agency.

Part 2—Objects of Act

4—Objects of Act

This clause sets out the objects of the measure, namely:

to promote a high performing public sector that—

focuses on the delivery of services to the public; and

is responsive to Government priorities;

to establish—

general principles to guide public sector operations; and

a code of conduct to enforce ethical behaviour and professional integrity in the public sector;

to ensure the public sector is viewed as an employer of choice;

to encourage public sector agencies and employees to apply a public sector-wide perspective in the performance of their functions;

to make performance management and development a priority in the public sector;

to ensure accountability in the public sector;

to facilitate the integration of employment and management practices across the public sector;

to promote uniformity and transparency in governance arrangements for the public sector;

to provide the framework for the State's Public Service and the effective and fair employment and management of Public Service and other public sector employees.

Part 3—Public sector principles and practices

5—Public sector principles

This clause sets out the public sector principles as follows:

Public focus

The public sector is to—

focus on the provision of services to the public;

recognise the diversity of public needs and respond to changing needs;

consult and involve the public, where appropriate, to improve services and outcomes on an ongoing basis.

Responsiveness

The public sector is to—

implement the Government's policies in a timely manner and regardless of the political party forming Government;

provide accurate, timely and comprehensive advice;

align structures and systems to achieve major strategies while continuing to deliver core services.

Collaboration

The public sector is to—

ensure there is ongoing collaboration between public sector agencies;

focus on whole-of-Government, as well as agency—specific, services and outcomes.

Excellence

The public sector is to—

provide services with a high level of efficiency and effectiveness;

move resources rapidly in response to changing needs;

devolve decision-making authority to the lowest appropriate level;

manage resources effectively, prudently and in a fully accountable manner;

maintain and enhance the value of public assets.

Employer of choice

Public sector agencies are to—

treat public sector employees fairly, justly and reasonably;

prevent unlawful discrimination against public sector employees or persons seeking employment in the public sector;

ensure that public sector employees may give frank advice without fear of reprisal;

encourage public sector employees to undertake professional development and to pursue opportunities throughout the public sector;

set clear objectives for public sector employees and make them known;

acknowledge employee successes and achievements and address under performance;

ensure that public sector employees may join, or choose not to join, organisations that represent their interests;

consult public sector employees and public sector representative organisations on matters that affect public sector employment.

Ethical behaviour and professional integrity

Public sector employees are to—

be honest;

promptly report and deal with improper conduct;

avoid conflicts of interest, nepotism and patronage;

treat the public and public sector employees with respect and courtesy;

make decisions and provide advice fairly and without bias, caprice, favouritism or self interest;

deal with agency information in accordance with law and agency requirements;

avoid conduct that will reflect adversely on the public sector;

accept responsibility for decisions and actions;

submit to appropriate scrutiny.

Legal requirements

Public sector agencies are to—

implement all legislative requirements relevant to the agencies;

properly administer and keep under review legislation for which the agencies are responsible.

The approach in this clause replaces that taken in the provisions of the Public Sector Management Act 1995 on aims and standards, personnel management standards and employee conduct standards (see sections 4 to 6). It improves on the more modern approach of the Victorian Public Administration Act 2004 and the Commonwealth Public Service Act 1999.

6—Public sector code of conduct

All public sector employees are required to observe the public sector code of conduct (issued by the Commissioner for Public Sector Employment).

Section 6(ea) of the Public Sector Management Act 1995 currently provides that public sector employees are expected to comply with such a code but this clause elevates the requirement and a breach of the code is made a specific ground for disciplinary action.

7—Public sector performance management and development

Public sector agencies are required to establish and administer effective performance management and development systems which must be directed towards advancement of the objects of this Act and observance of the public sector principles and code of conduct.

It is further required that performance management and development must be integrated with the agency's employment practices and inform its employment decisions relating to particular employees and that information about the performance management and development system must be made available to employees.

8—Flexible arrangements for transfer within public sector

The provisions in this clause are designed to simplify arrangements for the transfer of employees across the whole of the public sector.

Under subclause (1), the Premier may effect employee transfers between public sector agencies in order to reorganise public sector operations. The transfer is to be effected by notice in the Gazette. If the transfer is part of a restructuring of administrative units, the notice will be accompanied by a proclamation under Part 6 Division 2. However, the transfer is not limited to the Public Service—it may relate to any part of the public sector.

Such transfers are currently carried out in relation to the Public Service by the Governor by proclamation under section 7 of the Public Sector Management Act 1995.

Under subclause (3), a public sector agency may effect the transfer of an employee within the public sector with the agreement of other agencies affected, on conditions that maintain the substantive remuneration level (as defined) of the employee or on conditions that are agreed to by the employee.

This is a broader and more flexible approach than in the current Act. Under section 44 of the Public Sector Management Act 1995 an employee may be assigned from a position in 1 administrative unit to a position in another administrative unit by the Commissioner for Public Employment in consultation with the chief executives. Section 68 of the Public Sector Management Act 1995 provides the mechanism for transfer between the Public Service and public sector agencies outside the Public Service. The new clause empowers chief executives to act directly and applies across the public sector.

Subclause (5) provides that the regulations may prescribe rules relating to movement of employees between public sector agencies. This provides a mechanism for providing for employees' rights of return following temporary transfers or temporary appointments.

Subclause (6) is a machinery provision making it clear that a transfer of an employee under the Part does not constitute a breach of the person's contract of employment or termination of the person's employment, or affect the continuity of the person's employment for any purpose.

9—Agencies to pursue whole-of-Government objectives

The Premier is given power to direct public sector agencies to endeavour to attain specified whole-of-Government objectives. The directions may contemplate particular requirements relating to the sharing of information and collaboration. This expands the power in section 15 of the Public Sector Management Act 1995 which is limited to the Public Service. A direction will not be binding to the extent (if any) to which it would impede or affect the performance of a quasi-judicial or statutorily independent function of a public sector agency.

10—Uniform and transparent governance arrangements

The Premier may give directions to guide agencies, in preparing proposals and making decisions, on the question of whether a Government activity should be assigned to a Public Service body or some other form of public sector agency. The Premier may also give directions to otherwise deal with matters relating to structural arrangements in the public sector and the formation of new entities.

Any directions given by the Premier and any information relating to the various structural arrangements in the public sector and the formation of new entities must be published in the Gazette and on a website determined by the Premier.

The requirement is new. It is designed to ensure transparency.

11—Agencies to report annually

Public sector agencies are required to present annual reports. The requirement is the same as that currently set out in section 6A of the Public Sector Management Act 1995.

Furthermore, the regulations may specify information to be contained in the report. The power of the Premier to issue directions about information to be contained in annual reports, currently set out in the regulations, is elevated to the Act.

Part 4—Commissioner for Public Sector Employment

12—Office of Commissioner

The title of the Commissioner is to be changed from Commissioner for Public Employment to Commissioner for Public Sector Employment.

This clause effectively substitutes sections 20 and 21 of the Public Sector Management Act 1995.

The role and function of a Deputy Commissioner has been abolished (see section 19 of the Public Sector Management Act 1995). However, if no person is appointed or the Commissioner is absent or unable to discharge official duties, the Minister may assign a public sector employee to act as the Commissioner.

13—Functions of Commissioner

The Commissioner has the function of advancing the objects of the measure, and promoting observance of the public sector principles, in so far as they relate to public sector employment and for that purpose is to—

issue the public sector code of conduct (see section 14); and

issue public sector employment determinations (see section 15); and

monitor and report to the Minister on observance of the public sector principles, code of conduct and employment determinations; and

issue guidelines relating to public sector employment matters; and

provide advice on public sector employment matters at the request of public sector agencies; and

provide advice on and conduct reviews of public sector employment or industrial relations matters as required by the Premier or the Minister; and

investigate or assist in the investigation of matters in connection with public sector employee conduct or discipline as required by the Premier or at the request of a public sector agency.

The Commissioner has any other functions assigned to the Commissioner under the measure or by the Minister.

14—Public sector code of conduct

The requirement to issue a code of conduct is elevated from a general function (see section 6(ea) of the Public Sector Management Act 1995) to a special provision and the obligation to review the code spelt out. A breach of a provision of the code that is expressed to be a disciplinary provision is a ground for discipline, termination or reduction of an employee's remuneration. The regulations may preserve employee rights relating to the disclosure of information and the making of public comment and impose other limitations on the contents of the code (compare regulation 15 of the Public Sector Management Regulations 1995).

15—Public sector employment determinations

Under this clause, the Commissioner has the power to make determinations relating to employment in the Public Service and public sector employment outside the Public Service that is declared by another Act or the regulations to be employment to which the clause applies.

These binding determinations may determine—

classification structures in accordance with which remuneration levels must be fixed for employees; and

conditions of employment other than remuneration; and

processes that must be followed in fixing remuneration levels and other employment conditions; and

allowances payable to employees and the circumstances in which they are payable; and

charges payable by employees in respect of accommodation, services, goods or other benefits provided to them in connection with their employment; and

any other matter of a class prescribed by the regulations.

16—Extent to which Commissioner is subject to Ministerial direction

The Commissioner is subject to Ministerial direction, except that no direction may be given to the Commissioner requiring that material be included in, or excluded from, a report that is to be laid before Parliament.

This provision is similar to section 23 of the Public Sector Management Act 1995, with adjustments resulting from the changing role of the Commissioner.

17—Investigative powers

The investigative powers set out in this clause differ from those set out in the Public Sector Management Act 1995 as the Commissioner is no longer to have powers to investigate matters of his or her own volition, rather investigations are limited to those that are required by the Premier or a public sector agency (clause 13).

18—Power to require statistical information

The Commissioner may, by notice in writing, require public sector agencies to provide statistical reports to the Commissioner relating to public sector employment matters at intervals specified by the Commissioner.

19—Delegation by Commissioner

This clause effectively substitutes section 26 of the Public Sector Management Act 1995 but includes power to delegate functions or powers given to the Commissioner under any other Act.

20—Annual report of Commissioner

This clause effectively substitutes section 28 of the Public Sector Management Act 1995, with adjustments resulting from the changing role of the Commissioner.

Part 5—South Australian Executive Service

21—Purpose of SAES

This clause sets out the purpose of the South Australian Executive Service.

SAES is established to provide the public sector with high performing leaders who have a shared sense of purpose and direction and who together will actively engage the public sector in the pursuit of the objects of the measure and the public sector principles.

22—SAES Charter

The Minister is required to approve a SAES charter and keep it under review.

The charter is to specify or elaborate on:

rules governing membership of SAES;

functions of SAES;

rules and arrangements to facilitate mobility within the public sector of SAES members;

employment contracts and performance management and development systems for SAES members;

competencies expected of SAES members;

any other matter affecting SAES.

Part 6—Public service

Division 1—Composition of Public Service

23—Public Service administrative units

As under the current Act, the Public Service is to consist of administrative units. The new measure provides that administrative units may take the form of departments or attached offices. A department is essentially the same as a current administrative unit. An attached office is assigned a title and attached to a department or departments. An attached office has a chief executive who employs the staff of the office.

This structure is designed to provide flexibility in relation to portfolio structures and relationships between units within a portfolio. It may also be appropriate for semi-autonomous offices that rely on a department for personnel and financial management support. It does not replace the current arrangements for offices or sections within departments.

24—Public Service employees

All persons employed by or on behalf of the Crown are to be employed in the Public Service, subject to the exceptions set out in subclause (2).

Note in particular that an employee who is remunerated at hourly, daily, weekly or piece-work rates of payment is excluded from the Public Service unless expressly engaged by writing as a casual employee in the Public Service.

This provision equates to section 8 and Schedule 1 of the Public Sector Management Act 1995.

Division 2—Administrative units

25—Establishment of departments

26—Establishment of attached offices

As under the current Act, the Public Service structure is to be imposed by proclamations. This provides an evidentiary mechanism and a clear public record.

Administrative units may be established, abolished or renamed.

27—Minister responsible for administrative unit

This clause introduces a new concept of a proclamation linking an administrative unit to a particular Minister and is necessary because the measure involves a person being responsible to a unit's Minister for the performance of certain obligations. This will be particularly important where a unit administers an Act committed to a particular Minister, but is located in a portfolio under another Minister.

Division 3—Chief executives

28—Administrative units to have chief executives

Each administrative unit (ie department or attached office) is to have a chief executive.

29—Chief executive may employ persons for administrative unit

The chief executive may employ staff for the purposes of the unit and those persons become employees in the administrative unit unless excluded from the Public Service under clause 24.

30—General duties of chief executive

The chief executive of a department is responsible to the Premier and the department's Minister for—

making an effective contribution to the attainment of the whole-of-Government objectives that are communicated in writing by the Premier or the department's Minister and relate to the functions or operations of the department; and

the attainment of the performance objectives set from time to time by the Premier and the department's Minister under the contract relating to the chief executive's employment; and

the effective management of the department and the general conduct of its employees.

The chief executive of an office that is an attached office to a department or departments is responsible—

to the Premier and the office's Minister for—

making an effective contribution to the attainment of the whole-of-Government objectives that are communicated in writing by the Premier or the office's Minister and relate to the functions or operations of the office; and

the attainment of the performance objectives set from time to time by the Premier and that Minister under the contract relating to the chief executive's employment; and

to the chief executive of the department, or the chief executives of the departments, for—

any specific matters relating to the attainment of whole-of-Government objectives; and

the effective management of the office and the general conduct of its employees.

31—Duties with respect to objects of Act and public sector principles and code of conduct

The chief executive of an administrative unit is to ensure, as far as practicable, that the objects of the measure are advanced and the public sector principles and code of conduct are observed in the management and day-to-day operations of the unit.

32—Protection of independence in certain matters

The chief executive of an administrative unit is not subject to direction in respect of—

the performance of a quasi-judicial or statutorily independent function of the chief executive; or

the making of an employment decision relating to a particular person.

33—Employment or assignment of persons as chief executives

The Premier is to engage chief executives. Currently, section 9 of the Public Sector Management Act 1995 provides for these appointments to be made by the Governor.

The clause provides a mechanism for acting appointments which is similar to the current arrangements except that the person appointed may be from any part of the public sector, not just the Public Service.

34—Conditions of chief executive's employment

The employment of a chief executive is to continue to be subject to a contract with a maximum term of 5 years.

35—Transfer of chief executives

This is a new clause empowering the Premier to transfer a chief executive to other duties in the public sector, whether or not as chief executive of another administrative unit, on conditions that maintain the remuneration of the chief executive.

36—Resignation of chief executive

This clause provides the same arrangements for resignation as set out in section 12 of the Public Sector Management Act 1995.

37—Termination of chief executive's employment

This clause provides for termination of a chief executive's employment by the Premier (rather than the Governor)—

on the ground that the chief executive has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors;

on any ground on which the employment of an employee of a public sector agency may be terminated;

without specifying any grounds (in which case improved arrangements for termination payments are set out).

38—Delegation by chief executive

This clause provides for delegation by a chief executive and is to the same effect as section 17 of the Public Sector Management Act 1995.

39—Provision for statutory office holder to have powers etc of chief executive

This clause equates to section 13 of the Public Sector Management Act 1995 and enables a Minister to declare that a statutory office holder is to have the powers of a chief executive of an administrative unit.

Part 7—Public sector employment

Note—

This Part replaces Parts 7 and 8 of the Public Sector Management Act 1995, other than the provisions relating to chief executives already dealt with in Part 6.

Division 1—Application of Part

40—Public Service and declared public sector employment

Greater emphasis is placed on achieving uniform employment arrangements across the public sector. This clause provides that while Part 7 applies to the Public Service, it can be extended by another Act or by the regulations to other public sector employment, subject to exclusions and modifications.

This resembles section 71 of the current Act which allows a proclamation to be made applying Public Service provisions of the current Act to other public sector employment.

Division 2—Executives

41—Conditions of executive's employment

The employment of an executive is to continue to be a matter for a contract with a maximum term of 5 years. However, under this measure, subject to clause 3(3) of Schedule 2 (Transitional provisions), there is no right to a fall-back position in the event that an executive is not re-appointed or is terminated with notice.

42—Resignation of executives

This clause sets out an executive's right to resign with notice. The period of notice required has been shortened compared to that required by section 34(2)(f) of the Public Sector Management Act 1995 in recognition of the executive's role as a SAES member.

43—Termination of executive's employment by notice

The provision for termination without grounds is similar to that in section 36 of the Public Sector Management Act 1995 except that the period of notice that must be given to the executive employee has been extended from at least 3 to at least 4 months in recognition of the executive's role as a SAES member.

Division 3—General employment processes and conditions

Note—

The measure endeavours to simplify the provisions dealing with employment processes.

In particular, in order to promote flexibility in Public Service arrangements, the concept of positions in administrative units is abandoned (compare section 31 of the Public Sector Management Act 1995). Instead employees are assigned duties and may be assigned to different duties by the chief executive of the administrative unit.

The administrative processes for dealing with employees are streamlined through provisions that focus on the actions of termination, reduction of remuneration and disciplinary action rather than on the grounds for taking such action and the required administrative steps. A number of Divisions within Part 8 of the Public Sector Management Act 1995 (Division 4—Excess employees, Division 5—Mental or physical incapacity, Division 6—Unsatisfactory performance, Division 8—Conduct and discipline) have been collapsed down and substituted by clauses 52 to 56.

he provisions for transfer of employees to other duties within an agency, to a different agency or outside the Public Service are scattered in the Public Sector Management Act 1995. In this measure they are brought together in clause 8 and the scheme simplified.

44—Engagement of employees

This clause sets out the 3 possible forms of engagement of a person as an employee: ongoing, term or casual employment. It also sets out the rules about maximum periods of employment as a term employee. The clause effectively substitutes section 40 of the Public Sector Management Act 1995.

The only circumstances in which a person may be engaged as a term employee are set out in clause 44:

for the duration of a project not exceeding 5 years and the engagement may be extended (including beyond a total of 5 years) but not so that the term extends beyond the duration of the project;

for performing duties in the absence of another employee or while selection processes are conducted and the engagement may be extended but not so that the term extends beyond the absence of the employee or the completion of the selection processes;

for up to 5 years in prescribed circumstances;

for up to 2 years for duties otherwise of a temporary nature.

The concept of contractual employment (see section 40 of the Public Sector Management Act 1995) is not retained and has been subsumed by the concept of term employment (see definition of term employee in clause 3(1)).

45—Merit-based selection processes

Selection processes conducted on the basis of merit in accordance with the regulations are required for engagement of an employee, and promotion of an employee, of a public sector agency and changing the basis on which a person is engaged as an employee of a public sector agency to engagement as an ongoing employee, with the exception of those categories of engagement and promotion specified by the clause, namely, reclassification or engagement of casual employees or engagement of employees under employment opportunity programs or in prescribed circumstances.

Exceptions to the requirement for competitive or merit-based selection processes are dealt with differently under the Public Sector Management Act 1995. Section 39(2) provides a general exemption for appointment to a temporary or casual position and contemplates other exemptions by determination of the Commissioner. Section 44(3) deals with temporary promotions.

46—Assignment of duties

This clause provides for determination of the duties of employees and the places of employment by the relevant public sector agency.

The clause removes the rules in section 44 of the Public Sector Management Act 1995 that currently govern assignments. Transfers of employees within the Public Service by the Commissioner that took place under the section are dealt with by clause 8, with the transfer being a matter for the chief executives concerned. The process of assignment to a higher remuneration level is no longer set out in the section relating to assignment of duties but is instead dealt with in clause 45 (Merit-based selection processes). Assignment to a lower remuneration level is dealt with in clause 52 (Reduction in remuneration level).

47—Probation

This clause effectively substitutes section 41 of the Public Sector Management Act 1995. Subclause (2) enables a public sector agency to determine a period of probation that is less than 12 months. Subclause (4) provides a more flexible arrangement, enabling confirmation of employment after at least half of the period of probation has been served.

48—Remuneration

This clause effectively substitutes section 45 of the Public Sector Management Act 1995 with modifications necessary because of the current references to positions.

49—Additional duties allowance

This clause effectively substitutes section 46 of the Public Sector Management Act 1995. It leaves the matter of an allowance to the discretion of the agency, removing the arbitrary limit imposed by the current section.

50—Hours of duty and leave

This clause effectively substitutes section 49 of the Public Sector Management Act 1995. Relevant details are set out in Schedule 1.

51—Resignation (other than executives)

This clause effectively substitutes section 53 of the Public Sector Management Act 1995. It continues to require 14 days written notice of resignation.

52—Reduction in remuneration level

This clause determines the grounds on which a public sector agency may reduce the remuneration level of an employee without the employee's consent, as follows:

the employee is excess to the requirements of the agency at the higher remuneration level; or

the employee's physical or mental incapacity to perform duties or satisfactorily at the higher remuneration level; or

the employee's unsatisfactory performance of duties at the higher remuneration level; or

the employee's misconduct; or

the employee's lack of an essential qualification for performing duties at the higher remuneration level.

The agency must first endeavour to find suitable alternative employment on conditions that maintain the employee's current substantive remuneration level if the proposed reduction is a result of the employee being an excess employee or the employee's mental or physical incapacity. The requirement relates to employment in the public sector to which the Part applies and not just the Public Service as under the current Act.

Under the Public Sector Management Act 1995 the obligation to endeavour to find suitable alternative employment relates only to employment in the Public Service and is dealt with in the separate divisions dealing with different grounds.

Subclause (3) sets out income maintenance rights for excess employees and equates to section 50(4) of the Public Sector Management Act 1995.

Subclause (4) specifically contemplates—

an agency reducing an employee's remuneration level to a remuneration level from a classification structure including a structure not applicable to that agency; and

an agency reducing an employee's remuneration level as a preliminary step to assigning or transferring the employee to other duties in the agency or elsewhere in the public sector.

53—Termination

A public sector agency is empowered to terminate the employment of an employee on the following grounds:

the employee is excess to the requirements of the agency;

the employee's physical or mental incapacity to perform his or her duties satisfactorily;

the employee's unsatisfactory performance of his or her duties;

the employee's misconduct;

the employee's lack of an essential qualification for performing his or her duties.

The grounds set out above may also lead to a decision by the public sector agency to reduce the remuneration level of the employee (see clause 52).

As with reduction in remuneration, the agency must first endeavour to find suitable alternative employment on conditions that maintain the employee's current substantive remuneration level if the proposed termination is a result of the employee being an excess employee or the employee's mental or physical incapacity.

54—Disciplinary action

If a public sector agency is satisfied that an employee is guilty of misconduct, the agency may—

reprimand the employee;

suspend the employee from duty without remuneration or accrual of leave rights for a specified period.

This power is in addition to the power to reduce an employee's remuneration under clause 52 and to terminate the employee's employment under clause 53.

In conjunction with disciplinary action, a public sector employee may be transferred or assigned to different duties or a different place.

55—Power to require medical examination

This clause effectively substitutes section 51 of the Public Sector Management Act 1995 and provides for the obtaining of medical reports about an employee if it appears to a public sector agency that the employee's unsatisfactory performance is caused by physical or mental incapacity.

56—Power to suspend from duty

A public sector agency is given power to suspend an employee of the agency from duty pending the completion of any investigation, process or proceedings in respect of alleged misconduct by the employee if the agency decides that it is in the public or agency's interest to do so. Suspension can be without remuneration in certain circumstances.

Division 4—Review of employment decisions

Note—

The measure is designed to provide streamlined rights of review and a greater level of consistency. It contains significant differences to the Public Sector Management Act 1995.

Subdivision 1—Review of dismissal

57—Application of unfair dismissal provisions of Fair Work Act

An employee to whom Part 7 applies and who has been dismissed by a public sector agency may apply to the Industrial Relations Commission for relief under Chapter 3 Part 6 of the Fair Work Act 1994 (subject to that Act). This clause contemplates that the employee may take an action for unfair dismissal under the ordinary provisions of the Fair Work Act 1994 (subject to that Act). The approach means that public sector employees are placed in a similar position to private sector employees. Exclusions that apply under that Act (for example, in relation to non-award employees who earn more than a specified salary) will apply to public sector employees covered by Part 7.

This clause provides the Industrial Relations Commission with additional powers if an application for relief for unfair dismissal is upheld. If the Commission orders that the applicant be re-employed but is satisfied, on the application of the public sector agency, that it is appropriate that the agency take action to deal with misconduct of the employee, the Industrial Relations Commission may make an order that the agency take specified action to deal with the misconduct.

Subdivision 2—Review of employment decisions (other than dismissal)

58—Right of review

This clause provides an employee with a right to have an employment decision (not extending to a dismissal, a decision to select a person who is not a public sector employee as a consequence of selection processes conducted on the basis of merit or other circumstances prescribed by the regulations) reviewed.

59—Conciliation

This clause sets out a requirement for a public sector agency to endeavour to resolve an employee's grievance by conciliation (regardless of the fact that an employee may apply for a review of its decision).

60—Internal review

An employee aggrieved by an employment decision of a public sector agency directly affecting the employee may apply for an internal review of the decision by the public sector agency. It is contemplated that the regulations will contain details about the process.

61—External review

This clause sets out the right of an employee who is aggrieved by an employment decision of a public sector agency directly affecting the employee to apply to the appropriate review body for a review of the decision.

The Industrial Relations Commission is to hear reviews of decisions to take disciplinary action, to reduce an employee's remuneration level and associated transfers or reassignments.

The Public Sector Grievance Review Commission is to hear all other reviews.

Before the matter can be taken to external review, the employee must have applied for an internal review pursuant to clause 60 and the review completed or not commenced as required by the regulations. Exceptions can be spelt out in the regulations.

The review body may decline to conduct a review—

if the application for review is frivolous or vexatious; or

if the applicant for review has made a complaint under the Equal Opportunity Act 1984 in respect of the decision; or

in circumstances prescribed by the regulations.

On a review, the appropriate review body must determine whether, on the balance of probabilities, the decision is harsh, unjust or unreasonable. The review body has the power to—

affirm the decision;

in the case of a prescribed decision, rescind the decision and substitute a decision that the review body considers appropriate;

remit matters to the agency for consideration or further consideration in accordance with any directions or recommendations of the review body.

The parties to a review are not to be legally represented unless the review body considers that either party would be at a significant disadvantage in the absence of legal representation.

The regulations may exclude this right of review.

The different avenues of appeal that are triggered in the Public Sector Management Act 1995 by section 43 (Promotion appeals), section 61 (Disciplinary appeals) and section 64 (Grievance appeals) are effectively substituted by the processes set out in this clause. The Industrial Relations Commission and Public Sector Grievance Review Commission are to undertake the roles currently performed by the Disciplinary Appeals Tribunal and the Grievance Appeals Tribunal.

62—Special provision for review of selection processes

A review of a decision to select an employee as a consequence of selection processes conducted on the basis of merit must be limited to considering whether the processes should be recommenced from the beginning or some later stage on a number of grounds specified by the clause.

This clause substantially reflects section 43 of the Public Sector Management Act 1995.

63—Application of Fair Work Act 1994

This clause enables the application of the Fair Work Act 1994 to be modified by the regulations.

Part 8—Miscellaneous

64—Employment opportunity programs

This clause is similar to section 67 of the Public Sector Management Act 1995 and ensures that employment opportunity programs can be offered without breaching the provisions of the Act.

65—Re-engagement of employee who resigns to contest election

This clause substitutes section 54 of the Public Sector Management Act 1995 and is extended to public sector employment generally.

66—Multiple appointments etc

This clause effectively substitutes section 70A of the Public Sector Management Act 1995.

67—Payment of remuneration on death

This clause effectively substitutes section 48 of the Public Sector Management Act 1995, but leaves the matter to the agency rather than the Commissioner.

68—Reduction in remuneration arising from refusal or failure to carry out duties

Subclause (1) provides that if an employee of a public sector agency is absent from his or her duties without lawful authority, the agency may direct that the employee not be paid salary for the period of the absence.

Subclauses (2) and (3) effectively substitute section 47 of the Public Sector Management Act 1995.

69—Action where overpayment or liability to Crown

This clause provides for recovery of amounts overpaid or in satisfaction of liabilities and effectively substitutes section 62 of the Public Sector Management Act 1995.

70—Employment of Ministerial staff

This clause effectively substitutes section 69 of the Public Sector Management Act 1995.

71—Appointment of other special staff

This clause enables a Minister to engage (outside the Public Service)—

a person as a member of the staff of a Member of Parliament; or

a person in employment of a class prescribed by the regulations.

This will simplify the current processes.

72—Operation of Fair Work Act 1994

This clause effectively substitutes section 72 of the Public Sector Management Act 1995.

73—Immunity relating to official powers or functions

This clause effectively substitutes section 74 of the Public Sector Management Act 1995. It applies the immunity to a public sector employee, a public official (as defined), a person to whom a function or power of a public sector agency, public sector employee or public official is delegated in accordance with an Act and a person who is, in accordance with an Act, assisting a public sector employee or public official in the enforcement of the Act.

74—Delegation by Minister

This clause is new. It provides the Minister with the power to delegate a power or function of the Minister under the measure.

75—Temporary exercise of statutory powers

This clause effectively substitutes section 75 of the Public Sector Management Act 1995.

76—Designation of positions

This clause is new. It deals with the need to identify a person performing specified duties in a position with a specified title. The need for this provision is most obviously highlighted by the requirement to make a legal delegation under an Act to a person who can be identified by a specific position with a specific title. It is not a provision that is intended to be used for the wholesale creation of positions across the public sector. The clause attempts to make this clear with the use of the words 'but is not required to'.

77—Obsolete references

This clause effectively substitutes section 76 of the Public Sector Management Act 1995.

78—Evidentiary provision

This clause effectively substitutes section 77 of the Public Sector Management Act 1995.

79—Service of notices

This clause effectively substitutes section 79 of the Public Sector Management Act 1995.

80—Regulations

This clause provides general regulation making power.

Schedule 1—Leave and working arrangements

Schedule 1 is similar to Schedule 2 of the Public Sector Management Act 1995 but contains some improvements.

Part 1 gives the Commissioner power to make determinations relating to a range of flexible leave and working arrangements. The Commissioner may make determinations about leave (with or without pay) for reasons that include study leave, parental leave and family carer's leave, for example. The Commissioner may determine voluntary flexible working arrangements for employees that include part-time employment, flexible working hours, purchased leave and compressed working weeks. This substitutes and broadens existing categories of leave that are currently dealt with by the clause dealing with special leave under Part 5 of Schedule 2 of the Public Sector Management Act 1995.

Part 5 provides that sick leave is to accrue per month of service, rather than per year as currently provided in the Public Sector Management Act 1995. This brings the accrual of sick leave into line with the accrual of recreation leave and will simplify the administration of leave.

Part 6 provides for the continuation of the accrual of long service leave in calendar days for each completed year of effective service but empowers the Commissioner to make a determination to enable the accrual of long service leave in working hours for each completed month of effective service.

Schedule 2—Public Sector Grievance Review Commission

This Schedule establishes the Commission. The Commission is to consist of a presiding commissioner appointed by the Governor and assistant commissioners appointed by the Governor. The Commission will be constituted of the presiding commissioner or, at the direction of the presiding commissioner, an assistant commissioner. The Commission is given power to require public sector employees or former public sector employees to appear before it and to produce records or objects.

Schedule 3—Repeal and transitional provisions

This Schedule repeals the Public Sector Management Act 1995 and contains transitional arrangements for the implementation of the measure.

Clause 3 of the Schedule sets out transitional provisions that apply to the various categories of executive employment that exist under the Public Sector Management Act 1995.

The categories of executive employment that the transitional provisions in clause 3apply to can be characterised as follows:

employees who were not, immediately before the commencement of the clause, subject to a contract under the Public Sector Management Act 1995;

employees who were, immediately before the commencement of the clause, subject to a contract under the Public Sector Management Act 1995 and the employee was, if not reappointed, entitled to some other appointment in the Public Service on an ongoing basis;

employees who were, immediately before the commencement of the clause, subject to a contract under the Public Sector Management Act 1995 and the employee was, if not reappointed, entitled to some other appointment in the Public Service on a contractual basis;

employees who were, immediately before the commencement of the clause, subject to a contract under the Public Sector Management Act 1995 and the employee was not, if not reappointed, entitled to some other appointment in the Public Service.

In each case, current rights are preserved (if a contract is involved it is preserved for the duration of the contract and if a 'fall-back' entitlement exists, that entitlement can be exercised if the executive is not offered a further contract).

Debate adjourned on motion of Hon. D.W. Ridgway.


At 22:10 the council adjourned until Thursday 19 February 2009 at 14:15.


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