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Public Service Act 2014 (NI)

  • Act Applied Law - C2015Q00068
  • No longer in force
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Act No. 11, 2014
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Amendment Ordinance 2015 (No. 2, 2015)
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure and Regional Development
General Comments: This Act was repealed on 1 July 2016 by the Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015) as amended by the Norfolk Island Continued Laws Amendment (2016 Measures No. 2) Ordinance 2016 (No. 5, 2016) (see F2016C00715).
Registered 16 Nov 2015
Start Date 18 Jun 2015
End Date 01 Jul 2016
Date of repeal 01 Jul 2016
Repealed by Norfolk Island Continued Laws Amendment Ordinance 2015
Table of contents.

 

NORFOLK                            ISLAND

 

Public Service Act 2014

No. 11, 2014

Compilation No. 1

Compilation date:                              18 June 2015

Includes amendments up to:            Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)

Prepared Date:                                   23 September 2015

 

 


NORFOLK                                     ISLAND

 

 

 

 

 

 

Public Service Act 2014

Pablik Serwes Aekt 2014

 

 

Contents

Part 1 ¾ Preliminary.. 3

1        Short title. 3

2        Commencement 3

3        Objects of Act 3

4        Interpretation. 3

5        Application. 3

6        Application of Criminal Code 2007. 3

Part 2 ¾ General principles relating to public service. 3

7        Public service principles. 3

8        Administration management principle. 3

9        Human resource management principle. 3

10      Merit principle. 3

11      Equality of employment opportunity principle. 3

12      Performance and conduct principle. 3

Part 3 ¾ Administration.. 3

13      Duties of Minister. 3

14      Minister’s power to obtain information, etc. 3

Part 4 ¾ Public Service Commissioner.. 3

15      Appointment of Public Service Commissioner. 3

16      Termination of appointment 3

17      Acting Commissioner. 3

18      Delegation by Commissioner. 3

19      Functions of Commissioner. 3

20      Powers of Commissioner. 3

21      Commissioner's investigatory powers. 3

22      Confidential information. 3

23      Funding of Commissioner’s activities. 3

24      Reports by Commissioner. 3

Part 5 ¾ Chief Executive Officer.. 3

25      Chief Executive Officer. 3

26      Appointment of Chief Executive Officer. 3

27      Termination of appointment 3

28      Acting Chief Executive Officer. 3

29      Directions by Minister. 3

30      Chief Executive Officer responsible to Minister. 3

31      Functions of Chief Executive Officer. 3

32      Employee records. 3

33      Powers of Chief Executive Officer. 3

34      Chief Executive Officer may employ number of employees necessary. 3

35      Delegation by Chief Executive Officer. 3

36      Reports by Chief Executive Officer. 3

Part 6 ¾ Employment, promotion, transfer and resignation.. 3

37      Chief Executive Officer to employ, promote and transfer. 3

38      Procedure for filling vacancies. 3

39      Conditions for employment, etc. 3

40      Probation for ongoing employees. 3

41      Termination of fixed period or casual employment 3

42      Fixed period employment 3

43      Casual employment 3

44      Transfers. 3

45      Transfer and change to duties generally. 3

46      Resignation. 3

47      Re‑employment of persons resigning to become candidates at elections. 3

48      Multiple employment arrangements. 3

49      Special measures to address inequality of opportunity. 3

Part 7 ¾ Secondment and redeployment.. 3

50      Chief Executive Officer may make secondment arrangements. 3

51      Declaration of ongoing employee to be potentially surplus to requirements. 3

52      Transfer of surplus employees. 3

53      Redeployment and redundancy. 3

Part 8 ¾ Employee inability or performance. 3

54      Inability or performance grounds. 3

55      Medical examination and report 3

56      Remedial action. 3

57      Employee may be suspended pending decision. 3

58      Retirement on the grounds of invalidity. 3

Part 9 ¾ Discipline. 3

59      Breaches of discipline. 3

60      Chief Executive Officer may take disciplinary action. 3

61      Medical examination and report 3

62      Disciplinary action. 3

63      Disciplinary action where employee transferred or redeployed. 3

64      Employee may be suspended pending decision. 3

65      Summary dismissal 3

66      Payment of fines. 3

67      Abandonment of employment 3

Part 10 ¾ Review of grievances and appeals. 3

68      Review of grievances. 3

69      Appeals about certain decisions. 3

70      Appeals about selection decisions. 3

71      Commissioner to deal with appeal 3

72      Commissioner may decline to deal with certain appeals. 3

73      Determination of appeal 3

74      Conduct of appeal 3

75      Protection from liability. 3

Part 11 ¾ Enterprise agreement.. 3

76      Interpretation. 3

77      Approval of enterprise agreement by Public Sector Remuneration Tribunal 3

78      Effect of enterprise agreement 3

79      Initiation of enterprise bargaining. 3

80      Employee representation. 3

81      Process for making an enterprise agreement 3

Part 12 ¾ Miscellaneous. 3

82      Employment instructions and Code of Conduct 3

83      Publication of documents relating to the public service. 3

84      Business or employment outside public service. 3

85      Work on public holidays. 3

86      Performance of duties of statutory office holder. 3

87      Consultative Committee. 3

88      Protection from liability – employee reports. 3

89      Regulations. 3

90      Amendments. 3

91      Repeal 3

Part 13 ¾ Transitional matters for Public Sector Management Act 2000  3

92      Definitions. 3

93      Chief Executive Officer. 3

94      Delegations. 3

95      Categorisation of employment 3

96      Policies and guidelines under 2000 Act 3

97      Discipline and appeals. 3

98      The Public Service Board. 3

99      Continuation. 3

100   Public Service under the 2000 Act 3

Part 14 — Review of the Act.. 3

101   Review of Act 3

Schedule 1 ¾ Persons excluded from the public service. 3

Schedule 2 ¾ Qualifications, etc of the Commissioner. 3

Schedule 3 ¾ Amendment of other Acts. 3

Schedule 4 ¾ Act repealed. 3

Schedule 5 ¾ Code of Conduct 3

 



 

 

 

 

NORFOLK                          ISLAND

 

 

 

Public Service Act 2014

Pablik Serwes Aekt 2014

 

 

An Act to regulate the administration of the public service of Norfolk Island, to repeal the Public Sector Management Act 2000 and for related purposes.

 

Part 1 ¾ Preliminary

1          Short title

      This Act may be cited as the Public Service Act 2014.

2          Commencement

      (1)        Section 1 and this section commence on the day on which notification of Assent is published in the Gazette.

      (2)        The remaining provisions commence on a day, or respective days, fixed by the Administrator by notice in the Gazette.

3          Objects of Act

      (1)        The objects of this Act are to provide a public service—

            (a)        that is apolitical, performing its functions in an impartial and professional manner;

            (b)        has the highest ethical standards;

(c)        in which employment decisions are based on merit;

(d)       that provides a workplace that is free from discrimination and recognises and utilises the diversity of the community it serves;

            (e)        has leadership of the highest quality;

(f)        that is openly accountable for its actions;

(g)        responsible to the government of Norfolk Island in providing frank, honest, comprehensive, accurate and timely advice in implementing the government’s policies and programs;

(h)        that delivers services fairly, effectively, impartially and courteously and is sensitive to the diversity of the Norfolk Island community;

(j)         that provides a reasonable opportunity to all eligible members of the community to apply for public service employment;

(k)        that is a career-based service to enhance the effectiveness and cohesion of Norfolk Island’s democratic system of government;

 

 

(m)       that establishes workplace relations that value communication, consultation, cooperation and input from employees on matters that affect their workplace;

            (n)        that provides a fair, flexible, safe and rewarding workplace;

            (o)        that focuses on achieving results and managing performance; and

            (p)        that provides a fair system of review of decisions taken in respect of its employees.

      (2)        To help achieve the objects, this Act—

      (a)        provides principles to guide —

                  (i)         administration and management of the public service; and

                  (ii)        human resource management in the public service; and

                  (iii)       performance and personal conduct of individuals in the public service; and

      (b)        provides for there to be an external independent Commissioner to review management decisions within the public service; and

      (c)        provides for there to be a Chief Executive Officer for the public service to manage, and provide strategic leadership of the public service.

4          Interpretation

      (1)        In this Act—

the Administration means the same as in the Norfolk Island Act 1979 (Commonwealth).

administration management principle, see section 8.

breach of discipline, see section 59.

casual employee means an employee employed as mentioned in paragraph 37(3)(c).

Chief Executive Officer, see section 25.

Code of Conduct means the rules in subsection 82(3) and Schedule 5.

Commissioner means the person holding or occupying the office of Public Service Commissioner mentioned in section 15.

designation means a specified level or range of salaries assigned to an employee on a scale described in an enterprise agreement or determined by the Chief Executive Officer.

disciplinary action means action under paragraph 62(1)(b) or (c).

employee means a person employed in the public service, other than —

      (a)        the Commissioner;

      (b)        the Chief Executive Officer;

      (c)        a person who is self-employed or employed by an organisation other than the public service and is engaged to perform a particular function or provide particular advice to the public service; and

      (d)       a person or class of persons as may be prescribed.

employment, for an employee, means employment in the public service.

enterprise agreement means an enterprise agreement made in accordance with Part 11 that provides for the determination of conditions of employment of employees.

equality of employment opportunity principle, see section 11.

Executive Contract of Employment means a contract of service —

      (a)        as the Commissioner; or

      (b)        as Chief Executive Officer; or

      (c)        to perform duties or a class of duties determined under paragraph 42(1)(b) as duties or a class of duties which may only be performed for a fixed period;

and which is nominated as an Executive Contract of Employment in the contract document.

fixed period employee means an employee employed as mentioned in paragraph 37(3)(b), including an employee employed under an Executive Contract of Employment.

grievance proceeding means a review under section 68.

health practitioner means —

      (a)        a registered medical practitioner; or

      (b)        any other person registered under the Health Practitioner Regulation National Law of a State or of another Territory to practise in a health profession (other than as a student).

human resource management principle, see section 9.

inability or performance grounds, see subsection 54(1).

merit principle, see section 10.

ongoing employee means an employee employed as mentioned in paragraph 37(3)(a).

performance and conduct principle, see section 12.

promotion means employee promotion in accordance with Part 6.

public service means the organisation established or continued under this Act consisting of –

(a)        the Chief Executive Officer; and

(b)        each other person appointed or employed by –

                        (i)         the Crown in right of Norfolk Island; or

                        (ii)        the Administration; or

                        (iii)       a territory instrumentality

(other than a person excluded from the public service by or under Schedule 1).

public service principles means the set of principles set out in sections 7 to 12.

remedial action means action under paragraph 56(1)(b) or (c).

remuneration includes salary and allowances.

review delegate means the person appointed by the Commissioner under section 18.

salary includes wages, and salary or wages payable by increments within a range of salary or wages.

territory instrumentality means a body corporate that is established by or under an Act (including the Companies Act 1985) and —

      (a)        is comprised of persons, or has a governing body comprised of persons, a majority of whom are or were appointed by or on behalf of the Crown, the Administration or the Legislative Assembly; or

      (b)        is subject to direction or control by a Minister; or

      (c)        is declared by regulation to be a territory instrumentality for the purposes of this definition,

but does not include —

      (d)       the public service; or

      (e)        a body declared by regulation not to be a territory instrumentality for the purposes of this definition.

      (2)        Subject to this Act, where there is an inconsistency between this Act and any other law of Norfolk Island, being a law that makes specific provision for the employment of a person to perform duties in the public service, to the promotion of an employee or an employee of a class of employees or a matter relating to the employment of an employee, the other law applies subject to this Act.

      (3)        Where there is an inconsistency between this Act and an enterprise agreement or any legislation relating to superannuation applying to an employee or the Chief Executive Officer, this Act applies subject to the enterprise agreement or that legislation.

5          Application

      (1)        This Act does not apply in relation to a person who is—

      (a)        remunerated by fees, allowances or commission only; or

      (b)        employed in an honorary capacity only; or

      (c)        referred to or holds an office as described in Schedule 1.

      (2)        A prescribed provision of this Act does not apply in relation to—

      (a)        a prescribed person or a person of a prescribed class of persons; or

      (b)        a prescribed designation, or a designation of a prescribed class of designations.

6          Application of Criminal Code 2007

Chapter 2 of the Criminal Code 2007 applies to an offence against this Act.

Note for section 6

Chapter 2 of the Criminal Code 2007 states the general principles of criminal responsibility, and the elements of an offence, deals with issues of criminal responsibility, establishes general defences, and deals with burden of proof.  It also defines, or elaborates on, certain concepts commonly used in the creation of offences.

 

Part 2 ¾ General principles relating to public service

7          Public service principles

      (1)        The general principles underlying this Act are as follows—

      (a)        the administration management principle;

      (b)        the human resource management principle, including—

                  (i)         the merit principle; and

                  (ii)        the equality of employment opportunity principle;

      (c)        the performance and conduct principle.

      (2)        The public service principles must be upheld by the following —

      (a)        the Commissioner;

      (b)        Chief Executive Officer; and

      (c)        employees.

8          Administration management principle

The administration management principle is that the administration and management of the public service must be directed towards the following—

      (a)        providing effective, efficient and appropriate services to the community and the government;

      (b)        ensuring the effective, efficient and appropriate use of public resources;

      (c)        informing, advising and assisting the government objectively, impartially and with integrity;

      (d)       ensuring that in carrying out its functions the public service—

                  (i)         is responsive to the changing needs of the community and the government; and

                  (ii)        works cooperatively internally and with persons and organisations outside the public service;

      (e)        ensuring the public service is structured and administered so that—

                  (i)         responsibilities are clearly defined; and

                  (ii)        appropriate levels of accountability are in place; and

                  (iii)       excessive formality and delay are minimised; and

                  (iv)       innovation is encouraged;

      (f)        ensuring proper standards of financial management and accounting are maintained; and

(g)        ensuring consistency and compliance with the objects of this Act.

9          Human resource management principle

      (1)        The human resource management principle is that human resource management in the public service requires that the Chief Executive Officer provide a fair, flexible, safe and rewarding workplace that must be directed towards promoting the following—

      (a)        employment based on merit;

      (b)        equality of employment opportunity;

      (c)        working environments in which employees —

                  (i)         are treated fairly, reasonably and in a non‑discriminatory way; and

                  (ii)        are remunerated at rates appropriate to their responsibilities; and

                  (iii)       have reasonable access to training and development; and

                  (iv)       have reasonable access to redress when adversely affected by improper or unreasonable decisions; and

      (d)        ensuring consistency and compliance with the objects of this Act.

      (2)        The human resource management principle incorporates the merit principle and the equality of employment opportunity principle.

10        Merit principle

      (1)        The merit principle is that the employment of a person as an employee, or the promotion or transfer of an employee, under this Act must be based solely on the person’s suitability—

      (a)        to perform the relevant duties; and

      (b)        for employment in the relevant workplace; and

      (c)        for employment in the public service.

      (2)        A person’s suitability is to be determined having regard to the person’s —

      (a)        knowledge; and

      (b)        skills; and

      (c)        qualifications and experience; and

      (d)       potential for future development.

      (3)        The merit principle applies subject to subsections 44(5), 49(1), 52(2), 56(3) and 62(3).

11        Equality of employment opportunity principle

      (1)        The equality of employment opportunity principle is that human resource management in the public service must be directed towards the following—

      (a)        ensuring all persons have equal opportunity to compete for employment, promotion and transfer, and to pursue careers, within the public service;

      (b)        eliminating unlawful discrimination from human resource management in the public service;

      (c)        promoting diversity among employees reflective of the diversity of persons in the community; and

      (d)        ensuring consistency and compliance with the objects of this Act.

      (2)        In this section —

unlawful discrimination means the taking of adverse action against a person who is an employee or prospective employee because of the following attributes of the person ¾

          race

          colour

          sex

          sexual preference

          age

          physical or mental disability

          marital status

          family or carer’s responsibilities

          pregnancy

          religion

          political opinion

          national extraction or social origin;

where adverse action taken by the Chief Executive Officer or an employee includes doing, threatening or organising any of the following—

          dismissing an employee

          injuring an employee in their employment

          altering an employee’s position to their detriment

          discriminating between one employee and other employees

          refusing to employ a prospective employee

                        discriminating against a prospective employee on the terms and conditions in the offer of employment.

12        Performance and conduct principle

      (1)        The performance and conduct principle is that a public service employee must do the following—

      (a)        carry out the employee’s duties as follows—

                  (i)         objectively, impartially, professionally and with integrity;

                  (ii)        to the best of the employee’s ability;

                  (iii)       in accordance with the Act and any code of conduct applicable to the employee under paragraph 82(2)(c).

      (b)        treat other public service employees, other persons in the workplace and members of the public fairly, equitably and with proper courtesy and consideration;

      (c)        ensure effective, efficient and appropriate use of public resources;

      (d)       avoid actual or apparent conflicts of interest between personal or other interests and duties as a public service employee;

      (e)        ensure the employee’s personal conduct does not—

                  (i)         adversely affect the performance of the employee’s duties as a public service employee; or

                  (ii)        bring the public service into disrepute; and

(f)        ensure consistency and compliance with the objects of this Act.

      (2)        In this section —

public service employee means the Commissioner, Chief Executive Officer or an employee.

 

Part 3 ¾ Administration

13        Duties of Minister

      It is the duty of the Minister to—

      (a)        consult with the Chief Executive Officer from time to time as provided in this Act;

      (b)        advise other Ministers of structural changes made or intended to be made by the Chief Executive Officer in order to improve the efficiency and effectiveness of public service operations where such changes arise from planning, programs and initiatives for management of the public service or the improvement of the management, efficiency or effectiveness of the public service devised or caused to be carried out in accordance with this Act;

      (c)        consult with the Commissioner from time to time as required by this Act;

      (d)       cause to be reviewed, on the Minister’s own motion or at the request of another Minister, the efficiency and effectiveness of the public service in addition to causing the devising and carrying out of planning, programs and initiatives for management of the public service or the improvement of the management, efficiency or effectiveness of the public service; and

      (e)        administer this Act as required and in accordance with its provisions.

14        Minister’s power to obtain information, etc

The Minister may obtain or require provision by or through the Chief Executive Officer of any such information or advice as the Minister may from time to time consider necessary or appropriate for the performance of the Minister’s duties and powers under this Act and any regulations.

 

Part 4 ¾ Public Service Commissioner

15        Appointment of Public Service Commissioner

      (1)        There shall be a Public Service Commissioner appointed by the Administrator in accordance with a resolution of the Legislative Assembly.

      (2)        A person appointed under subsection (1) must be a person who has qualification, skills, experience, knowledge, independence and aptitude as expected of a person holding a position such as described in Schedule 2 but must not be ordinarily resident in Norfolk Island or a former employee of the Administration or an employee of a territory instrumentality .

      (3)        An appointment under subsection (1) must, as soon as practicable after it is made, be notified in the Gazette.

      (4)        The terms and conditions, including the term of appointment, of the contract for the appointment of the Commissioner shall be that agreed between the Commissioner and the Chief Minister.

16        Termination of appointment

      An appointment under section 15 continues in force until —

      (a)        the term for which the person is engaged expires or is terminated by either party under the contract;

      (b)        the Commissioner resigns by notice in writing delivered to the Administrator; or

      (c)        the Administrator, at any time, otherwise terminates the appointment for reason that the Commissioner —

                  (i)         has been found guilty of misconduct; or

                  (ii)        has been convicted of an offence punishable by a term of imprisonment of one year or more; or

                  (iii)       has, because of mental or physical incapacity, failed to satisfactorily carry out official duties; or

                  (iv)       is incompetent or has neglected the duties of the position.

17        Acting Commissioner

      (1)        The Administrator may on the advice of the Chief Minister, in writing, appoint a person to act as the Commissioner during any period, or during all periods, when the Commissioner is absent from duty or during a vacancy in the office.

      (2)        A person appointed to act as the Commissioner during a vacancy in the office must not continue so to act for more than 12 months after the occurrence of the vacancy.

      (3)        The Administrator may—

      (a)        determine the terms and conditions (including the remuneration) of a person appointed to act as the Commissioner; and

      (b)        at any time, in the Administrator's absolute discretion, terminate the appointment.

      (4)        Where a person appointed to act as the Commissioner is otherwise employed under an Executive Contract of Employment, that contract is varied for the duration of the appointment under subsection (1) to the extent of the determination under subsection (3)(a).

      (5)        A person appointed to act as the Commissioner may resign office in writing delivered to the Administrator.

18        Delegation by Commissioner

      (1)        Subject to this section, the Commissioner may delegate any of the Commissioner’s powers or functions under this Act, other than this power of delegation, to any person suitably qualified to carry out the powers or functions to be delegated.

      (2)        The Commissioner may under subsection (1) delegate functions, but not the same functions, to one or more persons.

      (3)        A person to whom functions are delegated under subsection (1) is known as a review delegate.

      (4)        The Commissioner must not delegate a power or function to a person who is ordinarily resident in Norfolk Island or who is employed in the public service.

19        Functions of Commissioner

      The functions of the Commissioner are—

      (a)        to determine practices and procedures relating to making and reviewing decisions concerning discipline and termination of employment of employees and any other such matters relating to human resource management—

                  (i)         within the management function of the public service; and

                  (ii)        upon appeal to the Commissioner;

      (b)        to conduct or cause to be conducted inquiries and investigations into, and reviews of, the management practices of the public service;

      (c)        to issue directives or information concerning—

                  (i)         matters arising from any review determination;

                  (ii)        the handling, production and protection of, and of the information contained in, any document or evidence for which legal privilege is claimed; and

                  (iii)       the protection, security and disclosure of information, documentary or otherwise, including processes for referral of any commission or possible commission of any offence for investigation and/or prosecution.

      (d)       to consult with the Chief Executive Officer and make arrangements for the provisions of such staff and accommodation as may be reasonably necessary to enable the Commissioner to carry out the functions of the Commissioner under this Act;

      (e)        to establish and publish policies and procedures for staff or secretariat of the Commissioner while serving the Commissioner and after the cessation of any duties in connection therewith;

      (f)        to perform such other functions as are imposed on the Commissioner by or under this or any other Act.

20        Powers of Commissioner

      (1)        The Commissioner has power to do all things necessary or convenient to be done for or in connection with or incidental to the performance of his or her functions and the exercising of his or her powers.

      (2)        The Commissioner may, in writing, determine all matters permitted by this or another enactment to be determined by the Commissioner.

21        Commissioner's investigatory powers

      (1)        For carrying out functions under this Act, the Commissioner may do one or more of the following —

      (a)        at a reasonable time enter and inspect premises occupied by the public service (other than any part of a premises used as a residence);

      (b)        obtain relevant information from persons as, and in the way, the Commissioner considers appropriate;

      (c)        consult with persons as the Commissioner considers appropriate;

      (d)       make inquiries as the Commissioner considers appropriate.

      (2)        Without limiting subsection (1)(b), the Commissioner may require a person to do one or more of the following —

      (a)        appear before the Commissioner;

      (b)        give information to the Commissioner, on oath or otherwise;

      (c)        produce information or documents to the Commissioner;

      (d)       verify information or a document by statutory declaration.

      (3)        A person must comply with a requirement under subsection (2).

Penalty — 20 penalty units.

      (4)        An offence against subsection (3) is an offence of strict liability.

      (5)        It is a defence to a prosecution for an offence against subsection (3) if the person establishes a reasonable excuse.

      (6)        Without limiting subsection (5), it is a reasonable excuse if complying with the requirement might tend to incriminate the person.

22        Confidential information

      (1)        If confidential information is given to the Commissioner by—

      (a)        the Ombudsman;

      (b)        the officer in charge of the police force;

      (c)        the Auditor General; or

      (d)       a person or persons prescribed by regulation¾

the Commissioner may deal with it under this Act.

      (2)        Subsection (1) does not affect any obligations under this or any other enactment relating to confidentiality of information.

      (3)        In subsection (1)—

deal with includes exercise a power or perform a function under this Act.

confidential information means any information in respect of which an obligation is created or imposed under this or any other enactment relating to the confidentiality of such information.

23        Funding of Commissioner’s activities

      (1)        The Commissioner shall be provided by the Administration with sufficient funds to carry out the duties of the Commissioner under this Act.

      (2)        The Commissioner must at least one month before the 30 June in each year (or at such earlier time as specified in writing by the Minister) submit to the Minister a budget setting out his or her estimate of the funds required to carry out the Commissioner’s activities in the subsequent 12 months and providing such detail of the allocation of the funds estimate as to enable a determination to be made of the appropriateness, sufficiency or otherwise of the estimates.

24        Reports by Commissioner

      (1)        Within 3 months after the end of each financial year, the Commissioner must report in writing to the Minister on human resource management in the public service during that financial year.

      (2)        The report must contain information about the following —

      (a)        the extent to which the human resource management principle and performance and conduct principle have been upheld in the public service during the financial year, including —

                  (i)         measures taken to ensure they are upheld; and

                  (ii)        any significant failures to uphold them of which the Commissioner is aware;

      (b)        measures, if any, taken to improve human resource management in the public service;

      (c)        the extent to which disciplinary, redeployment and inability procedures were invoked in the public service;

      (d)       those matters specified in subsection 36(2) in so far as they relate to the Commissioner’s Office; and

      (e)        any other matters prescribed by regulation.

      (3)        The Commissioner may, at any time, report in writing to the Minister on any matter relating to human resource management in the public service or a part of the public service.

      (4)        The Minister must table a copy of a report under subsection (1) or (3) in the Legislative Assembly within 2 sitting days after the Minister receives the report.

 

Part 5 ¾ Chief Executive Officer

25        Chief Executive Officer

      There will be a Chief Executive Officer.

26        Appointment of Chief Executive Officer

      (1)        The Minister may, on the recommendation of the Legislative Assembly, appoint a person as Chief Executive Officer.

      (2)        Notice of the appointment must be published in the Gazette as soon as practicable after it is made.

      (3)        No person has a right or standing to appeal against, or seek the review of, a decision to recommend or appoint a person to be the Chief Executive Officer.

      (4)        The conditions of appointment of a person as Chief Executive Officer will be those specified in a written agreement known as an Executive Contract of Employment executed by the Minister, acting on the recommendation of the Legislative Assembly, and the person.

      (5)        An agreement referred to in subsection 26(4) must require the person to comply with the relevant principles under this Act and with any performance standards set from time to time by the Minister.

      (6)        Despite the other provisions of this section, an employee may act as Chief Executive Officer without entering into a written agreement.

      (7)        Not less than 7 days before receiving the recommendation of the Legislative Assembly under subsections 26(1) or 26(4), provide each member of the Legislative Assembly with a copy of the written recommendations of that selection panel.

27        Termination of appointment

      An appointment under section 26 continues in force until the Executive Contract of Employment under which the person is employed expires or is terminated by either party under the contract, or the Minister, in his or her absolute discretion, at any time, otherwise terminates the appointment.

28        Acting Chief Executive Officer

      (1)        The Minister may appoint an employee to act as Chief Executive Officer during any period, or during all periods when —

(a)        the Chief Executive Officer is absent or unable to discharge official duties; or

(b)        the position of Chief Executive Officer is vacant,

but an employee cannot in any case act as Chief Executive Officer for a continuous period of longer than 6 months.

      (2)        A person appointed under subsection (1) holds office on the terms and conditions (including as to remuneration) determined by the Minister.

      (3)        The Minister may terminate an appointment under subsection (1) at any time.

      (4)        Where a person appointed to act as Chief Executive Officer is otherwise employed under an Executive Contract of Employment, that contract is varied for the duration of the appointment under this section to the extent of the determination under subsection (2).

      (5)        A person appointed to act as Chief Executive Officer may resign office in writing delivered to the Minister.

29        Directions by Minister

      (1)        Subject to subsection (2) and anything to the contrary in an Act the Chief Executive Officer is subject to the direction of the Minister.

      (2)        The Minister must not give to the Chief Executive Officer a direction—

      (a)        relating to the employment, promotion, assignment, reassignment or terms and conditions of employment (including the remuneration) of a particular person; or

      (b)        relating to the designation to apply to an employee or to the performance of particular duties; or

      (c)        requiring the Chief Executive Officer to commence or refrain from commencing an action under Part 8 or 9 in relation to a particular employee.

30        Chief Executive Officer responsible to Minister

      The Chief Executive Officer is responsible to the Minister for the performance of the Chief Executive Officer’s functions under this Act.

31        Functions of Chief Executive Officer

      (1)        The functions of the Chief Executive Officer are to manage, and provide strategic leadership of, the public service.

      (2)        The Chief Executive Officer must exercise those functions in a way that —

      (a)        is responsive to government policies and priorities; and

      (b)        upholds the public service principles; and

      (c)        complies with all applicable —

                  (i)         laws;

                  (ii)        determinations, directions and decisions of the Commissioner.

      (3)        As part of performing those functions, the Chief Executive Officer is responsible for the following —

      (a)        directing the employees employed in the public service;

      (b)        ensuring the public service attains the objectives of the Act;

      (c)        devising and implementing organisational structures and arrangements for the public service;

      (d)       assigning designations to employees in the public service and varying those designations in accordance with designation systems, standards and procedures within the limits of the amount that has been appropriated or is otherwise available for the remuneration of employees in the public service;

      (e)        assigning duties to be performed by each employee in the public service;

      (f)        devising and implementing employee performance management and development systems for the public service;

      (g)        assisting employees in the public service to undertake relevant training, education and development programs;

      (h)        devising and implementing financial and management plans for the public service and monitoring its financial and administrative performance;

      (j)         devising and implementing record keeping and information management systems for the public service;

      (k)        devising and implementing programs to ensure that employees have equal employment opportunities in accordance with the human resource management principle;

      (m)       ensuring the application in the public service of appropriate occupational health and safety standards and programs.

      (4)        The Chief Executive Officer also has any other functions conferred under this or any other Act.

32        Employee records

      (1)        The Chief Executive Officer must keep an employment record for each person who is an employee.

      (2)        An employment record —

      (a)        must include the information prescribed by regulation; and

      (b)        may include any other information the Chief Executive Officer considers appropriate.

      (3)        Subject to the regulations, the Chief Executive Officer must keep employment records in the way, and retain them for the period, the Chief Executive Officer considers appropriate.

      (4)        An employment record is kept for the purpose of managing the person’s employment in the public service and may be used and disclosed for that purpose.

      (5)        For subsection (4), a person’s employment in the public service includes any periods of employment in the public service before or after the commencement of this Act and whether occurring consecutively, concurrently or otherwise.

33        Powers of Chief Executive Officer

      The Chief Executive Officer has such powers as are necessary to enable the Chief Executive Officer to carry out his or her functions, or exercise his or her powers, under this or any other Act and, subject to this Act, including the power to enter into any contract required or permitted under this Act to be entered into in relation to the employment of a person as an employee.

34        Chief Executive Officer may employ number of employees necessary

      The Chief Executive Officer may divide the duties to be performed by employees between such number of employees as the Chief Executive Officer considers necessary for the efficient operation of the public service, including the provision of employees to provide services to the Commissioner, but so that the total payable as remuneration of the Chief Executive Officer and employees employed or who could be employed in the public service will not at any time exceed the limits of the amount available for that purpose.

35        Delegation by Chief Executive Officer

      The Chief Executive Officer may, in writing, delegate any of the Chief Executive Officer’s powers or functions under this Act to one or more employee in the public service.

36        Reports by Chief Executive Officer

      (1)        Subject to subsection (3), the Chief Executive Officer must present a report to the Minister on the operations of the public service during a financial year.

      (2)        The report must contain information about the following—

      (a)        the functions and objectives of the public service;

      (b)        the legislation administered by the public service;

      (c)        the organisation of the public service, including the number of employees of each designation in the public service and any variation in those numbers since the last report;

      (d)       the public service’s operations, initiatives and achievements (including those relating to planning, efficiency, effectiveness and performance and, where appropriate, delivery of services to the community);

      (e)        the financial planning and performance of the public service;

      (f)        the extent to which the public service principles have been upheld during the financial year, including —

                  (i)         measures taken to ensure they are upheld; and

                  (ii)        any significant failures to uphold them of which the Chief Executive Officer is aware;

      (g)        management training and staff development programs in the public service;

      (h)        occupational health and safety programs in the public service.

      (3)        Where the Chief Executive Officer is required to make an annual report, or present an audited financial statement under an enactment or the Norfolk Island Act 1979 (Commonwealth), the report required by this section may be incorporated with that other report or financial statement and, if it is so incorporated —

      (a)        the period to which the report relates must be the same as for that other report or financial statement; and

      (b)        the report must be presented to the Minister within 6 months after the end of the period to which it relates or any earlier time as that other report or financial statement is required to be presented to the Minister.

      (4)        The Minister must table a copy of the report in the Legislative Assembly within 2 sitting days after the Minister receives the report, or if it is incorporated with another report under subsection (3), within any longer period allowed for the tabling of the other report.

 

Part 6 ¾ Employment, promotion, transfer and resignation

37        Chief Executive Officer to employ, promote and transfer

      (1)        Subject to this Act, the Chief Executive Officer may employ a person as an employee, or promote or transfer an employee, to perform duties in the public service.

      (2)        Subject to this Act, the Chief Executive Officer must not employ a person as an employee, or promote or transfer an employee, except in accordance with the merit principle and this Act.

      (3)        Employment under subsection (1) may be —

      (a)        ongoing – being employment until the employee resigns or the employment is terminated under this Act, other than casual employment; or

      (b)        fixed period – being employment for a period of time specified in the contract of employment, other than casual employment; or

      (c)        casual – being employment to work as and when required from time to time.

      (4)        Nothing in this Act authorises the employment, promotion or transfer of a person to perform duties in the public service where it would result in expenditure of a greater amount than has been appropriated or is otherwise available for the payment of the remuneration of the Chief Executive Officer and employees employed in the public service.

      (5)        Subject to this Act, the Chief Executive Officer shall give such notice of their intention to employ or promote or transfer any person in the public service in such manner and to such persons as required under this Act or as prescribed.

38        Procedure for filling vacancies

      Where a position in the public service becomes vacant or is created as a new position the vacancy (if to be filled) must be filled in the manner prescribed.

39        Conditions for employment, etc

      The Chief Executive Officer must not employ a person or promote or transfer an employee to perform duties in the public service unless the person or employee possesses such educational qualifications and meets such other requirements (including as to health and police/security clearances) as may be determined by the Chief Executive Officer, or as may be prescribed.

40        Probation for ongoing employees

      (1)        Subject to this section, an ongoing employee is employed on probation for 6 months commencing on the day on which the person commences duty under the employment.

      (2)        The Chief Executive Officer may employ an ongoing employee without probation where employment without probation is authorised by or under this or any other Act or the regulations.

      (3)        Where an employee has been on probation for 6 months or an extension of that period under paragraph (c), the Chief Executive Officer must —

      (a)        confirm the employment, and the employee ceases to be on probation; or

      (b)        terminate the employment; or

      (c)        extend the probation for a further period not exceeding 6 months or, where under subsection (4) a maximum period of probation has been determined in relation to the class of employee to which the employee belongs, for the period the Chief Executive Officer thinks fit, but so that the total period of probation does not exceed that maximum.

      (4)        For paragraph (3)(c), the Chief Executive Officer may determine, in relation to a class of employees, a maximum period for which an employee of that class may be employed on probation.

41        Termination of fixed period or casual employment

      Subject to any contract of employment under which the employee is employed, the Chief Executive Officer may terminate the employment of a fixed period employee or casual employee at any time.

42        Fixed period employment

      (1)        The Chief Executive Officer, may determine the duties or classes of duties in the public service that —

      (a)        may be performed for a fixed period; or

      (b)        may only be performed for a fixed period.

      (2)        Duties to which a determination under subsection (1) applies (fixed period duties) may, subject to the relevant determination and to subsection (6), be performed by —

      (a)        the employment of a fixed period employee; or

      (b)        the promotion or transfer of an ongoing employee for a fixed period.

      (3)        A determination under subsection (1) must specify a period, not exceeding 5 years, as the period for which a person may be employed to perform the duties.

      (4)        The Chief Executive Officer, may determine the terms and conditions to apply in relation to employment to perform fixed period duties, and where such a term or condition is inconsistent with this Act, the term or condition so determined prevails and the conditions of or under this Act, to the extent of the inconsistency, have no effect.

      (5)        A person’s employment to perform fixed period duties may be renewed in accordance with the terms and conditions determined under subsection (4).

      (6)        The Chief Executive Officer must not employ a person to perform fixed period duties unless a determination has previously been made under subsection (4) in relation to employment to perform those duties.

      (7)        If an ongoing employee is promoted or transferred under paragraph (2)(b) for a period, the employee’s terms and conditions of employment are varied during the period to the extent of the determination under subsection (4).

43        Casual employment

      (1)        The Chief Executive Officer may determine the duties or classes of duties in the public service that —

      (a)        may be performed on a casual basis; or

      (b)        may only be performed on a casual basis.

      (2)        A person cannot be employed as a casual employee to perform duties other than duties to which a determination under subsection (1) applies.

      (3)        The Chief Executive Officer, may determine the terms and conditions to apply to casual employees, and where such a term or condition is inconsistent with this Act, the term or condition so determined prevails and the conditions of or under this Act, to the extent of the inconsistency, have no effect.

      (4)        The Chief Executive Officer must not employ a casual employee unless a determination has previously been made under subsection (3) in relation to the duties the person is to perform.

      (5)        If a casual employee is employed under a contract of employment for a specified period of time, the person’s contract of employment may be renewed in accordance with the terms and conditions determined under subsection (3).

44        Transfers

      (1)        The Chief Executive Officer may transfer an employee to perform other duties within the public service, being duties the Chief Executive Officer considers the employee is capable of performing and is competent and qualified to perform, and those duties may be required to be performed in a different locality from the duties previously being performed by the employee.

      (2)        The Chief Executive Officer may transfer an employee from one part of the public service to perform duties normally performed or to be performed by employees of the same designation in another, being duties the Chief Executive Officer considers the employee is capable of performing and is competent and qualified to perform, and those duties may be required to be performed in a different locality from the duties previously being performed by the employee.

      (3)        A transfer under this section may be ongoing or for a fixed period.

      (4)        An employee transferred under this section must not refuse to commence the duties which the employee is transferred to perform in accordance with the directions given to the employee by the Chief Executive Officer.

      (5)        The merit principle does not apply in relation to the exercise of a power under this section.

45        Transfer and change to duties generally

      (1)        The duties assigned to an employee as mentioned in paragraph 31(3)(e) may be varied without the consent of the employee.

      (2)        The transfer of an employee under this Act may be made without the consent of the employee.

      (3)        However, a transfer of an employee that would result in a reduction in the employee’s designation cannot be made unless the employee consents to the reduction.

      (4)        Subsection (3) applies subject to subsections 56(3) and 62(3).

46        Resignation

      (1)        Subject to the terms of any contract under which he or she may be employed in the public service, an employee may at any time, in writing signed by him or her and delivered to the Chief Executive Officer, resign from employment in the public service.

      (2)        The regulations may require a period of notice (being not less than 14 days) to be given by an employee or for acceptance of any employee notice of resignation by a specified person or body for any employee included in a specified class of employees or of an employee resigning in prescribed circumstances.

      (3)        A resignation under this section may not be withdrawn except with the approval of the Chief Executive Officer.

      (4)        A person who resigns from employment in the public service may only be re-employed in accordance with this Act or as prescribed.

47        Re‑employment of persons resigning to become candidates at elections

      (1)        Where the Chief Executive Officer is satisfied that —

      (a)        a person —

                  (i)         resigned from the public service in order to become a candidate for election, as a member of a House of Parliament of the Commonwealth or as a member of the Legislative Assembly; and

                  (ii)        was a candidate at the election for the purposes of which the person resigned; and

                  (iii)       was not duly elected at that election; and

      (b)        the resignation took effect not earlier than one month before the date on which nominations for that election closed;

the Chief Executive Officer must, subject to this Act, on application by the person within 2 months after the declaration of the results of the election, re‑employ the person to the public service, without probation, at a salary equivalent, or as nearly as possible equivalent, to the salary that the person had immediately before the date on which his or her resignation took effect.

      (2)        Where —

      (a)        proceedings in respect of an offence against a law of the Commonwealth or of Norfolk Island or of a State or another Territory are pending against a person who has made an application under subsection (1) or in any other case where a person is seeking re-employment; or

      (b)        proceedings in respect of an offence against a law of a foreign country (being an offence which, if committed in Norfolk Island, would have constituted an offence against a law of the Commonwealth or of Norfolk Island) are pending against a person who has made such an application or in any other case where a person is seeking re-employment against such person;

the person is not eligible for re‑employment until the proceedings have been determined and unless the person has been acquitted of the offence or the Chief Executive Officer is of the opinion that the nature and circumstances of the offence are such that, if the offence had been committed by an employee, it is unlikely that the employment of the employee in the public service would be terminated.

      (3)        A person may be re‑employed under this section without being required to undergo any medical examination and whether or not the person possesses the appropriate educational qualifications or meets the appropriate requirements.

      (4)        A person re‑employed under this section is taken to have continued in the public service as if he or she had been on leave without salary during the period from the day of the person’s resignation to and including the day immediately preceding the day on which the person was re‑employed and, subject to subsection 40(3), that period forms part of the person’s service in the public service for all purposes other than calculating recreation or sick leave entitlements.

48        Multiple employment arrangements

      (1)        A person may be employed in the public service under 2 or more separate contracts of employment at the same time.

      (2)        If a person is so employed, this Act applies to the person in his or her capacity as an employee under each contract separately.

49        Special measures to address inequality of opportunity

      (1)        The merit principle does not prevent the implementation of special measures.

      (2)        The Chief Executive Officer must not implement special measures in connection with human resource management in the public service unless the measures have been approved by the Commissioner.

      (3)        In this section—

special measures means a program, plan, or arrangement that may discriminate against another person in a way that would otherwise be unlawful but is designed to promote equality of opportunity for a group of people who are disadvantaged.

 

Part 7 ¾ Secondment and redeployment

Division 1 ¾ Secondment

50        Chief Executive Officer may make secondment arrangements

      (1)        The Chief Executive Officer may enter into a secondment arrangement if the Chief Executive Officer considers it is in the public interest to do so.

      (2)        A secondment arrangement may involve —

      (a)        the secondment of an employee in the public service to perform duties for a person outside the public service; or

      (b)        the secondment of a person employed by a person outside the public service to perform duties in the public service.

      (3)        A secondment arrangement may be for any period not exceeding 3 years.

 

Division 2  ¾   Redeployment and redundancy

51        Declaration of ongoing employee to be potentially surplus to requirements

      (1)        If the Chief Executive Officer is of the opinion that an ongoing employee is potentially surplus to the requirements of the public service and where the Chief Executive Officer intends to make a declaration under this provision, the Chief Executive Officer must, by written notice to the employee, declare the employee to be potentially surplus to the requirements of the public service and state the reasons for the declaration.

      (2)        The Chief Executive Officer must give a copy of the notice to any employee organisation prescribed by regulation for the employee.

52        Transfer of surplus employees

      (1)        The Chief Executive Officer may transfer under this section an ongoing employee declared under subsection 51(1) to be potentially surplus, including to perform duties in a different locality from the duties previously being performed by the employee.

      (2)        The merit principle does not apply in relation to the exercise of a power under this section.

53        Redeployment and redundancy

      (1)        Where the Chief Executive Officer is unable under section 44 or 52 to transfer an ongoing employee declared under subsection 51(1) to be potentially surplus, the Chief Executive Officer may exercise the powers under this section.

      (2)        The Chief Executive Officer may ¾

      (a)        take such steps in relation to the training and redeployment of the employee, within such time, as the Chief Executive Officer thinks fit;

      (b)        terminate the employment of the employee in the public service on such conditions as are prescribed.

      (3)        If the employment of a person is terminated under paragraph (2)(b) the person may only be re-employed as an employee in the public service in accordance with this Act or as prescribed.

 

Part 8 ¾ Employee inability or performance

54        Inability or performance grounds

      (1)        There are inability or performance grounds for an employee if the employee —

      (a)        is not able to perform the duties he or she is assigned to perform (whether because of physical or mental illness or disability or any other reason); or

      (b)        is not suited to perform, or capable of efficiently performing, those duties; or

      (c)        is not licensed, registered or otherwise qualified for the efficient and satisfactory performance of those duties; or

      (d)       is not performing those duties efficiently or satisfactorily.

      (2)        If the Chief Executive Officer is satisfied, on reasonable grounds, that there are inability or performance grounds for an employee in the public service, the Chief Executive Officer may take action in relation to the employee under subsection 56(1).

      (3)        In determining whether there are inability or performance grounds for an employee, the Chief Executive Officer must have regard to —

      (a)        the performance and conduct principle; and

      (b)        the employee’s performance record under the public service’s employee performance management and development system as mentioned in paragraph 31(3)(f); and

      (c)        any other matter the Chief Executive Officer considers relevant.

      (4)        For determining whether there are reasonable grounds as mentioned in subsection (2), the Chief Executive Officer may, subject to the Act or the regulations, do one or more of the following —

      (a)        obtain relevant information from persons as, and in the way, the Chief Executive Officer considers appropriate;

      (b)        consult with persons as the Chief Executive Officer considers appropriate;

      (c)        make inquiries as the Chief Executive Officer considers appropriate;

      (d)       if applicable, obtain a report from a health practitioner under section 55.

      (5)        The Chief Executive Officer must not take remedial action in relation to an employee unless satisfied —

      (a)        the action is appropriate and reasonable in the circumstances; and

      (b)        the employee —

      (i)         has been given written notice of the proposed action and the grounds for taking it; and

                  (ii)        has been given a reasonable opportunity to show why the action should not be taken.

      (6)        As soon as practicable after making a decision under subsection (2), the Chief Executive Officer must give written notice of the decision to the employee.

      (7)        If the decision is to take remedial action, the notice must —

      (a)        give the reasons for the decision; and

      (b)        inform the employee of the employee’s right to request a review under section 68 or to appeal under section 69 (as appropriate).

      (8)        A decision to take remedial action takes effect on the day the notice is given to the employee or a later day specified in the notice.

55        Medical examination and report

      (1)        This section applies if the Chief Executive Officer suspects, on reasonable grounds, that inability or performance grounds for an employee are caused or contributed to by a physical or mental illness or disability of the employee.

      (2)        The Chief Executive Officer may engage a health practitioner to determine whether the employee has a physical or mental illness or disability that may adversely affect the employee’s performance of the duties he or she is assigned to perform.

      (3)        The employee must submit to examination by the health practitioner as directed by the Chief Executive Officer, and to any subsequent examinations or tests required by the health practitioner.

      (4)        The health practitioner must give a written report about the employee to the Chief Executive Officer.

      (5)        The report must set out the health practitioner’s opinion as to the following —

      (a)        whether the employee has a physical or mental illness or disability that may adversely affect the employee’s performance of those duties;

      (b)        if so —

                  (i)         the likely direct or indirect effect of the illness or disability on the employee’s performance of those duties; and

                  (ii)        how long the illness or disability or its effects are likely to last;

      (c)        whether disclosure of the information in the report to the employee by the Chief Executive Officer might be prejudicial to the employee’s health or wellbeing.

      (6)        Subject to subsection (7), the Chief Executive Officer must give a copy of the report to the employee as soon as practicable after the Chief Executive Officer receives it.

      (7)        If the health practitioner’s opinion under paragraph (5)(c) is that disclosure might be prejudicial to the employee’s health or wellbeing, the Chief Executive Officer —

      (a)        must not disclose the information in the report to the employee; but

      (b)        if asked by the employee to do so, must give a copy of the report to another health practitioner nominated by the employee.

56        Remedial action

      (1)        If permitted under section 54 to take action in relation to an employee, the Chief Executive Officer may —

      (a)        take no further action; or

      (b)        do one or more of the following —

                  (i)         order the employee to undertake training, counselling or other remedial activities the Chief Executive Officer considers appropriate in the circumstances;

                  (ii)        reduce the employee’s salary within the range applicable for the employee's designation;

                  (iii)       under section 44, transfer the employee to perform other duties in the public service; or

      (c)        terminate the employee’s employment.

      (2)        The employee must comply with an order made under subparagraph (1)(b)(i) within the period specified in the order.

      (3)        The merit principle and subsection 45(3) do not apply in relation to a transfer under subparagraph (1)(b)(iii).

Note for subsection 56(3)

Because subsection 45(3) does not apply, a transfer may be made under subparagraph 56(1)(b)(iii) that results in a reduction in the employee’s designation.

57        Employee may be suspended pending decision

      (1)        This section applies if the Chief Executive Officer —

      (a)        suspects there are inability or performance grounds for an employee in the public service; and

      (b)        has not yet made a decision under subsection 54(2); and

      (c)        is of the opinion that the suspected inability or performance grounds are of such a serious nature that the employee should not continue performing the duties he or she is assigned to perform pending the making of that decision.

      (2)        The Chief Executive Officer may suspend the employee —

      (a)        for a period or periods not exceeding a total of 6 months; and

      (b)        with or without remuneration.

      (3)        The Commissioner may during or for purposes of any review or appeal —

      (a)        extend the period of the suspension for any further period or periods the Commissioner thinks fit; or

      (b)        if the suspension imposed by the Chief Executive Officer has lapsed or been revoked – re-suspend the employee for any further period or periods the Commissioner thinks fit.

      (4)        A suspension ceases when any of the following occurs —

      (a)        the period of the suspension expires;

      (b)        the Chief Executive Officer makes a decision under subsection 44(2);

      (c)        the Chief Executive Officer or Commissioner revokes the suspension.

      (5)        An employee who is suspended under this section —

      (a)        does not accrue any leave for the period of the suspension; but

      (b)        may, during the period of the suspension, take any long service or recreation leave to which the employee was entitled at the time the suspension was imposed.

      (6)        If the Chief Executive Officer makes a decision under subsection 56(1)(a) in relation to an employee suspended under this section —

      (a)        the employee must be credited with any leave that would have accrued to the employee for the period of the suspension had the employee not been suspended; and

      (b)        if the suspension was without remuneration for any period – the employee must be paid the remuneration to which the employee would have been entitled for that period had the employee not been suspended; and

      (c)        if the employee took leave as mentioned in subsection (5)(b) – the employee must be re‑credited with the leave so taken.

      (7)        Subsection (6) does not apply if the employee’s employment is terminated under paragraph 56(1)(c).

58        Retirement on the grounds of invalidity

      (1)        For this section an employee is totally and permanently incapacitated if, because of a physical or mental condition, it is unlikely the employee will ever be able to work in any employment or hold any office for which he or she is reasonably qualified by education, training or experience or could become reasonably qualified after retraining.

      (2)        If the Chief Executive Officer is satisfied, on reasonable grounds, an employee in the public service is totally and permanently incapacitated the Chief Executive Officer may retire the employee on the grounds of invalidity.

      (3)        The Chief Executive Officer must not take action under subsection (2) unless the Chief Executive Officer —

      (a)        has obtained and considered a medical report under section 55 or 61; and

      (b)        is satisfied the action is appropriate and reasonable in the circumstances; and

      (c)        is satisfied the employee —

                  (i)         has been given written notice of the proposed action and the grounds for taking it; and

                  (ii)        has been given a reasonable opportunity to show why the action should not be taken.

      (4)        This section does not affect the Chief Executive Officer’s ability to take action under section 54 in relation to the employee.

 

Part 9 ¾ Discipline

59        Breaches of discipline

      (1)        An employee who does any of the following commits a breach of discipline

      (a)        fails to uphold the performance and conduct principle or otherwise contravenes this Act;

      (b)        is found guilty in a court of an offence that affects the employee’s employment committed before or after the commencement of this Act;

      (c)        disregards or disobeys a lawful order or direction given by a person having authority to give such an order or direction;

      (d)       uses a substance (including liquor or a drug) in a manner that results in inadequate performance of the employee’s duties or improper conduct at the place of employment;

      (e)        is negligent or careless in the performance of any of the employee’s duties or fails to perform the duties assigned to him or her;

      (f)        in the course of employment or in circumstances having a relevant connection to his or her employment, conducts himself or herself in an improper manner;

      (g)        harasses or coerces another employee;

      (h)        without good cause, is absent from duty without leave;

      (j)         except as authorised by the Chief Executive Officer, engages in any remunerative employment, occupation or business outside the public service;

      (k)        in relation to an application of the employee for employment, promotion or transfer to perform duties in the public service or at any stage in the selection process, provides information to the Chief Executive Officer or the Chief Executive Officer’s representative that the employee knows, or ought reasonably to know, is false or misleading;

      (m)       misuses or misappropriates moneys or assets of the Administration;

      (n)        uses or discloses information required by this or any other Act to be and remain confidential without a validly given prior approval or without the authority of this or another Act;

      (o)        provides information in the course of his or her employment that he or she knows or ought reasonably to know is false or misleading;

      (p)        fails to remedy previous unsatisfactory conduct or fails to comply with a formal caution.

      (2)        In this section an offence that affects the employee’s employment includes an offence that is of a nature or magnitude it is reasonable for the Chief Executive Officer to conclude that the person cannot be trusted to carry out his or her duties, or the continued employment of the person may have an adverse effect upon employees, or the public service generally, or the ability of the person to carry out his duties, and is for that reason undesirable.

60        Chief Executive Officer may take disciplinary action

      (1)        If the Chief Executive Officer is satisfied, on reasonable grounds, that an employee in the public service has committed a breach of discipline, the Chief Executive Officer may take action against the employee under section 62.

      (2)        For determining whether there are reasonable grounds as mentioned in subsection (1), the Chief Executive Officer must act in accordance with prescribed practices and procedures.

61        Medical examination and report

      (1)        This section applies if the Chief Executive Officer suspects, on reasonable grounds, that a breach of discipline was caused, or contributed to, by a physical or mental illness or disability of the employee.

      (2)        The Chief Executive Officer may engage a health practitioner to determine whether the employee has a physical or mental illness or disability that may adversely affect the employee’s performance of the duties he or she is assigned to perform.

      (3)        The employee must submit to examination by the health practitioner as directed by the Chief Executive Officer, and to any subsequent examinations or tests required by the health practitioner.

      (4)        The health practitioner must give a written report about the employee to the Chief Executive Officer.

      (5)        The report must set out the health practitioner’s opinion as to the following —

      (a)        whether the employee has a physical or mental illness or disability that may adversely affect the employee’s performance of those duties;

      (b)        if so —

                  (i)         the likely direct or indirect effect of the illness or disability on the employee’s performance of those duties; and

                  (ii)        how long the illness or disability or its effects are likely to last;

      (c)        whether disclosure of the information in the report to the employee by the Chief Executive Officer might be prejudicial to the employee’s health or wellbeing.

      (6)        Subject to subsection (7), the Chief Executive Officer must give a copy of the report to the employee as soon as practicable after the Chief Executive Officer receives it.

      (7)        If the health practitioner’s opinion under paragraph (5)(c) is that disclosure might be prejudicial to the employee’s health or wellbeing, the Chief Executive Officer —

      (a)        must not disclose the information in the report to the employee; but

      (b)        if asked by the employee to do so, must give a copy of the report to another health practitioner nominated by the employee.

62        Disciplinary action

      (1)        If permitted under section 60 to take action against an employee, the Chief Executive Officer may —

      (a)        take no further action; or

      (b)        do one or more of the following —

                  (i)         formally caution the employee;

                  (ii)        order the employee to undertake training, counselling or other remedial activities the Chief Executive Officer considers appropriate in the circumstances;

                  (iii)       require the employee to forego a benefit or entitlement arising from the employee’s employment (other than a benefit or entitlement arising under an Act or enterprise agreement) for a period not exceeding one month;

                  (iv)       order the employee to pay a fine of an amount not exceeding the employee’s remuneration for 10 days;

                  (v)        reduce the employee’s salary within the range applicable for the employee’s designation;

                  (vi)       under section 44 transfer the employee to perform other duties in the public service.

                  (vii)      if the employee was suspended without remuneration under section 64 – order all or part of that period of suspension to be taken to be suspension imposed under this section;

                  (viii)     suspend the employee without remuneration for a period the Chief Executive Officer considers appropriate; or

      (c)        terminate the employee’s employment.

      (2)        The employee must comply with an order made under paragraph (1)(b)(ii) or (iv) within the period specified in the order.

      (3)        The merit principle and subsection 45(3) do not apply in relation to a transfer under subparagraph (1)(b)(vi).

Note for subsection (3)

Because subsection 45(3) does not apply, a transfer may be made under subparagraph 62(1)(b)(vi) that results in a reduction in the employee’s designation.

      (4)        An employee who is suspended under paragraph (1)(b)(viii) does not accrue any leave for the period of the suspension.

63        Disciplinary action where employee transferred or redeployed

      Where an employee is transferred from one part of the Public Service to another part for any reason, the Chief Executive Officer may still exercise any applicable powers under this Act or any regulations in regard to any breach of discipline or investigation thereof alleged to have occurred before any such transfer.

64        Employee may be suspended pending decision

      (1)        This section applies if the Chief Executive Officer —

      (a)        suspects an employee in the public service has committed a breach of discipline; and

      (b)        has not yet made a decision under subsection 60(1); and

      (c)        is of the opinion that the suspected breach of discipline is of such a serious nature that the employee should not continue performing the duties he or she is assigned to perform pending the making of that decision.

      (2)        The Chief Executive Officer may suspend the employee —

      (a)        for a period or periods not exceeding a total of 6 months; and

      (b)        with or without remuneration.

      (3)        The Commissioner may during or for purposes of any review or appeal —

      (a)        extend the period of the suspension for any further period or periods the Commissioner thinks fit; or

      (b)        if the suspension imposed by the Chief Executive Officer has lapsed or been revoked – re-suspend the employee for any further period or periods the Commissioner thinks fit.

      (4)        A suspension ceases when any of the following occurs —

      (a)        the period of the suspension expires;

      (b)        the Chief Executive Officer makes a decision under subsection 60(1);

      (c)        the Chief Executive Officer or Commissioner revokes the suspension.

      (5)        An employee who is suspended under this section —

      (a)        does not accrue any leave for the period of the suspension; but

      (b)        may, during the period of the suspension, take any long service or recreation leave to which the employee was entitled at the time the suspension was imposed.

      (6)        If the Chief Executive Officer makes a decision under subsection 62(1)(a) in relation to an employee suspended under this section —

      (a)        the employee must be credited with any leave that would have accrued to the employee for the period of the suspension had the employee not been suspended; and

      (b)        if the suspension was without remuneration for any period – the employee must be paid the remuneration to which the employee would have been entitled for that period had the employee not been suspended; and

      (c)        if the employee took leave as mentioned in subsection (5)(b) – the employee must be re‑credited with the leave so taken.

      (7)        Subsection (6) does not apply —

      (a)        for any period of suspension for which an order is made under subparagraph 62(1)(b)(vii); or

      (b)        if the employee’s employment is terminated under paragraph 62(1)(c).

65        Summary dismissal

      (1)        Despite anything in this or any other Act or the rules known as the rules of natural justice (including any duty of procedural fairness), where the Chief Executive Officer is of the opinion that the action or omission constituting a breach of discipline amounts to misconduct of such a nature that it is in the public interest that the employee be immediately dismissed from the public service, the Chief Executive Officer may terminate the employee’s employment.

      (2)        As soon as practicable after making a decision under subsection (1), the Chief Executive Officer must give written notice of the decision to the employee.

      (3)        The notice must —

      (a)        give the reasons for the decision; and

      (b)        inform the employee of the employee’s right to appeal under section 69.

      (4)        A decision under subsection (1) takes effect on the day the notice is given to the employee or a later day specified in the notice.

66        Payment of fines

      A fine imposed under this Part is a debt due and payable to the Administration by the person on whom it is imposed.

67        Abandonment of employment

      (1)        The Chief Executive Officer may terminate the employment of an employee if the employee is absent from duty without permission for at least 10 consecutive working days.

      (2)        The Chief Executive Officer must not take action under subsection (1) unless satisfied that —

      (a)        the employee —

                  (i)         has been given written notice of the proposed action and the grounds for taking it; and

                  (ii)        has been given a reasonable opportunity to show why the action should not be taken; or

      (b)        all reasonable steps have been taken to give notice as mentioned in paragraph (a) but without success.

      (3)        In this section —

working day, for an employee, means a day on which the employee is, in accordance with his or her conditions of employment, required to be at work.

 

Part 10 ¾ Review of grievances and appeals

Division 1 ¾ Grievances

68        Review of grievances

      (1)        An employee may—

      (a)        where he or she is aggrieved by the intention of the Chief Executive Officer to terminate the employee’s employment on probation – within 14 days; or

      (b)        if aggrieved by a decision of the Chief Executive Officer —

                  (i)         under section 54 to take remedial action of a kind mentioned in subparagraph 56(1)(b)(i); or

                  (ii)        under section 60 to take disciplinary action of a kind mentioned in subparagraph 62(1)(b)(i) to (iv);

                  within 14 days after notice of the decision is given to the employee; or

      (c)        in any other case where the employee is aggrieved by his or her treatment in employment in the public service – within 3 months after the action or decision by which he or she is aggrieved;

request the Commissioner to review the action, intended action or decision complained of.

      (2)        Subject to subsections (3) and (6), the Commissioner must —

      (a)        in a case referred to in paragraph (1)(a) or (b) – within 28 days; and

      (b)        in any other case – within 3 months;

after a request under subsection (1) is received, or such longer period as, in the Commissioner’s opinion, the circumstances require, review the matter.

      (3)        Where the Commissioner believes that an employee making a request under subsection (1) has not taken adequate steps to seek redress of the grievance, the Commissioner may refer the matter to the Chief Executive Officer for consideration within the time specified by the Commissioner and the Commissioner need not review the matter under this section until that time has expired.

      (4)        Subject to this Act, the Commissioner has the powers necessary and convenient to deal with a request under this section, including the same powers and obligations in relation to a review as upon an appeal under section 74 in relation to an appeal.

      (5)        After reviewing a matter under this section the Commissioner may —

      (a)        confirm the action, intended action or decision; or

      (b)        direct the Chief Executive Officer to take or refrain from taking, as the case requires, a specified action.

      (6)        The Commissioner may decline to review an action, intended action or decision if satisfied —

      (a)        the request for review is frivolous, vexatious or not made in good faith; or

      (b)        alternative proceedings —

                  (i)         have been commenced by, or on behalf of, the employee; and

                  (ii)        have neither —

                              (A)       been withdrawn; nor

                              (B)       failed for want of jurisdiction.

      (7)        In this section, for the purpose of allowing a review under this section of treatment resulting in the termination of the employment in, or resignation from, the public service of a former employee, employee includes a former employee.

      (8)        In this section —

alternative proceedings means proceedings under another Act or a law of the Commonwealth, for a review of the action, intended action or decision.

 

Division 2 ¾ Appeals

69        Appeals about certain decisions

      (1)        Each of the following is an appealable decision

      (a)        a decision by the Chief Executive Officer under subsection 54(2) to take remedial action of a kind mentioned in subparagraph 56(1)(b)(ii) or (iii) or (c);

      (b)        a decision by the Chief Executive Officer under subsection 60(1) to take disciplinary action of a kind mentioned in subparagraph 62(1)(b)(v) to (viii) or (c);

      (c)        a decision by the Chief Executive Officer under section 65 to terminate an employee’s employment;

      (d)       a decision under section 37(1) to which section 70 applies.

      (2)        A person about whom an appealable decision is made may appeal against the decision.

      (3)        Notice of an appeal under this section must be given to the Commissioner within 14 days after written notice of the decision is given to the person.

      (4)        The making of an appeal under this section does not affect the operation or implementation of the decision the subject of the appeal.

70        Appeals about selection decisions

      This section applies if —

      (a)        a person has been notified under section 37(5) that their application has been unsuccessful; and

      (b)        the person is a prescribed eligible appellant.

71        Commissioner to deal with appeal

      (1)        The Commissioner must deal with any appeal.

      (2)        An appeal may be dealt with by the Commissioner alone or a review delegate appointed under section 18.

      (3)        The Commissioner may appoint a suitably qualified person to assist in the conduct of a hearing of any appeal but that person must take no part in any decision on the appeal.

      (4)  Subject to this Act and any regulation, any appeal may be dealt with on the papers or by interview or in such manner as the Commissioner may from time to time decide.

72        Commissioner may decline to deal with certain appeals

      (1)        The Commissioner may decline to deal with, or to continue dealing with, an appeal if satisfied —

      (a)        the appeal is frivolous, vexatious or not made in good faith; or

      (b)        alternative proceedings —

                  (i)         have been commenced by, or on behalf of, the appellant; and

                  (ii)        have neither —

                              (A)       been withdrawn; nor

                              (B)       failed for want of jurisdiction.

      (2)        In this section —

alternative proceedings means proceedings under another Act or a law of the Commonwealth for a review of the decision the subject of the appeal.

73        Determination of appeal

      (1)        The Commissioner —

      (a)        must conduct the appeal as a new hearing of the decision the subject of the appeal; and

      (b)        is not limited to consideration of the information that was available to the Chief Executive Officer.

      (2)        The Commissioner may—

      (a)        affirm the decision; or

      (b)        vary the decision; or

      (c)        set aside the decision; or

      (d)       set aside the decision and return the matter to the Chief Executive Officer for reconsideration; or

      (e)        set aside the decision and replace it with the appeal decision.

      (3)        The Commissioner returning a matter under paragraph (2)(d) may give to the Chief Executive Officer any directions the Commissioner thinks fit as to how the matter is to be dealt with.

      (4)        An appeal decision under paragraph (2)(e) must be one that could have been made by the Chief Executive Officer when he or she made the original decision.

      (5)        The Commissioner must give written notice of their decision and the reasons for it to the appellant and the Chief Executive Officer.

      (6)        The Chief Executive Officer must comply and take all such action as is necessary or appropriate to lawfully comply with any order or decision made by the Commissioner under this Act.

74        Conduct of appeal

      (1)        Subject to this section, the Commissioner may conduct an appeal in the way the Commissioner considers appropriate.

      (2)        The Commissioner must conduct the appeal—

      (a)        as expeditiously as is reasonably practicable; and

      (b)        with as little formality and technicality as is reasonably practicable; and

      (c)        in private, unless all parties agree otherwise; and

      (d)       in accordance with the regulations.

      (3)        In conducting the appeal, the Commissioner —

      (a)        is not bound by the rules of evidence but must comply with natural justice; and

      (b)        is not required to hold a hearing.

      (4)        Without limiting subsection (1), the Commissioner may do one or more of the following —

      (a)        obtain relevant information from persons as, and in the way, they consider appropriate;

      (b)        consult with persons as they consider appropriate;

      (c)        make inquiries as they consider appropriate.

      (5)        Without limiting paragraph (4)(a), the Commissioner may require a person to do one or more of the following —

      (a)        appear before the Commissioner;

      (b)        give information to the Commissioner, on oath or otherwise;

      (c)        produce information or documents to the Commissioner;

      (d)       verify information or a document by statutory declaration.

      (6)        A person appearing before the Commissioner may be represented by a legal practitioner or agent only with the leave of the Commissioner.

      (7)        A person must comply with a requirement under subsection (5).

      Penalty —       20 penalty units.

      (8)        An offence against subsection (7) is an offence of strict liability.

      (9)        It is a defence to a prosecution for an offence against subsection (7) if the person establishes a reasonable excuse.

      (10)      Without limiting subsection (9), it is a reasonable excuse if complying with the requirement might tend to incriminate the person.

75        Protection from liability

      (1)        The Commissioner, a review delegate or a person appointed to assist a review under subsection 71(3) is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function in respect of an appeal or a review.

      (2)        In addition, the person is not civilly or criminally liable for an act done or omitted to be done by the Commissioner in any appeal in the exercise of a power or performance of a function under this Act.

      (3)        Subsections (1) and (2) do not affect any liability the Administration would, apart from those subsections, have for the act or omission.

      (4)        In this section —

exercise, of a power, includes the purported exercise of the power.

performance, of a function, includes the purported performance of the function.

 

Part 11 ¾ Enterprise agreement

76        Interpretation

      (1)        In this Part, unless the contrary intention appears —

relevant employee in respect of the approval of an agreement means an employee employed at the time that the approval is given but does not include a fixed term employee or a person employed under an Executive Contract of Employment.

      (2)        For the purposes of this Part, a majority of employees will be taken to have given an approval if —

      (a)        where the decision is made by vote, a majority of relevant employees casting a valid vote; or

(b)        in any other case, a majority of relevant employees, decide that they want to give that approval.

77        Approval of enterprise agreement by Public Sector Remuneration Tribunal

      (1)        The Public Sector Remuneration Tribunal may approve as an enterprise agreement an agreement that —

      (a)        complies with subsection (3); and

      (b)        is approved in the prescribed manner by a majority of relevant employees; and

      (c)        is referred to it for approval in accordance with this Part.

      (2)        The Public Sector Remuneration Tribunal may approve the termination of an enterprise agreement if that termination is —

      (a)        approved by the Chief Executive Officer; and

      (b)        approved in the prescribed manner by a majority of relevant employees.

      (3)        For the purposes of subsection (1), an enterprise agreement—

      (a)        must relate to all employees other than fixed term employees or persons employed under an Executive Contract of Employment; and

      (b)        must be —

                  (i)         in writing; and

                  (ii)        expressed to be an enterprise agreement; and

                  (iii)       signed by the Chief Executive Officer.

78        Effect of enterprise agreement

      (1)        An enterprise agreement operates from the day of its approval by the Public Sector Remuneration Tribunal for 2 years or the shorter period specified in the agreement unless earlier terminated in accordance with this Act or the agreement.

      (2)        An enterprise agreement must not be inconsistent with the human resources management principle.

79        Initiation of enterprise bargaining

      The process and procedure for commencing negotiations for a proposed enterprise agreement shall be as prescribed.

80        Employee representation

      The form of representation by employees in a process for negotiating an enterprise agreement shall be in the manner prescribed.

81        Process for making an enterprise agreement

      The process to be followed in carrying out and implementing a proposed enterprise agreement shall be as prescribed.

 

Part 12 ¾ Miscellaneous

82        Employment instructions and Code of Conduct

      (1)        The Chief Executive Officer, may determine rules to be known as “Employment Instructions” —

      (a)        relating to the functions and powers of the Chief Executive Officer under this Act; or

      (b)        otherwise relating to the good management of the public service.

      (2)        Without limiting the generality of subsection (1), the Employment Instructions may do one or more of the following

      (a)        require a matter affected by them to be approved by, or be to the satisfaction of, a specified person or body;

      (b)        confer on a specified person or body, or a person or body of a specified class, a discretionary authority; or

      (3)        The Code of Conduct to be observed in the public service is as set out in Schedule 5.

83        Publication of documents relating to the public service

      All directions, instructions, guidelines, policies and procedures, statutory determinations, statutory decisions or appeal decisions relating to the public service must as soon as practicable be made available on the website of the Administration in readily downloadable and accessible format unless the Chief Executive Officer considers publication is inappropriate or unnecessary.

84        Business or employment outside public service

      (1)        An employee must not engage in paid work or paid business activities, outside his or her duties as an employee except with the approval of the Chief Executive Officer.

      (2)        The Chief Executive Officer must not give approval unless satisfied the employment will not interfere with or create any conflict of interest regarding the performance by the employee of his or her duties.

      (3)        In this section —

paid employment means employment, work or service for which payment is made by way of pay, salary, honorarium, commission, fee, allowance or other reward.

85        Work on public holidays

      The Chief Executive Officer may require the whole or part of the public service to be kept open for the whole or part of a day observed in Norfolk Island as a holiday under the Employment Act 1988 and may require the attendance and services of an employee on that day.

86        Performance of duties of statutory office holder

      (1)        In this section —

statutory office holder means an employee on whom a function is imposed or power conferred by another Act by virtue of the employee holding an office under the other Act and to which office he or she was appointed by virtue of being an employee.

      (2)        The Chief Executive Officer may not at any time direct or instruct a statutory office holder in or regarding the performance of any duties functions or powers relating to or imposed in respect of any such statutory office.

87        Consultative Committee

      (1)        The regulations may make provision for the establishment of a Consultative Committee (the Committee) that shall provide advice and guidance in matters concerning the public service but must not deal with grievances of or connected with employees in general or specifically.

88        Protection from liability – employee reports

      (1)        No civil or criminal proceedings lie against a person —

      (a)        who conducts an investigation under the Act for the Commissioner or the Chief Executive Officer; or

      (b)        who is an employee or former employee;

in relation to a report prepared in good faith by the person for this Act or in the course of his or her employment about —

      (c)        the work that has been, is being or is to be performed by an employee; or

      (d)       the work that was performed by a former employee; or

      (e)        the conduct of an employee or former employee.

      (2)        In subsection (1) —

employee includes the Commissioner and Chief Executive Officer.

former employee includes a former Commissioner and a former Chief Executive Officer.

89        Regulations

      (1)        The Administrator may make regulations under this Act.

      (2)        The regulations may prescribe a fine for an offence not exceeding 20 penalty units.

90        Amendments

      The Acts in Schedule 3 are amended as provided therein.

91        Repeal

      The Act specified in Schedule 4 is repealed.

 

Part 13 ¾ Transitional matters for Public Sector Management Act 2000

92        Definitions

In this Part —

2000 Act means the Public Sector Management Act 2000.

commencement means the commencement of this Act.

continues means continues on and after commencement.

current means in force immediately before commencement.

new, for a provision of this Act, means the provision as amended by this Act.

old, for a provision of this Act, means the provision as in force under the 2000 Act.

93        Chief Executive Officer

      A person appointed as Chief Executive Officer under old section 38 and holding that office immediately before commencement, continues to hold that office as if he or she had been appointed under new section 26.

94        Delegations

      A current delegation under old section 24 continues as a delegation under new section 35.

95        Categorisation of employment

      (1)        The change in the categorisation of employment to ongoing, fixed period and casual under new subsection 37(3) does not affect —

      (a)        the employment of any person; or

      (b)        the terms and conditions of employment for any employee; or

      (c)        the rights or entitlements of any employee.

      (2)        A person who was employed on a permanent basis immediately before commencement, continues as an ongoing employee under new paragraph 37(3)(a).

      (3)        A person who was employed on a casual or temporary basis immediately before commencement, continues if the employment was on a casual basis – as a casual employee under new paragraph 37(3)(c).

      (4)        A person who was employed on a fixed term contract immediately before commencement, continues as a fixed period employee under new paragraph 37(3)(b).

      (5)        A reference in any document or agreement made before commencement to —

      (a)        a person employed on a permanent basis, is taken to be a reference to an ongoing employee; or

      (b)        a person employed on a casual or temporary or fixed term basis, is taken to be —

                  (i)         for a person employed on a casual basis – a reference to a casual employee; or

                  (ii)        for a person employed on a temporary or fixed term basis – a reference to a fixed period employee.

96        Policies and guidelines under 2000 Act

      Policies and guidelines under the Human Resources Policies and Procedures Manual made under the 2000 Act continues so far as they are applicable to, and consistent with, this Act and until repealed or superseded by human resource practices and procedures established under this Act.

97        Discipline and appeals

      (1)        (a)        an investigation;

                  (b)        a suspension; or

                  (c)        a decision;

made by the Chief Executive Officer under the 2000 Act before commencement has effect as if it had been made under this Act so that any further action that is or may be taken by the Chief Executive Officer or an employee must be taken, if at all, under this Act.

      (2)        If —

      (a)        an application was lodged under old section 60 before commencement; and

      (b)        as at commencement the application had not been withdrawn or a hearing of the appeal commenced;

the application must be heard and determined in accordance with Part 10.

      (3)        If —

      (a)        a person had, before commencement, a right to appeal under old section 58; but

      (b)        as at commencement the person had not exercised or waived that right,

the person may appeal under new section 70 against the decision as if it were a decision to which that section applies.

      (4)        If an appeal or an application has been made to the Public Service Board under old section 58 or 60 and the Board has entered upon consideration of the appeal or application, the provisions of the 2000 Act and Regulations made thereunder continue to apply until the appeal or application has been finally determined or is withdrawn before a determination is made.

98        The Public Service Board

      The Board shall continue as provided by the 2000 Act so long only as may be necessary for it to hear and determine any matter before it under the 2000 Act at commencement and as provided by subsection 97(4).

99        Continuation

      The public service under this Act is the successor in all respects to the public service established by the 2000 Act.

 

100      Public Service under the 2000 Act

      A reference in any Act to the public service under the 2000 Act is deemed to be a reference to the public service under this Act.

 

Part 14 — Review of the Act

101      Review of Act

      (1)        The Minister shall review this Act to determine if the policy objectives of the Act remain valid and if the terms of the Act remain appropriate for securing those objectives.

      (2)        The review is to be undertaken as soon as possible after the period of 12 months from the commencement and a report of the outcome of the review is to be tabled in the Legislative Assembly within 3 months thereafter.

      (3)        Nothing in this section restricts the power of the Minister to review the Act at any time or the powers of the Commissioner to review the Act or its implementation and make recommendations to the Minister at any time.

Schedule 1 ¾ Persons excluded from the public service

(Subsection 4(1))

 

1.   The following persons are excluded from the public service —

(a)        a person when engaged as judge of the Supreme Court of Norfolk Island (including the Chief Justice); or

(b)        a person when engaged as a Magistrate appointed under the Court of Petty Sessions Act 1960; or

(c)        the Auditor General; or

(d)       a person when engaged as a person appointed under section 48 of the Legislative Assembly Act 1979; or

(e)        a person when engaged as an officer or employee whose terms and conditions of appointment are to be determined by the Administrator or a Minister; or

(f)        a person when engaged as an officer or employee who is excluded from the public service under any other Act.

2.   The Minister may, by instrument in writing, exclude a person, or a class of persons, from the public service.

 

Schedule 2 ¾ Qualifications, etc of the Commissioner

(Subsection 15(2))

      (a)        a legal practitioner of not less than 10 years post admission experience; or

      (b)        a former judge or judge of appeal or former magistrate of not less than 5 years post judicial appointment experience anywhere in Australia (including for the Federal Court of Australia, the Federal Magistrates Court, the Federal Circuit Court of Australia or the Supreme Court of Norfolk Island); or

      (c)        a former industrial court or industrial tribunal or industrial commission or industrial/employment disputes statutory body presiding member; or

      (d)       a current or former Merit Protection or Public Service Commissioner of the Australian Public Service; or

      (e)        a serving or former Merit Protection or Public Service or Integrity Commissioner for any Australian State or other Territory public service; or

      (f)        a former President of the Administrative Appeals Tribunal of Australia (AAT); or

      (g)        a former or serving Chief Magistrate of Norfolk Island; or

      (h)        a former Royal Commissioner in Australia appointed by the Commonwealth or a State or other Territory.

 

Schedule 3 ¾ Amendment of other Acts

(Section 90)

The following Acts are amended as set out hereunder —

1.         Provident Account Act 1958

            For the definition “eligible employee” in section 3(1) substitute—

“eligible employee” means each employee, as defined in subsection 4(1) of the Public Service Act 2014, whose employment is ongoing as defined in paragraph 37(3)(a) of that Act.

2.         Public Sector Remuneration Tribunal Act 1992

            (a)        In paragraph (a) of the definition “public service employee” in the Schedule, for “Public Sector Management Act 2000”, substitute —

                        “Public Service Act 2014”.

            (b)        Repeal —

                        (i)         the definition “Public Service Board” in section 2;

                        (ii)        paragraph 5(3)(b); and

                        (iii)       paragraph 5(6)(b).

            (c)        Insert in subsection 8(1) new paragraph as follows—

“(ca) to consider and approve the provisions of an enterprise agreement referred to it in accordance with the Public Service Act 2014; and”.

            (d)       Insert in section 10 new subsection as follows—

                        “(3)      In consideration of an enterprise agreement referred to it in accordance with the Public Service Act 2014, the Tribunal must either approve the agreement or refer it back to the Chief Executive Officer for further consideration in accordance with the provisions of that Act.”.

3.         Legal Aid Act 1995    

            (a)        In subsection 3(1), for the definition “Public Service”, substitute —

“Public Service” means the public service as defined in the Public Service Act 2014.

(b)        from paragraph 15(1)(e) delete “the Administrative Review Tribunal established under the Administrative Review Tribunal Act 1996” and substitute — “the Administrative Appeals Tribunal (Commonwealth)”.

            (c)        following subsection 15(e), insert—

“(ea)    the Commissioner when reviewing a grievance or the Commissioner or a review delegate when constituting an appeal board to hear an appeal about inability, performance or disciplinary decisions under the provisions of the Public Service Act 2014; or”.

4.         Interpretation Act 1979

      In subsection 12(2) —

      (a)        for the definition “Chief Executive Officer” substitute—

“ ‘Chief Executive Officer’ means the person appointed to the office of the Chief Executive Officer under section 26 of the Public Service Act 2014.”; and

      (b)        for the definitions “public service” and “public sector employee”, substitute —

                  “ ‘public service’ has the meaning given by the Public Service Act 2014;”

“ ‘public sector employee’ or ‘public service employee’ has the meaning given by the expression ‘employee’ in the Public Service Act 2014;”.

5.         Criminal Code 2007

      In subsection 196(3) —

      For the definition of “Administration” substitute—

            “Administration includes the following:

                        (a)        the ‘public service’ within the meaning of the Public Service Act 2014;

                        (b)        an Administration-owned corporation;

                        (c)        a ‘territory instrumentality’ within the meaning of the Public Service Act 2014; or

                        (d)       a statutory office holder.”

6.         Criminal Procedure Act 2007

      In subsection 7(5) —

      For the definition of “public sector” and “public sector agency” substitute—

“ ‘public sector’ means the public service as defined in the Public Service Act 2014.

‘public sector agency’ means

                  (a)        the ‘public service’ within the meaning of the Public Service Act 2014;

                  (b)        a ‘territory instrumentality’ within the meaning of the Public Service Act 2014; or

                  (c)        a statutory office holder.”;

7.         Law of negligence and limitation of liability Act 2008

      In section 39 —

      For the definition of “public authority” substitute—

“public authority” means—

                  (a)        the Administration;

                  (b)        the “public service” within the meaning of the Public Service Act 2014;

                  (c)        a “territory instrumentality” within the meaning of the Public Service Act 2014;

                  (d)       a body, whether corporate or unincorporate, that is established by or under an enactment for a public purpose;

                  (e)        a person holding an office or position established by or under an enactment;

                  (f)        a person holding an office or position to which he or she was appointed by the Administrator or an Minister otherwise than under an enactment;

                  (g)        any other person or body prescribed (or of a class prescribed) as an authority to which this Part applies (in respect of all or specified functions);

                  (h)        any person or body in respect of the exercise of a public or other function of a class prescribed for the purpose of this Part.

 

Schedule 4 ¾ Act repealed

(Section 91)

            Public Sector Management Act 2000.

Schedule 5 ¾ Code of Conduct

(Section 82)

The Code of Conduct

         (1)           An employee must behave honestly and with integrity in the course of their employment in the public service.

         (2)           An employee must act with care and diligence in the course of their employment in the public service.

         (3)           An employee, when acting in the course of their employment in the public service, must treat everyone with respect and courtesy, and without harassment.

         (4)           An employee, when acting in the course of their employment in the public service, must comply with all applicable laws. For this purpose, law means:

                                 (a)          any Act of the Commonwealth, or any instrument made under an Act of the Commonwealth; or

                                 (b)          any enactment (including this Act), including any instrument made under an enactment.

         (5)           An employee must comply with any lawful and reasonable direction given by someone in the public service who has authority to give the direction.

         (6)           An employee must maintain appropriate confidentiality about dealings that the employee has with any Minister.

         (7)           An employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with their employment in the public service.

         (8)           An employee must use Administration resources in a proper manner.

         (9)           An employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s employment in the public service.

         (10)         An employee must not make improper use of:

                        (a)           inside information; or

                        (b)           the employee’s duties, status, power or authority;

in order to gain, or seek to gain, a benefit or advantage for the employee or for any other person.

         (11)         An employee must at all times behave in a way that upholds the public service principles and the integrity and good reputation of the public service.

         (12)         An employee on duty overseas must at all times behave in a way that upholds the good reputation of Norfolk Island.

          (13)        An employee must comply with any other conduct requirement that is determined under this Act or prescribed by the regulations.

 


NOTES

The Public Service Act 2014 as shown in this consolidation comprises Act No. 11 of 2014 and amendments as indicated in the Tables below.

Enactment

Number and year

Date of commencement

Application saving or transitional provision

Public Service Act 2014

11, 2014

s 1, 2: 3.10.2014 (s 2(1))
Remainder: 23.12.2014 (s 2(2))

 

 

 

 

 

 

 

Ordinance

FRLI registration

Commencement

Application, saving and transitional provision

Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)

17 June 2015 (F2015L00835)

Sch 1 (items 291, 292, 344, 345): 18 June 2015 (s 2(1) item 1)

Sch 1 (items 344, 345)

 

Table of Amendments

 

ad =    added or inserted

am = amended

rep = repealed

rs =      repealed and substituted

Provisions affected

How affected

4

am

Ord No 2, 2015

Sch 1

 

 

3

am

Ord No 2, 2015