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This Act may be cited as the Public Sector Management Act 1994.
The provisions of this Act come into operation on such day as is, or days as are respectively, fixed by proclamation.
In this Act, unless the contrary intention appears —
agency means —
a department; or
a SES organisation;
appoint includes promote;
breach of discipline means a breach of discipline referred to in section 80;
chief employee means —
a chief employee of a non‑SES organisation; or
a chief employee of an agency who is not a member of the Senior Executive Service; or
a person deemed to be a chief employee under regulations referred to in section 4;
chief executive officer means —
a person holding office under Division 2 of Part 3 as the chief executive officer of an agency; or
a person deemed to be a chief executive officer under regulations referred to in section 4;
classification system means a system relating either to an office, post or position or to an employee that provides a basis for the remuneration of employees by identifying the level which correctly reflects the functions and responsibilities of the office, post or position or of the employee;
code of conduct means a code of conduct developed under section 21(1);
code of ethics means a code of ethics referred to in section 21(1) and established under the Commissioner’s instructions;
Commissioner means the person holding the office of Public Sector Commissioner established by section 16(1);
Commissioner’s instructions means instructions issued under section 22A;
compensation, in relation to an employee, does not include any payment made —
under section 56(5)(b) or 72(2)(b); or
in lieu of notice under regulations referred to in section 94 in respect of an employee who is made redundant; or
in lieu of an accrued or accruing entitlement to leave;
department means a department established under section 35;
disciplinary action has the meaning given in section 80A;
document includes a tape, disc or other device or medium on which information is recorded or stored electronically, mechanically, photographically or otherwise;
employee means a person employed in the Public Sector by or under an employing authority;
employing authority has the meaning given by section 5;
executive officer means a chief executive officer or senior executive officer;
function has the meaning given by section 5 of the Interpretation Act 1984;
improvement action means any one or more of the following actions by an employing authority in respect of an employee for the purpose of improving the performance or conduct of the employee —
counselling;
training and development;
issuing a warning to the employee that certain conduct is unacceptable or that the employee’s performance is not satisfactory;
any other action of a similar nature;
Industrial Commission has the meaning given to Commission by the Industrial Relations Act 1979;
Minister means the Minister to whom the administration of this Act is for the time being committed by the Governor;
ministerial office means one or more ministerial officers appointed to assist a particular political office holder;
ministerial officer means a person appointed under section 68 as a ministerial officer;
non‑SES organisation means an entity which consists of —
a body, whether corporate or unincorporate, or the holder of an office, post or position, being a body or office, post or position that is established or continued for a public purpose under a written law; and
persons employed by or for the purposes of that body or holder under that written law or another written law,
and which neither is nor includes —
an SES organisation; or
an entity specified in column 2 of Schedule 1;
organisation means a non‑SES organisation or SES organisation;
performance agreement means an agreement referred to in section 47(1) or clause 13(5) of Schedule 5;
permanent officer means a person appointed under section 64(1)(a) for an indefinite period;
political office holder means —
a Minister; or
the Parliamentary Secretary of the Cabinet; or
a Parliamentary Secretary holding office under section 44A of the Constitution Acts Amendment Act 1899; or
the Government Whip; or
the Leader of the Opposition in the Legislative Council; or
the Leader of the Opposition in the Legislative Assembly; or
a person, if any, who, not being a Minister, is the leader of a party in the Legislative Assembly of at least 5 members, other than a party led by the Premier or by the Leader of the Opposition referred to in paragraph (f);
Public Sector means all —
the agencies; and
the ministerial offices; and
the non‑SES organisations;
public sector body means an agency, ministerial office or non‑SES organisation;
public sector notice means a notice issued by or under the authority of the Commissioner for the purposes of this Act that is published as a public sector notice in accordance with the Commissioner’s instructions;
public sector standard means a public sector standard referred to in section 21(1) and established under the Commissioner’s instructions;
Public Service means the Public Service as constituted under section 34;
public service officer means an executive officer, permanent officer or term officer employed in the Public Service under Part 3;
remuneration has the meaning given by the Salaries and Allowances Act 1975;
repealed Act means the Public Service Act 1978;
responsible authority, in relation to a department or organisation, means —
a board, committee or other body for the time being administering the department or organisation; or
if there is no board, committee or other body referred to in paragraph (a), the Minister responsible for the department or organisation,
or, when used otherwise than in relation to a department or organisation, means a responsible authority of any department or organisation;
senior executive officer means a member of the Senior Executive Service other than a chief executive officer;
Senior Executive Service means the Senior Executive Service as constituted under section 43;
SES organisation means an entity which consists of —
a body, whether corporate or unincorporate, or the holder of an office, post or position, being a body or office, post or position —
established or continued for a public purpose under a written law; and
specified in column 2 of Schedule 2;
and
persons employed by or for the purposes of that body or holder under that written law or another written law;
special disciplinary inquiry means a special disciplinary inquiry held under section 87;
special inquirer means a person or persons appointed under section 24H to carry out a special inquiry;
special inquiry means a special inquiry held under section 24H;
substandard performance means performance which is substandard within the meaning of section 79;
term officer means a person appointed under section 64(1)(b) for a term not exceeding 5 years;
this Act includes subsidiary legislation in force under this Act.
[(2) deleted]
For the purposes of the definition of responsible authority in subsection (1), a department —
which is established to support an organisation; and
which is not prescribed as an independent department for the purposes of this subsection,
is to be taken to be a part of the organisation referred to in paragraph (a).
A reference in this Act to the Minister responsible for a public sector body of a particular kind is a reference to the Minister to whom the administration of the public sector body of that kind is for the time being committed by the Governor.
A reference in this Act —
to a person being employed by an employing authority; or
in relation to a person, to an employing authority as being his or her employing authority,
shall, if the person was appointed under this Act for and on behalf of the State, be construed as a reference to the person being so employed for and on behalf of the State or as a reference, in relation to the person, to the employing authority as being his or her employing authority for and on behalf of the State, as the case requires.
[Section 3 amended: No. 39 of 2010 s. 4, 68, 70 and 92.]
The Commissioner is deemed to be the chief executive officer of the department principally assisting in the administration of this Act.
The Auditor General is deemed to be the chief executive officer of the department known as the Office of the Auditor General.
The Commissioner of Police is deemed to be the chief executive officer of the department known as the Police Department 1.
The Electoral Commissioner is deemed to be the chief executive officer of the department known as the Western Australian Electoral Commission.
Regulations made under section 108 may provide that the holder of such office, post or position under a written law as is specified by them is deemed to be the chief executive officer or chief employee of such department or organisation as is so specified.
Despite this section, Parts 3, 5 and 6 do not apply to or in relation to a person who is the Commissioner, the Auditor General, the Commissioner of Police or the Electoral Commissioner or the holder of an office, post or position deemed under regulations referred to in subsection (5) to be a chief executive officer or chief employee, except insofar as those Parts confer powers or impose duties on chief executive officers or chief employees, as the case requires, in their capacity as employing authorities.
[Section 4 amended: No. 39 of 2010 s. 5.]
For the purposes of this Act, but subject to this section —
employing authority means, in relation to —
a chief executive officer (other than a chief executive officer referred to in section 4), the Commissioner; or
a chief employee (other than a chief employee referred to in section 4), the person or board, committee or other body specified by a written law as being the employer of the chief employee; or
a department or organisation or an employee (other than a chief executive officer or chief employee) employed in a department or organisation —
subject to subparagraph (iii), if a chief executive officer or chief employee is the accountable authority of the department or organisation, the chief executive officer or chief employee; or
subject to subparagraph (iii), if a board, committee or other body established under a written law is the accountable authority of the department or organisation, that board, committee or other body; or
if a written law confers on a person or board, committee or other body the power to appoint or employ staff, the person or board, committee or other body;
or
a ministerial office or a ministerial officer, the Minister,
or, when used otherwise than in relation to a public sector body or a chief executive officer, chief employee, employee or ministerial officer, means employing authority of any public sector body, chief executive officer, chief employee, employee or ministerial officer.
For the purposes of this section —
a department —
which is established to support an organisation (other than an organisation which is a Minister); and
which is not prescribed as an independent department for the purposes of this paragraph,
is to be taken to be a part of the organisation referred to in subparagraph (i); and
accountable authority has the meaning given by section 3 of the Financial Management Act 2006.
Despite anything in paragraph (c) of the definition of employing authority in subsection (1), regulations made under section 108 may provide that the holder of an office, post or position, or a board, committee or other body, created or established under a written law is the employing authority of a department or organisation or of an employee (other than a chief executive officer) employed in a department or organisation.
[Section 5 amended: No. 77 of 2006 s. 6 and 7; No. 39 of 2010 s. 6, 68 and 70.]
This Act binds the Crown in right of the State.
Except to the extent to which a provision of this Act specifies otherwise, the Industrial Relations Act 1979 applies to and in relation to matters dealt with by this Act.
The principles of public administration and management to be observed in and in relation to the Public Sector are that —
the Public Sector is to be administered in a manner which emphasises the importance of service to the community; and
the Public Sector is to be so structured and organised as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities; and
public sector bodies are to be so structured and administered as to enable decisions to be made, and action taken, without excessive formality and with a minimum of delay; and
administrative responsibilities are to be clearly defined and authority is to be delegated sufficiently to ensure that those to whom responsibilities are assigned have adequate authority to deal expeditiously with questions that arise in the course of discharging those responsibilities; and
public sector bodies should have as their goal a continued improvement in the efficiency and effectiveness of their performance and should be administered with that goal always in view; and
resources are to be deployed so as to ensure their most efficient and effective use; and
proper standards of financial management and accounting are to be maintained at all times; and
proper standards are to be maintained at all times in the creation, management, maintenance and retention of records.
The principles of human resource management that are to be observed in and in relation to the Public Sector are that —
all selection processes are to be directed towards, and based on, a proper assessment of merit and equity; and
no power with regard to human resource management is to be exercised on the basis of nepotism or patronage; and
employees are to be treated fairly and consistently and are not to be subjected to arbitrary or capricious administrative acts; and
there is to be no unlawful discrimination against employees or persons seeking employment in the Public Sector on a ground referred to in the Equal Opportunity Act 1984 or any other ground; and
employees are to be provided with safe and healthy working conditions in accordance with the Work Health and Safety Act 2020.
In matters relating to —
the selection, appointment, transfer, secondment, classification, remuneration, redeployment, redundancy or termination of employment of an individual employee; or
the classification of a particular office, post or position,
in its department or organisation, an employing authority is not subject to any direction given, whether under any written law or otherwise, by the Minister responsible for the department or organisation, but shall, subject to this Act, act independently.
For the purposes of this Act a proper assessment of merit in a selection process must be carried out in accordance with the relevant Commissioner’s instructions and does not always require a competitive assessment of merit.
[Section 8 amended: No. 30 of 1995 s. 48; No. 39 of 2010 s. 9, 68 and 70; No. 36 of 2020 s. 366.]
9. Principles of conduct by public sector bodies etc.
The principles of conduct that are to be observed by all public sector bodies and employees are that they —
are to comply with the provisions of —
this Act and any other Act governing their conduct; and
the Commissioner’s instructions, public sector standards and codes of ethics; and
any code of conduct applicable to the public sector body or employee concerned;
and
are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and
are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees.
[Section 9 amended: No. 39 of 2010 s. 10 and 70.]
[Division 2 (s. 10‑15) deleted: No. 39 of 2010 s. 11.]
[Division 3 heading deleted: No. 39 of 2010 s. 11.]
An office of Public Sector Commissioner is established.
The office of Public Sector Commissioner is not an office in the Public Service.
[Section 16 inserted: No. 39 of 2010 s. 13.]
The Commissioner shall be appointed by the Governor on the recommendation of the Minister, and shall hold office in accordance with this Division.
Before making a recommendation under subsection (1), the Minister shall consult the parliamentary leader of each party in the Parliament.
Subject to this Division, a person appointed as the Commissioner shall hold office for a term of 5 years, and is eligible for reappointment.
Before performing the functions of Commissioner for the first time, the Commissioner must make a declaration before the Governor in the form in Schedule 4.
[Section 17 amended: No. 39 of 2010 s. 14.]
The Commissioner may at any time, by written notice addressed to the Governor, resign from office, and, on receipt of that resignation by the Governor, the Commissioner vacates office as Commissioner.
The Commissioner, if he or she is nominated for election for the Parliament of the Commonwealth, or of any State or Territory, vacates office as Commissioner.
The Commissioner may, at any time, be removed or suspended from office by the Governor on addresses from both Houses of Parliament.
Notwithstanding subsection (3), if the Governor is satisfied that the Commissioner —
is incapable of properly performing the functions of his or her office; or
has shown himself or herself incompetent properly to perform, or has neglected to perform, the functions of his or her office; or
is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or
has been guilty of misconduct,
the Governor may suspend him or her from office.
When the Commissioner has been suspended from office under subsection (4), the Commissioner shall be restored to office unless —
a statement of the grounds of that suspension is laid before each House of Parliament during the first 7 sitting days of that House following that suspension; and
each House of Parliament, during the session in which the statement referred to in paragraph (a) is laid before it and within 30 sitting days of that statement being so laid, passes an address praying for the removal of the Commissioner from office.
The Commissioner shall not, except so far as he or she is authorised so to do by resolutions of both Houses of Parliament —
hold any office or place referred to in Part 1 or 2 of Schedule V to the Constitution Acts Amendment Act 1899 (other than the office of Commissioner) or be a member of any commission, council, board, committee, authority, trust or other body referred to in Part 3 of that Schedule; or
engage in any occupation for reward outside the functions of the office of Commissioner.
Without limiting the generality of subsection (4)(d), the Commissioner shall be regarded for the purposes of subsection (4)(d) as being guilty of misconduct if he or she contravenes subsection (6).
[Section 18 amended: No. 18 of 2009 s. 71.]
Subject to the Salaries and Allowances Act 1975, the Commissioner is entitled to be paid such remuneration as is determined by the Governor.
Remuneration paid to the Commissioner under subsection (1) shall be charged to the Consolidated Account and this subsection appropriates the Consolidated Account accordingly.
The rate of remuneration of the Commissioner shall not be reduced during a term of office of the Commissioner without his or her consent.
Subject to this Division —
the Commissioner is entitled to such leave of absence as the Governor determines; and
the Governor may determine other terms and conditions of service, if any, that apply to the Commissioner.
Subject to any determination under subsection (3), the Commissioner is entitled to leave of absence and other conditions of service as applicable to public service officers.
[Section 19 amended: No. 49 of 1996 s. 58; No. 77 of 2006 s. 4; No. 39 of 2010 s. 15.]