Pre-School Teachers and Assistants (Leave) Act 1984

Version No. 012

Pre-school Teachers and Assistants (Leave) Act 1984

No. 10135 of 1984

Version incorporating amendments as at 1 January 2010

table of provisions

Section Page

1 Short title 1

2 Commencement 1

3 Definitions 1

4 Entitlement to long service leave 4

4A Sick leave 5

5 Continuity of employment 6

6 Regulations 8

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ENDNOTES 9

1. General Information 9

2. Table of Amendments 10

3. Explanatory Details 12

Version No. 012

Pre-school Teachers and Assistants (Leave) Act 1984

No. 10135 of 1984

Version incorporating amendments as at 1 January 2010

An Act to make provision in relation to portability of long service leave for certain pre-school teachers and assistants and for other purposes.

Pre-school Teachers and Assistants (Leave) Act 1984
No. 10135 of 1984

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

S. 1
amended by No. 105/1986 s.6(1).

1 Short title[1]

This Act may be cited as the Pre-school Teachers and Assistants (Leave) Act 1984.

2 Commencement

This Act shall come into operation on a day to be proclaimed by proclamation of the Governor in Council published in the Government Gazette.

3 Definitions

(1) In this Act unless inconsistent with the context or subject-matter—

S. 3(1)
def. of award inserted by No. 105/1986 s.4(a), amended by Nos 47/1992 s.25(8), 83/1992 s.184(Sch. 6 item 19.1), substituted by No. 82/1994 s.13(Sch. 2 item 5), amended by No. 59/1996 s.10(Sch. 2 item 19.1), substituted by No. 74/2009 s.18(2).

award means—

(a) an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth; or

(b) an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or

(d) a determination of Fair Work Australia made under the Fair Work Act 2009 of the Commonwealth; or

(e) an award-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;

S. 3(1) def. of Fair Work Australia inserted by No. 74/2009 s.18(1).

Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth;

pre-school assistant means—

s. 3

(a) a person who is employed to assist a pre-school teacher in a kindergarten or play centre when children are in attendance; or

(b) a prescribed person;

pre-school teacher means—

(a) a registered primary teacher;

(b) a person holding a prescribed qualification in pre-school teaching;

(d) a person holding a prescribed qualification as a play leader;

prescribed means prescribed by the regulations;

relevant kindergarten means a kindergarten declared in accordance with subsection (2) as a relevant kindergarten for the purposes of this Act;

relevant play centre means a play centre declared in accordance with subsection (3) as a relevant play centre for the purposes of this Act;

S. 3(1) def. of sick leave inserted by No. 105/1986 s.4(b), amendedby No.74/2009 s.18(3).

sick leave means leave with pay on account of illness or injury which a pre-school teacher or pre-school assistant is entitled to take in accordance with an award or in accordance with the National Employment Standards under the Fair Work Act 2009 of the Commonwealth, but does not include leave in respect of which a pre-school teacher or pre-school assistant is entitled to receive compensation payments under an Act.

(2) The Governor in Council may by Order published in the Government Gazette, declare a kindergarten to be, or to have been, a relevant kindergarten.

(3) The Governor in Council may by Order published in the Government Gazette, declare a play centre to be, or to have been, a relevant play centre.

s. 3

(4) In this Act, a reference to employment in a relevant kindergarten or relevant play centre does not include a reference to employment in a relevant kindergarten or relevant play centre during a period during which a declaration under subsection (2) or (3) (as the case may be) in respect of that kindergarten or play centre does not apply or is not in force.

(5) A declaration under subsection (2) or (3) in respect of a kindergarten or play centre may be expressed to apply in relation to a period or periods whether before or after the commencement of this section.

(6) In this Act, a reference to employment in a relevant kindergarten or relevant play centre includes a reference to a period or periods of employment in a prescribed office.

4 Entitlement to long service leave

s. 4

(1) In computing the period of employment which entitles a pre-school teacher or pre-school assistant to long service leave or pay in lieu thereof—

S. 4(1)(a) substituted by No. 12/1989 s.4(1)(Sch. 2 item 96.1).

(a) pursuant to regulations made under item 17 of Schedule 12 to the Local Government Act 1989;

S. 4(1)(b) substituted by No. 83/1992 s.184(Sch. 6 item 19.2), amended by No. 59/1996 s.10(Sch. 2 item 19.2).

(b) under Division 6 of Part 5 of the Long Service Leave Act 1992 (except section56)—

there shall be taken into account any periods of employment calculated in accordance with subsection (2).

(2) For the purposes of subsection (1), the periods of employment to be taken into account are periods of employment calculated as follows:

S. 4(2)(a) amended by No. 12/1989 s.4(1)(Sch. 2 item 96.2).

(a) In the case of employment of persons who are covered by regulations made under item17 of Schedule 12 to the Local Government Act 1989—on the completion of each year of employment as a pre-school teacher or pre-school assistant in a relevant kindergarten or relevant play centre—nine days;

S. 4(2)(b) amended by Nos 83/1992 s.184(Sch. 6 item 19.3), 59/1996 s.10(Sch. 2 item 19.2).

(b) In the case of employment as an employee to whom Division 6 of Part 5 of the Long Service Leave Act 1992 applies—on the completion of each year of employment as a pre-school teacher or pre-school assistant in a relevant kindergarten or relevant play centre—six days.

(3) The periods of employment to be taken into account for the purposes of subsection (1) do not include—

(a) any interruption of or absence from employment of a kind mentioned in section5(g), (h), (i), (j), (k), (l) or (m); or

(b) any period of employment in respect of which long service leave or pay in lieu thereof has already been granted.

S. 4A
inserted by No. 105/1986 s.5.

4A Sick leave

s. 4A

(1) In this section—

pre-school worker means a person who is a pre-school teacher or pre-school assistant;

pre-school workplace means a place which is a relevant kindergarten, a relevant play centre or both a relevant kindergarten and a relevant play centre.

(2) If a pre-school worker—

(a) is at the date of commencement of this section working at a pre-school workplace; or

(b) after the date of commencement of this section leaves work at a pre-school workplace and starts work at another pre-school workplace—

the worker's employer must credit the worker with sick leave accrued by the worker in respect of periods of employment at pre-school workplaces where the worker has previously worked if the worker's employment at the pre-school workplaces where the worker has previously worked and at the pre-school workplace where the worker is now working is continuous.

(3) Subsection (2) does not require an employer to credit a pre-school worker with periods of sick leave which the worker has accumulated but has already taken.

(4) This section applies to periods of employment whether they occurred before or occur after the commencement of this section.

(5) Except where an award which applies to a pre-school worker contains express provision to the contrary, for the purposes of this section a pre-school worker's employment is to be treated as continuous despite the absences from or interruptions of work mentioned in paragraphs (a) to (m) of section 5.

5 Continuity of employment

s. 5

For the purposes of this Act, employment in a relevant kindergarten or relevant play centre (whether before or after the commencement of this Act) shall be deemed to be continuous notwithstanding—

(a) the taking of any annual leave or long service leave;

S. 5(b) amended by No. 12/1989 s.4(1)(Sch. 2 item 96.3) (as amended by No. 13/1990 s.38(2)(o)).

(b) in relation to persons who are covered by regulations made under item 17 of Schedule12 to the Local Government Act 1989, any absence from work of not more than fourteen days in any year on account of illness or injury;

S. 5(c) amended by No. 83/1992 s.184(Sch. 6 item 19.4(a)).

S. 5(d) amended by Nos 83/1992 s.184(Sch. 6 item 19.4(b)), 59/1996 s.10(Sch. 2 item 19.2).

(d) any absence from work of a worker performing duties in relation to assets of a particular kind arising solely by reason of a transfer to which section 60(6) of the Long Service Leave Act 1992 applies of the assets from one employer to another employer;

(e) any interruption or ending of the employment by the employer if the interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave;

(f) the taking of leave granted by the employer which is not leave or absence of work of a kind mentioned in paragraph (a), (b) or (c);

(g) any interruption arising directly or indirectly from an industrial dispute;

(h) a dismissal of the pre-school teacher or preschool assistant if that teacher or assistant is re-employed within a period not exceeding three months from the date of dismissal;

s. 5

(i) the standing down of the pre-school teacher or pre-school assistant when no work is available;

(j) any absence from work of a female pre-school teacher for a period not exceeding eighteen months in respect of her pregnancy;

(k) any absence from work of a female pre-school assistant for a period not exceeding twelve months in respect of her pregnancy;

(l) any other absence on account of injury arising out of or in the course of the employment of the pre-school teacher or preschool assistant or by leave of the employer; or

(m) any other absence of the pre-school teacher or pre-school assistant with the prior approval or subsequent acquiescence of the employer that is not referred to in paragraph(a), (b), (c), (d) or (e).

6 Regulations

s. 6

The Governor in Council may make regulations for and with respect to any matter or thing that by this Act is authorized or required or permitted to be prescribed or that is necessary to be prescribed for carrying this Act into effect.

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ENDNOTES

Endnotes

1. General Information

The Pre-school Teachers and Assistants (Leave) Act 1984 was assented to on 13 November 1984 and came into operation on 18 December 1985: Government Gazette 18 December 1985 page 4640.

The name of this Act was changed from the Pre-school Teachers and Assistants (Portability of Long Service Leave) Act 1984 to the Pre-school Teachers and Assistants (Leave) Act 1984 by section 6(1) of the Preschool Teachers and Assistants (Sick Leave) Act 1986, No. 105/1986.

2. Table of Amendments

Endnotes

This Version incorporates amendments made to the Pre-school Teachers and Assistants (Leave) Act 1984 by Acts and subordinate instruments.

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Pre-school Teachers and Assistants (Sick Leave) Act 1986, No. 105/1986

Assent Date: / 16.12.86
Commencement Date: / 16.12.86
Current State: / All of Act in operation

Local Government (Consequential Provisions) Act 1989, No. 12/1989 (asamendedby No. 13/1990)

Assent Date: / 9.5.89
Commencement Date: / S. 4(1) on 1.11.89: Government Gazette 1.11.89 p.2798; Sch. 2 items 96.1–96.3 on 3.6.92: Government Gazette 3.6.92 p. 1306
Current State: / This information relates only to the provision/s amending the Pre-school Teachers and Assistants (Leave) Act 1984

Industrial Relations (Enterprise Bargaining) Act 1992, No. 47/1992

Assent Date: / 23.6.92
Commencement Date: / 1.8.92: Government Gazette 22.7.92 p. 1874
Current State: / All of Act in operation

Employee Relations Act 1992, No. 83/1992

Assent Date: / 24.11.92
Commencement Date: / S. 184(Sch. 6 items 19.1–19.4) on 1.3.93: Special Gazette (No. 63) 27.11.92 p. 1
Current State: / This information relates only to the provision/s amending the Pre-school Teachers and Assistants (Leave) Act 1984

Employee Relations (Amendment) Act 1994, No. 82/1994

Assent Date: / 29.11.94
Commencement Date: / S. 13(Sch. 2 item 5) on 11.5.95: Government Gazette 11.5.95 p. 1093—see Interpretation of Legislation Act 1984
Current State: / This information relates only to the provision/s amending the Pre-school Teachers and Assistants (Leave) Act 1984

Commonwealth Powers (Industrial Relations) Act 1996, No. 59/1996

Assent Date: / 12.12.96
Commencement Date: / S. 10(Sch. 2 items 19.1, 19.2) on 1.1.97: Special Gazette (No. 146) 23.12.96 p. 15
Current State: / This information relates only to the provision/s amending the Pre-school Teachers and Assistants (Leave) Act 1984

Fair Work (Commonwealth Powers) Amendment Act 2009, No. 74/2009

Endnotes

Assent Date: / 1.12.09
Commencement Date: / S. 18 on 1.1.10: Government Gazette 10.12.09 p.3215
Current State: / This information relates only to the provision/s amending the Pre-school Teachers and Assistants (Leave) Act 1984

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3. Explanatory Details

Endnotes

[1] S. 1: Section 6(2) of the Pre-school Teachers and Assistants (Sick Leave) Act 1986, No. 105/1986 reads as follows:

6 New short title

(2) In any Act, subordinate instrument or document a reference to the Pre-school Teachers and Assistants (Portability of Long Service Leave) Act 1984 is deemed to be a reference to the Preschool Teachers and Assistants (Leave) Act1984.