Untitled document
Teaching Service (Conduct and Performance) Act 2004
Act No. 83/2004
TABLE OF PROVISIONS
Section Page
1.Purposes
2.Commencement
3.Principal Act
4.Insertion of new section 3A
3A.Employer powers of Secretary
5.Substitution of section 45
45. Termination due to physical or mental incapacity
45A.Appeal to Merit Protection Board
45B.Retirement through ill-health—long service leave
6.Substitution of Part V
PART V—MISCONDUCT AND INEFFICIENCY
Division 1—Action for misconduct or inefficiency
66. Grounds for action
67. Action against officer or employee
68. Procedures for investigation and determination of allegations
69. Quashing etc. of conviction or finding of guilt
70. Suspension from duty
71. Investigation
72. Officer or employee may make submissions
73. Secretary need not hold oral hearing
74. Appeal
75. Re-instatement or payment in lieu
75A.Address for service
Division 2—Disciplinary Appeals Boards
75B.Senior chairperson
75C.Establishment of Disciplinary Appeals Boards
75D.Membership of Boards
75E.Terms and conditions of appointment of members of the pools and of boards
75F.Resignation and removal from office
75G.Allocation of work
75H.Oath of office
75I.Member unable to perform duties
75J.Decisions of Board
75K.Conduct of proceedings
7.Insertion of new section 75L
75L.Medical examination
8.Evidence
9.Consequential amendments
10.Insertion of new section 83
83. Transitional provisions—Teaching Service (Conduct and Performance) Act 2004
11.New sections 18A and 18B inserted in Victorian Institute of Teaching Act 2001
18A.Criminal record checks
18B.Employer to disclose whether criminal record check conducted
12.New Division 2 inserted in Part I of the Education Act 1958
Division 2—Criminal Record Checks
9.Secretary may request criminal record check
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ENDNOTES
Teaching Service (Conduct and Performance) Act 2004
[Assented to 16 November 2004]
The Parliament of Victoria enacts as follows:
1.Purposes
The purposes of this Act are—
(a)to amend the Teaching Service Act 1981—
(i)to reform procedures for taking action against officers and employees for misconduct, inefficiency or physical or mental incapacity; and
(ii)to establish Disciplinary Appeals Boards; and
(iii)to make other miscellaneous amendments; and
(b)to amend the Victorian Institute of Teaching Act 2001 and the Education Act 1958 to enable criminal record checks to be obtained without consent.
2.Commencement
(1)This Act, except sections 11 and 12, comes into operation on 1 January 2005.
(2)Sections 11 and 12 come into operation on the day after the day on which this Act receives the Royal Assent.
3.Principal Act
In this Act, the Teaching Service Act 1981 is called the Principal Act.
4.Insertion of new section 3A
In Division 1 of Part II of the Principal Act, after section 3 insert—
"3A.Employer powers of Secretary
(1)The Secretary, on behalf of the Crown, has all the rights, powers, authorities and duties of an employer in respect of officers and employees in the teaching service.
(2)Without limiting sub-section (1), the Secretary—
(a)may assign to an officer or employee any duties that the Secretary thinks fit;
(b)may transfer an officer to another office in the teaching service.".
5.Substitution of section 45
For section 45 of the Principal Act substitute—
"45.Termination due to physical or mental incapacity
(1)If the Secretary is satisfied, on an inquiry under this section, that an officer or employee is incapable of performing his or her duties on account of physical or mental incapacity, the Secretary may terminate the employment of the officer or employee.
(2)For the purposes of section 37, an officer or employee whose employment is terminated under sub-section (1) is deemed to have retired on account of ill-health.
(3)The Secretary must establish procedures for the investigation and determination of an inquiry under this section.
(4)The Secretary may—
(a)nominate a person; or
(b)constitute a Board of Review—
to investigate and report to the Secretary in connection with an inquiry under this section.
(5)If it is alleged that an officer or employee is incapable of performing his or her duties by reason of physical or mental incapacity, the Secretary or a person nominated under sub-section (4)(a) or a Board of Review constituted under sub-section (4)(b) must give to the officer or employee—
(a)notice in writing of the matters to be considered by the Secretary; and
(b)an opportunity to provide to the Secretary, nominated person or Board of Review, as the case may be, a response in writing to those matters.
(6)The Secretary must give to an officer or employee who is the subject of an inquiry under this section notice in writing that the officer or employee may make a submission in writing to the Secretary addressing one or more of the following matters—
(a)the grounds on which the officer or employee is alleged to be incapable of performing his or her duties on account of physical or mental incapacity;
(b)whether termination of employment should occur.
(7)A submission under sub-section (6) must be received by the Secretary not later than 14 days after the date on which the officer or employee is given notice in writing of the right to make a submission or any longer period permitted by the Secretary.
(8)The Secretary must consider any submission made in accordance with this section before determining the issue to which the submission, or that part of the submission, relates.
(9)The Secretary may make a determination under this section without holding an oral hearing.
(10)The Secretary may hold an oral hearing or take the evidence orally, or permit cross-examination, of all or any witnesses if the Secretary considers it appropriate to do so, having regard to—
(a)the seriousness of the allegation against the officer or employee;
(b)any reasons submitted by the officer or employee in support of a request for an oral hearing;
(c)whether the Secretary considers that an oral hearing would assist in evaluating the information submitted on the inquiry;
(d)any other matter that the Secretary considers relevant.
(11)The Secretary must, by notice in writing, advise the officer or employee of—
(a)the determination of the Secretary on the inquiry; and
(b)if the Secretary takes action under section 45(1), the right to appeal to a Merit Protection Board.
45A.Appeal to Merit Protection Board
(1)If the Secretary makes a determination under section 45(1) that an officer or employee is incapable of performing his or her duties on account of physical or mental incapacity, the officer or employee may appeal to a Merit Protection Board against the determination.
(2)A notice of appeal must be lodged with the senior chairperson of the Merit Protection Boards within 14 days after the date on which the officer or employee is given notice in writing of the determination of the Secretary.
(3)A notice of appeal must—
(a)be in writing; and
(b)be in the prescribed form.
(4)A Merit Protection Board may permit an appeal to be instituted out of time if it considers that special circumstances exist.
(5)The Merit Protection Board must hear and determine the appeal and may—
(a)allow the appeal and order that the officer or employee be re-instated in the teaching service; or
(b)dismiss the appeal.
(6)An officer or employee who is re-instated in the teaching service must be treated as having had continuous service in the teaching service.
(7)Any period during which the officer or employee was not performing the duties of his or her office due to having his or her employment terminated must be treated as leave without pay.
45B.Retirement through ill-health—long service leave
(1)The Secretary may, on application under sub-section (2), direct that, for the purposes of section 37, an officer in the teaching service who ceases to be an officer on account of ill-health shall be deemed to have retired on account of ill-health.
(2)An officer may apply for a direction under sub-section (1) by producing to the Secretary satisfactory evidence that the officer's ceasing to be an officer is due to ill-health which is likely to be permanent.".
6.Substitution of Part V
For Part V of the Principal Act substitute—
'PART V—MISCONDUCT AND INEFFICIENCY
Division 1—Action for misconduct or inefficiency
66.Grounds for action
(1)The Secretary, after investigation, may take action under this Part against an officer or employee who—
(a)conducts himself or herself in a disgraceful, improper or unbecoming manner in an official capacity or otherwise; or
(b)commits an act of misconduct; or
(c)during his or her period of service is convicted or found guilty of a criminal offence punishable by imprisonment or a fine; or
(d)is negligent, inefficient or incompetent in the discharge of his or her duties; or
(e)contravenes a provision of this Act or
a Ministerial Order made under section 11 of this Act; or
(f)contravenes a requirement by or under any Act that corporal punishment not be administered to any State school student; or
(g)without reasonable excuse, contravenes or fails to comply with a lawful direction given to the officer or employee by a person with authority to give the direction; or
(h)without permission and without reasonable excuse, is absent from his or her duties; or
(i)is unfit on account of character or conduct to discharge his or her duties.
(2)In considering the fitness of an officer or employee to discharge his or her duties, consideration may be given to any relevant matters including his or her character and any conduct in which he or she has engaged (whether before or after becoming an officer or employee).
67.Action against officer or employee
(1)If the Secretary is satisfied on an inquiry under this Part that there are one or more grounds under section 66 for taking action against an officer or employee, the Secretary may take one or more of the following actions against the officer or employee—
(a)a reprimand;
(b)a fine not exceeding 50 penalty units;
Note:See section 49.
(c)a reduction in classification;
(d)termination of employment.
(2)The Secretary, by notice in writing, must advise the officer or employee of—
(a)the determination of the Secretary on the inquiry; and
(b)if the Secretary takes action under sub-section (1), the right to appeal to a Disciplinary Appeals Board.
68.Procedures for investigation and determination of allegations
The Secretary must establish procedures for the investigation and determination of an inquiry under this Part.
69.Quashing etc. of conviction or finding of guilt
If the Secretary takes action against an officer or employee on the ground referred to in section 66(1)(c) and the conviction or finding of guilt is subsequently quashed or the officer or employee receives a pardon or the conviction or finding is otherwise nullified—
(a)the action taken by the Secretary must be set aside; and
(b)the officer or employee must be re‑instated in the teaching service at the same classification as the officer or employee held before the Secretary took action; and
(c)the officer or employee must be treated as having had continuous service in the teaching service; and
(d)any period during which the officer or employee was not performing the duties of his or her office due to having been dismissed must be treated as leave without pay.
70.Suspension from duty
(1)If—
(a)the Secretary reasonably believes that there may be grounds under section 66 for taking action against an officer or employee; or
(b)an officer or employee is charged with a criminal offence punishable by imprisonment or a fine—
the Secretary may suspend the officer or employee from duty, with or without pay, by giving notice in writing to the officer or employee.
(2)A suspension under sub-section (1) continues, at the discretion of the Secretary, until the Secretary has made a determination whether or not to take action under section 67 against the officer or employee.
(3)If the Secretary takes action against an officer or employee who then appeals to a Disciplinary Appeals Board or a court or tribunal, the Secretary may suspend the officer or employee from duty, with or without pay, until the final determination of the appeal.
(4)Before deciding whether to suspend an officer or employee from duty without pay, the Secretary must give the officer or employee an opportunity to make a submission in writing to the Secretary addressing whether suspension without pay should occur.
(5)An officer or employee who is suspended from duty without pay may engage in other employment if the officer or employee first seeks the permission of the Secretary to do so.
(6)If an officer or employee is suspended from duty under this Part and the employment of the officer or employee is subsequently terminated, then unless the Secretary determines otherwise, the officer or employee forfeits all salary or wages except any salary or wages due in respect of a period before the suspension.
(7)If grounds for action against an officer or employee are not established, whether on appeal or otherwise, the Secretary must—
(a)immediately remove any suspension imposed in respect of those grounds; and
(b)ensure that the officer or employee is paid any salary or wages due in respect of the period of suspension, together with any allowances that the Secretary thinks fit.
(8)The Secretary must not pay any allowances under sub-section (7)(b) unless the officer or employee has applied to the Secretary for the payment of those allowances.
71.Investigation
(1)The Secretary may nominate a person to investigate and report to the Secretary in connection with an inquiry under this Part.
(2)The Secretary or nominated investigator must give to an officer or employee against whom it is alleged there are grounds under section 66 for action—
(a)notice in writing of the alleged grounds; and
(b)written particulars of the alleged grounds; and
(c)an opportunity to provide to the Secretary or investigator, as the case may be, a response in writing to the alleged grounds.
(3)The Secretary may request the nominated investigator to conduct further investigation and provide a further report to the Secretary at any time during an inquiry under this Part.
72.Officer or employee may make submissions
(1)The Secretary must give to an officer or employee against whom it is alleged there are grounds for action under section 66 notice in writing that the officer or employee may make a submission in writing to the Secretary addressing one or more of the following matters—
(a)the alleged grounds;
(b)any action that may be taken by the Secretary under section 67.
(2)A submission under sub-section (1) must be received by the Secretary not later than 14 days after the date on which the officer or employee is given notice in writing of the right to make a submission or any longer period permitted by the Secretary.
(3)The Secretary must consider any submission made in accordance with this section before determining the issue to which the submission, or that part of the submission, relates.
73.Secretary need not hold oral hearing
(1)The Secretary may determine, without holding an oral hearing—
(a)whether there are grounds under section 66 for taking action in respect of an officer or employee; and
(b)if the Secretary decides that there are grounds for taking action, the action, if any, under section 67 to be taken against the officer or employee.
(2)The Secretary may hold an oral hearing or take the evidence orally, or permit cross-examination, of all or any witnesses if the Secretary considers it appropriate, having regard to—
(a)the seriousness of the allegation against the officer or employee;
(b)any reasons submitted by the officer or employee in support of a request for an oral hearing;
(c)whether the Secretary considers that an oral hearing would assist in evaluating the information in support of the allegations;
(d)any other matter that the Secretary considers relevant.
74.Appeal
(1)An officer or employee may appeal to a Disciplinary Appeals Board against a determination of the Secretary to take action against the officer or employee under section 67.
(2)A notice of appeal must be lodged with the senior chairperson of the Disciplinary Appeals Boards within 14 days after the date on which the officer or employee is given notice in writing of the determination of the Secretary.
(3)A notice of appeal must—
(a)be in writing; and
(b)be in the prescribed form.
(4)A Disciplinary Appeals Board may permit an appeal to be instituted out of time if it considers that special circumstances exist.
(5)An appeal must be conducted as a re‑hearing.
(6)A Disciplinary Appeals Board must hear and determine the appeal and may—
(a)allow the appeal in whole or in part and vary the decision of the Secretary; or
(b)dismiss the appeal.
75.Re-instatement or payment in lieu
(1)If an appeal is allowed in respect of an officer or employee whose employment in the teaching service has been terminated, the Disciplinary Appeals Board may order that the officer or employee—
(a)be re-instated in the teaching service; or
(b)be paid an amount not exceeding the greater of—
(i)the remuneration received by the officer or employee during the period of 6 months immediately before the termination; or
(ii)the remuneration to which the officer or employee was entitled for the period of 6 months immediately before the termination.
(2)An officer or employee who is re-instated in the teaching service must be treated as having had continuous service in the teaching service.
(3)Any period during which the officer or employee was not performing the duties of his or her office due to having his or her employment terminated must be treated as leave without pay.
75A.Address for service
If the current address of an officer or employee is unknown, the Secretary must ensure that all notices, orders or communications relating to procedures under this Part are sent to the last known address of the officer or employee.
Division 2—Disciplinary Appeals Boards
75B.Senior chairperson
In this Division—
"senior chairperson" means the senior chairperson of the Merit Protection Boards.
75C.Establishment of Disciplinary Appeals Boards
(1)There are established one or more Boards to be known as Disciplinary Appeals Boards.
(2)The function of the Boards is to hear and determine appeals in relation to decisions of the Secretary made under section 67.
75D.Membership of Boards
(1)A Disciplinary Appeals Board shall consist of 3 members of whom—
(a)one shall be the chairperson and shall be selected by the senior chairperson from the pool of persons referred to in sub-section (2)(a); and
(b)one shall be selected by the senior chairperson from the pool of persons referred to in sub-section (2)(b); and
(c)one shall be selected by the senior chairperson from the pool of persons referred to in sub-section (2)(c).
(2)The Governor in Council shall appoint to a pool—
(a)persons who have been admitted to legal practice in Victoria for not less than 5 years and have been nominated by the Secretary;
(b)persons who are officers in the teaching service and have been nominated by the Minister after calling for expressions of interest;
(c)persons who have knowledge of or experience in education, education administration or public sector administration and have been nominated by the Secretary.
75E.Terms and conditions of appointment of members of the pools and of boards
(1)A member of a pool referred to in section 75D holds office for the period, not exceeding 5 years, specified in his or her instrument of appointment and is eligible for re-appointment.
(2)A member of a Disciplinary Appeals Board, other than a public servant or an officer or employee in the teaching service, is entitled to the remuneration and allowances (if any) fixed in respect of the member from time to time by the Minister.
(3)The Public Sector Management and Employment Act 1998 (except in accordance with Part 7 of that Act) does not apply to a member of a pool or a member of a Disciplinary Appeals Board in respect of the office of member.
75F.Resignation and removal from office
(1)A member of a pool may resign from office by sending to the Governor a signed letter of resignation.
(2)The Governor in Council may at any time remove a member of a pool from office.
75G.Allocation of work
The senior chairperson is to determine—
(a)the allocation of business to the Disciplinary Appeals Boards; and
(b)which Board is to hear an appeal.
75H.Oath of office
A member of a Disciplinary Appeals Board must take an oath or make an affirmation in or to the effect of the oath in the Schedule before first serving as a member of a Board.
75I.Member unable to perform duties
(1)If—
(a)the hearing of an appeal before a Disciplinary Appeals Board has commenced but not concluded; and
(b)a member of the Board is absent or for any other reason is unable to perform the duties of office—
the remaining members of the Board may continue to hear and determine the appeal in the absence of that member.
(2)The decision of the remaining members in relation to the appeal must be unanimous.
75J.Decisions of Board
(1)A decision of the majority of members of a Disciplinary Appeals Board in relation to an appeal is to be treated as the decision of the Board.
(2)A Disciplinary Appeals Board must not refuse to hear an appellant except by a unanimous decision.
75K.Conduct of proceedings
(1)A Disciplinary Appeals Board may allow an officer or employee to appear before the Board personally or by a legal or other representative.
(2)All proceedings before a Disciplinary Appeals Board—
(a)must be conducted without regard to legal formalities; and
(b)must be directed by the best evidence available, whether or not it is the best evidence that the law in other cases admits, requires or demands.'.
7.Insertion of new section 75L
In Part VI of the Principal Act, before section 76 insert—
"75L.Medical examination
(1)For the purpose of ascertaining the fitness of an officer or employee—
(a)to perform his or her duties; or
(b)to participate in any procedures under this Act relating to the officer or employee—
the Secretary may direct the officer or employee to submit to a medical examination by a qualified medical practitioner nominated by the Secretary.
(2)An officer or employee must comply with a direction made under sub-section (1).".
8.Evidence
In section 48 of the Principal Act—
(a)for "and 16" substitute ", 16 and 21A";
(b)for "or a Merit Protection Board" substitute "a Merit Protection Board or a Disciplinary Appeals Board";
(c)for "or Merit Protection Board" substitute
", Merit Protection Board or Disciplinary Appeals Board".
9.Consequential amendments
(1)In section 26(1)(b) of the Principal Act—
(a)after "removed from office" insert "or the member's employment is terminated";
(b)for "class or grade" substitute "division, class, subdivision or grade".
(2)In section 49 of the Principal Act, after "officer" (where twice occurring) insert "or employee".
(3)In section 53 of the Principal Act—
(a)after "officer" insert "or employee";
(b)after "dispensed with" insert "or of termination of employment".
(4)In section 64(2)(b) of the Principal Act, for "this or any other Act" substitute "this Act (except Part V) or any other Act".
(5)In section 78(2)(e) of the Principal Act, after "Board" insert "or a Disciplinary Appeals Board".
(6)In the Schedule to the Principal Act—
(a)for "Merit Protection Board" substitute "*Merit Protection Board/*Disciplinary Appeals Board";
(b)at the end of the Schedule insert—
"*Delete as appropriate".
10.Insertion of new section 83
After section 82 of the Principal Act insert—
"83.Transitional provisions—Teaching Service (Conduct and Performance) Act 2004
(1)This Act and the Teaching Service (Merit Protection Board) (Appeal) Regulations 2004 as in force immediately before the commencement of the Teaching Service (Conduct and Performance) Act 2004 continue to apply to—
(a)any action under section 9(8) that has commenced but not concluded before that commencement; and
(b)an inquiry under section 45 that has commenced but has not been finally determined before that commencement; and
(c)a charge for an offence under section 66 that has been laid but has not been finally determined before that commencement; and
(d)an investigation under section 68(a) that has begun before that commencement; and
(e)any action taken by the Secretary under section 67 or 70 before that commencement.
(2)Subject to sub-section (1), this Act as amended by the Teaching Service (Conduct and Performance) Act 2004 applies to an inquiry under section 45 or Part V that commences after the commencement of that Act, irrespective of when the grounds for action are alleged to have occurred.".
11.New sections 18A and 18B inserted in Victorian Institute of Teaching Act 2001
After section 18 of the Victorian Institute of Teaching Act 2001 insert—
"18A.Criminal record checks
(1)The chief executive officer of the Institute may, at any time, request the Chief Commissioner of Police to give to the chief executive officer information concerning the criminal record, if any, of a registered teacher and, for that purpose, may disclose to the Chief Commissioner the information concerning the registered teacher that is necessary to conduct the criminal record check.
(2)The chief executive officer may make a request under sub-section (1) without the consent of the registered teacher named in the request but must give notice of the request to that teacher.
(3)The Chief Commissioner of Police must, not more than 14 days after receiving a request under sub-section (1), enquire into and report to the chief executive officer on the criminal record, if any, of the registered teacher named in the request.
18B.Employer to disclose whether criminal record check conducted
On request by the chief executive officer of the Institute, the employer of a registered teacher must disclose to the chief executive officer whether to the knowledge of the employer the registered teacher has undergone a criminal record check at any time.".
12.New Division 2 inserted in Part I of the Education Act 1958
After Division 1 of Part I of the Education Act 1958 insert—
'Division 2—Criminal Record Checks
9.Secretary may request criminal record check
(1)In this section—
"relevant person" means—
(a)a person employed by the Secretary under section 5 or 5A or under the Public Sector Management and Employment Act 1998 or the Teaching Service Act 1981; or
(b)a person employed by a school council under section 15B or 15ZK.
(2)The Secretary may, at any time, request the Chief Commissioner of Police to give to the Secretary information concerning the criminal record, if any, of a relevant person who performs some or all of their duties in a State school and, for that purpose, may disclose to the Chief Commissioner the information concerning the relevant person that is necessary to conduct the criminal record check.
(3)If a request relates to a relevant person employed by a school council, the school council may disclose to the Secretary the information concerning the relevant person that is necessary to conduct the criminal record check.
(4)The Secretary may make a request under sub-section (2) without the consent of the relevant person named in the request but must give notice of the request to that person.
(5)The Chief Commissioner of Police must, not more than 14 days after receiving a request under sub-section (2), enquire into and report to the Secretary on the criminal record, if any, of the relevant person named in the request.
(6)If the report relates to a relevant person employed by a school council, the Secretary may give a copy of the report to the school council.'.
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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 16 September 2004
Legislative Council: 3 November 2004
The long title for the Bill for this Act was "to amend the Teaching Service Act 1981, the Victorian Institute of Teaching Act 2001 and the Education Act 1958 and for other purposes."
By Authority. Government Printer for the State of Victoria.
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