Teaching Service Act 1980 (NSW)

Teaching Service Act 1980 No 23 An Act to establish the Teaching Service of New South Wales and to make provision relating to the employment of persons in the Teaching Service. Part 1 Preliminary 1 Name of Act This Act may be cited as the Teaching Service Act 1980. 2 Commencement (1) This section and section 1 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. (3) (Repealed) 2A, 3 (Repealed) 4 Definitions (1) In this Act— appointed day means 20 October 1980. Department means the Department of Education. exercise a function includes perform a duty. function includes a power, authority or duty. officer means a person employed in the Teaching Service other than as a temporary employee. position includes office. school means a government school established under the Education Act 1990. school principal means a person appointed to the position of principal of a school. Secretary means the Secretary of the Department. senior position means any position in the Teaching Service to which a person employed in the Teaching Service could be promoted. Teaching Service means the Teaching Service of New South Wales referred to in section 44. temporary employee means a person employed under section 50. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 5 Industrial Relations Act 1996 not affected Except to the extent that this Act otherwise expressly provides, nothing in this Act amends or affects the provisions of the Industrial Relations Act 1996. 5A Protection of children to be paramount consideration (1) The protection of children is to be the paramount consideration— (a) in taking any action with respect to an officer or temporary employee under this Act, and (b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action. (2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law. Part 2 Secretary Division 1 General functions and related provisions 6 General responsibility (1) The Secretary is responsible to the Minister for the general conduct and the efficient, effective and economical management of the functions and activities of the Teaching Service. (2) For the purpose of exercising that responsibility, the Secretary may take such action as the Secretary considers appropriate in the circumstances. (3) (Repealed) 7 General functions (1) The Secretary has the following functions— (a) to classify the schools in which members of the Teaching Service are employed, (b) to determine the staff positions in the Teaching Service (including the teaching positions in schools), (c) to determine the method of classifying and grading officers employed in the Teaching Service, (d) to determine the qualifications required for appointment to the Teaching Service, (e) to prepare and maintain a list of persons who the Secretary determines are not to be employed in the Teaching Service, (f) to maintain discipline in the Teaching Service. (2) Subsection (1) does not limit the functions that are conferred or imposed on the Secretary by or under this Act. 8 Delegation of functions (1) The Secretary may delegate to an authorised person any of the functions of the Secretary under this Act other than— (a) this power of delegation, or (b) the functions conferred or imposed under section 100. (2) A delegate may sub-delegate to an authorised person any function delegated by the Secretary if the delegate is authorised to do so by the Secretary. (3) In this section— authorised person means— (a) an officer or temporary employee, or (b) a Public Service employee, or (c) a member of staff of the TAFE Commission. 9 Acting appointment as Secretary Despite section 24 of the Government Sector Employment Act 2013, an officer of the Teaching Service or a member of staff of the TAFE Commission may be appointed under that section to act in the position of Secretary while that position is vacant or if the holder of that position is suspended, sick or absent. Division 2 Employment functions 10 Definition In this Division— industrial matters has the same meaning as in the Industrial Relations Act 1996, subject to the following modifications— (a) the references to "employers" and "their employer" are to be construed as references to the Crown, (b) the references to "employees" are to be construed as references to members of the Teaching Service, (c) the references to "any industry" and "an industry" are to be construed as references to the Teaching Service. 11 Secretary to act for Crown The Secretary, in exercising a function under this Division, acts for the Crown. 12 Role of Secretary in industrial proceedings The Secretary is, for the purpose of— (a) making any determination under section 13, or (b) any proceedings relating to members of the Teaching Service held before a competent tribunal having power to deal with industrial matters, taken to be the employer of those members. 13 Determination of conditions of employment (1) Except in so far as provision is otherwise made by law, the conditions of employment, including salaries, wages or other remuneration, of members of the Teaching Service are to be determined from time to time by the Secretary. (2) (Repealed) 14 Agreements relating to industrial matters (1) The Secretary may enter into an agreement with any association or organisation representing any group or class of officers or temporary employees as to any industrial matter. (2) Any such agreement binds all officers and temporary employees in the class or group affected by the agreement and no such officer or temporary employee, whether a member of the association or organisation with which the agreement was entered into or not, has any right of appeal against the terms of the agreement. 15 Determinations and agreements relating to major industrial matters The Secretary may not make a determination under section 13 or enter into an agreement under section 14, being a determination or an agreement relating to an industrial matter that the Minister has determined and notified the Secretary to be a major industrial matter, unless the Secretary has notified the Minister of the determination proposed to be made or the agreement proposed to be entered into. 16–36 (Repealed) Part 3 37–41A (Repealed) Part 4 The Teaching Service Division 1 42, 43 (Repealed) Division 2 Members of the Teaching Service 44 The Teaching Service (1) The Teaching Service of New South Wales consists of the persons who are for the time being employed under this Division. (2) Those persons are taken to be employed by the Government of New South Wales in the service of the Crown, except as provided by section 12. (3) This Division does not affect any other method (statutory or otherwise) by which a person holds a position, or is otherwise employed, in the Teaching Service. 45, 46 (Repealed) 47 Appointments to positions generally (1) The Secretary may, subject to section 47A, appoint to positions in the Teaching Service— (a) persons who are accredited under the Teacher Accreditation Act 2004, or (b) persons who have, in the opinion of the Secretary, the appropriate qualifications to be employed in the Teaching Service. (1A) Where— (a) an appointment to a position in the Teaching Service (other than a senior position) is to be made under subsection (1), and (b) an Aboriginal and a person who is not an Aboriginal, each of whom is eligible to be appointed to the position, are offering themselves for appointment to the position, the Secretary shall give preference to the Aboriginal or, if there are 2 or more such Aborigines, give preference to any one of them by appointment to that position. (2)–(5) (Repealed) 47A Appointment on merit to senior positions (1) Application of section This section applies to and in respect of appointments under section 47 to senior positions in the Teaching Service. (2) Appointments to senior positions Appointments to vacant senior positions are to be made by the Secretary. It does not matter whether the person appointed to such a position is or is not already an officer. (3) Advertising vacancies If it is proposed to make an appointment to a vacant senior position, the Secretary must advertise the vacancy in such manner as the Secretary thinks appropriate. Without limiting the manner in which the vacancy is advertised, the advertisement is to be in a form that is accessible to persons who are not employed in the Teaching Service. (4) Merit appointment Appointments to vacant senior positions are to be made by the Secretary on the basis of the merit of the applicants for appointment. (5) Determining merit of applicants For the purpose of determining the merit of persons eligible for appointment to a vacant senior position, the Secretary is to have regard to— (a) the nature and duties of the position, and (b) the abilities, qualifications, experience, standards of work performance and personal qualities of those persons that are relevant to the performance of those duties. (6) Selection process In deciding to appoint a person to a vacant senior position— (a) the Secretary may only select a person who has applied for appointment to the vacant position, and (b) the Secretary must, from among the applicants eligible for appointment to the vacant position, select the applicant who has, in the opinion of the Secretary, the greatest merit. (7) Appointment from eligibility list Despite subsection (3), the Secretary need not advertise a vacant senior position if the Secretary proposes to make an appointment to the position from an eligibility list created by the Secretary in relation to the position (being of a list of those persons who applied for appointment to the position and who are eligible for appointment but not selected for appointment, as arranged in order of merit as determined in accordance with subsection (5)). (8) Any such eligibility list is applicable not only to the position in relation to which it was created but also to any other position that the Secretary determines it should be applicable to on the basis that the position is substantially the same as the position in relation to which the list was created. (9) Industrial relations jurisdiction excluded The appointment or failure to appoint a person to a vacant senior position, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. This subsection applies whether or not any person has been appointed to the vacant senior position. (10) Other legal proceedings excluded No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a senior position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. (11) Subsection (10) does not affect the operation of section 60. 48 Appointments on probation (1) Unless the Secretary, in a particular case or class of cases, otherwise determines, a person who is not an officer of the Teaching Service when the person is appointed by the Secretary to a position in that service shall be appointed on probation, which shall be for a period of 12 months or such longer period as the Secretary may in any particular case or class of cases determine. (2) The Secretary may— (a) after the expiration of the period of probation for which a person is so appointed, confirm or annul the appointment, or (b) during the period of probation for which a person is so appointed, extend the period of probation or annul the appointment. (3) If a person's appointment is so annulled, the person ceases to be an officer, unless appointed to another position as an officer. (4) (Repealed) (5) A person who, by reason of the annulment of an appointment, ceases to be a member of the Teaching Service under this section is not entitled to appeal to the Industrial Relations Commission against the annulment. (6) Action is not required to be taken under Part 4A in order to annul an appointment under subsection (2). (7) (Repealed) 49 Appointment of retired officers (1) The Secretary may appoint an officer who has been retired from the Teaching Service or whose services have been dispensed with under section 72 to a vacant position in the Teaching Service. (2) An appointment under this section may be made without examination or probation. (3) (Repealed) 50 Temporary employees (1) The Secretary may employ on a temporary basis— (a) persons who are accredited under the Teacher Accreditation Act 2004 to carry out work in the Teaching Service, or (b) persons who have, in the opinion of the Secretary, the appropriate qualifications to carry out work in the Teaching Service. (2) A person employed under this section may be employed on a full-time, casual or part-time basis. (3) A temporary employee is a member of, but does not hold a position in, the Teaching Service. (4) (Repealed) (5) A person employed under this section— (a) may be employed for a period or periods of up to 3 years, and (b) may be dismissed at any time. (6) The Secretary may not terminate the employment of a temporary employee for reasons other than for misconduct unless the employee— (a) is given at least 4 weeks notice of the proposed termination, or (b) is paid, at or before the termination, an amount equal to 4 weeks pay. (7) A temporary employee whose employment is terminated is not, despite any other Act or law, entitled to any other compensation or entitlement for the termination of employment other than superannuation entitlements. 51 Temporary appointments of officers (1) Subject to subsections (2) and (3), an officer of the Teaching Service may be temporarily appointed by the Secretary to a position within that service which is vacant or the holder of which is suspended, sick or absent. (2) An appointment under subsection (1) shall not be made except in accordance with such conditions of employment as are determined by the Secretary. (3) The Secretary shall not make a temporary appointment under subsection (1) for a period in excess of 6 months unless satisfied that an appointment in excess of that period should be made having regard to the exigencies of the Teaching Service. 51A Transfer of officers within the Teaching Service (cf ss 86A and 87 PSEM Act 2002) (1) The Secretary may, subject to this section, transfer an officer of the Teaching Service to another position within the Teaching Service. (2) A transfer of an officer under this section may be temporary or, following consultation with the officer, permanent. (3) An officer may request a transfer under this section, but is not entitled to be transferred at his or her request. (4) The Secretary may transfer an officer under this section without a request or the consent of the officer. (5) An officer may be transferred under this section to any different workplace location in the State. (6) The Secretary is not required to transfer an officer to another workplace location (whether or not under this section) if the Secretary considers that there is no reasonable prospect of ongoing work for the officer at the other location. (7) A transfer under this section is to be made at the officer's existing level of salary. However— (a) a transfer may be made at a level of salary that is higher or lower than the existing level of salary if the percentage variation is within the range determined by the Secretary as a minor variation, or (b) a transfer may be made at any lower level of salary with the consent of the officer. (8) An officer transferred under this section must possess the qualifications required for the position to which the officer is transferred. (9) A permanent appointment may be made to the original position of an officer temporarily transferred under this section— (a) if the officer consents, or (b) if the transfer has continued or is likely to continue for more than 12 months, the officer is advised of the proposed appointment and the officer is given a reasonable opportunity to terminate the transfer and return to his or her original position. (10) Nothing in this section (apart from subsection (6))— (a) affects any other method (statutory or otherwise) by which officers can transfer or be transferred, or (b) affects a direction under the procedural guidelines issued under section 93D that an officer undertake alternative duties at any location. 51B Dealing with member of Teaching Service whose address is unknown If— (a) the Secretary takes any action under this Act with respect to a person who is an officer or temporary employee (including any disciplinary action under Part 4A or the termination of the person's employment), and (b) the person's address is unknown to the Secretary, any instrument for giving effect to that action or for notifying the person of that action may be sent to the address of the person last known to the Secretary. Division 3 52–58 (Repealed) Division 4 Miscellaneous provisions relating to the Teaching Service 59–59G (Repealed) 60 Promotion appeals (1) An officer (the appellant) may appeal to the Secretary against the decision to appoint another officer to a vacant senior position for which the appellant has unsuccessfully applied. (2) Any such appeal must be made no later than 10 days after the day on which the appellant is notified (orally or in writing) of the decision concerned. (3) An appeal may only be made on the ground that the whole or any part of the selection process for the position was irregular or improper. (4) After considering the appeal and such other information as the Secretary considers appropriate, the Secretary may— (a) allow or disallow the appeal, and (b) make such determination with respect to the appeal as the Secretary thinks fit. (5) The decision of the Secretary under subsection (4) is final. 61–71A (Repealed) 72 Excess persons Where the Secretary is satisfied— (a) that a number of persons is employed in the Teaching Service, or any part of the Teaching Service, in excess of a number that appears to be necessary for the efficient, effective and economical management of the Teaching Service or part, and (b) that any such person cannot be usefully employed in the Teaching Service, the Secretary may dispense with the services of that person. 73 Excessive salaries (1) Where the Secretary is satisfied that an officer of the Teaching Service is in receipt of a greater salary than the maximum fairly appropriate to the work performed by the officer— (a) subject to paragraph (b), the Secretary shall take such steps as are practicable to assign the officer work of a class appropriate to the salary, and (b) if the officer cannot be assigned sufficient work of the kind referred to in paragraph (a) or is unfitted for or incapable of performing work appropriate to the salary, the Secretary— (i) shall reduce the salary to the maximum determined by the Secretary to be appropriate to the work performed by the officer, and (ii) may take such steps as are practicable to secure the officer's transfer, to a vacant position in the Teaching Service, at that salary. (2) If a reduction of salary of an officer under this section is certified by the Secretary to have been made on the ground only that appropriate work or an appropriate position is not available, the officer— (a) remains eligible for promotion as if the salary had not been reduced, and (b) is entitled to employment on the class of work to which the previous salary was appropriate, or transfer to a position to which that class of work is attached, as soon as the appropriate work or an appropriate position becomes available, in preference to any other officer whose salary has not been reduced. 74, 75 (Repealed) 76 Retirement or transfer of officers through invalidity or incapacity (1) Where the Secretary determines— (a) that an officer of the Teaching Service is, because of invalidity or physical or mental incapacity, unable to perform the duties of his or her position, (b) that the invalidity or incapacity is likely to be of a permanent character, and (c) that the invalidity or incapacity has not arisen from actual misconduct on the officer's part or from causes within the officer's control, the Secretary— (d) may cause the officer to be retired from the Teaching Service, or (e) with the consent of the officer, may transfer the officer— (i) to some other position in the Teaching Service, or (ii) to ongoing employment in the Public Service (with the approval of the head of the Public Service agency concerned), (iii) (Repealed) with salary and other conditions of the officer's employment appropriate to that position or employment. (2) A decision or determination of the Secretary under subsection (1) is not subject to appeal under Part 7 of Chapter 2 of the Industrial Relations Act 1996. 77 Termination or suspension of employment if accreditation is revoked or suspended (1) The Secretary may terminate a person's employment as an officer or temporary employee if the person's accreditation is revoked under the Teacher Accreditation Act 2004. (2) An officer or temporary employee who is required to be accredited under the Teacher Accreditation Act 2004 may be suspended from employment by the Secretary during any period in which the person's accreditation under that Act is suspended. Any such suspension may be without pay. (3) An officer or temporary employee who is suspended from employment under subsection (2) for any period is, for the purposes of section 28 (2) of the Teacher Accreditation Act 2004, taken not to be employed as a teacher during that period. (4) The Secretary is not required to provide alternative employment to a person whose employment is terminated or suspended under this section. 77A Miscellaneous grounds for terminating employment (1) The Secretary may terminate— (a) a person's employment as an officer or temporary employee if the person has abandoned his or her employment, and (b) a person's employment as an officer if the person refuses or fails to commence duties in a position to which the person has been appointed or transferred under this Act. (2) This section does not limit the grounds on which the Secretary may terminate a person's employment under this Act. 78 Vacation of position An officer of the Teaching Service shall be deemed to have vacated the officer's position if— (a) the officer dies, or (b) the officer resigns the officer's position by writing signed by the officer and delivered to the Secretary and the officer's resignation is accepted by the Secretary. 78A (Repealed) Division 5 Extended leave 79 Leave of absence after years of service (1) Subject to this section, an officer of the Teaching Service is entitled— (a) after service for 10 years, to leave for 2 months on full pay or 4 months on half pay, and (b) after service in excess of 10 years, to— (i) leave pursuant to paragraph (a), and (ii) in addition, an amount of leave proportionate to the officer's length of service after 10 years, calculated on the basis of 5 months on full pay, or 10 months on half pay, for 10 years served after service for 10 years. (2) For the purpose of calculating the entitlement of a person to extended leave under this section at any time— (a) service referred to in this section includes service before the appointed day, (b) there shall be deducted from the amount of extended leave to which, but for this paragraph, that person would be entitled— (i) any extended leave, or leave in the nature of extended leave, and (ii) the equivalent, in extended leave, of any benefit instead of extended leave or leave in the nature of extended leave, taken or received by that person before that time, including any such leave taken, or benefit received, by that person pursuant to the Public Service (Amendment) Act 1919, as in force at any time, the Teaching Service Act 1970, as in force at any time, or the Public Service Act 1979, and (c) the provisions of Schedule 2 to the Government Sector Employment Regulation 2014 shall have effect, but nothing in this subsection shall be construed as authorising, in respect of the same period of leave taken or the same benefit received, a deduction under both paragraph (b) and clause 7 of Schedule 2 to the Government Sector Employment Regulation 2014. (3) Where the services of an officer of the Teaching Service with at least 5 years' service and less than 10 years' service are terminated by the Crown or the Secretary for any reason other than the officer's serious and wilful misconduct or by the officer on account of illness, incapacity or domestic or other pressing necessity, the officer shall be entitled for 5 years' service to 1 month's leave on full pay and for service after 5 years to a proportionate amount of leave on full pay calculated on the basis of 3 months' leave for 15 years' service. (4) An officer is not entitled to any such leave if the officer's employment is terminated by operation of Part 4B. (5) For the purposes of— (a) subsection (1), service includes— (i) service under the Public Service Act 1902, the Teaching Service Act 1970, the Public Service Act 1979, or this Act, (ii) any period of leave without pay taken before the commencement of the Public Service and Other Statutory Bodies (Extended Leave) Amendment Act 1963, and (iii) in the case of an officer who has completed at least 10 years' service (any period of leave without pay taken before that commencement being included therein, and any period of leave without pay taken after that commencement being excluded therefrom)—any period of leave without pay, not exceeding 6 months, taken after that commencement, and (b) subsection (3), service does not include any period of leave without pay whether taken before or after the commencement of the Public Service and Other Statutory Bodies (Extended Leave) Amendment Act 1963. 80 Gratuity instead of extended leave (1) An officer of the Teaching Service who has acquired a right to extended leave with pay under section 79, shall, on the termination of the officer's services, be paid forthwith instead of that leave the money value thereof as a gratuity in addition to any gratuity to which the officer may be otherwise entitled. (2) Any pension to which any such officer is entitled under the Superannuation Act 1916 shall commence from the date on which the officer's extended leave, if taken, would have commenced. 81 Payment of money value of leave not taken or completed (1) Where an officer of the Teaching Service has acquired a right under section 79 to extended leave with pay and dies before entering upon it, or after entering upon it dies before its termination— (a) the spouse of the officer, (b) if there is no such spouse, the children of the officer, or (c) if there is no such spouse or children, the person who, in the opinion of the Secretary, was, at the time of the death of the officer, a dependent relative of the officer, is entitled to receive the money value of the leave not taken, or not completed, computed at the rate of salary that the officer received at the time of his or her death less any amount paid to the officer in respect of the leave not taken, or not completed. (2) Where an officer of the Teaching Service with at least 5 years' service and less than 10 years' service as referred to in section 79 (3) dies— (a) the spouse of the officer, (b) if there is no such spouse, the children of the officer, or (c) if there is no such spouse or children, the person who, in the opinion of the Secretary, was, at the time of the death of the officer, a dependent relative of the officer, is entitled to receive the money value of the leave which would have accrued to the officer had his or her services terminated as referred to in section 79 (3), computed at the rate of salary that the officer received at the time of his or her death. (3) Where there is a guardian of any children entitled under subsection (1) or (2), the payment to which those children are entitled may be made to that guardian for their maintenance, education and advancement. (4) Where there is no person entitled under subsection (1) or (2) to receive the money value of any leave not taken or not completed by an officer or which would have accrued to an officer, payment in respect thereof shall be made to the personal representatives of the officer. (4A) If it appears to the Secretary that more than one person is entitled as a spouse to payment of the money value of leave under this section, the Secretary must pay the amount to the deceased officer's personal representatives. (5) Any payment under this section shall be in addition to any payment under the Superannuation Act 1916. (6) Where payment of the money value of leave has been made under this Act, no proceedings may be brought against the Crown or the Secretary for payment of any amount in respect of that leave. (7) In this section, spouse of an officer includes a de facto partner of the officer at the time of his or her death. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. Division 6 82–90 (Repealed) Division 7 Miscellaneous 91 Recovery of salary etc A member of the Teaching Service may sue for and recover the amount of his or her salary, wages or other remuneration the subject of a determination under section 13. 92 Deduction from salary or wages for use of building or provision of services (1) Except as provided in subsection (2), where an officer or temporary employee of the Teaching Service is allowed to use, for the purpose of residence, any building or part of a building, or any land, belonging to the Government of New South Wales, or is provided by that Government with any service, there shall be deducted from his or her salary, wages or other remuneration such amount as the Secretary of the Premier's Department, after consultation with the Secretary, fixes as being fair and reasonable for the use of the building, part or land or the provision of the service, as the case may be. (2) Where an officer or temporary employee of the Teaching Service is allowed to use, for the purpose of residence, any building or part of a building or any land vested in or managed by