Education and Training Reform Further Amendment Act 2008

Education and Training Reform Further Amendment Act 2008

No. 70 of 2008

table of provisions

SectionPage

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

3Principal Act

Part 2—Amendments to the Education and Training Reform Act 2006

4Definitions in Part 2.4

5Employment of teachers, principals and other staff

6New section 2.4.3A inserted

2.4.3ARemuneration range for executives

7Termination of a contract of employment

8New Division 3A of Part 2.4 inserted

Division 3A—The Executive Class

2.4.23ADefinitions

2.4.23BClassification of positions in the Executive Class

2.4.23CContract of employment

2.4.23DMatters regulated by a contract of employment

2.4.23ETravelling and subsistence allowances etc.

2.4.23FTermination of a contract of employment

2.4.23GVacancy of Executive Class position

2.4.23HContracts prevail in certain circumstances

2.4.23IDivision 5 of Part 3 of Public Administration Act 2004 not to apply

9Section 2.4.43 substituted

2.4.43Employment of members of the Principal Class or the Executive Class

10Reviews

11Review of appointment of principal

12New Division 9A of Part 2.4 inserted

Division 9A—Unsatisfactory performance

2.4.59ADefinitions

2.4.59BSecretary to establish procedures for the purposes
of this Division

2.4.59CDefects in procedures will not invalidate
determinations

2.4.59DSecretary's options on receiving a report

2.4.59ENotice to employee relating to determination

2.4.59FDetermination of Secretary

2.4.59GNotice of determination

2.4.59HConduct dealt with under this Division cannot form basis for Division 10 action

13Amendment to Division heading

14Grounds for action

15New Division heading inserted

Division 10A—Appeals against determinations under Divisions 9A and 10

16Appeal

17Section 2.4.69 substituted

2.4.69Reinstatement and payments after allowance of
appeal against termination

18Insertion of definition of TVET in Chapter 4

19Delegation of Authority's power

20New sections 4.2.7A and 4.2.7B inserted

4.2.7ADelegation of Authority's functions to TVET

4.2.7BAuthority may enter into arrangements or agreements with TVET

21Action after review

22Amending, suspending or cancelling registration without application

23Registering body to register amendment, suspension or cancellation

24New section 4.3.37 inserted

4.3.37Approval by Authority of training organisations to
be managed by TVET

25Investigation of a course or part of a course by Authority

26Accreditation of a course or part of a course

27Cancellation or suspension of accreditation

28Review of higher education courses

29Offences by unregistered persons

30Offences in relation to courses and qualifications

31Information may be made available

32Section 5.2.6 substituted

5.2.6Vesting of land in Minister administering this Act

33Minister's power to fix fees

34Amendment to Division heading

35Arrangements for students from interstate

36New section 6.1.9 inserted

6.1.9Transitional provisions—Education and Training Reform Further Amendment Act 2008

37New section 6.1.10 inserted

6.1.10Transitional provision—Education and Training
Reform Further Amendment Act 2008

38New section 6.1.11 inserted

6.1.11Transitional provision—Education and Training
Reform Further Amendment Act 2008

39Statute law revision amendments

40Schedule 6—Ministerial orders

41New Schedule 9 inserted

SCHEDULE 9—Names of registered proprietors of land acquired for education purposes

Part 3—Amendment to State Superannuation Act 1988

42Definitions

Part 4—Repeal of amending Act

43Repeal of amending Act

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Endnotes

1

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Victoria

1

SectionPage

1

SectionPage

Education and Training Reform Further Amendment Act 2008[†]

No. 70 of 2008

[Assented to 25 November 2008]

1

Education and Training Reform Further Amendment Act 2008
No. 70 of 2008

1

Education and Training Reform Further Amendment Act 2008
No. 70 of 2008

The Parliament of Victoriaenacts:

1

Part 4—Repeal of Amending Act

Education and Training Reform Further Amendment Act 2008
No. 70 of 2008

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Education and Training Reform Act 2006—

(i)to provide for the employment of executives in the teaching service and matters relating to that employment; and

(ii) to provide for a process to deal with the unsatisfactory performance of employees in the teaching service; and

(iii) to enable theVictorian Registration and Qualifications Authority to delegate certain functions relating to the registration of training organisations; and

(iv) to clarify the registration of land acquired under various Education Acts for education purposes; and

(v) to improve generally the operation of that Act ; and

(b)to amend the State Superannuation Act 1988 in relation to executives employed under the Education and Training Reform Act 2006.

2Commencement

s. 2

(1)This Act (other than sections4 to 16, 18 to 20, 24, 31, 33, 37, 40 and 42) comes into operation on the day after the day on which it receives the Royal Assent.

(2) Subject to subsection (3), sections 4 to 16, 18 to 20, 24, 31, 33, 37, 40 and 42 come into operation on a day or days to be proclaimed.

(3) If a provision referred to in subsection (2) does not come into operation before 1 November 2009, it comes into operation on that day.

3Principal Act

s. 3

See:
Act No.
24/2006.
Reprint No. 1
as at
14 July 2008
and amending
Act No. 12/2008.
LawToday:
www.
legislation.
vic.gov.au

In this Act the Education and Training Reform Act 2006 is called the Principal Act.

______

Part 2—Amendments to the Education and Training Reform Act 2006

4Definitionsin Part 2.4

s. 4

(1)Insert the following definitions in section 2.4.1 of the Principal Act—

"executive means a person employed in the teaching service as an executive;

member of the Executive Class means a member of the teaching service who holds a position which has been classified to be a position in the Executive Class by the Secretary;".

(2)In section 2.4.1 of the Principal Act, in the definition of member of the Principal Class, for "holds an on-going" substitute "is an on-going employee who holds a".

5Employment of teachers, principals and other staff

(1)After section 2.4.3(1)(b) of the Principal Act insert—

"(ba)executives to perform duties in or outside a school; and".

(2)In section 2.4.3(3)(f) of the Principal Act, before "determine" insert "subject to section 2.4.3A,".

6New section 2.4.3A inserted

After section 2.4.3 of the Principal Act insert—

"2.4.3A Remuneration range for executives

(1) The Minister, by Order, may fix a range of remuneration for executives, including a different range for each grade or class of executive.

(2) The remuneration of an executive determined by the Secretary under section 2.4.3(3)(f) must fall within the rangefixed by the Minister under this sectionfor the grade or class of that executive.".

7Termination of a contract of employment

s. 7

In section 2.4.19 of the Principal Act—

(a)in subsection (3)—

(i)for "an on-going position" substitute "aposition";

(ii)for "other on-going position" substitute "other position";

(b)in subsection (4), for " an on-going position" substitute "a position".

8New Division 3A of Part 2.4 inserted

After Division 3 of Part 2.4 of the Principal Act insert—

"Division 3A—The Executive Class

2.4.23ADefinitions

In this Divisioncontract of employment means a contract of employment under this Division between a member of the Executive Class and the Secretary.

2.4.23BClassification of positions in the Executive Class

There is established within the teaching service an Executive Class consisting of members of the teaching service who hold positions which have been declared by Ministerial Order to be positions in the Executive Class.

2.4.23CContract of employment

s. 8

(1)Subject to this Act, the employment of a member of the Executive Class must be governed by a contract of employment between the member and the Secretary.

(2)The contract must be in writing and be signed by or on behalf of the Secretary and by the member.

(3)A contract of employment must specify the date on which it expires which must not be more than 5years after the date on which it came into force.

(4)Subject to this Act, a member of the Executive Class—

(a)holds a position in the Executive Class while a contract of employment to which he or she is a party remains in force for that position; and

(b)continues to hold that position if a subsequent contract of employment is entered into for that position by him or her and the Secretary.

(5)A contract of employment may be varied at any time by a further contract between the parties.

(6)The term of the contract may not be increased beyond 5 years.

2.4.23DMatters regulated by a contract of employment

A contract of employment between a member of the Executive Class and the Secretary may contain provisions concerning some or all of the terms and conditions of employment.

2.4.23ETravelling and subsistence allowances etc.

s. 8

A member of the Executive Class is entitled to be paid—

(a)any travelling or subsistence allowances; and

(b)any allowances in relation to relocation expenses; and

(c)any other allowances in relation to expenses incurred in the discharge of his or her duties—

in accordance with a Ministerial Order.

2.4.23FTermination of a contract of employment

(1)A contract of employment of a member of the Executive Class may be terminated—

(a)in accordance with the terms of the contract; or

(b)if the member's position is abolished or the member is dismissed or removed from the position or the member's employment is terminated or the member is reduced to a lower division, class, subdivision or grade or the member retires or resigns or has his or her services dispensed with in accordance with this Act or the Public Administration Act 2004; or

(c)if the member ceases to be a member of the teaching service; or

(d)in the absence of anything to the contrary in the contract, by either party to the contract giving 12 weeks notice of termination to the other party.

(2)If a contract of employment of a member of the Executive Class expires or is terminated and the member does not enter into a further contract of employment, the member ceases to hold the position as a member of the Executive Class on the expiry or termination of the contract.

(3)If a member of the Executive Class is an on-going employee, the Secretary may direct the employee to carry out any of the duties of a position in the Executive Class or may transfer the employee to any other position in the teaching service (including a position with terms and conditions of employment less favourable to the employee) that the Secretary considers appropriate and the terms and conditions of employment applicable to that position apply to the employee.

(4)A person is not entitled to any compensation for termination of a contract of employment under subsection (1).

2.4.23GVacancy of Executive Class position

s. 8

(1)The position of a member of the Executive Class becomes vacant if—

(a)the employment to that position expires or is terminated or the member's contract of employment expires or is terminated, without a subsequent contract having been entered into for that position; or

(b)the member is removed from that position or is dismissed from the teaching service or has his or her services dispensed with under this Act or the Public Administration Act 2004; or

(c)the member retires or resigns in writing addressed to the Secretary.

(2)This section does not affect any other provision by or under which a member of the Executive Class vacates his or her position.

2.4.23HContracts prevail in certain circumstances

If a member of the Executive Class enters into a contract of employment, the contract prevails to the extent of any inconsistency between—

(a)the contract and sections 2.4.24 to 2.4.27;

(b)the contract and any Ministerial Order except a Ministerial Order specifying remuneration packages.

2.4.23IDivision 5 of Part 3 of Public Administration Act 2004 not to apply

Nothing in Division 5 of Part 3 of the Public Administration Act 2004 applies to a position in the Executive Class declared under this Act or to a member of the Executive Class.".

9Section 2.4.43 substituted

s. 9

For section 2.4.43 of the Principal Act substitute—

"2.4.43 Employment of members of the Principal Class or the Executive Class

Employment by transfer or promotion to a position in the Principal Class or the Executive Class must be made under a contract of employment under Division 3 or Division 3A respectively.".

10Reviews

s. 10

In section 2.4.51(1) of the Principal Act, after "principal" insert "or executive".

11Review of appointment of principal

In section 2.4.54(1)(b) of the Principal Act, after "principal in a school" insert "(other than as an executive)".

12New Division 9A of Part 2.4 inserted

After Division 9 of Part 2.4 of the Principal Act insert—

"Division 9A—Unsatisfactory performance

2.4.59ADefinitions

In this Division—

determination means a determination under section 2.4.59F;

procedures means the procedures established by the Secretary under section 2.4.59B;

report means a report prepared under the procedures;

unsatisfactory performance, in relation to an employee, means the repeated failure of the employee to discharge his or her duties in the manner expected of the employee at his or her level in his or her position as evidenced by one or more of the following—

(a)the negligent, inefficient or incompetent discharge by the employee of his or her duties;

(b)the failure by the employee—

s. 12

(i)to exercise care and diligence in performing his or her duties; or

(ii)to perform any of his or her duties;

(c) the employee engaging in unsatisfactory conduct that impacts on the discharge of his or her duties including,without reasonable excuse—

(i)contravening or failing to comply with a lawful direction given to the employee by a person with authority to give the direction; or

(ii)being absent from his or her duties without permission.

2.4.59BSecretary to establish procedures for the purposes of this Division

(1)The Secretary must establish procedures for—

(a)the improvement and management of alleged unsatisfactory performance by employees; and

(b)making determinations in respect of the unsatisfactory performance of employees and other related decisions under this Division.

(2)The procedures mustprovide that a report may be prepared on any alleged unsatisfactory performance of an employee and for the report to be submitted to the Secretary for considerationunder this Division.

(3) The procedures established by the Secretary must comply with the principles of natural justice and must include or provide for—

(a)the right of an employee to be informed of the nature of any alleged unsatisfactory performancein a report; and

(b)the right of an employee to be heard in respect of his or her alleged unsatisfactory performance; and

(c)the right of an employee to be treated fairly; and

(d)fairness and good faith in decision making.

2.4.59CDefects in procedures will not invalidate determinations

s. 12

An inadvertent failure to comply with the procedures does not of itself affect any determination or action of the Secretary under this Division, unless that failure has resulted in an unfair or unjust determination.

2.4.59DSecretary's options on receiving a report

(1)The Secretary must consider any report received under the procedures and may make any of the following decisions—

(a)to defer a determination in respect of the employee until the Secretary receives a further report in relation to the employee;

(b)to make a determination in respect of the employee;

(c)to investigate any or all of the matters in the report under Division 10;

(d)to proceed no further with any of the matters in the report.

(2) If the Secretary decides to investigateany orall of the matters in a report under Division10, the Secretary must not proceed further under this Division in relation to any of those matters investigated under Division10.

2.4.59ENotice to employee relating to determination

s. 12

(1)Before making a determination the Secretary must give a notice to the employee in writing—

(a)advising the employee of the allegation of unsatisfactory performance; and

(b) advising the employee of the actions that may be taken by the Secretary under this Division; and

(c) advising the employee that he or she may make a submission in writing addressing the matters in the report and the actions that may be taken by the Secretary; and

(d) which is accompanied by a copy of the report and any further report.

(2) A submission by an employee relating to a report must be received by the Secretary no later than 14 days after the employee is given notice under this section or any longer period permitted by the Secretary.

2.4.59FDetermination of Secretary

s. 12

(1)After giving notice under section 2.4.59E, the Secretary may make a determination as to whether or not there has been unsatisfactory performance by an employee.

(2) In making a determination, the Secretary must—

(a)take into account any report or further report received under section 2.4.59D; and

(b)take into account any submission by the employee made in accordance with section 2.4.59E; and

(c)comply with the procedures.

(3) If the Secretary determines that there has beenunsatisfactory performanceby an employee, the Secretary may take any of the following actions against the employee—

(a)a reprimand;

(b)a reduction in the employee's classification;

(c) termination of the employee's employment.

2.4.59G Notice of determination

The Secretary must give notice in writing to an employee—

(a)advising the employee of a determination made in respect of that employee including any action that the Secretary has taken against the employee; and

(b)if the Secretary has taken any such action against the employee, advising the employee of his or her right of appeal to a Disciplinary Appeals Board.

2.4.59H Conduct dealt with under this Division cannot form basis for Division 10 action

(1)Any conduct of an employee dealt with by a determinationmust not form a ground for any action that may be taken by the Secretary under Division 10.

(2) Nothing in this section prevents the Secretary from taking an action under Division 10 based on conduct that is related or connected to the conduct dealt with by a determination,but which was not expressly stated or referred to in the report specifying the conduct dealt with under the determination.".

13Amendment to Division heading

s. 13

In the heading to Division 10 of Part 2.4 of the Principal Act omit"andinefficiency".

14Grounds for action

In section 2.4.60(1)(d) of the Principal Act omit ", inefficient".

15New Division heading inserted

Before section 2.4.68 of the Principal Act insert the following heading—

"Division 10A—Appeals against determinations under Divisions 9A and 10".

16Appeal

In section 2.4.68(1) of the Principal Act, for "this Division" substitute "Division 9A or 10".

17Section 2.4.69 substituted

s. 17

For section 2.4.69 of the Principal Act substitute—

"2.4.69 Reinstatement and payments after allowance of appeal against termination

(1)If an appeal is allowed in respect of an employee whose employment in the teaching service has been terminated, the Disciplinary Appeals Board may—

(a)order that the employee be re-instated in the teaching service; and

(b)order that an employee who is re-instated under this section be paid an amount that the Board considers appropriate in the circumstances to compensate for any loss of salary as a result of the termination; and

(c)in the case of an employee who is not re-instated in the teaching service, order that the employee be paid an amount not exceeding the greater of—

(i)the remuneration received by the employee during the period of 6months immediately before the termination; or

(ii)the remuneration to which the employee was entitled for the period of 6months immediately before the termination.

(2)In deciding an amount that is appropriate under subsection (1)(b), the Board may have regard to any relevant circumstances including whether the employee had obtained other employment before being reinstated.

(3)An amount paid under subsection (1)(b) must not exceed the amount of remuneration that the employee would have been entitled to receive if he or she had not been terminated.

(4) An employee who is re-instated in the teaching service must be treated as having had continuous service in the teaching service.

(5) In the case of an employee who is re-instated in the teaching service, any period during which the employee was not performing the duties of his or her position due to having his or her employment terminated must be treated as leave without pay unless an order is made under subsection (1)(b) to compensate for the loss of salary during that period.".

18Insertion of definition of TVET in Chapter 4

s. 18

Insert the following definitions in section 4.1.1(1) of the Principal Act—

"senior secondary course means a course leading to a senior secondary qualification;

TVET means Technical and Vocational Educationand Training Australia Limited ACN062758632 and any successor in law of that body;".