22 February 2023
8 min read
#Workplace Relations & Safety, #Government
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Commencing on 1 March 2023, the Public Sector Act 2022 (Qld) (Public Sector Act) will provide a range of consistent employment arrangements for Queensland’s public sector by repealing and replacing the current Public Service Act 2008 (Qld) (old Act).
The Public Sector Act implements the second stage of reforms arising from the recommendations of an independent review of public sector employment laws conducted by Peter Bridgman (known as the Bridgman Review). Some of the new provisions also implement recommendations of the independent review of public sector culture and accountability by Professor Peter Coaldrake (Coaldrake Report).
In this article we provide a brief overview of some of the most significant changes the Public Sector Act will introduce to employment arrangements for the Queensland public sector.
The Public Sector Act continues to provide the legislative framework for the employment of public service employees within the public service, whilst also introducing greater consistency in employment arrangements for entities and their employees across the broader public sector in Queensland.
The most significant changes arising from the legislation will be for entities (and their public sector employees) that fall within the new term ‘public sector entity’, which operated largely outside the coverage of the old Act.
The term ‘public sector entity’ is broad. It captures all forms of entities established under an Act for a public or State purpose.
In this article we provide a brief overview of some of the most significant changes the Public Sector Act will introduce to employment arrangements for the Queensland public sector.
A new framework is established through the Public Sector Act, to give effect to the State’s commitment to reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples.
Particular entities (known as ‘reframing entities’) will be required to take active steps to:
A number of entities (known as ‘prescribed entities’) will also be required to develop a plan that identifies the measures for developing the cultural capability of the entity when providing advice to the State government and delivering services to the community. Prescribed entities must conduct annual audits of their performance against the plan.
Chief executives of all public sector entities, the police service and other prescribed entities will have obligations to promote and support equity and diversity in employment matters for the ‘diversity target groups’, namely Aboriginal peoples and Torres Strait Islander peoples, people from culturally and linguistically diverse backgrounds, people with disability, women and any other groups prescribed by regulation. The diversity target groups reflect the same ‘EEO target groups’ designated under the old Act.
The reporting requirements imposed under the old Act will continue, with additional requirements to make an equity and diversity plan, and undertake audits annually to collect data, analyse performance against the equity and diversity plan and identify opportunities to promote, support and progress equity and diversity. The requirements to plan, audit and report will be ongoing and interconnected.
A new obligation is introduced for chief executives of prescribed entities to promote and support a “culture of respect and inclusion” in their entity’s workplace, encompassing a culture where employees feel safe in the workplace, diverse experiences and perspectives are invited and respected, and employees are supported to work together to improve the performance and wellbeing of all employees. This obligation includes ensuring the entity’s training programs, policies and practices specifically promote and support a culture of respect and inclusion.
Under the Public Sector Act, processes for the recruitment and selection of public sector employees must:
In deciding which applicant is best suited to a position, each applicant’s ability to perform the requirements of the position must be considered.
However, in a notable change from the ‘merit principle’ of the old Act, which required selection for a public service position to be based on ‘merit alone’, the Public Sector Act now expressly permits consideration of the extent to which the proposed selection decision would contribute to the fulfilment of the entity’s obligations relating to equity, diversity, respect and inclusion. Matters such as the objectives, strategies and targets stated in the entity’s equity and diversity plan can be considered.
The principle of permanent employment as the default basis for employment (as opposed to, for example, temporary or casual employment) will be extended under the Public Sector Act to all public sector employees.
Employees employed on a non-permanent basis are also given an additional right to request a review of their employment status without having to wait for a further year after an earlier review. The additional right applies if an earlier review was refused on the basis that the employee was not suitable to perform the role, or the earlier review was deemed to be refused. Similarly, a public sector entity can conduct an additional review if circumstances change after an earlier review was refused, without waiting another year.
One of the review criteria for offering to convert an employee’s employment to permanent has also changed – consideration of whether the person is eligible for appointment having regard to the ‘merit principle’ will be replaced by consideration of whether the person is “suitable to perform the role”. The term “suitable”, in relation to performing a role, will have the meaning given under a directive.
In a notable departure from the status quo for public service employers under the old Act, the Public Sector Act expressly preserves a chief executive’s common law right to terminate an employee’s employment, including summarily. The examples included under section 144 include summary dismissal for serious misconduct.
The Explanatory Notes to the Public Sector Bill 2022 state that it is intended that most matters relating to the end of employment will continue to be dealt with by chief executives under the Act’s disciplinary framework, which is intended to operate alongside the common law principles that apply to the ending of employment.
The Public Sector Act establishes a new type of review (a ‘public sector review’), which can be requested by the Minister or the new oversight body (the Public Sector Governance Council (Council)). A public sector review can be undertaken by the Public Sector Commissioner, a special commissioner or another appropriately qualified person.
A ‘public sector review’ is a review of any matter or aspect of public administration or public sector management relating to the main purpose of the Public Sector Act. A public sector review includes a review about a public sector entity’s effectiveness, efficiency, functions or activities.
The newly established Council’s main function is to oversee whole-of-sector governance and provide system leadership and stewardship of the public sector.
The Minister is also given new powers to:
A duty of confidentiality will apply to public sector employees and other persons, including a selection panel member, who obtain confidential information when carrying out functions under the Public Sector Act. Confidential information is personal information about an individual. Disclosure of confidential information is authorised in certain circumstances, including where it is permitted or required to perform a person’s functions under the Act.
Public sector entities should:
While the Public Sector Act includes transitional provisions to continue existing delegations made under the old Act, the expanded coverage of the Public Sector Act across the broader public sector will require some entities to create new delegations for the delegation of powers under the Public Sector Act which previously did not apply to them under the old Act.
If you have any questions about the coverage or provisions of the Public Sector Act, please get in touch with partner Jackie Hamilton or special counsel Lara Hues.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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