Initial analysis of NSW Government Sector Employment Bill 2013

[With thanks to the NSW Fire Brigade Employees’ Union Industrial Team]

The State Government introduced the Government Sector Employment Bill 2013 (the Bill) on Thursday 23 May. This Bill was foreshadowed in the Public Sector reform announcement made in February this year.

The Bill is a comprehensive rewrite of the existing Public Sector Employment and Management Act 2002 which the new legislation will replace when it is proclaimed.

The Public Service Commission has advised  that the Bill will not come into operation for four to six months. This is because the Bill cannot operate without the regulations and government sector employment rules being put in place.

The Government Sector Employment Bill 2013 is cognate with the Members of Parliament Staff Bill 2013, which means it will be debated concurrently in the Parliament. The Members of Parliament Staff Bill 2013 creates separate employment legislation for the staff of political office holders including staff of Ministers and Members of Parliament.

Issues:

The structure of the Bill

The Bill is designed to simplify the statutory arrangements and shift much of the substance and detail of public sector employment provisions out of legislation and into regulations and other statutory instruments such as the newly created government sector employment rules. This diminishes the role of the Parliament in overseeing the administration of the public sector and leaves too much detail in the hands of the Executive arm of Government or the Public Service Commission.

Merit

The Bill removes the statutory protections for merit selection. Section 18, the requirement to advertise positions, and section 19, the requirement for merit appointment, of the existing Public Sector Employment and Management Act 2002 are removed and no similar provisions appear in the new Bill.

Promotional appeals are abolished, thus, removing the last remaining independent review mechanism for merit appointments.

Permanency

The Bill abolishes the concept of ‘officers’ holding a defined ‘position’ and replaces it with the vague concept of ‘role’. This removes the security of tenure for public servants. Employees will be assigned by the agency head to any role within their classification and thereafter may be reassigned. This change also raises concerns about the ability of agencies to move roles from one location to another.

Crucially, the Bill removes the requirement in section 7(3) of the existing Public Sector Employment and Management Act 2002, which stipulates that the usual basis for employment be on a permanent basis.

The detailed provisions that regulate the use of casual and temporary staff have also been removed. The Bill specifies that employees can be engaged for a temporary purpose but lacks specifics about what that means.

Protections against termination

The Bill removes legislative protections contained in the Managing Conduct and Performance sections of the existing Public Sector Employment and Management Act 2002 and expands the grounds for termination in section 47. Under the new Bill, employees can be terminated for failing to meet the conditions of engagement as imposed by the proposed section 44. The actual conditions of engagement are not specified.

Employees can be terminated for lacking or losing an essential qualification for performing duties of the assigned role. In addition, employees can be terminated if their performance is determined to be unsatisfactory in accordance with section 68 and the subsequent government sector rules dealing with unsatisfactory performance.

Termination of ongoing employment can occur if the employee has abandoned their employment. The Bill does not expand on this ground for termination.

A very wide ranging ground for termination listed allows employment to be terminated on any other ground prescribed by the regulations, without providing any further specifics.

Political independence

The rewriting of this legislation is an opportunity to modernise the legislative framework for the public sector. Unfortunately the opportunity to strengthen the independence of senior executive employees is lost in the failure to remove the current provisions for termination of employment for ‘no reason’.

The proposed section 41(1) is the principle mechanism that enables the politicisation of the senior levels of the public service and impedes the provision of ‘frank and fearless advice’.

Jurisdiction of the Industrial Relations Commission

The Bill facilitates the removal of access to the Industrial Relations Commission and Award system for senior officers who are currently covered by an award. No case has been made as to why the proposed Public Service senior executive stream should be wholly excluded from the jurisdiction of the Commission. The Parliament should take a cautious approach and not remove rights and entitlements unnecessarily.

This proposal also further diminishes the size of the NSW industrial relations jurisdiction and the loss of promotional appeals will have an adverse effect on the work load of the Industrial Relations Commission.

Extended leave

The Bill removes the extended leave (long service leave) provisions of the existing Public Sector Employment and Management Act 2002. Instead it is proposed to prescribe extended leave provisions through regulation.  The Bill only states that employees have an entitlement to extended leave but does not provide parameters or specifics of the entitlement. The draft regulation is not yet available and reliance is placed on the assurances from the Government that they do not intend to change the extended leave entitlements.

Importantly, as opposed to legislation, a regulation can be changed at any time, unilaterally, by the Government, causing less certainty for employees about their entitlements.

Enforceability of instruments

The Bill creates new instruments called government sector employment rules that will set out the detail around procedural matters taken out of the existing Public Sector Employment and Management Act 2002. The government sector employment rules do not appear to be enforceable in any way through traditional legal channels.  Any rights, benefits or duties specified in these government sector employment rules will be enforced by the Public Service Commission, which is under-resourced for the task.

Government sector employment rules can be changed at any time by the Public Service Commissioner.  There is far less certainty about the matters dealt with by these provisions than if the matters in question were enshrined in Acts or Awards.

The Bill replicates the Ethical Framework in Part 1.2 of the existing Public Sector Employment and Management Act 2002 but the provision of the proposed section 8 has the effect that the Government cannot be held to these standards in a court of law.

A new front is opening up for NSW workers under the O’Farrell Govt…. stay tuned…..