PORTS AND MARITIME ADMINISTRATION ACT 1995 - SCHEDULE 2

PORTS AND MARITIME ADMINISTRATION ACT 1995 - SCHEDULE 2

SCHEDULE 2 – Transfer of former MSB Staff (other than senior executives)

(Section 5)

1 Definitions

In this Schedule:


"former MSB staff" means the members of staff of the MSB immediately before the dissolution of the MSB (other than the holder of a chief executive or senior executive position under Part 2A of the Public Sector Management Act 1988 ).


"marine administration Department" means the Department under the Public Sector Management Act 1988 (or branch) that is responsible to the Minister for the purposes of the administration of the marine legislation.


"temporary or casual MSB staff" means any former MSB staff who were engaged in a position for a nominated period or for a nominated project or activity which is limited in time or who were engaged on an irregular day-to-day basis on hourly hire.


"the MSB enterprise agreements" means:

(a) the enterprise agreement which was entered into by the MSB with respect to all its staff (other than executive service officers and pilots) and which took effect on 13 December 1993 (as in force on the dissolution of the MSB), and

(b) the MSB Illawarra Ports Authority Assistant Harbour Master/Marine Pilots Enterprise Agreement, 1995 (as in force on the dissolution of the MSB), and

(c) the MSB Hunter Ports Authority Marine Pilots Enterprise Agreement, 1995 (as in force on the dissolution of the MSB),

2 Transfer of former MSB staff to Port Corporations

(1) The Minister may, by order in writing, provide that such former MSB staff as are specified or described in the order are transferred to a Port Corporation specified in the order.

(2) A person who is the subject of an order under this clause is to be regarded for all purposes as having become an employee of the Port Corporation, in accordance with the terms of the order, on the day the MSB is dissolved.

3 Transfer of former MSB staff to Waterways Authority

(1) The Minister may, by order in writing, provide that such former MSB staff as are specified or described in the order are transferred to the Waterways Authority.

(2) A person who is the subject of an order under this clause is to be regarded for all purposes as having become an employee of the Waterways Authority, in accordance with the terms of the order, on the day the MSB is dissolved.

4 Transfer of remainder of former MSB staff to Public Service

(1) Any former MSB staff (other than temporary or casual MSB staff) who are not transferred under this Schedule to a Port Corporation or to the Waterways Authority are entitled to be appointed to a position in the Public Service in accordance with this clause.

(2) The Governor may, on the recommendation of the Minister, by order published in the Gazette, transfer any such former MSB staff to a position in the Public Service (being a position in the marine administration Department).

(3) A person who is the subject of an order under this clause is to be regarded for all purposes as having become an officer of the Public Service, in accordance with the terms of the order, on the day the MSB is dissolved.

(4) Any former MSB staff (being temporary or casual MSB staff) who are not transferred under this Schedule to a Port Corporation or the Waterways Authority are taken to be transferred to temporary employment under section 38 of the Public Sector Management Act 1988 in the marine administration Department.

(5) This clause has effect despite anything in the Public Sector Management Act 1988 and a person transferred under this clause is to be regarded as having been transferred in accordance with any relevant provision of that Act.

5 Preservation of MSB enterprise agreements

(1) Despite the dissolution of the MSB and the MSB subsidiaries, the MSB enterprise agreements continue in force for the terms of the agreements, but subject to this clause.

(2) The MSB enterprise agreements apply to the staff of Port Corporations or the Waterways Authority as follows:

(a) the provisions of the agreements applying to staff employed within the MSB Hunter Ports Authority apply to the staff of the Newcastle Port Corporation,

(b) the provisions of the agreements applying to staff employed within the MSB Illawarra Ports Authority apply to the staff of the Port Kembla Port Corporation,

(c) the provisions of the agreements applying to staff employed within the MSB Sydney Ports Authority apply to the staff of the Sydney Ports Corporation,

(d) the provisions of the agreements applying to staff employed within the MSB Waterways Authority apply to the staff of the Waterways Authority,

(e) the agreements so apply to the staff of a Port Corporation or Waterways Authority transferred under this Schedule or employed by the Port Corporation or Waterways Authority during the term of the agreement.

(3) The MSB enterprise agreements apply to the marine administration Department as follows:

(a) the provisions of the agreements applying to a member of staff of the MSB who is transferred under this Schedule to that Department apply to that member of staff,

(b) the provisions so apply only while the person remains a member of the staff of that Department (whether or not the person is appointed to another position on that staff),

(c) the agreements do not apply to any other staff of that Department.

Nothing in this subclause prevents a member of staff who is so transferred being employed on the same conditions as the other members of staff of that Department if those conditions are no less favourable than the conditions applicable under the agreements.

(4) The Port Corporations, the Waterways Authority and the Public Employment Industrial Relations Authority (and their successors) are, for the purposes of this clause, taken to be parties to the MSB enterprise agreements.

6 Preservation of remuneration and other conditions of employment on transfer from MSB

Except as otherwise provided by this Schedule and the regulations, the terms and conditions on which former MSB staff become employed on being transferred under this Schedule (including as to remuneration and duration of employment) are those on which they were employed by the MSB immediately before its dissolution. This clause does not affect anything duly done after the dissolution of the MSB with respect to the employment of the former MSB staff.

7 Preservation of leave and other entitlements for previous service of MSB staff and mobility entitlements of former MSB staff for future service with one or more new employers

(1) Continuous service of former MSB staff with the MSB and with one or more new employers is to be taken, for all purposes, as service with their current new employer.

(2) This clause applies, without limiting its operation, for the purpose of the accrual of leave with the new employer and for the purpose of any entitlements to redundancy payments from the current new employer.

(3) In particular, former MSB staff retain, on transfer under this Schedule (or on subsequent transfer) to a new employer, any rights to annual leave, long service leave and sick leave accrued or accruing in their previous employment with the MSB or a new employer.

(4) A person's entitlement to any such leave is to be calculated:

(a) for such part of any period during which that leave accrued or was accruing as occurred before the day of transfer to the new employer--at the rate for the time being applicable to the person before that day (as an employee of the MSB or of the former new employer), and

(b) for such part of the period as occurred after the day of transfer to the current employer--at the rate for the time being applicable to the person after that day (as an employee of the current new employer).

(5) For the purposes of this clause, a
"new employer" is any Port Corporation, the Waterways Authority and the marine administration Department.

8 Applications for transfers by former MSB staff after dissolution of MSB

(1) This clause applies, in the period of 3 years after the dissolution of the MSB, to the filling of any vacant position in a Port Corporation or the Waterways Authority if the applicants eligible to apply for the vacancy are limited to the staff of that Port Corporation or the Waterways Authority, as the case may be.

(2) Any former MSB staff who are transferred under this Schedule are eligible to apply for a vacancy to which this clause applies as if they were members of the staff of the relevant Port Corporation or the Waterways Authority.

(3) This clause does not apply to former MSB staff who are no longer employed by a Port Corporation or by the Waterways Authority or in the Public Service.

Note : Entitlements to superannuation for former MSB staff are preserved by amendments made in Schedule 4 that declare the Port Corporations to be employers for the purposes of the State's superannuation schemes.

9 No payment out on transfer or dual benefits

(1) This clause applies to a person who becomes, because of this Schedule, a member of the staff of a Port Corporation, a member of the staff of the Waterways Authority or an officer of the Public Service.

(2) A person to whom this clause applies is not entitled to receive any payment or other benefit merely because the person ceases to be a member of the staff of the MSB.

(3) A person to whom this clause applies is not entitled to claim, both under this Act and under any other Act, dual benefits of the same kind for the same period of service.