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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Health Services Amendment Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Health Services Act 1997 No 154 2
4 Amendment of Public Sector Employment and
Management Act 2002 No 43 2
Schedule 1 Principal amendments to Health Services Act 1997 3
Schedule 2 Consequential amendments to Health Services Act 1997 28
Schedule 3 Amendments to Public Sector Employment and
Management Act 2002 34
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2004
New South Wales
Health Services Amendment Bill 2004
Act No , 2004
An Act to amend the Health Services Act 1997 with respect to the control and
management of area health services and statutory health corporations; and for other
purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Health Services Amendment Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Health Services Amendment Act 2004.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Health Services Act 1997 No 154
The Health Services Act 1997 is amended as set out in Schedules 1
and 2.
4 Amendment of Public Sector Employment and Management Act 2002
No 43
The Public Sector Employment and Management Act 2002 is amended
as set out in Schedule 3.
Page 2
Health Services Amendment Bill 2004
Principal amendments to Health Services Act 1997 Schedule 1
Schedule 1 Principal amendments to Health
Services Act 1997
(Section 3)
[1] Section 16 Who constitutes the NSW Health Service?
Insert before section 16 (a):
(a1) all persons employed under Part 3 of Chapter 9 by the
Health Administration Corporation, and
[2] Chapter 3, Part 2
Omit the Part. Insert instead:
Part 2 Control and management of area health
services
Division 1 The chief executive
23 Appointment of chief executive
(1) A chief executive is to be appointed for each area health service.
(2) The chief executive is, for all purposes, taken to be employed by
the Health Administration Corporation.
(3) Chapter 2 of the Public Sector Employment and Management Act
2002 does not apply to or in respect of the chief executive.
Note. Under Part 3 of Chapter 9, the chief executive is appointed by the
Health Administration Corporation as a member of the Health Executive
Service.
24 Chief executive to manage and control affairs of area health
service
(1) The affairs of an area health service are to be managed and
controlled by the chief executive of the service.
(2) Any act, matter or thing done in the name of, or on behalf of, an
area health service by its chief executive is taken to have been
done by the service.
25 Functions of chief executive generally
The chief executive of an area health service:
(a) has, and may exercise, such functions as are conferred or
imposed on the chief executive by or under this or any
other Act, and
Page 3
Health Services Amendment Bill 2004
Schedule 1 Principal amendments to Health Services Act 1997
(b) is, in the exercise of his or her functions, subject to the
control and direction of the Director-General.
Division 2 Area health advisory councils
26 Constitution of area health advisory councils
(1) An area health advisory council is to be established for each area
health service.
(2) An area health advisory council is to consist of between 9 and 13
members, appointed by the Minister, of whom:
(a) some must be persons having experience in the provision
of health services, and
(b) the others must be persons who can represent the interests
of consumers of health services and the local community,
and
(c) at least one (who may be one of the members referred to in
paragraph (a) or (b)) must be a person who has expertise,
knowledge or experience in relation to Aboriginal health.
(3) The membership of an area health advisory council must
maintain a reasonable balance between persons of the kind
referred to in subsection (2) (a) and persons of the kind referred
to in subsection (2) (b), so that at all times the persons of one kind
do not outnumber persons of the other kind by more than 2.
(4) A member of an area health advisory council holds office for
such period (not exceeding 4 years) as may be specified in the
member's instrument of appointment.
(5) A member whose term of office expires is eligible (if otherwise
qualified) for re-appointment, but may not be appointed so as to
hold office for more than 8 years in total.
(6) One of the members of an area health advisory council is, by the
relevant instrument of appointment or by a further instrument
signed by the Minister, to be appointed as the chairperson of the
council.
(7) A member of an area health advisory council is entitled to be paid
such remuneration (including travelling and subsistence
allowances) as the Minister may from time to time determine in
respect of the member.
(8) Subject to this section, the constitution and procedure of an area
health advisory council are to be as prescribed by the regulations.
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Health Services Amendment Bill 2004
Principal amendments to Health Services Act 1997 Schedule 1
27 Role of area health advisory councils
The role of an area health advisory council is to facilitate the
involvement of providers and consumers of health services, and
of other members of the local community, in the development of
the area health service's policies, plans and initiatives for the
provision of health services.
28 Functions of area health advisory councils
The area health advisory council for an area health service has the
following functions:
(a) to advise providers and consumers of health services, and
other members of the local community, as to the area
health service's policies, plans and initiatives for the
provision of health services,
(b) to seek the views of providers and consumers of health
services, and of other members of the local community, as
to the area health service's policies, plans and initiatives
for the provision of health services, and to advise the chief
executive of the area health service of those views,
(c) to confer with the chief executive of the area health service
in connection with the operational performance targets set
by any performance agreement to which the area health
service is a party under section 126,
(d) to advise the chief executive on how best to support,
encourage and facilitate community, consumer and health
service provider involvement in the planning of health
services by the area health service,
(e) to liaise with other area health advisory councils in relation
to both local and State-wide initiatives for the provision of
health services,
(f) to publish reports (annually or more frequently) as to its
work and activities,
(g) such other functions as are conferred or imposed on it by
the regulations.
29 Charter for area health advisory councils
(1) The Minister may, by order in writing, establish a charter for area
health advisory councils.
(2) The text of a charter established under this section must be
published on the internet website of the Department of Health
and on the internet websites of each of the area health services.
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Schedule 1 Principal amendments to Health Services Act 1997
(3) In exercising its functions, an area health advisory council must
comply with the requirements of the charter.
(4) A charter established under this section may include a code of
conduct to be observed by members of area health advisory
councils.
29A Annual report
(1) As soon as practicable after 30 June (but on or before
31 December) of each year, the chairperson of an area health
advisory council is to provide the Minister with a report on the
performance by the area health advisory council of its role and
functions under this Act during the period of 12 months ending
on 30 June in that year.
(2) The report is to include performance indicators to measure the
area health advisory council's success in the performance of its
role and functions under this Act.
(3) The Minister is to cause the report to be laid before both Houses
of Parliament as soon as practicable after receiving the report.
Division 3 Other committees and councils
29B Other committees and councils
The chief executive may establish such committees and councils
as he or she considers appropriate to assist the area health service
in the exercise of its functions.
[3] Section 31 Opening and closing of hospitals, health institutions, health
services or health support services
Omit ", subject to any direction of the Minister under section 25," from section
31 (1) and (2) wherever occurring.
Insert instead ", subject to any direction under this Act,".
[4] Section 31 (4)
Omit the subsection.
[5] Section 32
Omit the section. Insert instead:
32 Determination of role, functions and activities of area health
services
(1) The Director-General may, from time to time, determine the role,
functions and activities of any public hospital, health institution,
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Health Services Amendment Bill 2004
Principal amendments to Health Services Act 1997 Schedule 1
health service or health support service under the control of an
area health service and, for that purpose, give any necessary
directions to the chief executive of the area health service.
(2) The Minister may direct an area health service to do any of the
following if the Minister is satisfied that it is in the public interest
to do so:
(a) establish any hospital, health institution, health service or
health support service,
(b) close any public hospital or health institution, or cease to
provide any health service or health support service, under
its control,
(c) restrict the range of health care or treatment provided by
any public hospital, health institution or health service
under its control.
[6] Section 37 Contracts of area health service
Omit "Minister" from section 37 (2). Insert instead "Director-General".
[7] Section 39 Area health service may make by-laws
Omit "Minister" wherever occurring. Insert instead "Director-General".
[8] Section 39 (1) (f) and (g)
Omit section 39 (1) (f), (g) and (h). Insert instead:
(f) the keeping of records concerning its acts and decisions,
(g) the appointment and functions of its councils and
committees.
[9] Section 40 Delegations by area health service
Omit "Minister" from section 40 (2) wherever occurring.
Insert instead "Director-General".
[10] Section 41 Constitution of statutory health corporations
Insert after section 41 (2):
(3) A statutory health corporation is to be either a chief executive
governed health corporation or a board governed health
corporation, as specified from time to time in Schedule 2.
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Schedule 1 Principal amendments to Health Services Act 1997
[11] Section 42 Amendment of Schedule 2 (Statutory health corporations)
Insert ", or by changing its governance from chief executive governance to
board governance or from board governance to chief executive governance"
after "corporation" in section 42 (a).
[12] Section 42 (b)
Insert "and the nature of their governance" after "corporations".
[13] Section 51
Omit the section. Insert instead:
51 Appointment of chief executive
(1) The Minister may appoint a chief executive for each board
governed health corporation.
(2) Chapter 2 of the Public Sector Employment and Management Act
2002 does not apply to or in respect of the chief executive.
(3) If the position of chief executive is an executive position within
the meaning of Part 3 of Chapter 9, the appointment of a chief
executive is not subject to section 121C (1), but the chief
executive is, for all purposes, taken to be employed by the Health
Administration Corporation.
(4) If the position of chief executive is an executive position within
the meaning of Part 3.1 of the Public Sector Employment and
Management Act 2002, the chief executive is, for all purposes,
taken to be employed (but not under section 54) by the board
governed health corporation for which he or she is appointed.
(5) If the position of chief executive is neither an executive position
within the meaning of Part 3 of Chapter 9 nor an executive
position within the meaning of Part 3.1 of the Public Sector
Employment and Management Act 2002:
(a) the chief executive is taken, while holding that office, to be
employed by the board governed health corporation for
which he or she is appointed, and
(b) the conditions of employment (including remuneration) of
the chief executive are to be determined in accordance
with section 115.
(6) The affairs of a board governed health corporation are to be
managed by the chief executive of the corporation.
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Principal amendments to Health Services Act 1997 Schedule 1
(7) The chief executive of a board governed health corporation:
(a) has, and may exercise, such functions as are conferred or
imposed on the chief executive by or under this or any
other Act, and
(b) is, in the exercise of his or her functions, subject to the
control and direction of the health corporation board for
the corporation.
[14] Section 52 Removal of members and appointment of administrator
Insert ", for any reason or no reason and without notice" after "at any time" in
section 52 (1).
[15] Section 52 (6) and (7)
Insert after section 52 (5):
(6) If the position of chief executive is an executive position within
the meaning of Part 3 of Chapter 9:
(a) the chief executive may not be removed from office under
section 121N, and
(b) section 121N applies:
(i) to and in respect of a chief executive who is
removed from office under this section, and
(ii) to and in respect of the executive position of a chief
executive who is so removed,
in the same way as it applies to and in respect of a health
executive who is removed from office under section 121N
and to and in respect of the executive position of a health
executive who is so removed.
(7) If the position of chief executive is an executive position within
the meaning of Part 3.1 of the Public Sector Employment and
Management Act 2002:
(a) the chief executive may not be removed under section 77
of that Act, and
(b) section 77 of that Act applies:
(i) to and in respect of a chief executive who is
removed from office under this section, and
(ii) to and in respect of the executive position of a chief
executive who is so removed,
in the same way as it applies to and in respect of an
executive officer who is removed from office under
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Schedule 1 Principal amendments to Health Services Act 1997
section 77 of that Act and to and in respect of the executive
position of an executive officer who is so removed.
[16] Chapter 4, Part 2, Division 2
Insert after section 52:
Division 2 Chief executive governed health
corporations
52A Appointment of chief executive
(1) The Director-General may appoint a chief executive for each
chief executive governed health corporation.
(2) Chapter 2 of the Public Sector Employment and Management Act
2002 does not apply to or in respect of the chief executive.
(3) If the position of chief executive is an executive position within
the meaning of Part 3 of Chapter 9, the appointment of a chief
executive is not subject to section 121C (1), but the chief
executive is, for all purposes, taken to be employed by the Health
Administration Corporation.
(4) If the position of chief executive is not an executive position
within the meaning of Part 3 of Chapter 9:
(a) the chief executive is taken, while holding that office, to be
employed by the chief executive governed health
corporation for which he or she is appointed, and
(b) the conditions of employment (including remuneration) of
the chief executive are to be determined in accordance
with section 115, and
(c) the chief executive may at any time, for any reason or no
reason and without notice, be removed from office by the
Director-General.
52B Chief executive to manage and control affairs of chief executive
governed health corporation
(1) The affairs of a chief executive governed health corporation are
to be managed and controlled by the chief executive of the
corporation.
(2) Any act, matter or thing done in the name of, or on behalf of, a
chief executive governed health corporation by its chief
executive is taken to have been done by the corporation.
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Principal amendments to Health Services Act 1997 Schedule 1
52C Functions of chief executive generally
The chief executive of a chief executive governed health
corporation:
(a) has, and may exercise, such functions as are conferred or
imposed on the chief executive by or under this or any
other Act, and
(b) is, in the exercise of his or her functions, subject to the
control and direction of the Director-General.
52D Advisory councils
(1) The Minister may establish an advisory council for each chief
executive governed health corporation.
(2) The constitution, procedure and functions of an advisory council
are to be as determined by the Minister.
52E Other committees and councils
The chief executive may establish such committees and councils
as he or she considers appropriate to assist the chief executive
governed health corporation in the exercise of its functions.
[17] Section 53 Determination of functions of statutory health corporations
Omit section 53 (1). Insert instead:
(1) The relevant authority may, from time to time, determine the role,
functions and activities of any public hospital, health institution,
health service or health support service under the control of a
statutory health corporation and, for that purpose, give any
necessary directions:
(a) in the case of a chief executive governed health
corporation, to the chief executive of that corporation, or
(b) in the case of a board governed health corporation, to the
health corporation board for that corporation.
[18] Section 53 (3)
Insert after section 53 (2):
(3) In this section, relevant authority means:
(a) in relation to a board governed health corporation, the
Minister, and
(b) in relation to a chief executive governed health
corporation, the Director-General.
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Schedule 1 Principal amendments to Health Services Act 1997
[19] Section 58 Contracts of statutory health corporations
Omit "Minister" from section 58 (2). Insert instead "relevant authority".
[20] Section 58 (4)
Insert after section 58 (3):
(4) In this section, relevant authority means:
(a) in relation to a board governed health corporation, the
Minister, and
(b) in relation to a chief executive governed health
corporation, the Director-General.
[21] Section 60 Statutory health corporation may make by-laws
Omit "Minister" wherever occurring. Insert instead "relevant authority".
[22] Section 60 (1) (f), (g) and (h)
Omit the paragraphs. Insert instead:
(f) the keeping of records concerning its acts and decisions,
(g) in the case of a board governed health corporation:
(i) the keeping of records concerning the acts and
decisions of the board, and
(ii) the procedure for the calling of meetings of the
board and for the conduct of business at those
meetings,
(h) the appointment and functions of its councils and
committees.
[23] Section 60 (7)
Insert after section 60 (6):
(7) In this section, relevant authority means:
(a) in relation to a board governed health corporation, the
Minister, and
(b) in relation to a chief executive governed health
corporation, the Director-General.
[24] Section 61 Delegations by statutory health corporations
Omit "Minister" wherever occurring in section 61 (2).
Insert instead "relevant authority".
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Health Services Amendment Bill 2004
Principal amendments to Health Services Act 1997 Schedule 1
[25] Section 61 (4) (a)
Omit "statutory". Insert instead "board governed".
[26] Section 61 (5)
Insert after section 61 (4):
(5) In this section, relevant authority means:
(a) in relation to a board governed health corporation, the
Minister, and
(b) in relation to a chief executive governed health
corporation, the Director-General.
[27] Chapter 9, Part 3
Insert after Part 2:
Part 3 The Health Executive Service
Division 1 Preliminary
121A Definitions (cf PSE&M Act s 63)
(1) In this Part:
contract of employment means a contract of employment under
this Part between a health executive and the Health
Administration Corporation.
executive position means:
(a) the position of chief executive of an area health service, or
(b) a position the subject of a determination referred to in
section 121B (1) (b).
health executive means a person holding an executive position.
remuneration package means the remuneration package for a
health executive determined for the time being by the Health
Administration Corporation under section 121J.
(2) In this Part, a reference to the remuneration package for a health
executive is, if a range of amounts has been determined by the
Health Administration Corporation, a reference to:
(a) the amount within that range nominated in the executive's
contract of employment, or
(b) in any other case, the minimum amount within that range.
Page 13
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Schedule 1 Principal amendments to Health Services Act 1997
Division 2 Composition of Health Executive Service
121B Composition of Health Executive Service (cf PSE&M Act s 65)
(1) The Health Executive Service comprises:
(a) the chief executives of the area health services, and
(b) the persons holding:
(i) such positions in the NSW Health Service involving
employment in connection with public health
organisations, other than positions in an affiliated
health organisation, and
(ii) such positions in the Health Administration
Corporation,
as are for the time being determined by the Health
Administration Corporation to be executive positions.
(2) A list of the positions determined for the time being under
subsection (1) (b) is to be made publicly available on the website
of the Department of Health.
Division 3 Appointment and employment of health
executives
121C Appointment of health executives (cf PSE&M Act ss 17 and 24)
(1) Appointments to vacant executive positions are to be made by the
Health Administration Corporation.
(2) The Health Administration Corporation may appoint any person
employed in the NSW Health Service to act in an executive
position while the position is vacant or its holder is suspended,
sick or absent.
(3) While acting in an executive position, a person has all the
functions of the holder of the position, but does not thereby
become a health executive.
(4) The Health Administration Corporation may, at any time,
terminate the appointment of a person to act in an executive
position.
(5) This section does not prevent the payment of an allowance to a
person employed in the NSW Health Service for exercising all or
any of the functions of an executive position while the position is
vacant or its holder is suspended, sick or absent.
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Principal amendments to Health Services Act 1997 Schedule 1
121D Term appointments (cf PSE&M Act s 68)
(1) Subject to this Act, a health executive holds office for such period
(not exceeding 5 years) as is specified in the executive's
instrument of appointment, but is eligible (if otherwise qualified)
for re-appointment.
(2) A health executive may be re-appointed with effect before the
expiry of the executive's term of office. In that case, the
executive's existing term of office expires.
121E Employment of health executives to be governed by contract of
employment (cf PSE&M Act s 69)
(1) The employment of a health executive is to be governed by a
contract of employment between the executive and the Health
Administration Corporation.
(2) A contract of employment may be made before or after the
appointment of the health executive concerned.
(3) A health executive is not appointed by, nor is a health executive's
term of office fixed by, the contract of employment.
(4) However, a contract of employment may constitute the
instrument of appointment if the person authorised to make the
appointment is also the person who signs the contract with the
health executive concerned.
(5) A contract of employment may be varied at any time by a further
contract between the parties.
(6) A contract of employment may not vary or exclude a provision of
this Act or the regulations.
121F Matters regulated by contract of employment (cf PSE&M Act s 70)
(1) The matters to be dealt with in a contract of employment between
a health executive and the Health Administration Corporation
include the following:
(a) the duties of the executive's position (including
performance criteria for the purpose of reviews of the
executive's performance),
(b) the monetary remuneration and employment benefits for
the executive as referred to in Division 4 (including the
nomination of the amount of the remuneration package if
a range of amounts has been determined for the
remuneration package).
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Schedule 1 Principal amendments to Health Services Act 1997
(2) A contract of employment may provide for any matter to be
determined:
(a) by further agreement between the parties, or
(b) by further agreement between the health executive
concerned and some other person specified in the contract,
or
(c) by the Health Administration Corporation or by some
other person or body specified in the contract.
121G Performance reviews (cf PSE&M Act s 71)
(1) A health executive's performance must be reviewed, at least
annually, by such person as may be nominated by the Health
Administration Corporation.
(2) Any such review is to have regard to the agreed performance
criteria for the position and any other relevant matter.
121H Industrial arbitration or legal proceedings excluded (cf PSE&M Act s
72)
(1) In this section, a reference to the employment of a health
executive is a reference to:
(a) the appointment of, or failure to appoint, a person to a
vacant executive position, or
(b) the removal, retirement, termination of employment or
other cessation of office of a health executive, or
(c) any disciplinary proceedings or disciplinary action taken
against a health executive, or
(d) the remuneration or conditions of employment of a health
executive.
(2) The employment of a health executive, or any matter, question or
dispute relating to any such employment, is not an industrial
matter for the purposes of the Industrial Relations Act 1996.
(3) Subsection (2) applies whether or not any person has been
appointed to a vacant executive position.
(4) Part 6 (Unfair dismissals) and Part 9 (Unfair contracts) of
Chapter 2 of the Industrial Relations Act 1996 do not apply to or
in respect of the employment of a health executive.
(5) Any State industrial instrument (whether made before or after the
commencement of this section) does not have effect in so far as
it relates to the employment of health executives.
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Principal amendments to Health Services Act 1997 Schedule 1
(6) Subsection (5) does not prevent the regulations from applying the
provisions of an award or industrial agreement to the
employment of a health executive.
(7) An appeal does not lie to the Government and Related Employees
Appeal Tribunal in relation to the employment of a health
executive.
(8) 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 the appointment of or failure to
appoint a person to an executive position, the entitlement or
non-entitlement of a person to be so appointed or the validity or
invalidity of any such appointment.
(9) In this section, industrial agreement includes any determination
under section 115.
Division 4 Remuneration of health executives
121I Definitions (cf PSE&M Act s 73)
In this Division:
approved means approved for the time being, in writing, by the
Health Administration Corporation, either generally or in relation
to any health executive or class of health executives.
employment benefit means:
(a) contributions payable to a superannuation scheme by the
Health Administration Corporation in respect of a health
executive, including any liability of the Corporation to
make any such contributions or to pay approved costs
associated with that scheme, or
(b) the provision by the Health Administration Corporation of
a motor vehicle for private use by a health executive, or
(c) any other approved benefit provided to a health executive
at the cost of the Health Administration Corporation (being
a benefit of a private nature).
monetary remuneration includes allowances paid in money, but
does not include:
(a) travelling or subsistence allowances, or
(b) allowances in relation to relocation expenses, or
(c) any other allowances in relation to expenses incurred in the
discharge of a health executive's duties.
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Schedule 1 Principal amendments to Health Services Act 1997
superannuation scheme means a superannuation scheme
established by or under an Act or approved for the purposes of
this definition.
121J Determination of remuneration packages
(1) The Health Administration Corporation may from time to time
determine the remuneration packages for health executives.
(2) The amount of the remuneration package for a health executive
is to be no less than the minimum amount that may be determined
by the Statutory and Other Offices Remuneration Tribunal under
Part 3A of the Statutory and Other Offices Remuneration Act
1975 with respect to the remuneration package for an executive
officer within the meaning of Part 3.1 of the Public Sector
Employment and Management Act 2002.
121K Monetary remuneration and employment benefits for health
executives (cf PSE&M Act s 74)
(1) Health executives are entitled to monetary remuneration at such
rate, and employment benefits of such kinds, as are provided in
their contract of employment.
(2) Contributions payable to a superannuation scheme by the Health
Administration Corporation in respect of a health executive that
are required to be made by the Corporation under a law of the
State relating to superannuation are, until provided for by the
executive's contract of employment, taken to be an employment
benefit provided in the contract.
(3) The total amount of:
(a) the annual rate of monetary remuneration for a health
executive, and
(b) the annual cost of employment benefits provided for a
health executive under the relevant contract of
employment,
is to be equal to the amount of the remuneration package for the
executive.
(4) The cost of an employment benefit is the approved amount or an
amount calculated in the approved manner.
(5) This section does not affect:
(a) any approved performance-related incentive payments
made to a health executive, or
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Principal amendments to Health Services Act 1997 Schedule 1
(b) any remuneration or benefits to which a health executive is
otherwise entitled by law (such as statutory or agreed fees
for attendance at meetings or the like).
(6) A contract of employment may provide for the payment of part
of the monetary remuneration under the contract to be made in
the form of a periodic leave loading.
(7) A health executive is entitled to be paid an amount equivalent to
the approved cost of a part of any entitlement to take annual or
extended leave with pay if the executive forgoes (with the
approval of the Health Administration Corporation) the right to
take that part of that leave. This subsection has effect despite
anything to the contrary in the Annual Holidays Act 1944 or any
other Act.
(8) During any period when the monetary remuneration and
employment benefits for a health executive cannot be determined
under subsection (1), the executive is entitled to monetary
remuneration at the rate of the amount of the remuneration
package for the executive, subject to any subsequent adjustment
of payments in accordance with the executive's contract of
employment.
(9) If the remuneration package for a health executive is varied, the
executive is entitled to monetary remuneration and employment
benefits in accordance with the executive's contract of
employment pending any necessary variation of the contract and
adjustment of payments to comply with this section with effect
from the date of the variation.
121L Travelling and subsistence allowances etc (cf PSE&M Act s 75)
(1) A health executive is entitled to be paid:
(a) such travelling and subsistence allowances, and
(b) such allowances in relation to relocation expenses, and
(c) such other allowances in relation to expenses incurred in
the discharge of the executive's duties,
as the Health Administration Corporation may from time to time
determine in respect of the executive.
(2) A health executive's contract of employment:
(a) may provide for the payment to the executive of
allowances of the kind referred to in this section, and
(b) may regulate the payment of allowances to the executive
under this section.
Page 19
Health Services Amendment Bill 2004
Schedule 1 Principal amendments to Health Services Act 1997
Division 5 Removal, retirement etc of health executives
121M Vacation of executive positions (cf PSE&M Act s 76)
(1) The position of a health executive becomes vacant if the
executive:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) is removed from office, or retires or is retired from office,
under this or any other Act, or
(d) resigns his or her position in writing addressed to the
Health Administration Corporation and the Corporation
accepts the resignation.
(2) This section does not affect any other provision by or under
which a health executive vacates his or her position.
121N Removal of health executives from office (cf PSE&M Act s 77)
(1) The Health Administration Corporation may remove a health
executive from an executive position at any time for any or no
reason and without notice.
(2) The Health Administration Corporation:
(a) may declare a health executive who is removed from an
executive position by the Corporation under subsection (1)
to be an unattached officer, and
(b) may revoke any such declaration.
(3) While a declaration under subsection (2) remains in force, the
person to whom the declaration relates:
(a) is to be regarded as a health executive, although not
holding an executive position, and
(b) is entitled to monetary remuneration and employment
benefits as if the person had not been removed from his or
her position.
(4) If:
(a) a health executive is removed from an executive position
under subsection (1) and a declaration is not made in
relation to the executive under subsection (2), or
(b) a declaration under subsection (2) made in relation to a
health executive is revoked,
the executive ceases to be a health executive, unless appointed to
some other executive position.
Page 20
Health Services Amendment Bill 2004
Principal amendments to Health Services Act 1997 Schedule 1
(5) A person who ceases to be a health executive because of
subsection (4) ceases to be a member of staff of the Health
Administration Corporation unless appointed to some other
position on the staff of the Corporation.
(6) The making of a declaration under subsection (2) in relation to a
health executive does not prevent the executive from ceasing to
be a health executive because of the completion of the
executive's term of office.
(7) Clause 11 of Schedule 4 to the Public Sector Employment and
Management Act 2002 applies to and in respect of a person:
(a) who ceases to be a health executive pursuant to this
section, and
(b) who, immediately before he or she became a health
executive, was an executive officer to whom that clause
applied,
as it would have applied to the person had he or she ceased to be
an executive officer, as referred to in clause 11 (7) of that
Schedule, when he or she ceased to be a health executive.
121O Compensation etc where health executive is removed from office
(cf PSE&M Act s 78)
(1) This section applies to the following persons:
(a) a health executive who is removed from office under
section 121N (1) and ceases to be a health executive
because of section 121N (4),
(b) a health executive who is otherwise removed from office
(except for misbehaviour after due inquiry),
(c) a health executive who was employed in the NSW Health
Service when first appointed as a health executive, whose
term of office as a health executive expires and who is not
re-appointed.
However, this section does not apply to or in respect of a health
executive who consents to a transfer at a lower level of
remuneration.
(2) A person to whom this section applies is entitled to such
compensation (if any) as the Statutory and Other Offices
Remuneration Tribunal determines.
(3) The Statutory and Other Offices Remuneration Tribunal:
(a) may determine that compensation is payable for the failure
to re-appoint a health executive only if the Tribunal is
Page 21
Health Services Amendment Bill 2004
Schedule 1 Principal amendments to Health Services Act 1997
satisfied that the person had a reasonable expectation of
being re-appointed, and
(b) must have regard to any general directions given to the
Tribunal by the Minister as to the matters to be taken into
consideration when it makes determinations under this
section.
(4) The maximum compensation payable is an amount equal to the
person's remuneration package for the period of 38 weeks.
(5) The person is not entitled to any other compensation for the
removal or retirement from office or for the failure to re-appoint
the person or to any remuneration in respect of the office for any
period afterwards (except remuneration in respect of a
subsequent re-appointment to the office).
(6) A health executive who is removed from office or not
re-appointed is not entitled to compensation under this section if:
(a) the person is appointed on that removal or expiry of term
of office:
(i) to another executive position within the meaning of
this Part, or
(ii) to an executive position within the meaning of the
Public Sector Employment and Management Act
2002, and
(b) the remuneration package for the holder of that position is
not less than the remuneration package for the holder of the
former position.
(7) If the Statutory and Other Offices Remuneration Tribunal
determines that compensation is payable under this section, it
must, in its determination, specify the period to which the
compensation relates.
(8) During the period so specified, the person:
(a) may not be employed in a public sector service within the
meaning of the Public Sector Employment and
Management Act 2002, and
(b) may not be employed in the service of a State owned
corporation or a subsidiary of a State owned corporation,
and
(c) may not be appointed to any statutory office,
unless arrangements are made for a refund of the proportionate
amount of the compensation.
Page 22
Health Services Amendment Bill 2004
Principal amendments to Health Services Act 1997 Schedule 1
Division 6 General
121P Incumbent officers' accrued leave (cf PSE&M Act s 80)
(1) A person who:
(a) was a chief executive of a statutory health corporation, or
was employed in the public sector, when appointed to an
executive position, and
(b) had a right to accrued extended or annual leave with pay
immediately before that appointment, and
(c) has not taken that leave before taking up duties in the
executive position,
is entitled, on taking up those duties, to be paid instead of that
leave (or any part of that leave) the money value of that leave (or
part) as a gratuity if the person so elects.
(2) An election under this section is to be made within the time and
in the manner determined by the Health Administration
Corporation.
(3) The money value of leave is to be calculated at the rate of pay of
the person immediately before appointment to the executive
position.
(4) A person who was a chief executive of a statutory health
corporation, or was employed in the public sector, when
appointed to an executive position retains any right to extended,
annual, sick or other leave accrued or accruing to the person
immediately before the appointment (except any accrued leave
which is paid out by a gratuity under subsection (1)).
(5) In this section, a reference to employment in the public sector is
a reference to:
(a) employment in the NSW Health Service, the Public
Service or the Teaching Service, or
(b) employment as a member of NSW Police, or
(c) employment as an officer in the service of a public
authority within the meaning of Part 3.1 of the Public
Sector Employment and Management Act 2002, or
(d) appointment to a statutory office.
121Q Effect on incumbent when position ceases to be executive
position (cf PSE&M Act s 81)
(1) If a position ceases to be designated as an executive position by
a determination under section 121B (1) (b):
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Health Services Amendment Bill 2004
Schedule 1 Principal amendments to Health Services Act 1997
(a) the position is abolished, and
(b) any person holding the position ceases to be a member of
staff of the Health Administration Corporation unless
appointed to some other position on the staff of the
Corporation or declared to be an authorised officer under
section 121N (2).
(2) A person referred to in subsection (1) (b) has the same rights and
obligations as if the person had ceased to be a health executive
because of section 121N (4).
(3) A determination under section 121B (1) (b) that omits or adds an
executive position may contain other provisions of a savings or
transitional nature consequent on a position becoming or ceasing
to be an executive position or becoming a different kind of
executive position.
121R Change in title of positions (cf PSE&M Act s 82)
A position referred to in a determination under section 121B (1)
(b) does not cease to be an executive position merely because of
a change in the title of the position.
121S Approval to undertake other paid work (cf PSE&M Act s 83)
A health executive is not to undertake any paid work outside the
duties of the executive position without the consent of the Health
Administration Corporation.
121T Operation of Part (cf PSE&M Act s 84)
This Part prevails over any inconsistent provision of any other
Act or law or of the terms of appointment of or contract with a
person.
[28] Schedule 2
Omit the Schedule. Insert instead:
Schedule 2 Statutory health corporations
(Section 41)
Column 1 Column 2
Name of statutory health corporation Nature of governance
Clinical Excellence Commission Board
Page 24
Health Services Amendment Bill 2004
Principal amendments to Health Services Act 1997 Schedule 1
Column 1 Column 2
Name of statutory health corporation Nature of governance
HealthQuest Board
Justice Health Board
The Royal Alexandra Hospital for Children Chief executive
The Stewart House Preventorium, Curl Curl Board
[29] Schedule 7 Savings and transitional provisions
Insert at the end of clause 1 (1):
Health Services Amendment Act 2004 (but only to the extent that
it amends this Act)
[30] Schedule 7
Insert at the end of the Schedule, with appropriate Part and clause numbers:
Part Provisions consequent on the enactment
of the Health Services Amendment Act
2004
Definition
In this Part, the 2004 amending Act means the Health Services
Amendment Act 2004.
Abolition of area health boards
(1) Each area health board constituted under section 23, as in force
immediately before the commencement of Schedule 1 [2] to the
2004 amending Act, is abolished.
(2) The members of each area health board cease to hold office on the
commencement of Schedule 1 [2] to the 2004 amending Act, but
are not entitled to be paid any compensation by reason of ceasing
to hold office.
(3) The chief executive officer of an area health service is not
removed from office just because he or she ceases to be a member
of the area health board for the service.
Page 25
Health Services Amendment Bill 2004
Schedule 1 Principal amendments to Health Services Act 1997
Abolition of health corporation board for The Royal Alexandra
Hospital for Children
(1) The health corporation board for The Royal Alexandra Hospital
for Children, as existing immediately before the commencement
of Schedule 1 [28] to the 2004 amending Act, is abolished.
(2) The members of the health corporation board for The Royal
Alexandra Hospital for Children cease to hold office on the
commencement of Schedule 1 [28] to the 2004 amending Act, but
are not entitled to be paid any compensation by reason of ceasing
to hold office.
Appointment of first health executives
(1) This clause applies to the following positions:
(a) the position of chief executive of an area health service,
(b) a position that, as at the commencement of this clause, is
the subject of a determination in force under section 121B
(1) (b).
(2) On the commencement of Schedule 1 [27] to the 2004 amending
Act, a person who, immediately before that commencement, held
a position to which this clause applies, or was an appointee to
such a position, is taken to have been appointed to the position
under section 121C (1).
(3) Until further provision is made under Part 3 of Chapter 9, the
person's conditions of employment (including remuneration) are,
subject to that Part, to be the same as those that applied to the
person immediately before the commencement of Schedule 1
[27] to the 2004 amending Act.
(4) An appointment by the Governor under section 28, as in force
immediately before the commencement of Schedule 1 [2] to the
2004 amending Act, has the same effect as if it were an
appointment by the Health Administration Corporation under
section 121C, as inserted by that Act.
Existing executive officers
Any person within the NSW Health Service who, immediately
before the commencement of Schedule 1 [27] to the 2004
amending Act, was an executive officer under Part 3.1 of the
Public Sector Employment and Management Act 2002, is taken,
on that commencement, to be a health executive under Part 3 of
Chapter 9 of this Act.
Page 26
Health Services Amendment Bill 2004
Principal amendments to Health Services Act 1997 Schedule 1
Unattached officers
Any person who, immediately before the commencement of
section 121N, was an unattached officer under section 77 of the
Public Sector Employment and Management Act 2002, being a
person who was then:
(a) an employee in the NSW Health Service, or
(b) an employee of an area health service, having been the
chief executive officer of the service immediately before
he or she became an unattached officer,
is taken, on that commencement, to be an unattached officer
under section 121N.
Page 27
Health Services Amendment Bill 2004
Schedule 2 Consequential amendments to Health Services Act 1997
Schedule 2 Consequential amendments to Health
Services Act 1997
(Section 3)
[1] The whole Act (except to the extent to which its provisions are otherwise
amended or repealed by this Act and except Schedule 7)
Omit "chief executive officer" and "chief executive officers" wherever
occurring.
Insert instead "chief executive" and "chief executives", respectively.
[2] Section 5 Notes
Insert at the end of the note to the section:
· PSE&M Act: Public Sector Employment and Management Act
2002
[3] Section 16 Who constitutes the NSW Health Service?
Omit "Public Sector Management Act 1988" from the note to the section.
Insert instead "Public Sector Employment and Management Act 2002".
[4] Chapter 3, Introductory note
Omit "constitutes area health boards for each area health service and".
[5] Chapter 3, Introductory note
Insert "and control" after "manage".
[6] Section 33 Staff of area health services
Omit section 33 (2) (including the note). Insert instead:
(2) Chapter 2 of the Public Sector Employment and Management Act
2002 does not apply to or in respect of persons employed under
this section.
[7] Section 40 Delegations by area health service
Omit section 40 (4) (a).
[8] Chapter 4, Introductory note
Omit "each statutory health corporation".
Insert instead "those statutory health corporations that Schedule 2 indicates are
to be board governed".
Page 28
Health Services Amendment Bill 2004
Consequential amendments to Health Services Act 1997 Schedule 2
[9] Chapter 4, Introductory note
Insert at the end of the first paragraph "Statutory health corporations are
governed either by a health corporation board or else by a chief executive who,
in either case, is responsible for the management of its affairs.".
[10] Section 43 Dissolution, transfer, amalgamation or change of name or
nature of governance of statutory health corporations
Insert "or nature of governance" after "name" in section 43 (1) (d).
[11] Section 43 (4)
Insert "or nature of governance" after "name".
[12] Chapter 4, Part 2, Division 1, heading
Insert before section 46:
Division 1 Board governed health corporations
[13] Sections 46, 47, 49 and 52
Omit "statutory" wherever occurring. Insert instead "board governed".
[14] Section 52 Removal of members and appointment of administrator
Insert "(other than the chief executive)" after "board" in section 52 (1) (c).
[15] Section 54 Staff of statutory health corporations
Omit section 54 (2) (including the note). Insert instead:
(2) Chapter 2 of the Public Sector Employment and Management Act
2002 does not apply to or in respect of persons employed under
this section.
[16] Section 115 Determination of conditions of employment of staff
Omit "Part 2A of the Public Sector Management Act 1988" from section 115
(9).
Insert instead "Part 3 of Chapter 9 of this Act or Part 3.1 of the Public Sector
Employment and Management Act 2002".
[17] Section 115 (9) (a)
Omit the paragraph.
Page 29
Health Services Amendment Bill 2004
Schedule 2 Consequential amendments to Health Services Act 1997
[18] Section 115 (9) (b) and (c)
Omit "to that Part" wherever occurring.
Insert instead "to either of those Parts".
[19] Schedule 4, heading
Insert "or nature of governance" after "name".
[20] Schedule 4, clause 2 (b)
Insert "or nature of governance" after "name".
[21] Schedule 4, clause 3 (1) (b)
Omit the paragraph.
[22] Schedule 4, clause 3 (2) (b)
Omit the paragraph.
[23] Schedule 4, clause 3 (4)
Omit "Part 2A of the Public Sector Management Act 1988".
Insert instead "Part 3 of Chapter 9".
[24] Schedule 4, clause 4 (1) (b)
Omit the paragraph. Insert instead:
(b) in the case of a board governed health corporation, the
members of the board cease to hold office, but are not
entitled to be paid any compensation by reason of ceasing
to hold office, and
[25] Schedule 4, clause 4 (2) (b)
Omit the paragraph. Insert instead:
(b) in the case of a board governed health corporation, the
members of the board cease to hold office, but are not
entitled to be paid any compensation by reason of ceasing
to hold office, and
[26] Schedule 4, clause 4 (3) (b)
Omit the paragraph. Insert instead:
(b) the members of any board governed health corporation
involved in the amalgamation cease to hold office, and:
(i) if the amalgamated corporation is a board governed
health corporation, are eligible (if otherwise
Page 30
Health Services Amendment Bill 2004
Consequential amendments to Health Services Act 1997 Schedule 2
qualified) to be appointed as members of the board
of the amalgamated corporation, and
(ii) are not entitled to be paid any compensation by
reason of ceasing to hold office, and
[27] Schedule 4, clause 4 (4A)
Insert after clause 4 (4):
(4A) Change of governance orders
On and from the date specified in an order made under section 43
(1) (d) changing the nature of governance of a statutory health
corporation from board governance to chief executive
governance, the members of the board for the corporation cease
to hold office, but are not entitled to be paid any compensation by
reason of ceasing to hold office.
[28] Schedule 4, clause 4 (5)
Omit "Part 2A of the Public Sector Management Act 1988".
Insert instead "Part 3 of Chapter 9 of this Act or Part 3.1 of the Public Sector
Employment and Management Act 2002".
[29] Schedule 5, heading
Omit "area health boards and".
[30] Schedule 5
Omit "(Sections 27 and 50)". Insert instead "(Section 50)".
[31] Schedule 5, clause 1, definition of "Board"
Omit "an area health board or".
[32] Schedule 5, clause 1, definition of "elected staff member"
Omit "an area health board or". Insert instead "a".
[33] Schedule 5, clause 1, definition of "member"
Omit paragraph (a).
[34] Schedule 5, clause 2 (1), definition of "employee"
Omit paragraph (a).
Page 31
Health Services Amendment Bill 2004
Schedule 2 Consequential amendments to Health Services Act 1997
[35] Schedule 5, clause 2 (4)
Omit "an area health service or". Insert instead "a".
[36] Schedule 5, clause 2 (4)
Omit "(as the case may be)".
[37] Schedule 5, clause 2 (4)
Omit "service or" where secondly occurring.
[38] Schedule 5, clause 2 (5), (6), (7) and (10)
Omit "area health service or" wherever occurring.
[39] Schedule 5, clause 7 (h)
Omit "area health service or".
[40] Schedule 5, clause 7 (i)
Omit "29 or".
[41] Schedule 5, clause 9 (1)
Omit "Part 2 of the Public Sector Management Act 1988".
Insert instead "Chapter 2 of the Public Sector Employment and Management
Act 2002".
[42] Dictionary
Omit the definition of area health board from Part 1.
[43] Dictionary, Part 1, definition of "board"
Omit paragraph (a).
[44] Dictionary, Part 1, definition of "chief executive" (as amended by item
[1])
Omit "corporation" from paragraph (a). Insert instead "service".
[45] Dictionary, Part 1, definitions of "board governed health corporation",
"chief executive governed health corporation" and "Health Executive
Service"
Insert in alphabetical order:
board governed health corporation means a statutory health
corporation that, as specified in Schedule 2, is governed by a
board.
Page 32
Health Services Amendment Bill 2004
Consequential amendments to Health Services Act 1997 Schedule 2
chief executive governed health corporation means a statutory
health corporation that, as specified in Schedule 2, is governed by
a chief executive.
Health Executive Service means the Health Executive Service
referred to in section 121B.
Page 33
Health Services Amendment Bill 2004
Schedule 3 Amendments to Public Sector Employment and Management Act 2002
Schedule 3 Amendments to Public Sector
Employment and Management Act 2002
(Section 4)
[1] Section 63 Definitions
Insert ", the Health Service" after "Teaching Service" in the definition of
public authority in section 63 (1).
[2] Section 77 Removal of executive officers from office
Omit "the Health Service," from section 77 (6).
[3] Schedule 2 Executive positions (other than non-statutory SES positions)
Omit from Part 3:
Chief executive officer of an area health board
Page 34
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