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Water Amendment Bill 2008

Schedule 3 Transitional provisions

Part 1 Staff

1  Accrued leave (other than long service leave)

(1)       If:

                     (a)  a person’s employment by the Murray-Darling Basin Commission ended on the commencement of Schedule 1; and

                     (b)  the person became an employee of the Authority on that commencement;

then:

                     (c)  the Murray-Darling Basin Commission is not required to pay the person an amount in relation to accrued leave that the person has not taken as at that commencement; and

                     (d)  the Authority must recognise that accrued leave, in relation to the person’s employment with the Authority, as if it were leave in relation to periods of service with the Authority.

(2)       This item does not apply in relation to long service leave.

(3)       This item applies despite subsection 235(2) of the Workplace Relations Act 1996 .

2  Long service leave

If a person’s employment by the Murray-Darling Basin Commission ended on the commencement of Schedule 1, and the person became an employee of the Authority on that commencement:

                     (a)  sections 11A, 11B and 11C of the Long Service Leave Act 1976 of the Australian Capital Territory do not apply in relation to the person’s employment by the Murray-Darling Basin Commission that ended on that commencement; and

Note:       This means the person’s long service leave entitlements are carried over to the person’s employment by the Authority (and not paid out under section 11A, 11B or 11C of the Long Service Leave Act 1976 of the Australian Capital Territory).

                     (b)  the Long Service Leave (Commonwealth Employees) Act 1976 does not apply in relation to the person’s employment by the Authority that started on that commencement; and

                     (c)  the Long Service Leave Act 1976 of the Australian Capital Territory (the ACT law ) applies in relation to the person’s employment by the Authority that started on that commencement; and

                     (d)  for the purposes of applying the ACT law:

                              (i)  the person’s period of service with the Murray-Darling Basin Commission that ended on that commencement; and

                             (ii)  any other period of service of the person that, immediately before that commencement, was counted as service with the Murray-Darling Basin Commission for the purposes of the application of the ACT law in relation to the person;

                            are taken to be the person’s period of service with the Murray-Darling Basin Commission.

3  Authority staff engaged after the commencement of Schedule 1

(1)       If:

                     (a)  immediately after the commencement of Schedule 1, the Authority is, because of section 585 of the Workplace Relations Act 1996 , bound by a collective agreement (within the meaning of that Act) that, immediately before that commencement, bound the Commission; and

                     (b)  a person is engaged as a member of the Authority staff after that commencement but before the Authority ceases, under that Act, to be bound by the collective agreement; and

                     (c)  the person is not engaged as an SES employee; and

                     (d)  the person is not a transferring employee within the meaning of Part 11 of that Act;

that Part applies in relation to the person as if the person were such a transferring employee in relation to the collective agreement.

(2)       However:

                     (a)  this section does not apply to the extent (if any) that the person’s terms and conditions of employment are provided for under a law of the Commonwealth; and

                     (b)  this section ceases to apply to the person if the person becomes an SES employee of the Authority.



 

Part 2 Appointments etc.

4  Appointment of the Chief Executive

The person who, immediately before the commencement of Schedule 2, was acting as the Authority Chair is taken, from that commencement, to be the Chief Executive as if he or she had been appointed under section 178 of the Water Act 2007 as amended by this Act.

5  Performance of Authority functions etc. before a quorum is appointed

(1)       Until this item ceases to apply under subitem (2):

                     (a)  the Chief Executive may perform any of the functions of the Authority and exercise any of its powers; and

                     (b)  anything done by the Chief Executive in performing those functions or exercising those powers is taken to have been done by the Authority.

(2)       This item ceases to apply:

                     (a)  at the end of the period of 6 months, or such longer period specified in the regulations, after the commencement of Schedule 2; or

                     (b)  when sufficient members of the Authority have been appointed to constitute a quorum of members at a meeting of the Authority;

whichever happens first.

(3)       Regulations for the purposes of paragraph (2)(a) must not specify a period exceeding 12 months.

6  Authorised officers

(1)       After the commencement of Schedule 1, a person who:

                     (a)  is a member of the Authority staff; and

                     (b)  was, immediately before that commencement, a person:

                              (i)  authorised by the Murray-Darling Basin Commission under section 14 of the Murray-Darling Basin Act 1992 of New South Wales; or

                             (ii)  authorised by the Murray-Darling Basin Commission under section 13 of the Murray-Darling Basin Act 1993 of Victoria; or

                            (iii)  authorised by the Murray-Darling Basin Commission under section 13 of the Murray-Darling Basin Act 1993 of South Australia;

                            is taken to be an authorised officer.

(2)       However, unless the person is appointed as an authorised officer under section 217 of the Water Act 2007 as amended by this Act, he or she can only exercise the powers of an authorised officer to the extent that the powers are exercised in relation to the Authority’s functions under Part 1A of that Act.



 

Part 3 Miscellaneous

7  Delegation to the Chief Executive

The Authority is taken, immediately after the commencement of Schedule 1, to have delegated under section 199 of the Water Act 2007 as amended by this Act all of its functions and powers under that Act (other than its functions and powers under Subdivisions E, F and G of Division 1 of Part 2) to the Chief Executive.

8  Indemnity

(1)       The Commonwealth must indemnify:

                     (a)  a person appointed in accordance with subclause 20(1) of the former MDB Agreement as the President; or

                     (b)  a person appointed in accordance with subclause 20(3) of the former MDB Agreement as the Deputy President of the Murray-Darling Basin Commission;

for any liability that he or she incurs for an act or omission of the person, before the commencement of Schedule 1, in the course of performing his or her duties as the President or Deputy President (including, in the case of the Deputy President, his or her duties when acting as the President).

Note:       The Agreement provides for the Basin States to indemnify the Commonwealth for a share of the costs associated with any indemnity covered by this subitem.

(2)       The Commonwealth must indemnify a Commissioner for any liability:

                     (a)  to which subitem (1) does not apply; and

                     (b)  that the Commissioner incurs for an act or omission of the Commissioner, before the commencement of Schedule 1, in the course of performing his or her duties as a Commissioner.

Note:       The Agreement provides for the State in relation to whom the Commissioner was appointed to indemnify the Commonwealth for the costs associated with any indemnity covered by this subitem.

(3)       The Commonwealth must indemnify an officer (within the meaning of the former MDB Agreement) for any liability that the officer incurs for an act or omission of the officer, before the commencement of Schedule 1, in the course of performing his or her duties as an officer.

Note:       The Agreement provides for the Basin States to indemnify the Commonwealth for a share of the costs associated with any indemnity covered by this subitem.

(4)       This item only applies if the liability arose from an act or omission in good faith.

9  Regulations

(1)       Without limiting subsection 256(1) of the Water Act 2007 , regulations under that subsection may provide for:

                     (a)  the transfer of employees from the Murray-Darling Basin Commission to the Authority, including the preservation of some or all of the entitlements and obligations of the employees of the Murray-Darling Basin Commission; or

                     (b)  staffing procedures of the Murray-Darling Basin Commission to apply, or to continue to apply, in relation to:

                              (i)  processes begun before, but not completed by, the time this Part commences; or

                             (ii)  things done by, for or in relation to the Murray-Darling Basin Commission or an employee of the Murray-Darling Basin Commission before that time; or

                     (c)  staffing procedures of the Authority to apply in relation to:

                              (i)  processes begun before, but not completed by, that time; or

                             (ii)  things done by, for or in relation to the Murray-Darling Basin Commission before that time.

(2)       Regulations made for the purposes of this item have effect despite the Public Service Act 1999 .

(3)       In this item:

staffing procedures includes procedures and policies related to:

                     (a)  recruitment, promotion or performance management; or

                     (b)  inefficiency, misconduct, forfeiture of position, fitness for duty or loss of essential qualifications; or

                     (c)  disciplinary action, grievance processes or reviews of or appeals against staffing decisions; or

                     (d)  transfers, resignations or termination of employment; or

                     (e)  leave.