Vocational Education and Training (College Employment) Act 1993

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1 No. 14 of 1993 TABLE OF PROVISIONS Section 1. Purpose 2. Commencement 3. Principal Act 4. Definitions 5. New sections 6A and 6B inserted 6A. Ministerial directions on employment matters 6B. Ministerial orders 6. Amendment of section 7 7. Reserve powers of Minister 8. Powers of administrator 9. Reserve powers 10. New sections 34A to 34c inserted 34A. Employment of staff 34B. Minister may object to college director appointment 34c. Schedule Amendment of section New Schedule 2 inserted and consequential amendments SCHEDULE 2 EMPLOYMENT OF STAFF 13. Repeal of Part III of Post-Secondary Education Act Removal of TAFE colleges from Public Sector Management Act Amendment of Royal Melbourne Institute of Technology Act Amendment of Swinburne University of Technology Act Amendment of Victoria University of Technology Act Consequential amendments 19. Transfer of existing staff to college etc. employment 20. Saving of certain long service leave entitlements 21. Superannuation 22. Boards 23. Order in Council 24. Power to resolve transitional difficulties 115

2 Victoria No. 14 of 1993 Vocational Education and Training [Assented to 11 May 1993] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to provide for the employment of staff by TAFE college councils and by councils of universities with TAFE divisions. 117

3 s.2 Act No. 14/1993 NO. 45/1990 amended by 2. Commencement (1) Section 1 and this section come into operation on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act come into operation on 1 July Principal Act SI/IMI! 990, m this Act, the Vocational Education and Training Act 1990 is called the Principal Act. 52/1992 and 83/ Definitions In section 3 of the Principal Act after the definition of "Board" insert ' "executive officer" means a member of the management staff of a TAFE college or the TAFE division of a university referred to in section 6A 5. New sections 6A and 6B inserted After section 6 of the Principal Act, insert "6A. Ministerial directions on employment matters (1) The Minister may give written directions to (a) the council of a TAFE college; or (b) the council of the Royal Melbourne Institute of Technology, the council of the Swinburne University of Technology or the council of the Victoria University of Technology about the employment of staff by the council or, in the case of a university, the employment of staff in the TAFE division of that university. 118

4 Act No s.5 (2) Without limiting sub-section (1), a direction may make provision for or with respect to (a) staff redundancies, including the number of staff to be made redundant within a specified period and the transfer of staff to another TAFE college or to the TAFE division of a university referred to in sub-section (1) (b) staff superannuation arrangements including the making of employer contributions; (c) the method of accounting and payment between TAFE colleges and the universities referred to in sub-section (1) (b) in respect of accrued or accruing leave or other employment entitlements where a staff member transfers to another TAFE college or the TAFE division of a university referred to in sub-section (1) (*) (3) A direction may be made so as to apply (a) generally or in specified cases or in a specified class of case or specified classes of cases; (b) at all times or at a specified time or specified times. (4) A direction may be made so as to require a matter affected by the direction to be approved by or to the satisfaction of a specified person or a specified class of persons. (5) A direction takes effect (a) on and from the day specified in it; or 119

5 Act No (b) if no day is specified, on and from the day on which the direction is notified in the Government Gazette. (6) The Minister must cause a direction to be published in the Government Gazette as soon as practicable after it is made. 6B. Ministerial orders The Minister may make an order declaring a position or class of positions on the staff of a TAFE college or the TAFE division of a university referred to in section 6A (1) (b) to be part of the management staff of the TAFE college or TAFE division.". 6. Amendment of section 7 In section 7 of the Principal Act, after "section 6" insert "or 6A". 7. Reserve powers of Minister (1) In section 31 (1) of the Principal Act (a) in paragraph (c) omit "negligently"; (b) in paragraph (d) (i), after "management" insert ", which may include the dismissal of the college director". (2) In section 31 (2) of the Principal Act, omit "negligently". 8. Powers of administrator In section 33 (2) of the Principal Act after "council of the college" insert "and the director of the college". 9. Reserve powers For section 37 (1) of the Principal Act substitute 120

6 Act No s.10 "(1) The provisions of sections 23, 24, 28, 29, 30, 31 (1) (/) and (g), 31 (2) (to the extent that it relates to section 31 (1) (/) and (g)), 33, 34 and 36 do not apply to The School of Mines and Industries Ballarat Limited or the council of that college.". 10. New sections 34A to 34c inserted After section 34 of the Principal Act insert "34A. Employment of staff (1) Subject to any direction given by the Minister under section 6A, a council (a) must employ a college director; and (b) may employ such other staff as is necessary to enable the council to perform its functions and exercise its powers. (2) A council, in employing persons under this section, does not represent the Crown. (3) The college director must be taken to be the employer, for the purposes of the Employee Relations Act 1992 and the provisions of Schedule 2 relating to contracts of employment and for no other purpose, of any person employed under sub-section (1) (4) A college director is subject to the direction ' and control of the council in the exercise of his or her powers as an employer for the purposes referred to in sub-section (3). (5) A council may, by instrument under its common seal, delegate to the college director any power of the council under 121

7 10 Act No this section, other than this power of delegation. 34B. Minister may object to college director appointment (1) Before appointing a person as a college director a council must notify the Minister in writing of the proposal to make the appointment. (2) The Minister may, within 10 days after receiving that notification and after considering the council's proposal, give to the council notice in writing of his or her objection to the proposed appointment. (3) A council must not appoint a person as a college director if the Minister has objected to the appointment in accordance with sub-section (2). 34c. Schedule 2 (1) Schedule 2 applies to the employment of staff at a TAFE college or in the TAFE division of a university referred to in section 6A (1) (b). (2) A council may determine terms and conditions of employment of persons employed under section 34A to the extent that those terms and conditions are not determined or agreed in accordance with Schedule 2. (3) A provision determined under sub-section (2) is of no effect to the extent that it provides a term and condition of employment that is less favourable to an employee than a term or condition to which he or she was entitled under section 19, 20 or 21 of the Vocational 122

8 Act No. 14/1993 s Amendment of section 35 Education and Training (College Employment) Act 1993.". In section 35 of the Principal Act, omit "or principal". 12. New Schedule 2 inserted and consequential amendments (1) After the Schedule to the Principal Act, insert "Schedule 2 EMPLOYMENT OF STAFF PART 1 GENERAL 1. Employee Relations Act 1992 The Employee Relations Act 1992 (except section 48 (a)) applies to persons employed under section 34A or employed in the TAFE division of a university referred to in section 6A (1) (b) who are not covered by a federal award. These people are employees within the meaning of that Act. 2. Superannuation (1) A person who, immediately before being employed under section 34A or being employed in the TAFE division of a university referred to in section 6A (1) (fc) was a contributor to or member of a superannuation fund or arrangement established by the State Superannuation Act 1988 continues, subject to that Act, to be a contributor to or member of that fund or arrangement for so long as he or she is employed under section 34A or employed in the TAFE division of one of those universities. (2) The terms and conditions of a superannuation fund or arrangement to which a person continues to contribute or of which he or she continues to be a member by virtue of sub-clause (1) apply to that person, for so long as he or she is employed under section 34A or employed in a TAFE division of a university referred to in section 6A 123

9 12 Act No (1) (b) as if there had been no change of employer. PART 2 EXECUTIVE OFFICERS 3. Non-application of Employee Relations Act Despite clause 1 and anything to the contrary in the Employee Relations Act 1992 (a) any question concerning or arising from (i) the appointment of, or failure to appoint, an executive officer to the staff of a TAFE college or the TAFE division of a university referred to in section 6A (1) (fc) or the entitlement or non-entitlement of an executive officer to be appointed to that staff or the validity or invalidity of any such appointment; or (ii) the dismissal or termination of employment, or the threatened dismissal or termination of employment, of an executive officer; or (iii) in any other way the employment of an executive officer is not an industrial matter within the meaning of the Employee Relations Act 1992 and any dispute, or any threatened, probable or impending dispute concerning, or arising from, anything to do with a question referred to in this paragraph is not an industrial dispute within the meaning of that Act; (b) the Employee Relations Commission does not have power to make an award that applies to executive officers; (c) an executive officer may not apply for an order under Division 1 of Part 5 of the Employee Relations Act Contracts for executive officers The employment of an executive officer shall be governed by a contract of employment between the officer and his or her employer. 124

10 Act No. 14/1993 s Contracts to be in writing (1) The contract must be in writing and be signed by or on behalf of the employer and the officer. (2) The parties to a contract must not include a right of return to the public sector in that contract. 6. Termination of contracts A contract of employment of an executive officer may be terminated by either party to the contract giving 4 weeks notice to the other party. 7. Contracts for incumbent officers An executive officer who was appointed to a position before it was declared under section 6B to be part of the management staff of a TAFE college or a TAFE division of a university may elect to enter into a contract of employment for the position at any time up until 3 months after the date on which it was declared to be part of the management staff. After that time the officer cannot enter into a contract of employment for that position. 8. Certain positions not required to be advertised An executive officer who elects within the period specified in clause 7 to enter into a contract of employment for that position is entitled to be offered a contract for that position without the position being advertised. 9. Continuity in position If a position has been declared to be part of the management staff of a TAFE college or the TAFE division of a university, the person (if any) holding that position is to continue to hold it until the position otherwise becomes vacant even if he or she does not elect to enter into a contract of employment for that position. 10. Continuing terms and conditions of employment While a person continues to hold a position under clause 9 without having entered into a contract of 125

11 s. 12 Act No. 14/1993 employment for it the terms and conditions of employment of the person are to be the same as those which applied to the person immediately before the position was declared to be part of the management staff of a TAFE college or the TAFE division of a university. That person continues to have the benefit of all rights that have accrued or are accruing to him or her under those terms and conditions. 11. Performance allowances cease if no contract An executive officer who continues to hold a position in the circumstances set out in clause 10 ceases to be entitled to any performance related incentive payment provided for under the terms and conditions applicable under that clause. 12. TAFE directors who do not enter into contracts Despite clause 9, the director of a TAFE college or the TAFE division of a university, who has not elected to enter into a contract of employment before the end of the period specified in clause 7 (a) ceases to hold the position of director; and (b) is entitled to be employed under the same terms and conditions of employment as applied to the position of that director immediately before the position was declared to be part of the management staff; and (c) is not entitled to receive any performance related incentive payment provided for in the terms and conditions referred to in paragraph (b). 13. Superannuation (1) The Superannuation (Public Sector) Act 1992 applies to an executive officer who is a member of a statutory superannuation scheme within the meaning of Part 2 of that Act as if (a) any reference to Part 4 of the Public Sector Management Act 1992 were a reference to this Schedule; 126

12 Act No. 14/1993 s.13 (b) any reference to an employer were a reference to (i) in the case of staff of a TAFE college, the council of the college; and (ii) in the case of staff of the TAFE division of a university, the council of that university.". (2) In the Principal Act (a) in section 3, in the definition of "TAFE college" for "the Schedule" substitute "Schedule 1"; and (b) in the Schedule for "Schedule" substitute "Schedule 1". 13. Repeal of Part III of Post-Secondary Education Act 1978 Part III of the Post-Secondary Education Act 1978 is repealed. 14. Removal of TAFE colleges from Public Sector Management Act 1992 In Schedule 2 to the Public Sector Management Act 1992, item 2 is repealed. No Reprinted to No. 91/1990. Subsequently amended by Nos 33/1991, 41/1991, 69/1991, 91/1991, 10/1992, 44/1992, 45/1992 and 83/1992. No. 68/ Amendment of Royal Melbourne Institute of Technology Act 1992 In section 25 of the Royal Melbourne Institute of Technology Act 1992, after sub-section (3) insert "(4) Sections 34A to 34c and Schedule 2 to the Vocational Education and Training Act 1990 apply to the director of the Technical and Further Education Division of the University (however described) and to any other staff employed by the Council in that Division as if any reference in those provisions 127 No. 45/1992.

13 s. 16 Act No (a) to a council were a reference to the Council in its capacity as the governing authority of the Technical and Further Education Division of the University; (b) to a college director were a reference to the director of the Technical and Further Education Division of the University (however described); (c) to persons employed under section 34A of that Act were a reference to persons employed under this section; (d) to persons employed under section 34A (1) (b) of that Act were a reference to persons (other than the director) employed under this section in the Technical and Further Education Division of the University.". NO. 44/ Amendment of Swinburne University of Technology Act 1992 In section 25 of the Swinburne University of Technology Act 1992, after sub-section (3) insert "(4) Sections 34A to 34c and Schedule 2 to the Vocational Education and Training Act 1990 apply to the director of the Technical and Further Education Division of the University (however described) and to any other staff employed by the Council in that Division as if any reference in those provisions (a) to a council were a reference to the Council in its capacity as the governing authority of the Technical and Further Education Division of the University; (b) to a college director were a reference to the director of the Technical and Further Education Division of the University (however described); (c) to persons employed under section 34A of that Act were a reference to persons employed under this section; 128

14 Act No. 14J1993 s.17 (d) to persons employed under section 34A (1) (b) of that Act were a reference to persons (other than the director) employed under this section in the Technical and Further Education Division of the University.". 17. Amendment of Victoria University of Technology Act 1990 NO. 21/1990. In section 25 of the Victoria University of Technology Act 1990, after sub-section (3) insert "(4) Sections 34A to 34c and Schedule 2 to the Vocational Education and Training Act 1990 apply to the director of the Technical and Further Education Division of the University (however described) and to any other staff employed by the Council in that Division as if any reference in those provisions (a) to a council were a reference to the Council in its capacity as the governing authority of the Technical and Further Education Division of the University; (b) to a college director were a reference to the director of the Technical and Further Education Division of the University (however described); (c) to persons employed under section 34A of that Act were a reference to persons employed under this section; (d) to persons employed under section 34A (1) (b) of that Act were a reference to persons (other than the director) employed under this section in the Technical and Further Education Division of the University.". 18. Consequential amendments In section 3 of the Public Authorities (Equal Employment Opportunity) Act 1990, in paragraph (a) of the definition of "public authority" (a) omit "the State Training Board and"; and (b) for "the Schedule" substitute "Schedule 1". No. 79/

15 s.19 Act No Transfer of existing staff to college etc. employment (1) Sub-section (2) applies to a person who was, immediately before 1 July 1993 (a) holding or unattached from; or (b) a member of the Teaching Service established under the Teaching Service Act 1981 performing the duties of an office in the technical and further education teaching service under the Post-Secondary Education Act 1978 at a TAFE college or in the TAFE division of a university referred to in section 6A (1) (b) of the Principal Act. (2) A person to whom this sub-section applies must, on 1 July 1993, be taken to be employed by the TAFE college council or the council of the university at which the former office existed on the same terms and conditions, and with the same classification and accrued or accruing entitlements, as applied to that person under sections 83A to 89 and 92 of the Post-Secondary Education Act 1978 and under the Public Sector Management Act 1992 immediately before that date. (3) A person to whom sub-section (2) applies who, on 1 July 1993, was absent on leave and who does not return to duty to the TAFE college or university where the person is taken to be employed by sub-section (2) within 3 months after that period of leave ends must be taken to have resigned from employment with that college or university on the date that period ends unless the person is on further leave granted by the council of that college or university. (4) A person who is taken to have resigned from his or her employment under sub-section (3) may, within 3 months after that deemed resignation, apply in writing to the council of the college or university to be re-instated in his or her employment. If the council directs the person to be re-instated in his or her employment, the person must be treated as not having ceased to be employed. 130

16 Act No s.20 (5) On 1 July 1993 each person to whom sub-section (2) applies and his or her employer for the purposes of the Employee Relations Act 1992 are, until the making of a relevant award or employment agreement under that Act, bound by an individual employment agreement with the same terms and conditions as those that applied to the person under the provisions referred to in sub-section (2) and with the benefit of all rights accrued or accruing under those provisions. 20. Saving of certain long service leave entitlements A person to whom section 19 (2) applies continues to be entitled to long service leave on terms and conditions no less favourable to the person than those to which he or she was entitled under sections 86 and 87 of the Post-Secondary Education Act 1978 and Part 2 of Schedule 4 to the Public Sector Management Act 1992 for so long as he or she is employed under section 34A of the Principal Act or employed in the Technical and Further Education Division of Royal Melbourne Institute of Technology, of Swinburne University of Technology or of Victoria University of Technology. 21. Superannuation (1) A person to whom section 19 (2) applies who, immediately before 1 July 1993, was a contributor to or member of a superannuation fund or arrangement established by the State Superannuation Act 1988 continues, subject to that Act, to be a contributor to or member of that fund or arrangement for so long as he or she is employed under section 34A of the Principal Act or employed in the Technical and Further Education Division of Royal Melbourne Institute of Technology, of Swinburne University of Technology or of Victoria University of Technology. (2) The terms and conditions of a superannuation fund or arrangement to which a person continues to contribute or of which he or she continues to be a member by virtue of sub-section (1) apply to that person, for so long as he or she is employed under section 34A of the Principal Act or 131

17 s.22 Act No employed in a Technical and Further Education Division of a university referred to in sub-section (1) as if there had been no change of employer. 22. Boards On the commencement of this section (a) the Registration Board of technical and further education teaching service officers established by section 73 of the Post-Secondary Education Act 1978 is abolished and its chairman and members go out of office; (b) the Technical and Further Education Teaching Service Appeals Board established by section 107 of the Post-Secondary Education Act 1978 is abolished and its members go out of office; (c) the Technical and Further Education Discipline Appeals Board established under section 118 of the Post-Secondary Education Act 1978 is abolished and its members go out of office. 23. Order in Council (1) The Governor in Council may, by Order published in the Government Gazette, make provisions of a savings and transitional nature consequent on the enactment of this Act. (2) Without limiting sub-section (1), an Order may make provision for or with respect to (a) selection, appeal and disciplinary processes under the Post-Secondary Education Act 1978; or (b) proceedings relating to an application under section 93 of that Act commenced before 1 July (3) The power to make an Order under sub-section (1) is subject to the Order being disallowed by Parliament. (4) Sections 5, 6 and 6A of the Subordinate Legislation Act 1962 apply to an Order under sub-section (1) as if it were a statutory rule within the meaning of that Act. 132

18 Act No s.24 (5) A reference in section 5 (1) of the Subordinate Legislation Act 1962 to the publication of notice of the making of a statutory rule must be read for the purposes of this section as a reference to the publication of the Order. 24. Power to resolve transitional difficulties (1) If any difficulty arises in any particular matter because of the operation of sections 19, 20, 21 and 23, the Secretary to the Department of Education may make any order that he or she considers appropriate to resolve the difficulty. (2) The Secretary may make such an order on the application of any party to the matter, or on his or her own motion. (3) An order under this section has effect despite anything to the contrary in the Principal Act or the Post-Secondary Education Act NOTES 1. Minister's second reading speech Legislative Assembly: 18 March 1993 Legislative Council: 20 April The long title for the Bill for this Act was "A Bill to provide for the employment of staff by TAFE college councils and by councils of universities with TAFE divisions, to repeal Part III of the Post-Secondary Education Act 1978, to amend the Vocational Education and Training Act 1990, the Public Sector Management Act 1992 and certain other Acts and for other purposes.". 3. Section headings appear in bold italics and are not part of the Act. (See Interpretation of Legislation Act 1984.) 133

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