NSW Health:

Those employed by NSW Health including nurses and doctors, are public sector employees. Their employment is primarily regulated by an employment contract, Award and NSW Health Code of Conduct and State legislation including the Health Services Act 1997 (“the Act”).

An employment contract sets out the terms of employment including the job title, job description, salary and other entitlements, duties of confidentiality and privacy and other obligations of the employee such as to act in the best interests of patients and to comply with the Code of Conduct.

There are many different Awards that regulate the entitlements of employees of NSW Health, including the NSW Health Service Health Professionals (State) Award 2018, the Health Employees’ Conditions of Employment (State) Awards 2018 and the Public Health System Nurses’ and Midwives’ (State) Award 2018. These Awards specify the grading of various roles covered under the Award, the salary structure of employees, penalty rates, allowances payable, leave entitlements, rostering, termination of employment, and trade union activities. NSW Health will be legally required to comply with the provisions prescribed by the applicable Awards when managing conditions of employment. If there has been a contravention of the Award, the employee may be entitled to make a claim against NSW Health.

The Code of Conduct defines the standards of ethical and professional conduct required of those employed by NSW Health, the outcomes they strive to achieve and the behaviour that is unacceptable. The aim of the Code of Conduct is to provide a framework to promote ethical daily conduct and decision making. Included in the Code of Conduct is the manner in which unacceptable behaviour is to be managed. If there is a breach of the Code of Conduct, the employee may be counselled, performance managed, face formal disciplinary action, be referred to the registration board relevant to their profession, refer the employee to another relevant Government agency such as the ICCC or be dismissed. Most employees are concerned about ensuring that during any investigations into allegations of misconduct, that they are provided with an opportunity for response and that these be taken into consideration when determining whether the allegations have been sustained.

One of the main provisions of the Act relates to the transfer of staff within the NSW Health Service on the ground of redundancy. Under this provision an employee can be transferred to another position if the Health Secretary is satisfied that the number of employees in the original department exceeds the number necessary for effective, efficient and economical management of the functions of the organisation, or there is an unsuitable mix of skills in the organisation for the effective, efficient and economical management of the functions of the organisation and they are satisfied the employee possess the essential qualifications for the other position, and the affiliated health organisation has been consulted. If the employee refuses the transfer without a valid reason, they may be made dismissed, without compensation, although the Industrial Relations Act 1996 may provide statutory rights to make an application for unfair dismissal to the NSW Industrial Relations Commission.

The Industrial Relations Act provides public sector employees with protection from being dismissed in circumstances that are harsh, unjust or unreasonable. This dismissal is legally defined as unfair dismissal. Certain employees are not covered by these unfair dismissal provisions, including those who earn an annual income exceeding the threshold prescribed by the regulations, and casual or probationary employees, to name but a few.

Please contact our firm by telephone on (02) 9233 4048 or send an email to info@navado.com.au and arrange an appointment if you wish to speak to one of our solicitors. 

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