Sch 8*Public Sector Reform Act 2010* Part 3 amendments: transitional provisions

Schedule 8 — *Public Sector Reform Act 2010* Part 3 amendments: transitional provisions 1. Term used: commencement day 151 2. Disciplinary proceedings under Part 5 Div. 3 151 3. Suspensions under s. 82 151 4. Appeals under s. 78 152 5. Power to amend subsidiary legislation 152 6. Transitional regulations 152 7. *Interpretation Act 1984* not affected 153 Notes Compilation table 154 Uncommenced provisions table 163 Other notes 163 Defined terms An Act to provide for the administration of the Public Sector of Western Australia and the management of the Public Service and of other public sector employment; to repeal the *Public Service Act 1978*; and to provide for related matters. ## Part 1 — Preliminary ##### 1. Short title This Act may be cited as the *Public Sector Management Act 1994*. ##### 2. Commencement The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation. ##### 3. Terms used (1) In this Act, unless the contrary intention appears — agency means — (a) a department; or (b) a SES organisation; appoint includes promote; breach of discipline means a breach of discipline referred to in section 80; chief employee means — (a) a chief employee of a non‑SES organisation; or (b) a chief employee of an agency who is not a member of the Senior Executive Service; or (c) a person deemed to be a chief employee under regulations referred to in section 4; chief executive officer means — (a) a person holding office under Division 2 of Part 3 as the chief executive officer of an agency; or (b) a person deemed to be a chief executive officer under regulations referred to in section 4; classification system means a system relating either to an office, post or position or to an employee that provides a basis for the remuneration of employees by identifying the level which correctly reflects the functions and responsibilities of the office, post or position or of the employee; code of conduct means a code of conduct developed under section 21(1); code of ethics means a code of ethics referred to in section 21(1) and established under the Commissioner’s instructions; Commissioner means the person holding the office of Public Sector Commissioner established by section 16(1); Commissioner’s instructions means instructions issued under section 22A; compensation, in relation to an employee, does not include any payment made — (a) under section 56(5)(b) or 72(2)(b); or (b) in lieu of notice under regulations referred to in section 94 in respect of an employee who is made redundant; or (c) in lieu of an accrued or accruing entitlement to leave; department means a department established under section 35; disciplinary action has the meaning given in section 80A; document includes a tape, disc or other device or medium on which information is recorded or stored electronically, mechanically, photographically or otherwise; employee means a person employed in the Public Sector by or under an employing authority; employing authority has the meaning given by section 5; executive officer means a chief executive officer or senior executive officer; function has the meaning given by section 5 of the *Interpretation Act 1984*; improvement action means any one or more of the following actions by an employing authority in respect of an employee for the purpose of improving the performance or conduct of the employee — (a) counselling; (b) training and development; (c) issuing a warning to the employee that certain conduct is unacceptable or that the employee’s performance is not satisfactory; (d) any other action of a similar nature; Industrial Commission has the meaning given to Commission by the *Industrial Relations Act 1979*; Minister means the Minister to whom the administration of this Act is for the time being committed by the Governor; ministerial office means one or more ministerial officers appointed to assist a particular political office holder; ministerial officer means a person appointed under section 68 as a ministerial officer; non‑SES organisation means an entity which consists of — (a) a body, whether corporate or unincorporate, or the holder of an office, post or position, being a body or office, post or position that is established or continued for a public purpose under a written law; and (b) persons employed by or for the purposes of that body or holder under that written law or another written law, and which neither is nor includes — (c) an SES organisation; or (d) an entity specified in column 2 of Schedule 1; organisation means a non‑SES organisation or SES organisation; performance agreement means an agreement referred to in section 47(1) or clause 13(5) of Schedule 5; permanent officer means a person appointed under section 64(1)(a) for an indefinite period; political office holder means — (a) a Minister; or (b) the Parliamentary Secretary of the Cabinet; or (c) a Parliamentary Secretary holding office under section 44A of the *Constitution Acts Amendment Act 1899*; or (d) the Government Whip; or (e) the Leader of the Opposition in the Legislative Council; or (f) the Leader of the Opposition in the Legislative Assembly; or (g) a person, if any, who, not being a Minister, is the leader of a party in the Legislative Assembly of at least 5 members, other than a party led by the Premier or by the Leader of the Opposition referred to in paragraph (f); Public Sector means all — (a) the agencies; and (b) the ministerial offices; and (c) the non‑SES organisations; public sector body means an agency, ministerial office or non‑SES organisation; public sector notice means a notice issued by or under the authority of the Commissioner for the purposes of this Act that is published as a public sector notice in accordance with the Commissioner’s instructions; public sector standard means a public sector standard referred to in section 21(1) and established under the Commissioner’s instructions; Public Service means the Public Service as constituted under section 34; public service officer means an executive officer, permanent officer or term officer employed in the Public Service under Part 3; remuneration has the meaning given by the *Salaries and Allowances Act 1975*; repealed Act means the *Public Service Act 1978*; responsible authority, in relation to a department or organisation, means — (a) a board, committee or other body for the time being administering the department or organisation; or (b) if there is no board, committee or other body referred to in paragraph (a), the Minister responsible for the department or organisation, or, when used otherwise than in relation to a department or organisation, means a responsible authority of any department or organisation; senior executive officer means a member of the Senior Executive Service other than a chief executive officer; Senior Executive Service means the Senior Executive Service as constituted under section 43; SES organisation means an entity which consists of — (a) a body, whether corporate or unincorporate, or the holder of an office, post or position, being a body or office, post or position — (i) established or continued for a public purpose under a written law; and (ii) specified in column 2 of Schedule 2; and (b) persons employed by or for the purposes of that body or holder under that written law or another written law; special disciplinary inquiry means a special disciplinary inquiry held under section 87; special inquirer means a person or persons appointed under section 24H to carry out a special inquiry; special inquiry means a special inquiry held under section 24H; substandard performance means performance which is substandard within the meaning of section 79; term officer means a person appointed under section 64(1)(b) for a term not exceeding 5 years; this Act includes subsidiary legislation in force under this Act. (3) For the purposes of the definition of ***responsible authority*** in subsection (1), a department — (a) which is established to support an organisation; and (b) which is not prescribed as an independent department for the purposes of this subsection, is to be taken to be a part of the organisation referred to in paragraph (a). (4) A reference in this Act to the Minister responsible for a public sector body of a particular kind is a reference to the Minister to whom the administration of the public sector body of that kind is for the time being committed by the Governor. (5) A reference in this Act — (a) to a person being employed by an employing authority; or (b) in relation to a person, to an employing authority as being his or her employing authority, shall, if the person was appointed under this Act for and on behalf of the State, be construed as a reference to the person being so employed for and on behalf of the State or as a reference, in relation to the person, to the employing authority as being his or her employing authority for and on behalf of the State, as the case requires. [Section 3 amended: No. 39 of 2010 s. 4, 68, 70 and 92.] ##### 4. Persons deemed to be CEOs or chief employees (1) The Commissioner is deemed to be the chief executive officer of the department principally assisting in the administration of this Act. (2) The Auditor General is deemed to be the chief executive officer of the department known as the Office of the Auditor General. (3) The Commissioner of Police is deemed to be the chief executive officer of the department known as the Police Department 1. (4) The Electoral Commissioner is deemed to be the chief executive officer of the department known as the Western Australian Electoral Commission. (5) Regulations made under section 108 may provide that the holder of such office, post or position under a written law as is specified by them is deemed to be the chief executive officer or chief employee of such department or organisation as is so specified. (6) Despite this section, Parts 3, 5 and 6 do not apply to or in relation to a person who is the Commissioner, the Auditor General, the Commissioner of Police or the Electoral Commissioner or the holder of an office, post or position deemed under regulations referred to in subsection (5) to be a chief executive officer or chief employee, except insofar as those Parts confer powers or impose duties on chief executive officers or chief employees, as the case requires, in their capacity as employing authorities. [Section 4 amended: No. 39 of 2010 s. 5.] ##### 5. Term used: employing authority (1) For the purposes of this Act, but subject to this section — employing authority means, in relation to — (a) a chief executive officer (other than a chief executive officer referred to in section 4), the Commissioner; or (b) a chief employee (other than a chief employee referred to in section 4), the person or board, committee or other body specified by a written law as being the employer of the chief employee; or (c) a department or organisation or an employee (other than a chief executive officer or chief employee) employed in a department or organisation — (i) subject to subparagraph (iii), if a chief executive officer or chief employee is the accountable authority of the department or organisation, the chief executive officer or chief employee; or (ii) subject to subparagraph (iii), if a board, committee or other body established under a written law is the accountable authority of the department or organisation, that board, committee or other body; or (iii) if a written law confers on a person or board, committee or other body the power to appoint or employ staff, the person or board, committee or other body; or (d) a ministerial office or a ministerial officer, the Minister, or, when used otherwise than in relation to a public sector body or a chief executive officer, chief employee, employee or ministerial officer, means employing authority of any public sector body, chief executive officer, chief employee, employee or ministerial officer. (2) For the purposes of this section — (a) a department — (i) which is established to support an organisation (other than an organisation which is a Minister); and (ii) which is not prescribed as an independent department for the purposes of this paragraph, is to be taken to be a part of the organisation referred to in subparagraph (i); and (b) accountable authority has the meaning given by section 3 of the *Financial Management Act 2006*. (3) Despite anything in paragraph (c) of the definition of ***employing authority*** in subsection (1), regulations made under section 108 may provide that the holder of an office, post or position, or a board, committee or other body, created or established under a written law is the employing authority of a department or organisation or of an employee (other than a chief executive officer) employed in a department or organisation. [Section 5 amended: No. 77 of 2006 s. 6 and 7; No. 39 of 2010 s. 6, 68 and 70.] ##### 6. Crown bound; application of *Industrial Relations Act 1979* (1) This Act binds the Crown in right of the State. (2) Except to the extent to which a provision of this Act specifies otherwise, the *Industrial Relations Act 1979* applies to and in relation to matters dealt with by this Act. ## Part 2 — Public Sector principles [Heading inserted: No. 39 of 2010 s. 7.] [Division 1 heading deleted: No. 39 of 2010 s. 8.] ##### 7. Public administration and management principles The principles of public administration and management to be observed in and in relation to the Public Sector are that — (a) the Public Sector is to be administered in a manner which emphasises the importance of service to the community; and (b) the Public Sector is to be so structured and organised as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities; and (c) public sector bodies are to be so structured and administered as to enable decisions to be made, and action taken, without excessive formality and with a minimum of delay; and (d) administrative responsibilities are to be clearly defined and authority is to be delegated sufficiently to ensure that those to whom responsibilities are assigned have adequate authority to deal expeditiously with questions that arise in the course of discharging those responsibilities; and (e) public sector bodies should have as their goal a continued improvement in the efficiency and effectiveness of their performance and should be administered with that goal always in view; and (f) resources are to be deployed so as to ensure their most efficient and effective use; and (g) proper standards of financial management and accounting are to be maintained at all times; and (h) proper standards are to be maintained at all times in the creation, management, maintenance and retention of records. ##### 8. Human resource management principles (1) The principles of human resource management that are to be observed in and in relation to the Public Sector are that — (a) all selection processes are to be directed towards, and based on, a proper assessment of merit and equity; and (b) no power with regard to human resource management is to be exercised on the basis of nepotism or patronage; and (c) employees are to be treated fairly and consistently and are not to be subjected to arbitrary or capricious administrative acts; and (d) there is to be no unlawful discrimination against employees or persons seeking employment in the Public Sector on a ground referred to in the *Equal Opportunity Act 1984* or any other ground; and (e) employees are to be provided with safe and healthy working conditions in accordance with the *Work Health and Safety Act 2020*. (2) In matters relating to — (a) the selection, appointment, transfer, secondment, classification, remuneration, redeployment, redundancy or termination of employment of an individual employee; or (b) the classification of a particular office, post or position, in its department or organisation, an employing authority is not subject to any direction given, whether under any written law or otherwise, by the Minister responsible for the department or organisation, but shall, subject to this Act, act independently. (3) For the purposes of this Act a proper assessment of merit in a selection process must be carried out in accordance with the relevant Commissioner’s instructions and does not always require a competitive assessment of merit. [Section 8 amended: No. 30 of 1995 s. 48; No. 39 of 2010 s. 9, 68 and 70; No. 36 of 2020 s. 366.] ##### 9. Principles of conduct by public sector bodies etc. The principles of conduct that are to be observed by all public sector bodies and employees are that they — (a) are to comply with the provisions of — (i) this Act and any other Act governing their conduct; and (ii) the Commissioner’s instructions, public sector standards and codes of ethics; and (iii) any code of conduct applicable to the public sector body or employee concerned; and (b) are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and (c) are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees. [Section 9 amended: No. 39 of 2010 s. 10 and 70.] [Division 2 (s. 10‑15) deleted: No. 39 of 2010 s. 11.] [Division 3 heading deleted: No. 39 of 2010 s. 11.] ## Part 3A — Public Sector Commissioner [Heading inserted: No. 39 of 2010 s. 12.] ### Division 1 — Public Sector Commissioner [Heading inserted: No. 39 of 2010 s. 12.] ##### 16. Office of Public Sector Commissioner (1) An office of Public Sector Commissioner is established. (2) The office of Public Sector Commissioner is not an office in the Public Service. [Section 16 inserted: No. 39 of 2010 s. 13.] ##### 17. Appointment etc. of Commissioner (1) The Commissioner shall be appointed by the Governor on the recommendation of the Minister, and shall hold office in accordance with this Division. (2) Before making a recommendation under subsection (1), the Minister shall consult the parliamentary leader of each party in the Parliament. (3) Subject to this Division, a person appointed as the Commissioner shall hold office for a term of 5 years, and is eligible for reappointment. (4) Before performing the functions of Commissioner for the first time, the Commissioner must make a declaration before the Governor in the form in Schedule 4. [Section 17 amended: No. 39 of 2010 s. 14.] ##### 18. Vacation of, or suspension from, office of Commissioner (1) The Commissioner may at any time, by written notice addressed to the Governor, resign from office, and, on receipt of that resignation by the Governor, the Commissioner vacates office as Commissioner. (2) The Commissioner, if he or she is nominated for election for the Parliament of the Commonwealth, or of any State or Territory, vacates office as Commissioner. (3) The Commissioner may, at any time, be removed or suspended from office by the Governor on addresses from both Houses of Parliament. (4) Notwithstanding subsection (3), if the Governor is satisfied that the Commissioner — (a) is incapable of properly performing the functions of his or her office; or (b) has shown himself or herself incompetent properly to perform, or has neglected to perform, the functions of his or her office; or (c) is, according to the *Interpretation Act 1984* section 13D, a bankrupt or a person whose affairs are under insolvency laws; or (d) has been guilty of misconduct, the Governor may suspend him or her from office. (5) When the Commissioner has been suspended from office under subsection (4), the Commissioner shall be restored to office unless — (a) a statement of the grounds of that suspension is laid before each House of Parliament during the first 7 sitting days of that House following that suspension; and (b) each House of Parliament, during the session in which the statement referred to in paragraph (a) is laid before it and within 30 sitting days of that statement being so laid, passes an address praying for the removal of the Commissioner from office. (6) The Commissioner shall not, except so far as he or she is authorised so to do by resolutions of both Houses of Parliament — (a) hold any office or place referred to in Part 1 or 2 of Schedule V to the *Constitution Acts Amendment Act 1899* (other than the office of Commissioner) or be a member of any commission, council, board, committee, authority, trust or other body referred to in Part 3 of that Schedule; or (b) engage in any occupation for reward outside the functions of the office of Commissioner. (7) Without limiting the generality of subsection (4)(d), the Commissioner shall be regarded for the purposes of subsection (4)(d) as being guilty of misconduct if he or she contravenes subsection (6). [Section 18 amended: No. 18 of 2009 s. 71.] ##### 19. Remuneration etc. of Commissioner (1) Subject to the *Salaries and Allowances Act 1975*, the Commissioner is entitled to be paid such remuneration as is determined by the Governor. (1a) Remuneration paid to the Commissioner under subsection (1) shall be charged to the Consolidated Account and this subsection appropriates the Consolidated Account accordingly. (2) The rate of remuneration of the Commissioner shall not be reduced during a term of office of the Commissioner without his or her consent. (3) Subject to this Division — (a) the Commissioner is entitled to such leave of absence as the Governor determines; and (b) the Governor may determine other terms and conditions of service, if any, that apply to the Commissioner. (4) Subject to any determination under subsection (3), the Commissioner is entitled to leave of absence and other conditions of service as applicable to public service officers. [Section 19 amended: No. 49 of 1996 s. 58; No. 77 of 2006 s. 4; No. 39 of 2010 s. 15.] ##### 20. Miscellaneous provisions as to superannuation and leave of absence (1) If the Commissioner was a contributor within the meaning of the *Superannuation and Family Benefits Act 1938* 2 immediately before being appointed to be the Commissioner, he or she may continue to be a contributor under that Act after that appointment. (3) If a person held an office in a department or organisation immediately before being appointed to the office of Commissioner, the person retains existing and accruing entitlements in respect of leave of absence as if service in the office of Commissioner were a continuation of service in the department or organisation. (4) If — (a) a person immediately before appointment as Commissioner occupied an office, post or position in a department or organisation; and (b) the person’s term of office as Commissioner expires by effluxion of time and the person is not reappointed to the office; and (c) but for the appointment as Commissioner, the person would still be entitled to hold the office, post or position referred to in paragraph (a), the person is entitled to be appointed to an office, post or position in a department or organisation of at least the equivalent level of classification as the office, post or position that the person occupied immediately before appointment as Commissioner. [(5) deleted] (6) A person who ceases to hold the office of Commissioner and is employed in a department or organisation retains existing and accruing entitlements in respect of leave of absence as if service in the department or organisation were a continuation of service in that office. [Section 20 amended: No. 57 of 1997 s. 99(1); No. 39 of 2010 s. 16.] ### Division 2 — Functions of Commissioner [Heading inserted: No. 39 of 2010 s. 17.] ##### 21A. General functions The functions of the Commissioner include the following — (a) to promote the overall efficiency and effectiveness of the Public Sector, having regard to the principles set out in section 7; (b) to advise Ministers, chief executive officers and chief employees of changes, improvements and management practices which, in the opinion of the Commissioner, should be implemented in order to improve the efficiency and effectiveness of the whole or any part of the Public Sector; (c) to plan for the future management and operation of the Public Sector; (d) to perform other functions that are conferred on the Commissioner under this Act or any other Act. [Section 21A inserted: No. 39 of 2010 s. 18.] ##### 21. Public sector standards, codes of ethics and codes of conduct, establishing etc. (1) The functions of the Commissioner are, having regard to the principles set out in sections 7, 8 and 9 — (a) to issue Commissioner’s instructions establishing public sector standards setting out minimum standards of merit, equity and probity to be complied with in the Public Sector in — (i) the recruitment, selection, appointment, transfer, secondment, performance management, redeployment, discipline and termination of employment of employees; and (ii) such other human resource management activities relating to employees as are prescribed, and monitor compliance with those public sector standards; and (b) to issue Commissioner’s instructions establishing codes of ethics setting out minimum standards of conduct and integrity to be complied with by public sector bodies and employees, and monitor compliance with those codes; and (c) to assist public sector bodies to develop, amend or repeal codes of conduct — (i) setting out minimum standards of conduct and integrity to be complied with by themselves and their employees; and (ii) consistent with codes of ethics established under paragraph (b), and monitor compliance with those codes; and (d) to assist public sector bodies and employees to comply with public sector standards, codes of ethics and codes of conduct established or developed, as the case requires, under this subsection; and (e) to monitor compliance by public sector bodies and employees with the principles set out in sections 8(1)(a), (b) and (c) and 9; and (f) subject to regulations referred to in section 98, to establish procedures of the kind referred to in section 97(1)(a). (2) The Commissioner may amend or repeal any public sector standard or code of ethics. (3) In establishing, amending or repealing any public sector standards, the Commissioner shall take into account the impact which those public sector standards may have on the efficiency and effectiveness of the Public Sector, and shall endeavour to minimise any adverse impact. [(4) deleted] (5) Each public sector standard and code of ethics shall be published in the *Gazette*. (6) A public sector standard or code of ethics comes into operation on the day on which it is published in the *Gazette* or on such later day as is specified in the public sector standard or code of ethics. (7) Section 42 of the *Interpretation Act 1984* applies to and in relation to a public sector standard or code of ethics as if it were regulations within the meaning of that section. (8) Subsections (5) to (7) also apply to an amendment or repeal of a public sector standard or code of ethics. (9A) The Commissioner may by order published in the *Gazette* exempt the whole or any part of any public sector body from compliance with the whole or any part of a public sector standard or code of ethics. (9B) The Commissioner may by order published in the *Gazette* repeal or amend an order made under subsection (9A). (9) Subject to subsection (10), a public sector standard or code of ethics has in relation to other Acts and subsidiary legislation made under them the force of law as if enacted as part of this Act, but may be amended or repealed by regulations made under section 108. (10) Nothing in subsection (9) prevents a court from inquiring into, and deciding, whether or not a public sector standard or code of ethics or any of its provisions — (a) has been validly established; or (b) is inconsistent with a provision of this Act; or (c) is unrelated to the power conferred by this Act to establish public sector standards or codes of ethics, as the case requires, as if the public sector standard or code of ethics or that provision were regulations within the meaning of the *Interpretation Act 1984*. (11) To the extent that — (a) a public sector standard is inconsistent with a code of ethics, a code of conduct or another Commissioner’s instruction, the public sector standard prevails; or (b) a code of ethics is inconsistent with a code of conduct or another Commissioner’s instruction (other than a Commissioner’s instruction establishing a public sector standard), the code of ethics prevails. [Section 21 amended: No. 39 of 2010 s. 19 and 70.] ##### 22A. Commissioner’s instructions (1) The Commissioner may issue written instructions concerning the following — (a) the management and administration of public sector bodies; (b) the management and administration of the Senior Executive Service; (c) human resource management, including the disposition of employees and offices under section 22B; (d) official conduct; (e) the taking of improvement action; (f) dealing with suspected breaches of discipline, disciplinary matters and the taking of disciplinary action, under Part 5 Division 3; (ga) dealing with — (i) redeployment and redundancy of employees; and (ii) termination of employment; (g) any other matter in respect of which Commissioner’s instructions are required or permitted under this Act; (h) any other matter in connection with the functions of the Commissioner in respect of which the Commissioner considers it is necessary or desirable to issue instructions. (2A) The Commissioner must issue instructions to ensure that, if a decision is made under section 81(1)(a) in respect of an employee, the employee is — (a) notified in writing of the possible breach of discipline; and (b) given a reasonable opportunity to respond. (2) The Commissioner’s instructions must not be inconsistent with this Act and must have regard to the principles set out in sections 7, 8 and 9. (3) The Commissioner’s instructions may apply — (a) generally; or (b) to a public sector body or class of public sector body specified in the instructions; or (c) to an office or class of office specified in the instructions; or (d) to an employee or class of employees specified in the instructions. (4) Except as provided in section 21, the Commissioner’s instructions need not be published in the *Gazette* but must be made publicly available in such manner as the Commissioner thinks appropriate. (5) The Commissioner may amend or revoke the Commissioner’s instructions. (6) The Commissioner must, before issuing, amending or revoking a Commissioner’s instruction, consult such persons as the Commissioner considers it desirable and practicable to consult. (7) The Commissioner’s instructions are not subsidiary legislation for the purposes of the *Interpretation Act 1984*. [Section 22A inserted: No. 39 of 2010 s. 20; amended: No. 39 of 2010 s. 93; No. 8 of 2014 s. 9.] ##### 22B. Disposition of employees and offices When departments or organisations are established in place of existing departments or organisations or by the amalgamation or division of existing departments or organisations, the Commissioner may effect the disposition of offices, posts and positions and employees and such other consequential changes as appear necessary to give effect to the change in departments or organisations. [Section 22B inserted: No. 39 of 2010 s. 20.] ##### 22C. Reports to Ministers The Commissioner may report from time to time to the Minister responsible for a public sector body on the compliance or non‑compliance by the public sector body and employees in the public sector body with — (a) the principles set out in sections 8(1)(a), (b) and (c) and 9; and (b) public sector standards, codes of ethics and codes of conduct. [Section 22C inserted: No. 39 of 2010 s. 20.] ##### 22D. Annual report (1) The Commissioner must in each year prepare a report on the following — (a) the state of administration and management of the Public Sector; (b) the compliance or non‑compliance by public sector bodies and employees, either generally or in particular, with the principles set out in sections 8(1)(a), (b) and (c) and 9 and with public sector standards, codes of ethics and codes of conduct; (c) any other matters arising out of the performance of the Commissioner’s functions that are, in the opinion of the Commissioner, of such significance as to require reporting in that manner. (2) A report required under subsection (1) may be prepared and dealt with in conjunction with any report required under the *Financial Management Act 2006* by the Commissioner in his or her capacity as the accountable authority of the department principally assisting in the administration of this Act. [Section 22D inserted: No. 39 of 2010 s. 20.] ##### 22E. Other reports The Commissioner may, in addition to the annual report required under section 22D(1), at any time prepare a report on a matter referred to in section 22D(1). [Section 22E inserted: No. 39 of 2010 s. 20.] ##### 22F. Reports under s. 22D or 22E must be laid before Parliament (1) Within 14 days after signing a report prepared under section 22D or 22E, the Commissioner is to transmit a copy of the report to each House of Parliament. (2) If — (a) when the Commissioner is ready to transmit a report under subsection (1), a House of Parliament is not sitting; and (b) the Commissioner is of the opinion that that House will not sit during the remainder of the period referred to in subsection (1), the Commissioner must transmit a copy of the report to the Clerk of that House. (3) Subsections (1) and (2) do not apply in relation to a report prepared under section 22D if the report is prepared and dealt with as provided for in section 22D(2). (4) A copy of a report transmitted to the Clerk of a House of Parliament under subsection (2) is taken to have been laid before the House. (5) The laying of a copy of a report before a House that is taken to have occurred under subsection (4) is to be reported to the House by the Clerk, and recorded in the Votes and Proceedings or Minutes of Proceedings, on the first sitting day of the House after the receipt of the copy. [Section 22F inserted: No. 39 of 2010 s. 20.] ##### 22G. Powers The Commissioner has all the powers that are needed for the performance of the Commissioner’s functions. [Section 22G inserted: No. 39 of 2010 s. 20.] ##### 22. Commissioner to act independently (1) The Commissioner shall act independently in relation to the performance of his or her functions. (2) In particular, except as provided in this Act, the Commissioner is not subject to direction by the Minister or any other person in the performance of the Commissioner’s functions. (3) Section 32 does not apply to or in relation to the Public Sector Commissioner. [Section 22 amended: No. 39 of 2010 s. 21.] ##### 23. Delegation by Commissioner (1) The Commissioner may delegate to a person any power or duty of the Commissioner under another provision of this Act or any other Act. (2) A delegation under this section must be in writing and signed by the Commissioner. (3) A person to whom a power or duty is delegated under this section cannot delegate that power or duty. (4) A person exercising or performing a power or duty that has been delegated to the person under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown. (5) Nothing in this section limits the ability of the Commissioner to perform a function through an officer or agent. [Section 23 inserted: No. 39 of 2010 s. 22.] ### Division 3 — Reviews, special inquiries and investigations #### Subdivision 1 — Reviews ##### 24A. Terms used In this Division — authorised person has the meaning given in section 24C; review means a review conducted under section 24B. [Section 24A inserted: No. 39 of 2010 s. 23.] ##### 24B. Reviews of operations etc. of public sector bodies (1) The Commissioner may on his or her own initiative conduct a review in respect of part or all of the functions, management or operations of one or more public sector bodies. (2) The Minister may by written notice direct the Commissioner to conduct a review in respect of part or all of the functions, management or operations of one or more public sector bodies. (3) The text of a direction given under subsection (2) is to be included in the annual report prepared by the Commissioner under section 22D. (4) The Commissioner must comply with a direction given under subsection (2) unless, in the Commissioner’s opinion, there are exceptional circumstances for not complying. (5) If the Commissioner refuses to comply with a direction given under subsection (2) the Commissioner must prepare written reasons for the failure to comply and cause the text of those reasons to be included in the annual report prepared by the Commissioner under section 22D. [Section 24B inserted: No. 39 of 2010 s. 23.] ##### 24C. Commissioner may authorise people to perform functions The Commissioner may, by written notice, authorise a person (an authorised person) to perform functions under this Subdivision. [Section 24C inserted: No. 39 of 2010 s. 23.] ##### 24D. Powers of Commissioner etc. for purposes of reviews (1) The Commissioner or an authorised person may for the purposes of a review — (a) enter the premises of a public sector body; (b) by written notice direct an employee to produce to him or her any document that is in the possession or under the control of the employee; (c) inspect any document produced to him or her and retain it for such reasonable period as he or she thinks fit, and make copies of it or any of its contents; (d) direct an employee to answer questions. (2) An employee who, without reasonable excuse, fails to comply with a direction under subsection (1)(b) within 14 days of receiving it commits an offence. Penalty: a fine of $10 000. (3) An employee who, without reasonable excuse, fails to comply with a direction under subsection (1)(d) commits an offence. Penalty: a fine of $10 000. [Section 24D inserted: No. 39 of 2010 s. 23; amended: No. 35 of 2014 s. 37(2) and (3).] ##### 24E. Consultation required before exercising powers in s. 24D The powers conferred by section 24D are exercisable in relation to a public sector body only after consultation with — (a) the employing authority of the public sector body; and (b) the Minister — (i) who is responsible for the public sector body; or (ii) to whom the administration of the Act under which the public sector body is established or continued is committed. [Section 24E inserted: No. 39 of 2010 s. 23.] ##### 24F. Privileges of employees in relation to s. 24D powers (1) Despite section 24D, an employee has the same privileges in relation to a requirement imposed under that section as a witness would have in proceedings in the Supreme Court. (2) Section 24D does not derogate from — (a) an enactment that imposes a prohibition or restriction on — (i) the availability of any information; or (ii) the production or examination of any document; or (b) a privilege or immunity existing by custom or convention and relating to the production of documents or other information of previous Governments of the State. [Section 24F inserted: No. 39 of 2010 s. 23.] ##### 24G. Report on review If a review was conducted on the direction of the Minister under section 24B(2), the Commissioner must provide the Minister with a written report on the conduct and findings of the review. [Section 24G inserted: No. 39 of 2010 s. 23.] #### Subdivision 2 — Special inquiries ##### 24H. Special inquiries, purpose and arrangement of (1) The Commissioner may on his or her own initiative — (a) arrange for the holding of a special inquiry into a matter related to the Public Sector; and (b) appoint a person or persons to carry out the special inquiry. (2) The Minister may direct the Commissioner to arrange for the holding of a special inquiry into a matter related to the Public Sector. (3) A direction given under subsection (2) must specify the matter to be the subject of the special inquiry. (4) The text of a direction given under subsection (2) is to be included in the annual report prepared by the Commissioner under section 22D. (5) The Commissioner must — (a) comply with a direction given under subsection (2); and (b) appoint a person or persons to carry out the special inquiry, unless, in the Commissioner’s opinion, there are exceptional circumstances for not complying. (6) If the Commissioner refuses to comply with a direction given under subsection (2) the Commissioner must prepare written reasons for the failure to comply and cause the text of those reasons to be included in the annual report prepared by the Commissioner under section 22D. [Section 24H inserted: No. 39 of 2010 s. 23.] ##### 24I. Powers of person conducting special inquiry (1) A special inquirer or a person authorised in writing by a special inquirer may for the purposes of a special inquiry — (a) enter the premises of a public sector body; and (b) by written notice require a person to produce to him or her any document that is in the possession or under the control of the person; and (c) inspect any document produced to him or her and retain it for such reasonable period as he or she thinks fit, and make copies of it or any of its contents. (2) Schedule 3 applies to and in relation to a special inquirer. [Section 24I inserted: No. 39 of 2010 s. 23.] ##### 24J. Procedure and evidence at special inquiries (1) An individual, public sector body or other body may be represented at a special inquiry by a legal practitioner or other agent. (2) A special inquirer must act independently in relation to the performance of his or her functions. (3) A special inquirer — (a) is not bound by the rules of evidence and may be informed as the special inquirer thinks fit; and (b) must act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal forms. (4) To the extent that the practice or procedure of a special inquirer is not prescribed by or under this Act, it is to be as the special inquirer determines. (5) A special inquirer does not have power to make an award of costs. [Section 24J inserted: No. 39 of 2010 s. 23.] ##### 24K. Reports on special inquiries (1) A special inquirer must — (a) within such period as the Commissioner requires, prepare a report on the conduct and findings, and any recommendations, of the special inquiry; and (b) immediately after preparing the report, provide the Commissioner with a copy of the report. (2) If a special inquiry was held on the direction of the Minister under section 24H(2), the Commissioner must provide the Minister with a copy of the report on the special inquiry provided to the Commissioner under subsection (1)(b). [Section 24K inserted: No. 39 of 2010 s. 23.] #### Subdivision 3 — Investigations ##### 24. Commissioner’s powers of investigation (1) The Commissioner may, for the purpose of performing his or her functions, investigate the activities of any public sector body and for that purpose the Commissioner, or a person authorised by the Commissioner in writing, has all the powers conferred on a special inquirer by this Act and the provisions of sections 24I and 24J and Schedule 3 apply to and in relation to — (a) the Commissioner or that person as if he or she were a special inquirer; and (b) that investigation as if it were a special inquiry. (2) A person authorised under subsection (1) must — (a) within such period as the Commissioner requires, prepare a report on the conduct and findings of, and any recommendations resulting from, an investigation by the person; and (b) immediately after preparing the report, provide the Commissioner with a copy of the report. [Section 24 amended: No. 39 of 2010 s. 24 and 69.] [**25‑27.** Deleted: No. 39 of 2010 s. 25.] ### Division 4 — Acting appointments [Heading inserted: No. 39 of 2010 s. 26.] ##### 28. Acting Commissioner appointed by Governor (1) The Governor may, on the recommendation of the Minister, appoint a person to act in the office of Commissioner during a period when — (a) the Commissioner is on leave of absence, or otherwise unable to perform the functions of Commissioner, or is absent from the State; or (b) the Commissioner is suspended from that office under section 18(3) or (4); or (c) that office is vacant. (2) Before making a recommendation under subsection (1), the Minister shall consult the parliamentary leader of each party in the Parliament. (3) A person appointed to act under subsection (1) is, while that appointment subsists, to be known as the Acting Public Sector Commissioner. (4) An acting appointment subsists until — (a) the relevant leave of absence, inability, absence, suspension or vacancy ceases; or (b) the term of that appointment expires; or (c) the expiry of 12 months from the day of that appointment, whichever is soonest. (5) If an acting appointment ends under subsection (4)(b), it can be renewed under subsection (1) but not so as to extend beyond 12 months from the day of the original acting appointment. (6) If — (a) a person immediately before appointment as Acting Commissioner under this section occupied an office in a department or organisation; and (b) the person’s period of office as Acting Commissioner ends and the person is not reappointed to the office; and (c) but for the appointment as Acting Commissioner, the person would still be entitled to hold the office referred to in paragraph (a), the person is entitled to be appointed to an office in a department or organisation of at least the equivalent level of classification as the office that the person occupied immediately before appointment as Acting Commissioner. (7) Sections 17(4), 18, 19 and 20(1), (3) and (6) apply to an Acting Commissioner appointed under this section. [Section 28 amended: No. 39 of 2010 s. 27.] ##### 29A. Acting Commissioner appointed by Commissioner (1) If the Governor has not appointed a person under section 28, the Commissioner may appoint a person to act in the office of Commissioner in the circumstances referred to in section 28(1)(a). (2) A person must not be appointed under subsection (1) for more than 13 weeks in a 12 month period. (3) An appointment under this section — (a) may be terminated at any time by the Commissioner; and (b) may be expressed to have effect only in the circumstances specified in the instrument of appointment. (4) If the Commissioner appoints a person under subsection (1) and the Governor later appoints a person under section 28 whose term of appointment is to begin before the term of the Commissioner’s appointee has ended, the appointment of the Commissioner’s appointee ceases to have effect on and from the day on which the term of the Governor’s appointee begins. (5) Sections 18(1) and (2), 19 and 20(1), (3) and (6) apply to an Acting Commissioner appointed under this section. [Section 29A inserted: No. 39 of 2010 s. 28.] ##### 29B. Matters relevant to all acting appointments While an Acting Commissioner is acting in the office of Commissioner under section 28 or 29A — (a) the Acting Commissioner is to perform all the functions of the Commissioner and any act or thing done by the Acting Commissioner in that performance has the like effect as if it were done by the Commissioner; and (b) any act or thing that is required under a written law to be done to, by reference to or in relation to the Commissioner is taken to be effectually done if done to, by reference to or in relation to the Acting Commissioner; and (c) the Acting Commissioner has the same immunities and independence as the Commissioner. [Section 29B inserted: No. 39 of 2010 s. 28.] ## Part 3B — Chief executive officers and chief employees [Heading inserted: No. 39 of 2010 s. 29.] ##### 29. Functions of CEOs and chief employees (1) Subject to this Act and to any other written law relating to his or her department or organisation, the functions of a chief executive officer or chief employee are to manage that department or organisation, and in particular — (a) to provide leadership, strategic direction and a focus on results for that department or organisation; and (b) to provide policy advice to the responsible authority of that department or organisation; and (c) to plan for and undertake financial, information and other management in relation to that department or organisation and to monitor the administrative and financial performance of that department or organisation; and (d) to ensure the appropriate deployment and redeployment of resources within that department or organisation; and (e) to ensure the proper organisation of that department or organisation, including the devising of organisational structures and arrangements; and (f) to ensure the appropriate division of responsibilities between, and the assignment of functions to, the employees employed in that department or organisation; and (g) to manage and direct employees employed in that department or organisation and, without limiting the generality of this paragraph, to be responsible for the recruitment, selection, appointment, deployment and termination of employment of those employees; and (h) to classify, and determine the remuneration of, employees in that department or organisation and their offices, posts or positions, and to vary any such classification or remuneration, in accordance with — (i) the requirements of any binding award, order or industrial agreement under the *Industrial Relations Act 1979*; and (ia) the requirements of an employer‑employee agreement under the *Industrial Relations Act 1979* Part VID; and (ii) the relevant Commissioner’s instructions, if any; and (i) to evaluate the performances of employees employed in that department or organisation; and (ja) where appropriate, to take improvement action in respect of employees employed in that department or organisation; and (j) subject to the *Equal Opportunity Act 1984*, to devise and implement initiatives to ensure that employees in that department or organisation have equal opportunities in relation to their employment in accordance with the principles of merit and equity; and (k) to establish and implement necessary management training programmes and staff training, education and development programmes; and (l) subject to Part 7 and the *Industrial Relations Act 1979*, to resolve or redress the grievances of employees in that department or organisation; and (m) subject to the *Work Health and Safety Act 2020*, to implement any health and safety standards and programmes adopted with respect to employment in the Public Sector; and (n) subject to the *State Records Act 2000*, to ensure that the department or organisation keeps proper records; and (o) to perform such other functions as are conferred or imposed on the chief executive officer or chief employee under this Act or any other Act. (2) A chief executive officer or chief employee has power to do all things that are necessary or convenient to be done for or in connection with the performance of his or her functions. [Section 29 amended: No. 30 of 1995 s. 48; No. 53 of 2000 s. 21; No. 20 of 2002 s. 25(2); Gazette 15 Aug 2003 p. 3690; No. 39 of 2010 s. 30 and 70; No. 8 of 2014 s. 10; No. 36 of 2020 s. 367; No. 43 of 2024 s. 148.] ##### 30. Duties of CEOs and chief employees when performing functions In performing the functions of a chief executive officer or chief employee of a department or organisation, that chief executive officer or chief employee shall — (a) endeavour to attain performance objectives agreed with the responsible authority of the department or organisation; and (b) comply with the Commissioner’s instructions, public sector standards, codes of ethics and any relevant code of conduct; and (c) comply with the principles set out in sections 7, 8 and 9; and (d) comply with any binding award, order or industrial agreement under the *Industrial Relations Act 1979* or employer‑employee agreement under Part VID of the *Industrial Relations Act 1979*. [Section 30 amended: No. 20 of 2002 s. 25(3); No. 39 of 2010 s. 31 and 70; amended: Gazette 15 Aug 2003 p. 3690.] ##### 31. Extent of compliance with public sector standards etc. to be reported (1) A chief executive officer or chief employee shall cause to be included in the annual report submitted by the accountable authority of the relevant department or organisation under Part 5 of the *Financial Management Act 2006* a report, prepared in accordance with the relevant Commissioner’s instructions, if any, on the extent to which public sector standards, codes of ethics and any relevant code of conduct have been complied with in relation to the relevant department or organisation. (2) The chief executive officer or chief employee of an organisation which is not a statutory authority within the meaning of the *Financial Management Act 2006* shall, before 31 August in each year or such earlier date in that year as the Commissioner may determine by order published in the *Gazette*, cause to be prepared and submitted to the Commissioner a report, prepared in accordance with the relevant Commissioner’s instructions, if any, on the extent to which public sector standards, codes of ethics and any relevant code of conduct have been complied with in relation to that organisation. (3) If the whole or any part of a department or organisation is exempted under section 21(9A) from compliance with the whole or any part of any public sector standard or code of ethics, subsections (1) and (2) do not apply to or in relation to any thing to which that exemption relates. (4) The Commissioner shall include in the annual report prepared by the Commissioner under section 22D each report submitted to him or her under subsection (2). [Section 31 amended: No. 5 of 2005 s. 43; No. 77 of 2006 Sch. 1 cl. 137; No. 39 of 2010 s. 32 and 69.] ##### 32. CEOs and chief employees to comply with directions etc. of responsible authority (1) In performing his or her functions, a chief executive officer or chief employee shall, subject to — (a) section 8(2); and (b) any Commissioner’s instruction, public sector standard or code of ethics; and (c) any other written law relating to his or her department or organisation, comply with any lawful directions or instructions given to him or her from time to time by the responsible authority of his or her department or organisation. (2) For the purposes of subsection (1), to the extent that there is any conflict between — (a) section 8(2) or any public sector standard or code of ethics (in this subsection referred to as the paragraph (a) provision); and (b) any other written law relating to the relevant department or organisation, the paragraph (a) provision prevails. [Section 32 amended: No. 39 of 2010 s. 33 and 70.] ##### 33. Delegation by CEO or chief employee (1) Subject to any other written law, a chief executive officer or chief employee may delegate any power or duty of the chief executive officer or chief employee under another provision of this Act to — (a) a public service officer; or (b) any other employee; or (c) a person who is appointed, employed or holds office in an entity that is — (i) listed in Schedule 1 column 2; and (ii) prescribed for the purposes of this section; or (d) with the approval of the Commissioner, any other person. (2) The Commissioner must not approve a delegation under subsection (1)(d) unless the Commissioner is satisfied that the delegation is necessary or convenient having regard to — (a) the functions of the department or organisation in relation to which the chief executive officer or chief employee has the power or duty; or (b) the specialised knowledge, expertise or resources of the person to whom the power or duty is delegated. (3) The delegation must be in writing and signed by the chief executive officer or chief employee. (4) A person to whom a power or duty is delegated under this section cannot delegate that power or duty. (5) A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown. (6) If a power or duty is delegated under subsection (1), the power or duty is, when exercised or performed by the delegate, to be taken to be exercised or performed by the person who delegated it. (7) Nothing in this section limits the ability of the chief executive officer or chief employee to perform a function through an officer or agent. [Section 33 inserted: No. 39 of 2010 s. 34.] ## Part 3 — Public Service ### Division 1 — General ##### 34. Constitution of Public Service The Public Service is constituted by — (a) departments; and (b) SES organisations, insofar as any posts in them, or persons employed in them, or both, belong to the Senior Executive Service; and (c) persons employed under this Part, whether in departments or in the Senior Executive Service in SES organisations, or otherwise. ##### 35. Departments, establishment etc. of (1) The Governor may, on the recommendation of the Commissioner — (a) establish and designate departments; and (b) amalgamate or divide existing departments and designate the resulting department or departments; and (c) abolish departments; and (d) alter the designations of existing departments. (2) Notice of any act by the Governor under subsection (1) is to be published in the *Gazette*. (3) An omission to publish a notice under subsection (2) does not invalidate the act of the Governor. (4) The Minister may direct the Commissioner to make a recommendation to the Governor under subsection (1) in respect of a department or departments specified in the direction, and the Commissioner must comply with the direction. (5) The text of a direction given under subsection (4) is to be included in the annual report prepared by the Commissioner under section 22D. [Section 35 amended: No. 24 of 2000 s. 34(1); No. 39 of 2010 s. 35 and 70.] ##### 36. Organisational powers of employing authorities of departments etc. (1) Subject to subsection (2), the employing authority of a department or organisation may, in relation to the department or organisation — (a) determine organisational structures and arrangements; and (b) create, transfer or abolish offices; and (c) in accordance with the Commissioner’s instructions classify, or alter the classification of, offices other than offices included in the Special Division of the Public Service under section 38. (2) Subject to subsection (3), subsection (1) does not apply to the employing authority of an organisation unless the written law under which the organisation is established or continued authorises or requires the appointment or employment of public service officers for the purposes of the organisation. (3) Nothing in subsection (2) prevents the employing authority of an organisation from exercising the powers conferred by subsection (1) in relation to the offices of executive officers within the organisation. [Section 36 amended: No. 39 of 2010 s. 36 and 70.] ##### 37. Right of appeal as to remuneration of employees of organisations that become part of Public Service [(1) deleted] (2) If, in respect of an appointment as a public service officer of a person who was employed in an organisation immediately before the organisation became a part of the Public Service, the relevant employing authority determines that the remuneration payable to the public service officer shall be at a rate less than was payable to him or her as an employee of the organisation immediately prior to it becoming a part of the Public Service, the public service officer may, in the manner prescribed under Division 2 of Part IIA of the *Industrial Relations Act 1979*, appeal to the Industrial Commission constituted by a Public Service Arbitrator appointed under that Division against any provision of that determination, and, notwithstanding any provision of that Act, the Public Service Arbitrator has jurisdiction to hear and determine that appeal. [Section 37 amended: No. 1 of 1995 s. 35.] ##### 38. Determinations of offices in Special Division for *Salaries and Allowances Act 1975* s. 6(1)(d) (1) For the purposes of section 6(1)(d) of the *Salaries and Allowances Act 1975*, the Commissioner may determine that an office in the Public Service is an office included in the Special Division of the Public Service. (2) The Commissioner may amend or revoke a determination made under subsection (1). [Section 38 amended: No. 39 of 2010 s. 37.] ##### 39. Retirement of public service officers on grounds of ill health (1) A public service officer may retire, or an employing authority may call on a public service officer to retire, from the Public Service on the grounds of ill health. (2) A public service officer who is called on to retire from the Public Service under subsection (1) shall forthwith so retire. ##### 40. Service of notices etc. when address of public service officer unknown (1) If the address for the time being of a public service officer is unknown to his or her employing authority, all notices, orders or communications to or for the public service officer shall be posted to the last known address of the public service officer and a notice of the act of that posting shall be published as a public sector notice in accordance with the Commissioner’s instructions. (2) Compliance with subsection (1) shall be deemed a sufficient service of any notice, order or communication on the public service officer concerned. [Section 40 amended: No. 39 of 2010 s. 38.] ##### 41. Public service officers appointed by Governor, exercise of powers as to In the case of a public service officer in a department or organisation who is appointed by the Governor — (a) the powers conferred on an employing authority by this Part (other than the power to terminate the employment in the Public Service of the public service officer) may be exercised for and on behalf of the Governor — (i) in the case of a public service officer who is a chief executive officer, by the Commissioner; or (ii) in the case of a public service officer who is not a chief executive officer, by the employing authority of the department or organisation; and (b) the power to terminate the employment in the Public Service of that public service officer (not being a chief executive officer) may be exercised by the Governor on the recommendation of the Minister responsible for the department or organisation. [Section 41 amended: No. 39 of 2010 s. 67 and 68.] ### Division 2 — Senior Executive Service ##### 42. Purposes of Senior Executive Service (1) The purposes of the Senior Executive Service are — (a) to provide for a group of executive officers who are capable of — (i) furnishing high level policy advice and undertaking managerial responsibilities in agencies; and (ii) being deployed within agencies, and between agencies, so as best to promote the efficiency of the Public Sector; and (b) to promote the efficiency of individual agencies. [Section 42 amended: No. 39 of 2010 s. 39.] ##### 43. Constitution of Senior Executive Service (1) Subject to this section, the Senior Executive Service consists of — (a) each public service officer employed in a department whose salary; and (b) each office in a department, or post in an SES organisation, the salary attached to which; and (c) each person employed in an SES organisation whose salary, exceeds such level as is prescribed for the purposes of this subsection and who, or the holder of which, as the case requires, becomes or remains a member of the Senior Executive Service by virtue of — (d) section 110(2); or (e) an appointment under section 45 or 53; or (f) a reappointment under section 46. (2) The Senior Executive Service — (a) excludes such public service officer, holder of an office, office, post, holder of a post, or person, referred to in subsection (1) as is the subject of a declaration in force under subsection (3); but (b) includes such public service officer, holder of an office, office, post, holder of a post, or person, not referred to in subsection (1) as is the subject of a declaration in force under subsection (4). (3) The Commissioner may from time to time by notice published as a public sector notice in accordance with the Commissioner’s instructions — (a) declare that a public service officer, holder of an office, office, post, holder of a post, or person, referred to in subsection (1) is excluded from the Senior Executive Service on and from such day, not being a day earlier than the day of that publication, as is specified in that declaration; or (b) repeal or amend a declaration made under this subsection. (4) The Commissioner may from time to time by notice published as a public sector notice in accordance with the Commissioner’s instructions — (a) declare that a public service officer, holder of an office, office, post, holder of a post, or person, not referred to in subsection (1) is included in the Senior Executive Service on and from such day, not being a day earlier than the day of that publication, as is specified in that declaration; or (b) repeal or amend a declaration made under this subsection. (5) If a declaration is made under subsection (3) or repealed under subsection (4) in respect of — (a) a public service officer employed in a department who was, immediately before the day specified in that declaration or the day of that repeal, a member of the Senior Executive Service, that public service officer; or (b) an office in a department, the holder of that office immediately before the day specified in that declaration or the day of that repeal, continues to be employed in the department on the same terms and conditions as those to which he or she was entitled as a member of the Senior Executive Service until, subject to this Act, he or she retires or his or her employment in the Public Service is otherwise terminated, or his or her terms and conditions of service are varied, under this Act. (6) If a declaration is made under subsection (3) or repealed under subsection (4) in respect of — (a) a person employed in an SES organisation who was, immediately before the day specified in that declaration or the day of that repeal, a member of the Senior Executive Service, that person; or (b) a post in an SES organisation, the person who was the holder of that post immediately before the day specified in that declaration or the day of that repeal, continues to be employed in the SES organisation on the same terms and conditions as those to which he or she was entitled as a member of the Senior Executive Service until, subject to the written law under which the SES organisation was established or continued, he or she retires or his or her employment in the Public Service is otherwise terminated, or his or her terms and conditions of service are varied, under that written law. (7) A public service officer or person to whom a declaration made under subsection (3) or (4) relates may be identified in that declaration by name or by any other means of identification. (8) The Commissioner shall, before making a declaration referred to in subsection (3) or (4), consult the employing authority of the agency in which the public service officer, holder of an office, office, post, holder of a post, or person, to whom or which the proposed declaration relates is employed or is located, as the case requires. (9) When, under this Division, a person is appointed to, reappointed to, transferred to, or directed to act in, an office or post which is included in the Senior Executive Service and which is created under another written law, the person shall be regarded as having also been appointed to, reappointed to, transferred to, or directed to act in, that office or post under that written law. (10) When an executive officer is employed in an SES organisation, the executive officer has all the functions and protection which he or she would have if he or she — (a) were not an executive officer; and (b) were employed under the written law under which the SES organisation is established or continued. [Section 43 amended: No. 39 of 2010 s. 40 and 67.] ##### 44. Agencies each to have CEO or chief employee (1) Subject to subsection (2), each agency shall have a chief executive officer. (2) An agency which does not have a chief executive officer because of a declaration made under section 43(3) shall have a chief employee. (3) The Commissioner may — (a) subject to any other written law relating to the agency concerned, create an office of chief executive officer for an agency; and (b) determine the level of classification of an office created under this subsection, other than an office included in the Special Division of the Public Service under section 38. [Section 44 amended: No. 39 of 2010 s. 67.] ##### 45. CEOs, appointment of (1) Each chief executive officer shall be appointed for such term not exceeding 5 years as is specified in the instrument of his or her appointment by the Governor for and on behalf of the State on the recommendation of the Commissioner under this section, but this section does not apply to the reappointment of a person to his or her office of chief executive officer. (2) Subject to this Act, the employment of a chief executive officer is to be governed by a contract of employment referred to in section 56. (3) If — (a) there is a vacancy or an impending vacancy in the office of a chief executive officer; and (b) it is not intended to fill the vacancy by transferring a chief executive officer to that office under section 50, or temporarily by directing an employee to act in the office under section 51, the Commissioner must act under this section to enable the filling of that vacancy or impending vacancy. (4) The Commissioner must, for the purposes of subsection (3), invite — (a) the Minister; and (b) if the Minister is not the responsible authority of the agency concerned, that responsible authority; and (c) if the responsible authority of the agency concerned is not the Minister responsible for that agency, that Minister, to inform the Commissioner of any matters that they wish the Commissioner to take into account in recommending a person for appointment to the office referred to in subsection (3). (5) The Commissioner shall notify the vacancy or impending vacancy in such manner as the Commissioner thinks sufficient to enable suitably qualified persons to apply for the relevant office. (6) The Commissioner shall cause applicants for the relevant office to be examined, but nothing in this section requires the examination of all those applicants. (7) The Commissioner may seek advice from such sources as the Commissioner considers relevant and may invite such other persons as the Commissioner thinks fit to assist him or her to decide on the person or persons suitable for appointment to the relevant office, and any person so invited may take part in the examination of applicants or in the deliberations of the Commissioner on the matter or in both. (8) When the Commissioner decides on a person suitable for appointment to the relevant office, the Commissioner must recommend to the Governor that that person be appointed to the relevant office. [(9)‑(12) deleted] (13) In deciding on a person to be recommended for appointment as a chief executive officer, the Commissioner shall have regard to the need for the appointment of a person who — (a) is able to discharge the specific responsibilities placed on the chief executive officer; and (b) will imbue the employees of his or her agency with a spirit of service to the community; and (c) will promote effectiveness and efficiency in his or her agency; and (d) will be a responsible manager of his or her agency; and (e) will maintain appropriate standards of conduct and integrity among the employees of his or her agency. [Section 45 amended: No. 39 of 2010 s. 41, 67 and 70.] ##### 46. CEOs, reappointment of on expiry of contract (1) If the contract of employment of a chief executive officer is about to expire and the chief executive officer has notified the Commissioner that he or she wishes to be reappointed to his or her office of chief executive officer, the Commissioner may — (a) recommend to the Governor that — (i) the chief executive officer be reappointed to the relevant office; or (ii) if the chief executive officer has been transferred to the performance of other functions under section 50, the chief executive officer be reappointed to perform those functions at the same level of classification; or (b) notify the chief executive officer that he or she will not be reappointed. (2) If the Commissioner — (a) recommends to the Governor that the incumbent be reappointed to the relevant office, the Governor shall so reappoint the incumbent for and on behalf of the State for such term not exceeding 5 years as is specified in the instrument of his or her reappointment; or (b) does not recommend to the Governor that the incumbent be reappointed to the relevant office, the vacancy or impending vacancy in the office of the incumbent shall be filled in accordance with section 45. (3) Subject to this Act, the employment of a chief executive officer reappointed under this section shall be governed by a contract of employment referred to in section 56. [Section 46 amended: No. 39 of 2010 s. 42, 67 and 70.] ##### 47. CEOs, performance agreements etc. of (1) A chief executive officer must, on appointment under section 45, and at any time when required to do so under the Commissioner’s instructions, enter in accordance with the Commissioner’s instructions into an agreement with — (a) the Commissioner; and (b) the responsible authority of the agency of the chief executive officer, concerning the performance criteria to be met by the chief executive officer during the period to which the agreement relates. (2) A performance agreement does not take effect until the Minister responsible for the agency concerned (if that Minister is not the responsible authority of the agency) has approved the performance agreement and a note of that approval has been endorsed on the performance agreement. (3) A performance agreement is not legally enforceable. (4) The responsible authority of the agency of a chief executive officer is responsible for assessing in accordance with the Commissioner’s instructions, on or shortly before the end of each period referred to in subsection (1), the extent to which the chief executive officer meets the performance criteria set out in his or her current performance agreement. [Section 47 amended: No. 39 of 2010 s. 43.] [**48.** Deleted: No. 39 of 2010 s. 44.] ##### 49. CEOs, removal of from office The Governor may, on the recommendation of the Commissioner, at any time remove a chief executive officer from office. [Section 49 amended: No. 39 of 2010 s. 45.] ##### 50. CEOs, transfer of (1) The Governor may at any time on the recommendation of the Commissioner transfer a chief executive officer from — (a) his or her office of chief executive officer to — (i) another office of chief executive officer that is vacant and that is at the same level of classification as, or at a lower level of classification than, the first‑mentioned office; or (ii) the performance of other functions in the Senior Executive Service; or (b) the performance of other functions in the Senior Executive Service to an office of chief executive officer that is vacant and that is at the same level of classification as, or at a lower level of classification than, the office from which the chief executive officer was transferred to the performance of those functions. (2) Before making a recommendation referred to in subsection (1) the Commissioner must consult — (a) the responsible authority of the agency in which the office of the chief executive officer to whom the proposed recommendation relates is located; and (b) the responsible authority of the agency of destination; and (c) if neither of the responsible authorities referred to in paragraphs (a) or (b) is the Minister responsible for the relevant agency, that Minister; and (d) the chief executive officer to whom the proposed recommendation relates. (3) Subject to the provisions of this Act relating to the management of the redeployment and redundancy of employees, a chief executive officer who is transferred under subsection (1) retains for the remainder of the term of his or her contract of employment a level of classification equal to the highest level of classification of any office previously occupied by him or her during that term. (4) The transfer of a chief executive officer under this section does not affect the term of his or her contract of employment. (5) In subsection (2)(b) — agency of destination means the agency — (a) to an office; or (b) to the performance of other functions in the Senior Executive Service, in which the chief executive officer to whom the proposed recommendation relates is proposed to be transferred. [Section 50 amended: No. 39 of 2010 s. 46 and 67.] ##### 51. Acting CEOs (1) Subject to this section, the Commissioner may — (a) if an office of chief executive officer is vacant, or a chief executive officer is absent from duty or for any reason unable to perform his or her functions, direct an employee to act for such period not exceeding 12 months as is specified in that direction in the office of chief executive officer during that vacancy, absence or inability, as the case requires; and (b) at any time cancel a direction given under this subsection. (2) The Commissioner may, in a direction given under subsection (1), state that anything done by the employee to whom that direction is given during the period commencing on the occurrence of the relevant vacancy, or on the beginning of the relevant absence or inability, and ending on the giving of that direction, which thing would have been valid had it been done by the chief executive officer referred to in that subsection, is as valid as if it had been done by that chief executive officer, and any such statement has effect according to its tenor. (3) The Commissioner must, before giving a direction under subsection (1), consult — (a) the responsible authority of the agency concerned; and (b) if that responsible authority is not the Minister responsible for that agency, that Minister. (4) An employee directed under subsection (1) to act in an office — (a) shall comply with that direction; and (b) has, whilst he or she is so acting, all the functions and obligations attaching to the office. [Section 51 amended: No. 39 of 2010 s. 47, 67 and 70.] ##### 52. Employment etc. of CEOs cannot be litigated etc. (1) In this section, a reference to the employment of a chief executive officer is a reference to — (a) the appointment of, or failure to appoint, a person to a vacant office of chief executive officer; or (b) the removal, retirement, termination of employment or other cessation of office of a chief executive officer; or (c) any disciplinary proceedings or action taken under Part 5 against a chief executive officer; or (d) the remuneration or terms and conditions of employment of a chief executive officer. (2) The employment of a chief executive officer, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the *Industrial Relations Act 1979*. (3) Subsection (2) applies whether or not any person has been appointed to a vacant office of chief executive officer. (4) An award, order or industrial agreement under the *Industrial Relations Act 1979*, whether made or registered, as the case requires, before or after the commencement of this section, does not have effect insofar as it relates to the employment of a chief executive officer. (5) Subsection (4) does not prevent a contract of employment of a chief executive officer from applying any provision of an award, order or industrial agreement under the *Industrial Relations Act 1979* to the employment of the chief executive officer. (6) An appeal does not lie under the *Industrial Relations Act 1979* in relation to the employment of a chief executive officer. (7) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief lie in respect of — (a) the appointment of, or failure to appoint, a person to a vacant office of chief executive officer; or (b) the reappointment of, or failure to reappoint, a chief executive officer; or (c) the entitlement or non‑entitlement of a person to be so appointed or reappointed. (8) Nothing in this section prevents a person from raising with the Commissioner a complaint concerning the employment of a chief executive officer. ##### 53. Senior executive officers, appointment of (1) Subject to this section and to any binding award, order or industrial agreement under the *Industrial Relations Act 1979* or employer‑employee agreement under Part VID of the *Industrial Relations Act 1979*, an employing authority of an agency may in accordance with the Commissioner’s instructions appoint for and on behalf of the State for such term not exceeding 5 years as is specified in the relevant instrument of appointment a public service officer or other person to the Senior Executive Service otherwise than as a chief executive officer. (2) A public service officer or other person appointed under subsection (1) shall be so appointed as a senior executive officer, and that appointment is to be governed by a contract of employment referred to in section 56. (3) An appointment under subsection (1) shall be to such level of classification as is determined by the employing authority — (b) as being appropriate to the functions to be performed by the person or public service officer so appointed. (4) On the expiry of his or her term of office, a senior executive officer is eligible for reappointment under subsection (1) as a senior executive officer on the basis of terms and conditions agreed between him or her and the employing authority. (5) An employing authority shall in accordance with the Commissioner’s instructions appoint a senior executive officer to fill a vacancy in an office, or to the performance of other functions, in the Senior Executive Service for such term not exceeding 5 years as is specified in the instrument of his or her appointment. (6) A person shall be appointed under subsection (5) at the same time as his or her appointment under subsection (1). [Section 53 amended: No. 20 of 2002 s. 25(4); No. 39 of 2010 s. 48 and 70; amended: Gazette 15 Aug 2003 p. 3690.] ##### 54. Senior executive officers, transfer of (1) The employing authority of an agency may at any time transfer a senior executive officer of the agency from his or her office of senior executive officer, or the performance of any functions in the Senior Executive Service, to — (a) another office of senior executive officer that is vacant; or (b) the performance of other functions in the Senior Executive Service. (2) An employing authority shall, before transferring a senior executive officer under subsection (1) from its agency to another agency — (a) obtain the consent of the employing authority of the agency to which the senior executive officer is proposed to be transferred; and (b) consult the senior executive officer proposed to be transferred. (3) Subject to the provisions of this Act relating to the management of the redeployment and redundancy of employees, a senior executive officer may only be transferred under subsection (1) at the level of classification which he or she had immediately before that transfer. (4) If the office to which a senior executive officer is transferred under subsection (1)(a) is an office, or the functions to the performance of which a senior executive officer is transferred under subsection (1)(b) are functions, in a different agency, the employing authority of that agency becomes the employing authority of the senior executive officer. (5) On the transfer of a senior executive officer under subsection (1), the employing authority of the agency to which that transfer takes place is substituted for the employing authority of the agency from which that transfer takes place as a party to the contract of employment of the senior executive officer. (6) The transfer of a senior executive officer under subsection (1) does not affect the term of his or her contract of employment. ##### 55. Senior executive officers, performance assessments of (1) The performance of his or her functions by a senior executive officer shall be assessed at intervals of not more than one year by the employing authority of his or her agency. (2) In assessing under subsection (1) the performance of a senior executive officer, the employing authority concerned shall have regard to any performance criteria specified in the contract of employment of the senior executive officer and to any other relevant matter. ##### 56. Executive officers, contracts of employment of (1) Subject to this Act, the employment of an executive officer shall be governed by a contract of employment between the executive officer and his or her employing authority. (2) A contract of employment referred to in subsection (1) shall — (a) be in writing; and (b) be signed by or on behalf of the parties to that contract; and (c) expire on the day on which the term of appointment of the executive officer concerned expires or is terminated. (3) A contract of employment of an executive officer may be terminated before its expiry on the expiry of not less than 4 weeks’ notice of termination — (a) given to him or her by his or her employing authority, or payment in lieu of that period of notice by that employing authority to the executive officer of an amount not exceeding such amount as is prescribed; or (b) given to his or her employing authority by the executive officer or such shorter period of notice as is agreed between the executive officer and his or her employing authority. (4) A contract of employment referred to in this section (in this subsection referred to as the original contract) may be varied at any time by a further contract in writing entered into, and signed by, the parties to the original contract, but the term of the original contract cannot be extended to a total period of more than 5 years after the day on which the original contract came into force. (5) If the employing authority of an executive officer does not propose to reappoint, or to recommend the reappointment of, the executive officer, that employing authority shall — (a) notify the executive officer of that fact not less than 4 weeks before the expiry of his or her contract of employment; or (b) pay the executive officer in lieu of that period of notice an amount — (i) not exceeding such maximum amount as is prescribed; and (ii) not less than such minimum amount as is prescribed for each day by which that period of notice falls short of 4 weeks. (6) The employing authority of an executive officer acts for and on behalf of the State in any contract of employment between that employing authority and the executive officer. [Section 56 amended: No. 39 of 2010 s. 49 and 70.] ##### 57. Contracts of employment of executive officers, content of (1) The matters to be dealt with in a contract of employment between an executive officer and his or her employing authority include — (a) the functions of the office of the executive officer, including the meeting of performance criteria; and (b) the remuneration to be accorded the executive officer in accordance with any relevant determination of the Tribunal or such other arrangements as are prescribed; and (c) any election by the executive officer to retain a right of return within the meaning of section 58. (2) In this section — Tribunal means the Salaries and Allowances Tribunal established by the *Salaries and Allowances Act 1975*. [Section 57 amended: No. 39 of 2010 s. 70.] ##### 58. Right of return for certain executive officers (1) An executive officer may elect to retain a right of return if, for a continuous period of not less than 6 months ending immediately before his or her first appointment as an executive officer, the executive officer — (a) was employed for an indefinite period in a department or organisation; or (b) held a statutory office or a series of statutory offices on a full‑time basis and, before holding the statutory office or any of those statutory offices, was employed for an indefinite period in a department or organisation. (2) An election referred to in subsection (1) — (a) may be made in the first contract of employment entered into by the executive officer, but, unless made in that contract, cannot be made in any subsequent contract of employment for the same or another office in the Senior Executive Service; and (b) is revoked if that election is not again made by the executive officer in a subsequent contract of employment; and (c) may be revoked by the executive officer by notice in writing delivered to his or her employing authority; and (d) if revoked, cannot be made again. (3) An executive officer who has elected to retain a right of return is entitled to employment in a department or organisation at the same level of classification as he or she held immediately before ceasing to be employed for an indefinite period within the meaning of subsection (1)(a) or (b), as the case requires, if he or she — (a) ceases to be an executive officer otherwise than by reason of a declaration made under section 43(3) or repealed under section 43(4); and (b) in the case of — (i) a chief executive officer, is not reappointed to the same or another office of chief executive officer or to the performance of other functions in the Senior Executive Service; or (ii) a senior executive officer, is not reappointed to the same or another office of senior executive officer or to the performance of other functions in the Senior Executive Service. (4) A person is not entitled to a right of return if his or her employment in the Public Sector was terminated, or he or she was dismissed, under this Act for substandard performance or breach of discipline. (5) This section does not prevent the application of the provisions of this Act relating to the management of the redeployment and redundancy of employees to a person who is employed in a department or organisation under a right of return. (6) Nothing in this section affects the entitlement of any executive officer under another written law to employment in a department or organisation in accordance with that written law. (7) In this section — right of return means the entitlement of an executive officer to employment in a department or organisation in accordance with this section; statutory office means an office, post or position that is established under an Act by which the right to appoint to that office, post or position is vested in the Governor or a Minister. [Section 58 amended: No. 39 of 2010 s. 68 and 70.] ##### 59. Compensation etc. if executive officer has no right of return (1) This section applies to a person — (a) who ceases to be an executive officer, otherwise than by reason of — (i) a declaration made under section 43(3) or repealed under section 43(4); or (ii) termination of employment in the Public Sector, or dismissal, under this Act for substandard performance or breach of discipline, before his or her contract of employment expires by effluxion of time; and (b) who does not have a right of return within the meaning of section 58. (2) A person to whom this section applies is entitled to such compensation, if any, as the Commissioner determines by reference to the remuneration to which that person is entitled for a particular period ending immediately before the day referred to in subsection (3). (3) The maximum compensation payable to a person under this section is an amount equal to the remuneration to which the person is entitled for the period of one year ending immediately before the day on which the person ceased to be an executive officer in the manner specified in subsection (1)(a). (4) A person to whom compensation is paid under this section and who is subsequently — (a) employed in a department or organisation; or (b) engaged by an employing authority under a contract for services, whether under section 100(1) or another written law, before the expiry of such period commencing on the payment of the compensation as is prescribed in relation to the amount of the compensation shall forthwith refund to the Treasurer of the State an amount that bears to the amount of the compensation the same proportion as the unexpired portion of that period bears to that period. (5) If a person who is required to comply with subsection (4) does not do so, the amount unrefunded may be recovered in a court of competent jurisdiction at the suit of the Treasurer of the State as a civil debt owed by that person to the State. [Section 59 amended: No. 39 of 2010 s. 67 and 70.] ##### 60. Election to take compensation instead of right of return (1) An executive officer who has an entitlement under section 58(3) to employment may elect in writing to take compensation under section 59 instead of exercising that entitlement. (2) On an election under subsection (1) taking effect, the executive officer concerned — (a) ceases to have the entitlement under section 58(3); and (b) becomes entitled to compensation under section 59. ##### 61. Executive officers, secondment of An employing authority may, if it considers it to be in the public interest to do so and the executive officer concerned consents, enter into an arrangement in writing with the employing authority of a department or organisation or with an employer outside the Public Sector for the secondment of an executive officer of an agency to perform functions or services for, or duties in the service of, the employing authority of the department or organisation or that employer during such period as is specified in that arrangement. ##### 62. When executive officer ceases to be in Senior Executive Service If a person appointed or reappointed as an executive officer subsequently holds an office, post or position outside the Senior Executive Service, that person ceases to be a member of the Senior Executive Service unless a declaration is made under section 43(4) in respect of that person. ##### 63. Vacation of office of executive officer (1) The office of an executive officer becomes vacant if — (a) the executive officer dies; or (b) in the case of a chief executive officer, he or she is removed from office under section 49; or (c) his or her contract of employment is terminated under section 56(3); or (d) the executive officer completes a term of office and is not reappointed; or (e) the executive officer is dismissed, or retires from office, under this Act; or (f) the employment of the executive officer in the Public Sector is terminated under section 79(3) or under regulations referred to in section 95A; or (g) the executive officer resigns his or her office in writing addressed — (i) in the case of a chief executive officer, to the Governor; or (ii) in the case of a senior executive officer, to the employing authority of his or her agency, and the Governor, acting on the recommendation of the Commissioner, or that employing authority, as the case requires, accepts that resignation; or (h) the executive officer is appointed or transferred under this Part to another office (unless it is an appointment and the Commissioner authorises the offices being held concurrently by the executive officer). (2) The vacation of an office under subsection (1)(a), (b), (d), (e), (f) or (g) terminates the contract of employment of the executive officer concerned. [Section 63 amended: No. 39 of 2010 s. 50, 67 and 70; No. 8 of 2014 s. 11.] ### Division 3 — Public service officers other than executive officers ##### 64. Appointing officers (1) Subject to this section and to any binding award, order or industrial agreement under the *Industrial Relations Act 1979* or employer‑employee agreement under Part VID of the *Industrial Relations Act 1979*, the employing authority of a department or organisation may in accordance with the Commissioner’s instructions appoint for and on behalf of the State a person as a public service officer (otherwise than as an executive officer) on a full‑time or part‑time basis — (a) for an indefinite period as a permanent officer; or (b) for such term not exceeding 5 years as is specified in the instrument of his or her appointment. (2) An appointment under subsection (1) shall be to such level of classification and remuneration as is determined by the relevant employing authority — (b) as being appropriate to the functions to be performed by the person so appointed. (3) The employing authority of a department or organisation shall — (b) at the time of the appointment of a person under subsection (1) or, if that employing authority considers it impracticable to make the appointment concerned at that time, at a later time, appoint the person to fill a vacancy in an office, post or position in the department or organisation. (4) Subject to subsection (5), a person appointed under subsection (1)(b) cannot apply for an appointment under subsection (1)(a) unless the relevant vacancy has first been advertised as a public sector notice in accordance with the Commissioner’s instructions or in a daily newspaper circulating throughout the State. (5) Subsection (4) does not apply to a person — (a) appointed under subsection (1)(b); and (b) having, or occupying an office, post or position having, the lowest level of classification at which persons of the same prescribed class as that person are at the relevant time recruited into the Public Service. (6) The employing authority of an organisation shall not make an appointment under subsection (1) unless the written law under which the organisation is established or continued authorises or requires the appointment or employment of public service officers for the purposes of that organisation. (7) Nothing in this section prevents a public service officer who holds an office, post or position in one department or organisation from being appointed, whether by way of promotion or otherwise, to an office, post or position in another department or organisation. [Section 64 amended: No. 20 of 2002 s. 25(5); No. 74 of 2003 s. 97(2); No. 39 of 2010 s. 51 and 70; amended: Gazette 15 Aug 2003 p. 3690.] ##### 65. Transferring officers within and between departments etc. (1) If an employing authority considers it to be in the interests of its department or organisation to do so, that employing authority may transfer at the same level of classification a public service officer other than an executive officer from one office, post or position in that department or organisation to another such office, post or position — (a) for which that public service officer possesses the requisite qualifications; and (b) the functions assigned to which are appropriate to that level of classification. (2) If an employing authority of a department or organisation considers it to be in the interests of the Public Service to do so, that employing authority may, with the approval of the employing authority of another department or organisation and after consulting the public service officer concerned, transfer at the same level of classification a public service officer (other than an executive officer) from an office, post or position in the first‑mentioned department or organisation to an office, post or position in the other department or organisation — (a) for which latter office, post or position that public service officer possesses the requisite qualifications; and (b) the functions assigned to which latter office, post or position are appropriate to that level of classification. (3) On the transfer of a public service officer under subsection (2), the employing authority of the department or organisation to which that transfer takes place — (a) becomes the employing authority of the public service officer; and (b) is substituted for the employing authority of the department or organisation from which that transfer takes place as a party to any contract of employment of the public service officer. ##### 66. Seconding officers from departments or organisations An employing authority of a department or organisation (in this section referred to as the seconding authority) may, if it considers it to be in the public interest to do so and the public service officer concerned consents, enter into an arrangement in writing with another such employing authority or with an employer outside the Public Sector for the secondment of a public service officer (other than an executive officer) in the department or organisation of the seconding authority to perform functions or services for, or duties in the service of, the other department or organisation or that employer during such period as is specified in that arrangement. ##### 67. Vacation of offices The office of a public service officer (other than an executive officer) becomes vacant if — (a) that public service officer dies; or (b) in the case of a term officer, the term officer completes a term of office and is not reappointed; or (c) that public service officer is dismissed, or retires from office, under this Act; or (d) the employment of that public service officer in the Public Sector is terminated under section 79(3) or under regulations referred to in section 95A; or (e) that public service officer resigns his or her office in writing addressed to his or her employing authority and that employing authority accepts that resignation; or (f) that public service officer is appointed or transferred under this Part to another office, post or position (unless it is an appointment and the Commissioner authorises the offices, posts or positions being held concurrently by that public service officer). [Section 67 amended: No. 39 of 2010 s. 52 and 70; No. 8 of 2014 s. 12.] ## Part 4 — Assistance for political office holders ### Division 1 — Ministerial officers ##### 68. Employing ministerial officers (1) The Minister may appoint any person as a ministerial officer to assist — (a) the Minister; or (b) another political office holder, and section 8(1) does not apply to or in relation to such an appointment. (2) Subject to this Act, the employment of a ministerial officer shall be governed by a contract of employment between the ministerial officer and the Minister. (3) Subject to this Part, a contract of employment referred to in subsection (2) shall — (a) be in writing; and (b) be signed by or on behalf of the parties to that contract; and (c) specify the day on which the employment expires. ##### 69. Functions of ministerial officers A ministerial officer shall perform, under the supervision of the political office holder specified in the contract of employment of the ministerial officer, such functions as are — (a) specified in that contract; or (b) from time to time specified by the Minister or that other political office holder, as the case requires. ##### 70. Terms and conditions of employment (1) The terms and conditions of employment of a ministerial officer, other than terms and conditions relating to — (a) the functions of the ministerial officer; or (b) any matter for which express provision is made by section 72, shall be determined by the Minister on the recommendation of the chief executive officer of the department principally assisting the Minister in the administration of this Part. (2) The terms and conditions of employment of a ministerial officer that are determined by the Minister under subsection (1) shall be specified in the relevant contract of employment. (3) Without limiting subsection (1), but subject to subsections (4) and (5), a ministerial officer whose employment is terminated by section 72(1)(a) or by the Minister under section 72(2) before the day specified in the relevant contract of employment as the day on which that employment expires is entitled to such compensation, if any, as the Minister determines. (4) The maximum compensation payable to a person under subsection (3) is an amount equal to the remuneration to which the person is entitled for the period of one year ending immediately before his or her employment is terminated. (5) If the employment of a ministerial officer is terminated in the manner specified in subsection (3) but is deemed to have continued, or to continue, until a later day by virtue of a direction made under section 72(5), the ministerial officer is not entitled to compensation under subsection (3). (6) A person to whom compensation is paid under this section and who is subsequently — (a) employed in a public sector body; or (b) engaged by an employing authority under a contract for services, whether under section 100(1) or another written law, before the expiry of such period commencing on the payment of the compensation as is prescribed in relation to the amount of the compensation shall forthwith refund to the Treasurer of the State an amount that bears to the amount of the compensation the same proportion as the unexpired portion of that period bears to that period. (7) If a person who is required to comply with subsection (6) does not do so, the amount unrefunded may be recovered in a court of competent jurisdiction at the suit of the Treasurer of the State as a civil debt owed by that person to the State. [Section 70 amended: No. 39 of 2010 s. 53 and 70.] ##### 71. Varying contract of employment A contract of employment of a ministerial officer may be varied at any time by a further contract in writing entered into, and signed by, the parties to the original contract of employment. ##### 72. Termination of employment (1) Subject to Part 5 and subsections (2) and (4), the employment of a ministerial officer terminates — (a) if the political office holder for whose assistance the ministerial officer was employed ceases to hold office as such; or (b) on the day fixed for the return of the writ for the general election for the Legislative Assembly next following the first day of that employment; or (c) on the day specified in the relevant contract of employment as the day on which that employment expires, whichever is soonest. (2) Subject to subsection (3), the Minister may at any time, by — (a) notice in writing given to a ministerial officer not less than 4 weeks before the termination concerned; or (b) payment to a ministerial officer in lieu of the period of notice referred to in paragraph (a) of an amount not exceeding such amount of the salary of the ministerial officer as is prescribed, terminate the employment of the ministerial officer. (3) The Minister shall not terminate under subsection (2) the employment of a ministerial officer employed to assist another political office holder unless the Minister has first consulted the other political office holder. (4) A ministerial officer may at any time terminate his or her employment by notice in writing given to the Minister not less than 4 weeks, or such shorter period as is agreed between the ministerial officer and the Minister, before that termination. (5) If the employment of a person as a ministerial officer is terminated by subsection (1)(a), the Minister may by writing direct that the employment of the person shall be deemed — (a) not to have been so terminated; and (b) subject to subsection (6), to have continued, or to continue, until a day specified in that direction. (6) A direction under subsection (5) has effect according to its terms until the termination of the relevant employment under Part 5 or subsection (1), (2) or (4). [Section 72 amended: No. 36 of 2000 s. 24.] ##### 73. Restriction on subsequent employment in departments etc. Notwithstanding anything in any other Act, a person who — (a) immediately before his or her employment as a ministerial officer, was not employed in a department or organisation; or (b) is engaged under a contract for services under section 100(1) to assist a political office holder, is not, while he or she remains employed as a ministerial officer or so engaged under a contract for services, eligible to apply for, or to be appointed to, any office, post or position in any department or organisation. ##### 74. Relationship between ministerial officers etc. and employees of departments etc. (1) A Minister shall — (a) as soon as practicable after this section commences; or (b) if he or she becomes a Minister after this section commences, as soon as practicable after becoming a Minister, make arrangements in writing in relation to each department or organisation for which the Minister is responsible setting out the manner in which, and the circumstances in which, dealings are to be had, and communications are to be made, between ministerial officers assisting the Minister and the employees in that department or organisation. (2) Notwithstanding anything in subsection (1), a ministerial officer shall not, otherwise than with the agreement of the employing authority of the department or organisation concerned, direct an employee of that department or organisation in relation to the manner in which that employee is to perform the functions of his or her office, post or position in that department or organisation. (3) In this section — ministerial officer includes — (a) person occupying a special office created under section 36 as read with section 75(1); and (b) person engaged under a contract for services under section 100(1) to assist a political office holder. [Section 74 amended: No. 39 of 2010 s. 68.] ### Division 2 — Assistance by permanent officers and seconded employees ##### 75. Special offices to assist Ministers etc. (1) The chief executive officer of the department principally assisting in the administration of this Part may, for the purpose of assisting a political office holder, create under section 36 one or more special offices within that department. (2) A special office created under subsection (1) may be occupied by — (a) a person who — (i) is appointed to fill a vacancy in that office under section 64(3); or (ii) is transferred to that office under section 65(1) or (2), and whose salary does not exceed such level as is prescribed for the purposes of this paragraph; or (b) an employee in a department or organisation who is seconded to occupy that office; or (c) an employee in the department principally assisting in the administration of this Part as if the employee were seconded to occupy that office. (3) An employee referred to in subsection (2)(b) or (c) — (a) whose salary has exceeded the level referred to in subsection (2)(a); and (b) who has occupied a special office created under subsection (1), continuously for at least 2 years is entitled to have his or her level of classification reviewed in accordance with the Commissioner’s instructions by a person or persons appointed by the chief executive officer of the department principally assisting in the administration of this Part. [Section 75 amended: No. 39 of 2010 s. 54.] ## Part 5 — Substandard performance and disciplinary matters ### Division 1 — General ##### 75A. Term used: lawful redeployment direction In this Part — lawful redeployment direction means a direction which is a lawful order for the purposes of section 80(a) by virtue of section 94(4). [Section 75A inserted: No. 43 of 2024 s. 149.] ##### 76. Application and effect of Part 5 (1) Subject to subsections (3) and (4), this Part applies to and in relation to — (a) all public service officers and ministerial officers; and (b) such other employees, or members of such other class of employees, as are or is prescribed for the purposes of this section. (2) To the extent that this Part is inconsistent with any enactment which applies to — (a) an employee; or (b) a member of a class of employees, prescribed under subsection (1)(b), this Part prevails. (3) If the employing authority of an employee who is not a public service officer suspects that that employee has disobeyed or disregarded a lawful redeployment direction, that employee shall be taken for the purposes of this Part to be a public service officer, and proceedings may be taken accordingly under this Part against that employee for the suspected breach of discipline arising out of that disobedience or disregard. (4) A former employee who — (a) may have committed a breach of discipline; and (b) was an employee to whom this Part applied at the time of the suspected breach, is, in circumstances specified in the Commissioner’s instructions, to be taken to be an employee for the purposes of this Part even though the person has ceased to be employed in the Public Sector by or under an employing authority. (5) The Commissioner’s instructions may specify the disciplinary action that may be taken under this Act in respect of a former employee who is found to have committed a breach of discipline, and the provisions of this Part apply to and in relation to the disciplinary action as if the former employee were an employee. (6) The taking of disciplinary action with respect to a former employee does not affect the former employee’s retirement or resignation or the benefits, rights and liabilities arising from the retirement or resignation. (7) For the purposes of this Part, in circumstances specified in the Commissioner’s instructions, a former employing authority of an employee is to be taken to be the employing authority of the employee. (8) Nothing in this Part limits the power of an employing authority under other provisions of this Act to take improvement action in relation to an employee in circumstances in which the employing authority considers it appropriate to do so. [Section 76 amended: No. 39 of 2010 s. 94; No. 43 of 2024 s. 150.] ##### 77. Employees appointed by Governor, exercise of powers as to In the case of an employee in a department or organisation who is appointed by the Governor — (a) the powers conferred on an employing authority by this Part (other than the power to terminate the employment in the Public Sector of the employee) may be exercised for and on behalf of the Governor — (i) in the case of an employee who is a chief executive officer, by the Commissioner; or (ii) in the case of an employee who is not a chief executive officer, by the employing authority of the department or organisation; and (b) the power to terminate the employment in the Public Sector of that employee (not being a chief executive officer) may be exercised by the Governor on the recommendation of the Minister responsible for the department or organisation. [Section 77 amended: No. 39 of 2010 s. 67 and 68.] ##### 78. Certain decisions and findings are industrial matters for purposes of *Industrial Relations Act 1979* Subject to section 52, each of the following is an industrial matter for the purposes of the *Industrial Relations Act 1979* — (a) a decision made in relation to an employee or former employee under section 79(3)(b) or (c) or (4); (b) a decision made under section 82 to suspend an employee or former employee on partial pay or without pay; (c) a decision to take disciplinary action in relation to an employee or former employee made under section 82A(3)(b)(i), 88(b)(i) or 92(1); (d) a finding made in relation to an employee or former employee in the exercise of a power under section 87(3)(a)(ii); (e) if proceedings were taken under this Part against an employee or former employee for a suspected breach of discipline arising out of alleged disobedience to, or disregard of, a lawful redeployment direction — (i) a decision made under section 82 to suspend the employee or former employee on partial pay or without pay; or (ii) a finding made in relation to the employee or former employee referred to in section 82A(3)(a), 87(3)(a)(i) or 88(a). Note for this section: See the *Industrial Relations Act 1979* section 36AA and Part II Division 2AA Subdivision 3 for the Industrial Commission’s jurisdiction to hear and determine an industrial matter mentioned in this section. [Section 78 inserted: No. 43 of 2024 s. 151.] ### Division 2 — Substandard performance ##### 79. Substandard performance, definition of and powers as to (1) For the purposes of this section, the performance of an employee is substandard if and only if the employee does not, in the performance of the functions that he or she is required to perform, attain or sustain a standard that a person may reasonably be expected to attain or sustain in the performance of those functions. (2) Without limiting the generality of the matters to which regard may be had for the purpose of determining whether or not the performance of an employee is substandard, regard — (a) shall be had — (i) to any written selection criteria or job specifications applicable to; and (ii) to any duty statement describing; and (iii) to any written work standards or instructions relating to the manner of performance of, the functions the employee is required to perform; and (b) may be had — (i) to any written selection criteria or job specifications applicable to; and (ii) to any duty statement describing; and (iii) to any written work standards or instructions relating to the manner of performance of, functions similar to those functions. (3) Subject to subsections (4), (5) and (6), an employing authority may, in respect of one of its employees whose performance is in the opinion of the employing authority substandard for the purposes of this section — (a) withhold for such period as the employing authority thinks fit an increment of remuneration otherwise payable to that employee; or (b) reduce the level of classification of that employee; or (c) terminate the employment in the Public Sector of that employee. (4) The Governor may, on the recommendation of the Minister responsible for the relevant public sector body, terminate the employment in the Public Sector of an employee other than a chief executive officer — (a) who was appointed to his or her employment by the Governor; and (b) whose performance is in the opinion of his or her employing authority substandard for the purposes of this section. (5A) The Governor may, on the recommendation of the Commissioner, terminate the employment in the Public Sector of a chief executive officer whose performance is, in the opinion of the Commissioner, substandard for the purposes of this section. (5B) The Commissioner must consult the responsible authority of the agency of the chief executive officer before making a recommendation under subsection (5A). (5) If an employee does not admit to his or her employing authority that his or her performance is substandard for the purposes of this section, that employing authority shall, before forming the opinion that the performance of the employee is substandard for those purposes, cause an investigation to be held into whether or not the performance of the employee is substandard. [Section 79 amended: No. 39 of 2010 s. 55 and 68.] ### Division 3 — Disciplinary matters ##### 80A. Terms used In this Division — disciplinary action, in relation to a breach of discipline by an employee, means any one or more of the following — (a) a reprimand; (b) the imposition of a fine not exceeding an amount equal to the amount of remuneration received by the employee in respect of the last 5 days during which the employee was at work as an employee before the day on which the finding of the breach of discipline was made; (c) transferring the employee to another public sector body with the consent of the employing authority of that public sector body; (d) if the employee is not a chief executive officer or chief employee, transferring the employee to another office, post or position in the public sector body in which the employee is employed; (e) reduction in the monetary remuneration of the employee; (f) reduction in the level of classification of the employee; (g) dismissal; redeployment direction breach of discipline means a breach of discipline arising out of disobedience to, or disregard of, a lawful redeployment direction; serious offence means — (a) an indictable offence against a law of the State (whether or not the offence is or may be dealt with summarily), another State or a Territory of the Commonwealth or the Commonwealth; or (b) an offence against the law of another State or a Territory of the Commonwealth that would be an indictable offence against a law of this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or (c) an offence against the law of a foreign country that would be an indictable offence against a law of the Commonwealth or this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or (d) an offence, or an offence of a class, prescribed under section 108. [Section 80A inserted: No. 39 of 2010 s. 96; amended: No. 43 of 2024 s. 152.] ##### 80. Breaches of discipline, defined An employee who — (a) disobeys or disregards a lawful order; or (b) contravenes — (i) any provision of this Act applicable to that employee; or (ii) any public sector standard or code of ethics; or (c) commits an act of misconduct; or (d) is negligent or careless in the performance of his or her functions; or (e) commits an act of victimisation within the meaning of section 15 of the *Public Interest Disclosure Act 2003*, commits a breach of discipline. [Section 80 amended: No. 29 of 2003 s. 28.] ##### 81. Suspected breach of discipline, employing authority’s options as to (1) If an employing authority of an employee is made aware, or becomes aware, by any means that the employee may have committed a breach of discipline, the employing authority may — (a) decide to deal with the matter as a disciplinary matter under this Division in accordance with the Commissioner’s instructions; or (b) decide that it is appropriate — (i) to take improvement action with respect to the employee; or (ii) to take no action. (2) If the Minister, in his or her capacity as employing authority of a ministerial officer, decides to act under subsection (1)(a), the Minister must direct another person to submit to the Minister a report as to whether there has been a breach of discipline and a recommendation as to any decision to be made under section 82A(3). (3) A direction must not be given under subsection (2) to the Commissioner. (4) A person directed under subsection (2) — (a) must comply with the direction of the Minister; and (b) for that purpose, has the functions of an employing authority under section 82A(1) and under the Commissioner’s instructions. [Section 81 inserted: No. 39 of 2010 s. 97.] ##### 82A. Disciplinary matters, dealing with (1) In dealing with a disciplinary matter under this Division an employing authority — (a) must proceed with as little formality and technicality as this Division, the Commissioner’s instructions and the circumstances of the matter permit; and (b) is not bound by the rules of evidence; and (c) may, subject to this Division and the Commissioner’s instructions, determine the procedure to be followed. (2) Even though an employing authority decides to act under section 81(1)(a), the employing authority may, at any stage of the process, decide instead that it is appropriate — (a) to take improvement action with respect to the employee; or (b) that no further action be taken. (3) Subject to subsection (4) and section 89, after dealing with a matter as a disciplinary matter under this Division — (a) if the employing authority finds that the employee has committed a redeployment direction breach of discipline, the employing authority must take disciplinary action by dismissing the employee; and (b) if the employing authority finds that the employee has committed a breach of discipline that is not a redeployment direction breach of discipline, the employing authority must decide — (i) to take disciplinary action, or both disciplinary action and improvement action, with respect to the employee; or (ii) to take improvement action with respect to the employee; or (iii) that no further action is to be taken. (4) The Minister — (a) is bound by any finding in a report submitted as directed under section 81(2); and (b) must, when making a decision under subsection (3)(b), have regard to, but is not bound by, a recommendation submitted as directed under section 81(2). [Section 82A inserted: No. 39 of 2010 s. 97; amended: No. 43 of 2024 s. 155.] ##### 82. Suspending employee pending decision on breach of discipline or criminal charge (1) If — (a) an employing authority has decided to act under section 81(1)(a) in relation to an employee; or (b) an employee is charged with having committed a serious offence, the employing authority may, in accordance with the Commissioner’s instructions, suspend the employee on full pay, partial pay or without pay. (2) Subject to subsection (3) — (a) a suspension arising from a decision referred to in subsection (1)(a) has effect until a decision is made under section 82A(2) or (3) or 88 in respect of the suspected breach; or (b) a suspension arising from a charge referred to in subsection (1)(b) has effect until the criminal charge or any action that the employing authority is considering taking under section 92 has been finalised. (3) The employing authority may at any time remove, or vary the terms of, the suspension. (4) Unless the employing authority otherwise directs, any pay withheld under subsection (1) is forfeited to the State if — (a) it is decided to take disciplinary action with respect to the employee for the breach of discipline; or (b) the employee is convicted or found guilty of the offence concerned or another serious offence. (5) An employee is entitled to have any pay of the employee that is withheld under subsection (1) and not forfeited under subsection (4) restored to the employee. [Section 82 inserted: No. 39 of 2010 s. 98.] [**83‑86.** Deleted: No. 39 of 2010 s. 99.] ##### 87. Special disciplinary inquiries (1A) The Commissioner may at any time before a decision is made under section 81(1)(b) or 82A(2) or (3) in respect of a suspected breach of discipline direct that — (a) a special disciplinary inquiry be held into the suspected breach; or (b) an investigation by the employing authority or a person directed under section 81(2) into the suspected breach be continued as a special disciplinary inquiry. (1B) A direction under subsection (1A) may be made on the request of the employing authority of the employee suspected to have committed the breach of discipline or on the initiative of the Commissioner. (1) The provisions of sections 24I and 24J apply to and in relation to a person holding a special disciplinary inquiry as if references in those sections and Schedule 3 to a special inquirer and to a special inquiry were references to that person and to the special disciplinary inquiry, respectively. (2) Without limiting the generality of subsection (1), a person holding a special disciplinary inquiry may have regard to any information elicited, or findings made, in another special disciplinary inquiry, in a special inquiry or in an investigation held under section 24. (3) A person who holds a special disciplinary inquiry must, at the conclusion of the inquiry — (a) make a finding that the employee — (i) has committed a redeployment direction breach of discipline; or (ii) has committed a breach of discipline other than a breach referred to in subparagraph (i); or (iii) has not committed a breach of discipline; and (b) prepare a report on the conduct and finding, of the special disciplinary inquiry; and (c) if the finding is that the employee has committed a breach of discipline other than a redeployment direction breach of discipline, include in the report a recommendation as to any disciplinary action and improvement action that should be taken by the employing authority; and (d) provide the employing authority and the Commissioner with a copy of the report. [Section 87 amended: No. 39 of 2010 s. 69 and 100; No. 43 of 2024 s. 155.] ##### 88. Report of special disciplinary inquiry, consequences of On receiving a report under section 87(3), the employing authority must, subject to section 89, accept the finding in the report and — (a) in the case of a finding that the employee has committed a redeployment direction breach of discipline, take disciplinary action by dismissing the employee; or (b) in the case of a finding that the employee has committed a breach of discipline other than a breach referred to in paragraph (a) — (i) decide to take disciplinary action or improvement action, or both disciplinary action and improvement action, in relation to the employee in accordance with the recommendation in the report; or (ii) decline to accept the recommendation in the report and decide to take such other disciplinary action or improvement action, or both disciplinary action and improvement action, in relation to the employee as could have been recommended in the report; or (c) in the case of a finding that no breach of discipline was committed by the employee, notify the employee of that finding and that no further action will be taken in the matter. [Section 88 inserted: No. 39 of 2010 s. 101; amended: No. 43 of 2024 s. 155.] ##### 89. Dismissal of CEO for breach of discipline (1) If a chief executive officer is the subject of a finding under section 82A(3)(a) or a finding under section 87(3)(a)(i) in respect of a redeployment direction breach of discipline, the Commissioner must recommend to the Governor that the chief executive officer be dismissed, and the Governor must dismiss the chief executive officer. (2) If a chief executive officer — (a) is the subject of a finding under section 82A(3)(b) or a finding under section 87(3)(a)(ii) in respect of a breach of discipline other than a redeployment direction breach of discipline; and (b) the Commissioner considers that the chief executive officer ought to be dismissed, the Commissioner must recommend to the Governor that the chief executive officer be dismissed, and the Governor must dismiss the chief executive officer. [Section 89 inserted: No. 39 of 2010 s. 102; amended: No. 43 of 2024 s. 155.] ##### 90. Employing authority to notify employee of outcome of disciplinary matter The employing authority of an employee shall notify the employee — (a) whether or not the employee has been found under this Division to have committed any breach of discipline alleged against him or her; and (b) if such a finding has been made against the employee, what action has been taken under this Division in relation to the employee, within the period prescribed in the Commissioner’s instructions. [Section 90 amended: No. 39 of 2010 s. 103.] ##### 91. Fines, payment and recovery of When a fine is imposed on an employee under this Division, the employee shall forthwith pay the amount of the fine to the Treasurer of the State and, if the employee does not do so, that amount may be recovered in a court of competent jurisdiction at the suit of the Treasurer of the State as a civil debt owing to the State. [Section 91 amended: No. 39 of 2010 s. 70 and 104.] ##### 92. Employee convicted of serious offence, powers as to (1) Despite the *Sentencing Act 1995* section 11, if an employee is convicted or found guilty of a serious offence, the employing authority may take disciplinary action or improvement action, or both disciplinary action and improvement action, with respect to the employee. (2) Before any disciplinary action or improvement action is taken with respect to an employee under this section, the employee must be given an opportunity to make a submission in relation to the action that the employing authority is considering taking. (3) If an employee is dismissed under this section, for the purposes of sections 58(4) and 59(1) the employee is taken to have been dismissed for breach of discipline. [Section 92 inserted: No. 39 of 2010 s. 105.] ##### 93A. Disciplinary action etc., when it can be taken A decision of an employing authority to take disciplinary action or improvement action with respect to an employee may be carried into effect at any time. [Section 93A inserted: No. 39 of 2010 s. 105.] ## Part 6 — Redeployment and redundancy of employees ##### 93. Functions of some employing authorities under s. 94 regulations, performance of (1) The employing authority of an affected department or organisation may, with the approval of the Commissioner, exercise such powers and perform such duties as are conferred or imposed on such an employing authority by any regulations referred to in section 94(2). (2A) The Commissioner must consult with the Minister to whom the administration of the *Industrial Relations Act 1979* is committed, before giving an approval under subsection (1). (3) In subsection (1) — affected department or organisation means a department or organisation the whole or any part of — (a) the undertaking of which is, or is to be, sold or otherwise disposed of to; or (b) the production or provision of goods or services or both by which is, or is to be, replaced by the production or provision of goods or services or both by, a person outside the Public Sector. [Section 93 amended: No. 39 of 2010 s. 56, 67 and 70.] ##### 94. Regulations concerning redeployment and redundancy (1A) In this section — registered employee means an employee registered under arrangements prescribed under subsection (1); registrable employee means — (a) an employee who is surplus to the requirements of a department or organisation; or (b) an employee whose office, post or position has been abolished; or (c) an employee in a category prescribed by the regulations. (1) The Governor may under section 108 make regulations prescribing arrangements for registrable employees in relation to — (a) redeployment and retraining; and (b) redundancy. (2A) Regulations referred to in subsection (1) must specify which parts of the Public Sector must comply with the regulations. (2) Without limiting the generality of subsection (1), regulations referred to in that subsection may provide for — (a) the situation in which the whole or any part of — (i) the undertaking of a department or organisation is, or is to be, sold or otherwise disposed of to; or (ii) the production or provision of goods or services or both by a department or organisation is, or is to be, replaced by the production or provision of goods or services or both by, a person outside the Public Sector, and an employee of the department or organisation is offered a suitable office, post or position by that person; and (b) an employee referred to in paragraph (a) who — (i) refuses the offer of a suitable office, post or position, to be directed by his or her employing authority to accept that offer; or (ii) hinders or obstructs the process by which an employee is selected for the making of an offer of a suitable office, post or position, to be directed by his or her employing authority to refrain from that hindrance or obstruction; and (c) the terms and conditions (including remuneration) which are to apply to an employee who accepts an offer referred to in paragraph (a); and (d) the terms and conditions (including remuneration) which are to apply to an employee who is dismissed under section 82A(3)(a), 88(a) or 89(1). (3) Without limiting the generality of subsection (1), regulations referred to in that subsection may provide for the following — (a) the registration of a registrable employee who cannot be transferred within a department or organisation; (b) the maximum period for which a registered employee may be registered; (ca) the revocation or suspension of registration of an employee; (c) the circumstances in which the Commissioner may direct — (i) a registered employee to accept redeployment between one department or organisation and another; and (ii) the employing authority of a department or organisation to accept a registered employee directed under regulations made under this paragraph to accept redeployment to the department or organisation, and that employing authority shall comply with that direction; (d) the retraining of a registered employee and for the terms and conditions (including remuneration) which are to apply to the registered employee; (e) the terms and conditions (including remuneration) which are to apply to a registered employee who, with the prior approval of the Commissioner, accepts voluntary severance by resigning his or her office, post or position; (f) the terms and conditions (including remuneration) which are to apply to a registered employee who accepts an offer of a suitable office, post or position inside or outside the Public Sector, and those which are to apply to a registered employee who does not. (4) A direction referred to in subsection (2)(b) or (3)(c)(i) is, if that direction is — (a) given to the employee concerned in accordance with the relevant regulations referred to in this section; and (b) upheld by the Industrial Commission on a reference under section 95(2), or the period referred to in section 95(3) has expired without that direction having been so referred, a lawful order for the purposes of section 80(a), but nothing in this subsection limits the meaning of ***lawful order*** in section 80(a). (5) Regulations referred to in subsection (1) cannot provide for an employee to be required to comply with a direction referred to in subsection (2)(b)(i) or (3)(c)(i) unless the employee is offered suitable employment within or outside the Public Sector. (6) For the purposes of this section, suitable office, post or position or suitable employment means an office, post or position or employment, as the case requires — (a) which is suitable having regard to the respective responsibilities attached to it and to the office, post or position or employment occupied or held by the employee at the time when the relevant offer is made and to the experience, qualifications and competence of the employee; and (b) which does not require the employee to change his or her place of residence; and (c) which satisfies such other criteria as are prescribed. [Section 94 amended: No. 57 of 1997 s. 99(2); No. 39 of 2010 s. 67, 70 and 106; No. 8 of 2014 s. 13.] ##### 95A. Termination of employment of registered employees registered employee has the meaning given in section 94(1A). (2) The Governor may under section 108 make regulations providing for the following — (a) the termination of employment of a registered employee, whether registered before, on or after the commencement of the *Workforce Reform Act 2014* section 14; (b) the terms and conditions (including remuneration) which are to apply to a registered employee whose employment is terminated under the regulations. (3) If the employment of a registered employee is terminated under regulations referred to in subsection (2), the contract of employment of the employee is terminated. [Section 95A inserted: No. 8 of 2014 s. 14.] ##### 95B. Inconsistent provisions, instruments and contracts industrial instrument means an award, industrial agreement or order made under the *Industrial Relations Act 1979*, including a General Order made under section 50 of that Act, whether made before, on or after the commencement of the *Workforce Reform Act 2014* section 14. (2A) The provisions of this Part prevail, to the extent of any inconsistency, over any other provision of this Act other than section 7, 8 or 9. (2) The provisions of this Part and regulations referred to in sections 94 and 95A prevail, to the extent of any inconsistency, over any industrial instrument. (3) Regulations referred to in section 94 or 95A prevail, to the extent of any inconsistency, over the terms and conditions applying to an employee’s employment under a contract of employment, whether entered into or renewed before, on or after the commencement of the *Workforce Reform Act 2014* section 14. [Section 95B inserted: No. 8 of 2014 s. 14.] ##### 95. Jurisdiction of Industrial Commission in relation to section 94 decision section 94 decision means a decision made or purported to be made under regulations referred to in section 94 (other than a decision which is a lawful redeployment direction). (2) A section 94 decision may be referred to the Industrial Commission — (a) under the *Industrial Relations Act 1979* section 29(1)(a); or (b) by an employee aggrieved by the decision, as if it were an industrial matter that could be so referred under that Act. (3) A referral under subsection (2) must be made within the period after the making of the decision that is prescribed under section 108. (4) The *Industrial Relations Act 1979* applies to and in relation to a section 94 decision referred under subsection (2) as if the decision were an industrial matter referred to the Industrial Commission in accordance with that Act. (5) In exercising its jurisdiction in relation to a decision referred under subsection (2), the Industrial Commission must confine itself to determining whether or not regulations referred to in section 94 have been fairly and properly applied to or in relation to the employee concerned. (6) The Industrial Commission does not have jurisdiction in respect of a section 94 decision if the employment of the employee concerned is terminated. [Section 95 inserted: No. 8 of 2014 s. 15; amended: No. 43 of 2024 s. 153.] ##### 96A. Jurisdiction of Industrial Commission in relation to section 95A decision (1) A decision made or purported to be made under regulations referred to in section 95A to terminate the employment of an employee or any matter, question or dispute relating to the decision is not an industrial matter for the purposes of the *Industrial Relations Act 1979*. (2) Despite subsection (1), a decision made or purported to be made under regulations referred to in section 95A(2), other than a decision to terminate the employment of an employee, may be referred to the Industrial Commission — (a) under the *Industrial Relations Act 1979* section 29(1)(a); or (b) by an employee or former employee aggrieved by the decision, as if it were an industrial matter that could be so referred under that Act. (3) A referral under subsection (2) must be made within the period after the making of the decision that is prescribed under section 108. (4) The *Industrial Relations Act 1979* applies to and in relation to a decision referred under subsection (2) as if the decision were an industrial matter referred to the Industrial Commission in accordance with that Act. (5) In exercising its jurisdiction in relation to a decision referred under subsection (2), the Industrial Commission — (a) must confine itself to determining whether or not the employee concerned has been allowed the benefits to which the employee is entitled under the regulations referred to in section 95A(2)(b); and (b) does not have jurisdiction to exercise its powers under the *Industrial Relations Act 1979* section 23A. [Section 96A inserted: No. 8 of 2014 s. 15.] ##### 96B. Review of this Part (1) The Minister must cause a review of the operation and effectiveness of this Part to be carried out as soon as is practicable after the 4th anniversary of the day on which the *Workforce Reform Act 2014* section 15 comes into operation. (2) The Minister must — (a) prepare a report based on the review; and (b) cause a copy of the report to be laid before each House of Parliament. [Section 96B inserted: No. 8 of 2014 s. 15.] ## Part 7 — Procedures for seeking relief in respect of breach of public sector standards ##### 96. Application of Part 7 This Part does not apply to or in relation to procedures for employees and other persons to obtain relief in respect of the breaching of public sector standards established in respect of substandard performance or disciplinary matters. ##### 97. Commissioner’s functions under Part 7 (1) The functions of the Commissioner under this Part are — (a) to make recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards; and (b) to appoint persons for the purpose of implementing procedures referred to in paragraph (a); and (c) to monitor the operation of procedures referred to in paragraph (a). (2) The Commissioner has power to do all things that are necessary or convenient to be done for or in connection with the performance of the functions of the Commissioner set out in subsection (1). ##### 98. Regulations as to procedure for seeking relief etc. The Governor may under section 108 make regulations — (a) prescribing procedures referred to in section 97(1)(a) and specifying those employees and persons, if any, who are not eligible to seek relief in accordance with those procedures; and (b) conferring powers on persons referred to in section 97(1)(b); and (c) for the remuneration, and the terms and conditions of appointment, of persons referred to in paragraph (b) who are not employees. ## Part 8 — Miscellaneous [**99.** Deleted: No. 39 of 2010 s. 57.] ##### 100. Engaging people by contracts for services and casual employees, powers for (1) An employing authority may in accordance with the Commissioner’s instructions engage a person under a contract for services on such terms and conditions, including the rate of remuneration, as the employing authority determines. (2) An employing authority may in accordance with the Commissioner’s instructions appoint a person on a casual employment basis on such terms and conditions as the employing authority, subject to any relevant written law or any binding award, order or industrial agreement under the *Industrial Relations Act 1979*, determines. (3) If the chief executive officer or chief employee of a department or organisation is not its employing authority, the employing authority of the department or organisation may, in writing and either generally or as otherwise provided by the instrument of delegation, delegate to that chief executive officer or chief employee any of its powers or duties under this Act. (4) Section 33 applies to and in relation to a chief executive officer or chief employee to whom a power or duty is delegated under subsection (3) as if the power or duty were one of his or her own powers or duties under this Act. (5) The powers conferred on an employing authority by this section are in addition to, and not in derogation from, any powers conferred on the employing authority by any other written law. [Section 100 amended: No. 39 of 2010 s. 58.] ##### 101. Restriction on compensation for early termination of employment (1) The maximum amount of compensation payable under this Act or any other written law in respect of the termination of the employment of an employee in the Public Sector by — (a) the employing authority of a department or organisation; or (b) the employee, is an amount equal to the amount of the remuneration to which the employee is entitled for the period of one year ending immediately before the day on which that employment is terminated. (2) Subsection (1) does not apply in relation to compensation payable under — (a) the *Industrial Relations Act 1979* section 23A(6); or (b) regulations referred to in section 94 or 95A if those regulations provide for a higher amount of compensation. [Section 101 amended: No. 8 of 2014 s. 16; amended: Gazette 15 Aug 2003 p. 3690.] ##### 102. Employees not to be employed outside Government etc. without permission (1A) In this section — any local government or regional local government includes any regional subsidiary; council of a local government or regional local government includes the governing body of a regional subsidiary. (1) Except with the written permission of his or her employing authority, which permission may at any time be withdrawn, an employee shall not — (a) accept or continue to hold an office, post or position under the Government or a paid office, post or position in or under any local government or regional local government or the council of a local government or regional local government or any other public body corporate; or (b) accept or continue to hold or discharge the duties of or be employed in a paid position in connection with any banking, insurance, mining, mercantile or other commercial business, whether it be carried on by any corporation, company, firm or individual; or (c) engage in or undertake any business referred to in paragraph (b), whether as principal or agent; or (d) engage or continue in the private practice of any profession; or (e) accept or engage in any employment for reward other than in connection with the functions of his or her office, post or position under the State. (2) Subsection (1) does not apply to or in relation to any case or class of case specified in public sector standards for the purposes of this section. (3) A person shall not be regarded as holding a paid office, post or position in or under any local government or regional local government or the council of a local government or regional local government for the purposes of subsection (1)(a) by reason only of the person being paid a fee or allowance or being reimbursed for an expense if the payment or reimbursement is in accordance with the *Local Government Act 1995* Part 5 Division 8 or with a charter of a regional subsidiary. [Section 102 amended: No. 14 of 1996 s. 4; No. 26 of 2016 s. 86.] ##### 103. Unsuccessful electoral candidates, reappointment of (1) This section applies to a person who — (a) resigned by writing under his or her hand from employment in the Public Sector within the period of 2 months ending on the date for the close of nominations for a candidate for election as a member of — (i) the Legislative Council; or (ii) the Legislative Assembly; or (iii) either House of the Parliament of the Commonwealth; or (iv) the Parliament (or either House of the Parliament) of another State; or (v) the Legislative Assembly of the Australian Capital Territory; or (vi) the Legislative Assembly of the Northern Territory; and (b) included in that writing notification of his or her intention to become a candidate at that election; and (c) was a candidate at that election; and (d) failed to be elected at that election. (2) A person to whom this section applies is entitled to be reappointed as an employee in the public sector body in which that person was employed immediately before his or her resignation if that person applies to be so reappointed not later than 2 months after the declaration of the result of the election concerned. (3) On making an application under subsection (2), a person to whom this section applies is to be reappointed to perform — (a) the functions that he or she was required to perform immediately before resigning; or (b) other functions, at a remuneration and under terms and conditions not less favourable than those which applied to him or her immediately before that resignation. (4) The reference in subsection (2) to the declaration of the result of the election concerned is, if the result of that election is challenged, to be read as a reference to — (a) the determination of that challenge by a court of disputed returns (by whatever name called); or (b) the lapsing of that challenge, whichever happens first. ##### 104. Time between resignation and reappointment not to count as service A person does not accrue any rights as an employee in respect of the period between his or her resignation and reappointment under section 103, but that resignation is not to be taken to have affected his or her continuity of service. ##### 105. Members of Parliament etc. not to contact employing authorities etc. about some appointments (1) Subject to this section, a person who is a member of Parliament or ministerial officer shall not interview or communicate with — (a) an employing authority or its delegate concerning the selection or appointment of any person to an office, post or position in the Public Sector; or (b) the Commissioner or his or her delegate concerning the selection, appointment or reappointment of a chief executive officer. Penalty: $1 000. (2) Nothing in subsection (1) applies to discussions — (a) between — (i) a political office holder; and (ii) the Minister, a delegate of the Minister, the chief executive officer of the department principally assisting in the administration of Part 4 or the delegate of that chief executive officer, concerning a request by the political office holder for the selection and appointment or engagement of a person as a ministerial officer to assist the political office holder; or (b) between — (i) the Minister and other Ministers; or (ii) the Commissioner and a Minister, concerning the selection, appointment or reappointment of a chief executive officer. (3) A reference in subsection (1) to a member of Parliament or a ministerial officer includes a reference to a person acting on behalf of a member of Parliament or a ministerial officer, as the case requires. (4) In this section — ministerial officer includes — (a) person occupying a special office created under section 36 as read with section 75(1); and (b) person engaged under section 100(1) under a contract for services to assist a political office holder. [Section 105 amended: No. 39 of 2010 s. 59 and 68.] ##### 106. Protection from personal liability An action shall not be brought or maintained against any person who is or has been — (a) the Commissioner, the Minister, a responsible authority, a political office holder, an employing authority, a delegate or an employee within the meaning of this Act; or (b) the Commissioner, a delegate or subdelegate or a member of the Public Service within the meaning of the repealed Act, in respect of anything done or omitted to be done by or on behalf of that person in his or her official capacity under or for the purposes, or apparently under or for the purposes, of this Act or the repealed Act, as the case requires. ##### 107. Vacancy etc. in office etc., directing people to act in case of (1) If under any written law or contract or agreement any functions, obligations or rights are imposed or conferred on the holder of an office, post or position in a department or organisation (in this section called the incumbent) in his or her capacity as such — (a) the Commissioner may direct a chief executive officer, or an employee whilst directed under section 51; or (b) the employing authority of any employee may direct that employee, to perform or exercise, in accordance with subsection (2), those functions, obligations and rights during any vacancy in that office, post or position or during the temporary absence or incapacity of the incumbent, as the case requires. (2) The functions, obligations and rights directed to be performed or exercised under subsection (1) shall be performed or exercised in the same manner and to the same extent in all respects as those functions, obligations or rights might have been respectively performed or exercised by the incumbent. (3) Everything done under a direction under this section shall be as good and effectual for all purposes and against all persons whomsoever as if done by the incumbent. [Section 107 amended: No. 39 of 2010 s. 67.] ##### 108A. Delegation by Minister (1) The Minister may delegate to any person any power or duty of the Minister under another provision of this Act. (2) A delegation under this section must be in writing signed by the Minister. (3) A person to whom a power or duty is delegated in accordance with this section cannot delegate that power or duty. (4) A person exercising or performing a power or duty that has been delegated to the person in accordance with this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown. (5) Nothing in this section limits the ability of the Minister to perform a function through an officer or agent. [Section 108A inserted: No. 39 of 2010 s. 60.] ##### 108. Regulations (1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act, and, in particular, for — (a) amending Schedule 1 or 2; or (b) managing the Public Sector or any part thereof; or (c) amending or supplementing, with effect from a time which is not earlier than the commencement of this section, the transitional provisions set out in Schedule 5 or 6 for the purpose of providing an effective and efficient transition from the operation of the repealed Act or from the circumstances of ministerial staff before the commencement of Part 4, as the case requires, to the operation of this Act; or (d) prescribing public service holidays; or (e) matters in respect of which the Governor is empowered by other provisions of this Act to make regulations under this section. (2A) The regulations may make provision for or with respect to any matter for which the Commissioner’s instructions can provide. (2B) A reference in this Act to a Commissioner’s instruction is taken to include a reference to a regulation referred to in subsection (2A). (2) To the extent that regulations made under subsection (1) are inconsistent with a Commissioner’s instruction, public sector standard, code of ethics or code of conduct, those regulations prevail. [Section 108 amended: No. 39 of 2010 s. 61.] [**109.** Omitted under the Reprints Act 1984 s. 7(4)(e).] ## Part 9 — Repeal and transitional provisions ### Division 1 — *Public Service Act 1978* repeal and transitional provisions [Heading inserted: No. 39 of 2010 s. 62.] ##### 110. *Public Service Act 1978* repealed; transitional (Sch. 5) (1) The *Public Service Act 1978* is repealed. (2) The transitional provisions set out in Schedule 5 have effect. ##### 111. Transitional provisions related to Part 4 (Sch. 6) The transitional provisions set out in Schedule 6 have effect. ##### 112. Certain words etc. in written laws etc. taken to be amended (1) A reference in a written law or book, document or writing to the *Public Service Act 1978* or the *Public Service Act 1904* is, unless the contrary intention appears or it is otherwise provided under the *Acts Amendment (Public Sector Management) Act 1994*, to be construed as if it had been amended to be a reference to this Act. (2) A reference in a written law or book, document or writing to the Public Service Commissioner or the Public Service Board is, unless the contrary intention appears or it is otherwise provided under the *Acts Amendment (Public Sector Management) Act 1994*, to be construed as if it had been amended to be a reference to the Minister for Public Sector Management. [Section 112 amended: No. 57 of 1997 s. 99(3).] ### Division 2 — *Public Sector Reform Act 2010* Part 2 amendments: transitional provisions [Heading inserted: No. 39 of 2010 s. 63.] ##### 113. Transitional provisions (Sch. 7) Schedule 7 sets out transitional provisions. [Section 113 inserted: No. 39 of 2010 s. 63.] ### Division 3 — *Public Sector Reform Act 2010* Part 3 amendments: transitional provisions [Heading inserted: No. 39 of 2010 s. 107.] ##### 114. Transitional provisions (Sch. 8) Schedule 8 sets out transitional provisions. [Section 114 inserted: No. 39 of 2010 s. 107.]