Chapter 2: The Public Sector Framework

2.1 The legislation

The Government Sector Employment Act 2013 (GSE Act) provides the legislative framework for government employment in NSW. The GSE Act commenced on 24 February 2014 and replaced the Public Sector Employment and Management Act 2002. The GSE Act sets out workforce management in the NSW public sector, executive structures and employment arrangements.

The GSE Act establishes two main employment groups: the government sector and, within that, the Public Service.

2.1.1 Government Sector

The government sector comprises most government employees. The government sector is defined by section 3(1) of the GSE Act as the:

• Public Service
• Teaching Service
• NSW Police Force
• NSW Health Service
• Transport Service of NSW
• any other service of the Crown, and
• the service of any other person or body constituted by or under an Act or exercising public functions (such as a State-owned corporation), being a person or body that is prescribed by the regulations for the purposes of this definition.

2.1.2 Public Service

The Public Service is made up of three types of Public Service agencies:

• Departments
• Public Service executive agencies
• Separate Public Service agencies (see Factsheet on Separate Agencies)

Departments, executive agencies and separate agencies are listed in Schedule 1 of the GSE Act.

People who are employed under the GSE Act in a Department, an executive agency, or a separate agency are Public Service employees. The GSE Act applies to all Public Service employees.

2.2 Clusters

‘Clusters’ are the groups into which NSW Government agencies are organised to enhance coordination and provision of related services and policy development. Clusters are not set up by legislation and the GSE Act does not refer to the term ‘cluster’ or to cluster arrangements. However, the GSE Act strengthens the relationship between Departments and Public Service executive agencies related to Departments, and the term ‘cluster’ continues to be used for other administrative purposes.

2.3 Industrial Instruments

Public Service employees are typically covered by several industrial instruments. For example, an employee may have their rate of pay provided in the Crown Employees (Public Sector – Salaries) Award 2018 and other conditions of employment set out in the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 and/or an occupation specific instrument.

This Guide primarily draws on the provisions of the Conditions Award. It should be noted that the coverage clause of the Conditions Award sets out detailed ‘interaction rules’ where multiple instruments apply to an employee. These were established to preserve conditions of employment for employees who were impacted by changes to the organisation of government agencies which occurred from the introduction of the GSE Act when agencies were moved into the public service.

2.4 Role of the Industrial Relations Secretary

The GSE Act provides that the Industrial Relations Secretary (IR Secretary) is the employer of Public Service employees for industrial purposes. The IR Secretary advises the Government on industrial relations strategies and has oversight over the implementation of various policies impacting on Public Service employees. Section 50 of the GSE Act provides further detail of the function of the IR Secretary.

Under s 51 of the GSE Act, the IR Secretary may enter into an agreement with an association or organisation representing a group of Public Service employees regarding industrial matters. Any such agreement binds all Public Service employees in the group affected by the agreement, whether they are members of the association or organisation with which the agreement was entered into or not.

Under s 53 of the GSE Act, the IR Secretary may delegate any of his or her functions (other than this power of delegation) to the head of a Public Service agency or any Public Service employee or to a statutory officer.

Despite the role of the IR Secretary as the employer of Public Service employees for industrial purposes, applicants in industrial proceedings involving Public Service employees and agencies commonly notify matters against the Department or agency head. In these circumstances, representatives should have regard to the Government Model Litigant Policy and the need to provide reasonable assistance to the application to determine the correct respondent in matters.

2.4.1 Determinations

The IR Secretary may make determinations under s. 52 of the GSE Act, to fix conditions of employment of Public Service employees (or any group of them) where there is no other instrument which applies to those employees.

This section does not prevent the head of a Public Service agency from determining conditions of employment of employees of the agency for the purposes of the day to day management of the agency in matters not regulated by State industrial instruments and determinations under this section.

A list of determinations made by the Industrial Relations Secretary under s 52 of the GSE Act is published on the Public Sector Industrial Relations.