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Executive Service model contract of employment - Appendix 5 - 4

By Doris Hudson,2014-05-07 12:15
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Executive Service model contract of employment - Appendix 5 - 4

    Appendix 5 - 4

Model contract

    NSW Government

    NSW CHIEF AND SENIOR EXECUTIVE SERVICE

    Model Contract of Employment

? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 1

    Contract of Employment

    This Contract of Employment is made

    on the day of 20

between

    Name Designation

    hereinafter referred to as "the employer"

    o

    f

    show address for service of notices

and

    hereinafter referred to as "the executive officer"

    o

    f

    show address for service of notices

    ? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 2

Contract Operation and Application

    1. This Contract constitutes a contract of employment for the purposes of s.

    69 of the Act, and governs the employment of the employee while

    employed in the position referred to in clause 4. The executive officer is

    not appointed by, nor is the executive officer’s term of office fixed by this

    contract, except in circumstances where s. 69(4) of the Act applies.

    2. The parties acknowledge that the employment of the employee is affected by Acts

    of Parliament and Regulations made under such Acts, including the Act, Public

    Sector Executives Superannuation Act 1989 and the Statutory and Other Offices

    Remuneration Act 1975. The NSW Senior Executive Service Guidelines,

    Premier’s Memoranda, Department of Premier and Cabinet and Public

    Employment Office Circulars and other Government directions contain information

    relevant to the executive officer’s employment.

    Interpretation

    3. In this Contract, unless otherwise stated or the context otherwise indicates:

    "the Act" - means the New South Wales Public Sector Employment and Management Act 2002;

    “Chief Executive Officer” - means a person holding a position referred to in Schedule 1 to the Act;

"Code of Conduct for Public Sector Executives" means the document entitled "Code of

    Conduct for Public Sector Executives" as published by the Public Sector Workforce Office and as amended from time to time;

"Employer" - means the person who is, for the time being, the employer within the

    meaning of Part 3.1 of the Act;

    "Employment Benefit Cost" - in relation to an employment benefit provided to the executive officer under the Contract, means the cost to the employer of providing that benefit, being

    the approved amount of that cost, or the amount of that cost calculated in the approved

    manner, within the meaning of Division 4 of Part 3.1 of the Act;

Executive Officer” - means a chief executive officer or a senior executive officer;

"Month" - means a calendar month;

    “Performance Agreement” - means the agreement attached to Schedule B;

    "Performance Criteria" - means the performance criteria to which a performance review is to have regard;

    "Performance Review" - means a review of the executive officer’s performance as referred to in s.71 of the Act;

? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 3

    "the position" - means the position referred to in clause 4 of the Contract;

“Senior Executive Officer” - means a person holding a position as defined by s.65 of the

    Act;

    "the Tribunal"- means the Statutory and Other Offices Remuneration Tribunal established by the Statutory and Other Offices Remuneration Act 1975.

Expressions corresponding to expressions that are defined in Part 3.1 of the Act have

    those meanings.

    Information about Appointment

    4. The position to which this Contract applies is:

    (Title of the Position)

     (An executive position within the meaning of Part 3.1 of the Act.)

    5. The period for which the executive officer is to hold the position (unless

    sooner terminated) is the period of: Duties and Obligations of the Executive Officer

    6. During the term of the appointment, the executive officer must carry out

    any duties imposed by law with respect to the position and the additional

    duties and obligations specified in Schedule A of the Contract.

    7. The duties specified in Schedule A may be varied by a further contract

    between the executive officer and the employer.

    8. The executive officer agrees to comply with the Code of Conduct for Public Sector

    Executives. Performance Agreement and Review

    9. The Act provides for an executive officer’s performance to be reviewed, at

    least annually, by the executive officer’s employer or some officer

    nominated by that employer. Any such review is to have regard to the

    agreed performance criteria for the position and any other relevant matter.

    10. The performance criteria specified in Schedule B may be varied by a

    further contract between the executive officer and the employer.

    11. The employer must give the officer at least 7 days notice in writing that a

    performance review is to be conducted.

    12. Within one month of the conclusion of a performance review, or as soon

    as is practicable thereafter, the employer will prepare and send to the

    executive officer a written statement which sets out: ? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 4

    a. the employer's conclusions about the executive officer’s

    performance during the period for which performance was reviewed; b. any proposal by the employer to vary the performance criteria as a

    consequence of the performance review; and c. any directions or recommendations made by the employer to the executive

    officer in relation to the executive officer's future performance of the duties

    of the position.

    13. The employer undertakes that if a performance review is not held within

    the time contemplated by s.71 of the Act, this will not operate to the

    prejudice of the executive officer in any decision made by the employer in

    relation to the executive officer, unless the failure to hold the performance

    review within that time was the fault of the executive officer.

    14. The employer and executive officer must, as soon as possible after the executive

    officer receives the written statement referred to in clause 12, attempt to come to

    agreement on any proposal by the employer to vary the performance criteria and

    on any recommendations by the employer as to the future performance of the

    duties of the position by the executive officer.

    Remuneration of the Executive

    15. The monetary remuneration and employment benefits for the executive

    officer undertaking the duties and responsibilities of the position, are

    specified in Schedule C. The total amount of the monetary remuneration

    and the employment benefit cost of the benefits must equal the amount of

    the remuneration package determined by the Tribunal and this amount

    shall be specified in Schedule C.

    16. Where the remuneration package has been determined by the Tribunal as

    a range of amounts, the total amount referred to in clause 15 is the

    amount nominated in Schedule C for the purpose of s.63(3)(a) of the Act.

    a. The executive officer may request in writing at any time that the monetary

    remuneration and the employment benefits specified in Schedule C be

    varied and the employer shall not unreasonably refuse that request. b. For the purposes of the preceding paragraph, it shall not be unreasonable

    for the employer to refuse a request where it is made sooner than 6 months

    after an earlier agreement by the parties relating to the amount of the

    monetary remuneration and the employment benefits to be provided to the

    executive officer . Despite this, where a request is made only to take

    account of a variation in the executive officer’s remuneration package as a

    result of a determination by the Tribunal, the employer shall not refuse such

    a request.

    c. Any variation to the monetary remuneration and the employment

    benefits specified in Schedule C may be by a further contract

    between the executive officer and the employer.

    Right of Return

    ? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 5

17. Where the employment benefits specified in Schedule C include the right

    of return to the public sector under Schedule 4 of the Act, the officer:

    a. warrants that the officer is entitled under Schedule 4 of the Act to elect to

    retain a right of return to the public sector; and

    b. makes that election.

    General Provisions as to the Operation of the Contract

18. A reference in the contract to a Schedule refers to the Schedule then in

    force, and applies whether or not the Schedule has been physically

    attached to all or any counterparts of the Contract.

    19. A reference in the Contract to the singular number includes the plural and

    vice versa.

    20. The headings used in the Contract are for convenience of reference only,

    and are not intended to be resorted to for the interpretation of the Contract. 21. Where the employer lawfully authorises a person to act as his or her

    delegate and carry out any of the employer's duties, obligations or actions

    required to be carried out under the Contract, the Contract shall be

    construed as if any relevant reference to the employer included a

    reference to that delegate.

    22. This Contract supersedes and replaces all other contracts, understandings

    or arrangements made between the executive officer and the employer

    prior to the execution of this Contract relating to the employment of the

    executive officer in the position.

    23. This Contract shall be governed by the law of New South Wales and shall

    be deemed to be made in New South Wales.

    24. Any notice or other communication under or relating to the Contract of

    employment must be in writing and is served by or on a party-

    a. if delivered personally;

    b. if left at or sent by post to:

    (i) the address for service of notices as stipulated in this

    Contract (or as subsequently varied from time to time by

    notice under this Contract); or

    (ii) the last known residential or business address of the person

    to be served; or

    c. if sent by Facsimile transmission to the fax number (if any) stated in

    this Contract (or as subsequently varied from time to time by notice

    under this Contract).

    25. Any written notice or other communication under or relating to the Contract

    of employment is taken to be served:

    ? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 6

    a. where served by express post at an address within New South

    Wales in the Express Post Network, on the next business day after

    it is posted;

    b. where served by post otherwise in the ordinary course of postage,

    as set down in Australia Post’s delivery standards and;

    c. where sent by facsimile, on the next business day after it is sent.

    26. The executive officer will not engage in any paid employment outside the

    duties of the executive officer’s position without the written consent of the

    employer.

    27. During employment the executive officer will not disclose without lawful authority:

    a. any secret or confidential information acquired by him or her as a

    consequence of his or her employment;

    b. any secret or confidential information acquired by him or her from any

    document to which he or she has access as a consequence of his or

    her employment.

    28. Upon termination of employment the executive officer will not without

    lawful authority, disclose or make any use of any confidential or secret

    information acquired by the executive officer as a consequence of his or

    her employment by the employer.

    29. This Contract and the schedules hereto (excluding the fact and term of the

    appointment as set out in clauses 2 & 3, and excluding Schedule B, the

    Performance Agreement) shall, except as required by law or as required

    for the proper negotiation, interpretation or application of this Contract, be

    treated by both parties as confidential and shall in no way be disclosed,

    published or circulated to any person except with the prior written

    agreement of both parties.

    Signed by the employer (Name and designation)

on the day of 20

in the presence of

    * Signed by (the executive officer)

    ? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 7

    on the day of 20

    in the presence of

    * Note: By signing this contract, the executive officer is agreeing to accept accountability for

    the duties and responsibilities included in Schedule A.

    ? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 8

    Schedule A - Duties and Responsibilities

This Schedule operates from

on the day of 20

The duties of the position additional to any statutory duties are as follows:

    For the Chief Executive

    Responsible for:

1. the general conduct and the effective, efficient and economical

    management of the functions and activities of the agency; 2. behaving ethically and maintaining high ethical standards; 3. the equitable management of staff of the agency.

(Note: Agency to complete)

    In addition you are expected to:

    ? provide the Minister with frank advice that is relevant, impartial,

    accurate and timely;

    ? keep the Minister fully informed on critical or agreed matters within the

    agency;

    ? ensure ethical work practices within the agency and ensure all staff

    receive ongoing training in ethics;

    ? ensure employees are aware of the procedures for making protected

    disclosures and of the protection provided by the Protected Disclosures

    Act 1994.

    ? manage key interfaces affecting the agency (eg major customer groups,

    stakeholders, other agencies);

    ? ensure that actions and policies of the agency accord with the strategic

    intent of the Government and are not in conflict with those of other

    organisations;

    ? ensure compliance with relevant legislative requirements;

    ? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 9

    ? ensure that good employment principles operate within the agency,

    that people management, recruitment, training and development is

    based on employment equity principles, and that Equal Employment

    Opportunity outcomes are being met;

    ? increase the representation of Equal Employment Opportunity Groups

    through recruitment and appointment action;

    ? maintain effective corporate and human resource planning within the

    agency;

    ? maintain the agency’s performance management system covering all

    employees;

    ? ensure satisfactory introduction and operation of internal controls,

    reporting systems (including protected disclosures), grievance

    procedures, the documentation of decision-making and sound financial

    management.

    ? develop agency procedures to ensure 1) the agency code of conduct is

    periodically reviewed so that it adequately reflects specific

    organisational values and requirements and 2) that each officer reads

    and is familiar with the code’s content.

    For the Senior Executive

    Responsible for:

    ? behaving ethically and maintaining high ethical standards;

    ? ensuring employees are aware of the procedures for making protected

    disclosures and of the protection provided by the Protected Disclosures Act

    1994.

    ? improving service delivery and productivity; ? ensuring that people management, recruitment, training and development are

    based on employment equity principles; ? increasing the representation of Equal Employment Opportunity Groups

    through recruitment and appointment action; ? completing designated action plans in the business plan; etc.

    Note: the above “ • ” points for Chief and Senior Executives provide examples only, which may be

    varied depending on the requirements of the employer.

    ? Department of Premier and Cabinet 2008 Appendices to Chapter 5 Page 10

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