Public Sector Employment and Management Act 1993

• All employees of NT Government Agencies.
• The Commissioner for Public Employment and their staff.
• Chief Executive Officers of NT Government Agencies.
• Persons applying for employment or promotion in the public sector.
• ICAC, which may refer matters to the Commissioner under section 15A.

Part 1A: Public sector principles

Performance and conduct principle (section 5F): Every public sector officer must:

• Carry out duties objectively, impartially, professionally and with integrity.
• Carry out duties to the best of their ability and in accordance with applicable codes of conduct.
• Treat others fairly and with proper courtesy.
• Use public resources effectively and appropriately.
• Avoid actual or apparent conflicts of interest.
• Ensure personal conduct does not adversely affect duties or bring the Public Sector into disrepute.

Part 3: Commissioner's functions

The Commissioner must:

• Develop employment instructions and keep them publicly available (section 16).
• Maintain employee records (section 17).
• Review grievances and conduct investigations (sections 13, 15).
• Report to the Minister on public sector employment matters (section 18).
• Liaise with ICAC and deal with referrals under section 15A.

Part 4: Chief Executive Officers

CEOs must manage their Agency's human resources in accordance with the Act and employment instructions. CEOs have:

• Power to employ persons (section 26).
• Functions including managing, developing and maintaining the capability of the Agency workforce (section 24).
• Delegation powers (section 27).
• Reporting obligations to the Minister (section 28).

Part 5: Employment matters

Probation: New employees are appointed on probation. The CEO may extend probation subject to a maximum period, or confirm or terminate employment (section 33 et seq.). Before terminating a probationary employee, the CEO must give at least 14 days' notice and allow the employee to seek Commissioner review (section 33(6)). If the CEO does not act at the end of the probation period, probation is automatically extended (or, if already extended, employment is confirmed) (section 33(7)).

Promotion: Promotion is governed by the merit principle. Employees may appeal promotion decisions to an appeal board.

Transfer: The Commissioner or CEO may transfer employees between positions within or between Agencies.

Part 7: Performance and inability

Where an employee is unable to perform their duties due to physical or mental incapacity, the CEO may take steps including redeployment, extended leave or, in limited circumstances, termination.

Part 8: Discipline

CEOs may take disciplinary action against employees for misconduct. The disciplinary process requires procedural fairness. Disciplinary outcomes include warnings, reduction in salary, demotion and termination. Employees have rights of appeal under Part 9.

Commissioner's powers (section 14): The Commissioner has broad powers to carry out functions including conducting investigations, obtaining information and issuing employment instructions.

Commissioner's investigatory powers (section 15): The Commissioner may investigate matters relating to the employment, conduct or performance of employees.

ICAC referrals (section 15A): ICAC may refer matters to the Commissioner, and the Commissioner must deal with them in accordance with the ICAC Act Part 3, Division 4.

CEO discretion on employment (section 26): CEOs may employ the number of employees necessary to carry out the Agency's functions. This is subject to budget constraints and employment instructions.

CEO directions (section 22): CEOs must comply with directions given by their appropriate Minister.

The Act creates employment rights and obligations rather than criminal offences. Non-compliance with the Act by a CEO or Commissioner is an employment matter dealt with through the management hierarchy or by ICAC referral.

Disciplinary outcomes (Part 8): Employees who engage in misconduct may face formal warning, reduction in salary, demotion or termination. Termination under the disciplinary provisions requires a finding of misconduct and observance of natural justice.

Probationary termination (section 33(6)): Before a CEO can terminate a probationary employee, 14 days' notice must be given and the employee must have the opportunity to seek Commissioner review. Failure to follow this process is a procedural breach that can be challenged on appeal.

Key timelines:

| Step | Timeframe | |---|---| | Notice before termination of probationary employee (s 33(6)) | At least 14 days | | Period for probationary employee to seek Commissioner review of intention to terminate | As specified in the notice | | Appeal against inability/disciplinary decision (Part 9) | Within time specified in employment instructions | | Grievance review by Commissioner (Part 9, Division 1) | Commissioner may decline if alternative proceedings exist |

Anti-Discrimination Act 1992 (NT): The equality of employment opportunity principle in section 5E references the Anti-Discrimination Act. Employment decisions that constitute unlawful discrimination may be challenged under both this Act and the Anti-Discrimination Act.

ICAC Act (NT): Section 15A enables ICAC to refer matters to the Commissioner, and the Commissioner must deal with them as specified in the ICAC Act. This introduces external integrity oversight into the public sector employment framework.

Awards and enterprise agreements: Section 3(4) provides that where an inconsistency exists between this Act and an applicable award or superannuation legislation, this Act applies subject to those instruments.

Northern Territory (Self-Government) Act 1978 (Cth): Section 3(5) provides that for the purposes of the Commonwealth self-government Act, the NT Public Sector is taken to be the "Public Service of the Territory."

Merit principle has limited exceptions: Section 5D(3) provides that the merit principle applies "subject to sections 35(7), 38B(1), 42(2), 46(3) and 49C(3)." These exceptions include certain diversity-related appointments and transfers. Practitioners handling promotion challenges must check whether the merit principle applied to the particular appointment or whether an exception applied.

Probation extension is automatic if CEO fails to act: Under section 33(7), if a CEO does not confirm or terminate employment or extend probation within the probation period, probation is automatically extended for the maximum extension period, and if already extended, employment is confirmed. CEOs who fail to manage their probationary employees risk automatic confirmation.

Employment instructions have the force of the Act: Section 16 employment instructions govern detailed HR procedures. Practitioners and employees must be aware that breaching an employment instruction is a breach of this Act.

ICAC referrals trigger distinct process: Under section 15A, matters referred by ICAC must be dealt with under the ICAC Act framework. The Commissioner cannot simply ignore or dismiss ICAC referrals through the ordinary grievance review mechanism.

Example 1 (probationary termination): A CEO decides to terminate a probationary employee after 3 months. The CEO must give the employee at least 14 days' written notice of the intention to terminate and advise the employee of the right to seek Commissioner review of that intention. If the employee requests review, the CEO must wait for the Commissioner's response before proceeding (section 33(6)).

Example 2 (promotion appeal): An employee applies for a promotion but is unsuccessful. The employee believes a less-qualified colleague was promoted on non-merit grounds. Under Part 9, Division 2, the employee may appeal to an appeal board. The appeal board examines whether the merit principle was correctly applied.

Example 3 (disciplinary action): An Agency employee is found to have misused public resources. The CEO commences a disciplinary process, giving the employee notice of the alleged misconduct and the opportunity to respond. Following investigation, the CEO imposes a formal warning. The employee may appeal the disciplinary decision under Part 9.

Example 4 (ICAC referral): ICAC investigates corrupt conduct by an NT public servant. ICAC refers findings to the Commissioner under section 15A. The Commissioner must deal with the referral in accordance with the ICAC Act, Part 3, Division 4, which may include imposing disciplinary consequences or recommending termination.