State Service (Savings and Transitional Provisions) Act 2000

State Service (Savings and Transitional Provisions) Act 2000

An Act to enact savings and transitional provisions consequential on the enactment of the State Service Act 2000

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the State Service (Savings and Transitional Provisions) Act 2000 .

2.   Commencement

This Act commences on the day on which the State Service Act 2000 commences.

3.   Interpretation

(1)  In this Act –

Principal Act means the State Service Act 2000 ;

repealed Act means the Tasmanian State Service Act 1984 .

(2)  Expressions used in this Act that are defined in the Principal Act have in this Act, unless the contrary intention appears, the respective meanings given to those expressions by the Principal Act.

4.   Commissioner for Public Employment

The person holding office as Commissioner for Public Employment immediately before the commencement of the Principal Act is taken to have been appointed as State Service Commissioner under that Act for the remainder of the period specified in his or her instrument of appointment as Commissioner for Public Employment.

5.   Contracts

A contract entered into by the Commissioner for Public Employment or the Commissioner for Review under the repealed Act and in force immediately before the commencement of the Principal Act is taken to have been entered into by the State Service Commissioner under the Principal Act.

6.   Determinations

(1)  A determination made under section 10(1)(f) of the repealed Act and in force immediately before the commencement of the Principal Act is taken to have been made under section 18(1)(l) of the Principal Act.

(2)  A determination made under section 10(1)(g) of the repealed Act and in force immediately before the commencement of the Principal Act is taken to have been made under section 18(1)(b) of the Principal Act.

7.   Classification standards and procedures

Any classification standards and procedures developed under section 18(1)(c) of the repealed Act and in force immediately before the commencement of the Principal Act are taken to have been developed under section 18(1)(k) of the Principal Act.

8.   Government departments

The Government departments established under the repealed Act and in existence immediately before the commencement of the Principal Act are taken to have been established as Government departments under the Principal Act.

9.   Heads of Agencies

(1)  A person who, immediately before the commencement of the Principal Act, holds office corresponding in title to the office specified in column 2 of Division 1 of Part 1 of Schedule 1 to the Principal Act is taken to have been appointed to that office under section 31 of the Principal Act subject to the terms and conditions of his or her instrument of appointment.

(2)  All acts, matters and things done or omitted before the commencement of the Principal Act by or in relation to a Head of Agency appointed under the repealed Act have, on and after that commencement, the same force and effect as if they had been done or omitted by or in relation to the appropriate Head of Agency specified in column 2 of Division 1 of Part 1 of Schedule 1 to the Principal Act.

10.   Prescribed offices

(1)  An office prescribed under section 29 of the repealed Act and in existence immediately before the commencement of the Principal Act is taken to have been prescribed under the Principal Act.

(2)  A person who, immediately before the commencement of the Principal Act, holds an office referred to in subsection (1) is taken to have been appointed to that office under section 31 of the Principal Act subject to the terms and conditions of his or her instrument of appointment.

11.   Senior executives

A position determined by the Commissioner to be of a senior executive or equivalent specialist nature under section 38(1A) of the repealed Act and in existence immediately before the commencement of the Principal Act is taken to be an office created by the Premier under section 29(4) of the Principal Act.

12.   Standing orders

Any standing orders made under section 33(6) of the repealed Act and in existence immediately before the commencement of the Principal Act are taken to have been made under section 34(3) of the Principal Act.

13.   Employees

A person who was appointed or promoted under section 34 of the repealed Act as a permanent employee and who held office as a permanent employee immediately before the commencement of the Principal Act is taken to have been appointed or promoted as a permanent employee under section 37 of the Principal Act on the same terms and conditions of employment as those which applied to the employee immediately before that commencement.

14.   Duties of employees

An assignment of functions to an employee or a position under section 33(1)(c) of the repealed Act and in existence immediately before the commencement of the Principal Act is taken to be an assignment of duties to an employee in accordance with section 34(1)(e) of the Principal Act.

15.   Procedures for filling vacancies

Any procedures in relation to the filling of a vacant position under the repealed Act commenced but not concluded before the commencement of the Principal Act are to be concluded as if they had been commenced under the Principal Act in relation to an appointment or promotion under the Principal Act.

16.   Determinations under section 37(1) of the repealed Act

A determination made under section 37(1) of the repealed Act and in force immediately before the commencement of the Principal Act is taken to have been made under section 37(5) of the Principal Act.

17.   Persons employed under section 38 of the repealed Act

(1)  A person, other than a person to whom subsection (2) applies, employed under section 38(1)(a) of the repealed Act immediately before the commencement of the Principal Act is taken to have been appointed as a fixed-term employee under the Principal Act subject to the terms and conditions of his or her appointment under section 38(1)(a) of the repealed Act.

(2)  A person employed under section 38(1)(a) of the repealed Act immediately before the commencement of the Principal Act and who is a person, or a member of a class of persons, specified in Schedule 1 is, subject to subsection (3) , taken to have been appointed as a permanent employee under the Principal Act.

(3)  A person specified in Schedule 1 who is employed for a fixed term is taken to have been appointed under section 37(3)(b) of the Principal Act subject to the terms and conditions of his or her appointment under section 38(1)(a) of the repealed Act.

(4)  A person employed under section 38(1)(b) of the repealed Act immediately before the commencement of the Principal Act is taken to have been appointed as an officer under the Principal Act subject to the terms and conditions of his or her instrument of appointment under section 38(1)(b) of the repealed Act.

18.   Registers

A register kept under section 38(5) of the repealed Act and in existence immediately before the commencement of the Principal Act is taken to be a register made as a result of a determination of the Commissioner pursuant to section 39(1) of the Principal Act.

19.   Election to be reappointed as employee

A person who, under section 29(13) of the repealed Act, or an employee who, under section 38(8) of the repealed Act, is entitled to elect to be reappointed as a permanent employee is taken to be entitled to elect to be reappointed as a permanent employee under section 38(4) of the Principal Act.

20.   Secondments

(1)  An arrangement entered into under section 43 of the repealed Act and in force immediately before the commencement of the Principal Act is taken to be an agreement entered into under section 41(2) of the Principal Act.

(2)  An agreement or arrangement entered into under section 44(1)(a) of the repealed Act and in force immediately before the commencement of the Principal Act is taken to be an arrangement entered into under section 46(1)(a) of the Principal Act.

(3)  An agreement or arrangement entered into under section 44(2) of the repealed Act and in force immediately before the commencement of the Principal Act is taken to be an arrangement entered into under section 46(1)(b) of the Principal Act.

(4)  Where an employee is entitled under section 45(2) of the repealed Act to recommence duties in a position on completion of a period of secondment, the employee is entitled to be assigned duties under the Principal Act at a similar salary level to the duties undertaken in that position immediately before the commencement of the Principal Act.

(5)  Upon the cessation of an agreement or arrangement under section 43(1) or 44(2) of the repealed Act in respect of an employee, if the position held by the employee, immediately before the agreement or arrangement was entered into, has been declared vacant or abolished under section 45(1)(a) or (b) of the repealed Act, the Head of Agency is to assign duties under the Principal Act to the employee at a similar salary level to the position held by the employee immediately before the agreement or arrangement was entered into.

21.   Suspension

A suspension of an employee imposed under Part 8 or 9 of the repealed Act and in force at the commencement of the Principal Act is taken to be a suspension imposed pursuant to regulations referred to in section 43 of the Principal Act.

22.   Employees declared to be surplus

An employee who has been declared to be surplus to the requirements of an Agency in accordance with section 47 of the repealed Act is taken to have been accepted by the Commissioner as being available for redeployment in accordance with section 47 of the Principal Act from the date the employee was declared to be surplus under the repealed Act.

23.   Inability to discharge duties

(1)  Where the Commissioner for Public Employment has accepted a recommendation made under section 52(1) of the repealed Act, the subject matter of that recommendation is to be dealt with in accordance with the provisions of the repealed Act.

(2)  If a determination of whether an employee is able to efficiently and effectively perform the duties assigned to the employee is to be undertaken in accordance with section 48 of the Principal Act, the determination may take into account the performance of those duties by the employee in the State Service before the commencement of the Principal Act.

24.   Discipline and conduct

(1)  Where, before the commencement of the Principal Act, a Head of Agency has served notice on an employee in accordance with section 55(1) of the repealed Act, the subject matter of that notice is to be dealt with in accordance with the provisions of the repealed Act.

(2)  Where the Minister administering the repealed Act has taken action in accordance with section 58(3) , (4) or (6) of the repealed Act, the subject matter of that action is to be dealt with under the provisions of the repealed Act.

(3)  If, after the commencement of the Principal Act, a Head of Agency has reason to believe that a permanent employee employed in that Agency committed an offence under section 54 of the repealed Act before the commencement of the Principal Act, the alleged offence is to be taken as an alleged breach of the Code of Conduct referred to in section 9 of the Principal Act and is to be dealt with in accordance with section 10 of the Principal Act.

25.   Appeals

(1)  Where, before the commencement of the Principal Act, an appeal was made in accordance with section 66 of the repealed Act but has not been determined under section 68(17) of the repealed Act, that appeal is to be dealt with in accordance with the provisions of the repealed Act.

(2)  If an employee makes application to the Commissioner for a review of a State Service action that occurred before the commencement of the Principal Act, that review is to be determined in accordance with section 51 of the Principal Act.

(3)  Subsection (2) does not apply if the State Service action referred to in that subsection was the subject matter of an appeal to the Commissioner for Review under section 66 of the repealed Act.

26.   Notices

Any notice required to be published in the Gazette under section 74 of the repealed Act but not so published before the commencement of the Principal Act is to be notified under section 52 of the Principal Act.

27.   Holidays

Any action taken by the Governor in accordance with section 75(3) of the repealed Act that has effect after the commencement of the Principal Act is taken to be action taken by the Minister under section 53(3) of the Principal Act.

28.   Activities undertaken outside State Service

Where before the commencement of the Principal Act a Head of Agency has granted permission to an employee in accordance with section 79(3) of the repealed Act and that permission has not been varied or revoked, the permission continues until varied or revoked by the Head of Agency in which the employee is employed.

29.   Provisions in respect of matters to be dealt with under repealed Act

(1)  In respect of any matters required to be dealt with under the provisions of the repealed Act by virtue of this Act or section 16 of the Acts Interpretation Act 1931 after the commencement of the Principal Act, any functions or powers to be performed or exercised by the Commissioner for Review or the Commissioner for Public Employment may be performed or exercised by the Commissioner.

(2)  In respect of any matters to be dealt with under the provisions of the repealed Act after the commencement of the Principal Act, a reference to a position in the repealed Act is to be read as a reference to an assignment of duties.

30.   Certain persons to become employees

(1)  A person specified in column 1 of Schedule 2 becomes, on the commencement of the Principal Act, an officer or employee appointed or employed under the Principal Act and is taken to have been appointed or employed under that Act and to have been assigned the duties which the person was performing immediately before that commencement as if those duties had been assigned to the person under section 34(1)(e) of the Principal Act.

(2)  Where a person becomes an officer or employee by virtue of subsection (1) , that person –

(a) is to be employed in accordance with the terms and conditions specified in the award and instrument of appointment (if any) that applied to that person immediately before the commencement of the Principal Act unless those terms and conditions are varied by agreement, a decision of a competent tribunal or as otherwise prescribed in the Principal Act; and

(b) is to retain any rights that immediately before that commencement have accrued to that person; and

(c) is to have, under the Principal Act, the employment status in relation to that person as specified in column 2 of Schedule 2.

31.   Regulations

(1)  The Governor may make regulations containing provisions of a savings or transitional nature consequential on the enactment of the Principal Act.

(2)  A provision referred to in subsection (1) may, if the regulations so provide, take effect from the commencement of the Principal Act or a later day.

32.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Premier; and

(b) the department responsible to the Premier in relation to the administration of this Act is the Department of Premier and Cabinet.

SCHEDULE 1 - Employees and classes of employees

Section 17

1.   A person employed in the Department of Education, immediately before the commencement of the Principal Act, pursuant to –

(a) the Miscellaneous Workers (Public Sector) Award; or

(b) the Metal Trades (State Employees) Award; or

(c) the Electrical/Electronic Trades (Public Sector) Award; or

(d) the TAFE Tasmania Building Trades Industrial Agreement 1998; or

(e) the Building Trades (Tasmanian Public Sector) 2nd Tier and Interim Wages and Conditions Supplementary Agreement No. 1 of 1990.

2.   A person employed in the Department of Primary Industries, Water and Environment, immediately before the commencement of the Principal Act, pursuant to the Australian Workers Union (Tasmanian Public Sector) Award 1996.

3.   A person employed in the Department of Infrastructure, Energy and Resources, immediately before the commencement of the Principal Act, pursuant to –

(a) the Miscellaneous Workers (Public Sector) Award; or

(b) the Electrical/Electronic Trades (Public Sector) Award.

SCHEDULE 2 - Employment status of persons who become officers or employees

Section 30