South Australia: Public Sector Act 2009 (SA)

South Australia Public Sector Act 2009 An Act to make provision for employment, management and governance matters relating to the public sector of the State; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—Objects of Act 4 Objects of Act Part 3—Public sector principles and practices 5 Public sector principles 6 Public sector code of conduct 8 Public sector performance management and development 9 Flexible arrangements for transfer within public sector 10 Agencies to pursue whole‑of‑Government objectives 10A Agencies to organise activities according to planning regions 11 Uniform and transparent governance arrangements 12 Agencies to report annually Part 3A—Reporting on certain official travel 12A Application of Part 12B Prescribed persons to report on certain official travel Part 4—Commissioner for Public Sector Employment 13 Office of Commissioner 14 Functions of Commissioner 15 Public sector code of conduct 16 Public sector employment determinations 17 Extent to which Commissioner is subject to Ministerial direction 18 Investigative powers 19 Power to require statistical information 20 Delegation by Commissioner 21 Annual report of Commissioner Part 5—South Australian Executive Service 22 Purpose of SAES 23 SAES charter Part 6—Public Service Division 1—Composition of Public Service 24 Public Service administrative units 25 Public Service employees Division 2—Administrative units 26 Establishment of departments 27 Establishment of attached offices 28 Minister responsible for administrative unit Division 3—Chief executives 29 Administrative units to have chief executives 30 Chief executive to employ persons for administrative unit 31 General duties of chief executive 32 Duties with respect to objects of Act and public sector principles and code of conduct 33 Protection of independence in certain matters 34 Employment or assignment of persons as chief executives 35 Conditions of chief executive's employment 36 Transfer of chief executives 37 Resignation of chief executive 38 Termination of chief executive's employment 39 Delegation by chief executive 40 Provision for statutory office holder to have powers etc of chief executive Part 7—Public sector employment Division 1—Application of Part 41 Public Service and declared public sector employment Division 2—Executives 42 Conditions of executive's employment 43 Resignation of executives 44 Termination of executive's employment by notice Division 3—General employment processes and conditions 45 Engagement of employees 46 Merit‑based selection processes 47 Assignment of duties 48 Probation 49 Remuneration 50 Additional duties allowance 51 Hours of duty and leave 52 Resignation (other than executives) 53 Reduction in remuneration level 54 Termination 55 Disciplinary action 56 Power to require medical examination 57 Power to suspend from duty Division 4—Review of employment decisions Subdivision 1—Review of dismissal 58 Application of unfair dismissal provisions of Fair Work Act Subdivision 2—Review of employment decisions (other than dismissal) 59 Right of review 60 Conciliation 61 Internal review 62 External review 63 Special provision for review of selection processes 64 Application of Fair Work Act 1994 and South Australian Employment Tribunal Act 2014 Part 8—Miscellaneous 65 Employment opportunity programs 66 Re‑engagement of employee who resigns to contest election 67 Multiple appointments etc 68 Payment of remuneration on death 69 Reduction in remuneration arising from refusal or failure to carry out duties 70 Action where overpayment or liability to Crown 71 Employment of Ministerial staff 72 Appointment of other special staff 73 Operation of Fair Work Act 1994 74 Immunity relating to official powers or functions 75 Delegation by Minister 76 Temporary exercise of statutory powers 77 Designation of positions 78 Obsolete references 79 Evidentiary provision 80 Service of notices 81 Regulations Schedule 1—Leave and working arrangements Part 1—Flexible leave and working arrangements 1 Flexible leave and working arrangements Part 2—Hours of attendance 2 Hours of attendance Part 3—Holidays and closure of offices 3 Holidays 4 Closure of workplaces etc Part 4—Recreation leave 5 Recreation leave Part 5—Sick leave 6 Sick leave etc Part 6—Long service leave 7 Long service leave 8 Salary or wages and allowances while on long service leave 9 Payment in lieu of long service leave 9A Related provision (retention leave entitlement) Part 7—Adjustment to leave rights based on prior service 10 Adjustment to leave rights based on prior service Part 8—Payments on death 11 Payment in respect of leave on death Schedule 2—Special provisions relating to Tribunal 1 Supplementary panel members 2 Constitution of Tribunal and other matters Schedule 3—Transitional provisions Part 2—Transitional provisions 2 Administrative units continued as departments or attached offices 3 Public Service employees continue in same employment 4 Probation continued 5 Remuneration levels 6 Leave rights 7 Commissioner 8 Equal employment opportunity programs 9 Determinations and decisions continued Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Public Sector Act 2009. 3—Interpretation (1) In this Act, unless the contrary intention appears— administrative decision means— (a) a decision; or (b) failure or refusal to make a decision, in the exercise or purported exercise of administrative authority; administrative unit means— (a) a department; or (b) an attached office; attached office means an attached office established under Part 6 or an administrative unit continued as an attached office under Schedule 3; casual employee means a person engaged on the basis that the employment will continue for not more than 4 weeks or will have hours that are irregular or do not exceed 15 hours in a week; chief executive of an administrative unit means a person employed or assigned to act as the chief executive of the unit under Part 6; Commissioner means a person appointed or assigned to act as the Commissioner for Public Sector Employment under Part 4; decision, of SAET, has the same meaning as in the South Australian Employment Tribunal Act 2014; department means a department established under Part 6 or continued under Schedule 3; disciplinary action means action against an employee of a public sector agency on the ground of the employee's misconduct; employee of a public sector agency—see subsection (2); employing authority means a person designated as an employing authority, and empowered to employ persons on behalf of the Crown, under an Act; employment decision means an administrative decision relating to the employment of a person, including an administrative decision relating to the engagement, promotion, transfer, remuneration, entitlements or termination of employment of a person and a decision to take disciplinary action against a person; employment opportunity program—see section 65; executive employee means— (a) a member of SAES; or (b) an employee to whom clause 3(3) of Schedule 3 applies and who is not a member of SAES; merit, in relation to selection processes, means— (a) the extent to which each of the applicants has abilities, aptitude, skills, qualifications, knowledge, experience (including community experience) and personal qualities relevant to the carrying out of the duties in question; and (b) if relevant— (i) the manner in which each of the applicants carried out any previous employment or occupational duties or functions; and (ii) the extent to which each of the applicants has potential for development; misconduct means— (a) a breach of a disciplinary provision of the public sector code of conduct while in employment as a public sector employee; or (b) other misconduct while in employment as a public sector employee, the term includes making a false statement in connection with an application for engagement as a public sector employee and being convicted, while in employment as a public sector employee, of an offence punishable by imprisonment; public sector means the administrative units of the Public Service and all other public sector agencies and public sector employees; public sector agency means— (a) a Minister; or (b) a chief executive of an administrative unit; or (c) an administrative unit; or (d) an employing authority; or (e) any other agency or instrumentality of the Crown; or (f) a body corporate— (i) comprised of persons, or with a governing body comprised of persons, a majority of whom are appointed by the Governor, a Minister or an agency or instrumentality of the Crown; or (ii) subject to control or direction by a Minister; or (g) a person or body declared under subsection (3) to be a public sector agency; or (h) a subsidiary of a Minister or a person or body referred to in a preceding paragraph, but does not include— (i) a person or body declared under an Act not to be part of the Crown or not to be an agency or instrumentality of the Crown; or (j) a person or body declared under subsection (3) not to be a public sector agency; public sector code of conduct means the public sector code of conduct issued by the Commissioner under Part 4; public sector employee means a chief executive of an administrative unit or an employee in an administrative unit or other employee of a public sector agency; public sector principles means the principles set out in section 5; public sector representative organisation means an association registered under the Fair Work Act 1994 or the Workplace Relations Act 1996 of the Commonwealth that represents the interests of public sector employees; Public Service—see Part 6; remuneration means salary, allowances or other monetary benefits payable to an employee; remuneration level means the remuneration level fixed by a public sector agency for an employee of the agency from a classification structure in accordance with the appropriate determination of the Commissioner under Part 4 or, if there is no applicable determination, has the meaning assigned by the regulations; SAES means the South Australian Executive Service constituted under Part 5; SAES charter—see section 23; SAET means the South Australian Employment Tribunal established under the South Australian Employment Tribunal Act 2014; selection processes means the processes by which applications are sought and applicants selected for the purpose of employment in the public sector; subsidiary has the same meaning as in the Corporations Act 2001 of the Commonwealth; substantive remuneration level of an employee of a public sector agency means the remuneration level determined by the public sector agency in accordance with the regulations to be the employee's substantive remuneration level; term employee means an employee engaged for a specified term or for the duration of a specified project; whole‑of‑Government objectives means objectives for Government that are approved in Cabinet from time to time and relate to the functions or operations of all or various public sector agencies. (2) For the purposes of this Act and any other Act or law— (a) a person employed in, or for the purposes of, an administrative unit is treated as an employee employed by the chief executive (from time to time) of the unit on behalf of the Crown; and (b) a person employed or appointed under another Act, on behalf of the Crown, by an unincorporated public sector agency (including a chief executive of an administrative unit) is treated as an employee of the agency (as constituted from time to time); and (c) a change in the chief executive of an administrative unit or the person who constitutes an unincorporated public sector agency will not affect the continuity of employment of a person employed in, or for the purposes of, the unit or by the agency. (3) The Minister may, by notice in the Gazette— (a) declare that a specified person or body is or is not a public sector agency for the purposes of this Act; or (b) vary or revoke a notice under this subsection. (4) For the purposes of this Act, in determining whether a company is a subsidiary of a public sector agency, any shares held, or powers exercisable by, the agency or any other body are not to be taken to be held or exercisable in a fiduciary capacity by reason of the fact that the agency is an instrumentality of the Crown or holds its property on behalf of the Crown. Part 2—Objects of Act 4—Objects of Act The objects of this Act are as follows: (a) to promote a high performing public sector that— • focuses on the delivery of services to the public; and • is responsive to Government priorities; (b) to establish— • general principles to guide public sector operations; and • a code of conduct to enforce ethical behaviour and professional integrity in the public sector; (c) to ensure the public sector is viewed as an employer of choice; (d) to encourage public sector agencies and employees to apply a public sector‑wide perspective in the performance of their functions; (e) to make performance management and development a priority in the public sector; (f) to ensure accountability in the public sector; (g) to facilitate the integration of employment and management practices across the public sector; (h) to promote uniformity and transparency in governance arrangements for the public sector; (i) to provide the framework for the State's Public Service and the effective and fair employment and management of Public Service and other public sector employees. Part 3—Public sector principles and practices 5—Public sector principles (1) Public focus The public sector is to— • focus on the provision of services to the public; • recognise the diversity of public needs and respond to changing needs; • consult and involve the public, where appropriate, to improve services and outcomes on an ongoing basis. (2) Responsiveness The public sector is to— • implement the Government's policies in a timely manner and regardless of the political party forming Government; • provide accurate, timely and comprehensive advice; • align structures and systems to achieve major strategies while continuing to deliver core services. (3) Collaboration The public sector is to— • ensure there is ongoing collaboration between public sector agencies; • focus on whole‑of‑Government, as well as agency‑specific, services and outcomes. (4) Excellence The public sector is to— • provide services with a high level of efficiency and effectiveness; • move resources rapidly in response to changing needs; • devolve decision‑making authority to the lowest appropriate level; • manage resources effectively, prudently and in a fully accountable manner; • maintain and enhance the value of public assets. (5) Employer of choice Public sector agencies are to— • treat public sector employees fairly, justly and reasonably; • prevent unlawful discrimination against public sector employees or persons seeking employment in the public sector; • ensure that public sector employees may give frank advice without fear of reprisal; • encourage public sector employees to undertake professional development and to pursue opportunities throughout the public sector; • set clear objectives for public sector employees and make them known; • acknowledge employee successes and achievements and address under performance; • ensure that public sector employees may join, or choose not to join, organisations that represent their interests; • consult public sector employees and public sector representative organisations on matters that affect public sector employment. (6) Ethical behaviour and professional integrity Public sector employees are to— • be honest; • promptly report and deal with improper conduct; • avoid conflicts of interest, nepotism and patronage; • treat the public and public sector employees with respect and courtesy; • make decisions and provide advice fairly and without bias, caprice, favouritism or self interest; • deal with agency information in accordance with law and agency requirements; • avoid conduct that will reflect adversely on the public sector; • accept responsibility for decisions and actions; • submit to appropriate scrutiny. (7) Legal requirements Public sector agencies are to— • implement all legislative requirements relevant to the agencies; • properly administer and keep under review legislation for which the agencies are responsible. 6—Public sector code of conduct Public sector employees must observe the public sector code of conduct. 8—Public sector performance management and development (1) Each public sector agency must establish and administer effective performance management and development systems in respect of the employees of the agency. (2) Performance management and development must be directed towards advancement of the objects of this Act and observance of the public sector principles and code of conduct. (3) Performance management and development must be integrated with the agency's employment practices and inform its employment decisions relating to particular employees. (4) Each public sector agency must make information about its performance management and development system available to employees of the agency. 9—Flexible arrangements for transfer within public sector (1) The Premier may, in order to reorganise public sector operations, by notice in the Gazette— (a) transfer employees within the public sector; and (b) make transitional or ancillary provisions that may be necessary or expedient in the circumstances. (2) A notice under subsection (1) has effect according to its terms and despite any other Act. (3) A public sector agency may transfer an employee of the agency to other employment within the public sector, on conditions that maintain the substantive remuneration level of the employee or are agreed to by the employee. (4) A public sector agency is not to transfer employees under this section except with the agreement of any other public sector agency directly affected by the transfer. (5) The regulations may prescribe rules relating to the movement of employees within the public sector, including movement initiated by employees. (6) A transfer of an employee under this section does not constitute a breach of the person's contract of employment or termination of the person's employment, or affect the continuity of the person's employment for any purpose. 10—Agencies to pursue whole‑of‑Government objectives (1) The Premier may give directions to public sector agencies about the implementation of specified whole‑of‑Government objectives and the sharing of information and collaboration required for that purpose. (2) A direction under this section is not binding on a public sector agency to the extent (if any) to which it would impede or affect the performance of a quasi‑judicial or statutorily independent function of the agency. 10A—Agencies to organise activities according to planning regions (1) The Premier may give directions to public sector agencies requiring them to provide services and infrastructure, undertake planning and organise their activities on the basis of the planning regions established under the Planning, Development and Infrastructure Act 2016. (2) A direction under this section is not binding on a public sector agency to the extent (if any) to which it would impede or affect the performance of a quasi‑judicial or statutorily independent function of the agency. 11—Uniform and transparent governance arrangements (1) The Premier may give directions to public sector agencies designed— (a) to guide agencies, in preparing proposals and making decisions, on the question of whether a Government activity should be assigned to a Public Service body or some other form of public sector agency; and (b) to otherwise deal with matters relating to structural arrangements in the public sector and the formation of new entities. (2) The Premier must ensure the publication in the Gazette and on a website determined by the Premier of— (a) any directions given by the Premier under subsection (1); and (b) information relating to structural arrangements in the public sector and the formation of new entities. 12—Agencies to report annually (1) Each public sector agency must, once in each year, present a report on the agency's operations to the agency's Minister. (2) Subject to this section, the report must be related to a financial year and must be presented within 3 months after the end of the financial year to which it relates. (3) If a public sector agency is under some other statutory obligation to make an annual report to the agency's Minister— (a) the report required by this section may be incorporated with that other report; and (b) the period to which the report relates must be the same as for that other report; and (c) the report must be presented within 3 months after the end of the reporting period referred to above. (4) A chief executive of an administrative unit is not required to report separately from the unit. (5) An employing authority or employee of a public sector agency is not required to report under this section. (6) The public sector agency must ensure that the report is accurate, comprehensive, deals with all significant issues affecting the agency and is written and presented in a manner that aids ready comprehension. (7) The report must contain the information required by the regulations or by any directions issued by the Premier. (8) A Minister must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament. (9) The copy of the report to be laid before Parliament must set out in a prominent position the date on which it was presented to the agency's Minister and if a report is presented to the agency's Minister after the end of the period allowed under this section, the report must be accompanied by a written statement of the reasons for the delay and the statement must be laid before each House of Parliament together with the report. Part 3A—Reporting on certain official travel 12A—Application of Part (1) This Part applies to travel undertaken by a prescribed person in their official capacity after the commencement of this section that consists of, or includes, travel outside of South Australia. (2) However, this Part does not apply in relation to travel funded by the prescribed person personally (including where the travel costs fall within the common allowance paid to the prescribed person under the Parliamentary Remuneration Act 1990 or where the prescribed person's costs are reimbursed by the Parliament). (3) This Part is in addition to, and does not derogate from, any other reporting requirements a prescribed person or any other person has under this or any other Act or law. (4) In this section— prescribed person means— (a) each Minister of the Crown; and (b) the Leader of the Opposition in the House of Assembly; and (c) the Leader of the Opposition in the Legislative Council; and (d) the Deputy Leader of the Opposition in the House of Assembly; and (e) the Deputy Leader of the Opposition in the Legislative Council. 12B—Prescribed persons to report on certain official travel (1) Subject to this section, each prescribed person who undertakes travel to which this Part applies must prepare a report setting out— (a) the following information in relation to the travel: (i) the name and portfolio of the prescribed person; (ii) the period during which the travel was undertaken; (iii) the reason for the travel; (iv) the total cost of the travel funded, or to be funded, by money provided by the State, broken down into— (A) the cost of airfares and other transport costs; and (B) the cost of accommodation; and (C) the cost of food and beverages; and (D) the total of any other costs of the travel; (v) a summary of the activities undertaken in the course of the travel; and (b) in the case where a public sector employee travels with a prescribed person who is a Minister as part of the Minister's official travelling party—the following information in relation to each such public sector employee's travel: (i) the public sector agency in which the public sector employee is employed; (ii) the name and official capacity of the public sector employee; (iii) the period during which the public sector employee accompanied the Minister in an official capacity (if different to the information required under paragraph (a)); (iv) the total cost of the public sector employee's travel funded, or to be funded, by money provided by the State, broken down into— (A) the cost of airfares and other transport costs; and (B) the cost of accommodation; and (C) the cost of food and beverages; and (D) the total of any other costs of the travel; (v) a summary of the activities of the public sector employee in their official capacity undertaken in the course of the travel; and (c) in the case where a prescribed staff member travels with a prescribed person who is a Minister as part of the Minister's official travelling party— (i) the name and official capacity of the prescribed staff member; (ii) the period during which the prescribed staff member accompanied the Minister in an official capacity (if different to the information required under paragraph (a)); (iii) the total cost of the travel of the prescribed staff member funded, or to be funded, by money provided by the State, broken down into— (A) the cost of airfares and other transport costs; and (B) the cost of accommodation; and (C) the cost of food and beverages; and (D) the total of any other costs of the travel; (iv) a summary of the activities of the prescribed staff member in their official capacity undertaken in the course of the travel; and (d) any other information required by the regulations. (2) Subject to subsection (3), a report must be prepared under this section within 45 days after the conclusion of the relevant travel. (3) If, in relation to a report of particular travel, a prescribed person does not have the information or documents necessary to provide all of the information required under subsection (1)(a)(iv), (1)(b)(iv) or (1)(c)(iii), the prescribed person must— (a) nevertheless prepare a report under this section setting out such of the information required under subsection (1) as may be known to the prescribed person; and (b) set out in the report an explanation of why the report is incomplete and a description of the outstanding information; and (c) as soon as is reasonably practicable after the prescribed person receives the outstanding information or documents, prepare a supplementary report containing that information. (4) If, in relation to a report of particular travel, it is not reasonably practicable for a prescribed person to provide a breakdown of the costs in accordance with subsection (1)(a)(iv), (1)(b)(iv) or (1)(c)(iii), the prescribed person will be taken to have complied with those requirements if the prescribed person sets out in the report— (a) the total cost of the travel; and (b) a description of the costs incurred in the travel; and (c) an explanation of why the costs could not reasonably be broken down in accordance with those requirements. (5) A prescribed person preparing a report under this section must cause copies of receipts or invoices for all costs relating to travel to which this Part applies to accompany the report. (6) However, a prescribed person need not comply with subsection (5) in relation to a particular receipt or invoice, or particular class of receipts or invoices— (a) if the receipt or invoice relates to a matter to be addressed in a supplementary report prepared under subsection (3), in which case the prescribed person must instead cause a copy of the receipt or invoice to accompany the supplementary report; or (b) if a receipt or invoice in respect of a particular cost is not able to be obtained by the prescribed person, or has been lost or destroyed, in which case the prescribed person must instead complete a declaration containing any information required by the regulations in relation to the cost and cause a copy of the declaration to accompany the report or supplementary report under this section (as the case requires). (7) If a prescribed person is of the opinion that to comply with subsection (5) or (6) in relation to a particular receipt or invoice would create a risk to the health or safety of the prescribed person or any other person, or would amount to a security risk to the interests of the State (however described), the prescribed person may cause a redacted copy of the receipt or invoice to accompany the report or supplementary report (and in such a case the prescribed person will, to avoid doubt, be taken to have complied with the relevant subsection in respect of the receipt or invoice). (8) A report prepared under this section must be in the prescribed manner and form. (9) In the case where a public sector employee travels with a prescribed person who is a Minister undertaking travel to which this Part applies as part of the Minister's official travelling party— (a) the Minister must provide a copy of the report and accompanying documents to the Chief Executive of the relevant public sector agency; and (b) the Chief Executive of the public sector agency must ensure that the report is accurate and comprehensive to the extent that it relates to the public sector agency. (10) A prescribed person must, within 6 sitting days after preparing a report under this section, cause copies of the report or supplementary report and accompanying documents to be laid before each House of Parliament. (11) In this section— prescribed staff member, in relation to a prescribed person who is a Minister, means— (a) a person engaged by the Premier as a member of the Minister's personal staff under section 71; or (b) a person engaged by the Minister under section 72. Part 4—Commissioner for Public Sector Employment 13—Office of Commissioner (1) There is to be a Commissioner for Public Sector Employment. (2) The Commissioner is to be appointed by the Governor for a term not exceeding 5 years and on conditions determined by the Governor. (3) The Commissioner is, at the end of a term of appointment, eligible for reappointment. (4) The Commissioner's appointment may be terminated by the Governor on the ground that the Commissioner— (a) has been guilty of misconduct; or (b) has been convicted of an offence punishable by imprisonment; or (c) has engaged in any remunerative employment, occupation or business outside the duties of the Commissioner without the consent of the Minister; or (d) has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors; or (e) has, because of mental or physical incapacity, failed to carry out duties of the Commissioner satisfactorily; or (f) is incompetent or has neglected the duties of the position. (5) The Commissioner's appointment is terminated if the Commissioner— (a) becomes a member, or a candidate for election as a member, of the Parliament of the State or the Commonwealth; or (b) is sentenced to imprisonment for an offence. (6) The Commissioner may resign as Commissioner by not less than 3 months notice in writing to the Minister (unless notice of a shorter period is accepted by the Minister). (7) The Minister may assign a public sector employee to act as the Commissioner during any period for which— (a) no person is for the time being appointed as the Commissioner; or (b) the Commissioner is absent from, or unable to discharge, official duties. 14—Functions of Commissioner (1) The Commissioner has the function of advancing the objects of this Act, and promoting observance of the public sector principles, in so far as they relate to public sector employment and for that purpose is to— (a) issue the public sector code of conduct (see section 15); and (b) issue public sector employment determinations (see section 16); and (c) monitor and report to the Minister on observance of the public sector principles, code of conduct and employment determinations; and (d) issue guidelines relating to public sector employment matters; and (e) provide advice on public sector employment matters at the request of public sector agencies or on the Commissioner's own initiative; and (f) provide advice on and conduct reviews of public sector employment or industrial relations matters as required by the Premier or the Minister or on the Commissioner's own initiative; and (g) investigate or assist in the investigation of matters in connection with public sector employee conduct or discipline as required by the Premier or at the request of a public sector agency and investigate such matters on the Commissioner's own initiative (including on receipt of public interest information under the Public Interest Disclosure Act 2018). (2) The Commissioner has any other functions assigned to the Commissioner under this Act. 15—Public sector code of conduct (1) The public sector code of conduct may contain— (a) provisions directed towards advancement of the objects of this Act and observance of the public sector principles; and (b) provisions governing the conduct of public sector employees (within and outside their employment) that are expressed to be disciplinary provisions. (2) The code will be taken to allow a public sector employee to engage in a private capacity in conduct intended to influence public opinion on an issue, or promote an outcome in relation to an issue of public interest, except if— (a) it is reasonably foreseeable that the conduct may seriously prejudice the Government or a public sector agency in the conduct of its policies given the relative seniority of the employee, the extent to which the issue is relevant to the role or a previous role of the employee and the nature and circumstances of the conduct; or (b) the conduct involves— (i) disclosure of information in breach of intellectual property rights; or (ii) disclosure of information contrary to any law or to any lawful instruction or direction relating to a specific matter; or (iii) disclosure of information with a view to securing a pecuniary or other advantage for the employee or any other person; or (iv) disclosure of information of commercial value the disclosure of which would diminish its value or unfairly advantage a person in commercial dealings with the Government or a public sector agency; or (c) the conduct is disgraceful or improper conduct that reflects seriously and adversely on the public sector. (3) Subsection (2)(a) does not apply in respect of conduct engaged in by an employee in the employee's capacity as a member of the governing body of a public sector representative organisation. (4) The Commissioner must keep the code under review and may vary the code, or revoke and substitute the code. (5) The code, and any variation of the code, must be published in accordance with the regulations. (6) The code, or a variation of the code, has effect from a date fixed by the Commissioner. (7) Sections 10 and 10A of the Subordinate Legislation Act 1978 apply to the code, or a variation of the code, as if it were a regulation within the meaning of that Act. 16—Public sector employment determinations (1) The Commissioner may issue determinations relating to— (a) employment in the Public Service; and (b) public sector employment outside the Public Service that is declared by another Act or the regulations under this Act to be employment to which this section applies. (2) A determination by the Commissioner may determine— (a) classification structures in accordance with which remuneration levels must be fixed for employees; and (b) conditions of employment other than remuneration; and (c) processes that must be followed in fixing remuneration levels and other employment conditions; and (d) allowances payable to employees and the circumstances in which they are payable; and (e) charges payable by employees in respect of accommodation, services, goods or other benefits provided to them in connection with their employment; and (f) any other matter of a class prescribed by the regulations. (3) A determination by the Commissioner— (a) may be expressed to apply to all employees or particular employees or classes of employees; and (b) may leave a matter or thing to be determined or dispensed with according to the discretion of a public sector agency or the Commissioner, either generally or in a particular case or class of cases; and (c) may be varied or revoked by subsequent determination; and (d) must be published in accordance with the regulations; and (e) has effect from a date fixed by the Commissioner which may be a date earlier than the date of the determination; and (f) is binding on public sector agencies in relation to public sector employment to which the determination applies. 17—Extent to which Commissioner is subject to Ministerial direction (1) Subject to this section, the Commissioner is subject to direction by the Minister. (2) No Ministerial direction may be given to the Commissioner requiring that material be included in, or excluded from, a report that is to be laid before Parliament. (3) A Ministerial direction to the Commissioner— (a) must be communicated to the Commissioner in writing; and (b) must be included in the annual report of the Commissioner. 18—Investigative powers (1) The powers conferred by this section may be exercised as reasonably required for a review or investigation referred to in section 14. (2) The Commissioner may— (a) by notice in writing— (i) require a public sector employee or former public sector employee to appear at a specified time and place for examination; or (ii) require a public sector employee or former public sector employee to produce a specified record or object that is relevant to the subject matter of the review or investigation; and (b) require a public sector employee or former public sector employee to answer truthfully questions that are relevant to the subject matter of the review or investigation; and (c) enter and inspect premises occupied by the Crown or a public sector agency. (3) A public sector employee who fails to comply with a requirement under this section or hinders the exercise of powers under this section is guilty of misconduct (for the purposes of this and any other Act). (4) A former public sector employee who fails to comply with a requirement under this section or hinders the exercise of powers under this section is guilty of an offence. Maximum penalty: $5 000. (5) A person is not obliged to answer a question or to produce a record or object (other than a record or object of the Government) under this section if to do so would tend to incriminate the person of an offence. 19—Power to require statistical information The Commissioner may, by notice in writing, require public sector agencies to provide statistical reports to the Commissioner relating to public sector employment matters at intervals specified by the Commissioner. 20—Delegation by Commissioner (1) The Commissioner may, by instrument in writing, delegate a power or function under this or any other Act— (a) to a particular person or committee; or (b) to the person for the time being performing particular duties or holding or acting in a specified position. (2) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated. (3) A delegation— (a) may be absolute or conditional; and (b) does not derogate from the power of the delegator to act personally in a matter; and (c) is revocable at will. 21—Annual report of Commissioner (1) The Commissioner must, before 30 September in each year, present a report to the Minister on matters relating to the Commissioner's functions under this Part. (2) The report must— (a) relate to the financial year preceding the making of the report; and (b) describe the extent of observance of the public sector principles in so far as they relate to public sector employment and measures taken by the Commissioner to promote observance of those principles; and (c) deal with any other matters stipulated by the regulations. (3) The Minister must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament. Part 5—South Australian Executive Service 22—Purpose of SAES SAES is established to provide the public sector with high performing leaders who have a shared sense of purpose and direction and who together will actively engage the public sector in the pursuit of the objects of this Act and the public sector principles. 23—SAES charter (1) The Minister must approve a charter for SAES (the SAES charter). (2) The charter may specify or elaborate on the following: (a) rules governing membership of SAES; (b) functions of SAES; (c) rules and arrangements to facilitate mobility within the public sector of SAES members; (d) employment contracts and performance management and development systems for SAES members; (e) competencies expected of SAES members; (f) any other matter affecting SAES. (3) The Minister must ensure that the charter is kept under review and may vary the charter, or revoke and substitute the charter. (4) The Minister must cause the charter, or a variation of the charter, to be published within the public sector. Part 6—Public Service Division 1—Composition of Public Service 24—Public Service administrative units The Public Service consists of administrative units which may take the form of— (a) a department; or (b) an attached office. 25—Public Service employees (1) Subject to subsection (2), all persons employed by or on behalf of the Crown must be employed in the Public Service under this Act. (2) The following persons are excluded from the Public Service: (a) members of the judiciary; (b) police officers; (c) police security officers appointed under the Police Act 1998; (d) the Auditor‑General; (e) the Ombudsman; (f) the Police Ombudsman; (g) the Electoral Commissioner and the Deputy Electoral Commissioner; (h) an officer of either House of Parliament or a person under the separate control of the President of the Legislative Council or the Speaker of the House of Assembly or a member of the joint parliamentary service; (i) the Commissioner; (k) an employee employed under the Education and Children's Services Act 2019; (l) an officer or employee appointed by the employing authority under the Technical and Further Education Act 1975; (m) a person appointed by the Premier or the Minister under Part 8; (n) a person who is remunerated solely by fees, allowances or commission; (o) an employee who is remunerated at hourly, daily, weekly or piece‑work rates of payment (other than a person expressly engaged by writing as a casual employee in the Public Service); (p) a person who is excluded under any other Act from the Public Service; (q) a person whose terms and conditions of appointment or employment are under another Act to be determined by the Governor, a Minister or any specified person or body; (r) a person excluded from the Public Service by proclamation under subsection (3). (3) The Governor may, by proclamation— (a) exclude a person or class of persons from the Public Service; or (b) vary or revoke a proclamation under this subsection. Division 2—Administrative units 26—Establishment of departments The Governor may, by proclamation— (a) establish a department and assign a title to it; or (b) alter the title of a department; or (c) abolish a department. 27—Establishment of attached offices The Governor may, by proclamation— (a) establish an attached office, assign a title to the office and attach the office to a department or departments; or (b) vary the department or departments to which an office is an attached office; or (c) alter the title of an attached office; or (d) abolish an attached office. 28—Minister responsible for administrative unit (1) The Governor may, by proclamation, designate the Minister who will be an administrative unit's Minister with responsibility for the unit. (2) A proclamation under subsection (1) will have the effect of revoking the previous designation (if any). Division 3—Chief executives 29—Administrative units to have chief executives There is to be a chief executive of each administrative unit. 30—Chief executive to employ persons for administrative unit (1) The chief executive of an administrative unit may, on behalf of the Crown, engage persons as employees for the purposes of the unit. (2) A person engaged as an employee under subsection (1) becomes an employee in the unit unless excluded from the Public Service under section 25. 31—General duties of chief executive (1) The chief executive of a department is responsible to the Premier and the department's Minister for— (a) making an effective contribution to the attainment of the whole‑of‑Government objectives that are communicated in writing by the Premier or the department's Minister and relate to the functions or operations of the department; and (b) the attainment of the performance objectives set from time to time by the Premier and the department's Minister under the contract relating to the chief executive's employment; and (c) the effective management of the department and the general conduct of its employees. (2) The chief executive of an office that is an attached office to a department or departments is responsible— (a) to the Premier and the office's Minister for— (i) making an effective contribution to the attainment of the whole‑of‑Government objectives that are communicated in writing by the Premier or the office's Minister and relate to the functions or operations of the office; and (ii) the attainment of the performance objectives set from time to time by the Premier and that Minister under the contract relating to the chief executive's employment; and (b) to the chief executive of the department, or the chief executives of the departments, for— (i) any specific matters relating to the attainment of whole‑of‑Government objectives; and (ii) the effective management of the office and the general conduct of its employees. 32—Duties with respect to objects of Act and public sector principles and code of conduct The chief executive of an administrative unit is to ensure, as far as practicable, that the objects of this Act are advanced and the public sector principles and code of conduct are observed in the management and day‑to‑day operations of the unit. 33—Protection of independence in certain matters The chief executive of an administrative unit is not subject to direction in respect of— (a) the performance of a quasi‑judicial or statutorily independent function of the chief executive; or (b) the making of an employment decision relating to a particular person. 34—Employment or assignment of persons as chief executives (1) A chief executive of an administrative unit is to be engaged by the Premier. (2) The Premier may assign a public sector employee to act as the chief executive of an administrative unit, or an administrative unit's Minister may assign an employee in the unit to act as the chief executive of the unit, during any period for which— (a) no person is for the time being employed as the chief executive of the unit; or (b) the chief executive of the unit is absent from, or unable to discharge, official duties. 35—Conditions of chief executive's employment (1) The employment of a chief executive of an administrative unit is to be subject to a contract made between the chief executive and the Premier in consultation with the unit's Minister. (2) The contract must specify— (a) that the chief executive is employed for a term not exceeding 5 years specified in the contract; and (b) that the chief executive is to meet performance objectives as set from time to time by the Premier and the unit's Minister. (3) Subject to the regulations, the contract may make any other provision considered appropriate, including provision excluding or modifying a provision of this Act. (4) The decision whether to engage the chief executive for a further term must be made and notified to the chief executive not less than the prescribed period before the end of the chief executive's current term of employment. (5) In this section— prescribed period means— (a) if the contract is for a term of 5 years—6 months; (b) if the contract is for a term less than 5 years—the period determined by applying to the period of 6 months the proportion that the number of months in the term of the contract bears to 60 months. 36—Transfer of chief executives (1) The Premier may transfer a chief executive of an administrative unit to other duties in the public sector, whether or not as chief executive of another administrative unit, on conditions that maintain the remuneration of the chief executive. (2) A transfer of a chief executive under this section does not constitute a breach of the person's contract of employment or termination of the person's employment, or affect the continuity of the person's employment for any purpose. 37—Resignation of chief executive A chief executive of an administrative unit may resign by not less than 3 months notice in writing to the Premier (unless notice of a shorter period is accepted by the Premier). 38—Termination of chief executive's employment (1) The Premier may, by notice in writing, terminate the employment of a chief executive of an administrative unit— (a) on the ground that the chief executive has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors; or (b) on any ground on which the employment of an employee of a public sector agency may be terminated under Part 7 Division 3. (2) The Premier may, by notice in writing, terminate the employment of a chief executive of an administrative unit without specifying any grounds. (3) Subject to the contract relating to the chief executive's employment, if a chief executive's employment is terminated by the Premier by notice under subsection (2), the chief executive is entitled to a termination payment of an amount equal to 4 months remuneration (at the rate determined for the purposes of this subsection under the chief executive's contract) for each uncompleted year of the chief executive's employment (with a pro rata adjustment in relation to part of a year) up to a maximum of 16 months remuneration. (4) The period of notice under subsection (2) must be at least 4 months except where the chief executive is compensated by payment of an amount equal to the remuneration that would have been payable during the balance of the period of 4 months (at the rate determined for the purposes of this subsection under the chief executive's contract). 39—Delegation by chief executive (1) The chief executive of an administrative unit may, by instrument in writing, delegate a power or function under this Act— (a) to a particular person or committee; or (b) to the person for the time being performing particular duties or holding or acting in a specified position. (2) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated. (3) A delegation— (a) may be absolute or conditional; and (b) does not derogate from the power of the delegator to act personally in a matter; and (c) is revocable at will. 40—Provision for statutory office holder to have powers etc of chief executive Despite the preceding provisions of this Part, the Minister may, by notice in the Gazette— (a) declare that the person for the time being holding or acting in a specified statutory office established under an Act will have the powers and functions of a chief executive in relation to a specified administrative unit; and (b) revoke a declaration under this section. Part 7—Public sector employment Division 1—Application of Part 41—Public Service and declared public sector employment (1) This Part applies to employment in the Public Service. (2) This Part also applies to public sector employment outside the Public Service to the extent provided by another Act or the regulations under this Act. (3) The regulations under this Act may apply or modify the application of this Part or a provision of this Part to public sector employment outside the Public Service. (4) Regulations may be made for the purposes of this section, and will have effect according to their terms, despite the provisions of any other Act. Division 2—Executives 42—Conditions of executive's employment (1) The employment of a person as an executive employee of a public sector agency is to be subject to a contract made between the employee and the agency. (2) The contract must specify— (a) that the employee is employed for a term not exceeding 5 years specified in the contract; and (b) that the employee is to meet performance objectives as set from time to time by the agency. (3) Subject to the regulations, the contract may make any other provision considered appropriate, including provision excluding or modifying a provision of this Act. (4) The decision whether to engage the employee for a further term must be made and notified to the employee not less than the prescribed period before the end of the employee's current term of employment. (5) In this section— prescribed period means— (a) if the contract is for a term of 5 years—6 months; (b) if the contract is for a term less than 5 years—the period determined by applying to the period of 6 months the proportion that the number of months in the term of the contract bears to 60 months. 43—Resignation of executives An executive employee of a public sector agency may resign by not less than 8 weeks notice in writing to the agency (unless notice of a shorter period is accepted by the agency). 44—Termination of executive's employment by notice (1) A public sector agency may, by notice in writing, terminate the employment of an executive employee of the agency without specifying any grounds. (2) Subject to the contract relating to the employee's employment, if the employee's employment is terminated by the agency by notice under subsection (1), the employee is entitled to a termination payment of an amount equal to 4 months remuneration (at the rate determined for the purposes of this subsection under the employee's contract) for each uncompleted year of the employee's employment (with a pro rata adjustment in relation to part of a year) up to a maximum of 16 months remuneration. (3) The period of notice under subsection (1) must be at least 4 months except where the employee is compensated by payment of an amount equal to the remuneration that would have been payable during the balance of the period of 4 months (at the rate determined for the purposes of this subsection under the employee's contract). (4) The power conferred by this section is in addition to the power to terminate an executive employee's employment under section 54. Division 3—General employment processes and conditions 45—Engagement of employees (1) This section applies to employees of a public sector agency other than executive employees. (2) The basis on which a person is engaged as an employee must be as— (a) an ongoing employee; or (b) a term employee; or (c) a casual employee. (3) A person is only to be engaged as a term employee, and the person's engagement is only to be extended, as follows: (a) a person may be engaged as a term employee for duties required for the carrying out of a project of a duration not exceeding 5 years and the engagement may be extended (including beyond a total of 5 years) but not so that the term extends beyond the duration of the project; (b) a person may be engaged as a term employee for a specified term for duties required to be performed because of the absence of another employee or while selection processes are conducted in respect of the duties and the engagement may be extended but not so that the term extends beyond the absence of the employee or the completion of the selection processes; (c) a person may be engaged as a term employee for a specified term not exceeding 5 years in cases of a special or exceptional kind prescribed by the regulations and the engagement may be extended but not so that the term extends beyond a total of 5 years; (d) a person may be engaged as a term employee for a specified term not exceeding 2 years for duties that are otherwise of a temporary nature and the engagement may be extended but not so that the term extends beyond a total of 2 years. (4) The regulations may impose further limits on the exercise of the power to engage or extend the engagement of persons as term or casual employees. (5) A public sector agency may change the basis on which a person is engaged as an employee at any time with the employee's agreement. (6) In this section— absence of an employee from duties means the absence of an employee in circumstances in which the employee may return to the duties; extend the engagement of a person as a term employee includes re‑engage the person as a term employee so as to continue the same or similar duties. 46—Merit‑based selection processes (1) The following may only occur as a consequence of selection processes conducted on the basis of merit in accordance with the regulations: (a) engagement of a person as an employee of a public sector agency; (b) promotion of an employee of a public sector agency to a higher remuneration level; (c) changing the basis on which a person is engaged as an employee of a public sector agency to engagement as an ongoing employee. (2) Subsection (1) does not apply— (a) to the engagement of a casual employee; or (b) to the promotion of an employee by way of reclassification of the employee's remuneration level; or (c) to the engagement of an employee under an employment opportunity program; or (d) in circumstances prescribed by the regulations. 47—Assignment of duties A public sector agency may from time to time determine the duties of a person as an employee of the agency and the place or places at which the duties are to be performed. 48—Probation (1) This section does not apply to an executive employee. (2) A person who is not already in the employment of a public sector agency is, when engaged as an employee of a public sector agency, at first on probation for 12 months, unless the agency determines that no probation is required or determines a lesser period of probation. (3) The employment of an employee who is on probation may be terminated by the public sector agency at any time. (4) If an employee has been on probation for at least half of the period of probation, the agency may confirm the employee's employment and, in that event, the employee ceases to be on probation. (5) Unless the employee's employment is sooner confirmed or terminated, the employee ceases to be on probation at the end of the period of probation. (6) For the purposes of this section, probationary service does not include a period for which the employee has been absent on leave without pay. (7) A period of probation that applies to an employee under this section will be taken to be reasonable for the purposes of the Fair Work Act 1994. 49—Remuneration (1) An employee of a public sector agency is entitled to remuneration in accordance with the employee's remuneration level. (2) A deduction may be made from an employee's remuneration for any charge payable by the employee under a determination of the Commissioner under Part 4 in respect of accommodation, services, goods or any other benefit provided to the employee in connection with his or her employment. (3) The remuneration level of an employee of a public sector agency may be reclassified by the agency on the initiative of the agency or on application to the agency by the employee. (4) The regulations may not exclude the right of an employee to apply under Part 7 Division 4 to SAET for review of a decision on an application by the employee under subsection (3). 50—Additional duties allowance (1) A public sector agency may direct an employee of the agency to perform specified duties in addition to those on which the employee's remuneration level is based. (2) The agency may authorise payment to the employee of an allowance appropriate to the duties being performed. 51—Hours of duty and leave The hours of duty of an employee of a public sector agency and the rights of an employee of a public sector agency to holidays and leave are governed by Schedule 1. 52—Resignation (other than executives) (1) An employee of a public sector agency, other than an executive employee, may resign from his or her employment by not less than 14 days notice in writing to the agency (unless notice of a shorter period is accepted by the agency). (2) If an employee of a public sector agency— (a) is absent, without authority, from his or her employment for a period of 10 working days; and (b) gives no proper written explanation or excuse for the absence to the agency before the end of that period, the employee will, if the agency so determines, be taken to have resigned from his or her employment. 53—Reduction in remuneration level (1) A public sector agency may reduce the remuneration level of an employee of the agency without the employee's consent on any of the following grounds: (a) the employee is excess to the requirements of the agency at the higher remuneration level; (b) the employee's physical or mental incapacity to perform duties satisfactorily at the higher remuneration level; (c) the employee's unsatisfactory performance of duties at the higher remuneration level; (d) the employee's misconduct; (e) the employee's lack of an essential qualification for performing duties at the higher remuneration level. (2) A public sector agency may not reduce an employee's remuneration level under subsection (1)(a) or (b) unless the agency has made reasonable endeavours to find, but has failed to find, other suitable duties in the agency, or other public sector employment (to which this Part applies), to which the employee might be assigned or transferred on conditions that maintain the employee's substantive remuneration level. (3) If an employee's remuneration level is reduced under subsection (1)(a), the employee is entitled to supplementation of the employee's remuneration in accordance with the relevant provisions of an award or enterprise agreement or, if there is no award or enterprise agreement covering the matter, in accordance with a scheme prescribed by the regulations. (4) The power to reduce an employee's remuneration level under this section includes (without limitation) power— (a) to reduce an employee's remuneration level to a remuneration level from a classification structure, or different classification structure, fixed by a determination of the Commissioner under Part 4; and (b) to reduce an employee's remuneration level to a remuneration level for a class of employees not subject to a determination of the Commissioner under Part 4; and (c) to reduce an employee's remuneration level as a preliminary step to assigning or transferring the employee to other duties in the agency or other public sector employment (whether or not employment to which this Part applies). 54—Termination (1) A public sector agency may terminate the employment of an employee of the agency on any of the following grounds: (a) the employee is excess to the requirements of the agency; (b) the employee's physical or mental incapacity to perform his or her duties satisfactorily; (c) the employee's unsatisfactory performance of his or her duties; (d) the employee's misconduct; (e) the employee's lack of an essential qualification for performing his or her duties. (2) The employment of an employee may not be terminated under subsection (1)(a) or (b) unless the public sector agency has made reasonable endeavours to find, but has failed to find, other suitable duties in the agency, or other public sector employment (to which this Part applies), to which the employee might be assigned or transferred on conditions that maintain the employee's substantive remuneration level. (3) A public sector agency may not terminate the employment of an employee under subsection (1) on any ground unless the agency— (a) has informed the Commissioner of the grounds on which it is proposed to terminate the employment of the employee and the processes leading up to the