An Act relating to the employment of school administrative and support staff in the Department of Education and the regulation of the conditions of their employment; and for other purposes.
long title: Am 2002 No 112, Sch 1.7 [2]; 2015 No 58, Sch 3.30 [2].
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Education (School Administrative and Support Staff) Act 1987.s 1: Am 2002 No 112, Sch 1.7 [3].
2 Commencement
This Act shall commence on a day to be appointed by proclamation.
3 Definitions
(1) In this Act:classification means a classification of school administrative and support staff referred to in section 5.Department means the Department of Education.permanent employee means a member of the school administrative and support staff employed on a permanent basis under this Act.temporary employee means a member of the school administrative and support staff employed on a temporary basis under this Act.remuneration includes salary and wages.school administrative and support staff means school administrative and support staff of the Department.Secretary means the Secretary of the Department.Note—The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.(2) In this Act:(a) a reference to a function includes a reference to a power, authority and duty, and(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.(3) Notes included in this Act do not form part of this Act.s 3: Am 2002 No 112, Sch 1.7 [4]–[6]; 2006 No 24, Sch 2.3 [1]; 2015 No 58, Sch 3.30 [3].
Part 2 Organisation of school administrative and support staff
4 School administrative and support staff
(1) The school administrative and support staff of the Department consists of the permanent employees and temporary employees who are for the time being employed under this Act.(2) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a member of the school administrative and support staff.s 4: Am 2002 No 112, Sch 1.7 [7]; 2006 No 24, Sch 1.3 [1]; 2015 No 58, Sch 3.30 [4].
5 Classifications and positions
(1) The classifications of school administrative and support staff of the Department are such classifications as the Minister may from time to time determine.(2) The Secretary may create positions in any classification.(3) The Secretary may determine the number of working hours for any such position (whether on a weekly basis or on any other basis), and may vary the number so determined or any such basis from time to time (whether or not the position is occupied).s 5: Am 1991 No 17, Sch 1; 2002 No 112, Sch 1.7 [7].
6 Maximum number of school administrative and support staff
The Minister may from time to time make determinations relating to either or both of the following:(a) the classes or descriptions of school administrative and support staff who may be employed in any classification,(b) the maximum number of school administrative and support staff who may be employed in any classification.
7 Duties of school administrative and support staff
(1) The duties of school administrative and support staff shall be as determined by the Secretary or as specified by the regulations.(2) In the event of an inconsistency, the regulations prevail.
7A 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 a member of the school administrative and support staff 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.ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7B School administrative and support staff to report bankruptcy etc
If a member of the school administrative and support staff becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the member’s creditors, the member must:(a) immediately give to the Secretary notice of the bankruptcy, composition, arrangement or assignment, and(b) within such period as the Secretary specifies, provide the Secretary with such further information with respect to the cause of the bankruptcy or of the making of the composition, arrangement or assignment as the Secretary requires.ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7C School administrative and support staff not to undertake other paid work without permission
(1) A member of the school administrative and support staff is not to undertake any other paid work without the permission of the Secretary.(2) The Secretary may prepare guidelines with respect to the type of work that constitutes paid work for the purposes of this section.(3) Any such guidelines must be made available to members of the school administrative and support staff in such manner as the Secretary thinks appropriate.(4) This section does not apply to a temporary employee employed for less than 10 weeks.ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7D Secretary to be notified of serious offences committed by school administrative and support staff
(1) A member of the school administrative and support staff who:(a) is charged with, or who is found guilty of, an offence that is punishable by imprisonment for 12 months or more, ormust immediately report that fact to the Secretary.(b) is charged with, or who is found guilty elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable,(2) On becoming aware of the fact that a member of the school administrative and support staff has been charged with, or has been found guilty of, an offence referred to in subsection (1), the person in charge of the school or place of work in which the member is employed must also immediately report that fact to the Secretary.(3) The requirement to report to the Secretary under this section does not apply if the matter has already been reported to the Secretary under section 32L.ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7E List of persons not to be employed as school administrative and support staff
The Secretary may prepare and maintain a list of persons who the Secretary determines are not to be employed as members of the school administrative and support staff.ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
Part 3 Permanent employees
8 Employment of permanent employees
The Secretary may appoint persons to be employed in the service of the Crown on a permanent basis as members of the school administrative and support staff of the Department in any classification.s 8: Am 2002 No 112, Sch 1.7 [7].
9 Requirements as to citizenship etc
(1) A person is not eligible to be appointed as a permanent employee unless the person is:(a) an Australian citizen, orand, if so required by or under the regulations, the person produces in accordance with the regulations such evidence with respect to any matters referred to in this section as is prescribed.(b) a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law,(2) A permanent employee who is not an Australian citizen and who ceases to satisfy or does not satisfy the requirements of subsection (1) (b) is not eligible to continue in employment as a permanent employee and shall be dismissed as such an employee by the Secretary.
10 Medical assessment or examination
A person is not eligible for appointment as a permanent employee unless the person satisfies a medical assessment or examination as to the person’s health, as provided for by the regulations.
11 Appointments on probation
(1) Every person appointed as a permanent employee shall, in the first instance, be appointed on probation for a period of 6 months or such longer period as the Secretary directs.(2) The period for which a person is appointed on probation may not be in excess of 2 years, except with the concurrence of the Minister.
12 Confirmation or annulment of appointments on probation
(1) If a person has been appointed on probation under this Act, the Secretary may, following an appropriate inquiry and report:(a) after the period of probation—confirm the appointment, or(b) during or after the period of probation—annul the appointment.(2) If a person’s appointment is annulled, the person ceases to be a permanent employee unless appointed to another position as a permanent employee.(3) Action is not required to be taken under Part 6 in order to annul an appointment under subsection (1).s 12: Am 2006 No 24, Sch 1.3 [3].
13 Temporary appointments to permanent positions
(1) A permanent employee may be temporarily appointed to a position that is vacant or the holder of which is suspended, sick or absent.(2) Except with the approval of the Minister, a permanent employee may not, by way of temporary appointment, be employed for a period in excess of 6 months.
14 Vacation of position
A permanent employee shall be deemed to have vacated his or her position if:(a) the employee dies,(b) the employee resigns the position by instrument in writing addressed to the Secretary and the Secretary accepts the resignation,(c) the employee retires or is retired,(d) the employee is dismissed under this Act,(e) the employee’s appointment is annulled under this Act, or(f) the employee’s services are dispensed with as referred to in this Act.
15 (Repealed)
s 15: Rep 1990 No 99, Sch 4.
16 Incapable permanent employee may be retired
If:(a) a permanent employee is found unfit to discharge or incapable of discharging the duties of his or her position, andthe Secretary may cause the employee to be retired.(b) the unfitness or incapacity appears likely to be of a permanent character, and has not arisen from actual misconduct on his or her part, or from causes within his or her control,
17 Transfer of permanent employee
(1) The Secretary, if of the opinion that it would be in the interests of the administration of the Department to do so, may transfer a permanent employee from one position as a permanent employee to another such position equal in remuneration to that of the firstmentioned position.(2) Such a transfer may be made only if the permanent employee has the necessary qualifications for the other position.s 17: Am 2002 No 112, Sch 1.7 [7].
18 Excess permanent staff or excessive remuneration
(1) If the Secretary is satisfied that a number of persons are employed as permanent employees in excess of the number that appears to be necessary in connection with the efficient, effective and economical management of the Department or that a person is in receipt of greater remuneration as a permanent employee than the maximum fairly appropriate to the work performed by the person, then:(a) subject to paragraph (b), the Secretary shall take such steps as are practicable to transfer any such person to another position, whether in the same or a different classification, and whether in the same or a different location, and(b) if any such person cannot be usefully employed in any other position as a permanent employee, the person’s services shall be dispensed with by the Secretary.(2) The remuneration of a person transferred under this section shall be that appropriate to the position to which the person is transferred.s 18: Am 2002 No 112, Sch 1.7 [7].
19, 20 (Repealed)
s 19: Rep 2018 No 3, Sch 2 [1].
s 20: Rep 2006 No 24, Sch 1.3 [4].
Part 4 Temporary employees
21 Employment of temporary employees
(1) The Secretary may appoint persons to be employed in the service of the Crown on a temporary basis as members of the school administrative and support staff of the Department in any classification.(2) A person employed under this section may be employed for a period or periods of up to 3 years.(3) (Repealed)(4) The services of a temporary employee may be dispensed with at any time by the Secretary.(5) 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.(6) 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.s 21: Am 2002 No 112, Sch 1.7 [7]; 2018 No 3, Sch 2 [2] [3].
Part 5 Conditions of employment
22 Conditions of employment of school administrative and support staff
(1) The Secretary may, where the conditions of employment of school administrative and support staff are not fixed in accordance with the provisions of any other Act or law, fix the conditions of employment of school administrative and support staff.(2) The regulations may make provision for or with respect to the conditions of employment of school administrative and support staff.(3) The regulations made for the purposes of subsection (2):(a) shall have effect subject to any relevant award or industrial agreement, and(b) shall have effect notwithstanding the provisions of subsection (1).(4) A reference in this section to conditions of employment does not include a reference to the rates of remuneration payable to school administrative and support staff.(5) (Repealed)ss 22–24: Am 1992 No 34, Sch 1.
23 Determination of remuneration of school administrative and support staff
(1) Except in so far as provision is otherwise made by law, the remuneration of school administrative and support staff shall be as determined from time to time by the Secretary.(2) A member of the school administrative and support staff may sue for and recover the amount of the remuneration that is the subject of such a determination and payable to the member.ss 22–24: Am 1992 No 34, Sch 1.
24 Secretary to be employer for certain purposes
(1) The Secretary shall, for the purposes of any proceedings relating to school administrative and support staff held before a competent tribunal having power to deal with industrial matters, be deemed to be the employer of school administrative and support staff.(2) The Secretary may enter into an agreement with any association or organisation representing any group or class of school administrative and support staff as to any industrial matters.(3) Such an agreement shall bind all members of the school administrative and support staff in the class or group affected by the agreement and no such member, whether a member of the association or organisation with which the agreement was entered into or not, shall have any right of appeal against the terms of the agreement.(4) (Repealed)ss 22–24: Am 1992 No 34, Sch 1.
25 Right of Crown to dispense with services
Nothing in this Act shall be construed or held to abrogate or restrict the right or power of the Crown, as existing apart from this Act, to dispense with the services of any person employed in the service of the Crown as a member of the school administrative and support staff.
26 No compensation
Except as provided in this or any other Act, no member of the school administrative and support staff is entitled to any compensation by reason of any reduction in remuneration or in consequence of his or her services being dispensed with.
Part 6 Management of conduct and performance
pt 6: Subst 2006 No 24, Sch 1.3 [5].
Division 1 Preliminary
pt 6, div 1, hdg: Ins 2006 No 24, Sch 1.3 [5].
27 Objects of Part
The objects of this Part are as follows:(a) to maintain appropriate standards of conduct and work-related performance for permanent employees,(b) to protect and enhance the integrity and reputation of the school administrative and support staff of the Department,(c) to ensure that the public interest is protected.s 27: Subst 2006 No 24, Sch 1.3 [5].
28 Definitions
(1) In this Part:disciplinary action, in relation to a permanent employee, means any one or more of the following:(a) dismissing the employee,(b) directing the employee to resign, or to be allowed to resign, within a specified time,(c) reduction of the employee’s salary or demotion to a lower position,(d) the imposition of a fine,(e) a caution or reprimand.misconduct—see section 29.procedural guidelines means the guidelines in force from time to time under section 30.remedial action, in relation to a permanent employee, means any one or more of the following:(a) counselling,(b) training and development,(c) monitoring the employee’s conduct or performance,(d) implementing a plan addressing unsatisfactory performance,(e) the issuing of a warning to the employee that certain conduct is unacceptable or that the employee’s performance is not satisfactory,(f) transferring the employee to another position that does not involve a reduction of salary or demotion to a lower position,(g) any other action of a similar nature.(2) In this Part, a reference to an allegation that a permanent employee may have engaged in misconduct includes a reference to the Secretary being made aware, or becoming aware, by any means that the permanent employee may have engaged in misconduct.s 28: Subst 2006 No 24, Sch 1.3 [5].
29 Meaning of “misconduct”
(1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following:(a) a contravention of any provision of this Act or the regulations,(b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action,(c) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act,(d) taking any action against a person that is substantially in reprisal for an internal disclosure made by that person.(2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened:(a) while the permanent employee concerned was not on duty, or(b) before the permanent employee was appointed to his or her position.(3) In this section, internal disclosure means a disclosure made in good faith by a person regarding the alleged misconduct of another person.s 29: Am 2002 No 43, Sch 7.3 [1]. Subst 2006 No 24, Sch 1.3 [5]. Am 2010 No 84, Sch 2.2; 2011 No 37, Sch 2.1.
30 Issuing of procedural guidelines
(1) The Secretary may, from time to time, issue guidelines for the purposes of:(a) dealing with allegations of misconduct against permanent employees as a disciplinary matter, and(b) the taking of disciplinary action with respect to permanent employees under this Part, including disciplinary action in relation to unsatisfactory performance, and(c) any other matter referred to in this Part.(2) The procedural guidelines must be consistent with the rules of procedural fairness.(3) Without limiting subsection (2), the procedural guidelines are to ensure that:(a) a permanent employee to whom an allegation of misconduct relates:(i) is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the permanent employee, and(ii) is given an opportunity to respond to the allegation, and(b) a permanent employee against whom the Secretary is proposing to take disciplinary action under Division 3 is given a reasonable opportunity to make a submission in relation to that proposed action.(4) The Secretary may from time to time amend, revoke or replace the procedural guidelines.(5) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Secretary thinks appropriate.(6) The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the regulations prevail.(7) The procedural guidelines may apply, adopt or incorporate the procedural guidelines issued under Part 4A of the Teaching Service Act 1980 with such modifications as are necessary.s 30: Am 1999 No 94, Sch 4.109. Subst 2006 No 24, Sch 1.3 [5].
31 Requirements relating to disciplinary matters
(1) A permanent employee is not entitled to cross-examine any person in relation to an allegation of misconduct or the taking of disciplinary action against the permanent employee.(2) A hearing involving the legal representation of parties and the calling of witnesses is not to be held in relation to an allegation of misconduct or the taking of disciplinary action against a permanent employee.(3) Nothing in subsection (1) or (2) prevents the Secretary from:(a) conducting investigations into an allegation of misconduct, or(b) asking a permanent employee a question in relation to an allegation of misconduct, or(c) conducting interviews with the permanent employee to whom the allegation relates or with any other person in connection with the matter concerned, or(d) taking signed statements from the permanent employee or any such person.s 31: Subst 2006 No 24, Sch 1.3 [5].
Division 2 Dealing with misconduct
pt 6, div 2, hdg: Ins 2006 No 24, Sch 1.3 [5].
32 Dealing with an allegation of misconduct
(1) If an allegation is made to the Secretary that a permanent employee may have engaged in any misconduct, the Secretary may decide to do either or both of the following:(a) deal with the allegation as a disciplinary matter in accordance with the procedural guidelines,(b) take remedial action with respect to the permanent employee.(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Secretary may, if the Secretary is of the opinion that the permanent employee has engaged in any misconduct, decide to take disciplinary action with respect to the permanent employee.(3) Before any disciplinary action is taken with respect to a permanent employee under this section, the permanent employee must be given an opportunity to make a submission in relation to the disciplinary action that the Secretary is considering taking.(4) Even though the Secretary decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Secretary may, at any stage of the process:(a) decide to take remedial action with respect to the permanent employee concerned as well as dealing with the allegation as a disciplinary matter, or(b) decide to take remedial action with respect to the employee instead of dealing with the allegation as a disciplinary matter, or(c) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter.(5) A decision under this section by the Secretary to take remedial action with respect to a permanent employee does not, if it appears to the Secretary that the employee may have engaged in any misconduct while the remedial action is being taken, prevent the Secretary from dealing with the alleged misconduct as a disciplinary matter under this section.s 32: Am 2002 No 43, Sch 7.3 [2]. Subst 2006 No 24, Sch 1.3 [5].
Division 3 Performance management for permanent employees
pt 6, div 3 (ss 32A, 32B): Ins 2006 No 24, Sch 1.3 [5].
32A Performance reviews for permanent employees
(1) A permanent employee’s performance must be reviewed periodically by the Secretary.(2) The review of a permanent employee’s performance is to have regard to any performance criteria determined by the Secretary and such other matters as the Secretary considers relevant.pt 6, div 3 (ss 32A, 32B): Ins 2006 No 24, Sch 1.3 [5].
32B Dealing with unsatisfactory performance
(1) If the Secretary is of the opinion that a permanent employee is not performing the employee’s duties in a satisfactory manner, the Secretary may decide to do either or both of the following:(a) take remedial action with respect to the employee,(b) take disciplinary action with respect to the employee.(2) To avoid any doubt, remedial action with respect to a permanent employee is not required to be taken before disciplinary action is taken under this section with respect to the employee.(3) However, the Secretary may take disciplinary action with respect to a permanent employee under this section only if:(a) the employee has been placed on a performance improvement plan in accordance with the procedural guidelines and been given a reasonable opportunity to improve his or her performance, and(b) the Secretary is of the opinion that the employee’s performance is still unsatisfactory.pt 6, div 3 (ss 32A, 32B): Ins 2006 No 24, Sch 1.3 [5].
Division 4 Miscellaneous provisions
pt 6, div 4: Ins 2006 No 24, Sch 1.3 [5].
32C Disciplinary action may be taken if permanent employee is convicted of serious offence
(1) If a permanent employee is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the Secretary may decide to do either or both of the following:(a) take disciplinary action with respect to the employee,(b) take remedial action with respect to the employee.(2) Before any disciplinary action is taken with respect to a permanent employee under this section, the employee must be given an opportunity to make a submission in relation to the disciplinary action that the Secretary is considering taking.(3) A reference in subsection (1) to the conviction of a permanent employee for an offence punishable by imprisonment for 12 months or more includes a reference to the employee having been found guilty by a court of such an offence but where no conviction is recorded.s 32C: Ins 2006 No 24, Sch 1.3 [5].
32D Suspension of employees from duty pending certain decisions or on lapsing of working with children check clearance
(1) If an allegation that a permanent employee has engaged in misconduct is being dealt with as a disciplinary matter in accordance with the procedural guidelines, the Secretary may suspend the employee from duty until the allegation of misconduct has been dealt with.(2) If a permanent employee:(a) is charged with an offence referred to in section 32C, or(a1) is a charged person within the meaning of Part 6A, or(b) is the subject of an interim bar, or(c) is refused a working with children check clearance and the period for an application under Part 4 of the Child Protection (Working with Children) Act 2012 has not elapsed or an application has been made under that Part and has not been determined, orthe Secretary may suspend the employee from duty until the employee is notified by the Secretary that the suspension has been lifted.(d) is not the holder of a clearance and is eligible to apply, but has not applied, for a clearance,(3) Any salary payable to a person as a permanent employee while the person is suspended from duty under this section is (if the Secretary so directs) to be withheld.(4) The salary withheld under subsection (3) is forfeited to the State unless the Secretary otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed.(5) Words and expressions used in this section have the same meaning as they have in the Child Protection (Working with Children) Act 2012.s 32D: Ins 2006 No 24, Sch 1.3 [5]. Am 2012 No 51, Sch 4.5 [1] [2]; 2016 No 56, Sch 4 [1].
32E Implementation of decisions under this Part
A decision of the Secretary to take disciplinary action or remedial action under this Part with respect to a permanent employee may be carried into effect at any time.ss 32E–32G: Ins 2006 No 24, Sch 1.3 [5].
32F Provisions relating to certain forms of disciplinary action
(1) Any appointment required as the result of the taking of disciplinary action comprising demotion to a lower position is to be made by the Secretary.(2) If a fine is imposed under this Part on a permanent employee, the person responsible for paying the employee’s salary is, on receiving notice of the imposition of the fine, to deduct the amount of the fine from the salary (including any termination payment) payable to the permanent employee in such manner as the Secretary directs.ss 32E–32G: Ins 2006 No 24, Sch 1.3 [5].
32G Permanent employees retiring or resigning before disciplinary action is taken
(1) An allegation that a permanent employee has engaged in misconduct may be dealt with under this Part, and disciplinary action may be taken with respect to the employee, even though the employee has retired or resigned.(2) The taking of disciplinary action (other than a fine) with respect to the former permanent employee does not affect the former employee’s retirement or resignation or the benefits, rights and liabilities arising from the retirement or resignation.(3) A fine imposed under any such disciplinary action may be recovered from the former permanent employee as a debt due to the Crown in any court of competent jurisdiction, or out of any money payable to or in respect of the former employee by the Crown, or both.(4) A reference in this section to the resignation of a permanent employee is a reference to a resignation that has been accepted by the Secretary.ss 32E–32G: Ins 2006 No 24, Sch 1.3 [5].
32H (Repealed)
s 32H: Ins 2006 No 24, Sch 1.3 [5]. Rep 2018 No 3, Sch 2 [4].
Part 6A Termination of employment of persons barred from working with children
pt 6A, hdg: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [3].
pt 6A: Ins 2006 No 24, Sch 2.3 [2].
32I Definitions
(1) In this Part:charged person means a person whose working with children check clearance is cancelled pending determination of proceedings against the person for an offence specified in Schedule 2 to the Child Protection (Working with Children) Act 2012.means:(a) a person whose working with children check clearance is cancelled under section 23 of the Child Protection (Working with Children) Act 2012, other than a charged person, or(a1) a charged person on the person being convicted (within the meaning of the Child Protection (Working with Children) Act 2012) of an offence specified in Schedule 2 to that Act, orNote—A conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to conviction (see the definition of conviction in the Child Protection (Working with Children) Act 2012).(b) any other person who is required to hold a clearance but is not the holder of a clearance, other than a person referred to in section 32D (2) (b)–(d) or a person who is exempt from the requirement to hold a clearance.(2) Words and expressions used in this Part have the same meaning as they have in the Child Protection (Working with Children) Act 2012.s 32I: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [4] [5]; 2016 No 56, Sch 4 [2] [3].
32J Operation of this Part
(1) This Part has effect despite any other provision of this Act or the provisions of any other Act or law (including the Industrial Relations Act 1996). Accordingly, a provision of this Part prevails to the extent of any inconsistency between it and any other provision of this Act or of any other Act or law.(2) Without limiting subsection (1), this Part operates to terminate the employment of an unauthorised person without any disciplinary action having been taken in respect of the person under Part 6 of this Act.s 32J: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [6].
32K Termination of employment of unauthorised persons
(1) A permanent or temporary employee who is or becomes an unauthorised person and who is employed in child-related work is, by operation of this section, dismissed as a member of the school administrative and support staff.(2) The dismissal takes effect:(a) if the person becomes an unauthorised person after being appointed as a member of the school administrative and support staff—when the person becomes such a person, or(b) (Repealed)(c) if the person became an unauthorised person after the commencement of this section and before being appointed as a member of the school administrative and support staff—when the Secretary becomes aware that the person is such a person.(3) The dismissal takes effect immediately without any right to a hearing or any requirement to comply with the rules of procedural fairness.(4) A reference in this section to an unauthorised person who is employed in child-related work as a member of the school administrative and support staff includes a reference to a person whose substantive position as such a member involves child-related work but who is, for the time being, performing other duties that do not involve child-related work.(5) The regulations may make provision for or with respect to the entitlements of a person whose employment is terminated by operation of this section and who has received any payment in respect of a leave, superannuation or other employment-related entitlement in respect of a period following the date of the termination.(6) Any regulation made under subsection (5) has effect despite any other Act or law.s 32K: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [7]–[10].
32L Unauthorised person status to be notified to Secretary
(1) A permanent or temporary employee who becomes an unauthorised person must immediately report that fact to the Secretary.(2) On becoming aware of the fact that a permanent or temporary employee has become an unauthorised person, the person in charge of the school or place of work in which the permanent or temporary employee is employed must also immediately report that fact to the Secretary.(3) The requirement to report to the Secretary under this section does not apply if the matter has already been reported to the Secretary under section 7D.(4) (Repealed)s 32L: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [11]–[13].
32M Review of failure to obtain authorisation or of unauthorised status
(1) If an application is made by a person under Part 4 of the Child Protection (Working with Children) Act 2012, the Civil and Administrative Tribunal is to notify the Secretary of the application if it appears to the Tribunal that the person is a member (or former member) of the school administrative and support staff.(2) The Secretary is entitled to appear and be represented at any proceedings arising out of any such application.s 32M: Ins 2006 No 24, Sch 2.3 [2]. Subst 2012 No 51, Sch 4.5 [14]. Am 2013 No 95, Sch 2.50.
32N Effect of person obtaining working with children check clearance
(1) This section applies to a person who is dismissed under section 32K and who subsequently obtains a working with children check clearance.(2) If the person is granted a clearance and a period of not more than 12 months has elapsed since the date on which the person’s employment was terminated under section 32K, the person is entitled to be reinstated to, or re-employed in, a position that is similar to the position that the person held when his or her employment was terminated.(3) (Repealed)(4) A person, on being reinstated or re-employed under this section, is taken:(a) to have never been dismissed as a member of the school administrative and support staff, and(b) to have been on leave without pay during the period between dismissal and reinstatement or re-employment.(5) The regulations may make provision for or with respect to the entitlements of a person who is reinstated or re-employed under this section after the person’s employment is terminated by operation of this Part and who has received any payment in respect of a leave, superannuation or other employment-related entitlement as a result of the termination.(6) Any regulation made under subsection (5) has effect despite any other Act or law.(7) (Repealed)s 32N: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [15]–[18]; 2016 No 56, Sch 4 [4].
32O Disciplinary action may be taken against person who ceases to be an unauthorised person
Nothing in this Part prevents a person who ceases to be an unauthorised person, and who is reinstated or re-employed under this Part, from being dealt with under any other provision of this Act in relation to any matter related to the reasons why the person was an unauthorised person.s 32O: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [19].
32P Protection of persons relating to this Part
Anything done or omitted by the Secretary or any other person in good faith and with reasonable care for the purposes of this Part does not subject the Secretary or other person to any action, liability, claim or demand.s 32P: Ins 2006 No 24, Sch 2.3 [2].
32Q No compensation or other industrial remedies
The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the reinstatement or re-employment of a person contrary to a termination of employment by this Part or order the payment of damages or compensation (on any ground) for any such termination or other related matter done or omitted in accordance with this Part.s 32Q: Ins 2006 No 24, Sch 2.3 [2].
32R Protection for exercise of functions in connection with this Part
(1) This section applies to a function exercised by the Secretary, or a person authorised by the Secretary, in connection with the termination of employment of a person, or the reinstatement or re-employment of a person, under this Part (a protected function).(2) Without limiting the functions that are protected functions under this Part, a decision by the Secretary not to accept the resignation of a person or not to permit the retirement of a person is a protected function.(3) Except as provided by this section, the exercise by a person of a protected function may not be:(a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or(b) restrained, removed or otherwise affected by any proceedings.(4) Without limiting subsection (3):(a) that subsection applies whether or not the proceedings relate to any question involving compliance or non-compliance, by any such person, with the provisions of this Part or the rules of procedural fairness, and(b) the exercise of a protected function is not an industrial matter for the purposes of the Industrial Relations Act 1996.(5) Accordingly (and except as provided by this section), no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by any such person, with those provisions or those rules so far as they apply to the exercise of any protected function.(6) However, nothing in this section prevents any person who is expressly authorised or permitted by a provision of the Child Protection (Working with Children) Act 2012 to bring proceedings from bringing such proceedings or being granted such relief in those proceedings as may be authorised or permitted by this Part.(7) In this section:exercise of functions includes:(a) the purported exercise of functions, and(b) the non-exercise or improper exercise of functions, and(c) the proposed, apprehended or threatened exercise of functions.proceedings includes:(a) proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and(b) without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.s 32R: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [20].
32S (Repealed)
s 32S: Ins 2006 No 24, Sch 2.3 [2]. Rep 2012 No 51, Sch 4.5 [21].
Part 7 Miscellaneous
33 (Repealed)
s 33: Am 1991 No 17, Sch 1; 1996 No 121, Sch 4.17 [1]; 2010 No 54, Sch 3.3 [1] [2]. Rep 2015 No 58, Sch 3.30 [5].
34 Delegation by Secretary
(1) The Secretary may delegate to a Public Service employee, a member of the Teaching Service or a permanent employee the exercise of any of the Secretary’s functions under this Act.(2) If:(a) a function of the Secretary is delegated to a person in accordance with subsection (1), andthen, subject to any conditions to which the delegation is subject, the person to whom the function is delegated may sub-delegate the function to any other person to whom the function may be delegated under subsection (1).(b) the instrument of delegation authorises the sub-delegation of the function,s 34: Am 2006 No 114, Sch 3 [1] [2]; 2018 No 3, Sch 2 [5].
34A Miscellaneous grounds for terminating employment
(1) The Secretary may:(a) terminate a person’s employment as a permanent or temporary employee if the person has abandoned his or her employment, and(b) terminate a person’s employment as a permanent employee 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.s 34A: Ins 2018 No 3, Sch 2 [6].
34B Dealing with permanent or temporary employee whose address is unknown
If:(a) the Secretary takes any action under this Act with respect to a person who is a permanent or temporary employee (including any disciplinary action under Part 6 or the termination of the person’s employment), andany 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.(b) the person’s address is unknown to the Secretary,s 34B: Ins 2018 No 3, Sch 2 [6].
35 Attachment of remuneration
(1) If judgment has been entered in any court against any member of the school administrative and support staff for the payment of any sum of money, the person in whose favour the judgment is entered may serve on the Secretary:(a) a copy of the judgment certified under the hand of the registrar or other proper officer of the court in which the judgment is entered, and(b) a statutory declaration stating that the judgment has not been satisfied by the judgment debtor, and setting out the amount due by the judgment debtor under the judgment.(2) As soon as practicable after the service on the Secretary of a copy of a judgment and a statutory declaration under this section, the Secretary shall:(a) notify the judgment debtor in writing of the service of the copy of the judgment and statutory declaration, and(b) require the judgment debtor to state in writing within a time to be specified by the Secretary whether the judgment has been satisfied, and, if so, to furnish evidence in support, and if the judgment has not been satisfied, to state the amount then due under the judgment.(3) If the member of the school administrative and support staff fails to prove to the satisfaction of the Secretary that the judgment has been satisfied, the Secretary may:(a) from time to time cause to be deducted from any money due to the member such sums as are, in the Secretary’s opinion, necessary to enable the judgment to be satisfied, and(b) apply those sums in the manner provided by the following provisions of this section.(4) In no case shall a deduction be made which will reduce the amount to be received by the member of the school administrative and support staff to less than a sum per week equivalent to the amount ascertained in accordance with subsection (5).(5) The amount which is to be ascertained in accordance with this subsection is to be ascertained by deducting $8 from the basic wage in force under clause 15 of Schedule 4 to the Industrial Relations Act 1996 immediately before the deduction is made.(6) If copies of more than one judgment and statutory declaration are served on the Secretary in respect of one judgment debtor, the judgment shall be dealt with under this section in the order in which copies of the judgments are served on the Secretary.(7) Any deductions made under subsection (3) from money due to a member of the school administrative and support staff shall, as between the State and the member, be deemed to be a payment by the State to the member.(8) If a person to whom a payment has been made under this section fails to notify the Secretary immediately the judgment debt is satisfied, or is deemed to be satisfied, the person is liable, on conviction before the Local Court, to a penalty not exceeding 1 penalty unit.(9) If any deduction made under subsection (3) from money due to a judgment debtor exceeds the amount due under the judgment against the judgment debtor, the excess shall be repayable by the Secretary to the judgment debtor, and in default of payment may be recovered by the judgment debtor from the Secretary in any court of competent jurisdiction.(10) This section does not apply in relation to any member of the school administrative and support staff who is an undischarged bankrupt.(11) Out of the sums deducted under subsection (3), there shall be retained by the Secretary, to be paid to the Treasurer for credit of the Consolidated Fund, an amount equal to 5 per cent (or such other amount as the Governor may, by order, notify in the Gazette, which order the Governor is hereby authorised to make) of those sums, and the balance of those sums shall be paid to the judgment creditor.(12) If a payment is made to a judgment creditor under subsection (11), the Secretary shall forward to the judgment creditor a statement showing:(a) the sums deducted under subsection (3) in respect of the judgment from money due to the member of the school administrative and support staff concerned,(b) the amount retained by the Secretary under subsection (11) out of those sums, and(c) the balance of those sums paid to the judgment creditor under subsection (11).(13) On payment being made under subsection (11) to the judgment creditor:(a) the judgment creditor shall credit the member of the school administrative and support staff concerned with the sums referred to in subsection (12) (a), as shown in the statement forwarded to the judgment creditor, and(b) the judgment shall for all purposes be deemed to be satisfied to the extent of those sums, as so shown.(14) In this section, judgment includes a judgment against joint defendants.s 35: Am 1989 No 89, Sch 2; 1996 No 121, Sch 4.17 [2]; 2007 No 94, Sch 2.
36 Proceedings for offences
Proceedings for an offence against this Act or the regulations shall be dealt with summarily before the Local Court.s 36: Am 2001 No 121, Sch 2.91; 2007 No 94, Sch 2.
37 (Repealed)
s 37: Rep 2015 No 58, Sch 3.30 [5].
38 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, the regulations may make provision for or with respect to:(a) the procedures to be adopted for selecting, appointing and promoting, and terminating the employment of, school administrative and support staff,(b) the procedures to be adopted consequent on the appointment or promotion of school administrative and support staff,(c) the transfer of school administrative and support staff between positions,(d) the hours of attendance of school administrative and support staff,(e) the leave which may be granted to school administrative and support staff,(f) travelling and subsistence allowances for school administrative and support staff, allowances for the increased cost of living in distant parts of the State, and other allowances for school administrative and support staff, and(g) the exercise of functions of suspended, sick or absent school administrative and support staff by other school administrative and support staff, and the exercise by school administrative and support staff of the functions attached to vacant positions.(3) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.
39 Savings, transitional and other provisions
Schedule 1 has effect.s 39: Ins 1992 No 34, Sch 1. Subst 2006 No 24, Sch 1.3 [6].
Schedule 1 Savings, transitional and other provisions
(Section 39)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:Education Legislation Amendment (Staff) Act 2006, but only to the extent that it amends this Actany other Act that amends this Act(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 2 Provisions consequent on enactment of Education Legislation Amendment (Staff) Act 2006
2 Definition
In this Part:amending Act means the Education Legislation Amendment (Staff) Act 2006.
3 Prior conduct
Part 6 of this Act (as substituted by the amending Act) extends to conduct occurring before the commencement of that Part.
4 Existing disciplinary charges
If a member of the school administrative and support staff has been charged with a breach of discipline under Part 6 of this Act (as in force before the substitution of that Part by the amending Act) that has not been finally determined before that substitution, the breach of discipline is to continue to be dealt with under the provisions of that Part as if it had not been substituted.
5 Existing monitoring procedures
Any breach of discipline by a member of the school administrative and support staff being dealt with in accordance with clause 14 (2) of the Teaching Service Regulation 2001 (as applied by clause 5 of the Education (School Administrative and Support Staff) Regulation 2003) before the repeal of clause 14 (2) by the amending Act is to be dealt with under Part 6 of this Act (as substituted by the amending Act) as if the breach of discipline was the subject of an allegation of misconduct made under that Part.
Part 3 Provisions consequent on enactment of Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016
6 Secretary may reinstate or re-employ certain persons dismissed under section 32K
(1) In this clause:amending Act means the Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016.dismissed person means a permanent employee who, before the commencement of the amending Act, was dismissed under section 32K because the person’s working with children check clearance was cancelled as a consequence of the commencement of proceedings against the person in relation to an offence.(2) The Secretary may reinstate a dismissed person to, or re-employ a dismissed person in, a position that is similar to the position that the person held when his or her employment was terminated.(3) The Secretary must not reinstate or re-employ a dismissed person under subclause (2) if the person is or becomes an unauthorised person (within the meaning of Part 6A, as amended by the amending Act).(4) A dismissed person, on being reinstated or re-employed under this clause, is taken for the purposes of this Act or any other Act or law:(a) to have never been dismissed, and(b) to have been on leave without pay during the period between dismissal and reinstatement or re-employment.(5) However, the Secretary may, after reinstating or re-employing a dismissed person under this clause, suspend the dismissed person under section 32D (2) (a1), pending the outcome of the relevant proceedings.(6) Nothing in this clause entitles the dismissed person to the payment of damages or compensation (on any ground) for any termination of employment or other related matter done or omitted in accordance with Part 6A.
sch 1: Ins 2006 No 24, Sch 1.3 [6]. Am 2012 No 51, Sch 4.5 [22]; 2016 No 56, Sch 4 [5].