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This is a Bill, not an Act. For current law, see the Acts databases.
Public Sector Employment and
Management Further Amendment
Bill 2008
No , 2008
A Bill for
An Act to amend the Public Sector Employment and Management Act 2002 to make
further provision with respect to public sector employment and management; and for
other purposes.
Clause 1 Public Sector Employment and Management Further Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Public Sector Employment and Management Further 3
Amendment Act 2008. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
3 Amendment of Public Sector Employment and Management Act 2002 7
No 43 8
The Public Sector Employment and Management Act 2002 is amended 9
as set out in Schedule 1. 10
4 Amendment of Public Sector Management (Goods and Services) 11
Regulation 2000 12
The Public Sector Management (Goods and Services) Regulation 2000 13
is amended as set out in Schedule 2. 14
5 Repeal of Act 15
(1) This Act is repealed on the day following the day on which this Act 16
commences. 17
(2) The repeal of this Act does not, because of the operation of section 30 18
of the Interpretation Act 1987, affect any amendment made by this Act. 19
Page 2
Public Sector Employment and Management Further Amendment Bill 2008
Amendment of Public Sector Employment and Management Act 2002 Schedule 1
Schedule 1 Amendment of Public Sector 1
Employment and Management Act 2002 2
(Section 3) 3
[1] Section 19 Merit appointment 4
Omit section 19 (1) (b). Insert instead: 5
(b) the qualifications, experience, standard of work 6
performance and capabilities of those persons that are 7
relevant to the performance of those duties. 8
[2] Section 19 (3) and (3A) 9
Omit section 19 (3). Insert instead: 10
(3) In deciding to appoint a person to a vacant position in a 11
Department that has not been advertised in accordance with this 12
Part: 13
(a) the appropriate Department Head may only select a 14
qualified member of staff of the Department, and 15
(b) the appropriate Department Head must, from among those 16
qualified members of staff, select the member of staff who 17
has, in the opinion of the Department Head, the greatest 18
merit. 19
(3A) For the purposes of subsection (3), a qualified member of staff of 20
a Department is: 21
(a) an officer employed in the Department, or 22
(b) a Departmental temporary employee who is employed in 23
the Department and whose employment as such an 24
employee in that or any other Department falls within a 25
continuous period of at least 2 years. 26
[3] Section 19 (4) 27
Insert "or a Departmental temporary employee" after "officer". 28
[4] Section 23 Appointments on probation 29
Insert after section 23 (1): 30
(1A) A period of probation may be extended for such further period as 31
the appropriate Department Head directs. Any such direction 32
may be made at any time before the person's appointment is 33
confirmed or annulled under this section. 34
Page 3
Public Sector Employment and Management Further Amendment Bill 2008
Schedule 1 Amendment of Public Sector Employment and Management Act 2002
[5] Sections 31 (3) (d) and 86 (6D) (c) 1
Omit "relevant skills, qualifications, experience, work performance standards 2
and personal qualities" wherever occurring. 3
Insert instead "qualifications, experience, standard of work performance and 4
capabilities". 5
[6] Sections 33 (1), 34 (2) (d), (3) and (4), 36 (1), 37, 65 (2), 68 (2), 86 (9), 6
88 (1) (b), 100 (4) (c) and 121 (1) and clause 2 of Schedule 3A 7
Omit "Premier's Department" wherever occurring. 8
Insert instead "Department of Premier and Cabinet". 9
[7] Section 36 Delegation by Director-General 10
Omit "section 15" from section 36 (2). Insert instead "section 4F". 11
[8] Section 49 Suspension of officers from duty pending decision in relation 12
to misconduct or criminal charge 13
Insert "(or any action that the Department Head is considering taking under 14
section 48)" after "the criminal charge" in section 49 (1). 15
[9] Section 54 Requirements as to citizenship or permanent residency 16
Insert after section 54 (2): 17
(3) The Director of Public Employment may exempt a person from 18
the operation of this section in any case the Director considers 19
appropriate. 20
[10] Section 86 Temporary staff transfers (secondments between agencies) 21
Omit section 86 (2). 22
[11] Section 86A 23
Insert after section 86: 24
86A Temporary staff transfers (internal secondments) 25
(1) A member of staff of a public sector agency may transfer 26
temporarily to another position or other employment within the 27
agency with the approval of the head of the agency. 28
(2) A temporary transfer under this section may be: 29
(a) at the request, or with the consent, of the member of staff 30
concerned (an employee-initiated temporary transfer), or 31
(b) at the direction of the head of the public sector agency (an 32
employer-initiated temporary transfer). 33
Page 4
Public Sector Employment and Management Further Amendment Bill 2008
Amendment of Public Sector Employment and Management Act 2002 Schedule 1
(3) A person may be temporarily transferred under this section at the 1
person's existing level of remuneration or at a different level of 2
remuneration. However, an employer-initiated temporary 3
transfer cannot be made at a lower level of remuneration. 4
(4) If, in the case of an employee-initiated temporary transfer, the 5
transfer has continued for at least 2 years, the head of the public 6
sector agency may appoint the person to a position in the agency 7
(the new position) that is: 8
(a) at the same grade as (or at a grade similar to) the person's 9
original position in the agency, or 10
(b) at any grade higher than the person's original position in 11
the agency. 12
(5) The new position may, but need not, be advertised. Accordingly, 13
if the new position is a position in the Public Service and it is not 14
advertised, an appointment under subsection (4) is not an 15
appointment to which section 19 applies. 16
(6) If the person is appointed to the new position, the head of the 17
agency may decide to make the appointment without requiring 18
the person to serve any period of probation. 19
(7) The person may be appointed to the new position only if each of 20
the following requirements is satisfied: 21
(a) the rate of salary or wages payable to the person at the time 22
of appointment to the new position must not exceed the 23
maximum rate payable for Grade 12, Administrative and 24
Clerical Division, of the Public Service, 25
(b) the head of the agency must be satisfied that ongoing work 26
is available in respect of the person in the agency, 27
(c) the head of the agency must be satisfied that the person has 28
the qualifications, experience, standard of work 29
performance and capabilities to enable the person to 30
perform the duties of the new position. 31
(8) Without limiting subsection (7), if: 32
(a) the grade of the new position is higher than the grade of the 33
person's original position in the agency, and 34
(b) the new position has not been advertised, 35
the person may be appointed to the new position only if the 36
person has been performing duties in the agency at a grade that is 37
the same as (or similar to) the grade of the new position and was 38
performing those duties following some form of open 39
competition that involved the selection of the person as the 40
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Public Sector Employment and Management Further Amendment Bill 2008
Schedule 1 Amendment of Public Sector Employment and Management Act 2002
person who, in the opinion of the head of the agency, had the 1
greatest merit among the candidates concerned. 2
(9) In the case of an employee-initiated temporary transfer, a 3
permanent appointment may be made to the original position of 4
the person if: 5
(a) the transfer has continued or is likely to continue for more 6
than 12 months, and 7
(b) the person is advised of the proposed appointment, and 8
(c) the person is given a reasonable opportunity to terminate 9
the transfer and return to his or her original position. 10
(10) In the case of an employer-initiated temporary transfer, a 11
permanent appointment cannot be made to the person's original 12
position except with the consent of the person. 13
(11) The following is to be determined in accordance with such 14
guidelines as are issued from time to time by the 15
Director-General of the Department of Premier and Cabinet: 16
(a) the procedures for obtaining the consent of an employee 17
under this section, 18
(b) the circumstances in which an employer-initiated 19
temporary transfer to a different workplace location in the 20
State may be made. 21
(12) In this section: 22
public sector agency does not include a State owned corporation. 23
[12] Section 88 Temporary assignment of public sector staff to other 24
agencies 25
Insert "or to assist in disaster recovery activities" after "event" in section 26
88 (2). 27
[13] Section 100 Cross-agency employment 28
Insert after section 100 (1): 29
(1A) A separate staff position (however described) is not required to 30
be created in each of the Departments, or in each of the public 31
sector services, in which the person is employed. 32
Page 6
Public Sector Employment and Management Further Amendment Bill 2008
Amendment of Public Sector Employment and Management Act 2002 Schedule 1
[14] Section 100A 1
Insert after section 100: 2
100A Appointment may be made to position pending vacation of 3
position 4
(1) This section applies in relation to: 5
(a) a chief executive position or senior executive position 6
(whether or not in the Government Service), or 7
(b) any other position in the Government Service. 8
(2) If a person who holds any such position (the incumbent officer) 9
notifies the person's employer in writing that the person: 10
(a) intends to resign or retire from the position on a specified 11
date, or 12
(b) does not intend to seek re-appointment to the position on 13
completion of the current term of employment, 14
the employer may, before the position becomes vacant, take 15
action to recruit and appoint another person (the new officer) to 16
the position. 17
(3) The appointment of the new officer may, if the instrument of 18
appointment so provides, take effect before the incumbent officer 19
vacates the position. 20
(4) In any such case, the incumbent officer and the new officer: 21
(a) both hold the same position, and 22
(b) may jointly exercise the functions of the position. 23
(5) If in the joint exercise of any statutory function of the position 24
any inconsistency arises in connection with the exercise of that 25
function, the decision of the incumbent officer in relation to the 26
matter prevails. 27
(6) In this section: 28
employer means: 29
(a) in the case of a person who is a chief executive officer or 30
senior executive officer--the person's employer as 31
referred to in section 63 (2), or 32
(b) in any other case--the appropriate Division Head. 33
[15] Section 101 Arrangements for use of Teaching Service staff by 34
Departments 35
Omit the section. 36
Page 7
Public Sector Employment and Management Further Amendment Bill 2008
Schedule 1 Amendment of Public Sector Employment and Management Act 2002
[16] Section 124 Delegation by Director of Public Employment 1
Omit section 124 (1). Insert instead: 2
(1) The Director of Public Employment may delegate to the head of 3
a public sector agency or any other member of staff of a public 4
sector agency any of the functions of the Director of Public 5
Employment, other than this power of delegation. 6
[17] Section 124 (3) (b) 7
Omit the paragraph. Insert instead: 8
(b) a reference to a member of staff of a public sector agency 9
includes: 10
(i) a reference to a person holding an appointment to or 11
in the agency, and 12
(ii) a reference to a person holding an appointment to or 13
in a body or organisation having functions that are 14
exercised by the staff of that agency. 15
[18] Section 124 (4) 16
Insert after section 124 (3): 17
(4) In this section, head of a public sector agency and public sector 18
agency have the same meanings as in section 85. 19
[19] Section 137 Membership and procedure of Board 20
Omit section 137 (1). Insert instead: 21
(1) The Board is to consist of the following members: 22
(a) a person appointed by the Minister as the Chairperson of 23
the Board, 24
(b) at least 3 other persons appointed by the Minister to 25
represent public sector agencies that use goods and 26
services supplied in accordance with this Chapter and the 27
regulations made under it. 28
[20] Section 143 Regulations 29
Omit "the public sector service". Insert instead "the public sector services". 30
Page 8
Public Sector Employment and Management Further Amendment Bill 2008
Amendment of Public Sector Employment and Management Act 2002 Schedule 1
[21] Section 159A 1
Insert after section 159: 2
159A Inquiries by Director-General into public sector agencies 3
(1) In this section: 4
Director-General means the Director-General of the Department 5
of Premier and Cabinet. 6
public sector agency means the whole or a part of a public sector 7
service or an employer constituting, or within, a public sector 8
service. 9
public sector service does not include: 10
(a) the NSW Police Force, or 11
(b) the service of either House of Parliament, or the President 12
or Speaker, or the President and the Speaker jointly. 13
(2) The Director-General or a person authorised by the 14
Director-General may conduct an inquiry into any matter relating 15
to the administration or management of a public sector agency. 16
(3) The Director-General or a person authorised by the 17
Director-General may, for the purposes of conducting an inquiry 18
under this section: 19
(a) enter and inspect the premises of a public sector agency, 20
and 21
(b) require the production of, and take copies of, any 22
documents in the custody of a member of staff of the 23
public sector agency, and 24
(c) for the purposes of further examination, take possession of, 25
and remove, any of those documents, and 26
(d) require a member of staff of the public sector agency to 27
answer questions, and 28
(e) require a member of staff of the public sector agency to 29
provide such assistance and facilities as is or are necessary 30
to enable the Director-General or authorised person to 31
exercise functions under this section. 32
(4) A reference in subsection (3) to a member of staff of a public 33
sector agency includes a reference to any person who is engaged 34
by the agency (whether directly or indirectly) under a contract for 35
services. 36
(5) This section does not affect the operation of section 132 or 159. 37
Page 9
Public Sector Employment and Management Further Amendment Bill 2008
Schedule 1 Amendment of Public Sector Employment and Management Act 2002
[22] Schedule 4 Savings, transitional and other provisions 1
Insert at the end of clause 1 (1): 2
Public Sector Employment and Management Further 3
Amendment Act 2008 4
[23] Schedule 4, Part 6 5
Insert after Part 5: 6
Part 6 Provisions consequent on enactment of 7
Public Sector Employment and 8
Management Further Amendment Act 2008 9
28 Operation of amendments 10
(1) In this clause, amending Act means the Public Sector 11
Employment and Management Further Amendment Act 2008. 12
(2) Existing appointments on probation 13
Section 23 (1A), as inserted by the amending Act, extends to any 14
person who was appointed to a position on probation before the 15
commencement of the amending Act and whose appointment has 16
not been confirmed or annulled as at that commencement. 17
(3) Existing internal secondments 18
A member of staff of a public sector agency who, immediately 19
before the commencement of the amending Act, was the subject 20
of a temporary transfer under section 86 to another position or 21
other employment within that agency is, on the commencement 22
of the amending Act, taken to have transferred to that other 23
position or employment under section 86A (as inserted by the 24
amending Act). Accordingly, section 86A extends to a person 25
who is the subject of any such existing temporary transfer. 26
(4) Existing delegations by Director of Public Employment 27
The amendments to section 124 by the amending Act do not 28
affect the operation of any delegation in force under that section 29
immediately before the commencement of the amending Act. 30
(5) Existing members of State Contracts Control Board 31
A person holding office as a member of the State Contracts 32
Control Board (including as the Chairperson of the Board) 33
immediately before the commencement of the amending Act is, 34
on that commencement, taken to have been appointed as a 35
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Public Sector Employment and Management Further Amendment Bill 2008
Amendment of Public Sector Employment and Management Act 2002 Schedule 1
member or as the Chairperson of the Board (as the case requires) 1
under section 137 (1) as substituted by the amending Act. 2
(6) Inquiries into public sector agencies 3
Section 159A, as inserted by the amending Act, extends to 4
conduct occurring (or any other matter arising) before the 5
commencement of the amending Act. 6
Page 11
Public Sector Employment and Management Further Amendment Bill 2008
Schedule 2 Amendment of Public Sector Management (Goods and Services)
Regulation 2000
Schedule 2 Amendment of Public Sector 1
Management (Goods and Services) 2
Regulation 2000 3
(Section 4) 4
[1] Clause 18 Board may arrange supply or disposal for other public bodies 5
Insert after clause 18 (4) (f): 6
(f1) a public authority of any other jurisdiction (but only if it 7
carries on activities in this State), 8
[2] Schedule 2 Provisions relating to procedure of Board 9
Omit clause 2. Insert instead: 10
2 Quorum 11
The quorum for a meeting of the Board is 4 members or a 12
majority of the members appointed for the time being (whichever 13
is the greater). 14
Page 12
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