Public Sector Act 2022
On 1 March 2023, the Public Sector Act 2022 (Public Sector Act) commenced, repealing and replacing the Public Service Act 2008 (previous PS Act). The Public Sector Act sets out a new legislative employment framework for the Queensland public sector. This article examines some key legislative changes under the Public Sector Act.
Broader scope of coverage than the previous PS Act
The Public Sector Act is broader in its scope of coverage than the previous PS Act. It introduces a new core concept – ‘public sector entity’, which captures any entity ‘established under an Act for a public or State purpose’. ‘Public sector employees’ now include any person employed in a public sector entity.
The broad definition of public sector entity captures within the Public Sector Act’s coverage more entities (and their employees) which may not have been covered by the previous PS Act (which was limited in coverage to Queensland Government departments and ‘public service offices’).
The Public Sector Act also draws under its coverage employment processes for public sector entities that were previously regulated by other Acts. For example, disciplinary frameworks have been removed from the Ambulance Service Act 1991 and the Fire and Emergency Services Act 1990, allowing the disciplinary framework under the Public Sector Act to operate instead for employees covered by those Acts.
Promotion of equity, diversity and inclusion within public sector entities
Chapter 2 of the Public Sector Act imposes duties on public sector entities to develop diverse, equitable and inclusive workforces. It preserves the obligations under the previous PS Act, for promoting and reporting on equality of employment opportunities for diversity target groups (for example, Aboriginal and Torres Strait Islander people), and also prescribes a new duty for chief executives to promote and support a culture of respect and inclusion in the workplace.
Chief executives are now responsible for developing an equity and diversity plan for their public sector entity; undertaking annual workforce audits to identify opportunities for equity and diversity; and ensuring that the entity’s training programs, policies and practices specifically promote and support a culture of respect and inclusion.
Promotion of public sector entities’ cultural capabilities
Chapter 1, Part 3 of the Public Sector Act imposes obligations on public sector entities to support the State Government’s commitment to reframing its relationship with Aboriginal and Torres Strait Islander people. Public sector entities now have specific responsibilities to afford recognition to Aboriginal and Torres Strait Islander people in the workplace, and to support their aspirations and employment needs in a way aligning with their perspectives.
Chief executives of particular public sector entities, including departments and hospital and health services, must develop a ‘reframing the relationship’ plan, which identifies measures for developing the entity’s cultural capability. The chief executive must conduct a yearly audit of the entity’s performance measured against the plan.
Other key changes
Recruitment and selection processes
Chapter 3, Part 3 of the Public Sector Act introduces a new framework for public sector recruitment and selection processes.The Public Sector Act has omitted reference to the ‘merit principle’ (as existed under the previous PS Act), and instead requires public sector entities to appoint to a position an applicant who is ‘best suited to the position’. Entities are still required to consider the merit of applicants as referable to a position’s specific requirements, but are also encouraged to consider the way in which the proposed appointment will give effect to the entity’s equity and diversity obligations under Chapter 2 of the Public Sector Act.
The Public Sector Act has omitted the power, existing under the previous PS Act, for a public sector entity to impose a probation period for a public sector employee appointed on tenure, except under specific circumstances in Chapter 3, Part 5 where the person is to perform child-related duties.
Probation for public sector employees is now dealt with exclusively under the Industrial Relations Act 2016. Chapter 3, Part 10 of the Public Sector Act clarifies that decisions to dismiss public sector employees (including those on probation) are not appealable under that Act.
Common law power to terminate employment
Chapter 3, Part 11 of the Public Sector Act recognises the State’s rights as an employer, at common law. It recognises the power of a chief executive of a public sector entity, at common law, to terminate a public sector employee’s employment, including summarily, and for a public sector employee’s employment contract to end by operation of law, including by frustration. The State has always had such powers at common law, however they were not referenced in the previous PS Act.
Chapter 3, Part 8 of the Public Sector Act contains a prescriptive disciplinary framework for public sector employees, similar to the disciplinary framework contained in the previous PS Act. The framework refers to termination of employment as an example of disciplinary action that may be taken. The disciplinary provisions in Chapter 3, Part 8 do not limit or otherwise affect the chief executive’s power to end the employment of a public sector employee under the common law. The common law principles operate alongside the disciplinary provisions.
The Explanatory Notes for the Public Sector Bill 2022 state that while it is intended that most matters relating to the end of employment will continue to be dealt with under the disciplinary provisions in the Public Sector Act, common law processes may be an appropriate means for ending employment in limited circumstances. A chief executive should seek legal advice on whether a disciplinary or common law process should be followed in an appropriate case.
Reviewing employment status
Chapter 3, Part 9 of the Public Sector Act confers on non-permanent public sector employees and public sector employees acting in higher duties, additional rights to request review of their employment status, above the review rights set out in the previous PS Act.
Those employees are now able to request an additional review after a previous review decision (or a deemed decision) to either refuse the employee’s request for conversion to permanent employment or their request for permanent employment at the higher classification level, within three months of an employee considering they are suitable for a role the subject of a previous refused review decision; three months of a deemed decision provided the employee has not appealed it; or specifically for a higher duties review, three months after the relevant position becomes vacant.
Chief executives also now have additional discretionary power under Chapter 3, Part 9 of the Public Sector Act to review a non-permanent employee’s employment status within one year of making
of a previous review decision refusing their conversion to permanency.
Duty of confidentiality
Chapter 8, Part 3 of the Public Sector Act imposes a broad duty of confidentiality on public sector employees and other persons who obtain confidential information (personal information about an individual or non-publicly available information about a public sector entity) when carrying out functions under the Act. The duty prohibits the use or disclosure of that information except for specific purposes (for example, if disclosure is necessary for the discloser to perform their functions under the Public Sector Act or another Act). The duty did not exist under the previous PS Act.
Public sector governance framework
The Public Sector Act establishes a new public sector governance framework. Chapter 6 establishes a Public Sector Governance Council as the central oversight body for sector-wide governance and leadership, and maintains the Public Sector Commission (formerly Public Service Commission) as the central human resources agency. Chapter 6 also provides for ‘public sector reviews’, a new type of review that may be initiated by the Public Sector Governance Council or Minister about any matter of public sector administration or management relating to the purpose of the public sector, including about a public sector entity.
Chapter 9 of the Public Sector Act contains transitional provisions, to assist the public sector in transitioning from the previous PS Act to the new legislative framework. They provide for, amongst other things, disciplinary processes and suspensions in place immediately before the Public Sector Act’s commencement to continue under the new Act.
A new Public Sector Regulation 2023 (Public Sector Regulation) commenced on 1 March 2023, and since that date the Public Sector Commission has published various new directives, including those about Discipline (05/23) and Suspension (06/23).
How can public sector entities manage their transition to the new public sector legislative employment framework?
Public sector entities should familiarise themselves with the Public Sector Act, the Public Sector Regulation, and the new suite of directives, and should update their policies, procedures and training programs to give effect to the legislative changes, including those under Chapter 2 of the Public Sector Act regarding equity and diversity.
Public sector entities should also review their delegations manuals as soon as possible, to ensure their consistency with the Public Sector Act. The transitional provisions of the Public Sector Act continue existing delegations made under the previous PS Act, however because of the Public Sector Act’s broad coverage it may be necessary for some public sector entities to create new delegations in order to delegate powers under the Public Sector Act, where they were not covered by the previous PS Act.
Crown Law’s Workplace Law team has significant expertise and experience in all aspects of public sector employment law. The Workplace Law team is happy to assist public sector entities manage their transition to the new public sector legislative employment framework, and can provide advice in relation to any aspect of the Public Sector Act.
Please contact Crown Law’s Assistant Crown Solicitors for the Workplace Law team: Fiona Black, Samantha Kane or Catriona McPherson, or Karen Watson, Deputy Crown Solicitor, Public Law, for further information and assistance.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 28 March 2023
Author: Assistant Crown Solicitor, Catriona McPherson