Chapter 5: Managing the workplace

• Industrial Relations Act 1996 (‘IR Act’)
• Government Sector Employment Act 2013 (‘GSE Act’)
• Government Sector Employment Regulation 2014 (‘GSE Reg’)
• Work Health and Safety Act 2011 (‘WH&S Act’)
• Work Health and Safety Regulation 2017 (‘WHS Reg’)
• Fair Work Act 2009 (Cth)
• NSW TC14-23 - Consultative Arrangements Policy and Guidelines 2012
• Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009  (the ‘Conditions Award’)

5.1.1.1 Government Sector Employment Act 2013

• GSE Act pt 4 div 6 - Industrial Relations Employer Functions
• GSE Act s 50 – Role of the Industrial Relations Secretary

The IR Secretary is for the purposes of any proceedings relating to Public Service employees held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of the staff of the Public Service.

The IR Secretary has the authority to:

• enter into agreements with associations or organisations representing members a group of Public Service employees with respect to industrial matters - GSE Act s 51 – Industrial Relations Secretary may enter into agreements;
• make determinations fixing conditions of employment of Public Service employees (or any group of them) - GSE Act s 52 – IR Secretary may determine employment conditions not otherwise lawfully determined;
• The IR Secretary also has the following functions under - GSE Act s 53 – Industrial Relations Provisions:
• advising the Government on appropriate strategies and policies regarding employment conditions and industrial relations in the government sector; and
• monitoring the implementation of Government strategies and policies on employment conditions and industrial relations in the government sector and assisting with their implementation.

All administration of industrial matters is undertaken by Public Sector Industrial Relations (PSIR), exercising the authority of the Industrial Relations Secretary.

Client contact officers located in PSIR will advise and assist individual employing agencies with industrial and employee relations issues.

Agencies can identify their own client contact officer by calling (02) 9228 5987 or emailing psir@industrialrelations.nsw.gov.au

5.1.1.2 Industrial Relations Act 1996

The IR Act provides the framework for industrial relations in NSW, establishes the Industrial Relations Commission and contains provisions including:

• resolution of industrial disputes by conciliation or arbitration
• facilitating cooperative workplace relations
• making awards and enterprise agreements
• minimum conditions of employment
• unfair dismissal claims, and
• registration of industrial organisations (unions and associations).

‘Industrial instrument’ is a generic term for various types of documents that set out and regulate rates of pay and conditions of employment. The main types of instruments are awards and enterprise agreements made under the IR Act, Industrial Relations Secretary determinations made under s. 52 of the GSE Act and former Public Service agreements.

Further information about these industrial instruments is provided at “5-2.1.1 Determination of salaries and wages”.

5.1.2.1 Industrial disputes

Disputes should be resolved at the level closest to the dispute as possible within an agency and in the least possible time - see IR Act s 14, and IR Act s 39 and the Fair Work Act 2009 (Cth).

If a resolution cannot be reached through discussions with the relevant union(s), then the matter should be referred to the appropriate industrial tribunal.

Agencies may appear in proceedings before tribunals having jurisdiction to deal with such industrial matters as negotiations, conferences and inspections, subject to the following:

• the industrial matter does not involve significant costs as a component of the agency’s funds;
• no new industrial standards will result from the industrial process, including no impact on existing awards, agreements or determinations;
• there will be no potential for flow on to other areas of the agency or the Public Service; and
• the matter is already identifiable as a local industrial matter. If there are sector wide implications the dispute must be brought to the attention of PSIR.

The assistance of an industrial tribunal may involve the seeking of a recommendation or direction on any industrial action in conciliation proceedings under s.134 of the IR Act.

Agencies should not seek a dispute order from an industrial tribunal unless they have consulted and reached agreement with PSIR on this course of action, see IR Act ch 3 pt 2 - Dispute Orders or under the Fair Work Act 2009 (Cth).

Consideration of the need for a dispute order will have regard to:

• evidence that all other opportunities to settle the matter have been exhausted;
• how a dispute order will assist with the resolution of the dispute; and
• the consequences of the union’s non–compliance with the dispute order.

5.1.2.2 Dispute procedures

In all cases, agencies are required to adopt the following procedures in the event or likelihood of an industrial dispute:

• immediately advise PSIR by telephoning their agency’s client contact officer;
• provide written advice to PSIR outlining:
• the full text of any demands;
• details of the circumstances;
• information on estimated cost; and
• name of the claimant agency.

5.1.2.3 Right of entry by union officials

Appropriate union officials have rights of entry prescribed under the Work Health and Safety Act 2011, and the IR Act 1996 (for employee covered by the federal IR systems provisions of the Fair Work Act 2009 will apply). Union officials’ rights to enter the workplace are also confirmed at Clause 62 (the Conditions Award) – Right of Entry Provisions

5.1.2.4 Consultation and technological change

There must be effective means of consultation, as set out in NSW TC14-23 - Consultative Arrangements Policy and Guidelines 2012 on matters of mutual interest and concern, both formal and informal, between management and trade unions represented in the agency.

Conditions Award - Agencies covered by the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 are required to apply the 1997 Consultative Arrangements Policy found as an attachment to NSW TC14-23 - Consultative Arrangements Policy and Guidelines 2012.

Agency management must consult the relevant trade union prior to the introduction of any technological change. This is also confirmed at Clause 65 (the Conditions Award) – Consultation and Technological Change.

5.1.3.1 Delegations under the Government Sector Employment Act 2013

The power to appear on behalf of the Industrial Relations Secretary in certain industrial proceedings has been delegated to Public Service Agency Heads.

5.1.3.2 Conditions for granting authorisation

Authorisation to act on behalf of the IR Secretary may be sub-delegated by Public Service agency heads provided that a record is maintained of employees (“authorised employees”) to whom the exercise of such functions has been sub-delegated.

PSIR must be advised of industrial matters handled by nominated employees including progress reports on significant developments and outcomes.

5.1.3.3 Authorised employees to advise tribunal

When authorised employees of Public Services Agencies as described under the GSE Act 2013, Schedule 1, appear before Industrial Tribunals they should inform the Tribunal of their name and agency and that they are appearing on behalf of the Industrial Relations Secretary.

That is, the authorised employee should state the following:

“I, (Authorised employee’s name), appear for the Industrial Relations Secretary.”

Similarly, where filing a Notice of Appearance in local industrial proceedings, the Notice should state the appearance is for the Industrial Relations Secretary, even where the contact is from another public service agency.

If no Notice of Appearance is filed, the authorised employee should also advise the Industrial Registrar that they appear for the IR Secretary and request that any further court listings in the matter be notified to the authorised employee.

5.1.3.4 Obtaining transcripts

Authorised employees can order transcripts of proceedings in the name of the Industrial Relations Secretary and arrange for these to be provided to, and paid for by their own agency.

• Industrial Relations Act 1996 (‘IR Act’)
• Government Sector Employment Act 2013 (‘GSE Act’)
• Government Sector Employment Regulation 2014 (‘GSE Reg’)
• Public Finance and Audit Act 1983
• Limitation Act 1969 No 31
• Treasurer’s Directions
• Civil Procedure Act 2005
• Family Law Act 1975 (Cth)
• NSWTC14/18 NSW Public Sector Wages Policy 2011.

5.2.1.1 Determination of salaries and wages

The Public Service salaries, wages or other remuneration may be determined by:

• an award or enterprise agreement made by the Industrial Relations Commission of NSW (IRC),
• an agreement made between the Industrial Relations Secretary (IR Secretary) and employee associations in accordance with the GSE Act s 51 – Industrial Relations Secretary may enter into agreements,
• a determination, made by the IR Secretary,
• the Statutory and Other Offices Remuneration Tribunal, or
• a federal award or agreement.

An industrial instrument binds everyone in the class or group it covers, irrespective of whether they are members of the union or an association that is a party to the industrial instrument.

Questions relating to industrial instruments should be escalated for resolution within the Human Resources area of the relevant agency in the first instance.

Where a question is unable to be resolved within the agency, Human Resources may refer to their designated contact officer at PSIR or email psir@industrialrelations.nsw.gov.au

5.2.2.1 Retrospective pay adjustments

The Wages Policy provides (see clause 3.1.6.) that changes to remuneration may only operate from the date the relevant parties finally agreed to the change or the date determined by the Industrial Relations Commission.

Unless otherwise stated in the industrial instrument, all employees are eligible for adjustments of salaries and wages to the effective date of the industrial instrument, provided that they were employed during the period to which the adjustment applies. This entitlement applies also to people regularly employed for short periods of relief or in a casual capacity regardless of whether they were employed at the date of making the industrial instrument.

Retrospective payment may also be made to the following categories of employees:

• employees who have retired under the provisions of the GSE Act s 56 - retirement on medical grounds
• temporary employees whose services were satisfactory and
• deceased people whose services were satisfactory.

5.2.2.2 Industrial Relations Secretary approval of retrospective adjustments

Retrospective adjustments require the prior approval of the IR Secretary in the following circumstances:

• when an employee resigns and their last day of service is before the date of signing of the agreement or the date of publication of the determination;
• when an employee’s services have been terminated for disciplinary reasons; or
• when a temporary employee has been dismissed owing to unsatisfactory service.

5.2.2.3 Arrears of salary or wages

When salary is in arrears as a result of underpayment of an award, enterprise agreement or determination, an adjustment is limited to money that became due within the period of 6 years immediately before the matter was first raised as contained under the Limitation Act 1969 s 24 and IR Act s 369(3).

Salary or wages are to be paid to the employee or to their representative on production of a written authority. No payments are to be made to anyone by virtue of any order or other document whereby an employee may attempt to assign salary to creditors or money lenders.

For more information see – 5-2.6 Judgement Debtors and 5-2.7 Bankruptcy.

5.2.3.1 Calculating salaries, wages and allowances

Treasurer’s Directions - 500.01, deals specifically with calculating salaries and wages. In conjunction with that Direction, the following procedures are to be adopted when rounding the rates:

• For employees paid an annual salary, any additional payments (such as allowances) or deductions are to be rounded to the nearest dollar, that is, amounts less than 50 cents rounded down, amounts of 50 cents or more are rounded up.
• For employees paid by way of a weekly salary or wage, any additional payments or deductions are to be rounded to the nearest ten cents. Amounts less than 5 cents are rounded down, 5 cents or more are rounded up.

5.2.3.2 Conversions - Weekly to annual and annual to weekly

Weekly allowances can be converted to an annual rate by multiplying by 52.17857 (365¼ days divided by 7) and rounding to the nearest dollar.

Annual allowances can be converted to a weekly rate by dividing by 52.17857 and rounding to the nearest cent.

5.2.3.3 Overpayments

The IR Act ch 2 pt 10 – Payment of Remuneration, requires an employer to pay in full to an employee wages owing for time worked. If an overpayment occurs the money cannot be automatically recouped from wages by the employer. In cases of overpayment an agency should take the following factors into consideration when determining the period over which the repayment is to be made:

• the employee’s financial circumstances and commitments;
• the circumstances involved in the overpayment; and
• the amount of the overpayment.

Obvious overpayments (such as a double payment on the same day or continuation of higher duties allowance after the period of relief has expired) should be recouped as soon as practicable as it could be reasonably expected that the employee so overpaid would have been aware of the overpayment.

5.2.3.4 Officers suspended after being charged under Section 70 Government Sector Employment Act 2013

GSE Act s 70 - Suspension of employees from duty pending decision in relation to misconduct, criminal charge or corrupt conduct - an Agency Head may direct that any remuneration payable to an employee while the employee is suspended from duty under that Section is to be withheld.

See also - Premier’s Memorandum, M1994-35 - Suspension of employees from public duty

For further information regarding misconduct refer to the Public Service Commission’s employment portal.

5.2.4.1 Union deductions

In accordance with Clause 66 (the Conditions Award) - Deduction of Trade Union Membership Fees, the Agency Head is to provide, at the employee’s election, for the employee’s union membership fees to be deducted from the employee’s pay and to ensure that such fees are transmitted to the employee’s trade union at regular intervals.

Alternative arrangements for the deduction of trade union membership fees may be negotiated between the Agency Head and the relevant trade union in accordance with Clause 10 (the Conditions Award) – Local Arrangements

Agency Heads should adopt appropriate procedures to ensure the accuracy of the rates of salary and allowances being paid to employees.

These checks should be made regularly (for example, each month or quarter), and if the records disagree the Agency Head should determine or have determined the correct rates.

This action should then be recorded in a registered agency file.

Enforcement of judgments may be made against income – that is salary or wages of an employee or a temporary employee. Part 8 of the Civil Procedure Act 2005 deals with the enforcement of judgments and garnishee orders.

GSE Reg cl 10 -  Employee to report bankruptcy etc, requires a Public Service employee (other than a casual employee) who becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the officer’s creditors, to:

• immediately notify the Agency Head of the bankruptcy, composition arrangement or assignment; and - within such period as the Agency Head specifies, provide the Agency Head with such further information as the Agency Head requires.

If the employee concerned is the Agency Head, the above applies as if references to the Agency Head were references to the Minister.

Subclause 10(3) specifies conditions regarding engagement of a person in a role relating to financial management in the agency.

See GSE Act s 69 – Misconduct - Public Service and other prescribed government sector employees.

The Family Law Act 1975 (Cth) provides for the enforcement of maintenance payments by a process of continuing garnishee called a Garnishment Order Attaching Monies Due Periodically.

An authorised court fixes a minimum amount below which the employee’s earnings cannot be reduced by compliance with the Order (called the protected earnings rate) and at the same time fixes an amount to be deducted from the employee’s earnings in satisfaction of the Order (called the normal deduction rate).

The Order also specifies an amount the Garnishee may deduct from the normal deduction rate for administrative expenses.

5.2.9.1 Application of earnings, order of priority

On receipt of a garnishment order, the Agency Head is required to apply the employee’s earnings each pay day, in the following order of priority

• to income tax and superannuation contributions;
• to the employee for the amount of the protected earnings;
• to the Garnishee for payment of the normal deduction rate;
• the amount the Garnishee may deduct for administrative expenses; and
• any balance to the employee.

The Garnishment Order should specify a date from which payments commence.

When the employee ceases to be employed, the Agency Head must give notice to the authorising court within 10 days and tell the court, if known – the name and address of the new employer and the earnings from the new employer.

See also “6-3 Leave administration”.

Fees for Solicitors’ Practising Certificates should be paid by the agency when:

• the employee is a qualified solicitor and is required in the normal course of their duties to perform legal work of a nature ordinarily carried out by a solicitor or member of the legal profession
• the appropriate branch or Section head certifies that the work performed satisfies the above conditions.

In all other instances, employees will be required to pay their own fees. In cases of doubt whether the officer meets the above conditions, advice should be sought from the Crown Solicitor.

It should be noted that payment for Practising Certificates is separate to payment for membership of the NSW Law Society. As a general rule, agencies are not required to meet the costs of membership of the Law Society.

There may be instances, however, where membership of the Law Society will also benefit the agency concerned, or membership is necessary for an individual officer to perform his or her duties. Agency heads should consider such requests on their merits and in accordance with C2004-10 – Voluntary Membership of the Law Society.

The NSW Treasury Managed Fund covers employees of participating agencies and their personal property when travelling on official business. Cover is for:

• loss of life or disablement during travel except when the employee is covered under the Workplace Injury Management and Workers Compensation Act 1998;
• recoupment of overseas hospital, medical and ambulance expenses arising from any one accident; and
• loss of or damage to baggage and personal effects.

5.3.1.1 Further information

Further information on Travel Injury Insurance may be obtained from the New South Wales Self Insurance Corporations website – see publications page - NSW SICorp

5.3.1.2 Agencies not participating in the NSW Treasury Managed Fund

Agencies not participating in the NSW Treasury Managed Fund are free to make their own arrangements but generally, should comply with the Treasurer’s Direction in this regard.

5.4.1.1 Employee required to resign prior to a federal election

Section 44 of the Australian Constitution provides that:

(iv) Any person who holds any office of profit under the Crown shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

This provision has been interpreted to mean that Government employees must resign from their positions before they can nominate for election to the Commonwealth Parliament.

5.4.1.2 Last day of service

The last day of service of an employee who is contesting a Federal election must be no later than the day prior to the closing date for nominations.

5.4.1.3 Entitlement to reappointment

See GSE Act s 72 - Re-employment of employees resigning to contest Commonwealth elections.

5.4.1.4 Leave arrangements

An employee who is reappointed as in 5-10.1.3 Entitlement to reappointment, is regarded as being on leave without pay between the dates of resignation and reappointment. The monetary value of recreation or extended leave credits paid on resignation may be retained, applied in whole or part to the period of leave without pay, or refunded to re-establish leave credits according to the preference of the employee concerned.

Refer to Department of Premier and Cabinet (DPC) Circular, C2010-22 – Contesting Elections.

5.4.2.1 Sources of Authority

• Australian Constitution s 13B
• GSE Act s 71 – Employees contesting State elections
• DPC Circular C2010-22 – Contesting Election.

An employee who is standing for election to State Parliament is not required to resign until declared elected.

The last day of service is the date upon which the employee is declared elected.

5.4.2.2 Leave arrangements

Employees who are intending to nominate as candidates should be advised to consider appropriate leave arrangements to cover the election period.

In order to avoid potential conflict between political interests and public employment it would be preferable for employees to take leave for election campaigning purposes from and including the day of nomination for the election.

When contesting an election, leave may be taken with or without pay according to the employee’s preference and entitlements available.

Refer to Clause 99 the Conditions Award - Provision of transport in conjunction with working overtime.

Departure or arrival of an employee after 8:00 pm whether on overtime or a regular or rotating shift roster does not in itself warrant the provision of transport. It needs to be demonstrated that the normal means of transport, public or otherwise, is not reasonably available or that travel by such transport poses a risk to the safety of the employee.

The responsibility for deciding whether the provision of assistance with transport is warranted rests with administrative units of agencies where knowledge of each particular situation enables appropriate judgments to be made.

5.5.1.1 Overtime arrangements

When overtime is required it should be arranged as far as is possible so that employees can use public transport or other normal means of transport to and from work.

5.5.1.2 Taxis

If an employee ceases overtime duty after 8pm, or ceases or commences duty performed as part of a regular or rotating roster of shift duty after 8pm, and public transport or other normal means of transport is not reasonably available, the agency may provide transport or arrange transport by taxi to or from home.