Teaching Services Amendment Bill
2004

New South Wales
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Teaching Services Act 1980 (the Principal Act)
as follows:

(a) to provide for merit selection in relation to the appointment of persons to
senior positions in the Teaching Service,

(b) to provide a statutory framework for managing the performance of
government school principals, including annual performance reviews,
implementation of performance improvement programs and streamlined
procedures for dealing with unsatisfactory performance,

(c) to make a number of amendments that are generally in the nature of statute law
revision (such as updating references to reflect administrative changes,
removing provisions that relate to the abolished Technical and Further
Education Teaching Service and removing provisions that have been
superseded by the Public Sector Employment and Management Act 2002, in
particular provisions relating to the transfer of staff which is now done under
Part 3.2 of that Act).

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Teaching
Services Act 1980 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Acts and
the regulation set out in Schedule 2.

Schedule 1 Amendment of Teaching Services Act
1980
Merit appointment to senior positions
Schedule 1 [16] inserts proposed section 47A into the Principal Act to provide that
appointments to vacant senior positions in the Teaching Service are to be made on
the basis of the merit of the applicants for the position concerned. A senior position
is any position to which a person employed in the Teaching Service could be
promoted (see proposed section 4 as inserted by Schedule 1 [4]), although proposed
section 47A makes it clear that persons who are not already employed in the
Teaching Service can be appointed, on merit, to senior positions. The proposed
section also provides that legal proceedings cannot be brought in respect of
appointments to vacant senior positions. The exclusion of legal proceedings in this
case is consistent with section 22 of the Public Sector Employment and Management
Act 2002 (which applies to appointments to all vacant positions in the Public
Service).

Performance management for school principals
Schedule 1 [27] replaces Division 3 of Part 4 (which currently contains obsolete
provisions relating to members of the abolished Technical and Further Education
Teaching Service) with provisions for dealing with unsatisfactory performance on
the part of school principals. Under the new performance management regime,
school principals will be subject to performance reviews at least annually. If a school
principal is not performing in a satisfactory manner, the Director-General of the
Department of Education and Training may implement a performance improvement
program for the principal. If the principal’s performance is still unsatisfactory
following that program, the Director-General may decide, after giving the principal
21 days in which to make written submissions on the matter and taking into
consideration those submissions, to dismiss the principal from the Teaching Service
or demote the principal to a lower position.

Miscellaneous and consequential amendments
The proposed Act makes a number of amendments to the Principal Act that are
consequential on the reforms described in the above paragraphs. A number of
miscellaneous amendments are also made to remove obsolete references and to
generally bring the Principal Act up to date. Some of these miscellaneous
amendments relate to administrative changes that have not yet been reflected in the
Principal Act.

Schedule 1 [3], [6], [8], [10], [19], [26], [28], [29], [35], [36], [38], [40], [41],
[43]–[45], [47]–[51], [54]–[56] and [64] remove all provisions relating to the
Technical and Further Education Teaching Service (including associated references
to the Department of Technical and Further Education and the Director-General of
Technical and Further Education) and make a number of amendments consequent on
there being only one Teaching Service and one person exercising functions as
Director-General under the Principal Act. Since the establishment of the TAFE
Commission in 1991, the Principal Act has ceased to apply to the Technical and
Further Education Teaching Service, but the provisions relating to that Service have
remained in the Principal Act. Also, as there is only one Teaching Service established
under the Principal Act, the existing Education Teaching Service is to be renamed as
the “Teaching Service” (see Schedule 1 [9]) and the long title and name of the
Principal Act are amended accordingly (see Schedule 1 [1] and [2]).

Schedule 1 [4] updates the definitions used in the Principal Act as a consequence of
the other amendments made by the proposed Act.

Schedule 1 [5] omits Parts 2 and 3 of the Principal Act and restates the provisions
contained in those Parts in a new consolidated Part. Part 2 currently deals with the
employment functions of the Secretary of the Ministry of Education and Youth
Affairs (that position is required by administrative changes orders to be construed as
a reference to the Director-General of the Department of Education and Training)
and Part 3 currently specifies the other functions conferred or imposed on the
Director-General in relation to the Teaching Service. The new Part 2 retains these
provisions with some exceptions. For example, proposed section 7 (cf current section
38 of the Principal Act) no longer makes provision for promotions lists, and it will
specifically authorise the Director-General to prepare and maintain lists of persons
who are not to be employed in the Teaching Service. The definition of industrial
matters in proposed section 10 (cf current section 4 of the Principal Act) no longer
needs to translate references in the Industrial Relations Act 1996 to “industrial
unions” and “trade union” because those references do not occur in that Act. Also,
section 28 of the Principal Act is not restated because the provision no longer has
practical utility (mainly because the positions of Secretary and the Director-General
currently comprise a single position).

Schedule 1 [7] omits section 42 of the Principal Act (which is to be restated as
proposed section 44 (2)—see Schedule 1 [9]) and section 43 (which purports to
exclude the Public Sector Employment and Management Act 2002 in relation to
members of the Teaching Service). Certain provisions of that Act, such as the
provisions relating to staff mobility and public sector executives, do, however,
currently apply to the members of the Teaching Service.

Schedule 1 [11] omits section 46 (which provides for the Governor to determine the
staff establishment for positions above the level of staff inspector) because these
positions no longer exist as such in the Teaching Service.

Schedule 1 [12] restates the provision that enables the Director-General to appoint
persons to positions in the Teaching Service so as to make that provision subject to
proposed section 47A (which provides for merit appointment to senior positions) and
to remove references to separate staff establishments in the Teaching Service. Also,
the notion of permanency is removed to make the Principal Act more consistent with
the legislative scheme relating to the Public Service. Schedule 1 [17] and [25] are
consequential amendments.

Schedule 1 [13] excludes appointments to senior positions from section 47 (1A) of
the Principal Act which requires the Director-General to give preference to an
Aboriginal person when making an appointment to a position in the Teaching
Service.

Schedule 1 [14] updates references in relation to the Director-General of the
Department of Education and Training and Schedule 1 [24] and [39] deal with
obsolete references to the Secretary.

Schedule 1 [18] makes it clear that proposed section 54 (to be inserted by Schedule
1 [27] and which enables the Director-General to dismiss a school principal from the
Teaching Service for unsatisfactory performance) does not, in the case of a school
principal who has been appointed on probation, prevent the principal’s probationary
appointment from being annulled at any time.

Schedule 1 [20]–[22] clarify and restate the provisions relating to the employment
of persons as temporary employees in the Teaching Service.

Schedule 1 [23] corrects a cross-reference.

Schedule 1 [30] omits the provisions of the Principal Act relating to the filling of
vacancies in positions in the Teaching Service for which there are promotions lists.

At present under the Principal Act, the Director-General may prepare lists of officers
in the Teaching Service who are eligible to be promoted. If a vacancy in a position
for which there is a promotions list is to be filled, only those persons whose names
are on the list are eligible to be appointed unless, as section 47 (5) of the Principal
Act currently provides, the Director-General certifies that there is no other person
employed in the Teaching Service who is available to fill the position. These
provisions restrict the class of persons who can be considered for appointment to
senior positions and are inconsistent with the principle of merit appointment as
provided by proposed section 47A. Schedule 1 [15] consequentially repeals section
47 (5) (as well as section 47 (2)–(4) as a consequence of other amendments made by
the proposed Act).

Schedule 1 [31]–[34], [59] and [61] are consequential on the removal of the
provisions relating to promotions lists and the introduction of merit appointments for
senior positions. An officer will still be able to appeal against the decision of the
Director-General to appoint another officer to a vacant senior position for which the
applicant has unsuccessfully applied, but appeals in relation to seniority and
placement on a promotions list are no longer relevant.

Schedule 1 [37] omits sections 71 (which relates to the transfer of staff within the
Teaching Service) and 71A (which allows the Director-General to make
arrangements for the use of staff of other agencies). These provisions have been
superseded by Part 3.2 of the Public Sector Employment and Management Act 2002
which provides for staff transfers between and within public sector services (which
include the Teaching Service) as well as for the secondment and temporary
assignment of staff. Schedule 1 [60] is a consequential amendment.

Schedule 1 [42] provides that the term “appropriate Department Head” has the
meaning given to it under the Public Sector Employment and Management Act 2002.

Schedule 1 [46] is consequential on the amendment made by Schedule 1 [27]. It
makes it clear that a school principal’s unsatisfactory performance is to be dealt with
under the new performance management regime and not as a breach of discipline
under Division 6 of Part 4 of the Principal Act.

Schedule 1 [52], [58] and [63] are consequential on the renumbering of the
provisions of the existing Parts 2 and 3 and the consolidation of those Parts into the
new Part 2.

Schedule 1 [53] updates a reference relating to the Public Employment Office.

Schedule 1 [57] omits section 98 as a consequence of sections 102 and 103 of the
Public Sector Employment and Management Act 2002. Those sections, which apply
to members of the Teaching Service, make provision with respect to employees who
contest State elections and to the re-appointment of employees who resign to contest
Commonwealth elections.

Schedule 1 [62] removes an obsolete reference to a public school (the term school in
the Principal Act is to be defined as a government school established under the
Education Act 1990).

Schedule 1 [65] omits section 102 which is unnecessary because of section 42 (2) of
the Interpretation Act 1987.

Schedule 1 [66] enables regulations of a savings and transitional nature to be made
as a consequence of the enactment of the proposed Act.

Schedule 1 [67] inserts savings and transitional provisions as a consequence of the
enactment of the proposed Act.

Schedule 2 Amendment of other legislation
Schedule 2 amends a number of other Acts, as well as the Education Teaching
Service Regulation 2001, as a consequence of the miscellaneous changes to the
Principal Act made by Schedule 1 (for example, updating and changing references
that relate to the Teaching Service).

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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