TONGA

PUBLIC SERVICE (AMENDMENT) ACT 2010

Act No. 34 of 2010
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Arrangement of Sections

Section

2. Section 2 replaced – Exemptions
3. Section 3 amended - Interpretation
4. New sections 4A, 4B and 4C inserted - Powers and Functions of Prime
Minister, Objects, and Principles
5. Section 5 amended - Establishment and operation of Commission
6. Section 6 replaced - Principal functions of the Commission
7. Section 7(3) amended - Powers of the Commission 
8. Section 8 amended - Annual and reporting obligations of Commission 
9. Section 9(1) amended - Delegation of powers 
10. Section 10 amended - Secretary of Commission.
11. Section 13 replaced - Appointment of Heads of Department
12. New sections 13A, 13B, 13C, 13D, 13E and 13F inserted 
13. Section 15 Amended - Redundancy
14. Section 16 replaced - Notice of resignation
15. Section 18 amended - Daily paid worker
16. Section 19 replaced - Code of Conduct
17.  New section 19A inserted - Serious Breach of Code 
18. Section 20 replaced - Candidacy for Legislative Assembly 
19. Section 21(2) amended - Dispute resolution and disciplinary matters 
20. New Part VA inserted - Public Service Tribunal 
21. Section 23 amended - Policy Manual 
22. New sections 23A and 23B inserted
23. Section 26 amended - Transition for Heads of Department 
24. New section 26A - Transition for Commissioners
25. New Schedules
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PUBLIC SERVICE (AMENDMENT) ACT 2010
Act No. 34 of 2010 

AN ACT TO AMEND THE PUBLIC SERVICE ACT

I assent, 
GEORGE TUPOU V,
20th September 2010.

BE IT ENACTED by the King and the Legislative Assembly of Tonga in the Legislature of the Kingdom as follows:

1. Short Title

(1) This Act may be cited as the Public Service (Amendment) Act 2010.

(2) The Public Service Act 2002 is in this Act referred to as the Principal Act.

2. Section 2 replaced – Exemption

Section 2 of the Principal Act is amended by deleting it and replacing it with the following:

"2 Exemptions from this Act

Any person appointed under the legislation listed under Schedule II of this Act shall be exempted from the provisions of this Act.".

3. Section 3 amended - Interpretation 

Section 3 of the Principal Act is amended by -

(a) Deleting the word "Head of Department" and its definition, and substituting it with the following -

""Chief Executive Officer" means any person in charge of the administration of a Ministry, who is employed under a fixed contract of employment under this Act;".

(b) Amending the definition of "Ministry" by deleting the definition and replacing it with the following:

"Ministry" means any ministry, department or office listed in Schedule I of this Act;".

(c) Inserting the following where appropriate –

""relevant Minister" means a Minister of His Majesty's Cabinet who is appointed to be responsible for a Government Ministry; and

"Tribunal" means the Public Service Tribunal established under this Act; and

"Non political" or "Apolitical" means employees performing their duties in an impartial, ethical and professional manner without involving in any political activities including not associating with any association that has a political mandate which is or may be contrary to Government policy;".

4. New sections 4A, 4B and 4C inserted - Powers and Functions of Prime Minister, Objects and Principles

The Principal Act is amended by inserting after section 4 the following new provisions -

"4A. Powers and Functions of the Prime Minister

The powers and functions of the Prime Minister under this section shall be to -

(a) appoint the Commissioners with the consent of Cabinet in accordance with due process;

(b) ensure that the Commissioners comply with this Act; and

(c) report to Cabinet on the activities of the Commission.

4B. Objects of this Act

The objects of this Act are to -

(a) establish an apolitical public service that is effective and efficient in serving the Government and the public;

(b) provide a legal framework for the effective and efficient management and leadership of the Public Service;

(c) define the powers, functions and responsibilities of the Prime Minister, the Commission, relevant Ministers and Chief Executive Officers; and

(d) establish rights and obligations of Public Service employees.

4C. Principles of the Public Service.

The Public Service shall apply the following principles -

(a) The Public Service is apolitical, performing its functions in an impartial, professional and competent manner;

(b) Adopts a merit based employment policy;

(c) Shall be ethical and accountable for its actions to the public in providing satisfactory service;

(d) Makes all decisions in a transparent and merit based manner;

(e) Uses all Government resources responsibly and efficiently;

(f) Is accountable and responsive to the Government in providing honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs;

(g) Has leadership of the highest quality;

(h) Establishes workplace relations that value communication, consultation and co-operation with employees on matters that affect their workplace;

(i) Provides a fair, flexible, safe and rewarding workplace that is free from discrimination and recognizes the diverse background of employees;

(j) Focuses on achieving results and managing performance;

(k) Provides a fair system of review of decisions taken in respect of employees;

(l) When dealing with members of the public and Government, demonstrate at all times respect, integrity, honesty, diligence, and accountability; and

(m) Perform duties at all times in a manner that meets and promotes effectiveness, efficiency and transparency in a non political and impartial manner.".

5. Section 5 amended - Establishment and operation of Commission 

Section 5 of the Principal Act is deleted and substituted with the following:

"5 Establishment and operation of Commission

(1) There shall be established a Public Service Commission.

(2) The Commission shall comprise of 5 members. In the event the Office of a Commissioner is vacated, the Office shall be filled within three consecutive months.

(3) The Prime Minister, with the consent of Cabinet, shall appoint all the members of the Commission, one shall be the Chairman and one shall be the Deputy Chairman.

(4) Subject to subsection (5), a person may be appointed as a Commissioner if he –

(a) has at least five years experience as a senior administrator or held appropriate executive management office for more than five years; and

(b) has special knowledge, experience, or skills relevant to the functions of the Commission.

(5) The following persons shall not be appointed as a Commissioner: 

(a) is an un-discharged bankrupt;

(b) a person who had been convicted of an indictable offence;

(c) a person who is insolvent; or

(d) is an existing public servant or Minister.

(6) The Commissioners shall serve for a term of up to 5 years, and may be re-appointed for another term. A Commissioner may serve a maximum of 2 terms.

(7) The Office of the Commissioner shall be deemed vacated in the occurrence of any of the following –

(i) conviction of an indictable offence;

(ii) declared a bankrupt; 

(iii) death;

(iv) resignation; or

(v) upon termination of appointment.

(8) The Commission may set its own procedures.

(9) The remuneration of the members of the Commission shall be
determined by the Remuneration Authority.

(10) The members of the Commission may serve on a part time basis.

(11) The quorum of the Commission shall be three (3) members, one of whom shall be the Chairman, and in the absence of the Chairman, the Deputy Chairman shall be Chairman.

(12) The Chairman shall be the head of the Commission and shall:

(a) be responsible for the efficient and effective operation of the Commission;

(b) call and attend regular meetings of the Commission; and

(c) preside over the meetings of the Commission.

(13) The Prime Minister, with the consent of Cabinet, by notice in
writing, remove any member of the Commission who –

(a) is unable to perform the duties of a member of the Commission;

(b) gives written notice of his resignation; or

(c) commits serious misconduct.".

6. Section 6 replaced - Principal functions of the Commission 

Section 6 of the Principal Act is deleted and substituted with the following -

"6 Principal Functions of the Commission

The functions of the Commission are to-

(a) develop systems, standards and procedures for the continual performance improvement and performance management of the Public Service;

(b) act as adviser to Government on the management of the Public Service;

(c) consult with the Prime Minister on a regular basis regarding the performance of the Public Service;

(d) advise the Prime Minister on, and monitor the implementation of, public employment policies;

(e) ensure that the Public Service upholds the Public Service Principles;

(f) appoint, promote, confirm, discipline and dismiss employees and resolve employment disputes;

(g) determine the respective designations and other terms and conditions, including the remuneration, for employment for employees subject to the approval of Cabinet;

(h) promote, uphold and ensure adherence to the merit principle in the selection of persons as, and the promotion and transfer of, employees;

(i) determine practices and procedures relating to the recruitment and appointment of persons as employees, the promotion of employees and the employment, transfer, secondment, redeployment, discipline and termination of employment of employees and any other matters relating to human resource management;

(j) consult with and advise Chief Executive Officers in relation to the development and application of appropriate human resource practices and procedures in their respective Ministries;

(k) consult with Chief Executive Officers in relation to the application of public employment policies in their respective Ministries;

(1) co-ordinate training, education and development programs regarding the Public Service in conjunction with Chief Executive Officers;

(m) assist as appropriate Chief Executive Officers in evaluating the performance of employees employed in their Ministries;

(n) consult with Chief Executive Officers on the development of appropriate standards and programs of occupational health and safety;

(o) conduct or cause to be conducted inquiries and investigations into, and reviews of, the management practices of Ministries;

(p) assist as appropriate Chief Executive Officers in the performance of their functions relating to the management of their Ministries;

(q) manage and mitigate disputes and grievances;

(r) regularly consult stakeholders on matters regarding the interests of the employees;

(s) assess or undertake, in consultation with the relevant Minister, an annual performance review of the Chief Executive Officers; and

(t) such other functions as are imposed by or under this or any other Act, or as directed by the Prime Minister.".

7. Section 7(3) amended - Powers of the Commission

Section 7(3) of the Principal Act is amended by deleting "$2,000" and substituting it with "$5,000".

8. Section 8 amended - Annual and reporting obligations of Commission 

Section 8 of the Principal Act is amended by -

(a) deleting subsection (1) and substituting it with:

"The Chairman shall by end of May of each calendar year furnish a report to the Prime Minister relating to the operations of the Commission and on the efficiency and effectiveness of the Public Service."; and

(b) deleting subsection (2).

9. Section 9(1) amended - Delegation of powers

Section 9(1) of the Principal Act is amended by inserting after the word "writing", the words "to a Minister or Chief Executive Officer".

10. Section 10 amended - Secretary of Commission

Section 10 of the Principal Act is amended by –

(a) deleting "Secretary of" in the marginal note and substituting it with "Chief Executive Officer of the";

(b) deleting "Secretary as Head of Department" in subsection (1), and substituting it with "Chief Executive Officer of the Commission"; and

(c) in subsection (2), deleting "Secretary" and substituting it with "Chief Executive Officer".

11 .Section 13 replaced - Appointment of Heads of Department

Section 13 of the Principal Act is deleted and substituted with the following -

"13 Chief Executive Officers

(1) There shall be a Chief Executive Officer(s) for each Ministry.

(2) The Commission shall, after consultation with the relevant Minister, appoint in writing, a person to be the Chief Executive Officer of a Ministry.

(3) An appointment made under subsection (2) shall, as soon as practicable after it is made, be notified in the Gazette.

(4) The Chief Executive Officer shall be employed under a fixed contract of employment for a term of up to 4 years. At the end of the contract, the position shall be re-advertised and filled through the normal process. The present CEO may re-apply and may be re-appointed if successful in the recruitment process.

(5) The Commission shall, after consultation with the relevant Minister, remove a Chief Executive Officer of a Ministry from Office due to non performance or misconduct.".

12. New sections 13A, 13B, 13C, 13D and 13E inserted

The Principal Act is amended by inserting after section 13 the following new provisions -

"13A. Accountability of Chief Executive Officers

(1) A Chief Executive Officer shall be responsible to the relevant Minister for the performance of the Chief Executive Officer's functions under this Act in relation to his Ministry, and for its proper, efficient and economic administration.

(2) A Chief Executive Officer shall comply with all Instructions applicable to the Chief Executive Officer or his Ministry and to all directions given under this Act by the Commission.

13B Functions of Chief Executive Officers

Subject to section 13A (1), a Chief Executive Officer shall have the following functions, to:

(a) devise and implement financial and management plans for his Ministry, in accordance with Government planning and budget process, and monitor the Ministry's financial and administrative performance;

(b) ensure the delivery of public services meets the needs of citizens in a cost efficient, service effective and diligent manner;

(c) uphold and promote the Public Service Principles;

(d) devise organisational structures and operational arrangements which are aligned to the Ministry's strategic plans;

(e) ensure the attainment by the Ministry of any objective set by the relevant Minister in accordance with the approved budget;

(f) assign duties to be performed by each employee in the Ministry;

(g) direct the employees in the Chief Executive Officer's Ministry; 

(h) evaluate and manage the performance of employees in the Ministry;

(i) assign designations to employees in the Ministry and to vary such designations in accordance with designation systems, standards and procedures determined by the Commission;

(j) assist employees in the Ministry to undertake relevant training, education and development programs that meet the Ministry's priority skill needs;

(k) devise and implement programs to ensure that employees have equal opportunities in relation to their employment in accordance with the merit principle;

(l) ensure the application in his Ministry of appropriate health and safety standards and programs;

(m) ensure that public complaints pertaining to service delivery is dealt with in a timely and effective manner; and

(n) such other functions as are imposed on the Chief Executive Officer by or under this or any other Act.

13C Acting Chief Executive Officer

(1) A relevant Minister may in writing, appoint a person to act as Chief Executive Officer of a Ministry during any period, or during all periods, when the Chief Executive Officer is absent from duty or from the country, or during a vacancy in the office.

(2) That the post of Chief Executive Officer may be filled in an Acting capacity for not more than 12 months following which it must be filled at the end of the 12 months.

(3) The relevant Minister may -

(a) with the approval of the Commission determine the terms and conditions, including the remuneration, of a person appointed to act in the office of the Chief Executive Officer; and

(b) at any time, in his absolute discretion, terminate such an appointment.

(4) Where a person appointed to act as a Chief Executive Officer is otherwise employed under a contract of employment, that contract shall be deemed to have been varied for the duration of the period of his appointment under this section to the extent of the determination under subsection (3).

(5) A person appointed to act as a Chief Executive Officer may resign office as Acting Chief Executive Officer in writing delivered to the relevant Minister.

13D. Powers of Chief Executive Officers

A Chief Executive Officer has such powers as are necessary to enable him to carry out his functions, or exercise his powers, under this or any other Act and, subject to this Act.

13E. Delegation by Chief Executive Officers

(1) A Chief Executive Officer may, in writing, delegate any of the Chief Executive Officer's functions or powers under this Act, other than this power of delegation, to an employee employed in, or the holder from time to time of a particular designation or office in, his Ministry.

(2) A function or power delegated under this section, when performed or exercised by the delegate, shall, for the purposes of this Act, be deemed to have been performed or exercised by the Chief Executive Officer.

(3) A delegation under this section does not prevent the performance of a function or the exercise of a power by the Chief Executive Officer.

(4) A delegation can be withdrawn in writing by the Chief Executive Officer. 

(5) Every Ministry shall keep a register of all delegations issued in writing.

13F. Annual Reports by Chief Executive Officer

(1) Subject to subsection (3), a Chief Executive Officer shall prepare for the relevant Minister a report of the operations of the Ministry by the end of May of each calendar year, and any other necessary statements through the year as required by the relevant Minister.

(2) The report under subsection (1) shall contain such information as is necessary to enable an informed assessment of the operations of the Ministry including a comparison of the performance of the Ministry with the relevant corporate plan.

(3) A report under subsection (1) shall, at a minimum, contain information about -

(a) the functions and objectives of the Ministry;

(b) the legislation administered by the Ministry;

(c) the organisation of the Ministry;

(d) the Ministry's operations, performance against objectives, initiatives and achievements in the delivery of services to the community;

(e) the financial planning and performance of the Ministry; and

(f) human resource management programs.

13. Section 15 Amended – Redundancy

Section 15 of the Principal Act is amended by deleting "recommend to Cabinet" and substituting them with "in consultation with the Chief Executive Officer, recommend to the relevant Minister".

14. Section 16 replaced - Notice of resignation

Section 16 of the Principal Act is deleted and substituted with the following -

"16 Notice of resignation

Any employee wishing to resign from the Public Service shall give written notice of his resignation as required by policy.".

15. Section 18 amended - Daily paid worker

Section 18 of the Principal Act is amended by deleting "Head of Department" and replacing it with "Chief Executive Officer".

16. Section 19 replaced - Code of Conduct

Section 19 of the Principal Act is deleted and substituted with the following -

"19 Code of Ethics and Conduct

The Commission shall, with the consent of Cabinet, issue a Code of Ethics and Conduct for the Public Service, which shall be published in the Gazette, and which all employees in the Public Service shall comply with.".

17. New section 19A inserted - Serious Breach of Code

The Principal Act is amended by inserting after section 19 the following new provision –

"19A Serious Breach of Code

(1) An employee may report a serious breach of the Code of Ethics and Conduct to the Chief Executive Officer, if in relation to another employee, or to the Commission, if the report relates to the Chief Executive Officer or an issue that would be inappropriate to report to the relevant Chief Executive Officer.

(2) Upon receipt of a report under subsection (1) the Chief Executive Officer or the Commission shall, unless the report is considered to be scandalous, frivolous or vexatious:

(a) investigate it; or

(b) appoint another person to investigate it.

(3) The Chief Executive Officer or the Commission shall ensure that the findings of an investigation are dealt with as soon as practicable.

(4) A Chief Executive Officer or employee shall not victimise, or discriminate against an employee due to the employee reporting a serious breach, or an alleged serious breach of discipline to a Chief Executive Officer or the Commission.

(5) Any person who contravenes subsection (4) commits an offence and shall be liable on conviction to a fine not exceeding $1,000 or to imprisonment not exceeding one year or both.

(6) The Chief Executive Officer or the Commission shall provide information about the protection available under this section to persons making reports.".

18. Section 20 replaced - Candidacy for Legislative Assembly

Section 20 of the Principal Act is deleted and substituted with the following -

"20 Candidacy for Legislative Assembly, town officer or district officer

A Chief Executive Officer or employee in the Public Service shall resign upon registering as a candidate for election to the Legislative Assembly, the office of town officer or district officer.".

19. Section 21(2) amended - Dispute resolution and disciplinary matters

Section 21(2) of the Principal Act is amended by deleting "Cabinet" and replacing it with "the Public Service Tribunal".

20. New Part VA inserted - Public Service Tribunal

The Principal Act is amended by inserting after Part IV a new Part VA as follows:

"PART VA - PUBLIC SERVICE TRIBUNAL

21A. Establishment of Tribunal

(1) There shall be a Public Service Tribunal established under this Act.

(2) The Tribunal shall hear appeals regarding any decision made by the Commission regarding an employee under this Act or any regulations made under this Act.

21B. Appointment of Tribunal members

(1) The Tribunal shall consist of a Chairman and two other members, of which two shall constitute a quorum.

(2) The Prime Minister shall with the consent of Cabinet, appoint the Chairman of the Tribunal, who shall be a private law practitioner who is a senior counsel with a valid law practitioner's licence.

(3) The Chairman shall hold office, for a term of three years or until he resigns as Chairman by notice in writing to the Prime Minister.

(4) The Prime Minister shall, with the consent of Cabinet, appoint the other members of the Tribunal.

(5) Subject to subsection (6), a person may be appointed as a member if he –

(a) has at least 5 years experience as a senior administrator; or

(b) has special knowledge, experience, or skills relevant to the functions of the Tribunal.

(6) The following persons shall not be appointed as a member -

(a) an un-discharged bankrupt;

(b) a person who had been convicted of an indictable offence;

(c) a person who is insolvent; or

(d) is an existing public servant or Minister.

(7) A member of the Tribunal shall be appointed for a term of three years and shall be eligible for re-appointment.

(8) The Prime Minister may, with the consent of Cabinet, by notice in writing, remove any member who -

(a) is unable to perform the duties of a member of the Tribunal; or

(b) gives written notice of his resignation.

(9) A member who has a personal or any other interest in a matter before the Tribunal shall disclose the fact to the Chairman.

(10) The remuneration of the members of the Tribunal shall be determined by the Remuneration Authority

21C. Appeals

(1) Any person who is dissatisfied with a decision of the Commission may appeal to the Tribunal.

(2) An appeal under subsection (1) -

(a) shall be in writing; and

(b) shall be lodged with the Secretariat of the Tribunal within 14 days after the person making the application has been served with written notice of the Commission's decision.

(3) The Tribunal may, upon application in writing before the due date, extend the time for making an appeal.

21D. Procedures of the Tribunal

The Tribunal may set its own procedures for the conduct of hearings.

21E. Secretariat to the Tribunal

(1) The Prime Minister shall appoint a Secretariat to the Tribunal.

(2) The Secretariat shall -

(a) receive notices of appeal from decisions of the Commission;

(b) liaise with the Chief Executive Officer of the Office of the Commission and the appellant and other relevant party;

(c) organise and attend hearings of the Tribunal;

(d) attend to day to day enquiries; and

(e) such other functions as directed by the Tribunal. 
(3) The Prime Minister's Office shall provide the Secretariat.

21F. Decisions of the Tribunal

(1) The Tribunal may make an order to affirm, vary, or set aside the Commission's decision.

(2) The Tribunal shall -

(a) make a written decision on an appeal as soon as practicable after the hearing has been completed; and

(b) cause a copy of its decision to be served on each party to the proceeding within 7 days of the decision.

(3) A decision referred to in subsection (2) shall include the Tribunal's reasons for the decision and its findings on material questions of fact and reference to the evidence or other material on which those findings were based.

(4) Subject to subsection (6), all decisions of the Tribunal shall be public records.

(5) An authenticated copy of the decision shall be received in court proceedings in accordance with section 49 of the Evidence Act (Cap. 15).

(6) In releasing information or allowing access to information under subsection (4), the Tribunal shall ensure that -

(a) the identity and affairs of the applicant and any other person concerned shall be concealed; and

(b) confidential information are not disclosed.".

21. Section 23 amended - Policy Manual

Section 23 of the Principal Act is amended by deleting the words "and issue instructions which shall be binding on all employees".

22. New sections 23A and 23B inserted

The Principal Act is amended by inserting after section 23 the following new provisions –

"23A Employment instructions

(1) The Commission may, by notice in the Gazette, issue Employment Instructions, not inconsistent with this Act, relating to -

(a) the functions and powers of the Commission under this Act; or

(b) the good management of the Public Service.

(2) Without limiting the generality of subsection (1), Employment Instructions may provide the implementation instructions of policies.

23B. Leadership Code

The Commission shall publish in the Gazette a Leadership Code to be enforced in the Public Service.".

23. Section 26 amended - Transition for Heads of Department

Section 26 of the Principal Act is amended by –

(a) deleting "Head of Department" in the marginal note and substituting it with "Chief Executive Officer";

(b) deleting subsection (1) and substituting it with:

"Every Chief Executive Officer who was appointed before the coming into force of the Public Service (Amendment) Act 2010 shall continue in such employment for the remainder of the term of his appointment and may be reappointed in accordance with this Act.";

(c) deleting subsections (2) and (3).

24. New Section 26A – Transition for Commissioners

The Principal Act is amended by inserting after section 26 the following new provision -

"26A Transition for Commissioners

Any Commissioner who was appointed before the coming into force of the Public Service (Amendment) Act 2010 shall continue in office for the remainder of the term of his appointment, and may be re-appointed in accordance with this Act.".

25. New Schedules

The Schedule to the Principal Act is deleted and substituted with the following –

"SCHEDULE I

Ministries, Departments and Offices in the Public Service

1. Prime Minister's Office
2. Ministry of Finance and National Planning
3. Ministry of Education, Women's Affairs and Culture
4. Ministry of Lands, Survey and Natural Resources
5. Ministry of Transport
6. Ministry of Agriculture and Forestry, Food and Fisheries 
7. Ministry of Environment and Climate Change
8. Ministry of Works
9. Ministry of Labour, Commerce and Industries 
10. Ministry of Health
11. Ministry of Foreign Affairs and Defence
12. Ministry of Training, Employment, Youth and Sports 
13. Ministry of Justice
14. Crown Law Department
15. Office of the Commissioner for Public Relations 
16. Palace Office
17. Audit Office
18. Ministry of Information and Communication
19. Ministry of Tourism
20. Ministry of Revenue
21. Ministry of Public Enterprises
22. Office of the Public Service Commission
23. Office of the Governor of Ha' apai
24. Office of the Governor of Vava'u

SCHEDULE II

Appointments exempted from the Public Service Act

1. Ministers appointed under the Constitution
2. Governors appointed under the Constitution
3. Judges of the Court of Appeal and Supreme Court appointed under the Constitution
4 Judges of the Land Court appointed under the Land Act
5. Magistrates appointed under the Magistrate's Court Act
6. Attorney General appointed under the Constitution
7. Auditor General appointed under the Public Audit Act
8. Commissioner for Public Relations appointed under the Commissioner
for Public Relations Act 2001
9. Commissioners appointed under the Public Service Act 2002 
10. Royal Commissions Act
11. Police Act
12. Prisons Act
13. Tonga Defence Services Act".

Passed by the Legislative Assembly on this 2nd day of September 2010
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