3 State Services Commissioner

• There shall be an officer to be called the State Services Commissioner, who shall be appointed by the Governor-General in Council on the recommendation of the Prime Minister.

  Section 3: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

4 Commissioner to be chief executive of State Services Commission

• The Commissioner shall be the chief executive of the department of State known as the State Services Commission.

  Section 4: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

5 Duty of Commissioner to act independently

• Except as provided in sections 35, 36, 38, and 39, in matters relating to decisions on individual employees, the Commissioner shall not be responsible to the Minister but shall act independently.

  Section 5: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

6 Functions of Commissioner

• The principal functions of the Commissioner are—

  • (a) to review the machinery of government across all areas of government, including—

    • (i) the allocation of functions to and between departments and other agencies; and

    • (ii) the desirability of, or need for, the creation of new departments and other agencies and the amalgamation or abolition of existing departments and other agencies; and

    • (iii) the co-ordination of the activities of departments and other agencies:

  • (b) to review the performance of each department, including the discharge by the chief executive of his or her functions:

  • (c) to appoint chief executives of departments and to negotiate their conditions of employment:

  • (d) to promote and develop senior leadership and management capability for the Public Service:

  • (e) to negotiate conditions of employment of employees in the Public Service:

  • (f) to promote and develop personnel policies and standards of personnel administration for the Public Service:

  • (g) to promote, develop, and monitor equal employment opportunities policies and programmes for the Public Service:

  • (h) to provide advice on the training and career development of staff in the Public Service:

  • (ha) to provide advice and guidance to employees within the State services (except Crown Research Institutes) on matters, or at times, that affect the integrity and conduct of employees within the State services:

  • (i) to provide advice on management systems, structures, and organisations in the Public Service and Crown entities:

  • (j) to exercise such other functions with respect to the administration and management of the Public Service as the Prime Minister from time to time directs (not being functions conferred by this Act or any other Act on a chief executive other than the Commissioner).

  Section 6: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 6 heading: amended, on 25 January 2005, by section 5(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 6(a): substituted, on 25 January 2005, by section 5(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 6(d): substituted, on 25 January 2005, by section 5(3) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 6(h): substituted, on 25 January 2005, by section 5(4) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 6(ha): inserted, on 25 January 2005, by section 5(4) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 6(i): substituted, on 25 January 2005, by section 5(4) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

7 Powers of Commissioner

• The Commissioner shall have all such powers as are reasonably necessary or expedient to enable the Commissioner to carry out the functions and duties imposed upon the Commissioner under this Act or any other enactment.

  Section 7: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

8 Power of Commissioner to conduct inspections and investigations

• (1) This section applies when the Commissioner is—

  • (a) carrying out his or her functions in respect of the Public Service:

  • (b) carrying out his or her functions under section 6(ha) in relation to any other part of the State services.

  (2) The Commissioner may conduct any inspections and investigations, and make and receive any reports, that the Commissioner considers necessary or the Minister directs.

  Section 8: substituted, on 25 January 2005, by section 6 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

9 Power to obtain information

• (1) The Commissioner may require, by written notice, a department, or any agency in respect of which the Commissioner is carrying out his or her functions under section 6(a), (ha), or (i), to supply to the Commissioner information concerning the department's or agency's activities.

  (2) The department or agency to which the notice is given must comply with the notice, and must keep all records that are necessary to enable it to comply with the notice.

  (3) This section does not limit any Act that imposes a prohibition or restriction on the availability of any information.

  Section 9: substituted, on 25 January 2005, by section 7 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

10 Power to enter premises

• (1) For the purpose of carrying out the functions of the Commissioner, the Commissioner or any person specifically or generally authorised in writing in that behalf by the Commissioner, may from time to time—

  • (a) enter the premises of any department; or

  • (b) require the production of any information, documents, or files in the custody of any department, and examine any such information, documents, or files; or

  • (c) require any member of the staff of any department to answer questions for the purpose of enabling the Commissioner to carry out the functions assigned to the Commissioner.

  (2) Every written authorisation under subsection (1) shall contain—

  • (a) a reference to this section; and

  • (b) the full name of the authorised person; and

  • (c) a statement of the powers conferred on the authorised person by subsection (1).

  (3) The power to enter premises pursuant to subsection (1) shall be subject to the following conditions:

  • (a) entry shall be made only by the Commissioner or by a person specifically or generally authorised in writing by the Commissioner:

  • (b) reasonable notice of the intention to enter shall be given:

  • (c) entry shall be made at reasonable times:

  • (d) the person entering shall carry—

    • (i) evidence of that person's identity; and

    • (ii) either evidence that that person is the Commissioner or that person's written authorisation under subsection (1):

  • (e) the person entering shall, on first entering the premises, and, if requested, at any subsequent time, produce to a representative of the department the evidence referred to in paragraph (d).

  (4) Every person shall have the same privileges in relation to—

  • (a) the production of information, documents, and files; and

  • (b) the furnishing of any information or particulars; and

  • (c) the answering of questions—

  under this section as witnesses have in courts of law.

  (5) No person shall exercise any of the powers conferred by paragraphs (a) to (c) of subsection (1) unless the Commissioner or that person has first given the chief executive of the department the opportunity of consulting with the Commissioner or that person about the exercise of those powers.

  (6) Nothing in this section derogates from any enactment that imposes a prohibition or restriction on—

  • (a) the availability of any information; or

  • (b) the production or examination of any information, documents, or files.

  Section 10: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

11 Exercise of functions and powers in respect of other State services

• (1) The Prime Minister may from time to time direct the Commissioner in writing, to carry out, in respect of any part of the State services that does not form part of the Public Service, any of the functions and powers conferred on the Commissioner by any provision of sections 6 to 10.

  (2) Sections 6 to 10 shall apply, for the purposes of any direction under subsection (1), with all necessary modifications and as if the part of the State services to which the direction relates were a department.

  (3) The Commissioner shall comply with that direction and shall have all necessary powers to enable the Commissioner to do so.

  (4) The Commissioner may, if requested by the head of any part of the State services, and must, if requested by the Minister in charge of, or responsible for, any part of the State services, exercise in respect of that part of the State services any of the functions and powers that the Commissioner may exercise in respect of departments under any provision of sections 6 to 8.

  (5) Nothing in this section—

  • (a) limits or affects any provision of this or any other Act; or

  • (b) affects or prevents the exercise by any part of the State services that does not form part of the Public Service, or by any officer or employee of any such part of the State services, of any function or power conferred on or belonging to any such part of the State services or any such officer or employee.

  (6) The Commissioner may, if requested by the head of any part of the State services that does not form part of the Public Service, or of any corporation listed in Schedule 1 of the State-Owned Enterprises Act 1986, provide assistance in respect of the conditions of employment of its employees.

  Section 11: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 11(4): substituted, on 25 January 2005, by section 8(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 11(5)(a): amended, on 25 January 2005, by section 8(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 11(6): added, on 25 January 2005, by section 8(3) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

12 Deputy State Services Commissioner

• (1) There shall be an officer to be called the Deputy State Services Commissioner, who shall be appointed by the Governor-General in Council on the recommendation of the Prime Minister.

  (2) Subject to the control of the Commissioner, the Deputy Commissioner shall have and may exercise all the functions, duties, and powers of the Commissioner.

  (3) On the occurrence from any cause of a vacancy in the office of Commissioner (whether by reason of death, resignation, or otherwise), and in the case of absence from duty of the Commissioner (from whatever cause arising), and so long as any such vacancy or absence continues, the Deputy Commissioner shall have and may exercise all the functions, duties, and powers of the Commissioner.

  (4) The fact that the Deputy Commissioner exercises any function, duty, or power of the Commissioner shall, in the absence of proof to the contrary, be conclusive evidence of his or her authority to do so.

  Section 12: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

13 Term of office

• (1) The Commissioner and the Deputy Commissioner shall each be appointed for such term, not exceeding 5 years, as shall be specified in the Order in Council by which the Commissioner or the Deputy Commissioner is appointed.

  (2) The Commissioner and the Deputy Commissioner shall each be eligible for reappointment from time to time.

  (3) Where a person who is employed in the State services is appointed as the Commissioner or as the Deputy Commissioner, that person's term of office as Commissioner or Deputy Commissioner shall be deemed, for the purposes of—

  • (a) the Government Superannuation Fund Act 1956; and

  • (b) appointment to any position in the State services on the termination of that person's service as Commissioner or Deputy Commissioner; and

  • (c) entitlement to leave of absence,—

  to be continuous service in that part of the State services in which that person was employed at the date of that person's appointment as Commissioner or Deputy Commissioner.

  Section 13: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

14 Acting Commissioner or acting Deputy Commissioner

• (1) In the event of the incapacity of the Commissioner by reason of illness or absence or any other cause, the Governor-General in Council, on the recommendation of the Prime Minister, may appoint an acting Commissioner to act for the Commissioner during that incapacity.

  (2) In the event of the incapacity of the Deputy Commissioner by reason of illness or absence or any other cause or where the Deputy Commissioner is, pursuant to section 12(3), exercising the functions, duties, and powers of the Commissioner, the Governor-General in Council, on the recommendation of the Prime Minister, may appoint an acting Deputy Commissioner to act for the Deputy Commissioner during that incapacity or while the Deputy Commissioner is exercising those functions, duties, and powers.

  (3) No appointment of an acting Commissioner or acting Deputy Commissioner, and no act done by an acting Commissioner or acting Deputy Commissioner, as such, shall in any proceedings be questioned on the ground that the occasion for his or her appointment had not arisen or had ceased.

  Section 14: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

15 Remuneration and expenses of Commissioner and Deputy Commissioner

• (1) The Commissioner and the Deputy Commissioner shall be paid—

  • (a) such remuneration as may from time to time be determined in each case by the Remuneration Authority; and

  • (b) such additional allowances, being travelling allowances or other incidental or minor allowances, as may be determined from time to time in each case by the Minister of Finance.

  (2) Subject to the Remuneration Authority Act 1977, any determination made under subsection (1) may be made so as to come into force on a date to be specified for that purpose in the determination, being the date of the making of the determination, or any other date, whether before, on, or after the date of the making of the determination.

  (3) Every determination made under subsection (1) in respect of which no date is specified as aforesaid shall come into force on the date of the making of the determination.

  Section 15: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 15(1)(a): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54).

  Section 15(2): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54).

16 Removal from office

• (1) The Commissioner and the Deputy Commissioner may be suspended or removed from office in accordance with the following provisions of this section and not otherwise.

  (2) The Governor-General may suspend the Commissioner or the Deputy Commissioner from office for misbehaviour or incompetence, but the Commissioner or the Deputy Commissioner shall not be removed from office except as provided in this section.

  (3) The Governor-General shall cause to be laid before the House of Representatives a full statement of the grounds of any suspension within 7 sitting days after the date of that suspension.

  (4) Unless the House of Representatives, within 21 days from the date on which the statement in respect of the Commissioner or Deputy Commissioner suspended under this section has been laid before it, declares by resolution that the Commissioner or Deputy Commissioner, as the case may be, ought to be removed from office, the Commissioner or Deputy Commissioner, as the case may be, shall be deemed to be restored to office as from the date of his or her suspension; and, if the House of Representatives within the said time does so declare, the Commissioner or Deputy Commissioner, as the case may be, shall be removed by the Governor-General from the date of the suspension.

  (5) Unless the Governor-General in Council otherwise directs, the Commissioner or Deputy Commissioner who has been removed from office under this section shall not be entitled to be reappointed to the State services and shall not be entitled to a retiring allowance under the Government Superannuation Fund Act 1956.

  Section 16: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

17 Vacation of office

• (1) Any person who holds office as the Commissioner or the Deputy Commissioner shall be deemed to have vacated office if—

  • (a) without the approval of the Governor-General that person—

    • (i) engages during his or her term of office in any paid employment or business other than the duties of his or her office; or

    • (ii) is appointed to and accepts any other office or position in the State services:

  • (b) that person becomes bankrupt, compounds with his or her creditors, or makes an assignment of his or her salary for their benefit:

  • (c) that person absents himself or herself from duty except with the authority of the Governor-General:

  • (d) that person resigns in writing under his or her hand addressed to the Governor-General.

  (2) Notwithstanding anything in this section, the Commissioner or the Deputy Commissioner may act temporarily in any position in any department or organisation of the State services that is for the time being vacant (including the position of chief executive of a department).

  Section 17: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 17(2): amended, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

18 Superannuation rights of Commissioner and Deputy Commissioner

• Where any person who is a contributor to the Government Superannuation Fund is appointed as Commissioner or Deputy Commissioner, that person shall, unless—

  • (a) he or she is reappointed as Commissioner or Deputy Commissioner or, in the case of a person holding office as Deputy Commissioner, becomes the successor of the Commissioner; or

  • (b) he or she is appointed to another office in the Government service (within the meaning of the Government Superannuation Fund Act 1956); or

  • (c) he or she has ceased to be a contributor to the Government Superannuation Fund; or

  • (d) he or she is not entitled under section 16(5) to a retiring allowance,—

  be allowed to receive from the Fund an annual retiring allowance for the rest of his or her life computed in the manner prescribed by Part 2 or Part 2A of the Government Superannuation Fund Act 1956, notwithstanding that the Commissioner or Deputy Commissioner may not have attained the age or have had the length of service that would entitle him or her in accordance with the terms of that Act to a retiring allowance.

  Section 18: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

19 Annual report

• (1) The Commissioner shall, as soon as practicable after the end of each financial year, furnish to the Minister a report on the operations of the Commissioner for that year, and on such other matters affecting the State services as the Commissioner thinks fit.

  (2) The report must be presented and published in accordance with section 44 of the Public Finance Act 1989 as if it were a department's annual report.

  Section 19: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 19(2): substituted, on 25 January 2005, by section 37(1) of the Public Finance Amendment Act 2004 (2004 No 113).

20 Power to incorporate annual report of Commission in Commissioner's annual report

• The Commissioner may incorporate in his or her report under section 19 in respect of any financial year the report required by section 43 of the Public Finance Act 1989 on the operations of the Commission for that financial year.

  Section 20: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 20: amended, on 25 January 2005, by section 37(1) of the Public Finance Amendment Act 2004 (2004 No 113).

21 Advisory committees

• (1) The Commissioner may from time to time appoint such advisory committees as the Commissioner considers appropriate to assist the Commissioner in carrying out any of the functions of the Commissioner.

  (2) The Commissioner may authorise any advisory committee appointed under this section to make such enquiries or to conduct such research or to make such reports as may assist the efficient carrying out of the functions of the Commissioner.

  (3) In determining the membership of any advisory committee, the Commissioner shall have due regard to the nature of the community interest in the particular matter or matters to be addressed by that advisory committee.

  Section 21: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

22 Remuneration of advisory committees

• (1) The Commissioner shall pay persons appointed to any advisory committee under section 21, for services rendered by them, fees at such rates as the Commissioner thinks fit and may separately reimburse them for expenses reasonably incurred in rendering services for the Commissioner.

  (2) No person shall be deemed to be employed in the service of Her Majesty by reason of appointment to an advisory committee under section 21.

  Section 22: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

23 Delegation of functions or powers

• (1) The Commissioner may from time to time, either generally or particularly, delegate to any person or persons any of the functions or powers of the Commissioner under this Act or any other Act, including functions or powers delegated to the Commissioner under any Act.

  (2) Every delegation under this section shall be in writing.

  (3) No delegation under this section shall include—

  • (a) the power to delegate under this section; or

  • (b) the Commissioner's powers under sections 35 and 36 (which relate to the appointment and reappointment of chief executives); or

  • (c) the Commissioner's powers under section 39 (which relates to the removal from office of a chief executive); or

  • (d) [Repealed]

  • (e) [Repealed]

  (4) In any case where the Commissioner has, pursuant to subsection (1), delegated any of the functions or powers of the Commissioner to any person, that person may, with the prior approval in writing of the Commissioner, delegate such of those functions or powers as the Commissioner approves to any other person or to the holder for the time being of any specified office in the State services.

  (5) Subject to any general or special directions given or conditions imposed by the Commissioner, the person to whom any functions or powers are delegated under this section may exercise those functions or powers in the same manner and with the same effect as if they had been conferred on that person directly by this Act and not by delegation.

  (6) Every person purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.

  (7) Any delegation under this section may be made to a specified person or to persons of a specified class, or to the holder or holders for the time being of a specified office or of specified classes of offices.

  (8) No such delegation shall affect or prevent the exercise of any function or power by the Commissioner nor shall any such delegation affect the responsibility of the Commissioner for the actions of any person acting under the delegation.

  Section 23: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 23(3)(d): repealed, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 23(3)(e): repealed, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

24 Revocation of delegations

• (1) Every delegation under section 23 shall be revocable in writing at will.

  (2) Any such delegation shall, until it is revoked, continue in force according to its tenor, notwithstanding that the Commissioner by whom it was made may have ceased to hold office and shall continue to have effect as if made by the successor in office of that Commissioner.

  Section 24: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

25 Power to summon witnesses

• (1) For the purposes of carrying out the duties and functions imposed on the Commissioner by this Act or any other Act, the Commissioner shall have the same powers and authority to summon witnesses and receive evidence as are conferred upon commissions of inquiry by the Commissions of Inquiry Act 1908, and the provisions of that Act, except sections 11 and 12 (which relate to costs), shall apply accordingly.

  (2) Any investigation or inquiry that the Commissioner is empowered to conduct under this Act or any other Act may be conducted by the Commissioner or by any person specifically appointed by the Commissioner to conduct the investigation or inquiry and to report thereon to the Commissioner; and, for the purposes of any such investigation or inquiry, the powers and authority conferred on the Commissioner by subsection (1) shall attach to and may be exercised by such other persons so appointed.

  Section 25: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

26 Fees and expenses in connection with investigation or inquiry

• Notwithstanding anything in the Commissions of Inquiry Act 1908, the Commissioner may authorise the payment, out of money appropriated by Parliament for the purpose, of fees and expenses incurred in connection with any such investigation or inquiry.

  Section 26: substituted, on 19 December 1989, by section 3 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

27 Public Service defined

• (1) The Public Service shall comprise the departments specified in Schedule 1.

  (2) [Repealed]

  Section 27(2): repealed, on 2 August 2003, by section 5 of the State Sector Amendment Act 2003 (2003 No 41).

28 Delegation of functions or powers of appropriate Minister

• (1) The appropriate Minister in relation to a department may from time to time, either generally or particularly, delegate to the chief executive of that department all or any of the Minister's functions and powers under this Act or any other Act, including functions or powers delegated to the Minister under this Act or any other Act.

  (2) Every delegation under this section shall be in writing.

  (3) No delegation under this section shall include the power to delegate under this section.

  (4) The power of the appropriate Minister to delegate under this section—

  • (a) is subject to any prohibitions, restrictions, or conditions contained in any other Act in relation to the delegation of the Minister's functions or powers; but

  • (b) does not limit any power of delegation conferred on the Minister by any other Act.

  (5) Subject to any general or special directions given or conditions imposed by the appropriate Minister, the chief executive may exercise any functions or powers so delegated to the chief executive in the same manner and with the same effect as if they had been conferred on the chief executive directly by this section and not by delegation.

  (6) Where the chief executive purports to act pursuant to any delegation under this section, the chief executive shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.

  (7) No such delegation shall affect or prevent the exercise of any function or power by the appropriate Minister, nor shall any such delegation affect the responsibility of the appropriate Minister for the actions of any person acting under the delegation.

29 Revocation of delegations

• (1) Every delegation under section 28 shall be revocable in writing at will.

  (2) Any such delegation, until it is revoked, shall continue in force according to its tenor.

  (3) In the event of the appropriate Minister by whom any such delegation has been made ceasing to hold office,—

  • (a) it shall continue to have effect as if made by the person for the time being holding office as the appropriate Minister; and

  • (b) the chief executive shall forthwith advise the then appropriate Minister of the terms of any such delegation.

  (4) In the event of the chief executive to whom any such delegation has been made ceasing to hold office, it shall continue to have effect as if made to the person for the time being holding office as chief executive or, if there is no chief executive in office or if the chief executive is absent from duty, to the person for the time being directed to act in the place of the chief executive.

30 Annual reports of departments

[Repealed]

• [Repealed]

  Section 30: repealed, on 25 January 2005, by section 37(1) of the Public Finance Amendment Act 2004 (2004 No 113).

30A Amendment of Schedule 1 to reflect reorganisations within Public Service

• (1) The Governor-General may, by Order in Council, amend Schedule 1 if a department is abolished or its name is changed or a new department is established.

  (2) To avoid doubt, this section does not limit the need for a department that has been established by an Act of Parliament to be abolished or have its name changed by an Act of Parliament.

  Section 30A: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30B Effect of reorganisations within Public Service on employees

• A transfer of functions from one department (Department A) to another department (Department B) does not transfer a chief executive or employee of Department A to Department B, despite sections 30H(2) and (3) and 30I(2) and (3).

  Section 30B: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30C Application of employee provisions to reorganisations between departments

• Each of sections 30E to 30G applies to a transfer of functions from Department A to Department B only if the Governor-General, by Order in Council, declares that that section applies to that transfer of functions.

  Section 30C: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30D Application of employee provisions to transfers from Crown entities to departments

• (1) The Governor-General may, by Order in Council, declare that all or any of the following provisions apply to a transfer of functions from a Crown entity (within the meaning of section 2(1) of the Public Finance Act 1989) to a department:

  • (a) sections 30E and 30F:

  • (b) sections 30G to 30I in so far as—

    • (i) those sections relate to a collective employment agreement that binds the chief executive of the Crown entity before the transfer of the functions; and

    • (ii) that collective employment agreement applies to an employee whose position in the Crown entity ceases to exist as a result of the transfer of functions.

  (2) On the commencement of an Order in Council under subsection (1), the sections declared to apply in respect of the Crown entity named in the order apply—

  • (a) as if a reference to Department A in that section were a reference to that Crown entity; and

  • (b) with all other necessary modifications.

  Section 30D: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30E Restriction of compensation for technical redundancy arising from reorganisations

• (1) An employee is not entitled to receive any payment or other benefit on the ground that his or her position in Department A has ceased to exist if—

  • (a) the position ceases to exist as a result of a transfer of functions from Department A to Department B; and

  • (b) in connection with that transfer of functions,—

    • (i) the employee is offered equivalent employment in Department B (whether or not the employee accepts the offer); or

    • (ii) the employee is offered, and accepts, other employment in Department B.

  (2) Equivalent employment to the employee's employment in Department A is employment in Department B—

  • (a) in substantially the same position; and

  • (b) in the same general locality; and

  • (c) on terms and conditions of employment that are no less favourable than those that apply to the employee immediately before the offer of equivalent employment (including any service-related, redundancy, and superannuation conditions); and

  • (d) on terms that treat the period of service with Department A (and any other period of service recognised by Department A as continuous service) as if it were continuous service with Department B.

  (3) This section overrides Part 6A of the Employment Relations Act 2000.

  Section 30E: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

  Section 30E(3): added, on 1 December 2004, by section 72 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

30F Reappointment of employees following reorganisations

• Sections 60 to 61B and 65 do not apply to the appointment of an employee of Department A to a position in Department B if the employee's position in Department A ceases to exist as a result of a transfer of functions from Department A to Department B.

  Section 30F: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30G Application of collective agreements to employees following reorganisations

• (1) This section limits which employees may be bound by a collective agreement that—

  • (a) binds the chief executive of Department A before a transfer of functions from Department A to Department B and that, as a consequence of sections 30H and 30I, binds the chief executive of Department B after that transfer of functions (collective agreement A); or

  • (b) binds the chief executive of Department B before that transfer of functions (collective agreement B).

  (2) After that transfer of functions,—

  • (a) the only employees of Department B who are entitled to be bound by or enforce collective agreement A are those employees who are appointed to a position in Department B that has been established (whether or not previously existing in Department A) to enable Department B to perform the transferred functions; and

  • (b) the only employees of Department B who are entitled to be bound by or enforce collective agreement B are those employees who hold, or are appointed to, a position other than a position referred to in paragraph (a).

  (3) Subsection (2) does not bind an employee to a collective agreement, or entitle an employee to be bound by or enforce a collective agreement, if the employee would not otherwise be bound by, or be entitled to be bound by or enforce, that agreement.

  (4) This section limits which employees may be bound by collective agreements (including collective employment contracts), and the coverage of those agreements, under Part 6 of this Act and sections 56(1), 57, 62(3), 63(3), and 243 of the Employment Relations Act 2000.

  (5) This section does not apply to a collective agreement to the extent that the parties agree otherwise.

  Section 30G: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30H Consequential changes to references to departments following reorganisations

• (1) If an enactment or other thing refers to a particular department and that reference is no longer appropriate because the department's name has changed, the reference must be read as a reference to the department under its new name.

  (2) If an enactment or other thing refers to a particular department and that reference is no longer appropriate because the department has been abolished, the reference must be read as a reference to the new responsible department.

  (3) If an enactment or other thing refers to a particular department and that reference is no longer appropriate because functions have been transferred between departments, the reference must be read as a reference to the new responsible department.

  (4) In this section, the new responsible department is the department to which responsibility for the matter to which the reference relates has been transferred.

  Section 30H: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30I Consequential changes to references to chief executives following reorganisations

• (1) If an enactment or other thing refers to a particular designation of a chief executive or a chief executive of a particular department and that reference is no longer appropriate because the designation or name of the department has changed, the reference must be read as a reference to the chief executive under the new designation or the department's new name (as applicable).

  (2) If an enactment or other thing refers to a chief executive of a particular department and that reference is no longer appropriate because the department has been abolished, the reference must be read as a reference to the new responsible chief executive.

  (3) If an enactment or other thing refers to a chief executive of a particular department and that reference is no longer appropriate because functions have been transferred between departments or between chief executives, the reference must be read as a reference to the new responsible chief executive.

  (4) In this section, the new responsible chief executive is the chief executive to whom, or to whose department, responsibility for the matter to which the reference relates has been transferred.

  Section 30I: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30J Application of consequential changes to references

• (1) Sections 30H and 30I—

  • (a) apply to things that are in force or existing at the time of the name change, abolition, or transfer of functions (whether coming into force, entered into, or created before or after the commencement of this section); and

  • (b) apply to references in anything, including (without limitation) deeds, agreements, proceedings, instruments, documents, and notices.

  (2) Regulations made under section 30K may apply sections 30H and 30I to things also coming into force, entered into, or created during a transitional period after the relevant name change, abolition, or transfer of functions that is specified in those regulations.

  (3) To avoid doubt, sections 30H and 30I do not limit the need for a department that has been established by an Act of Parliament to have its name changed, be abolished, or have statutory functions transferred by an Act of Parliament, and sections 30H and 30I apply in respect of that name change, abolition, or transfer only on and after that Act has given effect to it.

  (4) Sections 30H(1) and (2) and 30I(1) and (2) apply only on and after Schedule 1 is amended in respect of the relevant name change or abolition.

  (5) Sections 30H and 30I—

  • (a) apply to collective employment agreements subject to sections 30B and 30G; but

  • (b) do not apply to individual employment agreements.

  Section 30J: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30K Other saving and transitional matters arising from reorganisations within Public Service

• The Governor-General may, by Order in Council, provide for savings and transitional matters connected with the abolition or change of name of a department, the transfer of functions between departments, or the establishment of a new department.

  Section 30K: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

30L Effect of reorganisations within Public Service

• (1) The abolition or change of name of a department, the transfer of functions between departments, or the establishment of a new department does not affect—

  • (a) property, rights, or obligations of the Crown (whether or not in the name of the Crown or of a particular department, chief executive, or other person in a department); or

  • (b) the commencement or continuation of proceedings by or against the Crown (whether or not in the name of the Crown or of a particular department, chief executive, or other person in a department).

  (2) In this section, property means property of every kind, whether tangible or intangible, real or personal, corporeal or incorporeal; and includes rights, interests, and claims of every kind in relation to property, however they arise.

  (3) This section does not limit sections 30A to 30K.

  (4) This section applies for the avoidance of doubt.

  Section 30L: inserted, on 2 August 2003, by section 4 of the State Sector Amendment Act 2003 (2003 No 41).

31 Chief executives

• (1) Each department shall have, as its administrative head, a chief executive.

  (2) Each chief executive shall be known—

  • (a) by the designation fixed by Act of Parliament in respect of that chief executive; or

  • (b) where the designation of a chief executive is not fixed by Act of Parliament, by the designation given to that chief executive from time to time by the Prime Minister.

32 Principal responsibilities

• The chief executive of a department shall be responsible to the appropriate Minister for—

  • (a) the carrying out of the functions and duties of the department (including those imposed by Act or by the policies of the Government); and

  • (b) the tendering of advice to the appropriate Minister and other Ministers of the Crown; and

  • (c) the general conduct of the department; and

  • (d) the efficient, effective, and economical management of the activities of the department.

33 Duty to act independently

• Notwithstanding anything in section 32, in matters relating to decisions on individual employees (whether matters relating to the appointment, promotion, demotion, transfer, disciplining, or the cessation of the employment of any employee, or other matters), the chief executive of a department shall not be responsible to the appropriate Minister but shall act independently.

  Section 33: amended, on 20 September 2007, by section 4 of the State Sector Amendment Act 2007 (2007 No 82).

34 Functions, responsibilities, duties, and powers

• (1) The functions, responsibilities, duties, and powers imposed on or given to the chief executive of a department by this Act are in addition to those imposed on or given to that chief executive by or under any other Act.

  (2) The chief executive of a department shall have the powers necessary to carry out the functions, responsibilities, and duties imposed on that chief executive by or under this Act, as well as the powers necessary to carry out the functions, responsibilities, and duties imposed on that chief executive or that department by or under any other Act.

35 Appointment of chief executives

• (1) Subject to sections 36, 37, 44, and 91, each chief executive shall be appointed by the Commissioner in accordance with the provisions of this section.

  (2) Where there is a vacancy or an impending vacancy in the position of chief executive of a department, the Commissioner shall—

  • (a) inform the Minister of that vacancy or impending vacancy; and

  • (b) invite the Minister to inform the Commissioner of any matters that the Minister wishes the Commissioner to take into account in making an appointment to the position.

  (3) The Commissioner shall notify the vacancy or impending vacancy in such manner as the Commissioner thinks sufficient to enable suitably qualified persons to apply for the position.

  (4) A panel comprising—

  • (a) the Commissioner as chairperson; and

  • (b) the Deputy Commissioner; and

  • (c) 1 or more persons to be appointed by the Commissioner after consultation with the appropriate Minister or appropriate Ministers,—

  shall be established in respect of each vacancy.

  (4A) The panel as constituted under subsection (4) may—

  • (a) examine applicants for the position; and

  • (b) seek advice from such other sources as the panel considers relevant; and

  • (c) deliberate on the person to be recommended for appointment.

  (4B) Following the deliberations of the panel, the Commissioner shall decide upon the person to be recommended to the Minister for appointment.

  (5) The Commissioner may invite such other persons as the Commissioner thinks fit to assist in deciding upon the person to be recommended for appointment, and any person so invited may take part in the examination of applicants or in the panel's deliberations on the matter or in both.

  (6) The Commissioner shall forward to the Minister the name of the person decided upon under subsection (4B) as the person recommended for appointment to the position, together with full particulars of that person's qualifications.

  (7) The Minister shall refer the Commissioner's recommendations to the Governor-General in Council.

  (8) The Governor-General in Council shall decide whether the Commissioner's recommendation is to be accepted or declined.

  (9) The Minister shall inform the Commissioner whether the Commissioner's recommendation has been accepted or declined by the Governor-General in Council.

  (10) Where the Commissioner's recommendation is accepted, the Commissioner shall—

  • (a) appoint the person recommended; and

  • (b) announce publicly that the appointment has been made.

  (11) Where the Commissioner's recommendation is declined, the following provisions shall apply:

  • (a) the Governor-General in Council may direct the Commissioner to appoint a named person to the position:

  • (b) the Governor-General in Council shall not be required to comply with the preceding subsections of this section:

  • (c) notice of the making of an appointment pursuant to a direction under paragraph (a) shall be published in the Gazette as soon as practicable.

  (12) In deciding upon the person to be appointed as chief executive of a department, the Commissioner or the Governor-General in Council, as the case may be, shall have regard to the need to appoint a person who—

  • (a) can discharge the specific responsibilities placed on that chief executive; and

  • (b) will imbue the employees of the department with a spirit of service to the community; and

  • (c) will promote efficiency in the department; and

  • (d) will be a responsible manager of the department; and

  • (e) will maintain appropriate standards of integrity and conduct among the employees of the department; and

  • (f) will ensure that the department is a good employer; and

  • (g) will promote equal employment opportunities.

  Section 35(1): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(2): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(2)(b): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(3): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(4): substituted, on 19 December 1989, by section 5 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(4A): inserted, on 19 December 1989, by section 5 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(4B): inserted, on 19 December 1989, by section 5 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(5): substituted, on 19 December 1989, by section 5 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(6): substituted, on 19 December 1989, by section 5 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(7): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(8): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(9): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(10): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(11): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(11)(a): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 35(12): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

36 Reappointment of chief executives

• (1) The Commissioner may recommend under section 35(6) that the existing chief executive of a department be reappointed for a further term.

  (2) The Commissioner may make a recommendation under subsection (1) without first notifying the impending vacancy or examining other applicants or establishing a panel under section 35(4).

  Section 36: substituted, on 19 December 1989, by section 6 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

37 Appointment and reappointment of Government Statistician

• (1) Subject to section 91, the Government Statistician shall be appointed by the Commissioner in accordance with the provisions of this section.

  (2) Subject to subsection (5), the Commissioner shall appoint the Government Statistician after complying with subsections (2) to (5) and (12) of section 35.

  (3) Nothing in subsections (6) to (11) of section 35 or in section 36 shall apply in respect of the appointment or reappointment of the Government Statistician.

  (4) The Commissioner may from time to time reappoint the Government Statistician for a further term.

  (5) The Commissioner may reappoint the Government Statistician without first notifying the impending vacancy or examining other applicants.

  Section 37(1): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 37(2): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 37(4): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 37(5): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

38 Conditions of employment of chief executives

• (1) Every chief executive shall be appointed for a term of not more than 5 years.

  (2) Every chief executive shall be eligible for reappointment from time to time.

  (3) Except where specific conditions of employment for a chief executive are provided in this Act, the conditions of employment of a chief executive shall be determined in each case by agreement between the Commissioner and the chief executive, but the Commissioner shall obtain the agreement of the Prime Minister and the Minister of State Services to the conditions of employment before finalising those conditions of employment with the chief executive.

  (4) In the case of the Government Statistician, the Commissioner shall not be required to obtain the agreement of the Prime Minister and the Minister of State Services before finalising the conditions of employment of the Government Statistician.

  Section 38(3): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 38(4): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

39 Removal from office

• The Commissioner may, with the agreement of the Governor-General in Council, for just cause or excuse, remove the chief executive of a department from office.

  Section 39: amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

40 Acting chief executive

• (1) Where—

  • (a) there is a vacancy in the position of a chief executive; or

  • (b) a chief executive is absent from duty (from whatever cause arising) and that chief executive is unable to delegate his or her responsibilities under this Act to any other person under section 41,—

  all or any of the functions, powers, and duties of the chief executive or pertaining to the position may be exercised and performed by—

  • (c) a chief executive of another department; or

  • (d) [Repealed]

  • (e) an employee,—

  for the time being directed by the Commissioner to exercise and perform them, whether the direction has been given before the absence or vacancy occurs or while it continues.

  (2) No such direction and no acts done by any person acting pursuant to any such direction shall in any proceedings be questioned on the ground that the occasion for the direction had not arisen or had ceased, or on the ground that the person had not been appointed to the position of chief executive.

  (3) The Commissioner shall determine the conditions of employment that are to apply to any person directed under subsection (1) to exercise and perform any of the functions, powers, and duties of a chief executive.

  Section 40(1): substituted, on 19 December 1989, by section 7 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 40(1)(d): repealed, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 40(3): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

41 Delegation of functions or powers

• (1) The chief executive of a department may from time to time, either generally or particularly, delegate to any other person (being a chief executive or an employee) any of the functions or powers of the chief executive under this Act or any other Act, including functions or powers delegated to the chief executive under this Act or any other Act:

  provided that the chief executive shall not delegate any functions or powers delegated to the chief executive by a Minister without the written consent of that Minister, or any functions or powers delegated to the chief executive by the Commissioner without the written consent of the Commissioner.

  (2) In any case where the chief executive has, pursuant to subsection (1), delegated any functions or powers to any person, that person may, with the prior approval in writing of the chief executive, delegate such of those functions or powers as the chief executive approves to any other person (being an employee) or to the holder for the time being of any specified office in that department.

  (3) Subject to any general or special directions given or conditions imposed by the chief executive, the person to whom any functions or powers are delegated under this section may exercise those functions or powers in the same manner and with the same effect as if they had been conferred on that person directly by this Act and not by delegation.

  (4) The power of the chief executive to delegate under this section—

  • (a) is subject to any prohibitions, restrictions, or conditions contained in any other Act in relation to the delegation of the chief executive's functions or powers; but

  • (b) shall not limit any power of delegation conferred on the chief executive by any other Act.

  (5) Every person purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.

  (6) Any delegation under this section may be made to a specified person or to persons of a specified class, or to the holder or holders for the time being of a specified office or specified class of offices.

  (7) No such delegation shall affect or prevent the exercise of any function or power by the chief executive, nor shall any such delegation affect the responsibility of the chief executive for the actions of any person acting under the delegation.

  Section 41(1): amended, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 41(1): amended, on 19 December 1989, by section 8 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 41(1) proviso: amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 41(2): amended, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

42 Revocation of delegations

• (1) Every delegation under section 41 shall be revocable in writing at will.

  (2) Any such delegation, until it is revoked, shall continue in force according to its tenor, notwithstanding that the chief executive by whom it was made may have ceased to hold office, and shall continue to have effect as if made by the successor in office of that chief executive.

43 Review of performance of chief executive

• (1) The Commissioner shall be responsible to the appropriate Minister or appropriate Ministers for reviewing, either generally or in respect of any particular matter, the performance of each chief executive.

  (2) In carrying out its functions under subsection (1), the Commissioner shall report to the appropriate Minister or appropriate Ministers on the manner and extent to which the chief executive is fulfilling all of the requirements imposed upon that chief executive, whether under this Act or otherwise.

  Section 43(1): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 43(2): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

44 Special provisions in relation to certain chief executives

• (1) Nothing in sections 35, 36, 38, 39, 43, and 91 apply in respect of—

  • (a) the Solicitor-General; or

  • (b) the Controller and Auditor-General; or

  • (c) the Commissioner of Police; or

  • (d) the Director of the Government Communications Security Bureau; or

  • (e) the State Services Commissioner.

  (2) For the purposes of this Act, but subject to subsection (1),—

  • (a) the Solicitor-General shall be the chief executive of the Crown Law Office:

  • (b) [Repealed]

  • (c) the State Services Commissioner shall be the chief executive in respect of the State Services Commission:

  • (d) the Commissioner of Police is the chief executive of the New Zealand Police:

  • (e) the Director of the Government Communications Security Bureau is the chief executive of the Government Communications Security Bureau.

  Section 44(1)(d): substituted, on 2 April 2003, by section 33(1) of the Government Communications Security Bureau Act 2003 (2003 No 9).

  Section 44(1)(e): added, on 2 April 2003, by section 33(1) of the Government Communications Security Bureau Act 2003 (2003 No 9).

  Section 44(2)(b): repealed, on 1 July 2001, by section 53 of the Public Audit Act 2001 (2001 No 10).

  Section 44(2)(c): amended, on 19 December 1989, pursuant to section 33(2) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 44(2)(c): amended, on 19 December 1989, pursuant to section 33(3) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 44(2)(d): substituted, on 1 October 2008, by section 125 of the Policing Act 2008 (2008 No 72).

  Section 44(2)(e): added, on 2 April 2003, by section 33(2) of the Government Communications Security Bureau Act 2003 (2003 No 9).

45 Application of Labour Relations Act 1987 in respect of chief executives

• [Repealed]

  Section 45: repealed, on 15 May 1991, by section 3 of the State Sector Amendment Act 1991 (1991 No 31).

46 Object

• The object of this Part is to establish the shared responsibility of the Commissioner and the chief executives of departments of the Public Service for the development of senior leadership and management capability in the Public Service, so that there will be sufficient senior employees who are able to fill chief executive and other leadership and senior management positions in the Public Service.

  Section 46: substituted, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

47 Responsibilities of Commissioner

• (1) The Commissioner is responsible for—

  • (a) developing and promoting a strategy for the development of senior leaders and managers in the Public Service; and

  • (b) at the Commissioner's discretion, issuing guidance to chief executives of departments of the Public Service to assist them in developing senior leaders and managers in their departments; and

  • (c) establishing an executive leadership programme for selected employees in the Public Service that will provide training and development for those employees, so that those employees gain the ability to fill chief executive and other leadership and senior management positions in the Public Service.

  (2) In relation to the executive leadership programme, the Commissioner is responsible, in consultation with chief executives of departments of the Public Service, for—

  • (a) setting standards for the selection of employees in the Public Service to participate in the executive leadership programme; and

  • (b) approving the entry of employees in the Public Service to the executive leadership programme; and

  • (c) approving the development programme for each employee participating in the executive leadership programme, in consultation with the employee concerned.

  (3) Despite section 33, the Commissioner may request the chief executive of a department of the Public Service who is the employer of an employee selected for the executive leadership programme to make that employee available for the training and development necessary to give effect to the employee's development programme.

  Section 47: substituted, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

48 Responsibilities of Public Service chief executives

• (1) Each chief executive of a department of the Public Service is responsible for developing senior leadership and management capability in his or her department and in doing so must have regard to any guidance by the Commissioner under section 47(1)(b).

  (2) Each chief executive of a department of the Public Service must, in relation to the executive leadership programme,—

  • (a) co-operate with the Commissioner in making employees available for selection for the executive leadership programme; and

  • (b) comply with any reasonable request by the Commissioner under section 47(3); and

  • (c) co-operate with the Commissioner, to the extent reasonable, to give effect to any secondment that the Commissioner proposes under section 49.

  Section 48: substituted, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

49 Secondments

• (1) The Commissioner may arrange for the secondment of any employee selected for the executive leadership programme to a department of the Public Service or another organisation in the State services, subject to the agreement of the employee and the chief executives concerned, for the purpose of giving effect to any part of the development programme for that employee referred to in section 47(2)(c).

  (2) Sections 60, 61, and 65 do not apply to the secondment.

  Section 49: substituted, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

50 Other organisations in State services

• (1) The Commissioner may promote the strategy for the development of senior leaders and managers developed for the Public Service under section 47(1)(a) to organisations in the State services that are not part of the Public Service.

  (2) The Commissioner may issue to organisations in the State services that are not part of the Public Service any guidance he or she has issued to chief executives of departments of the Public Service under section 47(1)(b).

  (3) The Commissioner may, in consultation with the employee's chief executive, invite any employee in an organisation in the State services that is not part of the Public Service to participate in training and development activities provided for employees of Public Service departments.

  Section 50: substituted, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

51 Appointments to positions in the senior executive service

• [Repealed]

  Section 51: repealed, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

52 Conditions of employment for senior executive service

• [Repealed]

  Section 52: repealed, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

53 Removal from office

• [Repealed]

  Section 53: repealed, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

54 Conditions where person not reappointed

• [Repealed]

  Section 54: repealed, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

55 Training for senior executive service

• [Repealed]

  Section 55: repealed, on 25 January 2005, by section 9 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

56 General principles

• (1) The chief executive of a department must—

  • (a) operate a personnel policy that complies with the principle of being a good employer; and

  • (b) make that policy (including the equal employment opportunities programme) available to its employees; and

  • (c) ensure its compliance with that policy (including its equal employment opportunities programme) and report in its annual report on the extent of its compliance.

  (2) For the purposes of this section, a good employer is an employer who operates a personnel policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring—

  • (a) good and safe working conditions; and

  • (b) an equal employment opportunities programme; and

  • (c) the impartial selection of suitably qualified persons for appointment; and

  • (d) recognition of—

    • (i) the aims and aspirations of the Maori people; and

    • (ii) the employment requirements of the Maori people; and

    • (iii) the need for greater involvement of the Maori people in the Public Service; and

  • (e) opportunities for the enhancement of the abilities of individual employees; and

  • (f) recognition of the aims and aspirations and employment requirements, and the cultural differences, of ethnic or minority groups; and

  • (g) recognition of the employment requirements of women; and

  • (h) recognition of the employment requirements of persons with disabilities.

  (3) In addition to the requirements, specified in subsections (1) and (2), each chief executive shall ensure that all employees maintain proper standards of integrity, conduct, and concern for the public interest.

  (4) [Repealed]

  Section 56(1): substituted, on 25 January 2005, by section 10(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 56(2)(f): substituted, on 25 January 2005, by section 10(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 56(4): repealed, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

57 Commissioner may set minimum standards of integrity and conduct

• (1) The Commissioner may set minimum standards of integrity and conduct that are to apply in—

  • (a) the Public Service:

  • (b) all or any Crown entities:

  • (c) the Parliamentary Counsel Office:

  • (d) the Parliamentary Service.

  (2) The Commissioner may set those minimum standards by issuing a code of conduct and applying it to any agency referred to in subsection (1), by written notice to the agency.

  (3) A code may be applied to an agency referred to in subsection (1)(b) to (d) with any variations that the Commissioner thinks appropriate, taking into consideration the legal or commercial context of the agency.

  Section 57: substituted, on 25 January 2005, by section 11 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

57A Agencies must comply with minimum standards except in particular circumstances

• (1) An agency (including its employees) must comply with any standards that apply to it under section 57.

  (2) However, an agency referred to in section 57(1)(b) to (d) may derogate from a particular standard if the agency has—

  • (a) obtained the prior written approval of its responsible Minister to the derogation; and

  • (b) sent a copy of the approval to the Commissioner.

  (3) This section does not prevent an agency from applying additional or detailed standards that are consistent with the standards applied to the agency.

  Section 57A: inserted, on 25 January 2005, by section 11 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

57B Breaches of minimum standards

• The Commissioner may advise the responsible Minister if, in the opinion of the Commissioner, a serious breach of any minimum standard applied to an agency under section 57 has occurred, or is likely to occur.

  Section 57B: inserted, on 25 January 2005, by section 11 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

57C Commissioner's powers when setting and enforcing minimum standards

• (1) The Commissioner may, when acting under sections 57 to 57B in respect of any agency referred to in section 57(1)(b) to (d), exercise the powers in sections 7 to 9 that the Commissioner may exercise in respect of departments, including the powers in section 25.

  (2) The Commissioner's powers include providing advice and guidance on matters like the interpretation of the standards and the application of a code of conduct in specific cases.

  Section 57C: inserted, on 25 January 2005, by section 11 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

58 Equal employment opportunities

• (1) [Repealed]

  (2) [Repealed]

  (3) For the purposes of section 56, an equal employment opportunities programme means a programme that is aimed at the identification and elimination of all aspects of policies, procedures, and other institutional barriers that cause or perpetuate, or tend to cause or perpetuate, inequality in respect to the employment of any persons or group of persons.

  Section 58(1): repealed, on 25 January 2005, by section 12(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 58(2): repealed, on 25 January 2005, by section 12(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 58(3): amended, on 25 January 2005, by section 12(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

59 Employees of departments

• (1) The chief executive of a department—

  • (a) may from time to time appoint such employees (including acting or temporary or casual employees) as the chief executive thinks necessary for the efficient exercise of the functions, duties, and powers of the department; and

  • (b) may, subject to any conditions of employment included in the employment agreement applying to the employee, at any time remove any employee from that employee's office or employment.

  (2) Unless expressly provided to the contrary in this Act, the chief executive shall have all the rights, duties, and powers of an employer in respect of the persons employed in the department for which the chief executive is responsible.

  Section 59(1)(b): substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

60 Appointments on merit

• A chief executive, in making an appointment under this Act, shall give preference to the person who is best suited to the position.

61 Obligation to notify vacancies

• Where a chief executive of a department intends to fill a position that is vacant or is to become vacant in the department, the chief executive shall, wherever practicable, notify the vacancy or prospective vacancy in a manner sufficient to enable suitably qualified persons to apply for the position.

61A Power to transfer employees

• (1) Where the chief executive of a department at any time finds in respect of any duties being carried out by the department—

  • (a) that those duties are no longer to be carried out by the department; or

  • (b) that a greater number of persons is employed on those duties than is considered by the chief executive to be necessary for the efficient carrying out of those duties,—

  all or any of the persons who are carrying out those duties may, subject to the relevant employment agreement, either—

  • (c) be appointed by the chief executive to other positions in the same department; or

  • (d) be appointed by the chief executive of any other department to positions in that other department.

  (2) Nothing in sections 60, 61, and 65 shall apply in relation to any appointment made under this section.

  (3) Before making an appointment under this section, the chief executive responsible for the appointment shall consult with the employee about the proposed appointment.

  Section 61A: inserted, on 19 December 1989, by section 14 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 61A(1): amended, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

61B Protection of conditions of employment upon transfer of duties

• (1) Where, as a result of the transfer of all or any of the duties of one department to another department, any employees of the department that was performing those duties before the transfer are to be transferred to another department to continue to perform substantially the same duties as they were performing before the transfer, the conditions of employment of such employees shall be no less favourable than those that the transferred employees were entitled to receive under the employment agreements applying to such employees at the date of the transfer.

  (2) Subsection (1) shall continue to apply to the conditions of employment of each transferred employee until such time as any of the conditions of employment that apply under the employment agreement applying to that employee at the date of the transfer are varied. The conditions of employment of each transferred employee shall, from the date of any such variation, be determined in accordance with the employment agreement applying to that employee in the department in which the transferred employee is then employed.

  (3) Nothing in subsection (1) shall continue to apply to any transferred employee who receives any subsequent appointment, whether within the department to which that employee was transferred or any other department.

  Section 61B: substituted, on 15 May 1991, by section 6 of the State Sector Amendment Act 1991 (1991 No 31).

  Section 61B(1): amended, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

  Section 61B(2): amended, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

61C Union coverage where department ceases to be part of Public Service

• When any department or part of any department ceases (other than as a result of its abolition) to be part of the Public Service, the union coverage arrangements that prevailed immediately before the date on which the department or the part of the department ceased to be part of the Public Service shall continue to apply to the employees of the department, or that part of it, for a period (not exceeding 12 months) to be agreed between—

  • (a) the union or unions that had coverage of the employees while that department was part of the Public Service; and

  • (b) the Minister of State Services.

  Section 61C: inserted, on 19 December 1989, by section 14 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

62 Acting appointments

• (1) In the case of absence from duty of any employee (from whatever cause arising) or on the occurrence from any cause of a vacancy in any position in a department (whether by reason of death, resignation, or otherwise) and from time to time while the absence or vacancy continues, all or any of the powers and duties of the employee or pertaining to the position may be exercised and performed by any other employee for the time being directed by the chief executive to exercise and perform them, whether the direction has been given before the absence or vacancy occurs or while it continues.

  (2) No such direction and no acts done by any employee acting pursuant to any such direction shall in any proceedings be questioned on the ground that the occasion for the direction had not arisen or had ceased, or on the ground that the employee has not been appointed to any position to which the direction relates.

  Compare: 1962 No 132 s 33

63 Evidence of appointments

• (1) Any appointment to any office or position in a department shall be made, confirmed, or approved in writing by an instrument or minute by the chief executive or by any person to whom the chief executive has delegated power in that behalf in accordance with section 41; and, notwithstanding anything to the contrary in any Act, it shall not be necessary for the chief executive or any such person to execute any formal warrant or other instrument in special form.

  (2) A certificate signed by the chief executive that any person named in the certificate was appointed to any office or position in the department from and including a day stated therein shall be sufficient evidence that the person so named was duly so appointed to and continues to hold the office or position unless the contrary is proved.

  Compare: 1962 No 132 s 34

64 Obligation to notify appointments

• The chief executive of a department shall notify to the employees within the department every appointment (other than that of an acting, temporary, or casual employee) made by the chief executive to an office or position in the department.

65 Review of appointments

• (1) The chief executive of each department shall put into place for the department a procedure for reviewing those appointments made within that department that are the subject of any complaint by an employee of that department.

  (2) The procedure shall be approved by the Commissioner and shall comply with the guidelines prescribed by the Commissioner for such review procedures.

  (3) Nothing in this section relates to an acting appointment.

  Section 65(2): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 65(3): amended, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

66 Redundancy

• [Repealed]

  Section 66: repealed, on 19 December 1989, by section 15 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

67 Application to Public Service of Employment Relations Act 2000

• Except as otherwise provided in this Act, the Employment Relations Act 2000 applies in relation to the Public Service.

  Section 67: substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

68 Negotiation of conditions of employment

• (1) The Commissioner is responsible for negotiating under the Employment Relations Act 2000 every collective agreement applicable to employees of any department of the Public Service as if the Commissioner were the employer.

  (2) Without limiting subsection (1), it is declared that, for the purposes of initiating bargaining for a collective agreement, good faith bargaining for a collective agreement, and entering into collective agreements,—

  • (a) the Commissioner has the same rights, duties, and obligations under the Employment Relations Act 2000 as the Commissioner would have if the Commissioner were the employer; and

  • (b) employees of each department affected are to be treated as if they were all employees of the Commissioner.

  (3) The Commissioner must conduct the negotiations—

  • (a) with a union of which the employees are members; and

  • (b) in consultation with the chief executive of each department affected.

  (4) Every collective agreement must be entered into between—

  • (a) the Commissioner; and

  • (b) a union of which the employees to whom the collective agreement is applicable are members.

  (5) Every collective agreement entered into between the Commissioner and a union and relating to employees of a department is binding on—

  • (a) the chief executive of that department; and

  • (b) the employees of that department who are or become members of the union and whose work comes within the coverage clause in the collective agreement.

  (6) Except as provided in this section, an employer who is bound by a collective agreement under subsection (5) has the rights, obligations, and duties that that employer would have, in respect of that collective agreement, under the Employment Relations Act 2000 as if that employer were a party to that agreement.

  Section 68: substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

69 Personal grievances and disputes

• Despite the provisions of section 68,—

  • (a) in relation to a personal grievance, the employer is the chief executive of the department; and

  • (b) in relation to a dispute about the interpretation, application, or operation of any collective agreement, the employer is the chief executive of the department acting, if the Commissioner so requires, together with or in consultation with the Commissioner; and

  • (c) in relation to any other employment relationship problem (within the meaning of the Employment Relations Act 2000), the employer is the chief executive of the department.

  Section 69: substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

70 Delegation of Commissioner's powers

• (1) The Commissioner may from time to time delegate, in writing, to a chief executive of a department any of the Commissioner's powers under section 68.

  (2) Where the Commissioner, acting under subsection (1), delegates to a chief executive the function, under section 68(1), of conducting negotiations with a union of which the employees are members, the chief executive must conduct those negotiations in consultation with the Commissioner.

  (3) Nothing in this section limits the provisions of section 23.

  Section 70: substituted, on 15 May 1991, by section 7 of the State Sector Amendment Act 1991 (1991 No 31).

  Section 70(2): substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

71 Compulsory arbitration and agreement not to strike or lock out

• [Repealed]

  Section 71: repealed, on 15 May 1991, by section 7 of the State Sector Amendment Act 1991 (1991 No 31).

72 Contravention of agreement not to strike or lock out

• [Repealed]

  Section 72: repealed, on 15 May 1991, by section 7 of the State Sector Amendment Act 1991 (1991 No 31).

73 Application of Employment Relations Act 2000

• Except as otherwise provided in this Act, the Employment Relations Act 2000 applies in relation to the education service.

  Section 73: substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

74 Negotiation of conditions of employment

• (1) Except as provided in section 74C, the Commissioner is responsible for negotiating under the Employment Relations Act 2000 every collective agreement applicable to employees of the education service as if the Commissioner were the employer.

  (2) Without limiting subsection (1), it is declared that, for the purposes of initiating bargaining for a collective agreement, good faith bargaining for a collective agreement, and entering into collective agreements,—

  • (a) the Commissioner has the same rights, duties, and obligations under the Employment Relations Act 2000 as the Commissioner would have if the Commissioner were the employer; and

  • (b) employees of the education service are to be treated as if they were all employees of the Commissioner.

  (3) Unless otherwise directed in writing by the Commissioner, an employer in the education service must not lock out employees or suspend striking employees in relation to negotiations by the Commissioner for a collective agreement applicable to those employees.

  (4) The Commissioner must conduct the negotiations—

  • (a) with a union of which the employees are members; and

  • (b) in consultation with—

    • (i) the chief executive of the Ministry of Education; and

    • (ii) representatives of the employer or employers who will be bound by the collective agreement, which representatives must be employers or organisations of employers, of persons employed in the education service.

  (5) Every collective agreement must be entered into between—

  • (a) the Commissioner; and

  • (b) a union of which the employees to whom the collective agreement is applicable are members.

  (6) Every collective agreement entered into between the Commissioner and any union and relating to employees in the education service is binding on—

  • (a) the employers of the employees to whom the collective agreement is applicable; and

  • (b) the employees in the education service who are, or who become, members of the union.

  (7) Except as provided in this section, an employer who is bound by a collective agreement under subsection (6) has the rights, obligations, and duties that that employer would have, in respect of that collective agreement, under the Employment Relations Act 2000 as if that employer were a party to that agreement.

  Section 74: substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

74AA Commissioner's powers when collective agreements are negotiated

• (1) During the negotiations for a collective agreement that is to bind any employees of a Board of Trustees, the Commissioner has, for the purpose of those negotiations, all the rights, duties, and powers of an employer under the Employment Relations Act 2000 in respect of those employees.

  (2) To avoid doubt and without limiting the generality of subsection (1), it is declared that the powers referred to in that subsection include the power to lock out or suspend employees.

  (3) Despite subsection (1), in the case of employees who are members of a union, the Commissioner may, where there is a strike, exercise the power of suspension by advising the union of the class or classes of employees who are, or are to be, suspended, and, if the union is so advised, the suspension takes effect on the date specified for the purpose in the advice, and the Commissioner need not—

  • (a) separately advise any employee who is included in any such class; or

  • (b) comply with section 89 of the Employment Relations Act 2000.

  (4) In any case where the Commissioner has suspended or locked out an employee by virtue of this section, the Commissioner may, at his or her discretion, give either or both of the following directions:

  • (a) that the employee is not to be remunerated in respect of the period of the suspension or lockout:

  • (b) that any amount paid to the employee in respect of that period be deducted from any remuneration otherwise payable to the employee.

  (5) Any direction under subsection (4)—

  • (a) may be given to any person responsible for effecting payments or transfers of sums of money required for the remuneration of the employee; and

  • (b) must be followed by the person.

  (6) The Commissioner may give any notice that, as a result of a direction under subsection (4)(b), is required to be given to an employee under section 6(3)(b) of the Wages Protection Act 1983.

  (7) Subsection (1)—

  • (a) overrides section 77E(2); and

  • (b) is subject to sections 74AC and 74AD.

  (8) In this section and in sections 74AB to 74AD, Board of Trustees means a Board of Trustees constituted under Part 9 of the Education Act 1989, and includes any Commissioner appointed under that Act to act in place of the Board of Trustees.

  Section 74AA: inserted, on 6 April 2004, by section 4 of the State Sector Amendment Act 2004 (2004 No 15).

74AB Boards of Trustees indemnified by Commissioner

• (1) If, in any claim or proceedings, a Board of Trustees becomes liable for costs or damages that arise from the exercise or purported exercise of any of the powers conferred on the Commissioner by section 74AA, the Commissioner must, out of money appropriated for the purpose by Parliament, indemnify the Board for those costs or damages.

  (2) However, a Board of Trustees may not be indemnified for any costs or damages to the extent that those costs or damages arise out of conduct of the Board that, in the reasonable opinion of the Commissioner,—

  • (a) is not in good faith; or

  • (b) is engaged in without reasonable care.

  Section 74AB: inserted, on 6 April 2004, by section 4 of the State Sector Amendment Act 2004 (2004 No 15).

74AC Strikes in schools to be notified

• (1) A strike by employees of any Board of Trustees is not lawful for the purposes of the Employment Relations Act 2000 unless the Commissioner and each Board of Trustees is given notice in written or electronic form of the proposed strike 3 days before the commencement of the proposed strike.

  (2) The notice required by subsection (1) must state—

  • (a) the nature of the proposed strike, including whether or not the proposed action will be continuous; and

  • (b) the school or schools that will be affected by the proposed strike; and

  • (c) the period of the proposed strike, which is to be specified by giving the date on which the proposed strike is to commence and the date on which the proposed strike is to end.

  (3) The notice must be signed by a representative of the employees' union.

  (4) Unless the notice is withdrawn before the commencement of the strike, every employee is, throughout the period stated in the notice, deemed to participate in the strike if—

  • (a) the employee's duties are normally performed in a school affected by the strike; and

  • (b) the strike relates to the negotiation of a collective agreement that will bind the employee; and

  • (c) the employee's name has not been notified to the Commissioner in a current notice given under section 74AD.

  (5) The provisions of this section are in addition to, and not in derogation of, the provisions of the Employment Relations Act 2000.

  Section 74AC: inserted, on 6 April 2004, by section 4 of the State Sector Amendment Act 2004 (2004 No 15).

74AD Employers to notify Commissioner about participation in strikes

• (1) As soon as reasonably practicable after the commencement of a strike notified under section 74AC, the Board of Trustees of each school to which the notice relates must—

  • (a) provide the Commissioner with a list of the names of the employees of the Board who are not participating in the strike notified by the notice; and

  • (b) notify each of those employees that he or she has been included in the list.

  (2) A Board of Trustees that has complied, or is to comply, with subsection (1) must, at the written direction of the Commissioner, provide the Commissioner with any information required by the Commissioner about the conduct of the strike to which the notice under section 74AC relates.

  (3) Information under subsection (2) may, without limitation, include, or consist of, information about the number of hours worked by any employee or any class of employee.

  (4) The Commissioner may, at the Commissioner's discretion, require a Board of Trustees to inform the Commissioner, by a specified date, as to the Board of Trustees' compliance with the provisions of, or any directions given under, this section.

  (5) If the Commissioner has reasonable grounds for believing that a Board of Trustees has failed to comply with the provisions of, or any directions given under, this section, the Commissioner may report those grounds to the Minister of the Crown who is for the time being responsible for the administration of Part 8A of the Education Act 1989.

  Section 74AD: inserted, on 6 April 2004, by section 4 of the State Sector Amendment Act 2004 (2004 No 15).

74A Personal grievances and disputes

• Despite the provisions of section 74,—

  • (a) in relation to a personal grievance, the employer is the employer as defined in section 2; and

  • (b) in relation to a dispute about the interpretation, application, or operation of any collective agreement, the employer is the employer as defined in section 2, acting, if the Commissioner so requires, together or in consultation with the Commissioner; and

  • (c) in relation to any other employment relationship problem (within the meaning of the Employment Relations Act 2000), the employer is the employer as defined in section 2.

  Section 74A: substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

74B Delegation of Commissioner's powers

• (1) The Commissioner may from time to time delegate, in writing, to—

  • (a) an employer; or

  • (b) any organisation of employers of persons employed in the education service—

  any of the Commissioner's powers under section 74.

  (2) Where the Commissioner, acting under subsection (1), delegates to an employer or an organisation of employers the function, under section 74(1), of conducting negotiations with a union of which the employees are members, the employer or organisation of employers must conduct those negotiations in consultation with—

  • (a) the Commissioner; and

  • (b) the chief executive of the Ministry of Education.

  (3) Nothing in this section limits the provisions of section 23.

  Section 74B: substituted, on 15 May 1991, by section 9 of the State Sector Amendment Act 1991 (1991 No 31).

  Section 74B(2): substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

74C Negotiation of conditions of employment for employees of tertiary education institutions

• (1) For the period beginning with the commencement of this section and ending with the close of 31 December 1991, the Commissioner shall be responsible for negotiating under the Employment Contracts Act 1991 collective employment contracts that cover or that are proposed to cover any group of employees in any tertiary education institution. The negotiations conducted by the Commissioner under this subsection shall be conducted in consultation with the representatives of the employer or employers who will be bound by the proposed collective employment contracts, which representatives shall be employers, or organisations of employers, of persons employed in a tertiary education institution.

  (2) On and after 1 January 1992, the chief executive of each tertiary education institution shall be responsible either—

  • (a) individually; or

  • (b) jointly through any organisation of employers of persons employed in any tertiary education institution—

  for negotiating under the Employment Relations Act 2000 collective agreements that are applicable to any group of employees in any tertiary education institution.

  (3) Before entering into any collective agreement under the Employment Relations Act 2000, the chief executive of each tertiary education institution or any organisation of employers representing jointly such chief executives, must consult with the State Services Commissioner over the conditions of employment to be included in the collective agreement.

  Section 74C: inserted, on 15 May 1991, by section 9 of the State Sector Amendment Act 1991 (1991 No 31).

  Section 74C heading: amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 74C(1): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 74C(2): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 74C(2): amended, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

  Section 74C(2)(b): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 74C(3): substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

  Section 74C(3): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

74D Senior positions at tertiary education institutions

• (1) The conditions of employment of every person appointed to a senior position at a tertiary education institution who is not bound by any collective employment agreement shall be determined in each case by agreement between the employer and the person to be appointed but the employer shall consult with the State Services Commissioner before finalising the conditions of employment.

  (2) For the purposes of subsection (1), a senior position means the position or positions immediately below, in seniority, the position of the chief executive of the tertiary education institution, and such other positions as the Council of the institution may from time to time designate as being senior positions within the institution.

  Section 74D: inserted, on 15 May 1991, by section 9 of the State Sector Amendment Act 1991 (1991 No 31).

  Section 74D heading: amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 74D(1): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 74D(1): amended, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

  Section 74D(2): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

75 Actual conditions of employment

• (1) The Commissioner may declare that all or any part of the conditions of employment fixed under a collective agreement for persons employed in the education service (other than at any tertiary education institution) are to be the actual conditions of employment.

  (2) The conditions of employment of employees in the education service (other than employees at any tertiary education institution) who are not bound by any collective agreement shall be determined in each case by agreement between the employer and the individual employee, but the employer shall obtain the written concurrence of the Commissioner to the conditions of employment with that individual employee.

  (3) The Commissioner, in carrying out the function under subsection (2), may promulgate in writing to employers, either generally or specifically, the conditions of employment for persons who are to have their conditions of employment determined in accordance with that subsection. Where the conditions of employment agreed between the employer and the person to be appointed comply with the conditions of employment promulgated by the Commissioner, the employer shall, without any further action, be deemed to have obtained the written concurrence of the Commissioner to those conditions of employment.

  Section 75: substituted, on 15 May 1991, by section 9 of the State Sector Amendment Act 1991 (1991 No 31).

  Section 75(1): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 75(1): amended, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

  Section 75(2): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 75(2): amended, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

76 Offence to attempt to influence employer

• (1) Every person commits an offence against this section who directly or indirectly solicits or endeavours to influence, with respect to decisions on the matters described in section 77F, any employer or any other person or persons to whom the employer has, under this Act or any other Act, delegated powers.

  (2) Every person who commits an offence against this section is liable on conviction to a fine not exceeding $2,000.

  (3) Nothing in this section shall apply to any person giving information or advice or making representations to the employer or to any other person or persons acting under delegation from the employer in respect of any matter at the request or invitation of the employer or to any other person or persons acting under delegation.

  (4) Nothing in this section is to be construed so as to prevent any union from making representations to the employer or to any other person or persons acting under delegation from the employer on any matter affecting the salaries, wages, or conditions of employment of any employees who are members of that union.

  Section 76: substituted, on 15 May 1991, by section 9 of the State Sector Amendment Act 1991 (1991 No 31).

  Section 76(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

  Section 76(4): substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

77 Protection from liability

• No chief executive and no other employee shall be personally liable for any liability of any institution in the education service or for any act done or omitted by the institution or by the chief executive or any other employee of the institution in good faith in pursuance or intended pursuance of the functions or powers of the institution or of the chief executive.

  Section 77: substituted, on 15 May 1991, by section 9 of the State Sector Amendment Act 1991 (1991 No 31).

77AA Offence to attempt to influence employer

• [Repealed]

  Section 77AA: repealed, on 15 May 1991, by section 9 of the State Sector Amendment Act 1991 (1991 No 31).

77AB Protection from liability

• [Repealed]

  Section 77AB: repealed, on 15 May 1991, by section 9 of the State Sector Amendment Act 1991 (1991 No 31).

77A General principles

• (1) Every employer in the education service must—

  • (a) operate a personnel policy that complies with the principle of being a good employer; and

  • (b) make that policy (including the equal employment opportunities programme) available to its employees; and

  • (c) ensure its compliance with that policy (including its equal employment opportunities programme) and report in its annual report (if any) on the extent of its compliance.

  (2) For the purposes of this section a good employer is an employer who operates a personnel policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring—

  • (a) good and safe working conditions; and

  • (b) an equal employment opportunities programme; and

  • (c) the impartial selection of suitably qualified persons for appointment; and

  • (d) recognition of—

    • (i) the aims and aspirations of the Maori people; and

    • (ii) the employment requirements of the Maori people; and

    • (iii) the need for greater involvement of the Maori people in the education service; and

  • (e) opportunities for the enhancement of the abilities of individual employees; and

  • (f) recognition of the aims and aspirations and employment requirements, and the cultural differences, of ethnic or minority groups; and

  • (g) recognition of the employment requirements of women; and

  • (h) recognition of the employment requirements of persons with disabilities.

  (3) In addition to the requirements specified in subsections (1) and (2), each employer shall ensure that all employees maintain proper standards of integrity, conduct, and concern for—

  • (a) the public interest; and

  • (b) the well-being of students attending the institution.

  Section 77A: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

  Section 77A(1): substituted, on 25 January 2005, by section 13(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 77A(2)(f): substituted, on 25 January 2005, by section 13(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

77B Code of conduct

• (1) The chief executive of the Ministry of Education may from time to time issue a code of conduct covering the minimum standards of integrity and conduct that are to apply in the education service.

  (2) The chief executive of the Ministry may issue separate codes of conduct under this section to apply to different parts of the education service.

  (3) Before the chief executive of the Ministry issues a code of conduct under this section, the chief executive of the Ministry shall consult with—

  • (a) representatives of the employers whose employees will be bound by the code of conduct, which representatives shall be employers, or organisations of employers, of persons employed in the education service; and

  • (b) the organisations of employees employed in the education service that represent the employees who will be bound by the code of conduct; and

  • (c) the Commissioner, and must have regard to any code of conduct issued by the Commissioner under section 57.

  (4) Nothing in this section prevents the prescribing by an employer of standards of integrity or conduct that are to apply to that employer's employees (being standards which are not inconsistent with any code of conduct issued by the chief executive of the Ministry under this section and which apply in relation to employees of that employer).

  (5) Nothing in this section shall apply to any tertiary education institution.

  Section 77B: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

  Section 77B(3)(c): substituted, on 25 January 2005, by section 14 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 77B(5): added, on 19 December 1989, by section 19 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 77B(5): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

77C Performance of teachers

• (1) The chief executive of the Ministry of Education may from time to time, with the agreement of the State Services Commissioner, prescribe matters that are to be taken into account by employers in assessing the performance of teachers.

  (2) Before the chief executive of the Ministry of Education prescribes any matters under subsection (1), the chief executive of the Ministry shall consult with—

  • (a) the New Zealand Teachers Council; and

  • (b) the chief executive of the Education Review Office; and

  • (c) representatives of employers of teachers; and

  • (d) the organisations of teachers that represent teachers who will be subject to the matters prescribed under this section.

  (3) Nothing in this section prevents the prescribing by an employer of matters to be taken into account in assessing the performance of teachers employed by that employer (being matters which are not inconsistent with any matters prescribed under this section by the chief executive of the Ministry and which apply to teachers employed by that employer).

  (4) Nothing in this section shall apply to any teachers employed in any tertiary education institution, or early childhood institution that is not a free kindergarten.

  Section 77C: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

  Section 77C(1): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment (No 2) Act 1989 (1989 No 136).

  Section 77C(2)(a): amended, on 1 February 2002, by section 83 of the Education Standards Act 2001 (2001 No 88).

  Section 77C(4): added, on 19 December 1989, by section 20 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 77C(4): amended, on 17 May 2006, by section 58 of the Education Amendment Act 2006 (2006 No 19).

  Section 77C(4): amended, on 25 January 2005, by section 17(c) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

77D Equal employment opportunities

• (1) The chief executive of the Ministry of Education shall be responsible for promoting, developing, and monitoring equal employment opportunities policies and programmes in the education service.

  (2) [Repealed]

  (3) [Repealed]

  (4) [Repealed]

  (5) For the purposes of this section and section 77A, an equal employment opportunities programme means a programme that is aimed at the identification and elimination of all aspects of policies, procedures, and other institutional barriers that cause or perpetuate, or tend to cause or perpetuate, inequality in respect to the employment of any persons or group of persons.

  Section 77D: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

  Section 77D(2): repealed, on 25 January 2005, by section 15 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 77D(3): repealed, on 25 January 2005, by section 15 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 77D(4): repealed, on 25 January 2005, by section 15 of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

77E Employees of institutions

• (1) Subject to the provisions of any Act relating to the registration of teachers, each employer—

  • (a) may from time to time appoint such employees (including acting or temporary or casual or relieving employees) as the employer thinks necessary for the efficient exercise of the functions, duties, and powers of the institution; and

  • (b) may, subject to any conditions of employment included in the employment agreement applying to the employee, at any time remove any employee from that employee's employment.

  (2) Unless expressly provided to the contrary in this Act, the employer shall have all the rights, duties, and powers of an ordinary employer in respect of the persons employed in that institution.

  Section 77E: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

  Section 77E(1)(b): substituted, on 2 October 2000, by section 240 of the Employment Relations Act 2000 (2000 No 24).

77F Duty to act independently

• In matters relating to decisions on individual employees (whether matters relating to the appointment, promotion, demotion, transfer, disciplining, or the cessation of the employment of any employee, or other matters), the employer shall act independently.

  Section 77F: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

77G Appointments on merit

• An employer in making an appointment under this Act shall give preference to the person who is best suited to the position.

  Section 77G: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

77H Obligation to notify vacancies

• Where an employer intends to fill a position that is vacant or is to become vacant in the institution (other than with an acting or temporary or casual or relieving employee), the employer shall, wherever practicable, notify the vacancy or prospective vacancy in a manner sufficient to enable suitably qualified persons to apply for the position.

  Section 77H: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

  Section 77H: amended, on 19 December 1989, by section 21 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

77HA Restriction of compensation for technical redundancy arising from closure or merger of schools

• (1) An employee in a school is not entitled to receive any payment or other benefit on the ground that his or her position in the school (the previous position) has ceased to exist because the school is affected by a merger under section 156A of the Education Act 1989 or is closed under section 154 of that Act and, before the date on which the merger or the closure takes effect,—

  • (a) the employee is offered in writing employment in an equivalent position (whether or not the employee accepts the offer) in the continuing school or in the replacement school or in another school directly affected by the merger or the closure; or

  • (b) the employee is offered in writing, and accepts, employment in any other position in the continuing school or in the replacement school or in another school directly affected by the merger or the closure.

  (2) Employment in an equivalent position in relation to the employee's previous position is employment that—

  • (a) is generally similar in role, duties, and status; and

  • (b) requires similar qualifications, training, skills, and experience, but may have a different title; and

  • (c) is in the same general locality; and

  • (d) is on terms and conditions of employment that are no less favourable than those that apply to the employee immediately before the offer of employment (including any service-related redundancy conditions and superannuation conditions); and

  • (e) is on terms that treat the period of service with the school in which the previous position was held (and any other period of service recognised for the purposes of the previous position as continuous service) as if it were continuous service for the purposes of the position offered to the employee.

  (3) The Minister of Education may determine whether a school is directly affected by a closure or merger, and that determination is binding on all parties.

  (4) Subsection (1)(b) is subject to any contrary provision in an employment agreement that provides for a payment on the ground that the employee's position has ceased to exist, but only if that payment is less than the amount that would otherwise be payable in any case to which subsection (1) does not apply.

  (5) A collective employment agreement that binds employees in schools may provide, consistently with subsections (1) and (2), for the manner in which those subsections are to apply to those employees.

  Section 77HA: inserted, on 6 April 2004, by section 5 of the State Sector Amendment Act 2004 (2004 No 15).

77HB Appointment of employees following closure or merger of schools

• (1) Sections 77G and 77H do not apply to an appointment to a position in a school if—

  • (a) the appointment is made in connection with the closure of a school under section 154 of the Education Act 1989 or the merger of schools under section 156A of that Act; and

  • (b) the position that the person previously held has ceased to exist as a result of the closure or merger.

  (2) Subsection (1) does not apply to the appointment of an employee to the position of principal.

  Section 77HB: inserted, on 6 April 2004, by section 5 of the State Sector Amendment Act 2004 (2004 No 15).

77I Acting appointments

• (1) In the case of absence from duty of any employee (from whatever cause arising) or on the occurrence from any cause of a vacancy in any position with an employer (whether by reason of death, resignation, or otherwise) and from time to time while the absence or vacancy continues, all or any of the powers and duties of the employee or pertaining to the position may be exercised and performed by any other employee for the time being directed by the employer to exercise and perform them, whether the direction has been given before the absence or vacancy occurs or while it continues.

  (2) No such direction and no acts done by any employee acting pursuant to any such direction shall in any proceedings be questioned on the ground that the occasion for the direction had not arisen or had ceased, or on the ground that the employee has not been appointed to any position to which the direction relates.

  Section 77I: inserted, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

77IA Chief executives of institutions

• Notwithstanding anything to the contrary in any other enactment, the appointment and conditions of employment of every chief executive of a tertiary education institution shall be determined under this Act and not otherwise.

  Section 77IA: inserted, on 19 December 1989, by section 22 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 77IA: amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

77IB Appointment of chief executive

• (1) Subject to section 77IC, each Council of a tertiary education institution shall appoint its chief executive in accordance with the provisions of this section.

  (2) Where there is a vacancy or an impending vacancy in the position of chief executive of a tertiary education institution, the Council of the institution shall notify the vacancy or impending vacancy in such manner as it thinks sufficient to enable suitably qualified persons to apply for the position.

  (3) The Council may—

  • (a) examine applicants for the position; and

  • (b) seek advice from such sources as it considers relevant.

  (4) The Council may invite such other persons as it thinks fit to assist it to decide on the person to be appointed and any person so invited may take part in the examination of applicants or in the Council's deliberations on the matter or in both.

  (5) In deciding upon the person to be appointed as chief executive, the Council shall have regard to the need to appoint a person who—

  • (a) can discharge the specific responsibilities placed on the chief executive; and

  • (b) will imbue the employees with a spirit of service to the institution and to the community; and

  • (c) will promote efficiency; and

  • (d) will manage the institution in a responsible manner that reflects the needs of academic freedom, accountability, and the proper use of resources; and

  • (e) will maintain appropriate standards of integrity and conduct among employees and ensure the well-being of students attending the institution; and

  • (f) will ensure that the institution is a good employer; and

  • (g) will promote equal employment opportunities.

  Section 77IB: inserted, on 19 December 1989, by section 22 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 77IB(1): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 77IB(2): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

77IC Reappointment of chief executive

• A Council may reappoint its existing chief executive for a further term without first notifying the impending vacancy or examining other applicants.

  Section 77IC: inserted, on 19 December 1989, by section 22 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

77ID Conditions of employment of chief executive

• (1) Every chief executive shall be appointed for a term of not more than 5 years.

  (2) Every chief executive shall be eligible for reappointment from time to time.

  (3) Except where specific conditions of employment for a chief executive are provided in this Act, the conditions of employment of a chief executive shall be determined in each case by agreement between the Council of the institution and the chief executive, but the Council shall obtain the written concurrence of the State Services Commissioner to the conditions of employment before finalising the conditions of employment with the chief executive.

  Section 77ID: inserted, on 19 December 1989, by section 22 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 77ID(3): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

77IE Removal from office

• The Council, for just cause or excuse, may remove the chief executive from office.

  Section 77IE: inserted, on 19 December 1989, by section 22 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

77IF Acting chief executive

• (1) Where—

  • (a) there is a vacancy in the position of a chief executive of a tertiary education institution; or

  • (b) a chief executive of a tertiary education institution is absent from duty (from whatever cause arising),—

  all or any of the functions, powers, and duties of the chief executive or pertaining to the position may be exercised and performed by an employee, for the time being directed by the Council of the tertiary education institution to exercise and perform them, whether the direction has been given before the absence or vacancy occurs or while it continues.

  (2) No such direction and no acts done by any person acting pursuant to any such direction shall in any proceedings be questioned on the ground that the occasion for the direction had not arisen or had ceased, or on the ground that the person had not been appointed to the position of chief executive.

  (3) The Council of the tertiary education institution shall determine the conditions of employment that are to apply to any person directed under subsection (1) to exercise and perform any of the functions, powers, and duties of a chief executive.

  Section 77IF: inserted, on 19 December 1989, by section 22 of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 77IF(1): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 77IF(1)(a): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 77IF(1)(b): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

  Section 77IF(3): amended, on 25 January 2005, pursuant to section 17(b) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

77J Appointments of senior staff

• [Repealed]

  Section 77J: repealed, on 15 May 1991, by section 12 of the State Sector Amendment Act 1991 (1991 No 31).

77K Conditions of employment of principals

• [Repealed]

  Section 77K: repealed, on 15 May 1991, by section 12 of the State Sector Amendment Act 1991 (1991 No 31).

77L Conditions of employment of senior staff (other than principals)

• [Repealed]

  Section 77L: repealed, on 15 May 1991, by section 12 of the State Sector Amendment Act 1991 (1991 No 31).

77LA Conditions of employment of senior staff in universities or technical institutes

• [Repealed]

  Section 77LA: repealed, on 15 May 1991, by section 12 of the State Sector Amendment Act 1991 (1991 No 31).

77M Application of Labour Relations Act 1987 in respect of senior positions

• [Repealed]

  Section 77M: repealed, on 15 May 1991, by section 12 of the State Sector Amendment Act 1991 (1991 No 31).

78 Choice of procedure

• [Repealed]

  Section 78: repealed, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

79 General principles

• [Repealed]

  Section 79: repealed, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

80 Equal employment opportunities

• [Repealed]

  Section 80: repealed, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

81 Amendments to Education Act 1964

• [Repealed]

  Section 81: repealed, on 1 October 1989, by section 3 of the State Sector Amendment Act 1989 (1989 No 67).

82 Medical examinations

• A chief executive may require any applicant for appointment to that department, or any employee of the department, to undergo a medical examination, at the expense of the department, by a medical practitioner nominated by the chief executive.

  Compare: 1962 No 132 s 67

  Section 82: amended, on 18 September 2004, by section 175(1) of the Health Practitioners Competence Assurance Act 2003 (2003 No 48).

83 Instructions

• Subject to this Act and without restricting the powers of a chief executive, a chief executive may from time to time issue instructions that shall be observed by all employees of the department.

  Compare: 1962 No 132 s 73

84 Interpretation

• For the purposes of sections 84A and 84B,—

  contribute, in relation to a superannuation scheme, means to make superannuation contributions to the scheme to provide to a significant extent the benefits payable by the scheme, not being merely nominal contributions or contributions only to meet the costs of administration and management of investments of the scheme

  employee includes a chief executive

  employer—

  • (a) means a person who pays, or is liable to pay, to any person (being an employee) any earnings as an employer; but

  • (b) means the chief executive of the Ministry within the meaning of section 91A(1) of the Education Act 1989, for the duration of the application period in that section, in relation to—

    • (i) an institution that is subject to Part 9 of that Act; or

    • (ii) a free kindergarten within the meaning of section 120 of that Act; and

  • (c) includes any person or organisation whose officers or employees were, immediately before 1 July 1992, entitled to elect or required to become contributors to the Government Superannuation Fund established under the Government Superannuation Fund Act 1956

  State services includes—

  • (a) any tertiary education institution:

  • (b) any employer within the meaning of this section

  superannuation scheme or scheme has the same meaning as in the Superannuation Schemes Act 1989.

  Section 84: substituted, on 25 January 2005, by section 16(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

84A Power to establish superannuation schemes for officers and employees

• An employer in the State services may—

  • (a) arrange for any superannuation scheme or schemes to be established for its officers or employees (or both):

  • (b) join with another employer (whether or not in the State services) in arranging for any superannuation scheme, or any trust arrangement that is part of a superannuation scheme, to be established for the purpose of providing, or facilitating the provision of, superannuation for its officers or employees (or both):

  • (c) arrange for its officers or employees to become members of any established superannuation scheme:

  • (d) provide arrangements in respect of the superannuation of any individual officer or employee.

  Section 84A: substituted, on 25 January 2005, by section 16(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

84B Contributions to superannuation schemes

• An employer in the State services may contribute to a superannuation scheme for the purpose of providing retirement benefits to its officers or employees (or both) only if—

  • (a) the scheme is registered under the Superannuation Schemes Act 1989; and

  • (b) the scheme provides that the sum of all benefits (including any lump sum payments, annuities, and other benefits) payable from the scheme in respect of any member of the scheme will not exceed the sum of—

    • (i) contributions paid by or on behalf of a member and investment earnings on the contributions; and

    • (ii) any allocations to the member from surplus funds held within the scheme; and

    • (iii) the amount paid in respect of that member from any insurance policy effected for the benefit of members of the scheme; and

  • (c) the trust deed of the scheme defines the rates or amounts (if any) of contributions of the employer or officers or employees; and

  • (d) the trust deed of the scheme entitles the employer to cease contributing to the scheme on behalf of a person if that person ceases to be an officer or employee of the employer; and

  • (e) the benefits provided by the scheme are fully funded as they accrue; and

  • (f) the scheme, if it enables members to withdraw from the scheme, enables withdrawing members to transfer to other superannuation schemes the value (as determined in accordance with the terms of the scheme) of the benefits attributable to that person's membership of the scheme up to the date of withdrawal; and

  • (g) the scheme enables any person who becomes an officer or employee of that employer, if the employer agrees to contribute to the scheme on that person's behalf, to become a member of the scheme and to transfer to the scheme the value of the benefits attributable to that person's membership of other superannuation schemes; and

  • (h) the trust deed of the scheme does not permit amendments to be made to the scheme that would result in any provision of paragraphs (a) to (g) ceasing to apply to the scheme.

  Section 84B: substituted, on 25 January 2005, by section 16(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

84C Obligation to obtain confirmation from Government Actuary that scheme meets requirements

• [Repealed]

  Section 84C: repealed, on 25 January 2005, by section 16(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

84D Contributions to superannuation schemes

• [Repealed]

  Section 84D: repealed, on 25 January 2005, by section 16(1) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

85 Offence to attempt to influence Commissioner or chief executive

• (1) Every person commits an offence against this section who directly or indirectly solicits or endeavours to influence the Commissioner or any Commissioner or any chief executive or any other person or persons to whom the Commissioner or the chief executive has delegated powers under section 23 or section 41 with respect to decisions on the matters described in section 5 or section 33.

  (2) Every person who commits an offence against this section is liable on conviction to a fine not exceeding $2,000.

  (3) Nothing in this section shall apply to any person giving information or advice or making representations to the Commissioner or to the chief executive or to any other person or persons acting under delegation from the Commissioner or the chief executive in respect of any matter at the request or invitation of the Commissioner or the chief executive or to any other person or persons acting under delegation.

  (4) Nothing in this section shall be construed so as to prevent any organisation, being an organisation representing employees or any class or classes thereof, from making representations to the Commissioner or to the chief executive or to any other person or persons acting under delegation from the Commissioner or the chief executive on any matter affecting the salaries, wages, or conditions of employment of any employee or class of employees.

  (5) Nothing in this section shall be construed so as to prevent the Commissioner from making representations to the chief executive, or the chief executive making representations to the Commissioner, (or to any person or persons acting under delegation in either case) on any matter whatever, whether relating to a decision on an individual employee or otherwise.

  Compare: 1962 No 132 s 76; 1964 No 57 s 7; 1978 No 37 s 9

  Section 85 heading: amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 85(1): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 85(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

  Section 85(3): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 85(4): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

  Section 85(5): amended, on 19 December 1989, pursuant to section 33(1) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

86 Protection from liability

• No chief executive, or employee, shall be personally liable for any liability of the department, or for any act done or omitted by the department or by the chief executive or any employee of the department or of the chief executive in good faith in pursuance or intended pursuance of the functions or powers of the department or of the chief executive.

  Section 86: amended, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

87 Amendments to other enactments

• The enactments specified in Schedule 5 are hereby amended in the manner indicated in that schedule.

88 Repeals and transitional provision

• (1) The enactments specified in Schedule 6 are hereby repealed.

  (2) Every reference in any other enactment to the State Services Act 1962 or the State Services Conditions of Employment Act 1977 shall hereafter be read as a reference to the State Sector Act 1988.

89 Revocations

• The regulations and orders specified in Schedule 7 are hereby revoked.

90 Consequential amendments in relation to repeal of State Services Act 1962 and State Services Conditions of Employment Act 1977

• Unless in any case the context otherwise requires, and subject to the provisions of this Act, in any other enactment or in any regulations or in any instrument—

  • (a) every reference to the State Services Act 1962 or to the State Services Conditions of Employment Act 1977 shall be read as a reference to the State Sector Act 1988:

  • (b) every reference to an officer, probationer, wage-worker, or temporary employee under the State Services Act 1962 shall be read as a reference to an employee under the State Sector Act 1988:

  • (c) every reference to the Chairman of the State Services Commission shall be read as a reference to the State Services Commissioner under this Act:

  • (d) every reference to a permanent head shall be read as a reference to a chief executive:

  • (e) every reference to a matter being determined under the State Services Conditions of Employment Act 1977 shall be read as a reference to a matter being determined under the State Sector Act 1988.

  Section 90(c): amended, on 19 December 1989, pursuant to section 33(3) of the State Sector Amendment Act (No 2) 1989 (1989 No 136).

91 Transitional provisions for permanent heads

• (1) Except as provided in subsection (2), any person holding the position of a permanent head of a department of the Public Service under the State Services Act 1962 (not being an acting appointment) at the commencement of this Act shall be offered employment as the chief executive of that department for a period of not less than 2 years from the date of the commencement of this Act on terms and conditions of employment (other than tenure of office) no less favourable than the terms and conditions of employment applying immediately before the commencement of this Act in the position as a permanent head of a department.

  (2) No person shall be entitled to be, but may be, appointed as a chief executive under subsection (1) for any period that would take that person's employment beyond their compulsory date of retirement as determined under the State Services Act 1962 immediately before the commencement of this Act.

  (3) Subsections (1) and (2) shall apply in relation to—

  • (a) the person holding office immediately before the commencement of this Act (other than in an acting capacity) as Director of the Prime Minister's Office; and

  • (b) the person holding office immediately before the commencement of this Act (other than in an acting capacity) as the Secretary of the Cabinet,—

  as if they were each a permanent head of a department of the Public Service under the State Services Act 1962.

  (4) Nothing in section 35 shall apply to an appointment made under subsection (1).

92 Transitional provisions for senior executive service

• [Repealed]

  Section 92: repealed, on 25 January 2005, by section 19(2) of the State Sector Amendment Act (No 2) 2004 (2004 No 114).

93 Transitional provisions in respect of appointments to Public Service

• Every person who, at the commencement of this Act, holds any position in the Public Service shall continue to hold that position as if that person had been appointed under this Act.

94 Identical conditions of employment in respect of State services

• (1) The terms and conditions of employment of every person who, at the commencement of this Act, holds any position in the State services shall, on 1 April 1988 (and thereafter until varied) be identical with the terms and conditions of that person's employment in the State services immediately before 1 April 1988.

  (2) Notwithstanding anything in subsection (1), no provision of any repealed Act that is inconsistent with any express provision of this Act shall, by virtue of that subsection, continue to have effect.

95 Awards and agreements

• Every award and every agreement relating to the terms and conditions of employment of employees in the State services which was in force immediately before the commencement of this Act shall continue in force after the commencement of 1 April 1988 notwithstanding any of the other provisions of this Act. Any such award or agreement shall have effect according to its tenor.

96 Determinations and orders

• (1) Every determination and every order of the Arbitration Commission or the Labour Court, being a determination or order relating to terms and conditions of employment of employees of the State services, which was made under the State Services Act 1962 or the State Services Conditions of Employment Act 1977 and which was in force immediately before the commencement of this Act,—

  • (a) shall continue in force, except so far as other provision is duly made under this Act fixing the terms and conditions of employment to which that determination or order relates; and

  • (b) shall be deemed to be an award or an agreement registered under Part 7 of the Labour Relations Act 1987; but

  • (c) the rates of remuneration included in a determination or order deemed by this subsection to be an award or an agreement registered under Part 7 of the Labour Relations Act 1987 shall be paid rates.

  (2) An award or an agreement fixing the terms and conditions of employment of the employees of any department may be delivered to the Arbitration Commission for registration under Part 7 of the Labour Relations Act 1987 at any time before the close of 30 June 1988.

  (3) Except as provided in subsection (6), where an award or agreement fixing the terms and conditions of employment of employees of the State services has not been delivered to the Arbitration Commission for registration before the close of 30 June 1988, no award or agreement fixing conditions of employment of those employees may be registered until after the expiry date of the determination or order deemed to be an award or agreement under subsection (1).

  (4) Where any dispute arises between the parties over any matters to be incorporated into the award or agreement that will supersede a determination that is deemed by this section to be an award or agreement, either party may, before the close of 30 June 1988, invoke the disputes procedure set out in Schedule 6 of the Labour Relations Act 1987.

  (5) In making a decision on the dispute, the disputes committee or the Labour Court shall determine—

  • (a) whether the matter or matters in dispute are identical terms or conditions of employment to which section 94 applies; and

  • (b) if so, whether they should be incorporated in the proposed award or agreement.

  (6) Where, as at the close of 30 June 1988, the only matters not settled in relation to the completion of an award or agreement are matters that have been referred to a disputes committee under subsection (4), that award or agreement may, notwithstanding any of the other provisions of this section, be delivered to the Arbitration Commission for registration forthwith upon the decision of the disputes committee or the Labour Court being advised to the parties.

  (7) Except as provided in subsection (8), every award or agreement registered by the Arbitration Commission under this section shall come into force on 1 July 1988.

  (8) The Commission may make an adjustment, with effect from the commencement of 1 April 1988, to the salaries of any person or group of persons who, at the commencement of this Act,—

  • (a) held positions to which section 12(1)(a) of the Higher Salaries Commission Act 1977 applied; or

  • (b) belonged to a group or class of employees whose salary scale had been the subject of an adjustment that took effect on 10 November 1987 but who have not received an adjustment of at least 7% to their salaries as a result of that adjustment.

  (9) Any such adjustment made by the Commission under subsection (8) shall be incorporated into the award or agreement that is to come into force on 1 July 1988.

  (10) Except where there is only 1 employer involved, every document registered under this section shall be an award.

97 Clauses relating to disputes of rights and personal grievances

• Every determination or order deemed to be registered under Part 7 of the Labour Relations Act 1987 by section 96 of this Act shall be deemed to include—

  • (a) with effect from the commencement of 1 April 1988, the clauses set out in Schedule 6 of that Act (which clauses relate to disputes of rights); and

  • (b) with effect from the commencement of 1 July 1988, the clauses set out in Schedule 7 of that Act (which clauses relate to settlement of personal grievances).

98 Expiry date of determinations and orders

• Every determination or order—

  • (a) deemed to be registered under Part 7 of the Labour Relations Act 1987 by section 96(1) of this Act; or

  • (b) delivered for registration under section 96(2) or (6) of this Act,—

  shall be deemed to include an expiry date which shall be the first date upon which any of the conditions of employment contained in that determination or order could have been amended under section 6 of the State Services Conditions of Employment Act 1977 other than by way of amending determination under section 24 of the State Services Conditions of Employment Act 1977.

99 Mandatory registration

• (1) Any award or agreement delivered to the Arbitration Commission for registration under section 96, shall, subject to subsection (2) of this section, be registered by the Arbitration Commission notwithstanding that the award or agreement does not comply with the requirements of section 150 or section 164 of the Labour Relations Act 1987.

  (2) Notwithstanding subsection (1), an award or agreement to which that subsection applies may not be registered if any matter contained in it is contrary to any enactment.

100 Recognition of service organisations as unions

• Every organisation recognised immediately before the commencement of this Act as a service organisation under the State Services Conditions of Employment Act 1977 shall be deemed to be registered under the Labour Relations Act 1987 as a union of workers with the coverage recognised under the State Services Conditions of Employment Act 1977 on 31 March 1988, notwithstanding that it may have fewer than 1 000 financial members, and section 30 of the Labour Relations Act 1987 shall apply to each such organisation accordingly.

101 Union rules

• (1) Every union that is deemed to be registered under the Labour Relations Act 1987 by section 100 of this Act shall, within the period of 12 months beginning on 1 April 1988, amend its rules so as to ensure that they comply with the requirements as to rules of unions contained in that Act, and any amendment made to the rules after the date of commencement of this Act shall so comply.

  (2) If, at the end of the period of 12 months specified in subsection (1), the Registrar of Unions is satisfied that any rule or rules of any union or employers organisation do not comply with the requirements of the Labour Relations Act 1987, the Registrar may amend the rule or rules so as to ensure that it or they comply with those requirements, but any union or organisation affected by such an amendment may appeal to the Labour Court against the Registrar's decision to amend or against any part of that decision.

  (3) Nothing in this section affects the immediate application, as from the commencement of this Act, of those sections of the Labour Relations Act 1987 which deem certain rules to be included in the rules of unions.

  (4) The Registrar of Unions shall not exercise the power conferred by section 40(2) of the Labour Relations Act 1987 in respect of any union rules that are in force at the date of commencement of this Act until the expiration of the period of 12 months specified in subsection (1) of this section.

102 Deferring operation of sections of the Labour Relations Act 1987

• Sections 49 and 52 of the Labour Relations Act 1987 shall not, until 1 April 1989, apply in respect of any organisation that has been deemed to be a union by section 100.

103 Union membership

• (1) Where, at the commencement of this Act, any determination contains a membership clause, that clause shall continue to have effect according to its tenor notwithstanding—

  • (a) the repeal of the provisions under which it was made; and

  • (b) the provisions of the Labour Relations Act 1987 relating to the insertion of union membership clauses in awards or agreements.

  (2) The provisions of the Labour Relations Act 1987 relating to union membership clauses shall apply in respect of the insertion of any union membership clause in any award or agreement after the commencement of this Act, including the replacement of any membership clause to which subsection (1) applies.

  (3) Every service organisation that is deemed to be a union by section 100 shall, for a period of 12 months beginning on 1 April 1988, have exclusive and unchangeable coverage of the persons in respect of whom it was recognised under the State Services Conditions of Employment Act 1977 immediately before the commencement of this Act.

104 Causes of action

• All matters and proceedings commenced under or in accordance with the State Services Conditions of Employment Act 1977 and pending or in progress at the commencement of this Act may be continued and completed as if this Act had not been passed.

105 Rights of employees of Public Service

• Notwithstanding the repeal of the State Services Act 1962, the provisions of sections 45 to 47, 55 to 59, and 70A and of Part 4 (other than the provisions of section 64(1)(a)) of that Act shall, until the close of 30 June 1988, continue to apply to employees in the Public Service as if this Act had not been passed.

106 Application of repealed provisions

• (1) The following provisions of the State Services Act 1962, namely, the provisions of—

  • (a) sections 22 to 26; and

  • (b) sections 28 to 31; and

  • (c) sections 32 to 39; and

  • (d) sections 44 to 49; and

  • (e) sections 51 to 60; and

  • (f) Parts 4 and 5—

  shall continue to apply for the purposes of this Act only to the extent that they are expressly referred to and expressly applied by this Act or any other Act.

  (2) Where, before the commencement of this Act, any person was required by or under any Act or instructions, in force at the commencement of this Act, to retire from any office or employment on attaining a specified age, nothing in this Act entitles that person to continue in that office or employment after attaining that age.

107 Grading reviews of employees of Public Service

• (1) Notwithstanding anything in this Act, if, immediately before 1 July 1988, any person has lodged an application under section 45 of the State Services Act 1962 for a review of the grading of the position that that person occupied, the provisions of that Act, so far as they are applicable to such an application and any rights of review or rights of appeal flowing therefrom, shall continue to apply to that application and to any such rights of review and appeal as if the State Services Act 1962 had not been repealed by this Act.

  (2) The decision on any application for review shall be implemented by the chief executive of the department affected in the same manner as if the State Services Act 1962 were still in force and as if that chief executive were the Commission.

108 Appeal rights of employees of Public Service

• (1) Notwithstanding anything in this Act if, immediately before 1 July 1988, an appeal under section 57 or section 64 of the State Services Act 1962 is pending or if there is a right to such an appeal, either to the State Services Commission or to the Public Service Appeal Board, the provisions of that Act, so far as they are applicable, shall continue to apply to that appeal as if the State Services Act 1962 had not been repealed.

  (2) Notwithstanding anything in this Act, if, immediately before 1 April 1988,—

  • (a) an appeal under section 64(1)(a) of the State Services Act 1962 is pending; or

  • (b) there is a right to such an appeal,—

  the provisions of that Act, so far as they are applicable, shall continue to apply to that appeal as if the State Services Act 1962 had not been repealed.

  (3) The decision on any appeal to which subsection (1) or subsection (2) of this section applies shall be binding on the employee, the Commission, and on any chief executive who may be affected and shall be implemented as if the State Services Act 1962 were still in force.

109 Apprenticeships preserved

• (1) Every indenture of apprenticeship entered into under the State Services Act 1962 before the date of the commencement of this Act and still subsisting immediately before that date shall continue in force on the same terms and conditions (but subject to any necessary modifications) as if the State Services Act 1962 had not been repealed.

  (2) In any such case, as from the commencement of this Act, the chief executive shall be the employer or the master for the purposes of the indenture of apprenticeship, and every reference in the indenture of apprenticeship to the Commission shall be read as a reference to the chief executive.

  (3) The repeal of section 14 of the State Services Conditions of Employment Amendment Act 1987 shall not affect any indenture of apprenticeship continued in force by that section.

110 Provisions relating to Commission

• (1) Every reference in any enactment or document to the Public Service Commissioner or to the Public Service Commission or to the office of either of them shall, after the commencement of this Act, unless the context otherwise requires, be read as references to the State Services Commission under this Act or the Office of the State Services Commission, as the case may be.

  (2) Every reference to the State Services Commission in any enactment passed or document made before or after the passing of this Act shall, unless the context otherwise requires, be read as a reference to the State Services Commission continued by this Act.

  (3) Every person who, immediately before the commencement of this Act, held office as a member of the Commission shall be deemed to have been appointed under section 12.

  (4) The person who, immediately before the commencement of this Act, held office as the Chairman of the Commission shall be deemed to have been appointed as Chief Commissioner under section 12(2).

111 General liabilities of Commission

• (1) All references to the Commission in any manual, or document whatever (not being an enactment) that is subsisting immediately before the commencement of this Act, shall, unless the Commission declares otherwise, be read as a reference to the appropriate department or chief executive, as the case may require.

  (2) All contracts, engagements, and liabilities and all rights and authorities of any nature whatever that, immediately before the commencement of this Act, existed between an individual in the Public Service and the Commission shall, unless the context otherwise requires, continue to exist as if the chief executive of the department in which the individual is employed were the Commission.

112 Savings

• Without limiting the provisions of the Acts Interpretation Act 1924, it is hereby declared that the repeal of the State Services Conditions of Employment Amendment Act 1987 does not affect the amendments made by sections 16(1), 16(4), 18, 20(1), and 23 of that Act or the rights conferred by sections 19, 21, and 22 of that Act.