- Title page
- Introduction to Review of the State Sector Act 1988
- Structure of the Act
- Purpose of the Act
- Part 1: State Services Commissioner
- Part 2: The Public Service
- Part 3: Chief Executives
- Part 4: Senior Leadership and Management Capability in Public Service
- Part 5: Government Workforce Policy and Personnel Provisions
- Part 6: Application of Employment Relations Act 2000
- Part 7, 7A, 7B: Education Service, Personnel, Senior Appointments
- Part 8: Miscellaneous Provisions
- Technical Amendments
- Annex 1: Summary of Main Amendments to State Sector Act
- List of abbreviations and acronyms
Part 2: The Public Service
75 Part 2 of the SSA defines the Public Service, provides for Ministers to delegate their functions and powers to departmental chief executives, and provides for reorganisations within the Public Service, including related personnel provisions.
76 A major issue for the review was the need to enable some form(s) of cross-agency governance and accountability. The potential arrangements described in this section of the paper would have implications for chief executive responsibilities, as discussed in relation to part 3 of the SSA.
77 In addition, proposals were developed to:
- disapply certain employment-related provisions to Ministerial Advisers
- rationalise and streamline the various provisions pertaining to reorganisations, redeployment and redundancy compensation.
New Organisational Forms
78 The report of the BPSAG had significant implications for the way departments are organised and governed.
79 The SSA is constructed around the responsibilities of the State Services Commissioner and Public Service chief executives. Traditionally, this construct has been considered appropriate generally for accountability purposes, in so far as people/officers are better able than agencies to be held accountable for functions and powers conferred on them.
80 However, the SSA was thin in provisions concerning the Public Service as a collective entity, let alone treating the State services as parts of a cohesive system. Yet government policy and the cross-agency nature of many government objectives and priorities require departments and other agencies to participate in inter-agency or system-wide initiatives.
81 It was evident from early discussions within the SSC and latterly through the BPSAG that the focus in the current SSA on vertical responsibilities between departmental employees, the chief executive and Minister was seen in the contemporary context as being less than optimal for fostering whole of government interests. It was perhaps timely to recall that, in 1912, the Hunt Report commented: "The Public Service should be treated as a whole and not as a number of separate watertight compartments, and officers of the Service should feel that they are officers of the Public Service as a whole, and not officers of special Departments only" 16. While the Hunt Report made this comment in the context of employee transfers between departments, the underlying notion remains applicable to other aspects of departmental administration and operations.
82 Without ignoring the purpose and utility of inter-departmental committees (especially for cross-departmental coordination), taskforces (especially for time-limited specific issues), joint teams (especially for cooperation on policy development or programme delivery), or establishing 'heads of professions' (e.g. in the area of finance), such arrangements did not raise issues with implications for the purpose of this legislative review.
83 Officials were more concerned with circumstances where a major policy or operational activity requires some form of joint governance. Two possible new models to provide effective governance of joined-up or connected government arrangements were proposed:
- boards comprising chief executives, in two potential forms:
- a board established by Cabinet, under an agreed terms of reference
- a board established as a separate administrative unit within the legal Crown, under a new Schedule to the SSA listing the constituent departments within the board's remit
- departmental (or executive) agencies.
New Organisational Forms: Sector Boards
84 The BPSAG report proposed some significant changes to the organisation and leadership of New Zealand's system of State services. The first significant change was: "to reconfigure the system much more directly around those results or outcomes that matter most to New Zealanders – something that the state services have struggled to deliver collectively over the years." 17 As part of this, the BPSAG proposed "a new modus operandi for state agencies - where sectors mobilise around specified results, deliberately tackling complex issues, or matters that might fall between the responsibilities and accountabilities of individual agencies, taking opportunities to harness better results in places where more integrated working practices across agencies make sense". The BPSAG envisaged that it may make sense to "hard wire" certain arrangements, for example, in the justice sector by bringing the balance sheets of the three biggest departments together under one sector-wide chief financial officer, or having a justice sector-wide policy framework.
85 The BPSAG also suggested a broader spectrum or menu of organisational arrangements was needed than was previously available, providing greater flexibility for Ministers. One option was to establish "hard" or "soft-wired" sector boards, intended to get better traction on results through more clearly defined accountabilities and all parties having some serious "skin in the game". Soft-wired arrangements would be by mutual consent between the agencies; hard-wired sector boards would have more formal mandates, financial arrangements and reporting arrangements.
86 The associated policy thinking envisaged two types of sector boards: sector leadership boards, and sector specific purpose boards. A sector leadership board would be established when sector results involve most of the activities of the component or participating agencies. Key characteristics would include:
- legally, the board would be an administrative unit comprising the chief executives of the component or participating agencies
- the chief executives could act as equals, or a chair with a casting vote could be appointed. In both cases, the participating chief executives would be bound under a collective responsibility once decisions are made
- the board would be responsible for strategic policy and financial decisions for the sector (both purchase and ownership)
- the participating chief executives would be responsible for operational management within the policy and financial boundaries agreed by the board. They would remain responsible for all of their agency's operations that are not part of the sector arrangement.
87 A sector specific purpose board would be established when sector results involve a small proportion of the activities of the component agencies. Legally, a sector specific purpose board would be the same as a sector leadership board, i.e. it would be an administrative unit comprising the chief executives of the component agencies who would be held under a collective responsibility to any decisions made. The key difference is that of scope: only specifically defined activities of component agencies would come under a sector specific purpose board; under a sector leadership board, all activities of the participating agencies would be within scope unless they are specifically defined as being out of scope.
88 In order to "hard wire" or bind a group of Public Service chief executives to collective decision making and collective responsibility, a sector board would need to be a statutory administrative unit. Otherwise, an individual chief executive's responsibilities in s32 of the SSA and s34 of the PFA would always 'trump' a non-binding collective decision. When it comes to responsibility for the department's activities and finances, a chief executive was singularly responsible under current legislation. Effectively, the BPSAG proposal to "hard wire" sector board arrangements would entail a very significant and fundamental shift in the current public management system. It would represent a genuine "step change" that would require a new way of thinking and working between and among chief executives and their departments. The radical introduction of a legally-binding collective responsibility would require amendments to the existing responsibilities of Public Service chief executives. There would also be significant implications for the PFA: sector boards would be part of the Crown, as defined in the PFA.
89 The SSA would need several new provisions and several amendments to current provisions. First, the SSA would need to provide for the establishment of sector boards. The SSC proposed that the Act include provision for Orders in Council to be made that would add the name of each board to a new schedule to the Act (and could remove a board from it, or change the name of a board), including the names of the departments whose chief executives constitute the board.
90 The concept of collective responsibility connotes decision making among equals. However, in order to future-proof for all circumstances, the SSA would need to provide the flexibility to enable a chair to be appointed who would have a casting vote. In addition to a casting vote, the chair would also need the power to request information from a department whose chief executive is a member of a board such information as is necessary to enable the board to discharge its functions and duties: the department would be required to comply with the request.
91 Options for the appointment process for a board chairperson could include:
- appointment as specified in the OIC, on the recommendation of the State Services Commissioner
- appointment by the Commissioner, after consultation with appropriate Ministers. This option would be preferable if it was envisaged there may be circumstances where it would be advantageous to have an independent chair who is not the chief executive of one of the component agencies.
92 Provision would also need to be made for a chair to be replaced. The process should be the same as that for appointment, ie either through an OIC or by the Commissioner.
93 Of critical importance, the SSA would need to clarify a chief executive's responsibilities when acting individually as head of his or her department, and when he or she is acting under a collective responsibility as part of a board. At a minimum, a new section would need to be inserted to specify how the collective responsibilities would play out. This is covered in the discussion relating to Part 3 of the SSA.
94 There would be implications for the State Services Commissioner's responsibility to assess the performance of chief executives and departments. The Commissioner would:
- continue to appoint each Public Service chief executive as the head of his or her department, as at present
- continue to review the performance of each department under s6
- continue to review the performance of each chief executive under s43
- be responsible for reviewing the performance of each sector board, both collectively as a unit and in terms of the manner and quality of each chief executive's participation and contribution. In practice the sector reviews would be undertaken jointly by the central agencies.
Recommendations to Cabinet
95 BPS Cabinet paper four set out a comprehensive description, rationale, and detailed recommendations for the potential establishment of boards. The paper referred to them as "specific purpose boards", but commented in paragraph 19 that they could be used for sector arrangements that involve the dominant portion of each department's activities, or where a smaller (not dominant) portion of each department's activity is within scope. The paper focussed on the two different mechanisms for establishing boards with collective responsibilities owed to the appropriate Ministers:
- a board established by Cabinet, under an agreed terms of reference, which lists the constituent departments within the board's remit
- a board established as a separate administrative unit within the legal Crown, under a new schedule to the SSA which lists the constituent departments within the board's remit.
96 The Cabinet paper noted that collective responsibility on the part of constituent chief executives would not be legally binding in the case of a board established by Cabinet under a terms of reference. In contrast, collective responsibility would be legally binding and take precedence over individual responsibilities in the case of a board established under the SSA.
97 The Cabinet paper commented there were some implications for ministerial arrangements. The constituent chief executives' collective responsibility to the board could impact on how Ministers are organised (ie whether a responsible/lead Minister or a Ministerial Group is established) and the responsibility arrangements between boards, Ministers and Parliament.
98 As recorded in CAB Min (12) 16/10 paragraph 45, Cabinet declined the proposal that boards be established under a new schedule to the SSA.
99 Cabinet agreed to a comprehensive set of proposals relating to the establishment of boards determined by Cabinet and set out in the board's terms of reference. But such arrangements are not matters for inclusion in the SSA.
New Organisational Forms: Departmental Agencies
100 The BPSAG report proposed that departmental (or 'executive') agencies be provided for as part of the broader menu of organisational options. They would sit within the Crown under the leadership of a larger department, but held to account for their own operational responsibilities. The report referred to them as a new organisational form – to help avoid either having few large, multi-functional departments or many small agencies.
101 The SSC favoured the notion of departmental agencies based on the UK Executive Agency (EA) model, but with modifications to fit the New Zealand system of State services. The SSC supported the BPSAG's broad objective and, more specifically, saw potential for the use of departmental agencies in two major instances:
- to transfer functions from Crown entities back into the legal Crown in a manner that retains their distinctiveness. This could be appropriate if it was desirable to bring the functions within scope of a sector board, or otherwise to bring them closer to ministerial oversight and direction
- to cluster similar service delivery or regulatory functions from different agencies that serve similar objectives and priorities, especially if doing so would shore up capabilities and produce back office efficiencies.
102 In the UK model, EAs had the following characteristics.
- EAs were part of the Crown and did not usually have their own legal identity. They served as a mechanism for government to ensure that agencies operate in accord with government dictates to produce the desired results, without normally intervening in operating detail. Most EAs delivered a service (either to the public or to other service providers) or had a regulatory role. Many also had a technical policy role in addition to their operational functions.
- EAs were headed by a chief executive appointed in most cases by the Minister on the advice of officials, usually by open competition, for a fixed term. The appointment needed to be cleared with the Cabinet Office, the Office of the Civil Service Commissioners and the Treasury. EA staff were civil servants employed on civil service terms, conditions and pension arrangements and were subject to the Civil Service Code.
- EAs did not have governing boards but generally had a management board made up of senior staff and two or three external members (sometimes including a sponsor from the parent department).
- EAs operated within the context of their Framework Document. This set out the key elements of the policy and resources framework for the agency and the relationship and respective responsibilities of the chief executive, the relevant Minister, the departmental Permanent Secretary, the appropriate Treasury expenditure team and other departments, agencies and organisations with which it will have a relationship. The Framework Document had to be approved by the Minister (or joint Ministers if applicable) before publication.
- EA-specific targets were set by the responsible Minister and were announced to Parliament before the start of the financial year. EAs had to prepare and usually publish annual Corporate and Business Plans.
- EAs had to be capable of being made separately accountable. They had to produce Annual Reports and Accounts.
103 Key features of the EA model included direct accountability of the chief executive, and right of access, to the responsible Minister. While EAs generally had operational autonomy, the Minister could have direct input.
104 In the New Zealand system, the EA model could be transformed into a 'departmental agency' legally hosted within a department. A precondition was that the agency's outputs or services must be capable of being separately described and accounted for (this could be within the host department's report or a sector board's report). Key features of the model in New Zealand would include:
- each departmental agency would be listed by Order in Council in a new schedule to the SSA. The schedule would name the agency and its host department. Relevant sections in the Act (eg responsibilities of departmental chief executives and heads of executive agencies) would apply to departments and agencies as listed in the schedule
- the head of a departmental agency would be appointed by the State Services Commissioner, in consultation with the chief executive of the host department. This is a critical difference between the New Zealand model and the UK model (where the Minister usually made the appointment). The Commissioner would also be responsible for reviewing the performance of the agency and the head of the agency, in consultation with the chief executive
- the head of a departmental agency would be directly responsible to the appropriate Minister for the agency's activities
- legally, the chief executive of the host department would be the employer of the agency's employees, but must delegate employment decisions to the head of the agency as appropriate.
105 The departmental agency model potentially would have major implications for the PFA (administration of appropriations; accountability and reporting; balance sheet/asset control). The Treasury's PFA review covered these issues.
106 As a technical corollary to the proposed new organisational forms, the definition of "Public Service" in s27 of the Act (i.e. "the Departments specified in Schedule 1") would need to be amended.
Recommendations to Cabinet
107 BPS Cabinet paper three set out the key features of the proposed departmental agency model, including detailed recommendations for the required changes to both the SSA and PFA.
108 The subsequent process of translating Cabinet's decisions into workable, as well as sufficiently clear and detailed legislative provisions, was a collaborative and iterative process between the SSC and Parliamentary Counsel Office. The detail was incorporated in the Introduction Bill mainly in:
- clause 11 (Commissioner's functions as employer in relation to the appointment and performance review of chief executives), in conjunction with clause 28 (the chief executive of the host department must be included on the appointment panel for the chief executive of a departmental agency), clause 33 (the Commissioner must consult the chief executive of the host department before removing a chief executive of a departmental agency), and clause 36 (the Commissioner must consult the chief executive of the host department when reviewing the performance of the departmental agency chief executive)
- clauses 17-19 (new definition of the Public Service, including the meaning of department, departmental agency and host department; relationship between departments and departmental agencies; delegation of Minister's functions or powers; provision for amendments to Schedules 1 and 1A)
- clauses 25-26 (new responsibilities of chief executives, including chief executives of departmental agencies; 'boundary lines' between the responsibilities of the host department's chief executive and the chief executive of a departmental agency; duty to act independently in relation to employees)
- clause 48 (provision for the chief executive of the host department to be deemed by new s59(2) to have delegated to the chief executive of the departmental agency the employee-related rights, duties and powers specified in that subsection). The inclusion of this clause was a key legislative clarification of the departmental agency model, as it would work in the New Zealand context. The provision caters for:
- the departmental agency legally being part of the host department, and its employees legally being employed within the host department, and
- the departmental agency chief executive having de facto employer rights, duties and obligations as part of his or her autonomous responsibilities for the performance of functions or duties or exercise of powers by the departmental agency. Of note, the provisions in SSA s69(b) and 70 (relating to collective employment agreements) continue to be the domain of the chief executive of the host department: these provisions do not transfer to the chief executive of the departmental agency.
Select Committee process
109 Through the Departmental Report process, advisers proposed two technical amendments to the Introduction Bill:
- amend clause 48 [new s59(2)(a)(ii)] so that the requirement in s60 for appointments to be on merit is included among the duties that are deemed to be delegated to the chief executive a departmental agency. Appointments on merit should be part of the package of responsibilities relating to individual employees working in the departmental agency
- amend clause 48 to replace new s59(3) with a provision that would not run the risk of being interpreted as preventing the chief executive of a departmental agency from delegating the rights, duties and powers that are deemed to be delegated to him or her by the chief executive of the host department.
110 The SSA treated Ministerial Advisers in the same way as any other public servant: the same provisions applied without distinction in terms of recruitment, appointment, other employment matters and the application of standards of integrity and conduct.
Role of Ministerial Advisers
111 The term "Ministerial Adviser" covers the quasi-political appointees recruited to support Ministers with policy management and media advice. There were around 100 appointees engaged in political functions in the Beehive. This number included Senior Private Secretaries (including three Chiefs of Staff), Political Advisers, and Communications staff.
112 Legally, Ministerial Advisers are members of the Public Service. They are engaged on events-based employment contracts by the chief executive of the Department of Internal Affairs (DIA). The "events-based" nature of the contract means employment can be terminated for reasons such as the re-allocation of Ministerial responsibilities, the end of the parliamentary term, or a break-down in the relationship between employee and Minister.
113 The role of Ministerial Advisers is varied and complex. Their tasks fall generally into three categories:
- engaging with the political executive
- managing relations between the executive and legislative branches
- connecting the formal policy-making apparatus with external interests 18.
114 There is an undeniably "political" aspect to some of the tasks. Representing the Minister's interests in negotiating political business with other parliamentary parties is indicative of that political aspect. While it is impossible to determine the extent to which Ministerial Advisers as a group behave in ways that are – or are not – politically neutral, it would stretch credibility to suggest that senior advisers, particularly Chiefs of Staff, are not intensely political, or that following an election they could work equally well with, and would be politically acceptable to, new Ministers from a former opposition party.
Application of the Act
115 On occasions, a Minister may suggest or indicate the person he or she wants to be appointed to a particular position, e.g. as Chief of Staff. Instances of Ministerial involvement in appointments raised questions about compliance with the requirements in the Act. Relevant provisions included:
- s33, which requires chief executives to act independently from Ministers in appointing staff
- s56, setting out the 'good employer' provisions, particularly subsection (2)(c) requiring the impartial selection of suitably qualified persons
- s60, which requires chief executives to give preference to the person who is best suited to the position
- s61, which requires a chief executive to notify a vacancy
- s65, which requires a chief executive to put into place a procedure for reviewing appointments made.
116 On the basis that Ministerial involvement in the appointment of Ministerial Advisers may be necessary or desirable from time to time because of the Advisers' role and responsibilities, the SSC considered that the provisions referred to in the preceding paragraph should not be mandatory in the case of those particular Ministerial Advisers whose appointment is made under political influence. The provisions would continue to apply to the rest of the Public Service and would still serve as good practice guidance for application to Ministerial Adviser positions, to the extent possible in any particular case.
117 The SSC's proposal would keep Ministerial Advisers within the Public Service 'fold', while acknowledging the individual circumstances of their roles and responsibilities. Other countries have gone further: in Australia (Federal), Ministerial Advisers are not public servants, but are hired by Ministers under the Members of Parliament (Staff) Act 1984; in the United Kingdom, they are "temporary civil servants" appointed by the relevant Minister under the Civil Service Order in Council 1995. Canadian Ministerial Advisers are often referred to as "exempt staff" because they are exempt from the normal public service hiring processes and regulations.
118 This part of this paper covers the employment-related provisions in the SSA that affect Ministerial Advisers. Part five of this paper covers the application of a code of conduct to Ministerial Advisers. In combination, the respective amendments to the SSA provided a comprehensive package of statutory measures to cater for Ministerial Advisers.
119 On DIA's recommendation to SSC, BPS Cabinet paper six referred to "Core Ministerial Office Staff" rather than Ministerial Advisers. The paper noted that, while DIA is always solicitous to adhere to the relevant provisions (SSA ss33, 56, 60, 61 and 65) to the extent practicable and as a matter of good practice, strict adherence was not always feasible.
120 BPS Cabinet paper six was careful to note that this position is one which would specifically affect all political parties. Accordingly, the paper proposed that the Commissioner be directed to consult with selected parties represented in the House on three specific proposals. Instead, the Cabinet minute [CAB Min (12) 16/10 paragraph 87] directed the Commissioner to consult on the three following decisions:
- that the SSA be amended to the effect that s33 require the chief executive of the department responsible for appointing Core Ministerial Office Staff to take into account the wishes of the Minister
- the SSA be amended to the effect that ss61 and 65 (standard provisions relating to appointments) will not be binding on the chief executive of the department responsible for appointing Core Ministerial Office Staff
- Core Ministerial Office Staff comprise the appointees recruited on events-based employment agreements to support Ministers.
121 All parties represented in the House were selected for the consultation that was led by the SSC 19. No objections were raised to the proposals and they were included in the Bill, as noted in the paper to LEG seeking approval to introduce the Bill.
Legislation drafting process
122 During the legislation drafting process:
- as a matter of PCO drafting, the term "core ministerial office staff" changed to "ministerial staff member" and then to "ministerial staff" in the Introduction Bill
- in addition to not applying s61 (obligation to notify vacancies) and s65 (review of appointments) in relation to ministerial staff, the Introduction Bill also provided for the non application of s60 (appointments on merit) and s64 (notification of appointments) in their regard. The non application of ss60 and 64 was considered to come within the scheme of the policy decisions made by Cabinet.
Select Committee process
123 Several submissions to FEC 20 commented to the effect that the definition of "ministerial staff" in the Introduction Bill was too loose and could be interpreted to include staff who are not appointed by DIA or who work for ministers elsewhere than in the minister's office. The clear policy intent was to apply the provisions solely to the quasi-political appointees employed to work in ministers' offices on events-based employment agreements by the chief executive of DIA. Accordingly, departmental advisers recommended a tighter definition of "ministerial staff" which was inserted into the Bill.
Reorganisation, Redeployment, Redundancy Provisions
124 The provisions in the SSA relating to reorganisations, redeployment and redundancy gave rise to two broad issues. The first was an issue associated with the implementation of structural change that would be resolved by broadening the provision enabling the Commissioner to appoint an acting chief executive. This issue relates to s40 of the SSA and is covered in the discussion relating to Part 3 of the Act concerning chief executives.
125 The second issue concerns streamlining the provisions in the SSA that deal with reorganisations.
The Act: reorganisation provisions
126 There are two places in the SSA that dealt with issues relating to reorganisations in the Public Service and redeployment, redundancies and transfers of employees: sections 30A to 30L in Part 2, and sections 61A and 61B in Part 5.
127 Sections 30A to 30L were added to the SSA by the State Sector Amendment Act 2003. The principal drivers for the amendment were to provide generally for reorganisations in the Public Service, including provisions limiting compensation for redundancy in cases where the redundancy is merely technical because, as a consequence of transfer of functions from one department to another, the employer changes but the employee is offered an equivalent job or chooses to accept another job in the new department. The sections also provided for recognition of changes to contracts and other documents to reflect the change in responsibility for administering the functions.
128 Section 61A was added by the State Sector Amendment Act (No 2) 1989. The principal driver for section 61A was to provide a measure of protection to employees should their position be made redundant because there were too many employees or where their duties would no longer carried out by their department. They could be appointed to positions in another department or be appointed to another position in their department without the need to go through a merit based advertised employment process or have their appointment reviewed.
129 Section 61B was added by the State Sector Amendment Act 1991. The principal driver for section 61B was to ensure employees transferred between departments would be no worse off than they were in their original department: their conditions of employment would be as favourable as those they enjoyed under their employment agreements at the date of transfer.
130 The amendments in sections 30A to 30L and sections 61A and 61B appear to have been of a slightly haphazard nature, designed to deal with different issues as they arose rather than to design a cohesive scheme which would deal with reorganisations and employee redundancies and transfers.
131 The SSA deals with a mix of reorganisations within the Public Service and what happens to employees in cases where:
- there are more employees carrying out certain duties than are necessary for the efficient carrying out of those duties
- the duties that the employee carries out are no longer to be carried out by the department
- there is a reorganisation and the duties the employee carries out are to be carried out by another department or agency.
132 The amendments were designed to ensure employees are treated fairly when their positions become redundant, and to confer on them preferential treatment for appointment to other positions without needing to go through the usual merit based appointment process as required under sections 60, 61 and 65.
133 Before sections 30A to 30L were enacted it was possible for employees to claim redundancy payments when they had not suffered loss of employment, that is, they were appointed to equivalent positions on no less favourable terms and conditions of employment in the Public Service. This was because section 61A required any appointment of an employee covered by that section to be subject to the relevant employment agreement. Many employment agreements did not contain technical redundancy clauses and employees became entitled to a redundancy payment even when they were offered a similar position in the department to which the functions transferred on no less advantageous conditions. The SSA was amended to ensure that employees who were offered such a position could not claim redundancy whether they accepted the offer or not. It was to cover this situation specifically that section 30E was introduced.
134 Section 30C required an Order in Council before sections 30E to 30G could be applied. This was a requirement imposed at the time to ensure employees' rights were protected through Cabinet oversight. The need to obtain an OIC was arguably unnecessarily time consuming and overly regulated, especially as there will be a Minute recording Cabinet's agreement to the transfer of functions.
135 The existence of sections 30A to 30L and sections 61A and 61B led to confusion, given that both groupings of sections had similar effect in relation to employees but were located in different Parts of the SSA. Those using the Act were uncertain as to when and why one scheme should be preferred over the other. Both schemes used slightly different language. While sections 30I to 30L dealt more comprehensively with the circumstances arising when functions transfer (the treatment of employees being a subset of those considerations), sections 61A and 61B were more easy to follow and dealt exclusively with employees.
136 An anomaly existed in section 30D: it permitted sections 30A and 30B to apply in the case of the transfer of employees from Crown entities to Departments, but did not provide for transfers from Departments to Crown entities.
Recommendations to Cabinet
137 BPS Cabinet paper six proposed that the SSA deal with the situations relating to employees in one Part of the Act, Part 5, which is about 'Personnel Provisions' (part 5 of this paper covers those aspects of the amendments to the SSA).
138 The Cabinet paper proposed that matters dealing with reorganisations, such as the making of Orders in Council to establish new departments, references to contracts and documents and other business-related aspects would be best left in Part 2, which is about the 'Public Service'. In relation to those aspects of the amendments to the SSA, it was considered desirable to:
- retain s30A where an OIC would amend Schedule 1 if a department is abolished, its name is to be changed or where a new department is established
- retain s30B which provides that chief executives and employees do not transfer when functions transfer from one department to another despite the sections that provide for the amendment of contracts in such an event (an offer of appointment is required first)
- retain s30H which deals with changes to references to departments following reorganisations
- retain s30I which deals with consequential changes to references to chief executives following reorganisations
- retain s30J dealing with the application of consequential changes to references
- retain s30K which deals with other savings and transitional matters arising from reorganisations within the Public Service
- retain s30L which deals with the effect of reorganisations within the Public Service.
139 BPS Cabinet paper six recommended that:
- s30C (dealing with the application of employee provisions to reorganisations between departments) be deleted as it is not necessary to have Cabinet decisions reinforced by way of OIC in these circumstances
- s30D (dealing with the application of employee provisions to transfers from Crown entities to departments) be transferred to SSA Part 5, with amendments to: remove the requirement for an OIC to give effect to the provisions; and insert a new subsection that applies the provisions to transfers of employees from departments to Crown entities
- s30E (dealing with the restriction of compensation for technical redundancy arising from reorganisations) be repealed along with s61B and replaced with a new section in SSA Part 5
- s30F (dealing with the reappointment of employees following reorganisations) be repealed along with s61A and replaced with a new section in SSA Part 5
- s30G (dealing with the application of collective agreements to employees following reorganisations) be transferred to SSA Part 5.
Legislation drafting process
140 During the legislation drafting process, the following amendments were inserted into the Introduction Bill as technical changes coming within the scope of Cabinet's decisions:
- replace "abolished" and "abolition" wherever they appear in s30 with "disestablished" and "disestablishment" respectively
- after s30A(1) insert subsection (1A) to provide for amendments to Schedule 1A relating to departmental agencies
- insert a reference to "departmental agency" in all relevant places, ie s30A(2); the heading to s30H and in s30H(1),(2),(3) and (4); s30I(1),(2),(3) and (4).
Select Committee process
141 Through the Departmental Report, advisers proposed technical changes to s30H to insert new provisions catering for changes to references to employees of a particular department if that reference is no longer appropriate because the department's name has changed, the department has been disestablished, or functions transfer elsewhere in the Public Service. In those cases the reference would be read as a reference to employees of the department under its new name, or of the new department, or to the employees who perform the relevant functions.
16 Pg. 23, Report of Commission Appointed to Inquire and Report Upon the Unclassified Departments of the Public Service of New Zealand - 1912 (known as "Hunt Report")
17 Better Public Services Advisory Group Report, November 2011, pg 6
18 Eichbaum, Chris, Minding the Minister? Ministerial Advisers in New Zealand Government, December 2007
19 John Ombler, Deputy State Services Commissioner, and Gordon Davis, Chief Legal Advisor
20 Dr Chris Eichbaum and Associate Professor Richard Shaw; Public Service Association; Council of Trade Unions; Institute of Public Administration of New Zealand