Government Sector Employment Act 2013

The GSE Act’s reach is deliberately broad. The statutory definition of “government sector” (s 3(1)) encompasses:

• the Public Service (Departments, executive agencies and separate agencies listed in Schedule 1);
• the Teaching Service;
• the NSW Police Force (including administrative employees after 2016 amendments);
• the NSW Health Service;
• the Transport Service of New South Wales;
• any other service of the Crown or NSW government agency; and
• prescribed bodies exercising public functions (e.g. certain State-owned corporations).

Only a narrow list of office-holders is excluded (s 5(1)): judicial officers, parliamentary staff, Members of Parliament staff, ICAC staff, Audit Office staff and Judicial Commission staff. Even these exclusions are qualified; the Act applies “to the extent that this Act expressly so provides” (s 5(2)).

Within the covered sector three groups experience the legislation differently.

Public Service senior executives (Secretaries, agency heads who are employees rather than statutory officers, and employees in the senior-executive bands—s 33) are placed on individual contracts, can be moved across agencies with relative ease (s 38), and may be terminated at any time for any or no reason (s 41(1)). Their remuneration is capped by the bands determined under the Statutory and Other Offices Remuneration Act 1975 (s 40(1)).

Public Service non-executive employees (ongoing, temporary or casual staff below senior-executive level—s 42) are employed in classifications determined by agency heads (s 45), may be assigned to different roles after consultation (s 46), and may only be terminated on enumerated grounds (s 47(1)).

Employees in the wider government sector (police officers, health employees, transport workers) are subject to the ethical framework (Part 2 and Part 2A), the Commissioner’s strategic workforce functions (s 11), the misconduct and performance rules where prescribed (ss 68–70), and the transfer and secondment provisions (s 64). Their industrial conditions, however, continue to be governed by their own enabling legislation cross-referenced to the GSE rules.

The Act also affects Ministers (who appoint Secretaries—s 23(4)), the Premier (who appoints the Commissioner on the Advisory Board’s recommendation—s 9(2)), statutory officers listed in Part 6, and any person or body prescribed by regulation as a government sector agency. Finally, it touches private-sector entities through secondment arrangements (s 66) and post-employment guidance for senior executives (s 83B).

Duties flow in several directions. Government sector employees must comply with the core values (s 7), any adopted code of ethics and conduct (s 8A(3)), and lawful directions. Agency heads must manage their agencies in accordance with the values (ss 25(1), 30(1)), integrate workforce diversity into planning (s 63(2)), maintain performance management systems (s 67(1)) and deal with unsatisfactory performance and misconduct in accordance with the government sector employment rules (ss 68(1), 69(3)). The Commissioner must promote the values (s 8(1)), exercise functions in accordance with the Advisory Board’s policies (s 11(3)), consult before issuing directions (s 13(2)) and remove personal information from public reports (s 17(5)). The Industrial Relations Secretary must act independently when determining conditions or dealing with disputes (s 53(1)).

Rights are more circumscribed, reflecting the Act’s public-interest orientation. Employees have a right to be consulted before assignment to a different role (ss 38(8), 46(4)) and before transfer or secondment not initiated by them (s 64(2)). Remuneration cannot be reduced on reassignment without consent (ss 38(9)–(10), 46(4), 64(3)). Senior executives are entitled to the compensation stipulated in their contract on termination (s 41(2)) and to procedural fairness before a finding of misconduct or unsatisfactory performance (ss 68(1), 69(3)). Whistleblower protections are reinforced by the reinstatement power in s 83A for senior executives terminated for making a public interest disclosure. Non-executive employees retain entitlements to extended and other leave prescribed by regulation (s 54A) and may resign by written notice (s 55).

Importantly, the Act excludes most industrial-relations remedies for senior executives (s 58) and declares that nothing in Part 2 creates a civil cause of action (s 8(3)). The Crown’s inherent power to dispense with services is preserved (s 57).

The GSE Act is not a criminal statute. Enforcement is primarily administrative and employment-based. Misconduct can attract termination without notice, fines, reduction in remuneration or classification, reassignment or caution (s 69(4)). Unsatisfactory performance can lead to termination (after opportunity to resign), reduction in pay or grade, or reassignment (s 68(2)). Suspension on full or withheld pay is available pending investigation of misconduct, criminal charges or corrupt conduct (s 70).

Directions issued by the Commissioner are enforceable by the obligation on agency heads to comply (s 13(3)), subject to a limited exception for separate agencies exercising independent statutory functions (s 13(4)). Breach of a code adopted under s 8A is expressly stated to be capable of constituting misconduct (note to s 8A(3)).

For statutory officers covered by Part 6, removal by the Governor is at pleasure (s 77(1)) with compensation capped by the Statutory and Other Offices Remuneration Tribunal (s 78). The Tribunal’s determination is final; no other compensation or reinstatement is available.

Industrial Relations Commission jurisdiction is ousted in relation to excess employees (s 74) and executive employment matters (s 58). Proceedings for offences against the regulations are summary only before the Local Court (s 87) and carry a maximum 10 penalty units (s 88(4)).

The GSE Act is designed to sit atop a web of interlocking statutes. It expressly preserves the operation of the Industrial Relations Act 1996 except to the extent of ss 58 and 74 (s 85(1)). The Interpretation Act 1987 applies to definitions and construction (note to s 3(1)).

Administrative arrangements orders under Part 7 of the Constitution Act 1902 can amend Schedule 1, create or abolish agencies and transfer staff (s 22(3)). Section 47A of the Constitution Act is noted as the source of the Crown’s power to employ (note to s 20).

The Act interacts with anti-discrimination legislation by requiring workforce diversity strategies (s 63) while providing that GSE rules prevail over inconsistent obligations under the Anti-Discrimination Act 1977 (s 63(5)). Privacy legislation is disapplied to the extent necessary to allow the Commissioner to obtain reports and information (s 16(4)).

Specific enabling Acts are amended in parallel: the Health Services Act 1997, Police Act 1990 and Transport Administration Act 1988 all contain provisions applying GSE rules and senior-executive bands to their respective senior executives. The Public Interest Disclosures Act 2022 supplies the definitions of “detrimental action” and “detrimental action offence” used in the expanded misconduct definition (s 69(1)).

The Royal Commissions Act 1923 is incorporated by reference for special ministerial inquiries (s 82(4)–(5)) and for Commissioner/Secretary inquiries (s 83(4)).

The GSE Act has been substantively amended on several occasions.

The Government Sector Employment Legislation Amendment Act 2016 (No 2 of 2016) was the most comprehensive. It introduced the current senior-executive contract model, replaced the former SES and senior-officer classifications with bands, inserted detailed transitional provisions (Schedule 4 clauses 7A–8C), clarified employer functions, and extended the Act to administrative employees of the NSW Police Force. The changes were driven by a desire to increase mobility, reduce tenure, and align NSW with contemporary public-sector practice in other jurisdictions.

In 2022 the Government Sector Employment Amendment Act 2022 (No 76 of 2022) inserted Part 2A (code of ethics and conduct), expanded the definition of misconduct to include detrimental action against whistleblowers (s 69(1)), created the reinstatement power in s 83A, added post-employment guidance obligations for senior executives (s 83B), and established Joint Committee oversight (s 86A). These amendments responded to recommendations from the Independent Commission Against Corruption and the need to strengthen whistleblower protections after high-profile cases.

The Government Sector Employment Amendment (State of the Sector Report) Act 2024 (No 35 of 2024) substituted the Commissioner’s objectives (s 10), amended reporting obligations (ss 11, 15, 17) and inserted s 82A requiring an annual “state of the government sector” report to be tabled in Parliament. The change reflects a policy shift toward greater transparency and accountability for overall workforce performance.

Each wave of amendment has tended to increase prescription while preserving the Act’s original objects (s 4).

Because the Act removes most industrial remedies for senior executives, litigation has concentrated on judicial review and contractual interpretation. In Public Service Association and Professional Officers’ Association Amalgamated Union of NSW v Director of Public Employment [2014] NSWIRComm 13 the Industrial Relations Commission considered the interaction between the new senior-executive regime and pre-existing awards; the decision confirmed that s 58 excludes unfair-dismissal jurisdiction for executives.

The expansive definition of misconduct introduced in 2022 (including detrimental action even where the belief that a disclosure had been made was mistaken) has not yet been tested at appellate level but has been criticised by unions as overreach. The at-will termination power in s 41(1) has been upheld in several unreported decisions of the Supreme Court on the basis that the contractual compensation provision constitutes a comprehensive code.

Controversy has also surrounded the use of s 38 to move senior executives without reduction in pay, with some executives arguing that repeated short-term assignments undermine the stability required for effective policy advice. The Commissioner’s power to issue directions (s 13) has been challenged by heads of separate agencies invoking the s 13(4) exception; no reported case has yet settled the precise boundaries of “independent exercise of statutory functions”.

The transitional provisions in Schedule 4 generated litigation concerning whether former SES executives retained their s 78 Public Sector Employment and Management Act 2002 compensation entitlements after the 2016 changes. The courts have generally held that the savings provisions preserve those entitlements only until the implementation date fixed under clause 7A.

Most practitioners miss three subtle but high-impact features.

First, the interaction between s 41(3) and the definition of “public sector” in s 41(5). A senior executive who receives contractual termination payments cannot be re-engaged—even as a consultant or through a labour-hire firm—during the compensation period without refunding a proportionate amount. The provision expressly overrides any other Act unless that Act explicitly carves it out (s 41(6)). Agencies have been caught paying contractors who were formerly senior executives without obtaining the required refund.

Second, the “detrimental action offence” limb of the misconduct definition (s 69(1)(c)) captures situations where the decision-maker suspects a disclosure may have been made, even if no disclosure actually occurred. Because the suspicion need only be a contributing factor, agencies must now document that whistleblower status played no part in any adverse decision. The reinstatement power in s 83A, which can be triggered by the Commissioner’s satisfaction rather than a court finding, creates a parallel administrative pathway that bypasses normal merit-selection rules (s 83A(6)).

Third, the Commissioner’s power to assign senior executives across agencies (s 38(4A)) can be exercised without the current employer’s agreement if the Commissioner, rather than the employers, effects the transfer. Combined with the obligation on Secretaries to consult only the head of a related executive agency (s 38(5)), this gives the Commissioner significant practical control over the senior-executive cohort. Many agency heads are unaware that a Commissioner-initiated move automatically changes the employer (s 38(4A)).

Finally, the note to s 3(2) that “Notes included in this Act do not form part of this Act” is sometimes overlooked; yet the note to s 69 expressly links a code breach to misconduct. Courts will treat that note as extrinsic material only.

Compliance begins with governance. Every government sector agency should:

• Maintain an up-to-date register of employees subject to the GSE Act versus those excluded by s 5.
• Embed the core values and the current code of ethics and conduct (adopted 2022) into position descriptions, performance agreements and induction programs.
• For senior executives, ensure contracts contain all mandatory matters listed in s 39(4) and that any variation complies with the government sector employment rules. Remuneration must stay within the SOORT-determined band (s 40(1)).
• Implement a performance management system that meets the core requirements set by the rules (s 67(2)) and that records consultation before any unsatisfactory-performance finding.
• When dealing with misconduct or unsatisfactory performance, follow the procedural fairness requirements prescribed by the rules (ss 68(1), 69(3)). Suspension decisions under s 70 should be reviewed every three months.
• Before any cross-agency assignment or secondment, obtain the employee’s written consent where remuneration may be affected and document the consultation required by s 64(2).
• For statutory officers under Part 6, maintain records showing that any removal was effected by Governor’s order and that compensation was calculated strictly in accordance with s 78.
• Agency heads must respond to Commissioner directions (s 13(3)) or, if a separate agency, provide the required parliamentary committee explanation (s 13(4)). Annual workforce-diversity reports must be supplied to the Commissioner (s 16).
• The Industrial Relations Secretary’s determinations under s 52 must be kept accessible; any agency-level conditions for day-to-day management must not conflict with those determinations.
• Finally, agencies should maintain a “GSE compliance map” that identifies which clauses of the government sector employment rules and which parts of the regulations apply to each category of staff. Because the rules can be amended by Gazette publication (s 12(3)), a quarterly review process is prudent.

Compliance is not a checklist exercise; it requires cultural embedding of the four core values and continual alignment of individual contracts, performance systems and misconduct procedures with the evolving government sector employment rules. Agencies that treat the GSE Act as mere HR policy do so at their peril.