This article applies to public sector organisations.

Public Sector Act 2022 (Qld)

The Public Sector Act 2022 (Qld) (the Act) commenced on 1 March 2023. It repealed and replaced the Public Service Act 2008 (Qld) (the Repealed Act), introduced new obligations and amended some existing obligations in a major overhaul of public sector employment regulation. On 24 February 2023 the Public Sector Regulation 2023 (Qld) (the Regulation) was published to coincide with the Act and also commences on 1 March 2023.

Application

The Act, under section 8, defines public sector entities as:

• a public service entity;
• an entity, other than a public service entity, prescribed by regulation as a public sector entity;
• a registry or other administrative office of a court or tribunal of the State; or
• an agency, authority, commission, corporation, instrumentality, office, or other entity, other than an entity mentioned in the points above, established under an Act for a public or State purpose.

Importantly for hospitals and health services, the last point in the definition applies, as they are entities established under the Hospital and Health Boards Act 2011 (Qld).

Section 8 of the Act also provides a list of excluded entities from this definition, including, but not limited to, local governments, courts and parliamentary services.

A public service entity is defined as a department declared under section 197 of the Act or an organisation listed in Schedule 1 of the Act, which includes, but is not limited to, the Mental Health Review Tribunal and Health and Wellbeing Queensland.

Reframing the relationship with Aboriginal and Torres Strait Islander peoples

The Act has introduced a new framework in order to reframe the public sector’s relationship with Aboriginal and Torres Strait Islander peoples. In Part 3 of Chapter 1, organisations are required to:

• recognise and honour Aboriginal peoples and Torres Strait Islander peoples as the first peoples of Queensland;
• engage in truth-telling about the shared history of all Australians;
• recognise the importance to Aboriginal peoples and Torres Strait Islander peoples of the right to self-determination;
• promote cultural safety and cultural capability at all levels of the public sector;
• work in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, in particular when making decisions directly affecting them;
• ensure the workforce and leadership of the organisation are reflective of the community they serve, having regard to chapter 2 of the Act and chapter 3, part 3 of the Act;
• promote a fair and inclusive public sector that supports a sense of dignity and belonging for Aboriginal peoples and Torres Strait Islander peoples; and
• support the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector.

Organisations are required to create a plan to address the above requirements and publish these plans on their website. They must also audit the progress in achieving these requirements every financial year, and update or amend their plan annually if necessary.

Principles

Public sector principles

The management and employment principles under the Repealed Act have been replaced by the public sector principles under section 39 of the Act. These new principles are “in recognition that public sector entities are established for a public or State purpose, and of the trust the people of Queensland place in public sector entities”.

Similar to the repealed management and employment principles, the public sector principles are categorised into principles aimed at management of the public sector and the employment of public sector employees. The management-based principles are:

• achieving a spirit of service to the community;
• ensuring accountability, integrity and support of the public interest;
• ensuring independence, transparency and impartiality in giving advice and making decisions;
• achieving responsiveness, innovation and creativity;
• promoting collaboration between public sector entities and other entities in providing services to the community; and
• achieving continuous organisational improvement.

The employment principles state that public sector employment decisions should be guided by the following:

• ensuring employment on a permanent basis is the default basis of employment, other than for non-industrial instrument employees;
• supporting equity, diversity, respect and inclusion at work;
• ensuring the taking of measures aimed at implementing and promoting pay equity;
• ensuring effectiveness and efficiency while maintaining a focus on the future;
• ensuring fairness and impartiality in making decisions;
• remunerating employees at rates appropriate to their responsibilities;
• promoting equitable and flexible working environments.

Under section 41 of the Act, the chief executive of the organisation is responsible for ensuring that the public sector principles are observed by the organisation.

Positive performance and work performance principles

The positive performance management principles under section 85 of the Act and the work performance principles under section 40 of the Act are substantially similar to the principles in the Repealed Act. However, the work performance principles now include specific obligations for public sector managers and chief executives. Public sector managers must now provide fair and reasonable work environments where employees are assigned work that is according to their position and remuneration and ensure that they give effect to the public sector principles and values of their organisation when undertaking their management responsibilities. Managers are also required to ensure fairness and integrity and undertake best practice human resource management. The Act also outlines the chief executive’s responsibilities, including, but not limited to, ensuring the organisation is performing its functions under the Act and that managers perform their functions in accordance with the positive performance management principles.

Equity and diversity in employment

The merit principle in the Repealed Act has been repealed, replacing it with an equity and diversity principle, to ensure that the public service will promote equity and diversity through the recruitment process. Chapter 2 of the Act provides for equity, diversity, respect and inclusion, and the general equity and diversity principle is outlined in section 27 of the Act, which states that a chief executive is required to take reasonable actions to:

• promote, support and progress equity and diversity in the organisation in relation to employment matters;
• ensure people who are members of 1 or more diversity target groups are able to pursue careers, and compete for recruitment, selection and promotion opportunities, in the entity; and
• eliminate unlawful discrimination in the organisation in relation to employment matters.

Diversity target groups are similar to the EEO target groups in the Repealed Act, and are defined as:

• Aboriginal peoples and Torres Strait Islander peoples;
• people from culturally and linguistically diverse backgrounds;
• people with disability; and
• women.

A regulation may also prescribe additional groups for the purpose of the above definition.

Organisations will be required to create and publish an equity and diversity plan and audit their progress in relation to the plan each year.

A new duty for the chief executive of the organisation has also been introduced under section 33 of the Act to promote and support a culture of respect and inclusion.

Employment framework

Many of the obligations surrounding the employment framework and obligations on chief executives now apply only to a public service entity and are no longer relevant to the wider public sector. Public sector organisations must continue to recruit and maintain their workforce in accordance with the principles outlined above, however obligations on appointment, secondment, transfers and redeployment, for example, now only apply to public service entities.

If a non-permanent public sector employee has been continuously employed in the same public sector entity for at least 2 years, the employee’s chief executive must decide whether to continue the employee’s employment according to the terms of the employee’s existing employment or offer to convert the employee’s employment to a permanent basis. Under section 115 of the Act, employees can now ask their chief executive to review a decision not to offer them permanent employment status. Whether to conduct this review is at the chief executive’s discretion, but the decision is required to be made within 28 days. Employees can also appeal a decision not to have their employment raised to a higher classification after one continuous year of acting at or being seconded to a higher classification level. Their chief executive is also required to decide this appeal within 28 days.

The Regulation has prescribed that sections 161 and 162 of the Act now apply to hospital and health services. Section 161 gives the chief executive of a hospital and health service the power to transfer for redeploy a public service employee but may only redeploy someone with their consent. If a public sector officer refuses to be transferred without a reasonable excuse, their employment may be terminated. If the officer establishes reasonable grounds not to be transferred the refusal cannot be used to prejudice the officer’s future promotional prospects.

Commissioner directive

The Public Sector Commissioner (the Commissioner) under the Act may make the following mandatory directives:

• Directives about recruitment and selection under section 46 of the Act;
• A suitability directive for when criminal history checks or working with children checks under the Working with Children (Risk Management and Screening) Act 2000 (Qld) are necessary under section 80 of the Act;
• A directive about mobility arrangements under section 82 of the Act;
• A positive performance management directive under section 85 of the Act;
• A directive about disciplinary action under section 100 of the Act
• A directive regarding suspension of employees under section 102 of the Act
• A directive about mental or physical incapacity under section 109 of the Act;
• A directive about how public sector entities must deal with employee grievances under section 110 of the Act;
• A directive about a review of status for an employee after 1 year of continuous employment under section 114 of the Act
• A directive for when an employee requests a review of status after 2 years of continuous employment under section 115 of the Act;
• A directive regarding an employee’s right to make an additional request for review of a decision not to offer to convert the employee’s employment to a permanent basis under section 116 of the Act;
• A directive about employing an employee at a higher classification level under section 120 of the Act.

Importantly, existing directives under the Repealed Act continue to operate under section 307 of the Act.

Conclusion

Organisations should be aware of the important new principles governing employment in the public sector and the Commissioner’s power to make mandatory directives. Organisations must also facilitate yearly audits in order to track their progress in achieving equity and diversity and reframing their relationship with Aboriginal and Torres Strait Islander peoples.