The Public Sector Employment and Management Act 2002 (the Act) will commence in two stages. Stage One implementation commences with effect from 9 September 2002.

Stage One involves the commencement of all provisions of the Act with the exception of the following:

• Part 2.4 Departmental Temporary Employees (ss 27-31);
• Part 2.6 Casual employees (ss 38-39);
• Part 2.7 Management of conduct and performance (ss 40-53);
• s. 86 Temporary staff transfers (secondments);
• s. 88 Temporary assignment of public sector staff to other agencies; and
• s. 100 Cross Agency employment.

The abovementioned provisions require guidelines to be developed and negotiated with both agencies and unions. These provisions form Stage Two.

Until the commencement of Stage Two, the following Public Sector Management Act 1988 provisions will still operate and have effect:

• Departmental temporary employees (ss 38 - 38A); and
• Discipline and the conduct of officers in the Public Service (Part 5).

Stage Two implementation will commence by the end of 2002.

A summary document detailing the areas of change for Stage One is attached for your information.

The Public Sector Management Office will be presenting four half-day briefing sessions on Stage One of the Act, namely Changes to appointments and terminations; SES Amendments; and Changes to Public Sector Appeals. The sessions will be held on 3rd and 4th September 2002 in the State Reception Room, Level 41, Governor Macquarie Tower, 1 Farrer Place, Sydney.

An invitation is extended to officers of organisations to attend the briefing sessions. Because of space limitation, only two appropriate representatives per organisation may be nominated. Please note that each session is restricted to representatives of those organisations as listed in Attachment 1.

The electronic versions of the Personnel Handbook and the Senior Executive Service Guidelines will be updated for Stage One. These documents will be available to examine on the Premier's Department website at www.dpc.nsw.gov.au from 26 August 2002.

I am aware organisations may have specific questions about Stage One of the Act. The briefing sessions on Stage One will address commonly asked questions raised in advance by organisations. If you have any questions on Stage One you may submit them by email to [email protected]

You may nominate to attend the briefing sessions and submit any questions on Stage One by completing the attached form and returning by facsimile to Raymond Ng on facsimile number 9228 4056. Alternatively you may submit nominations for the briefings on Stage One by email to [email protected].

All nominations and questions are to be submitted by 28 August 2002.

Any enquiries regarding the briefing session should be directed to Raymond Ng on telephone number 9228 5176.

Peter L.D. Loxton
Acting Director-General

Issued (Branch): Public Sector Management Office
Contact: Raymond Ng
Email: [email protected]
Telephone no: 9228 5176 Facsimile: 9228 4056
File no: PSM/003745 Part 6
Date: 16 August 2002
This circular has not superseded any other Memorandum/Circular
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Superseded by C2002-52

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SUMMARY OF AREAS OF CHANGE WITH STAGE ONE - PUBLIC SECTOR EMPLOYMENT AND MANAGEMENT ACT 2002 - 9 SEPTEMBER 2002 COMMENCEMENT

GOVERNOR NO LONGER INVOLVED IN THE APPOINTMENT, CONFIRMATION OF APPOINTMENT, ANNULMENT and SOME TERMINATIONS OF PUBLIC SERVICE STAFF - PUBLIC SERVICE DEPARTMENTS ONLY

The following appointment decisions, that under the Public Sector Management Act 1988 (PSM Act 1988) involved the Governor, are to be made solely by the Department Head:

• Appointment to a vacant position [section 17(1)].
• Appointment on probation [section 23(1)].
• Confirmation of an appointment [section 23(4)(a)].
• Annulment of an appointment on probation [section 23(4)(b)].

These changes apply only to Public Service Departments. They are contained in Chapter 2 of the Public Sector Employment and Management Act 2002 (the Act). They have been reflected in Chapter 2 (Recruitment, Selection and Appointment) of the Personnel Handbook* in both the commentary and Sample Documents. In relation to these decisions, there is no longer any need to prepare Executive Minutes for the Governor or to have the decisions published in the Government Gazette. It is appropriate that the appointment decisions under the Act, now made by the Department Head, be reflected in an Instrument - examples are contained in Appendix E to Chapter 2 of the Personnel Handbook.

The PSEM Act 2002 [Schedule 4, Clause 6(3)] provides that if procedures for the filling of a vacancy or the appointment to a position in the Public Service had commenced under the PSM Act 1988, from 9 September 2002 the procedures must be completed under the Act. Procedures include, appointment on probation, appointment and confirmation or annulment of appointment. The 2002 savings and transitional amendments to the Public Sector Management (General) Regulation 1996, further provides that the Department Head may formally appoint a person to a position even though the selection process occurred before 9 September 2002.

If a person was appointed to a position on probation by the Governor under the PSM Act 1988, the 2002 savings and transitional amendments to the Public Sector Management (General) Regulation 1996, allows the Department Head to confirm the appointment under the Act.

The following terminations decisions, that under the PSM Act 1988 involved the Governor, are to be made solely by the Department Head:

• Incapable officer may be retired [section 25].
• Not satisfying permanent residency requirement [section.54(2)].
• Excess officers - used for voluntary redundancies [section 56(2)].

The Governor continues to be involved in any dismissal under the Crown power to dispense with a person's services - section 60. The Governor continues to be involved in any discipline terminations whilst Part 5, Discipline of the PSM Act 1988 continues to operate and have effect. When Part 2.7, Conduct and Performance of the Act commences there is no involvement of the Governor in discipline terminations. The termination changes have been reflected in Chapter 4, Leaving Public Service Employment the Personnel Handbook.

• All references to the Personnel Handbook are to the amended version reflecting Stage One of the Act, that is to be available on the Internet from 26 August 2002 on the Premier's Department website: www.dpc.nsw.gov.au

OTHER AMENDMENTS - PUBLIC SERVICE DEPARTMENTS ONLY 
Delegations by Department Heads - under the PSM Act 1988 these delegations could only be to staff of the Department. Section 15 of the Act allows a Department Head to delegate any of his/her functions to a member of staff of the Department or any other Department.

OTHER AMENDMENTS - ALL PUBLIC SECTOR AGENCIES
Employees Contesting State elections or Re-appointment of employees resigning to contest Commonwealth elections - provisions were previously in 1916 and 1943 Acts. Section 102 of the Act provides for leave of absence for public sector employees who contest State elections and Section 103 of the Act provides for public sector employees who resign to contest Federal elections to be re-appointed if they are not elected.

STAFF MOBILITY - ALL PUBLIC SECTOR AGENCIES
The PSM Act 1988 contained provisions dealing with transfers within the Public Service (section 50) and elsewhere in relation to the public sector generally (sections 100A-100C and Schedule 5A - mobility). The Act in Part 3.2 contain in one Part, all the transfer/mobility provisions that apply across the public sector. There are no provisions applying just to Public Service Departments.

As advised, sections 86 (temporary staff transfers) and 88 (temporary assignment of public sector staff to other agencies) do not commence as part of Stage 1.

The transfer provisions from the PSM Act 1988 have been incorporated into section 87 of the Act. All transfers require consultation with the member of staff affected. The new provisions commencing as part of Stage 1, have been reflected in Chapter 3 (Movement between NSW Government agencies) of the Personnel Handbook. Section 87 applies to State Owned Corporations.

The mobility of entitlements provisions are now contained in Part 3.2, Division 2, Cross-public sector leave arrangements. These provisions do not apply to State Owned Corporations.

The mobility changes have been reflected in Chapter 3, Movement Between NSW Government Agencies, of the Personnel Handbook. 

GOODS AND SERVICES - ALL PUBLIC SECTOR AGENCIES
Chapter 7 of the Act contains the provisions establishing the State Contracts Control Board. The Board was previously established under a Regulation. The rest of the Chapter replicates the provisions from the PSM Act 1988 in relation to competitive neutrality in tendering.

TRANSPORT APPEAL BOARDS - STATE TRANSIT AUTHORITY AND STATE RAIL AUTHORITY
The Act in Schedule 6 makes a number of amendments to the provisions of the Transport Appeal Boards Act 1980. These amendments also commenced on 9 September 2002. The 2 agencies affected are aware of the amendments.

GOVERNMENT AND RELATED EMPLOYEES APPEAL TRIBUNAL - ALL PUBLIC SECTOR AGENCIES
The Act in Schedule 5 makes a number of amendments to the provisions of the Government and Related Employees Appeal Tribunal Act 1980.

These amendments also commenced on 9 September 2002. All the references below are to Items [ ] in Schedule 5. Agencies will need to consider the detail of each change that is only outlined in this summary. The detail of the changes will be addressed in the Briefing Sessions.

The main changes in relation to discipline appeals are as follows:

• Conciliation required before disciplinary appeals. [20]
• Exempt certain classes of employees from bringing a discipline appeals. The exemptions are similar to those applying to unfair dismissals under the Industrial Relations Act 1996. The classes are employees engaged for a specified period or specified task for less than 6 months; casuals engaged for a short period and probationary employees serving less than 3 months probation or longer is the period is reasonable having regard to certain matters and the statutory provisions relating to the probationary appointment. [17]
• Making clear that a disciplinary appeal may be brought against a dismissal under the Crown power to dispense with services of an employee. [16]
• Making clear a disciplinary appeal may be brought against a dismissal regardless of whether it was made for disciplinary reasons or if it was carried out by someone not at law the employer of the person, such as the Governor. [16]
• A disciplinary decision may be carried into effect at any time, whether an appeal may or has been made. [18]
• Making clear that the Tribunal has the discretion in relation to a breach of procedural fairness to either not allow the appeal solely on that basis and decide the matter on its merits or to quash the decision and decide at what stage the employer should recommence the disciplinary process. [22]
• Tribunal to have the power or order certain payments if an appeal allowed but not to order compensation in lieu of reinstatement. [23]

The main changes in relation to promotion appeals are as follows:

• Tribunal to have the power to dismiss an appeal if it considers the appeal to be frivolous or vexatious or if of the opinion the appellant has not put forward an arguable case. Prior to exercising these powers the Tribunal is to give the appellant an opportunity to respond to the proposed dismissal. [22]
• An appeal to lapse if the position no longer exists or appointment against which the appeal is made lapses. [21]

PUBLIC SECTOR EXECUTIVES - ALL PUBLIC SECTOR AGENCIES
Part 3.1 of the Act includes provisions that define the composition of both the Chief Executive Service (s.64) and the Senior Executive Service (s.65) and also govern their conditions of employment and remuneration.

Senior Executive Service (SES) positions, apart from those statutory positions listed in Part 3 of Schedule 2, will no longer be proclaimed by the Governor and listed in a schedule to the Act. The Act [s.65(1a)] says the SES comprises persons holding positions determined the Minister (Premier).

A list of such positions must be made publicly available [s. 65(2)] on the Premier's Department website (www.dpc.nsw.gov.au). This list will form an appendix to the SES Guidelines, an amended version of which will be available on the Internet from 26 August 2002. Recruitment to the SES can be made only to those positions listed either in Part 3 of Schedule 2 of the Act or in the appendix to the SES Guidelines.

The Governor will no longer have a role in the appointment of Department Heads and Acting Department Heads. This will become the responsibility of the Minister (Premier) (ss. 12, 13).

The Governor will no longer have a role in the appointment of SES to the Public Service. This will become the responsibility of the Department Head [s.17(1)].

The Governor will no longer have a role in the removal and unattachment of all executives. Under s.71(1), this power is given to the Minister (Premier) in cases involving Chief Executive Officers and to the responsible Department Head or Public Authority in cases involving SES officers. This section also provides for removal at any time for any or no reason and without notice.

Appointment, removal and unattachment decisions involving executives must be reflected in appropriate Instruments. The process to be followed is outlined in the revised SES Guidelines (appointments in Chapter 3 and removal and unattachment in Chapter 7). Examples of appropriate Instruments are provided in the appendices to the SES Guidelines.

Publication in a Special Government Gazette of executive appointments, removals and unattachments within the Public Service is no longer required under the Act.

A new provision (s.68) authorises the Director-General, Premier's Department, to approve the re-appointment of an executive officer before the expiry of the officer's term of office. It is expected that this provision will be exercised in exceptional circumstances only.

Attachment 1