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Code of Ethics and Conduct for NESA employees

Preliminary

Purpose

The purpose of the Code is to identify mandatory requirements and best practice conduct for NESA employees which is consistent with Part 2 of the GSE Act (the Ethical framework for the government sector).

The Ethical Framework is to be demonstrated by employees in their working relations with other government sector employees, clients and customers, stakeholders and the government of the day.

The Code applies at all times when NESA employees are acting in the course of, or in connection with, NSW government sector employment.

The Code also specifies actions to be taken if there are breaches, or allegations of breaches, of the Code.

Relationship to the Public Service Commission’s Code

This Code applies to NSW government sector employees, irrespective of the Department or agency for which they are working. Agency heads may choose to extend this Code’s application to contractors and volunteers engaged by the agency, if appropriate.

NESA has supplemented the PSC’s The Code of Ethics and Conduct for NSW government sector employees with requirements and advice specific to the NESA’ operating environment and business risks.

This material has been incorporated into this Code to form a single consolidated document.

Note that the NESA Code of Conduct and Ethics that applied immediately before this one included provisions about the acceptance of gifts or benefits. The relevant information is now contained in a separate document, NESA Managing Gifts and Benefits Policy published simultaneously with this new Code.

Legislation

A principle of the Ethical Framework is to uphold the law. The law includes, but is not limited to:

  • Government Sector Employment Act 2013 (‘GSE Act) sections 25 and 30 (regarding the general conduct and management of organisations in accordance with the core values) and section 63 (regarding workforce diversity and the integration of workforce diversity into agency workforce planning)
  • Public Finance and Audit Act 1983 sections 11 and 45C (regarding the system of internal control over the financial and related operations of agencies)
  • Anti-Discrimination Act 1977 (regarding equal employment opportunity and equal access to services)
  • Government Information (Public Access) Act 2009 (regarding public access arrangements to agency information)
  • Public Interest Disclosures Act 1994 (regarding receiving, assessing and dealing with public interest disclosures)
  • Independent Commission Against Corruption Act 1988 (regarding reporting of any matter suspected on reasonable grounds to involve corrupt conduct and to comply with any requirement or direction of the ICAC in relation to a referral of matters by the ICAC)
  • Government Advertising Act 2011 (regarding requirements to issue advertising compliance certificates
  • Ombudsman Act 1974 (regarding obligations to cooperate with investigations by the Ombudsman and obligations relating to reportable conduct concerning child protection matters)
  • State Records Act 1998 (regarding the creation, management and protection of agency records and public access to those records)
  • Children and Young Persons (Care and Protection) Act 1998 (regarding obligations relating to the care and protection of, and provision of services to, children and young persons, including obligations relating to exchange of information and co- ordination of services between agencies)
  • Child Protection (Working with Children) Act 2012 (regarding obligations to obtain checks and clearances for employees engaged in child-related work)
  • Crimes Act 1900 (regarding criminal offences).

The Ethical framework for the government sector

Introduction

Part 2 of the GSE Act establishes the Ethical framework for the government sector.

The objective, core values and principles of the Ethical Framework are to be demonstrated in the conduct of all government sector employees and heads of government sector agencies.

Ethical framework for the government sector

Objective

  • Recognise the role of the government sector in preserving the public interest, defending public value and adding professional quality and value to the commitments of the Government of the day
  • Establish an ethical framework for a merit-based, apolitical and professional government sector that implements the decisions of the Government of the day.

Core values

The core values for the government sector and the principles that guide their implementation are:

Integrity

  • Consider people equally without prejudice or favour
  • Act professionally with honesty, consistency and impartiality
  • Take responsibility for situations, showing leadership and courage
  • Place the public interest over personal interest.

Trust

  • Appreciate difference and welcome learning from others
  • Build relationships based on mutual respect
  • Uphold the law, institutions of government and democratic principles
  • Communicate intentions clearly and invite teamwork and collaboration
  • Provide apolitical and non-partisan advice.

Service

  • Provide services fairly with a focus on customer needs
  • Be flexible, innovative and reliable in service delivery
  • Engage with the not-for-profit and business sectors to develop and implement service solutions
  • Focus on quality while maximising service delivery.

Accountability

  • Recruit and promote employees on merit
  • Take responsibility for decisions and actions
  • Provide transparency to enable public scrutiny
  • Observe standards for safety
  • Be fiscally responsible and focus on efficient, effective and prudent use of resources.

General provisions

The Public Service Commissioner has the function of promoting and maintaining the government sector core  values.

There is no hierarchy among the core values and each is of equal importance.

Nothing in the Ethical Framework gives rise to, or can be taken into account in, any civil cause of action.

Mandatory conduct

Note: This Part of the Code sets out the mandatory provisions of the Code that apply to all government sector employees and heads of government sector agencies.

All NESA employees have responsibilities to:

  • Demonstrate high levels of personal conduct consistent with the Ethical Framework
  • Seek assistance when unsure about how to implement the Ethical Framework
  • Promote the implementation of the Ethical Framework to their colleagues
  • Report possible breaches of the Ethical Framework to relevant officers.

All managers and executives have the responsibilities of NESA employees (above), and in addition have responsibilities to:

  • Lead and promote implementation of the Ethical Framework in their workplace
  • Lead and promote implementation of the Ethical Framework in NESA
  • Ensure the general conduct and management of the functions and activities of NESA re in accordance with the core values of the Ethical Framework
  • Oversee the implementation of the Ethical Framework and make improvements where necessary

When is the Ethical Framework to be applied?

The Ethical Framework is to be applied at all times in working relations with colleagues, clients and
customers, stakeholders and the government of the day.

These working relations are depicted in the diagram below:

diagram illustrating the ethical framework

Diagram explaining how individuals engage with the following four different groups; Government of the day: how you advise on, and respond to, government policies, your Minister’s priorities etc. Stakeholders: how you work with stakeholders outside the public sector Customers and clients: how you treat your customers, clients and members of the public Colleagues: how you work with your public sector colleagues.

How do I act in the public interest?

You should treat all people with whom you have contact in the course of your work:

  • Equally without prejudice or favour
  • With honesty, consistency and impartiality.

You should also, in the course of your work:

  • Place the public interest over your personal interest
  • Uphold the law, institutions of government and democratic principles
  • Provide apolitical and non-partisan advice
  • Provide transparency to enable public scrutiny
  • Be fiscally responsible and focus on efficient, effective and prudent use of resources.

Acting in the public interest requires leadership, courage and innovation to develop practical recommendations and actions that are consistent with the core values and will help the Government of the day achieve its objectives. Acting in ways that are expedient or convenient, but which do not promote the integrity, trust, service and accountability of the public sector, is not in the public interest.

How do I manage conflicts of interests?

Sometimes you may find that your private interests make it difficult for you to perform your duties impartially in the public interest. This may happen when there is a direct conflict between your current duties and responsibilities and your private interests (an ‘actual’ conflict of interests); when a person could reasonably perceive that your private interests are likely to improperly influence the performance of your official duties, whether or not this is in fact the case (a ‘reasonably perceived’ conflict of interests); or when you have a private interest that could conflict with your official duties in the future (a ‘potential’ conflict of interests). Actions you should take include:

  • Always disclose actual, potential or reasonably perceived conflicts of interests to your manager as soon as you become aware of the conflict
  • Where a conflict of interests occurs it should always be resolved in favour of the public interest, rather than your own.

To resolve any conflicts of interests that occur, or could occur, a range of options is available depending on the significance of the conflict. These options include, but are not limited to:

(for further detail on how to manage actual, potential or reasonably perceived conflicts of interests, see the NSW Ombudsman Fact Sheet Conflicts of Interests)

  • Informing likely affected persons that a disclosure has been made, giving details and the agency’s view that there is no actual conflict or the potential for conflict is minimal
  • Appointing further persons to a panel/committee/ team to minimise the actual or perceived influence or involvement of the person with the actual or reasonably perceived conflict
  • Where the persons likely to be concerned about a potential, actual or reasonably perceived conflict are identifiable, seeking their views as to whether they object to the person having any, or any further, involvement in the matter
  • Restricting the access of the person to relevant information that is sensitive, confidential or secret
  • Directing the person to behave at all times in ways that are consistent with their agency’s responsibilities and functions
  • Removing the person from duties or from responsibility to make decisions in relation to which the ‘conflict’ arises and reallocating those duties to another employee (who is not supervised by the person with the ‘conflict’)
  • Persons with a ‘conflict’ who are members of boards or committees absenting themselves from or not taking part in any debate or voting on the issue.

As a senior executive, how do I declare private interests?

A senior executive (including an acting senior executive) must make a written declaration of private financial, business, personal or other interests or relationships that have the potential to influence, or could be perceived to influence, decisions made or advice given by the senior executive.

NESA senior executives must also identify immediate family members or friends who will present for HSC examinations in the 12 months from when they make their declaration.

Where a senior executive has no such private interests to declare, s/he must declare a “nil return”.

After a senior executive makes an initial declaration, a fresh declaration must be made:

  • As soon as practicable, following any relevant change in the senior executive’s private interests
  • As soon as practicable, following the senior executive’s assignment to a new role or responsibility
  • At least annually.

A template for making private interests declarations is available on the NSW Public Service Commission’s Employment portal.

A senior executive must provide their declaration to the Chief Executive Officer via the relevant Executive Director.

The Chief Executive Officer must provide their declaration to the Secretary of the Department of Premier and Cabinet.

A person to whom a declaration is to be provided is responsible for ensuring:

  • Senior executives complete declarations
  • Handling and storage of declarations complies with the requirements of the Privacy and Personal Information Protection Act 1998.

How do I treat colleagues, customers, clients and stakeholders?

All government sector employees are to treat their colleagues, customers, clients and stakeholders in their agency and in other agencies, and the government of the day by:

  • Considering people equally without prejudice or favour
  • Acting professionally with honesty, consistency and impartiality
  • Taking responsibility for situations, showing leadership and courage
  • Placing the public interest over personal interest
  • Appreciating difference and welcoming learning from others
  • Building relationships based on mutual respect
  • Upholding the law, institutions of government and democratic principles
  • Communicating intentions clearly and inviting teamwork and collaboration
  • Providing apolitical and non-partisan advice
  • Providing services fairly with a focus on customer needs
  • Being flexible, innovative and reliable in service delivery
  • Engaging with the not-for-profit and business sectors to develop and implement service solutions
  • Focusing on quality while maximising service delivery
  • Recruiting and promoting employees on merit
  • Taking responsibility for decisions and actions
  • Providing transparency to enable public scrutiny
  • Observing standards for safety
  • Being fiscally responsible and focus on efficient, effective and prudent use of resources.

How should I interact with lobbyists?

All government sector employees and heads of government sector agencies must comply with Premier’s Memorandum M2014-13- NSW Lobbyists Code of Conduct published on the Department of Premier and Cabinet’s website, as amended from time to time.

How do I use public resources appropriately?

You must use public resources in an efficient, effective and prudent way. Never use public resources – money, property, equipment or consumables – for your personal benefit, or for an unauthorised purpose.

If you are responsible for receiving, spending or accounting for money, ensure you know, understand and comply with the requirements of the Public Finance and Audit Act 1983, the Public Works and Procurement Act 1912 and the Government Advertising Act 2011.

Behaviour contrary to the Code

The effect of behaviour that is contrary to the Code

Behaviour contrary to this Code and to the Ethical framework for the government sector can bring individual employees into disrepute, undermine productive working relationships in the workplace, hinder customer service delivery, and damage public trust in your agency or the broader government sector.

If you are unsure of what is appropriate conduct under any particular circumstances, discuss the matter with your Executive Director, or if you don’t feel comfortable doing so, with another Executive Director or the Chief Financial Officer.
The Chief Executive Officer may also contact the Public Service Commissioner.

If you see behaviour contrary to this Code

If you see someone act in ways that are contrary to this Code, you should in the first instance discuss that person’s behaviour with your Executive Director, or if you don’t feel comfortable doing so, with another Executive Director or the Chief Financial Officer.

If you believe certain conduct is not just unethical, but may also be corrupt, a serious and substantial waste of government resources, maladministration or a breach of government information and privacy rights, then report your concerns to the Executive Director, Corporate Governance and School Standards, the Chief Executive Officer or the relevant investigating authority (such as the Ombudsman, Independent Commission Against Corruption or the Auditor-General). Under the Public Interest Disclosures Act 1994, it is both a criminal offence and misconduct to take reprisals against an employee who makes a public interest disclosure.

Examples of corrupt conduct

Examples of corrupt conduct are:

  • a public official uses a work computer and work time to develop projects for personal use
  • a public official provides preferential treatment during the registration of a non-government school
  • a public official accesses student result information in response to a request from a friend
  • a public official provides preferential treatment during an appeals process from a school and/or student
  • a public official provides false information on a timesheet, travel claim, etc
  • a public official fails to make an application for leave in accordance with policy
  • a public official provides preferential treatment to a supplier or colludes with a supplier to obtain a benefit.

Actions when allegations are made

If it is alleged that you have acted in a way that is contrary to this Code, you will have an opportunity to provide your version of events. How this will happen will be proportionate to the seriousness of the matter.

In those cases where the allegation is minor or of a low level, your Executive Director will usually discuss this matter directly with you. If the allegations are more serious, a formal process may be required.

If you are investigating an allegation of a behaviour that is contrary to this Code, you must ensure your decision-making is fair and reasonable by acting consistently with four principles (NSW Ombudsman):

  • Procedural fairness for both the complainant and staff member
  • Investigations should be handled expeditiously. This will minimise the potential for breaches of confidentiality and lack of procedural fairness
  • Confidentiality for all parties, where practicable and appropriate, until such time as the investigation process is completed
  • Meticulous recordkeeping, including recording of reasons for all significant decisions.

For employees of Public Service agencies, including NESA, the GSE Act and GSE Rules set out how allegations of misconduct are to be dealt with.

Part 8 of the GSE Rules sets out the procedural requirements for dealing with allegations of misconduct, which include requirements that you be advised of the detail of the allegation; the process to be undertaken to investigate and resolve the matter; and that you be provided an opportunity to respond to the allegations.

The GSE Act also sets out the actions that the Chief Executive Officer may take where there is a finding of misconduct against an employee. These actions are as follows:

  • Terminate the employment of the employee (without giving the employee an opportunity to resign)
  • Terminate the employment of the employee (after giving the employee an opportunity to resign)
  • Impose a fine on the employee (which may be deducted from the remuneration payable to the employee)
  • Reduce the remuneration payable to the employee
  • Reduce the classification or grade of the employee
  • Assign the employee to a different role
  • Caution or reprimand the employee.

Additional provisions

Public comment on the work of the NESA

Public comment by employees includes public speaking engagements, comments on radio and television or in letters to newspapers, expressing views in books, journals or notices and comments on social medial if it is expected that the comments will spread to the community at large.

Employees, as individual members of the community, have the right to make public comment and enter into public debate on political and social issues. However, there are some circumstances in which this is inappropriate. For example, situations when the public comment, although made in a private capacity, may appear to be an official comment on behalf of NESA. In such circumstances, employees should preface their remarks with a comment that they are made in a private or union capacity and do not represent the official view of NESA.

As a general rule, employees can disclose official information that is normally given to members of the public seeking that information, but should only disclose other official information or documents when:

  • in the course of their duties;
  • proper authority has been given;
  • required to, or authorised, do so by law; or
  • called to give evidence in court.

In these cases, comments made by employees should be confined to factual information and should not, as far as possible, express an opinion on official policy or practice unless required to do so by the circumstances of the particular situation (for example, when asked to do so in court).

Comments made on matters pertaining to union business by members of unions in their capacity as a local delegate within NESA or by union office holders employed by NESA are permissible under this code.

This policy does not apply to personal use of social media platforms where no reference is made to NESA related issues.

Protecting confidential information

NESA has clearly documented procedures regarding the storage, disclosure and distribution of confidential or sensitive personal, commercial or political information. Employees who handle such information should follow these procedures and must take special precautions to make sure that it is not disclosed without clear authority. Official information must only be used for the work-related purpose intended and not for personal benefit.

Unless authorised to do so by legislation, employees must make sure that they do not disclose or use any confidential information without official approval. Unauthorised disclosures may cause harm to individuals or give an individual or NESA an improper advantage. The integrity and credibility of NESA may also be damaged if it appears unable to keep its information secure.

All employees must make sure that confidential information, in any form (such as computer files), cannot be accessed by unauthorised people and that sensitive information is only discussed with people, either within or outside NESA, who are authorised to have access to it.

Secondary employment

NESA employees, except casual and part-time employees, covered by the GSE Act must have the approval of the Executive Director Corporate Governance and School Standards or their Director before they engage in any form of paid employment outside their official duties. While the secondary employment provisions of this Code do not apply to casual and part-time employees, the other provisions of this Code do apply.
 
Employees must also carefully consider whether the organisation offering them secondary employment may adversely affect the performance of their NESA duties and responsibilities or give rise to a conflict of interest. This applies whether they are working full time, part time or are only temporarily employed.

Approval for secondary employment will generally be granted provided the following conditions are met:

  • there is no actual or perceived conflict of interest;
  • the employment does not affect the officer's efficiency or effectiveness in performing his/her duties at NESA;
  • any secondary employment is undertaken in the officer's private time or during unpaid leave;
  • no physical or intellectual property of NESA is used in connection with the secondary employment.

Directors and managers are required to maintain a record of any approvals for secondary employment given to officers in their directorate or branch.

Employees should consider the following if they are thinking about or have been granted permission to undertake secondary employment:

  • employment at NESA should always be given the highest priority;
  • situations that give the appearance of a conflict of interest between their public duty and private interest should be avoided (eg writing for a textbook publisher prior to the finalisation of a syllabus, developing national curriculum, writing sample answers);
  • whether the organisation offering secondary employment may be entering into a contractual relationship with the government or may be in a regulatory relationship with NESA.

Generally, voluntary or unpaid activities are not considered as secondary employment and therefore it is not necessary for the officer to obtain permission to be involved. However, if there is a potential or perceived conflict of interest with the officer’s duties, this should be discussed with the officer’s direct supervisor.

Political and community participation

Employees must make sure that any participation in party political activities does not conflict with their primary duty as a public employee to serve the government of the day in a politically neutral manner.

This is important because of the need to maintain Ministerial and public confidence in the impartiality of the actions taken and advice given by public employees. What the NESA Chief Executive Officer considers appropriate in any particular case will depend on the nature of the issue, the position held by the employee, the extent of the employee’s participation, and their public prominence.
 
If you become aware that a potential conflict of interest has arisen or might arise, you should inform the NESA Chief Executive Officer or Executive Directors immediately and may have to stop the political activity or withdraw from the areas of their work where the conflict is occurring.

Special arrangements apply to employees who are contesting State or Federal elections.

Within the context of the requirements of this Code, employees are free to fully participate in voluntary community organisations and charities and in professional associations.

Post-separation employment

Employees should not use their position to obtain opportunities for future employment. They should not allow themselves or their work to be influenced by plans for, or offers of, employment outside NESA. If they do, there is a conflict of interest and the integrity of the employee and NESA is at risk.

Former employees should not use, or take advantage of, confidential information that may lead to gain or profit obtained in the course of their official duties until it has become publicly available.

All employees should be careful in their dealings with former employees of NESA and make sure that they do not give them, or appear to give them, favourable treatment or access to privileged information.

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