State Sector Amendment Act 1991
State Sector Amendment Act 1991
State Sector Amendment Act 1991
State Sector Amendment Act 1991
Public Act |
1991 No 31 |
|
Date of assent |
7 May 1991 |
|
Contents
An Act to amend the State Sector Act 1988
BE IT ENACTED by the Parliament of New Zealand as follows:
1 Short Title and commencement
(1)
This Act may be cited as the State Sector Amendment Act 1991, and shall be read together with and deemed part of the State Sector Act 1988 (hereinafter referred to as the principal Act).
(2)
This Act shall come into force on the 15th day of May 1991.
2 Interpretation
(1)
The principal Act is hereby amended by repealing section 2 (as amended by section 2 of the State Sector Amendment Act 1989 and by section 2 of the State Sector Amendment Act (No. 2) 1989), and substituting the following section:
“2
In this Act, unless the context otherwise requires,—
“‘Applicable collective employment contract’ means the collective employment contract that is binding on the relevant employee, employees, employer, or employers (as the case may require) at the relevant point in time:
“‘Appropriate Minister’, in relation to a Department, means—
“(a)
The Minister responsible for the Department; or
“(b)
Where 2 or more Ministers are responsible for different functions of a Department, the Minister responsible for the relevant function of the Department:
“‘Chief executive’,—
“(a)
In relation to a Department, means, subject to section 44 of this Act, the person holding office under section 31 of this Act, as the chief executive of the Department:
“(b)
In relation to a university, polytechnic, or college of education, means the person appointed as the chief executive of the institution:
“‘Collective employment contract’ means an employment contract that is binding on one or more employers and 2 or more employees:
“‘College of education’ has the same meaning as in Part XIII of the Education Act 1989:
“‘Commission’ means the State Services Commission:
“‘Commissioner’ means the State Services Commissioner appointed under section 3 of this Act:
“‘Conditions of employment’—
“(a)
Includes remuneration; but
“(b)
Does not include—
“(i)
Allowances payable to employees serving outside New Zealand; or
“(ii)
Other conditions of service of employees serving outside New Zealand:
“‘Department’ means any Department specified in the First Schedule to this Act:
“‘Deputy Commissioner’ means the Deputy State Services Commissioner appointed under section 12 of this Act:
“‘Education service’ means service in the employment of—
“(a)
Any State school; or
“(b)
Any integrated school within the meaning of the Private Schools Conditional Integration Act 1975; or
“(c)
Any kindergarten within the meaning of the Education Act 1964; or
“(d)
Any university, polytechnic, or college of education; or
“(e)
Any other educational institution for which a separate employer for the purpose of this Act is designated by any enactment or by the Minister:
“‘Employee’, in relation to the State services,—
“(a)
Means an employee in any part of the State services, whether paid by salary, wages, or otherwise; but
“(b)
Does not include—
“(i)
Any chief executive; or
“(ii)
Any member of the senior executive service:
“‘Employer’,—
“(a)
In relation to any institution that is subject to Part IX of the Education Act 1989, means—
“(i)
The Board of Trustees; or
“(ii)
Where a Commissioner has been appointed under Part IX of the Education Act 1989 to act in place of the Board of Trustees, that Commissioner:
“(b)
In relation to any kindergarten recognised as a free kindergarten by the Minister of Education, means the free kindergarten association by which that kindergarten is controlled:
“(c)
In relation to any university, polytechnic, or college of education, means the chief executive of that institution:
“(d)
In relation to any other institution, means—
“(i)
The person or body designated by any enactment as the employer for the purposes of this Act in respect of that institution; and
“(ii)
Where no such person or body is so designated, means any person or body designated for that purpose by the Minister:
“‘Employment contract’ means a contract of service:
“‘Health service’ means service in the employment of an area health board:
“‘Individual employment contract’ means an employment contract that is binding on only one employer and one employee:
“‘Lockout’ has the meaning given to it by section 62 of the Employment Contracts Act 1991:
“‘Minister’ means the Minister of State Services:
“‘Polytechnic’ has the same meaning as in Part XIII of the Education Act 1989:
“‘Public Service’ means the Public Service as defined in section 27 of this Act:
“‘Remuneration’ includes—
“(a)
Salary, wages, and other payments, whether in the form of bonuses or otherwise, in return for services; and
“(b)
Benefits and other emoluments (whether in money or not) in return for services:
“‘Senior executive service’ means the senior executive service under Part IV of this Act:
“‘State services’—
“(a)
Means all instruments of the Crown in respect of the Government of New Zealand, whether Departments, corporations, agencies, or other instruments; and
“(b)
Includes the Education service and the Health service; but
“(c)
Does not include—
“(i)
The Governor-General; or
“(ii)
Any member of the Executive Council; or
“(iii)
Any Minister of the Crown; or
“(iv)
Any member of Parliament; or
“(v)
Any corporation listed in the First Schedule to the State-Owned Enterprises Act 1986; or
“(vi)
Any university, polytechnic, or college of education:
“‘Strike’ has the meaning given to it by section 61 of the Employment Contracts Act 1991:
“‘University’ has the same meaning as in Part XIII of the Education Act 1989.”
(2)
The following enactments are hereby consequentially repealed:
(a)
Subsections (3) and (4) of section 2 of the State Sector Amendment Act 1989:
(b)
Section 2 of the State Sector Amendment Act (No. 2) 1989.
3 Repeals
The principal Act is hereby amended by repealing sections 45, 49, and 50.
4 Employees of Departments
Section 59(1)(b) of the principal Act is hereby amended by omitting the words “any award or agreement”
, and substituting the words “the employment contract applying to the employee”
.
5 Power to transfer employees
Section 61a(1) of the principal Act (as inserted by section 14 of the State Sector Amendment Act (No. 2) 1989) is hereby amended by omitting the words “, subject to the provisions of the relevant award or agreement,”
, and substituting the words “subject to the relevant employment contract”
.
6 Protection of conditions of employment upon transfer of duties
The principal Act is hereby amended by repealing section 61b (as inserted by section 14 of the State Sector Amendment Act (No. 2) 1989), and substituting the following section:
“61b
“(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 contracts applying to such employees at the date of the transfer.
“(2)
Subsection (1) of this section 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 contract 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 contract applying to that employee in the Department in which the transferred employee is then employed.
“(3)
Nothing in subsection (1) of this section 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.”
7 New Part VI substituted
The principal Act is hereby amended by repealing Part VI, and substituting the following Part:
“PART VI “Application of Employment Contracts Act 1991
“67 Application to Public Service of Employment Contracts Act 1991
Except as otherwise provided in this Act, the Employment Contracts Act 1991 shall apply in relation to the Public Service.
“68 Negotiations of conditions of employment
“(1)
The Commissioner shall be responsible for negotiating under the Employment Contracts Act 1991 every collective employment contract applicable to employees of any department of the Public Service.
“(2)
The negotiations, which shall be conducted by the Commissioner with the employees themselves or their authorised representatives, shall be conducted by the Commissioner in consultation with the chief executive of each Department affected.
“(3)
Every collective employment contract shall be entered into between—
“(a)
The Commissioner; and
“(b)
The employees to whom the collective employment contract is applicable or representatives acting with the authority of those employees.
“(4)
Any person, group, or organisation authorised to represent any employees in negotiations for a collective employment contract applicable to those employees may become a party to that contract with the agreement of the Commissioner and any other representatives acting in those negotiations with the authority of any such employees.
“(5)
Every collective employment contract entered into between the Commissioner and any employees of a Department shall be binding on the chief executive of that Department.
“69 Personal grievances and disputes
“(1)
Notwithstanding the provisions of section 68 of this Act,—
“(a)
In relation to a personal grievance the employer shall be the chief executive of the Department; and
“(b)
In relation to a dispute about the interpretation, application, or operation of any collective employment contract, the employer shall be the chief executive of the department acting, if the Commissioner so requires, together with or in consultation with the Commissioner.
“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 of this Act.
“(2)
Where the Commissioner, acting under subsection (1) of this section, delegates to a chief executive the function, under section 68(1) of this Act, of conducting negotiations with the employees themselves or their authorised representatives, the chief executive shall conduct those negotiations in consultation with the Commissioner.
“(3)
Nothing in this section limits the provisions of section 23 of this Act.”
8 Repeal
Section 16 of the State Sector Amendment Act (No. 2) 1989 is hereby consequentially repealed.
9 New Part VII substituted
The principal Act is hereby amended by repealing Part VII (as enacted by section 3 of the State Sector Amendment Act 1989 and amended by sections 16 to 18 of the State Sector Amendment Act (No. 2) 1989), and substituting the following Part:
“PART VII “Education Service
“73 Application of Employment Contracts Act 1991
Except as otherwise provided in this Act, the Employment Contracts Act 1991 shall apply in relation to the Education service.
“74 Negotiation of conditions of employment
“(1)
Except as provided in section 74c of this Act, the Commissioner shall be responsible for negotiating under the Employment Contracts Act 1991 every collective employment contract applicable to employees of the Education service.
“(2)
The negotiations, which shall be conducted by the Commissioner with the employees themselves or their authorised representatives, shall be conducted by the Commissioner in consultation with—
“(a)
The chief executive of the Ministry of Education; and
“(b)
Representatives of the employer or employers who will be bound by the collective employment contract, which representatives shall be employers, or organisations of employers, of persons employed in the Education service.
“(3)
Every collective employment contract shall be entered into between—
“(a)
The Commissioner; and
“(b)
The employees to whom the collective employment contract is applicable or representatives acting with the authority of those employees.
“(4)
Any person, group, or organisation authorised to represent any employees of the Education service in negotiations under this section for a collective employment contract applicable to those employees may become a party to that contract with the agreement of the Commissioner and any other representatives acting in the negotiations with the authority of any such employees.
“(5)
Every collective employment contract entered into between the Commissioner and any employees in the Education service shall be binding on the employers of the employees to whom the collective employment contract is applicable.
“74a Personal grievances and disputes
Notwithstanding the provisions of section 74 of this Act,—
“(a)
In relation to a personal grievance, the employer shall be the employer as defined in section 2 of this Act; and
“(b)
In relation to a dispute about the interpretation, application, or operation of any collective employment contract, the employer shall be the employer as defined in section 2 of this Act, acting, if the Commissioner so requires, together with or in consultation with the Commissioner.
“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 of this Act.
“(2)
Where the Commissioner, acting under subsection (1) of this section, delegates to an employer or an organisation of employers the function, under section 74(1) of this Act, of conducting negotiations with the employees themselves or their authorised representatives, the employer or organisation of employers shall 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 of this Act.
“74c Negotiation of conditions of employment for employees of universities, polytechnics, and colleges of education
“(1)
For the period beginning with the commencement of this section and ending with the close of the 31st day of 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 university, polytechnic, or college of education. 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 university, polytechnic, or college of education.
“(2)
On and after the 1st day of January 1992, the chief executive of each university, polytechnic, or college of education shall be responsible either—
“(a)
Individually; or
“(b)
Jointly through any organisation of employers of persons employed in any university, polytechnic, or college of education—
for negotiating under the Employment Contracts Act 1991 collective employment contracts that are applicable to any group of employees in any university, polytechnic, or college of education.
“(3)
Before entering into any collective employment contract under the Employment Contracts Act 1991, the chief executive of each university, polytechnic, or college of education or any organisation of employers representing jointly such chief executives, shall consult with the State Services Commissioner over the conditions of employment to be included in the collective employment contract.
“74d Senior positions at universities, polytechnics, and colleges of education
“(1)
The conditions of employment of every person appointed to a senior position at a university, polytechnic, or college of education who is not bound by any collective employment contract 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) of this section, a senior position means the position or positions immediately below, in seniority, the position of the chief executive of the university, polytechnic, or college of education, and such other positions as the Council of the institution may from time to time designate as being senior positions within the institution.
“75 Actual conditions of employment
“(1)
The Commissioner may declare that all or any part of the conditions of employment fixed under a collective employment contract for persons employed in the Education service (other than at any university, polytechnic, or college of education) are to be the actual conditions of employment.
“(2)
The conditions of employment of employees in the Education service (other than employees at any university, polytechnic, or college of education) who are not bound by any collective employment contract 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) of this section, 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.
“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 of this Act, 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 summary 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 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 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 employee or class of employees.
“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.”
10 Repeals
Sections 16 to 18 of the State Sector Amendment Act (No. 2) 1989 are hereby consequentially repealed.
11 Employees of institutions
Section 77e(1)(b) of the principal Act (as enacted by section 3 of the State Sector Amendment Act 1989) is hereby amended by omitting the words “any award or agreement”
, and substituting the words “the employment contract applying to the employee”
.
12 Repeals
(1)
The principal Act is hereby amended by repealing section 77j, section 77k, section 77l, section 77la, and section 77m (as enacted by section 3 of the State Sector Amendment Act 1989 and amended by sections 23 to 25 of the State Sector Amendment Act (No. 2) 1989 and by section 50(1) of the Education Amendment Act 1990).
(2)
The following enactments are hereby consequentially repealed:
(a)
Sections 23 to 25 of the State Sector Amendment Act (No. 2) 1989:
(b)
So much of the Second Schedule to the Education Amendment Act 1990 as relates to section 77j of the State Sector Act 1988.
13 Repeal of Third and Fourth Schedules
The Third and Fourth Schedules to the principal Act are hereby repealed.
This Act is administered in the State Services Commission.