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CLAUSE NOTES
STATE SERVICE AMENDEMENT
BILL 2012
PART 1 - PRELIMINARY
Clause 1: Short Title
This provides the short title to be used when citing the Act for any
legal purpose.
Clause 2: Commencement
The Clause provides for commencement on the day the Act is
proclaimed.
PART 2 STATE SERVICE ACT 2000 AMENDED
Clause 3: Principal Act
The Principal Act, which this part of the Bill amends, is the State
Service Act 2000.
Clause 4 Section 3 amended (Interpretation)
This Clause amends section 3 of the Principal Act by:
(a) Inserting the definition of Auditor-General
This Subclause adds a definition of the Auditor-General.
(b) Removing definition of State Service Commissioner
and Commissioner's Directions
The office of the State Service Commissioner is
abolished with the Commissioner's functions being
undertaken by the Employer, the Head of the State
Service, the Tasmanian Industrial Commission and the
Auditor-General as detailed in the following
amendments. This clause also provides for the removal
of Commissioner's Directions which are replaced by
Employment Directions.
CA465406
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(c) Inserting the definition of Employer
This Subclause defines the Employer of State Services
employees and officers as the Minister administering the
State Service Act 2000, and defines Employment
Directions that replace present Commissioner's and
Ministerial Directions.
(d) Inserting definition of Head of the State Service
This Subclause provides for the Head of the State
Service. This is a newly defined role in the Act in Section
20.
(e) Omitting the definition of Ministerial Directions
This Clause removes the definition of Ministerial
Directions which, along with Commissioner's Directions,
are replaced by Employment Directions.
(f) Subclause (f) provides for a punctuation change
(g) Inserting definition of the Tasmanian Industrial
Commission
This Subclause adds a definition of the Tasmanian
Industrial Commission.
(h) Removing reference to Commissioner's Directions
and Ministerial Directions, and removing reference to
Commissioner's Directions
This Clause removes reference to Commissioner's
Directions and Ministerial Directions, and replaces with
reference to Employment Directions. Reference to
Section 20 is deleted from the Clause as this Clause
previously dealt with Commissioner's Directions.
Clause 5 Section 10 amended (Breaches of Code of Conduct)
3
This Clause amends Section 10 of the Act by removing reference
to the State Service Commissioner and replacing it with the
Employer. Section 10 of the Act until now provided for the State
Service Commissioner rather than the Employer to establish
procedures for the investigation and determination of the
whether an employee has breached the Code of Conduct.
Section 10 will also provide that an employee or officer cannot
be victimised, or discriminated against because they have
reported a breach to the Employer, Head of Agency or Integrity
Commission.
4
Clause 6 Part 4 and 5 substituted (Part 4 Powers of the Minister,
and Part 5 State Service Commissioner)
This provides for the substitution of Parts 4 and 5 of the State
Service Act 2000, which specified the Powers of the Minister and
the State Service Commissioner respectively. Under the new
governance arrangements the Minister administering the State
Service Act is the Employer. The role of the Tasmanian State
Service Commissioner is abolished and the employer related
administration functions and powers of the Commissioner are
transferred to the Employer, the performance and examination
of the Employer's functions and powers sit with the Auditor-
General and the Tasmanian Industrial Commission is vested with
powers to undertake employee reviews of State Service.
Part 4 THE EMPLOYER
Section 14 defines the Employer.
Section 15 (1) provides for the Employer to have the
functions which previously were held by the State
Service Commissioner as outlined in section 15(1)(a) to
(j).
Section 15(2) provides that the Employer in undertaking
these functions must act according to equity and good
consciousness and in a manner that is consistent with
the provisions of this Act.
Section 15(2) also provides that the Employer must keep
a record of all employees showing such details as are
prescribed.
Section 16(1) provides the powers that previously sat
with the State Service Commissioner to be undertaken
by the Employer to be able to do all things necessary or
convenient to be done for or in connection with, or
incidental to, the performance of the Employer
functions under this Act.
5
Section 16(2) provides for the Employer to be able to
conduct investigations as the Employer considers
necessary for the purposes of this Act. It also provides
for the Employer to conduct his/her own investigation
and refer matters to other bodies, as well as disclose
information to the Integrity Commission.
Section 17(1) provides for the Employer to issue, vary
and revoke Employment Directions.
Section 17(2) provides for the application of the
Employment Directions.
Section 17(3) defines the term "specified" in Section 17.
Section 17(4) defines Employment Directions as
statutory rules within the meaning of the Rules
Publication Act 1953.
Part 4 Section 17(5) provides that all Ministerial
Directions and Commissioner's Directions in force
immediately before the commencement of this Act
remain in force until they are revoked by the Employer.
Part 4 Section 18(1) provides for the Employer to be
able to request the Auditor-General to conduct
investigations into any matters which relate to the
administration or management of the State Service.
Part 4 Section 18(2) provides for the Auditor-General
with the necessary access to officers and employees of
State Services Agencies to be able to undertake these
investigations.
Sections 18(3) and (4) provides for the Auditor-General
to examine the performance in relation to the functions
and powers executed by the Employer. The Auditor-
General is to include these examinations in his Annual
Plan under the Audit Act 2008 (Section 11).
6
Section 19 provides for the Employer to report to both
Houses of Parliament each year on the performance or
exercise of the Employer's functions or powers during
the preceding 12 months. Previously the State Service
Commissioner reported to Parliament.
Part 5 HEAD OF THE STATE SERVICE
Part 5 Section 20 provides for the appointment by the
Premier of a Head of the State Service. This person must
be someone holding an office specified in Column 2
Schedule 1 of the State Service Act 2000, that is, a
Head of Agency. The Head of the State Service is to
perform and exercise the functions and powers of the
Employer. Anything done by the Head of the State
Service is taken to be done by the Employer.
Section 21 provides for the officer appointed to Head
of the State Service, to be able to delegate functions
and powers but not the power of delegation.
7
Clause 7 Section 29 amended (Creation of certain offices of
Head of Agency and Senior Executive)
Section 29 of the Act provides for the creation of offices of Heads
of Agencies and senior executives, and provides for the Premier
to create an office where it has been determined that the duties
are of a senior executive nature or equivalent.
This Clause amends Section 29(4) by making the Employer, rather
than the State Service Commissioner, the person who makes the
determination that the duties are of a senior executive nature or
equivalent.
Clause 8 Section 31 amended (Appointment, &., of officers)
Subclause (a) amends Section 31(10) by replacing reference to
the Ministerial and Commissioner's Directions with Employment
Directions.
Subclause (b) provides for Officers who were previously
appointed as a permanent employee under this Act, and who
either have their appointment as an Officer not renewed or
terminated, to be able to elect to be reappointed as a
permanent employee. This provision exists currently under the Act
in Section 38 and addresses a present day anomaly. Clause 13
(b) of this Bill omits reference to these provisions under Section 38
(4) to (7), and subclause 8 inserts these clauses into Section 31
(11) to (14).
In moving these provisions reference is made only to Officer, and
reference to appointment of "a specified term or for the duration
of a specified task" is deleted as all Officers are appointed for a
specified term under Sections 29 and 30.
Clause 9 Section 31A inserted (Appointments under other Acts)
Clause 9 provides for Premier to be able to appoint all office
holders to offices under this Act where this Act or another Act so
requires.
Clause 10 Section 34 amended (Functions and powers of
Heads of Agencies)
8
Section 34 of the Act prescribes the functions and powers of
Heads of Agencies, subject to Ministerial Directions and
Commissioner Directions. The functions of Heads of Agencies are
summarised as: to ensure that the Agency is operated
effectively, efficiently and economically as is practical, and to
determine the duties to be performed by employees, allocate
and vary duties of positions and employees, assign classifications
to the duties, ensure services of the employees are used
effectively and efficiently as practical, to develop workplace
diversity programs, assist employees to undertake training,
education and development programs, and to develop internal
grievance resolution systems.
Clause 10 amends Section 34 by omitting reference to Ministerial
Directions and Commissioner's Directions and replacing with
Employment Directions.
Clause 10 also clarifies that the Head of Agency responsibilities
relating to workplace diversity is limited to his/her Agency.
Clause 11 Section 36 amended (Annual Reports by Heads of
Agencies)
Clause 11 provides for each Head of Agency to report each year
to the Head of the State Service on the employment of persons
under this Act, in a format and timeframe for reporting approved
by the Head of the State Service.
Clause 12 Section 37 amended (Appointment and Promotion
of employees)
Clause 12 replaces reference to the State Service Commissioner
and the Minister with the Employer.
Clause 13 Section 38 (Terms and Conditions of Employment of
employees)
Clause 13 replaces Minister with Employer.
It also omits subsections (4), (5), (6) and (7) which is inserted in
Section 31 by Clause 8 of this Bill.
Clause 14 Section 39 amended (Procedures for Appointments
and Promotions)
9
Subclauses 14(a) and (b) substitutes reference to the
Commissioner and Commissioner's Directions with the
Employment Directions in Section 39(1).
Subclause 14(c) substitutes Minister for Employer in Section 39(4).
Subclauses 14(d) and (e) substitutes the Commissioner with the
Tasmanian Industrial Commission which has responsibility for
Tasmanian State Service Reviews under Section 50.
Clause 15 Section 40 amended (Request by Head of Agency to
promote permanent employees without advertising)
Clause 15 substitutes Commissioner with Employer and
Commissioner's Directions with Employment Directions in Section
40(1).
Clause 15 substitutes Commissioner with Tasmanian Industrial
Relations Commission in Section 40(3).
Clause 15 also amends Sections 40(4) by substituting
Commissioner for Tasmanian Industrial Relations Commission
where a review has been determined, and replaces
Commissioner with Employer so that Employer's power to
exercise discretion to fill a position without advertising the
relevant duties is not exercised.
Clause 16 Section 41 amended (Voluntary transfers between
Agencies)
Clause 16 substitutes Commissioner's Directions with Employment
Directions.
Clause 17 Section 42 amended (Compulsory transfer between
Agencies)
Subclauses 17(a) to (c) replaces references to Minister with the
Employer.
Subclause 17(d) removes reference to the Minister delegating
this power, as Clause 6 - Part 4 Section 21(a) of this Bill already
provides for the Head of the State Service to delegate the
Employer powers under this Act.
Clause 18 Section 43 amended (Suspension)
10
Clause 18 substitutes reference to regulations with Employment
Directions.
Clause 19 Section 45 amended (Termination of employment of
fixed-term employees)
Subclause 19(a) replaces Minister with Employer.
Subclause 19(b) removes reference to the Minister delegating
this power, as Clause 6 - Part 4 Section 21(a) of this Bill already
provides for the Head of the State Service to delegate the
Employer powers under this Act.
Clause 20 Section 46 amended (Arrangements relating to
secondment of persons)
Clause 20 replaces reference to the Commissioner with
Employer.
Clause 21 Section 47 amended (Redeployment)
Clause 47 replaces reference to the Commissioner with
Employer.
Clause 22 Section 48 amended (Inability of employees to
perform duties)
Clause 23 substitutes reference to the Minister and the
Commissioner and replaces with Employer.
11
Clause 23 Section 50 amended (Review of Actions)
Section 50 provides for employees to make application to review
to the Commissioner.
Subclause 23(a) omits reference to the Commissioner and
Commissioner Directions and provides for applications for review
to be made to the Tasmanian Industrial Commission.
Subclause 23(b) removes the note that "disputes in relation to
the decision to terminate employment are to be dealt with by
the appropriate industrial tribunal" and subclause 23(c) inserts
this note as section 50(4) with the clarification that this be in
accordance with the legislation under which that Tribunal is
established.
Clause 24 Section 50(A) inserted (Relationship with
Ombudsman and other persons)
Subclause 24 inserts a new section that provides that the
Tasmanian Industrial Commission is not empowered to determine
a matter under Section 51 that is within the jurisdiction of and is
being dealt with by the Ombudsman, Integrity Commission, or
Anti-Discrimination Commission, or any other person or body that
may be prescribed, until the matter has been dealt with.
Clause 25 Section 51 amended (Determination of reviews)
Section 51 provides for the State Service Commissioner to make a
determination of a review, and to determine the procedures for
that review.
Clause 25 (see Section 51(1)) provides that the Tasmanian
Industrial Commissioner is to determine the procedures for
reviews.
Subclause 25(a) (see Section 51(1) (a)) provides for timeframes
for an employee to make an application for review to be as
prescribed by regulation. The role of the Tasmanian Industrial
Commission does not extend to setting timeframes for employees
to lodge applications for review with the Tasmanian Industrial
Commission after a decision has been made. Timeframes were
previously determined by the Commission through
Commissioner's Directions.
12
Subclause 25(b) to (k) substitutes the State Service Commissioner
with the Tasmanian Industrial Commission.
Subclause 25(l) inserts a new Section 51(8) to provide for the
Tasmanian Industrial Commission to report to Parliament each
year on the performance of its functions and exercise under this
Act. Previously the State Service Commissioner reported to
Parliament on the review functions.
Clause 26 Section 51C amended (Underperformance, &c., of
officer or employee)
Clause 26 omits reference to Minister and replaces with the
Employer, and omits Ministerial Directions and replaces with
Employment Directions.
Clause 27 Sections (53) amended (Public notification)
Clause 27 omits reference to the Commissioner and provides for
the Employer to set the period within which such notices should
appear.
Clause 28 Section 53 amended (Holidays)
Clause 28 omits reference to Minister, and replaces Minister with
Employer.
Clause 29 Section 55 amended (Regulations)
Subclause 29(b) omits the establishment of the review panels,
and the review function now rests with the Tasmanian Industrial
Commission.
Subclause 29(c) also omits reference to the Minister and State
Service Commissioner in Section 55(4) and replaces with the
Employer.
PART 3 - AUDIT ACT 2008 AMENDED
Clause 30 Principal Act
13
The Principal Act, which this part of the Bill amends, is the Audit
Act 2008.
Clause 31 Section 4 amended (Interpretation)
Clause 31 provides a definition of Employer under the State
Service Act in Section 4(1).
Clause 32 Section 12 amended (Application of State Service
Act 2000)
Clause 32 provides for the Auditor-General to be able to
investigate any matters which relate to the administration or
management of the State Service, referred to Auditor-General
by the Employer under Clause 6 of this Bill (Section 18 of the State
Service Act 2000).
14
Clause 33 - Section 23 amended (Examinations and
investigations)
Clause 34 adds Section 23(1)(g) and enables the Auditor-
General to examine the performance and exercise of the
Employer's functions and powers as outlined in the State Service
Act 2000.
Clause 34 Section 26C inserted (Investigations)
Clause 34 provides for the addition of Section 26(c) which cross
references to the investigation powers requested by the
Employer under the State Service Act.
Clause 35 Section 30 amended (Report on Examination and
Investigations)
Clause 35 amends Section 30(2) to enable the Auditor-General
to refer report findings to the Employer where appropriate.
PART 4 INDUSTRIAL RELATIONS ACT 1984
Clause 36 Principal Act
The Principal Act, which this part of the Bill amends, is the
Industrial Relations Act 1984.
Clause 37 Section 5 amended (Constitution of the Commission)
Clause 37 provides for a minimum of 2 Members of the
Commission - one being the President and, the other being the
Deputy President. This also provides for additional Commissioners
as outlined in Section 10(a). Clause 37 also provides for the
appointment of a Commissioner who has demonstrated
understanding of public sector administration.
Clause 38 Section 10 amended (Substitution to act during
absence of certain commissioners)
15
Clause 38 removes the requirement that a person shall not be
appointed to the office of a Commissioner if he has attained the
age of 65 years nor continue to act in that office after he has
attained that age.
Clause 39 Section 10A inserted (Additional Commissioners)
Clause 39 provides for an additional Section 10(a) to appoint
additional Commissioners when required. Such Commissioners
may be appointed from other jurisdictions for example, where a
Full Bench is to be established.
Clause 40 Section 15 amended (General Functions and powers
of President)
Clause 40 provides the powers for Commissioners to hear an
application for review under section 50 of the State Service Act
2000.
Clause 41 Section 19AA inserted (Commissioner to review
matters under section 50 of the State Service Act 2000)
Clause 41 provides that the Commission is to review a matter
where an application for review has been made to it under
Section 50(1) of the State Service Act 2000. It also provides that
Commission may refer any matter in relation to these
applications to the Ombudsman, the Integrity Commission or the
Anti-Discrimination Commissioner or any other person or body
that may be prescribed in the regulations.
It also provides that a person making application under Section
50(1) is not entitled to a make an application to the Full Bench of
the Commission.
Clause 42 Section 29 amended (Hearings for settling disputes)
Clause 42 replaces the "by the State Service Commissioner under
section 24(2) of the State Service Act 2000", with "by the
Employer under section 16(2)(b) of the State Service Act 2000".
PART 5 INTEGRITY COMMISSION ACT 2009
Clause 43 Principal Act
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The Principal Act, which this part of the Bill amends, is the Integrity
Commission Act 2009.
Clause 44 Section 4 amended (Interpretation)
Clause 44 removes reference to the State Service Commissioner
who was a member of the Integrity Entity.
Clause 45 Section 14 amended (Member of Board)
Clause 45 removes reference to the State Service Commissioner
as a member of the Integrity Commission Board.
PART 6 - MISCELLANEOUS
Clause 46 - Legislation Repealed
This Act will be repealed on the three hundred and sixty fifth day
from the day on which it commences.