public administration act 2004 instrument of delegation … · on the department’s human...

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PUBLIC ADMINISTRATION ACT 2004

INSTRUMENT OF DELEGATION BY THE SECRETARY TO THE DEPARTMENT OF EDUCATION AND TRAINING

2017/D06

1. PURPOSE

The purpose of this instrument is to delegate the powers and functions specified in Schedule 1 conferred on the Secretary to the Department of Education and Training by the Public Administration Act 2004.

2. AUTHORITY

This instrument is made under the powers conferred by section 18 of the Public Administration Act 2004.

3. REVOCATION

All previous instruments of delegation that delegate any powers and functions are revoked to the extent that they delegate powers or functions delegated under clause 4 of this instrument.

4. DELEGATION

(1) The Secretary to the Department of Education and Training delegates the powers and functions described in the 2nd and 3rd columns of schedule 1 to an employee occupying, or for the time being performing the duties of, the delegate level described in the 4th column of schedule 1.

(2) A delegate may, subject to the limitations and conditions to which the delegation is subject under clause 6, sub-delegate that function to any other person or persons or body if such sub-delegation is permitted under the 5th column of schedule 1.

(3) Schedule 2 identifies the offices nominated at each delegate level.

(4) The delegates are instructed to observe and comply with the limitations and conditions in clause 6 of this instrument.

(5) Any delegation involving the expenditure of department funds is also subject to the

Delegate having the relevant financial delegation to approve that level of expenditure under the Financial Management Act 1994.

(6) The failure of the delegate to observe or comply with a limitation referred to in clause 6 does not, for that reason only, affect the validity of the exercise of the delegation.

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5. DEFINITIONS

In Schedule 1 to this Instrument: “Act’ means the Public Administration Act 2004. “Action” means a decision and includes refusal to take an action. “Department” means the Department of Education and Training. “Employee” means a non-executive employee, unless otherwise stated.

6. GENERAL LIMITATIONS AND CONDITIONS

(1) This Delegation does not prevent the exercise, performance or discharge by the Secretary of a delegated power.

(2) In any particular case, where notice is given to a Delegate by the Secretary that the

Secretary intends to exercise, perform or discharge a delegated power, the Delegate shall not commence, or shall immediately cease, to exercise, discharge or perform the delegated power.

(3) The delegate must:

(a) act in a manner consistent with the general duties and functions of

the Secretary to the Department of Education and Training under the Public Administration Act 2004 and consistent with the objects and purposes of the Public Administration Act 2004;

(b) conform with any specific limitations imposed by the Secretary on the exercise of a delegated power or function including those published on the Department’s human resources website;

(c) not take any action inconsistent with:

i. the Public Administration Act 2004;

ii. any applicable Commonwealth legislation, including any applicable Federal Award or Workplace Agreement;

iii. any applicable Victorian legislation, including any regulations or standards made under the Public Administration Act 2004;

iv. comply with the law on the exercise of delegated functions (in particular with the rules of administrative law);

(d) only exercise the delegation in respect of persons other than the delegate; and

(e) only exercise a delegated power for purposes that are directly related to the delegate’s functions and duties within the Department.

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7. DATE OF EFFECT

This instrument takes effect on and from the day it is made.

Dated this eleventh day of December 2017

GILL CALLISTER Secretary Department of Education and Training

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SCHEDULE 1

PUBLIC ADMINISTRATION ACT 2004

DELEGATION OF POWERS, FUNCTIONS AND DUTIES OF THE SECRETARY TO THE DEPARTMENT OF EDUCATION AND TRAINING

TABLE OF CONTENTS

EMPLOYMENT AND RETIREMENT PS 1.1 Employ persons PS 1.2 PS 1.3 PS 1.4

Administratively transfer employees Transfer or promote employees Assign duties to employees

PS 1.5 Issue lawful instructions PS 1.6 Determine remuneration PS 1.7 Pay allowances PS 1.8 Approve the payment of overtime rates PS 1.9 Suspend employees with pay PS 1.10 Second employees PS 1.11 Authorise periods of leave PROBATION PS 1.12 Extend a period of probation, confirm employment or terminate during

probation. TRANSFER OF EMPLOYEES PS 1.13 Transfer directed by a public service body Head PS 1.14 Approve transfer directed by a public entity Head RESTRICTION OF EMPLOYEES DOING OTHER WORK PS 1.15 Grant permission for a full-time employee in other paid

employment PS 1.16 Grant permission for a full-time employee in any business PS 1.17 Form an opinion about a part-time employee in other paid

employment or any business PS 1.18 Withdraw permission for an employee in other paid

employment or any business TERMINATION OF EMPLOYMENT PS 1.19 Terminate the employment of an employee

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REVIEW OF ACTIONS PS 1.20 Decide whether or not to adopt a report of a review of actions MISCONDUCT AND UNSATISFACTORY PERFORMANCE PS 1.21 Provide employee with opportunity to provide mitigating

circumstances, and commence formal disciplinary process PS 1.22 Provide employee with opportunity to provide mitigating

circumstances, and commence unsatisfactory work performance process

PS 1.23 Direct employee to perform other work, not to speak to others and/or suspend with pay

PS 1.24 Decide to proceed to outcome stage, following receipt of admission by employee

PS 1.25 Advise employee of allegations in writing PS 1.26 Appoint person to conduct investigation PS 1.27 Propose and determine a disciplinary outcome PS 1.28 Advise complainant who is an employee of the outcome of a complaint PS 1.29 Implement an unsatisfactory work performance process GENERAL PS 1.30 Direct the employee to provide a medical certificate

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POWERS AND FUNCTIONS

Delegation Reference No

Public Administration Act Reference Description of Power/Function

Delegate Level and Limitation

Sub-Delegate

PS 1.1 Public Administration Act 2004 Part 3-Public Service Employment Division 4-Employees Section 20(1) –Employment & retirement

Employ as many persons as are required for the exercise of the functions of the Department.

Level 1

No

PS 1.2 Public Administration Act 2004 Part 3-Public Service Employment Division 4-Employees Section 20(1)-Employment & retirement

Administratively transfer an employee to another position within the Department Note: It is Department policy that the administrative transfer of an employee to another Group within the Department must be approved by a Level 1 delegate in the Group from which the employee is being transferred and a Level 1 delegate in the Group to which the employee is being transferred.

Level 1

No

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Sub-Delegate


Transfer or promote an employee to an advertised position within the Department through a merit-based recruitment process

Level 1 Level 2

No


Assign duties to employees consistent with their employment classification, skills and capabilities.

Level 1 Level 2 Level 3

Yes


Issue lawful instructions that must be observed by employees.

Level 1 Level 2 Level 3 Level 4

No

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Sub-Delegate

PS 1.6 Public Administration Act 2004 Part 3-Public Service Employment Division 4-Employees Section 20(1)-Employment & Retirement

Determine (with the approval of the Premier in the case of an executive) the remuneration (including an increase or reduction in remuneration) and other terms and conditions of employment of any individual employee.

Level 1 Level 2

No


Pay allowances, bonuses or gratuities to employees.

Level 1 Level 2

No

Pay allowances for performance of higher duties.

Level 1 Level 2

Yes No

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Sub-Delegate


Approve the payment of overtime rates or grant time in lieu of payment of overtime rates to eligible employees

Level 1 Level 2

No


Suspend employees from duty with pay.

Level 1

No


Second employees to other bodies or take employees on secondment from other bodies.

Level 1 Level 2

No


Authorise periods of leave of absence for employees or make payments to employees in lieu of leave.

Level 1 Level 2

Yes

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Sub-Delegate

PS 1.12 Public Administration Act 2004 Part 3-Public Service Employment Division 4-Employees Section 20(1)-Employment & Retirement Division 8 Termination Section 33(1) – Termination of employment

Extend a period of probation or confirm the employment on completion of any period of probation.


No

Terminate the employment of an employee during the initial probationary period, at the end of the period, or during or after an extension to the initial period due to conduct or performance issues.

Level 1 Level 2

No

PS 1.13 Public Administration Act 2004 Part 3-Public Service Employment Division 6-Transfer of employees Section 28(1)-Transfer directed by public service body Head or public entity

Transfer an employee to another public service body or in a public entity with the approval of the Head of the other public service body or of the public entity concerned on terms and conditions of employment that are no less favourable overall.

Level 1 No

PS 1.14

Public Administration Act 2004 Part3-Public Service Employment Division 6-Transfer of employees Section 28(1A)-Transfer directed by public service body Head or public entity

Approve the transfer of an employee of a public entity to the Department, if a public entity considers it appropriate to do so, on terms and conditions of employment that are no less favourable overall.

Level 1 No

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Sub-Delegate

PS 1.15 Public Administration Act 2004 Part 3-Public Service Employment Division 7-Restriction on Employees Doing Other Work Section 32 (1)(a)

Grant express permission for a full-time employee to engage in any other paid employment.

Level 1 Level 2

Yes

PS 1.16 Public Administration Act 2004 Part 3-Public Service Employment Division 7-Restriction on Employees Doing Other Work Section 32(1)(b)

Grant express permission for a full-time employee to carry on any business, profession or trade

Level 1 Level 2

Yes

PS 1.17 Public Administration Act 2004 Part 3-Public Service Employment Division 7-Restriction on Employees Doing Other Work Section 32 (2)

Form the opinion that a part time employee engaged in other paid employment of carrying on a business, profession or trade is in conflict with the proper performance of the employee’s duties.

Level 1 Level 2

Yes

PS 1.18 Public Administration Act 2004 Part 3-Public Service Employment Division 7-Restriction on Employees Doing Other Work Section 32 (3)

Withdraw by notice in writing permission to an employee to engage in any other paid employment or carry on any business, profession or trade.

Level 1 Level 2

Yes

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Sub-Delegate

PS 1.19 Public Administration Act 2004 Part 3-Public Service Employment Division 8-Termination Section 33(1)-Employment & retirement

Terminate the employment of an employee.

Level 1 Level 2

No


Decide whether or not to adopt a recommendation made in a report of a review of actions.

Level 1 Level 2

Yes

PS 1.21

Public Administration Act 2004 Part 3-Public Service Employment Division 4-Employees Section 20(1)-Employment & retirement

Prior to commencing a formal disciplinary process, provide the employee with an opportunity to provide details of any mitigating circumstances and an opportunity to seek advice, and provide the employee with a copy of the process being followed and explain the purpose of any meeting. Commence a formal disciplinary process.

Level 1 Level 2

Yes

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Sub-Delegate

PS 1.22

Public Administration Act 2004 Part 3-Public Service Employment Division 4-Employees Section 20(1)-Employment & retirement

Prior to commencing an underperformance or unsatisfactory work performance process, provide the employee with an opportunity to provide details of any mitigating circumstances and an opportunity to seek advice, and provide the employee with a copy of the process being followed and explain the purpose of any meeting. Commence an unsatisfactory work performance process.


No


Following the commencement of a disciplinary process for misconduct or unsatisfactory work performance:

direct the employee to immediately perform alternative duties or work at an alternative place of work,

direct the employee to not to speak to any other employee or visit certain places,

suspend the employee with pay.

Level 1 Level 2 Level 3 Level 4 Except that Level 2, Level 3 and Level 4 delegates cannot suspend an employee with pay, and Level 3 and Level 4 delegates cannot direct the employee to work at an alternative place of work.

No

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Sub-Delegate


Decide to proceed to the determination of discipline outcome stage, following receipt of an admission by the employee of the allegations.

Level 1 Level 2

Yes


Advise the employee of the allegations in writing, in relation to a disciplinary process for misconduct or unsatisfactory work performance.


No


Appoint a person to conduct an investigation, in relation to a disciplinary process for misconduct or unsatisfactory work performance.

Level 1 Level 2

Yes

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Sub-Delegate


Propose and determine one or more of the following discipline outcomes:

no action

performance management

formal counselling

formal warning

final warning

assignment of the employee with their agreement to a role at a classification level lower than the employee’s current classification level,

termination of employment, and advise the employee of that outcome and place a copy on the employee’s file.

Level 1 Level 2 Provided that a Level 2 delegate has had no prior personal involvement in the matter.

No


Advise a complainant who is an employee of the outcome of a complaint.


No

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Sub-Delegate


Implement an unsatisfactory work performance process including adopting the following measures:

increased supervision

changes to the employee’s performance plan

mentoring

training and professional development

increased feedback

coaching

counselling

written warnings

decision to refer matter to formal discipline process.


No


Direct the employee to provide a medical certificate where there is a genuine concern about the employee’s capacity to undertake his or her duties.


No

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SCHEDULE 2 OFFICES TO WHICH THE POWERS AND FUNCTIONS ARE DELEGATED OFFICE Level 1 All persons from time to time holding the position of Deputy Secretary in the Department of Education and Training

Chief Executive Officer, Victorian Curriculum and Assessment Authority

Director, Victorian Registration and Qualifications Authority

Senior Chairperson, Merit Protection Boards Level 2 All persons from time to time holding the position of Assistant Deputy Secretary, Chief Financial Officer, Chief Information Officer, Executive Director or Regional Director in the Department of Education and Training. Chief Executive Officer, Victorian School Building Authority Level 3 All persons from time to time holding the position of Director, Area Executive Director or Chief Accountant in the Department of Education and Training. Level 4 All persons from time to time holding positions with management responsibilities in respect to a work area, with direct management responsibility for employees, provided the job classification of the person to whom the office or position applies is not less than VPS Grade 5 or equivalent level in the Department of Education and Training.

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