Education and Training Reform Amendment (Early Childhood Employment Powers) Act 2024 (Vic)
Education and Training Reform Amendment (Early Childhood Employment Powers) Act 2024
No. 7 of 2024
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Principal Act
Part 2—Amendment of Education and Training Reform Act 2006
4Purpose
5Definitions
6Terms and conditions of appointment of pool members
7Terms and conditions of appointment of members
8Establishment of committees
9Payment of members
10Establishment of committees
11New Chapter 2A inserted
12Terms and conditions of office of members
13Secretary may request criminal record check of employee
14Ministerial Orders—special provisions
15Schedule 2—General provisions for authorities
16Schedule 5—Regulations
17Schedule 6—Ministerial orders
Part 3—Consequential amendment of Long Service Leave Act 2018
18Employees to whom this Act does not apply
Part 4—Repeal of this Act
19Repeal of this Act
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Endnotes
1 General information
Education and Training Reform Amendment (Early Childhood Employment Powers) Act 2024
No. 7 of 2024
[Assented to 13 March 2024]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purposes
The main purposes of this Act are—
(a)to amend the Education and Training Reform Act 2006—
(i)to enable the Secretary to employ staff at, or for the purposes of operating, government early learning centres; and
(ii)to make provision for long service leave entitlements and other employment matters for persons employed at, or for the purposes of, government early learning centres; and
(iii)to enable fees to be fixed and charged to parents of children enrolled in early childhood education and care at government early learning centres; and
(b)to consequentially amend the Long Service Leave Act 2018 .
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 30 June 2024, it comes into operation on that day.
3Principal Act
In this Act the Education and Training Reform Act 2006 is called the Principal Act.
PART 2—AMENDMENT OF EDUCATION AND TRAINING REFORM ACT 2006
4Purpose
(1)In section 1.1.1(3)(b) of the Principal Act, for "care." substitute "care; and".
(2)After section 1.1.1(3)(b) of the Principal Act insert—
"(c)the employment of persons at, or for the purposes of operating, government early learning centres.".
5Definitions
In section 1.1.3(1) of the Principal Act, insert the following definitions—
"education and care service premises has the same meaning as in the Education and Care Services National Law (Victoria);
government early learning centre means a premises designated under section 2A.2.1 to be a government early learning centre;
government ELC workforce means those persons employed by the Secretary under section 2A.1.4(1);".
6Terms and conditions of appointment of pool members
In section 2.4.45B(2) of the Principal Act, after "servant" insert ", a person employed in the government ELC workforce".
7Terms and conditions of appointment of members
In section 2.4.74(2) of the Principal Act, after "servant" insert ", a person employed in the government ELC workforce".
8Establishment of committees
In section 2.5.7(8) of the Principal Act, after "teaching service" insert ", government ELC workforce".
9Payment of members
In section 2.6.73(1) of the Principal Act, after "teaching service" insert ", government ELC workforce".
10Establishment of committees
In section 2.6A.8(5) of the Principal Act, after "teaching service" insert ", government ELC workforce".
11New Chapter 2A inserted
After Chapter 2 of the Principal Act insert—
'CHAPTER 2A—EARLY CHILDHOOD EDUCATION AND CARE
PART 2A.1—GOVERNMENT ELC WORKFORCE
Division 1—Preliminary
2A.1.1Definitions
In this Part—
casual employee means a person employed on a casual basis in the government ELC workforce;
employee means an on-going employee, a casual employee or a fixed term employee in the government ELC workforce;
executive class employee means a person employed in the government ELC workforce as an executive;
fixed term employee means a person employed on a fixed term basis in the government ELC workforce;
non-executive employee means a person employed in the government ELC workforce who is not an executive class employee;
on-going employee means a person employed in the government ELC workforce with no date fixed for the termination of that employment.
2A.1.2Application of Public Administration Act 2004
(1)The Public Administration Act 2004 applies in respect of the government ELC workforce as if, under that Act—
(a)the government ELC workforce is a "public sector body" and part of the "public sector"; and
(b)the Secretary, in the Secretary's capacity as the employer of the government ELC workforce, is the "public sector body Head" of the government ELC workforce; and
(c)an employee is a "public sector employee" and a "public official".
(2)Despite anything to the contrary in the Public Administration Act 2004, the government ELC workforce is not a "public entity" under that Act.
Division 2—Employment in government ELC workforce
2A.1.3Application of Federal awards and agreements
Employment in the government ELC workforce under this Part is subject to any relevant award or agreement under, or continued in force by, a law of the Commonwealth.
2A.1.4Secretary may employ persons in government ELC workforce
(1)The Secretary may employ any persons that are necessary to operate government early learning centres.
(2)The Secretary, on behalf of the Crown, has all the rights, powers, authorities and duties of an employer in respect of employees in the government ELC workforce.
2A.1.5Minister may declare employment arrangements
The Minister may declare by Ministerial Order—
(a)the categories of staff who may be employed by the Secretary under section 2A.1.4(1); and
(b)the terms and conditions of employment in the government ELC workforce, including salaries, wages and allowances; and
(c)position classifications and duties of persons employed in the government ELC workforce; and
(d)the eligibility and suitability criteria for employment in the government ELC workforce; and
(e)the qualifications or experience necessary for appointment, transfer or promotion to any position, class or grade in the government ELC workforce; and
(f)the processes for the recruitment and selection of persons employed in the government ELC workforce; and
(g)conduct requirements and processes for the discipline and management of unsatisfactory performance of persons employed in the government ELC workforce; and
(h)grounds for the termination of employment in the government ELC workforce; and
(i)any other matter necessary to provide for the employment of persons in the government ELC workforce.
2A.1.6Eligibility for employment in government ELC workforce
(1)A person is not eligible for employment in any position in the government ELC workforce unless the person satisfies the eligibility criteria set out in any Ministerial Order.
(2)A person is not eligible for employment in any position in the government ELC workforce if the person has—
(a)at any time been convicted or found guilty of a category A offence in Victoria or an equivalent offence in another jurisdiction; or
(b)been given a WWC exclusion.
(3)A person is not eligible for employment as an early childhood teacher in the government ELC workforce unless the person is registered under Part 2.6.
2A.1.7Restriction on employees doing other work
(1)Except with the express written permission of the Secretary, a full-time employee must not—
(a)engage in any other paid employment; or
(b)carry on any business, profession or trade.
(2)Permission given to an employee under subsection (1) may be withdrawn by notice in writing given to the employee by the Secretary.
(3)A part-time employee must not engage in any other paid employment or carry on any business, profession or trade that, in the opinion of the Secretary, conflicts with the proper performance of the employee's duties.
(4)Nothing in this section prevents an employee from—
(a)holding shares, or an interest in shares, in a company (within the meaning of the Corporations Act); or
(b)becoming a member of an incorporated association within the meaning of the Associations Incorporation Reform Act 2012.
2A.1.8Medical examination
(1)For the purpose of ascertaining the fitness of an employee—
(a)to perform the employee's duties; or
(b)to participate in any procedures under this Act relating to the employee—
the Secretary may direct the employee to submit to a medical examination by a qualified medical practitioner nominated by the Secretary.
(2)An employee must comply with a direction made under subsection (1).
Division 3—Certain employee entitlements
2A.1.9Long service leave
(1)An employee who has served for 10 years is entitled, in accordance with any Ministerial Order, to—
(a)3 months' long service leave with pay in respect of that period of 10 years' service; and
(b)one and a half months' long service leave with pay in respect of each additional period of 5 years of completed service.
(2)Despite subsection (1), a Ministerial Order may provide that an employee who has served for any period less than 10 years is entitled to be granted the long service leave with pay specified by the Ministerial Order in respect of that period of service.
(3)If an employee is entitled to a period of long service leave with pay, the Secretary, at the request of the employee, may allow the employee to take the whole or any part of the long service leave at half pay for a period equal to twice the whole or part, as the case may be, of the period to which the employee is so entitled.
(4)If—
(a)on account of age or ill-health an employee resigns, retires or has their services terminated; or
(b)an employee dies—
that employee is in accordance with a Ministerial Order entitled, or (in the case of death) is taken to have been entitled, to be granted by the Secretary—
(c)if the period of service is not less than 4 years but less than 10 years, then in respect of the period of service; or
(d)if the period of service is more than 10 years, then (in addition to any entitlement under subsection (1)) in respect of any part of the period of service which does not give rise to any entitlement under subsection (1)—
an amount of long service leave with pay that equals one-fortieth of the period of service.
(5)The Secretary has discretion as to the time of granting any leave under this section so that the government ELC workforce will not be unduly affected by the granting of the leave to numbers of employees at or about the same time.
(6)If on account of age or ill-health an employee retires or has their services terminated, that employee, by notice in writing to the Secretary, may elect to take pay in lieu of the whole or any part of the leave to which the employee is then entitled and the Secretary must grant the employee pay instead of leave accordingly.
(7)If an employee entitled to long service leave or to pay in lieu of long service leave dies before or while taking the leave or (as the case may be) before the pay in lieu is paid the Secretary must to the extent that pay instead of leave has not already been paid to that employee grant pay instead of leave of the whole or part of the leave not taken or (as the case may be) grant the pay instead of leave to the legal personal representative of the deceased employee.
(8)For the purposes of this section and section 2A.1.10, any person holding Government office or an office in the service of a prescribed public statutory body which upon a recommendation of the Minister is certified by Order of the Governor in Council to be an office substantially similar to a position in the government ELC workforce is taken to be an on-going employee in the government ELC workforce.
(9)A person may be taken to be an employee in the government ELC workforce under subsection (8) despite that by virtue of any enactment (whether passed before or after this subsection becomes law) the person, as the holder of a Government office or office in the service of a public statutory body (as the case may be), is not subject to this Act.
(10)The nature of the service and the computation of the period of service which entitled employees to be granted long service leave and the method of computing pay under this section is to be as specified in a Ministerial Order and, without affecting the generality of the foregoing, the Ministerial Order may provide that any service—
(a)in any Government office (whether an office in the Government of Victoria or of another State or of the Commonwealth); or
(b)with any specified authority, institution or similar body, whether in Victoria or elsewhere—
is, or is in certain circumstances, to be taken into account entirely or to a certain extent in computing the period of service.
(11)In the computation of the period of long service leave or pay in lieu of leave to which an employee is entitled under this section there must be taken into account any long service leave or pay instead of leave already granted to the employee.
(12)For the purposes of this section, the services of an employee are taken to be terminated—
(a)on account of age, if on or after attaining the age of 55 years the employee ceases to be an employee; or
(b)on account of ill-health, if the employee produces to the Secretary satisfactory evidence that ceasing to be an employee is due to ill-health that is likely to be permanent.
2A.1.10Payment instead of long service leave
(1)Despite anything in section 2A.1.9, if—
(a)an on-going employee with service amounting to not less than 10 years resigns or is dismissed or has the employee's services dispensed with; or
(b)a casual employee or a fixed term employee with service amounting to not less than 10 years resigns or for any reason other than age or ill-health has the employee's service terminated—
the Secretary, on the written application of the employee must, in lieu of long service leave with pay, grant the payment to the employee of a sum calculated by the Secretary in accordance with the Ministerial Order.
(2)If the Ministerial Order does not provide for a calculation for the purposes of this section, the Secretary must pay a sum calculated by the Secretary which must not in such a case exceed a sum representing pay for service equal to one‑fortieth of the period of service.
(3)No payment under subsection (1) is to be made for any part of the period of service in respect of which long service leave with pay or pay in lieu of leave has been taken by the employee.
2A.1.11Transfers to government ELC workforce from teaching service or public service
A person who is transferred or promoted from employment under Part 2.4 or in the public service to a position in the government ELC workforce is taken to have the designation in the government ELC workforce corresponding to that of the position the person had in the teaching service or the public service (as the case requires) that the Secretary determines to be appropriate to the person's duties as an employee in the government ELC workforce.
2A.1.12Certain rights of transferred employees preserved
(1)If a person is employed in the government ELC workforce, and, immediately before that employment, the person was employed under Part 2.4 or in the public service, the person preserves or retains the rights specified in subsection (2) to which the person would have been entitled if the person had remained employed under Part 2.4 or in the public service (as the case requires) and had not been employed in the government ELC workforce under this Part.
(2)For the purposes of subsection (1), the rights are—
(a)rights in respect of leave on the ground of illness; and
(b)rights in respect of long service leave or pay in lieu of long service leave (including pay to dependents on the death of the employee).
Division 4—Termination and suspension of employment
2A.1.13Termination of employment
(1)The Secretary may terminate the employment of a non-executive employee—
(a)on the ground of redundancy; or
(b)if the employee is found guilty of a criminal offence punishable by imprisonment, including an offence committed before, but not dealt with until after, the employee became an employee; or
(c)on the ground of serious misconduct; or
(d)if the Secretary is satisfied that the employee is inefficient or incompetent in the discharge of the employee's duties; or
(e)if the Secretary is satisfied that the employee has, in connection with the employee's application for employment, given false or misleading information; or
(f)for any other reason consistent with the terms and conditions of the employee's employment.
(2)The Secretary may terminate the employment of an executive class employee for any reason consistent with the terms and conditions of the employee's contract of employment.
(3)Subsections (1) and (2) do not limit or affect any other means of terminating the employee's employment.
(4)A power under subsection (1) or (2) must be exercised in conformity with the matters specified in section 20(3) of the Public Administration Act 2004.
2A.1.14Absence from duty
(1)An on-going employee who is absent from duty for a period of 3 months otherwise than on leave granted under this or any other Act or in accordance with any relevant Ministerial Order ceases to be an employee in the government ELC workforce at the end of that 3 month period.
(2)A person who ceases to be an employee under subsection (1) may apply in writing to the Secretary to be reinstated.
(3)If the Secretary directs in writing that the person be reinstated, the person's employment is taken not to have ceased under subsection (1).
2A.1.15Dismissal after conviction, finding of guilt or WWC exclusion
The Secretary must dismiss an employee from the government ELC workforce if the employee has—
(a)at any time been convicted or found guilty of a category A offence in Victoria or an equivalent offence in another jurisdiction; or
(b)been given a WWC exclusion.
2A.1.16Suspension and dismissal of unregistered teachers
(1)This section applies to an employee who is required to be registered as an early childhood teacher under Part 2.6.
(2)If the employee is refused registration under Part 2.6 or has had the employee's registration suspended or cancelled under that Part, the Secretary may suspend the employee without pay from duty in the government ELC workforce for the period that the employee's registration is refused, suspended or cancelled.
(3)A suspension under subsection (2) continues at the Secretary's discretion until—
(a)the employee is registered under Part 2.6; or
(b)the employee is dismissed from, or otherwise ceases to be an employee of, the government ELC workforce.
(4)If an employee—
(a)is refused registration under Part 2.6 or has had the employee's registration under that Part suspended or cancelled; and
(b)remains unregistered for a continuous period of 12 months—
the employment of that person ceases, by force of this subsection, at the end of that 12 month period.
(5)The Secretary must notify in writing a person whose employment has ceased under subsection (4).
(6)A person who ceases to be an employee under subsection (4) may apply in writing to the Secretary to be reinstated.
(7)If the Secretary directs in writing that the person be reinstated, the person's employment is taken not to have ceased under subsection (4).
2A.1.17No claim for compensation
An employee is not entitled to any compensation as a result of—
(a)the termination of the employee's employment; or
(b)the employee's remuneration being reduced—
in accordance with this Act or a Ministerial Order.
PART 2A.2—GOVERNMENT EARLY LEARNING CENTRES
Division 1—Operation of government early learning centres
2A.2.1Secretary may designate government early learning centre
(1)Subject to subsection (2), the Secretary may designate, by notice published in the Government Gazette, a premises to be a government early learning centre.
(2)The premises must be a place—
(a)that is, or is proposed to be, an education and care service premises; and
(b)at which early childhood education and care is, or is proposed to be, provided by or on behalf of the State.
Division 2—Fees
2A.2.2Fees for services and other matters at government learning centres
(1)The Minister may make an Order for or with respect to any matter that relates to the payment of fees for services provided at government early learning centres, including—
(a)the amount of any fee payable for the services, including—
(i)enrolment fees; and
(ii)administration fees; and
(iii)fees for the late collection of children; and
(b)the reduction or waiver of a fee; and
(c)the refund of a fee, whether in whole or in part; and
(d)the period to which a fee relates; and
(e)the person or entity to whom a fee is to be paid.
(2)The parent of a child enrolled in an education and care service at a government early learning centre must pay the fees specified in a Ministerial Order under subsection (1).
(3)The Secretary, in accordance with any Ministerial Order, may arrange for the provision of any goods, ancillary service or other thing to a child at a government early learning centre where the parent agrees to and pays for the provision of the goods, ancillary service or other thing.'.
12Terms and conditions of office of members
In section 3.3.22(6) of the Principal Act, after "authority," insert "or who is employed in the government ELC workforce,".
13Secretary may request criminal record check of employee
In section 5.3.4(1) of the Principal Act, after paragraph (a) of the definition of relevant person insert—
"(ab)a person employed by the Secretary in the government ELC workforce under section 2A.1.4(1); or".
14Ministerial Orders—special provisions
In section 5.10.5 of the Principal Act, after "teaching service" insert "or the government ELC workforce".
15Schedule 2—General provisions for authorities
In clause 3(1), (3) and (4) of Schedule 2 to the Principal Act, after "teaching service" insert ", government ELC workforce".
16Schedule 5—Regulations
After clause 4 of Schedule 5 to the Principal Act insert—
"4A Government ELC workforce
4A.1Records to be kept or published.".
17Schedule 6—Ministerial orders
After clause 8 of Schedule 6 to the Principal Act insert—
"8A Employment in the government ELC workforce
8A.1The progression of employees' salaries or wages.
8A.2The payment of gratuities in respect of special work performed by employees.
8A.3The transfer or promotion of employees.
8A.4The requirements for employee attendance and hours of duty.
8A.5Processes for the review and resolution of grievances relating to recruitment, transfer and promotion.
8A.6The entitlement of employees to leaves of absence and the entitlement of employees' legal personal representatives to pay in lieu of that leave.
8A.7The calculation and payment of employees' personal, travel or relocation expenses.
8A.8The principles of merit and equity that apply to the government ELC workforce.
8A.9The maximum period for fixed term positions.
8A.10Requirements for new employees to serve a period of probation.
8A.11Abandonment of employment by fixed term employees.
8A.12Additional grounds for terminating contracts of employment, including due to incapacity.
8A.13Matters relating to employees being assigned to work at a grade higher or lower than that which the employees were appointed.
8A.14The circumstances in which employees are entitled to retire, including due to age or ill‑health.
8A.15Specifying ranges of remuneration packages for grades or classes of executive class employees.".
PART 3—CONSEQUENTIAL AMENDMENT OF LONG SERVICE LEAVE ACT 2018
18Employees to whom this Act does not apply
In section 5 of the Long Service Leave Act 2018, for "or 2.4" substitute ", 2.4 or 2A.1".
PART 4—REPEAL OF THIS ACT
19Repeal of this Act
This Act is repealed on 30 June 2025.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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ENDNOTES
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 7 February 2024
Legislative Council: 22 February 2024
The long title for the Bill for this Act was "A Bill for an Act to amend the Education and Training Reform Act 2006 to provide for the employment of persons at, or for the purposes of operating, government early learning centres and to consequentially amend the Long Service Leave Act 2018 and for other purposes."
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