87BRestriction on prescription of public authorities etc.

##### 87B Restriction on prescription of public authorities etc. (1) For the purposes of this section, a person employed by a body, or employed as the holder of an office or appointment: (a) is a prescribed employee if he is an officer of the Service who is, by virtue of section 87C, absent from the Service on leave of absence without pay; and (b) is a relevant employee if he is: (i) a prescribed employee; or (ii) a person to whom Division 3 applies. (1A) Regulations shall not be made: (a) prescribing, for the purposes of paragraph (c) of the definition of public authority in subsection 87(1), a body corporate established for a public purpose by a law of a State; (b) prescribing, for the purposes of paragraph (e) of the definition of public authority in subsection 87(1), an unincorporated body established for a public purpose by a law of a State or a class of unincorporated bodies which includes any such bodies; (c) prescribing, for the purposes of paragraph (b) of the definition of public office in subsection 87(1): (i) an office or appointment the holder of which is appointed by the Governor of a State or by a Minister of a State; or (ii) a class of such offices or appointments; or (d) prescribing, for the purposes of paragraph 87(3)(a): (i) an office or appointment in the Public Service of a State; or (ii) a class of offices or appointments in the Public Service of a State; unless the Premier of the State has informed the Prime Minister, in writing, that he has agreed to the making of the regulation. (2) Regulations shall not be made: (a) for the purposes of the definition of public authority or public office in subsection 87(1); or (b) for the purposes of subsection 87(3) or (4); unless the conditions specified in subsection (3) of this section are fulfilled in respect of the body, office or appointment, or each body, office or appointment, to which the regulation relates. (3) The conditions that are required by subsection (2) to be fulfilled in respect of a body, office or appointment are the following: (a) that the Board is satisfied that the terms and conditions of employment that will be applicable to the employment of relevant employees by that body, or as the holders of that office or appointment, as the case may be, (other than relevant employees who were engaged in that employment immediately before the commencement of the regulation) will make provision as set out: (i) in the case of relevant employees who are prescribed employees—in subsection (6); or (ii) in the case of any other relevant employees—in subsection (7); (b) that arrangements, satisfactory to the Minister for the time being administering the Superannuation Act 1976 or to an officer authorized by that Minister for the purposes of this paragraph, have been made for and in relation to the provision of superannuation benefits under that Act in respect of relevant employees who: (i) are employed by that body or as the holders of that office or appointment, as the case may be; and (ii) are persons to whom section 14A of that Act applies; (c) that arrangements satisfactory to the Minister for the time being administering the Superannuation Act 1990 or to an officer authorised by that Minister for the purposes of this paragraph, have been made in relation to the provision of superannuation benefits under that Act for relevant employees who: (i) are employed by that body or as the holders of that office or appointment, as the case may be; and (ii) are members of the superannuation scheme established by deed under that Act by force of paragraph 6(1)(h) of that Act. (4) Where a change occurs in the terms and conditions of employment applicable to the employment of a relevant employee: (a) by a body, or by a body included in a class of bodies, prescribed by a regulation referred to in subsection (2); or (b) as the holder of an office or appointment, or as the holder of an office or appointment included in a class of offices or appointments, prescribed by such a regulation; and it appears to the Board that those terms and conditions of employment no longer make provision as set out in subsection (6) or (7), as the case requires, the Board shall, subject to the approval of the Governor‑General, make a regulation repealing that regulation, or repealing that regulation in so far as it relates to that body, class of bodies, office, appointment, or class of offices or appointments, as the case may be. (5) Notwithstanding the repeal of a regulation of a kind referred to in subsection (2), this Part continues to apply to and in relation to a relevant employee who was, immediately before the repeal of the regulation, employed by a body, or in an office or appointment, to which the regulation related as if he were, while so employed, engaged in eligible public employment. (6) The provision to be made for the purposes of subsection (3) in respect of the employment of a prescribed employee is provision: (a) for the employee to retain, in respect of the employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him, immediately before he becomes such an employee, in respect of the employment or other employment; (b) for recreation leave credits and sick leave credits to accrue to the employee in respect of the employment on the respective dates on which, and at the respective rates of accrual at which, they would accrue to him if his service in the employment were service in the Service; (c) for the recreation leave credit that first accrues to him in respect of the employment: (i) if he becomes engaged in the employment on 1 January in a year—to accrue to him on that day and be calculated as if he were employed on that day in the employment in which he was engaged immediately before that day; (ii) if he becomes engaged in the employment after 1 January in the year in which he became, or last became, an officer—to be calculated as if he had been continuously engaged in the employment since he became, or last became, an officer; or (iii) if he becomes engaged in the employment after 1 January in a subsequent year—to be calculated as if he had been continuously engaged in the employment from and including that 1 January; (d) for the sick leave credits that first accrue to him in respect of the employment to accrue to him on the day on which they would accrue to him if, and to be calculated as if, the whole of his service in employment since the date on which his last preceding sick leave credits accrued to him had been service in that first‑mentioned employment; (e) for the employee, if he ceases, otherwise than by reason of his death, to be engaged in the employment and, at the same time, to be an officer, to have substantially the same entitlement to payment in lieu of leave of absence for recreation as he would have under this Act if he were retiring from the Service and his service in the employment were service in the Service, unless, upon so ceasing, he becomes engaged in other eligible public employment; (f) for payment of amounts in lieu of leave of absence for recreation to be made in relation to the employee if: (i) he dies; or (ii) the Board certifies, after consideration of all the circumstances, that it would, if his service in the employment had been service in the Service, direct, for the purposes of a determination under section 82D with respect to payments in lieu of leave of absence for recreation, that he should be presumed to have died on a particular date; being amounts equal to the amounts that would be payable under this Act if his service in the employment were service in the Service, unless he had ceased to be an officer before his death or before that date, as the case may be; (g) for the employee to be entitled to a period or periods of long service leave, and for payment in lieu of long service leave to be made to or in relation to the employee, in respect of the employment as if his service in the employment were service in the Service; and (h) for the employee if he or she is: (i) an eligible employee for the purposes of the Superannuation Act 1976; or (ii) a member of the superannuation scheme established by deed under the Superannuation Act 1990; immediately before he or she becomes engaged in the employment, to be exempted from liability to contribute for superannuation benefits otherwise than under the Superannuation Act 1976 or the Superannuation Act 1990 in respect of the employment. (7) The provision to be made for the purposes of subsection (3) in respect of the employment of a relevant employee, being a person to whom Division 3 applies, is provision: (a) for the employee to retain, in respect of the employment, such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as had accrued to him, immediately before he becomes such an employee, in respect of the employment or other employment; (b) for the employee to be entitled to a period or periods of long service leave, and for payment in lieu of long service leave to be made to or in relation to the employee, in respect of the employment as if his service in the employment were service in the Service unless, within 3 months after he becomes a person to whom Division 3 applies or becomes engaged in that employment, whichever last occurs, he elects, in writing, for those entitlements to be determined otherwise; and (c) for the employee, if he is contributing for benefits under the Superannuation Act 1976, or the Superannuation Act 1990, immediately before the day on which he becomes a person to whom Division 3 applies or the day on which he becomes engaged in that employment, whichever is the later day, to be exempted from liability to contribute for superannuation benefits otherwise than under the Superannuation Act 1976 or the Superannuation Act 1990 in respect of the employment unless, within 3 months after that later day, he elects, in writing, to contribute for those other benefits. (8) A reference in this section to a body shall, unless the contrary intention appears, be read as including a reference to the Public Service of the Northern Territory.