Health Infrastructure Enabling Regulation 2023

The head of service must make a written offer of employment with the Territory to each public hospital employee who satisfies all of the following criteria:

they are a public hospital employee immediately before the acquisition day;

they are an eligible person under the Public Sector Management Act 1994;

they are not a person to whom the Public Sector Management Act 1994, section 138 (No reappointment of former officer in certain circumstances) applies;

they are not ineligible under an industrial agreement to be re‑employed by the Territory for a certain period because the employee has received a voluntary redundancy payment from the Territory;

they have not accepted a redundancy payment or similar payment from Calvary or a related corporation in relation to their employment as a public hospital employee.

An offer must be on terms that are, as far as possible under the Public Sector Management Act 1994, the same as or no less favourable than the terms applying to the public hospital employee’s employment immediately before the day the employee’s employment with Calvary ends under subsection (4) (a).

An offer is conditional on the public hospital employee accepting the offer before the acquisition day or by any later day notified in writing by the head of service.

For each public hospital employee who accepts an offer of employment with the Territory under this section—

unless otherwise agreed in writing between the head of service and the employee, the employee is taken to have resigned and the employee’s employment with Calvary or a related corporation as a public hospital employee ends, or is taken to have ended, on the acquisition day; and

the Territory is liable for any entitlement (including annual, long service, personal or other leave) the employee has accrued or has a right to, immediately before the day the employee’s employment with Calvary ends under paragraph (a); and

the employee’s employment as a public hospital employee is recognised prior service and continuous service for leave and other entitlements under the Public Sector Management Act 1994 and any relevant industrial agreement.

Note 1 The Fair Work Act 2009 (Cwlth) (FWA), s 22 (5), which recognises prior service of employees if there is a transfer of employment, applies to the employment of a public hospital employee by the Territory under this section. As a transferring employee’s prior service counts as service with the Territory, the employee is not entitled to a redundancy payment because their employment with Calvary ends under par (a) (see FWA, s 122 (2)).

Note 2 In accordance with par (b), annual and other leave accrued by a public hospital employee as at the day their employment with Calvary ends under par (a) carries over to their employment with the Territory. Accrued annual leave cannot be cashed out except if permitted under an industrial agreement mentioned in s 6 (see FWA, s 92).

The Territory is liable for—

any liability, loss or expense Calvary or a related corporation incurs as a result of the Territory not complying with subsection (4) (b) or (c); and

any redundancy or similar payment (not including any accrued annual, long service, personal or other leave) payable in accordance with law by Calvary or a related corporation to a public hospital employee—

who is not employed by the Territory under this section; and

whose employment with Calvary or a related corporation as a public hospital employee has been terminated on or immediately after the acquisition day because of the operation of this Act.

The amount equivalent to the Territory’s liability under subsection (4) (b) must be taken into account when working out the amount of compensation to which Calvary or a related corporation is entitled under the Act as worked out under part 4.

The following provisions do not apply to an offer of employment with the Territory under this section:

the Public Sector Management Act 1994—

section 25 (Employees); and

section 27 (Application of the merit and equity principle); and

section 68 (Appointment to vacant office);

the Public Sector Management Standards 2016, part 2 (Selection process).

In this section:

eligible person—see the Public Sector Management Act 1994, dictionary.