Subdiv 2Review of employment decisions (other than dismissal)

Subdivision 2—Review of employment decisions (other than dismissal) 59—Right of review (1) This Subdivision provides public sector employees with rights to apply for review of employment decisions. (2) This Subdivision does not apply— (a) to the dismissal of a public sector employee; or (b) to a decision to select a person who is not a public sector employee as a consequence of selection processes conducted on the basis of merit; or (ba) to a decision by the CE of the Correctional Services Act 1982 to refuse an application in accordance with section 85CB(4) of that Act (to the extent that the refusal of the application involves an employment decision for the purposes of this Act); or (c) in circumstances prescribed by the regulations. 60—Conciliation A public sector agency is required to endeavour to resolve its employees' grievances by conciliation (regardless of the fact that employees may apply for review of its decisions). 61—Internal review (1) An employee aggrieved by an employment decision of a public sector agency directly affecting the employee may apply for an internal review of the decision by the public sector agency. (2) The regulations may make provision relating to— (a) applications for internal reviews by agencies; and (b) the conduct of internal reviews by agencies. 62—External review (1) An employee aggrieved by an employment decision of a public sector agency directly affecting the employee may apply to SAET for a review of the decision. (2) Subject to the regulations, an employee may not apply to SAET for a review of a decision unless— (a) the employee has applied for an internal review of the decision by the agency; and (b) the internal review has been completed, or has not commenced, as required by the regulations. (3) SAET may decline to review a decision— (a) if the application for review is frivolous or vexatious; or (b) if the applicant for review has made a complaint under the Equal Opportunity Act 1984 in respect of the decision; or (c) in circumstances prescribed by the regulations. (4) On a review, SAET— (a) must examine the decision on the evidence or material before the agency, but may, as it thinks fit, allow further evidence or material to be presented to it; and (b) must determine whether, on the balance of probabilities, the decision is harsh, unjust or unreasonable; and (c) may— (i) affirm the decision; (ii) in the case of a prescribed decision—rescind the decision and substitute the decision with a decision that the body considers appropriate (including a decision restoring any entitlements lost up to the time of the decision); (iii) remit matters to the agency for consideration or further consideration in accordance with any directions or recommendations of the body. (4a) Section 30(1) and (2) of the South Australian Employment Tribunal Act 2014 do not apply to or in relation to a decision of SAET acting as the review body under this section. (4b) A decision of SAET under this section may not be the subject of an application for review or an appeal under Part 5 of the South Australian Employment Tribunal Act 2014. (5) The parties to a review are not to be legally represented unless SAET considers that either party would be at a significant disadvantage in the absence of legal representation. (6) The regulations may make provision relating to— (a) applications for reviews under this section; and (b) the conduct of reviews under this section. (7) This section does not apply in circumstances prescribed by the regulations. (8) In this section— prescribed decision means— (a) a decision to take disciplinary action; or (b) any decision to reduce an employee's remuneration level; or (c) a decision to transfer an employee, or to assign an employee to different duties or a different place, made in conjunction with a decision to take disciplinary action or reduce an employee's remuneration level; or (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. 63—Special provision for review of selection processes Despite any other provision of this Subdivision, a review of a decision to select an employee as a consequence of selection processes conducted on the basis of merit must be limited to considering whether the processes should be recommenced from the beginning or some later stage on the ground that— (a) the employee was not eligible for appointment; or (b) the processes were affected by nepotism or patronage or were otherwise not properly based on assessment of the respective merits of the applicants; or (c) there was some other serious irregularity in the processes. 64—Application of Fair Work Act 1994 and South Australian Employment Tribunal Act 2014 (1) The regulations may modify the application of the Fair Work Act 1994 and the South Australian Employment Tribunal Act 2014 to proceedings before SAET under this Subdivision. Part 8—Miscellaneous 65—Employment opportunity programs (1) The Minister may, by notice in the Gazette— (a) declare an employment program designed to— (i) ensure that persons of a defined class have equal opportunities in relation to employment in the public sector with persons not of that class; or (ii) to assist persons of a defined class to gain employment, training or experience in the public sector; or (iii) to assist persons of a defined class employed in the public sector to pursue careers in the public sector as effectively as persons not of that class, to be an employment opportunity program; or (b) vary or revoke a notice under this subsection. (2) Any special provision in an employment opportunity program will, despite the provisions of this or any other Act, be lawful. 66—Re‑engagement of employee who resigns to contest election (a) an employee of a public sector agency resigns from his or her employment for the purpose of standing as a candidate for election to the Parliament of the State or the Commonwealth; and (b) the resignation takes effect not more than 1 month before the issue of the writ for the election; and (c) the former employee is not elected and applies to be re‑engaged as an employee of the agency within 2 months after the return of the writ for the election, the employee must be re‑engaged as an employee of the agency without probation and with the same remuneration level as before his or her resignation. (2) For the purpose of determining the rights of an employee who is re‑engaged as an employee under this section, the period between the person's resignation and re‑engagement is to be taken to be leave without pay. 67—Multiple appointments etc (1) The Commissioner may approve arrangements under which— (a) a person may be employed in the Public Service or elsewhere in the public sector for a period during which the person remains in some other employment outside the Public Service or the public sector; or (b) a person who is employed in the Public Service or elsewhere in the public sector may remain in that employment for a period during which the person is engaged in some other employment outside the Public Service or the public sector, and any such arrangements will have effect according to their terms and despite the provisions of this or any other Act. (2) If a person holding an office is or has been appointed to a further office, he or she is not to be taken to have vacated the first mentioned office or to have been invalidly appointed to the further office because— (a) the potential exists or has existed for the duties of the offices to be in conflict; or (b) the duties of either 1 or more of the offices require, by implication, the person's full time attention. (3) The Minister may give directions in relation to an actual or potential conflict of duty between offices held concurrently, or in relation to some other incompatibility between offices held concurrently, and, if the office holder concerned complies with those directions, he or she is excused from any breach that would otherwise have occurred. (4) In this section— office means— (a) a public office; or (b) any employment in the public sector. 68—Payment of remuneration on death On the death of an employee of a public sector agency, the agency may, if of the opinion that it is appropriate to do so, direct that an amount payable in respect of the employee's remuneration be paid to dependants of the employee and not to the personal representative. 69—Reduction in remuneration arising from refusal or failure to carry out duties (1) If an employee of a public sector agency is absent from his or her duties without lawful authority, the agency may direct that the employee not be paid remuneration for the period of the absence. (2) If, in consequence or furtherance of industrial action, an employee of a public sector agency refuses or fails to carry out duties that the employee has been lawfully instructed to perform, the agency may direct that the employee not be paid remuneration for any day (or part of a day) on which the employee refuses or fails to carry out those duties. (3) A direction under subsection (2) is effective to prevent payment of remuneration to an employee despite the fact that, on any day (or part of a day) to which the direction relates, the employee performs some (but not all) of the duties that the employee has been lawfully instructed to perform. (4) The power conferred by this section is in addition to the power to take action to deal with the employee's misconduct under Part 7 Division 3. 70—Action where overpayment or liability to Crown (1) A public sector agency may make deductions from the remuneration of an employee, or from an amount payable in respect of a person's employment, in order to recover an amount overpaid through an administrative error. (2) If a public sector employee or former public sector employee has incurred a liability to a public sector agency or the Crown in connection with the person's employment or former employment as a public sector employee, an amount that would otherwise be required to be paid to the person in respect of his or her employment may be applied in or towards satisfaction of the liability. (3) Without limiting subsection (1) or (2), a deduction may be made or an amount may be withheld pending the determination of proceedings relating to the person's liability to the agency or the Crown. 71—Employment of Ministerial staff (1) The Premier may engage a person as a member of a Minister's personal staff on conditions determined by the Premier. (2) A person employed under this section is not an employee in the Public Service. (3) The number of persons employed under this section must not at any time exceed 1% of all employees in the Public Service. (4) Employment as a member of a Minister's personal staff continues while the Minister continues to be a Minister (whether or not in the same Ministerial office) unless it sooner expires or is terminated under the conditions of employment. (5) The Premier must cause a report to be prepared not less frequently than once every 12 months setting out with respect to each Minister— (a) details of the engagement of persons as members of the Minister's personal staff under this section (other than those described in previous reports under this section); and (b) the number of persons for the time being employed on the Minister's personal staff under this section; and (c) the remuneration and other conditions of employment of each person for the time being employed on the Minister's personal staff under this section. (6) A report under subsection (5) must— (a) be published in the Gazette next issued after its presentation to the Premier; and (b) be laid before each House of Parliament within 12 sitting days after preparation of the report. 72—Appointment of other special staff (1) The Minister may engage— (a) a person as a member of the staff of a Member of Parliament; or (b) a person in employment of a class prescribed by the regulations, on conditions determined by the Minister. (2) A person employed under this section is not an employee in the Public Service. 73—Operation of Fair Work Act 1994 A determination, direction or decision under this Act affecting remuneration or conditions of employment is subject to an award, determination or enterprise agreement in force under the Fair Work Act 1994. 74—Immunity relating to official powers or functions (1) This section applies to— (a) a public official; and (b) a public sector employee; and (c) a person to whom a function or power of a public sector agency, public sector employee or public official is delegated in accordance with an Act; and (d) a person who is, in accordance with an Act, assisting a public sector employee or public official in the enforcement of the Act. (2) Subject to this Act, no civil liability attaches to a person to whom this section applies for an act or omission in the exercise or purported exercise of official powers or functions. (3) An action that would, but for subsection (2), lie against a person lies instead against the Crown, except in the case of a member of a body corporate or the governing body of a body corporate or a person employed or appointed by, or a delegate of, a body corporate, in which case it lies instead against the body corporate. (4) This section does not prejudice rights of action of the Crown or a public sector agency in respect of an act or omission of a person not in good faith. (5) This section does not apply to a person if section 22 or Schedule clause 11 of the Public Corporations Act 1993 applies to the person. (6) In this section— public official means a person appointed by the Governor or a public sector agency to an office (including to be a member of a body, whether incorporated or unincorporated). 75—Delegation by Minister (1) The Minister may, by instrument in writing, delegate a power or function under this Act— (a) to a particular person; or (2) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated. 76—Temporary exercise of statutory powers (a) a statutory power or function is exercisable by an employee of a public sector agency; and (b) the employee is absent or is for any reason unable to exercise the power or function, the power or function may be exercised by the public sector agency or some other employee nominated by the public sector agency by instrument in writing. (2) An apparently genuine document purporting to be a copy of an instrument of nomination under this section will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof that the employee referred to as the nominee was duly authorised to exercise the power or function referred to in the instrument. 77—Designation of positions A public sector agency may, but is not required to, designate specified duties in the employment of the agency as a position with a specified title. 78—Obsolete references If the title of a public sector agency or position is altered, a reference in an Act or statutory instrument to the agency or position under an earlier title is, unless the contrary intention appears, to be read as a reference to the agency or position under its new title. 79—Evidentiary provision (1) A certificate signed by the Minister certifying— (a) as to the existence of a specified public sector agency at a specified time or over a specified period (including a time or period before the commencement of this Act); or (b) that a specified person was performing specified duties or the holder of or acting in a specified office or position in the public sector at a specified time or over a specified period (including a time or period before the commencement of this Act), will be accepted in any legal proceedings as proof of the matter so certified, in the absence of proof to the contrary. (2) An apparently genuine document purporting to be a certificate under this section will be accepted in any legal proceedings as such a certificate, in the absence of proof to the contrary. (3) In this section— public sector agency and the public sector include a department or administrative unit under a repealed Act. 80—Service of notices A notice or document required or authorised by this Act to be given to or served on a public sector employee may be given to or served on the employee personally or by post addressed to the employee at the address last notified by the employee in accordance with the regulations. 81—Regulations (1) The Governor may make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act. (2) A regulation— (a) may be of general or limited application and may vary in operation according to factors stated in the regulation; and (b) may leave a matter or thing to be determined, dispensed with, regulated or prohibited according to the discretion of the Minister, the Commissioner or a public sector agency, either generally or in a particular case or class of cases; and (c) may exempt (conditionally or unconditionally) a person or class of persons from specified provisions of this Act; and (d) may prescribe fines (not exceeding $2 500) for offences against the regulations.