New South Wales: Government Sector Employment Act 2013 (NSW)

Government Sector Employment Act 2013 No 40 An Act relating to employment in the government sector. Part 1 Preliminary 1 Name of Act This Act is the Government Sector Employment Act 2013. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— Department means a Department of the Public Service listed in Part 1 of Schedule 1. financial year means a period of 12 months starting on 1 July. function includes a power, authority or duty, and exercise a function includes perform a duty. government sector comprises all of the following (other than any service in which persons excluded from this Act by section 5 are employed)— (a) the Public Service, (b) the Teaching Service, (c) the NSW Police Force, (d) the NSW Health Service, (e) the Transport Service of New South Wales, (f) any other service of the Crown (including the service of any NSW government agency), (g) the service of any other person or body constituted by or under an Act or exercising public functions (such as a State owned corporation), being a person or body that is prescribed by the regulations for the purposes of this definition. government sector agency means— (a) in the case of the Public Service—a Public Service agency, or (b) in the case of any other service in the government sector—the group of staff comprising the service or (subject to the regulations) any separate group of that staff, and the head of a government sector agency means the head of the Public Service agency (where paragraph (a) applies) or the person who exercises employer functions in relation to the relevant staff (where paragraph (b) applies). government sector employment rules means rules made by the Commissioner under section 12. head of a Public Service agency means— (a) in the case of a Department—the Secretary of the Department, or (b) in any other case—the head of the agency listed in Part 2 or 3 of Schedule 1. Public Service means the Public Service of New South Wales referred to in Part 4. Public Service agency means— (a) a Department, or (b) a Public Service executive agency (being an agency related to a Department), or (c) a separate Public Service agency. Public Service Commission Advisory Board (or Advisory Board) means the Public Service Commission Advisory Board established under Division 2 of Part 3. Public Service Commissioner (or Commissioner) means the Public Service Commissioner appointed under Division 1 of Part 3. Public Service employee means a person employed in ongoing, term, temporary, casual or other employment, or on secondment, in a Public Service agency (and employee of a Public Service agency means a person so employed, or on secondment, in the Public Service agency). Public Service executive agency related to a Department means a Public Service agency listed in Part 2 of Schedule 1. Public Service senior executive means the Secretary of a Department and any other Public Service employee to whom Division 4 of Part 4 applies. resignation includes retirement. role of an employee means the duties and responsibilities of the employee. senior executive bands determination means a determination made by the Minister under section 35. separate Public Service agency means a Public Service agency listed in Part 3 of Schedule 1. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Objects of Act The objects of this Act are as follows— (a) to develop a modern high performing government sector— (i) that is efficient and effective in serving the Government in the delivery of services to the people of New South Wales, and (ii) that has effective and fair employment arrangements, management and leadership, (b) to establish the Public Service as the general service within the government sector, (c) to provide transparent governance and employment arrangements for the Public Service, including providing for the employer functions and responsibilities of heads of Public Service agencies, (d) to establish an ethical framework for the government sector comprising core values and principles that guide their implementation, (e) to make provision for the objectives, functions and responsibilities of the Public Service Commissioner. 5 Persons to whom Act does not apply (1) This Act does not apply to any of the following— (a) a judicial officer within the meaning of the Judicial Officers Act 1986, (b) an officer or employee of either House of Parliament or any officer or employee under the separate control of the President or Speaker, or under their joint control, (c) persons employed under the Members of Parliament Staff Act 2013, (d) staff of the Independent Commission Against Corruption employed under the Independent Commission Against Corruption Act 1988, (e) staff of the Audit Office employed under the Government Sector Audit Act 1983, (f) staff of the Judicial Commission of New South Wales employed under the Judicial Officers Act 1986. (2) However, provisions of this Act apply to the extent that this Act expressly so provides. Part 2 Ethical framework for the government sector 6 Objective of Part This Part— (a) recognises the role of the government sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day, and (b) establishes an ethical framework for a merit-based, apolitical and professional government sector that implements the decisions of the Government of the day. 7 Government sector core values The core values for the government sector and the principles that guide their implementation are as follows— Integrity (a) Consider people equally without prejudice or favour. (b) Act professionally with honesty, consistency and impartiality. (c) Take responsibility for situations, showing leadership and courage. (d) Place the public interest over personal interest. Trust (a) Appreciate difference and welcome learning from others. (b) Build relationships based on mutual respect. (c) Uphold the law, institutions of government and democratic principles. (d) Communicate intentions clearly and invite teamwork and collaboration. (e) Provide apolitical and non-partisan advice. Service (a) Provide services fairly with a focus on customer needs. (b) Be flexible, innovative and reliable in service delivery. (c) Engage with the not-for-profit and business sectors to develop and implement service solutions. (d) Focus on quality while maximising service delivery. Accountability (a) Recruit and promote employees on merit. (b) Take responsibility for decisions and actions. (c) Provide transparency to enable public scrutiny. (d) Observe standards for safety. (e) Be fiscally responsible and focus on efficient, effective and prudent use of resources. 8 General provisions (1) The Public Service Commissioner has the function of promoting and maintaining the government sector core values. (2) There is no hierarchy among the core values and each is of equal importance. (3) Nothing in this Part gives rise to, or can be taken into account in, any civil cause of action. Part 2A Code of ethics and conduct 8A Code of ethics and conduct (1) The Commissioner may, by order published in the Gazette, adopt a code of ethics and conduct. (2) Before adopting a code of ethics and conduct, the Commissioner must consult the industrial organisations that represent government sector employees and the peak body of those industrial organisations about the proposed code or ensure those industrial organisations and the peak body are consulted. (3) Government sector employees must comply with a code adopted under this section. Note— A contravention of a code adopted under this section, being an instrument under this Act, may be misconduct for the purposes of section 69. (4) In this section— Government sector employee means a person employed in ongoing, term, temporary, casual or other employment, or on secondment, in a government sector agency. industrial organisation means— (a) an industrial organisation of employees within the meaning of the Industrial Relations Act 1996, or (b) an association of employees registered as an organisation under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth. Part 3 Public Service Commissioner and Advisory Board Division 1 Public Service Commissioner 9 Appointment of Commissioner etc (1) The Governor may appoint a Public Service Commissioner. (2) A person may only be appointed as Commissioner if the Advisory Board has recommended to the Premier that the person be appointed as the Commissioner. (3) The Governor may remove the Commissioner from office for incapacity, incompetence or misbehaviour. (4) The Commissioner may only be removed from office— (a) following an independent review of the performance or conduct of the Commissioner, and (b) if the Advisory Board has recommended to the Premier that the Commissioner be removed from office. (5) Any such independent review may be initiated— (a) by the Advisory Board at the request of the Premier, or (b) by the Premier. (6) An independent review of the performance or conduct of the Commissioner is not required under this section before the Commissioner can be removed from office if the performance or conduct giving rise to the Advisory Board's recommendation for removal has been the subject of— (a) an inquiry and report by the Independent Commission Against Corruption, a Royal Commission, a Special Commission of Inquiry or other body constituted by a judicial officer, or (b) a finding by a court. (7) The Premier is, if the Commissioner is removed from office, to cause the reasons for the removal to be tabled in both Houses of Parliament. (8) The Commissioner must not be present during any deliberation of the Advisory Board on any matter that relates to the making of a recommendation under this section. (9) Schedule 2 contains provisions relating to the Commissioner. 10 Principal objectives of Commissioner The principal objectives of the Commissioner are as follows— (a) to promote and maintain the highest levels of integrity, impartiality, accountability and leadership across the government sector, (b) to ensure that government sector recruitment and selection processes comply with the merit principle and adhere to professional standards, (c) to foster a public service culture in which integrity, trust, service and accountability are strongly valued, (d) to build public confidence in the government sector. 11 General functions of Commissioner (1) The Commissioner has the function of leading the strategic development and management of the government sector workforce in relation to the following— (a) recruitment, particularly compliance with the requirements relating to appointment and promotion on merit, (b) equity and diversity, including strategies to ensure the government sector reflects the diversity of the wider community, (c) general conduct and compliance with ethical practices, (d) learning and development, (e) executive employment arrangements. (2) The Commissioner has and may exercise such other functions as are conferred or imposed on the Commissioner by or under this or any other Act. Note— Other functions of the Commissioner include promoting and maintaining the government sector core values (see section 7); making government sector employment rules under section 12; giving directions to government sector agencies under section 13; assigning a senior executive to a role in a Public Service agency under section 38; reporting on workforce diversity under section 63 and conducting inquiries under section 83. (3) The Commissioner is to exercise his or her functions in accordance with the general policies and strategic directions determined by the Public Service Commission Advisory Board. 12 Government sector employment rules (1) The Commissioner may make government sector employment rules, not inconsistent with this Act and the regulations, on any matter for which any such rules are authorised to be made by or under this or any other Act. (2) The Commissioner may amend or repeal a government sector employment rule by a further rule. (3) Government sector employment rules (including any amendment or repeal) are to be published on the NSW legislation website and take effect on the date they are so published or on any later specified date. 13 Directions by Commissioner to heads of government sector agencies (1) The Commissioner may, for the purposes of exercising his or her functions or ensuring compliance with this Act, the regulations and the government sector employment rules, give a direction in writing to the head of a government sector agency on a specific matter in relation to the employees of that agency. (1A) If any such direction is given to the Secretary of a Department, the direction may extend to the Public Service senior executives employed in a Public Service executive agency related to the Department. (2) Before giving a direction the Commissioner is to consult the head of the government sector agency to whom the direction is to be given and such other persons affected by the direction as the Commissioner considers appropriate. (3) The head of the government sector agency to whom a direction under this section is given must comply with the direction. (4) However, the head of a separate Public Service agency is not required to comply with the direction if the head considers that the direction is not consistent with the independent exercise of statutory functions by the head and the agency. The head is required to report to any Parliamentary Committee that oversees the exercise of those functions on the reasons for any non-compliance with the substantive employment outcomes sought by the direction. (5) A direction under this section— (a) must not be inconsistent with this Act (including the regulations and the government sector employment rules) or with the principal objectives of the Commissioner referred to in this Division, and (b) must be made publicly available by the Commissioner as soon as practicable after it is given. 14 Commissioner to report to Premier (1) The Commissioner is to report to the Premier in connection with the exercise of the Commissioner's functions but is not subject to the control and direction of the Premier in the exercise of those functions. (2) This section does not limit any other provisions of this Act relating to the exercise of the functions of the Premier or the Commissioner. 15 Annual report of the Commissioner (1) The Commissioner must, as soon as practicable after 30 June in each financial year, give to the Premier a report on the Commissioner's work and activities for the financial year. (2) (Repealed) (3) The Premier is to table any report under this section, or cause it to be tabled, in both Houses of Parliament as soon as practicable after it is received by the Premier. 16 Provision of reports and information by agencies (1) The Commissioner may require the head of a government sector agency to provide the Commissioner with a report on such matters relating to the employees of the agency, or to the employment policies and practices of the agency, as the Commissioner requires. (1A) If the Secretary of a Department is required to provide any such report, the requirement may extend to the Public Service senior executives employed in a Public Service executive agency related to the Department. (2) The Commissioner may also require the head of a government sector agency to provide the Commissioner with information collected or held by the agency in dealing with matters relating to government sector employees. (3) The head of the government sector agency concerned must comply with a requirement under this section within such time and in such manner as the Commissioner directs. (4) Any law relating to the protection of personal information (within the meaning of the Privacy and Personal Information Protection Act 1998) does not operate to prevent the furnishing of information, or affect a duty to furnish information, under this section. (5) In this section, government sector agency includes any person or body, constituted by or under an Act, that is prescribed by the regulations for the purposes of this section, and the head of any such prescribed agency means the person prescribed by the regulations in relation to that agency. 17 Miscellaneous provisions relating to Commissioner (1) Persons may be employed in the Public Service to enable the Commissioner to exercise his or her functions. Those persons may be referred to as the staff of the Commissioner or as employees of the Public Service agency in which they are employed. (2) The Commissioner may delegate the exercise of any function of the Commissioner (other than this power of delegation) to— (a) the head of any government sector agency or an employee of any government sector agency, or (b) any person, or any class of persons, authorised for the purposes of this section by the regulations. (3) The Commissioner must arrange for information about the Commissioner's functions and the work of the Commissioner to be published on a NSW Government website. (4) The government sector employment rules may deal with any requirement under this Act for the approval or concurrence of the Commissioner, or for consultation with the Commissioner, and may provide for the circumstances in which the approval, concurrence or consultation is not required. (5) The Commissioner is, to the extent that it is reasonable and practicable to do so, to remove any personal information from any report or other document prepared by the Commissioner under this Part that is, or is to be, publicly available. In this subsection, personal information means information about an individual whose identity is apparent, or can reasonably be ascertained, from the information. (6) The regulations may make provision with respect to the exercise of the functions of the Commissioner. Division 2 Public Service Commission Advisory Board 18 Establishment and members of Advisory Board (1) There is to be a Public Service Commission Advisory Board. (2) The Advisory Board is to consist of the following members— (a) a person appointed by the Premier as the Chairperson of the Advisory Board, (b) 4 other persons appointed by the Premier, (c) the Commissioner or a senior member of the staff of the Commissioner nominated by the Commissioner, (d) the Secretary of the Premier's Department or a senior employee of that Department nominated by the Secretary, (e) the Secretary of the Treasury or a senior employee of the Treasury nominated by the Secretary. (3) The members appointed by the Premier are to be persons who together have expertise in human resources management, probity and accountability, strategic planning, budget and performance management and service delivery in the public, private, tertiary and not-for-profit sectors. (4) Schedule 3 contains provisions relating to the members and procedure of the Advisory Board. 19 Functions of Advisory Board (1) The Advisory Board has the following functions— (a) to determine general policies and strategic directions in relation to the functions of the Commissioner, (b) to provide the Premier, either at the request of the Premier or on its own initiative, with advice on any matter relating to the management and performance of the government sector. (2) The Advisory Board has such other functions as are conferred or imposed on it by or under this or any other Act. Part 4 The Public Service Division 1 General 20 The Public Service The Public Service of New South Wales consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown. Note— See section 47A of the Constitution Act 1902. 21 Employment in the Public Service (1) The Government of New South Wales may employ persons in the Public Service in accordance with this and any other Act or law. (2) Persons may be so employed for the following purposes— (a) to enable Ministers to exercise their functions, (b) to enable statutory bodies or statutory officers to exercise their functions, (c) for any other purpose. (3) This section does not affect any other means (statutory or otherwise) by which a person may be employed in the service of the Crown. Note— Other ways in which persons are employed in the service of the Crown include employment in the Teaching Service, the NSW Health Service or the NSW Police Force—see definition of government sector in section 3. 22 Departments and other Public Service agencies (1) Public Service employees are employed in— (a) Departments (listed in Part 1 of Schedule 1), or (b) Public Service executive agencies related to Departments (listed in Part 2 of Schedule 1), or (c) separate Public Service agencies (listed in Part 3 of Schedule 1). (2) A Department or other Public Service agency may comprise such branches or other groups of employees as the Secretary of the Department or the head of the other agency determines from time to time. (3) Part 7 of the Constitution Act 1902 authorises the amendment of Schedule 1 by an administrative arrangements order under that Part. Any such order may also amend Schedule 1 to specify, change or remove the Department to which a Public Service agency is related. Note— An administrative arrangements order may create, abolish or change the name of Departments and other Public Service agencies and transfer employees between agencies. Division 2 Secretaries of Departments 23 Secretaries of Departments (1) The head of a Department is the Secretary of the Department. (2) The office of Secretary of a Department is established by this section. (3) If a Department is abolished or its name is changed, the office of Secretary of the Department is taken to be abolished or its name correspondingly changed by the operation of this section. (4) Appointments to the office of Secretary of a Department are to be made by the Minister. Note— The Minister may delegate the function of appointing Secretaries—see section 81. (5) The appointment of a person to the office of Secretary of a Department is to be made by a contract of employment (under Division 4) between that person and the person who makes the appointment. The person so appointed is a Public Service employee who is employed in the Department. (6) The Minister may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government (as referred to in section 26(3)) in relation to the Secretary of a Department. 24 Acting appointments as Secretary of a Department (1) The Minister may appoint a Public Service employee to act as the Secretary of a Department if the office of the Secretary is vacant or if the Secretary is unavailable. (2) A person, while acting as the Secretary of a Department, has all the functions of the Secretary. (3) The Minister may, at any time, terminate an acting appointment. (4) The regulations may make provision with respect to the conditions of employment of a person acting as the Secretary of a Department. 25 Role and responsibilities of Secretaries of Departments (1) The Secretary of a Department is responsible to the Minister or Ministers to whom the Department is responsible for the general conduct and management of the functions and activities of the Department in accordance with the government sector core values under Part 2. Note— Section 50C of the Constitution Act 1902 provides for the designation of the Minister or Ministers to whom a Department is responsible. (2) Any action taken in the exercise of a responsibility under this section is not to be inconsistent with the functions conferred by this Act on a Minister administering this Act or the Public Service Commissioner. Note— The Secretary of a Department is also responsible for workforce diversity under Part 5. (3) The role of a Secretary of a Department includes, but is not limited to, the following— (a) policy adviser—acting as principal official policy adviser to the Minister or Ministers to whom the Secretary is responsible, (b) manager—ensuring the delivery of the Government's policies and programs and collaborating with other agencies across the government sector to achieve the Government's stated outcomes, (c) leader—providing stewardship within the Department and, in partnership with other Secretaries and the Public Service Commissioner, across the government sector, (d) employer—exercising the employer functions of Government under this Act, Note— See section 26. (e) other roles conferred or imposed on the Secretary by or under this or another Act or another law. (4) Without limiting subsection (1), the responsibilities of a Secretary of a Department also include the following— (a) to manage the affairs of the Department efficiently, effectively and ethically, (b) to provide frank and fearless advice to the Minister or Ministers to whom the Secretary is responsible about matters relating to the Department and its related agencies, (c) to implement measures to ensure the Department complies with the law, (d) to provide leadership, strategic direction and a focus on results for the Department, (e) to maintain clear lines of communication with the heads of the Department's related agencies, (f) to engage with stakeholders, particularly in relation to the core activities of the Department, (g) to ensure that the Department has a strong strategic policy capability that can consider complex, whole-of-government issues, (h) to assist Ministers in fulfilling Ministerial accountability obligations to Parliament in providing factual information in relation to the operation and administration of the Department, (i) to accept and take other responsibilities conferred or imposed on the Secretary by or under this or another Act or another law. 26 Employer functions of Secretaries of Departments (1) The Secretary of a Department may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the following— (a) the Public Service senior executives assigned to roles in the Department, (b) the other employees of the Department, (c) the head of each Public Service executive agency related to the Department unless— (i) the office of the head is a statutory office established by another Act, or (ii) the head is the Secretary, or (iii) Schedule 1 provides that some other person exercises the employer functions in relation to the head, (d) the Public Service senior executives assigned to roles in each Public Service executive agency related to the Department. (2) (Repealed) (3) The employer functions of the Government are all the functions of an employer in respect of employees, including (without limitation) the power to employ persons, to assign them to roles and to terminate their employment. (4) In the exercise of the employer functions referred to in subsection (1), a Secretary of a Department is not subject to the direction or control of a Minister. Note— Division 6 confers on the Industrial Relations Secretary employer functions relating to the determination of the conditions of employment of, and other industrial matters relating to, Public Service employees. 27 Delegation by Secretaries of Departments (1) The Secretary of a Department may delegate to any employee of the Department or of any other Public Service agency or to any statutory officer— (a) any of the functions of the Secretary under this Act (other than this power of delegation), and (b) any employer functions under any other Act or law that the Secretary exercises on behalf of the Government of New South Wales in relation to Public Service employees. (2) If— (a) a function of the Secretary of a Department is delegated to an employee or officer in accordance with subsection (1), and (b) the instrument of delegation authorises the sub-delegation of the function, then, subject to any conditions to which the delegation is subject, the employee or officer may sub-delegate the function to another employee of the Department or of any other Public Service agency or to a statutory officer. (3) For the purposes of this section, the functions of the Secretary of a Department include any functions delegated to the Secretary under this Act. (4) The government sector employment rules may limit a power of delegation or sub-delegation under this section. Division 3 Heads of other Public Service agencies 28 Heads of agencies other than Departments (1) The head of a Public Service agency (other than a Department) is the holder of the office specified in Part 2 or 3 of Schedule 1 in relation to the agency concerned. (2) The Secretary of a Department may be specified as the head of any other Public Service agency and the same person may be specified as the head of more than one agency. (3) An administrative arrangements order under Part 7 of the Constitution Act 1902 may amend Schedule 1 to specify or change the head of a Public Service agency (other than a Department). (4) The office of head of a Public Service agency (other than a Department) is established by this section, unless it is a statutory office created by another provision of this Act or by any other Act. Note— The statutory offices established by another provision of this Act or by any other Act are identified in Part 2 or 3 of Schedule 1. Accordingly, the following provisions of this section do not apply to any such head of an agency. (5) If the description of an office established by this section is omitted or changed by an amendment of Schedule 1, the office is taken to be abolished or its name correspondingly changed by the operation of this section. (6) Appointments to an office of head established by this section are, subject to subsection (6A), to be made— (a) in the case of a Public Service executive agency related to a Department—by the Secretary of the Department, or (b) in the case of a separate Public Service agency—by the Minister. (6A) If Schedule 1 provides that some other person exercises the employer functions of the Government of New South Wales in relation to the head— (a) appointments to the office of the head are to be made by that other person, and (b) that other person may delegate to an authorised person any of those employer functions (other than the power to appoint a person to the office of head of the agency concerned or to terminate the office holder's employment). For the purposes of this subsection, authorised person means the holder of a statutory office, a person employed in the government sector or a person authorised by the regulations. (7) The appointment of a person to an office of head established by this section is to be made by a contract of employment (under Division 4) between that person and the person who makes the appointment. The person so appointed is a Public Service employee who is employed in the Public Service agency concerned. 29 Acting appointments as head of agency (other than Department) (1) The person authorised to appoint the head of a Public Service agency (other than a Department) may appoint a Public Service employee to act as the head of the agency if the office of the head is vacant or if the head is unavailable (and no other person has been duly appointed to act as a statutory officer who is the head of that office). (2) A person, while acting as the head of any such Public Service agency, has all the functions of the head. (3) An acting appointment may be terminated, at any time, by the person who made the acting appointment. (4) The regulations may make provision with respect to the conditions of employment of a person acting as the head of any such Public Service agency. 30 General responsibility of heads of agencies (other than Departments) (1) The head of a Public Service agency (other than a Department) is responsible to the Minister or Ministers to whom the agency is responsible for the general conduct and management of the functions and activities of the agency in accordance with government sector core values under Part 2. (2) Any action taken in the exercise of a responsibility under this section is not to be inconsistent with the functions conferred by this Act on a Minister administering this Act or the Public Service Commissioner. Note— The head of any such agency is also responsible for workforce diversity under Part 5. 31 Employer functions of heads of agencies (other than Departments) (1) The head of a Public Service agency (other than a Department) may, subject to this and any other Act or law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the employees of the agency (other than Public Service senior executives of an agency that is related to a Department). (2) The employer functions of the Government are all the functions of an employer in respect of employees, including (without limitation) the power to employ persons, to assign their roles and to terminate their employment. (3) In the exercise of the employer functions referred to in subsection (1), a head of a Public Service agency is not subject to the direction or control of a Minister. Note— The Secretary of the relevant Department exercises employer functions in relation to Public Service senior executives of an agency that is related to the Department. Division 6 confers on the Industrial Relations Secretary employer functions relating to the determination of the conditions of employment of, and other industrial matters relating to, Public Service employees. 32 Delegation by heads of Public Service agencies (other than Departments) (1) The head of a Public Service agency (other than a Department) may delegate to any employee of the agency or of any other Public Service agency or to a statutory officer— (a) any of the functions of the head under this Act (other than this power of delegation), and (b) any employer functions under any other Act or law that the head exercises on behalf of the Government of New South Wales in relation to Public Service employees. (2) If— (a) a function of the head of an agency is delegated to an employee or officer in accordance with subsection (1), and (b) the instrument of delegation authorises the sub-delegation of the function, then, subject to any conditions to which the delegation is subject, the employee or officer may sub-delegate the function to another employee of the agency or of any other Public Service agency or to a statutory officer. (3) For the purposes of this section, the functions of the head of an agency include any functions delegated to the head of the agency under this Act. (4) The government sector employment rules may limit a power of delegation or sub-delegation under this section. Division 4 Public Service senior executives 33 Application of Division (1) This Division applies to the following— (a) the Secretary of a Department, (b) the head of any other Public Service agency if the head is an employee of the agency and not a statutory officer, (c) any other employees of a Public Service agency who are employed in a Public Service senior executive band. (2) For the purposes of this Act, the employees to whom this Division applies are Public Service senior executives. (3) The person who is authorised by this Act to exercise the employer functions of the Government of New South Wales in relation to a Public Service senior executive is referred to in this Division as the employer of the executive. 34 Kinds of senior executive employment (1) Employment as a Public Service senior executive may be any one of the following kinds of employment— (a) ongoing employment, (b) term employment. (2) Ongoing employment is employment that continues until the executive resigns or his or her employment is terminated. (3) Term employment is employment for a specified period or for the duration of a specified task (unless the executive sooner resigns or his or her employment is sooner terminated). 35 Minister may determine bands in which senior executives to be employed (1) The Minister may from time to time determine the bands in which Public Service senior executives are to be employed (the senior executive bands determination). (2) The senior executive bands determination may deal with matters related to bands. (3) The Minister may amend or repeal the senior executive bands determination by a further determination. (4) Before making, amending or repealing the senior executive bands determination, the Minister is to obtain the advice of the Commissioner. (5) The senior executive bands determination (including any amendment or repeal) is to be published on the NSW legislation website and takes effect on the date it is so published or on any later specified date. Note— The senior executive bands determination also applies under relevant legislation relating to the employment of Transport Service senior executives, Police Force senior executives and Health Service senior executives. Editorial note— See Government Sector Employment (Senior Executive Bands) Determination 2014. 36 Government sector employment rules relating to senior executives The government sector employment rules may deal with any matter relating to the employment of Public Service senior executives, including (without limitation) the following matters— (a) work level standards for roles in the bands in which those executives are employed, (b) methods of job evaluation for the roles of those executives, (c) capabilities for the roles of those executives, (d) the assignment (including temporary assignment) of those executives to roles, (e) contracts of employment of those executives and their contents. Note— The legislation under which Police Force senior executives, Health Service senior executives and Transport Service senior executives are employed also provides for the making of government sector employment rules under section 12 of this Act relating to the employment of those executives. 37 Employment of senior executives in bands (1) A Public Service senior executive is to be employed in a band determined under the senior executive bands determination that the employer of the executive considers appropriate for the role of the executive. (2) In determining the number of Public Service senior executives and the appropriate band in which they are employed, the employer is to apply the applicable work level standards and have regard to any guidance provided by the Commissioner. 38 Assignment of senior executives (other than heads of agencies) to roles in bands and classifications across government sector (1) In this section— assign to a role includes assign to a different role. Public Service senior executive does not include the Secretary of a Department or the head of any other Public Service agency. (2) A Public Service senior executive may, from time to time, be assigned as follows— (a) to a role in any Public Service agency in the band in which the executive is employed, (b) with the prior written consent of the executive—to a role in any Public Service agency in a lower band to the band in which the executive is employed, (c) with the prior written consent of the executive—to a role in the Public Service agency in which the executive is employed in a classification of work in which Public Service non-executive employees are employed. (2A) To avoid doubt, if a person is assigned to a role— (a) under subsection (2)(b)—the person, on and from the assignment, is employed in the lower band, or (b) under subsection (2)(c)—the person, on and from the assignment, ceases to be a Public Service senior executive and becomes a Public Service non-executive employee. (3) A Public Service senior executive may be assigned to a role by the employer of the executive or by the Commissioner. (4) Public Service senior executives may be assigned to roles to enable the flexible deployment of staff resources and to develop the capabilities of staff. (4A) A Public Service senior executive employed in a Public Service agency may be assigned under this section to a role in another Public Service agency— (a) by an agreement between the current employer of the executive and the person who will, on the assignment, be the employer of the executive, or (b) by the Commissioner. In that case, the executive becomes an employee of the other agency. (5) The Secretary of a Department is not to assign a Public Service senior executive to a role in a Public Service executive agency related to the Department without consulting the head of the agency. (6) The Commissioner is not to assign a Public Service senior executive to a role in a Department or a Public Service executive agency related to a Department without consulting the Secretary of the Department and the head of any such agency. (7) The Commissioner is not to assign a Public Service senior executive to a role in a separate Public Service agency without the agreement of the head of the agency. (7A) A Public Service senior executive may— (a) be transferred by the employer of the executive to the NSW Health Service (with the agreement of the Secretary of the Ministry of Health) and assigned to a role by that Secretary in the band in which the executive is employed, or Note— A Public Service senior executive may not be assigned to the role of chief executive of a local health district or specialty network governed health corporation except with the concurrence of the board of the organisation concerned—see section 121D(11) of the Health Services Act 1997. (b) be transferred by the employer of the executive to the NSW Police Force (with the agreement of the Commissioner of Police) and assigned to a role (other than as a police officer) by the Commissioner of Police in the band in which the executive is employed, or (c) be transferred by the employer of the executive to the Transport Service of New South Wales (with the agreement of the Secretary of the Department of Transport) and assigned to a role by that Secretary in the band in which the executive is employed. (8) A Public Service senior executive is not to be assigned to a different role under subsection (2)(a) or transferred under subsection (7A) unless the executive has been consulted. (9) The remuneration payable to a Public Service senior executive referred to in subsection (8) is not to be reduced because of the assignment to the different role without the prior written consent of the executive. (10) The remuneration payable to the Public Service senior executive assigned under subsection (2)(b) or (c) is to be adjusted, on the commencement of the assignment, to a level appropriate for the lower band or classification of work. 39 Contract of employment of senior executives (1) A Public Service senior executive is to be employed under a written contract of employment signed by the executive and by the employer on behalf of the Government. (2) The government sector employment rules may deal with contracts of employment of Public Service senior executives and their contents. (3) The government sector employment rules may prescribe model contracts of employment and may specify any model provisions that are mandatory and that prevail in the event of any inconsistency with the provisions of a contract of employment entered into after the commencement of those mandatory provisions. (4) Subject to this Act, the government sector employment rules and any direction issued by the Commissioner under this Act, a contract of employment of a Public Service senior executive is to deal with the following matters— (a) the band in which the executive is employed, (b) (Repealed) (c) the duration of the contract if the executive is not employed in ongoing employment, (d) the total remuneration package of the executive (comprising monetary remuneration and employment benefits) and any allowances, (e) performance obligations, and reviews of performance, of the executive, (f) progression in the total remuneration package of the executive based on performance, (g) leave and other conditions of employment of the executive, (h) the compensation for any termination of employment of the executive by the employer (including the period to which the compensation relates), (i) any other matter prescribed by the regulations. (5) The contract of employment of a Public Service senior executive does not limit, and is not terminated or otherwise affected by— (a) the transfer of the executive under section 38(7A) to the NSW Health Service, the NSW Police Force or the Transport Service of New South Wales, or (b) the assignment of the executive to a different role or any other change to the title, place of work or duties of the executive. (6) A contract of employment of a Public Service senior executive may, subject to this section, be varied at any time in accordance with the contract or by further agreement. (7) The regulations may make provision with respect to the compensation (if any) to which a Public Service senior executive whose employment is terminated is entitled under his or her contract of employment. Any such regulation cannot reduce the amount of compensation to which a Public Service senior executive is entitled under a contract of employment entered into before the commencement of the regulation. 40 Remuneration, benefits and allowances for senior executives (1) The remuneration package of a Public Service senior executive must be within the range determined under the Statutory and Other Offices Remuneration Act 1975 for the band in which the executive is employed. (2) The kinds and value of employment benefits and the allowances for a Public Service senior executive are to be determined in accordance with the regulations or (subject to the regulations) by the Commissioner. (3) A Public Service senior executive is only entitled to the remuneration, employment benefits or allowances provided in the executive's contract of employment. (4) For the purposes of this Division, employment benefits for a Public Service senior executive are— (a) contributions by the executive's employer to a superannuation scheme or fund of the executive, and (b) other benefits provided to the executive at the cost of the executive's employer that are of a private nature. (5) For the purposes of this Division, allowances for a Public Service senior executive are allowances paid in money, other than allowances excluded by the government sector employment rules. 41 Termination of employment of senior executives (1) The employer of a Public Service senior executive may terminate the employment of the executive at any time, for any or no stated reason and without notice. Note— The employment of a senior executive may also be terminated for unsatisfactory performance under section 68 or for misconduct under section 69. (2) A Public Service senior executive whose employment is terminated under this section is entitled to such compensation (if any) as may be provided in the contract of employment of the executive (and to no other compensation or entitlement for the termination of employment other than superannuation entitlements). (3) A Public Service senior executive whose employment is so terminated is not to be employed in the public sector during the period specified in the contract of employment to which any such compensation relates unless arrangements have been made for a refund of the proportionate amount of the compensation. (4) The employment of the head of a Public Service agency that is related to a Department may not be terminated under this section by the Secretary of the Department unless the Secretary has consulted the Commissioner. (5) In this section— employment of a former executive in the public sector includes— (a) engagement of the former executive as a consultant or contractor to the employer, and (b) engagement of the former executive through a labour hire arrangement with the employer, and (c) engagement of a company or partnership that provides the services of the former executive to the employer, and (d) the appointment of the former executive to a statutory office. public sector means the government sector, the service of a State owned corporation (or a subsidiary), any service in which persons excluded from this Act by section 5 are employed or a statutory office. (6) To avoid doubt, subsection (3) has effect despite another Act or law unless the other Act or law explicitly provides that the subsection does not apply. Division 5 Public Service employees (other than senior executives) 42 Application of Division (1) This Division applies to Public Service employees other than Secretaries of Departments, heads of other Public Service agencies and other Public Service senior executives. (2) The employees to whom this Division applies are referred to in this Division as Public Service non-executive employees. 43 Kinds of employment (1) Employment as a Public Service non-executive employee may be any one of the following kinds of employment— (a) ongoing employment, (b) temporary employment, (c) casual employment. (2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated. (3) Temporary employment is employment for a temporary purpose. (4) Casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required. (5) An employee who is employed to assist a specified judicial officer (or other specified officer of a kind prescribed by the regulations) may be employed on the basis that the person's employment may be terminated when the officer ceases to hold office. 44 (Repealed) 45 Employment in classifications of work (1) Public Service non-executive employees are to be employed in a classification of work determined by the head of the Public Service agency in which the person is employed in accordance with this Act and any other Act or law. Note— See Division 6 in relation to classifications determined under industrial instruments. (2) A classification of work extends to any kind of work and any grade of that work. 46 Assignment to roles in work classifications (1) In this section— assign to a role includes assign to a different role. (2) The head of a Public Service agency may from time to time assign Public Service non-executive employees of the agency to roles in the agency in the classification of work in which the employees are employed. (3) Public Service non-executive employees may be assigned to roles to enable the flexible deployment of staff resources within the agency and to develop the capabilities of staff. (4) A Public Service non-executive employee is not to be assigned to a different role unless the employee has been consulted. The remuneration payable to the employee is not to be reduced because of the assignment to the different role without the consent of the employee. 47 Termination of employment (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment— (a) the employee has failed to meet a condition of engagement as an employee under section 54, (b) the employee lacks, or has lost, an essential qualification for performing the duties of the role assigned to the employee, (c) the performance of the employee is determined under section 68 to be unsatisfactory, (d) the employee is unable to perform the duties of the role assigned to the employee because of physical or mental incapacity, (e) the employee is retired on medical grounds under section 56, (f) the employee has refused to perform the duties of the role assigned to the employee, (g) the employee has abandoned his or her employment, (h) a finding of misconduct has been made against the employee under section 69, (i) (Repealed) (j) the employee is determined in accordance with the regulations and the government sector employment rules to be excess to the requirements of the relevant part of the agency in which he or she is employed, (k) on any other ground prescribed by the regulations. The instrument is to set out the ground or grounds on which the employment is terminated. (2) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency at any time if the employment is not ongoing employment. 48 Matters that government sector employment rules may deal with The government sector employment rules may deal with any matter relating to the employment of Public Service non-executive employees, including (without limitation) the following matters— (a) the recruitment of any such employees (including the recruitment process and the application of the principle of employment on merit), (b) the circumstances in which any such employees may be employed in particular kinds of employment, (c) the conditions of engagement of any such employees, (d) work level standards for roles in classifications of work in which any such employees are employed, (e) methods of job evaluation for the roles of any such employees, (f) capabilities for the roles of any such employees, (g) the assignment of any such employees to roles (including temporary assignment to another role), (h) (Repealed) (i) the termination of employment of any such employees, (j) dealing with any such employees who are excess employees. Division 6 Industrial relations employer functions 49 Interpretation and application: Division 6 (1) In this Division— conditions of employment and industrial matters have the same meanings they have in the Industrial Relations Act 1996. Industrial Relations Secretary means the Secretary of the Premier's Department. Note— An administrative arrangements order may be made under Part 7 of the Constitution Act 1902 to change the reference to the Secretary of the Premier's Department having regard to future administrative changes in the allocation of Ministerial and departmental responsibilities. (2) This Division does not apply to the conditions of employment of the Secretary of a Department or a Public Service senior executive. This subsection does not prevent particular conditions of employment under this Division from being adopted by reference in the contract of employment of the Secretary or executive. 50 Role of Industrial Relations Secretary in industrial proceedings The Industrial Relations Secretary is, for the purposes of any proceedings relating to Public Service employees held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of Public Service employees. 51 Industrial Relations Secretary may enter into agreements (1) The Industrial Relations Secretary may enter into an agreement with any association or organisation representing a group of Public Service employees with respect to industrial matters. (2) Any such agreement binds all Public Service employees in the group affected by the agreement, and no such employee (whether a member of the association or organisation with which the agreement was entered into or not) has any right of appeal against the terms of the agreement. (3) An agreement under this section is not an enterprise agreement within the meaning of the Industrial Relations Act 1996. However, the Industrial Relations Secretary (or any delegate of the Industrial Relations Secretary) may enter into such an enterprise agreement as the employer of the employees concerned. 52 Industrial Relations Secretary may determine employment conditions not otherwise lawfully determined (1) The Industrial Relations Secretary may from time to time make determinations fixing conditions of employment of Public Service employees (or any group of them). (2) Conditions of employment that are so determined apply to Public Service employees unless inconsistent with this Act, State industrial instruments or any other law. (3) This section does not prevent the head of a Public Service agency from determining conditions of employment of employees of the agency for the purposes of the day to day management of the agency in matters not regulated by State industrial instruments and determinations under this section. (4) For the purposes of the recovery of any amount owing under a determination under this section, the determination is taken to be a State industrial instrument. (5) The Industrial Relations Secretary may amend or rescind a determination made under this section, but only if no Public Service employee will be adversely affected by the amendment or rescission. 53 Industrial relations provisions (1) The Industrial Relations Secretary is not subject to the control and direction of any Minister— (a) in determining conditions of employment under this Division, or (b) in dealing with a dispute relating to an industrial matter concerning Public Service employees. (2) The Industrial Relations Secretary may delegate any of his or her functions under this Division (other than this power of delegation) to the head of a Public Service agency or any Public Service employee or to a statutory officer. (2A) A delegate under subsection (2) may, subject to the conditions of the delegation, sub-delegate a function to a Public Service employee or to a statutory officer if the delegate is authorised in writing to do so. (3) The Industrial Relations Secretary has the following functions— (a) advising the Government on appropriate strategies and policies regarding employment conditions and industrial relations in the government sector, (b) monitoring the implementation of Government strategies and policies on employment conditions and industrial relations in the government sector and assisting with the implementation of those strategies and policies. The Industrial Relations Secretary must consult with the Public Service Commissioner before exercising any function under this subsection. (4) The head of a Public Service agency is to notify the Industrial Relations Secretary of such industrial matters affecting the agency as the Industrial Relations Secretary specifies in a notice given to the head of the agency. (5) A Public Service employee who is authorised by the Industrial Relations Secretary for the purposes of this subsection may— (a) enter the premises of any Public Service agency, and (b) require the production of and examine any documents in the custody of any Public Service employee, and (c) require any Public Service employee to answer questions, for the purposes of enabling the Industrial Relations Secretary to exercise his or her functions under this Division. Division 7 Additional Public Service employment provisions 54 Conditions of engagement (1) The engagement of a Public Service employee may be made subject to conditions notified to the employee on his or her engagement. (2) The conditions may include (without limitation) conditions dealing with any of the following matters— (a) probation, (b) citizenship or residency requirements, (c) formal qualifications, (d) security and other clearances, (e) health clearances. (3) The imposition of conditions of engagement is subject to the government sector employment rules. (4) The contract of employment of a Public Service senior executive may include conditions of engagement. 54A Entitlement to extended and other leave Public Service employees have the entitlements to extended and other leave prescribed by the regulations. 55 Resignation A Public Service employee may resign his or her employment by written notice to the person who exercises employer functions in relation to the employee. 56 Retirement on medical grounds The person who exercises employer functions in relation to a Public Service employee may retire the employee if— (a) the employee is found to be unfit to perform or incapable of performing the duties of his or her employment, and (b) the employee's unfitness or incapacity— (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the employee, or from causes within the employee's control. 57 Crown's dispensation with services (1) The right or power of the Crown to dispense with the services of any Public Service employee, as it existed immediately before the commencement of this section, is not abrogated or restricted by any of the