TAFE SA (PRESCRIBED EMPLOYEES) AMENDMENT BILL 2013

prescribed employee means an employee of the chief executive of TAFE SA employed on an ongoing basis or term basis (that is, for a specified term or for the duration of a specified project, but not on a weekly, daily or hourly basis) as an employee of any of the following classifications:

(a) Lecturer;

(b) Lecturer's Assistant;

(d) a classification prescribed by the regulations;

public sector employment means employment in the public sector under the Public Sector Act 2009.

(2) A reference in this Schedule to the effective service of a prescribed employee is a reference to—

(a) the period (if any) of the employee's continuous service as a prescribed employee; and

(b) any other period (if any) that is, by determination of the chief executive, to be regarded as forming the whole, or part, of the employee's effective service,

but does not include a period that is, by determination of the chief executive, not to be regarded as a period of effective service for the purposes of this Schedule.

(3) The chief executive may, by instrument in writing, determine in relation to a specified prescribed employee or a prescribed employee of a specified class, that a period referred to in the instrument is, or is not, to be regarded as a period of effective service for the purposes of this Schedule.

(4) A reference in subclause (2) to an employee's continuous service as a prescribed employee will be taken to include, subject to any determination under subclause (3), continuous service as an officer of the teaching service under the Technical and Further Education Act 1975.

2—Application

The conditions of employment set out in this Schedule are subject to relevant awards, determinations and enterprise agreements under the Fair Work Act 1994.

3—Basis of employment

(1) A prescribed employee may be employed on a full-time or part-time basis, and on a permanent or temporary basis.

(2) A prescribed employee may be employed on probation.

(3) The probation will be for such period of effective service (not exceeding 2 years effective service) as may be determined by the chief executive.

(4) A prescribed employee employed on a permanent basis may only be dismissed, retrenched or retired, or have his or her appointment otherwise terminated, in accordance with this Schedule.

(5) A prescribed employee employed on a temporary basis may have his or her appointment terminated at any time by the chief executive.

4—Special provisions relating to rate of remuneration for part-time employees

(1) If a prescribed employee is employed on a part-time basis (that is to say, on the basis that he or she will work in a pay period a specified percentage of the time ordinarily expected of a prescribed employee employed on a full-time basis), the rate of remuneration applicable to the employee (including any allowances that may be payable) is that same percentage applied to the rate of remuneration that would apply if he or she were employed on a full-time basis.

(2) Subclause (1)—

(a) applies in relation to salary, despite any Act or law (including the provisions of a contract of employment, award or enterprise agreement) to the contrary; and

(b) applies in relation to an allowance, subject to any express provision of a contract of employment, award or enterprise agreement that provides for payment of the full amount of the allowance to the employee; and

(c) applies regardless of the number of working days, and the period of time in any 1 day, over which the employee performs the required amount of work in a pay period; and

(d) applies in relation to a past or present entitlement to remuneration.

5—Termination of employment of employees on probation

The chief executive may by written determination at any time terminate the employment of a prescribed employee who is on probation.

6—Retrenchment

(1) If the chief executive is satisfied that—

(a) the volume of work for prescribed employees in a section has diminished; and

(b) in consequence a reduction in the number of prescribed employees has become necessary in the interest of economy; and

the chief executive may, by written determination, retrench that employee as from a date specified in the determination.

(2) A prescribed employee who is retrenched under this clause is entitled to receive—

(a) at least 12 weeks notice in writing prior to the date of retrenchment; or

(b) if the notice is less than 12 weeks, a sum equal to his or her salary for the period by which the notice falls short of 12 weeks.

7—Incapacity

(1) If the chief executive is satisfied that a prescribed employee is, by reason of mental or physical illness or disability, incapable of performing satisfactorily the duties of the employee, the chief executive may do 1 or more of the following:

(a) by written determination, transfer the employee to some other position as a prescribed employee;

(b) determine to take steps to transfer the employee to some other public sector employment;

(d) retire the employee.

(2) The chief executive must, before transferring a prescribed employee to a position of reduced status, be satisfied that transfer of the employee to a position of equivalent status is not reasonably practicable in the circumstances.

(3) If a prescribed employee is transferred to a position of reduced status under subclause (1)(a), the chief executive must alter the classification of the employee accordingly.

(4) The chief executive may, in acting under subclause (1)(b), transfer the employee to employment by the chief executive other than as a prescribed employee or attempt to secure for the employee some other appropriate public sector employment.

8—Appeal against termination, retrenchment, transfer or retirement

(1) A prescribed employee may, within 14 days after receiving notice of a determination or decision under this Schedule to terminate the employee's appointment or retrench, transfer or retire the employee, appeal to the Appeal Board against the determination or decision.

(2) On the hearing of an appeal under this clause, the Appeal Board may revoke the determination or decision and, if effect has been given to the determination or decision, order that the employee be reinstated as an employee as if no such determination or decision had been made.

9—Long service leave

(1) A prescribed employee's entitlement to long service leave accrues as follows:

(a) the employee is entitled to 63 days leave in respect of the first 7 years of effective service;

(b) the employee is then entitled to 0.75 of a day's leave for each subsequent complete month of effective service.

(2) If long service leave is taken by a prescribed employee, the employee's entitlement to long service leave is reduced accordingly.

(3) Every day from the commencement to the conclusion of a period of long service leave (whether a working day or not) will be counted as a day of that leave.

(4) This Schedule—

(a) does not affect an entitlement to long service leave or payment in lieu of long service leave that accrued before the commencement of the Technical and Further Education Act Amendment Act 1987; and

(b) does not prejudice an entitlement to pro rata long service leave arising after 5 years effective service that would have come into existence if the Technical and Further Education Act Amendment Act 1987 had not been enacted.

10—Taking of long service leave

(1) Subject to this clause, a prescribed employee who has completed at least 10 years effective service is entitled to take long service leave.

(2) The chief executive may permit a prescribed employee who has completed at least 7 years effective service to take long service leave.

(3) Long service leave may only be taken in respect of completed years of effective service.

(4) Long service leave may only be taken at times and for periods that are, in the opinion of the chief executive, convenient to TAFE SA.

(5) Subject to this clause, the salary to which a prescribed employee is entitled during long service leave is—

(a) if the effective service of a prescribed employee consists of full-time service—the salary applicable to the employee's substantive classification level during that leave (excluding any additional salary attributable to a higher classification level temporarily assigned to the employee); or

(b) if the effective service of a prescribed employee consists in whole or in part of part-time service—a salary determined by the chief executive.

(6) A prescribed employee may elect to take long service leave on half salary and, in that event, may take 2 days leave for each whole day of the employee's entitlement.

(7) If the effective service of a prescribed employee consists in whole or in part of part-time service, the employee may elect to take long service leave on the salary applicable to full-time service and, in that event, the period of the long service leave will be reduced accordingly.

(8) The chief executive may authorise payment to a prescribed employee on long service leave of such additional salary or allowances as the chief executive considers appropriate.

11—Payment in lieu of long service leave

(1) If a person ceases to be a prescribed employee after not less than 7 years effective service, the person is entitled to payment of the monetary equivalent of the employee's long service leave entitlement as at the date of cessation of service.

(2) If a prescribed employee dies, the chief executive must ensure that there is paid to—

(a) the employee's personal representative; or

(b) such of the employee's dependants as the chief executive, with the approval of the Minister, considers appropriate,

the monetary equivalent of the employee's long service leave entitlement as at the date of death.

(3) In determining the monetary equivalent of a long service leave entitlement no allowance will be made for an increase in salary that may or would have been made if the employee's service had not ceased.

(4) The chief executive may apply any amount payable to or in respect of a prescribed employee under this clause in satisfaction of a claim against the employee.

12—Interruption of service

(1) If a person is re-employed as a prescribed employee—

(a) at any time after his or her service as a prescribed employee was interrupted by retirement on the ground of incapacity; or

(b) within 2 years after his or her service as a prescribed employee was interrupted otherwise than by resignation, dismissal for misconduct or retirement on the ground of incapacity,

the person's effective service before the interruption and his or her effective service after the interruption will, for the purposes of this Schedule, be taken into account as if the service were continuous.

(2) If a person is re-employed as a prescribed employee more than 2 years after his or her service as a prescribed employee was interrupted otherwise than by resignation, dismissal for misconduct or retirement on the ground of incapacity, the chief executive may grant a certificate under this clause.

(3) If the chief executive grants a certificate under subclause (2), the person's effective service before the interruption and his or her effective service after the interruption will, for the purposes of this Schedule, be taken into account as if the service were continuous.

(4) If long service leave has been granted, or payment has been made in lieu of long service leave, in respect of a period of effective service that is required by this clause to be taken into account as if it were continuous with subsequent service, the employee's entitlement to long service leave in respect of the total period of his or her effective service will be taken to have reduced accordingly.

13—Recognition of previous employment

(1) If a prescribed employee was in prescribed employment prior to being employed as a prescribed employee and there is continuity of service between that prescribed employment and his or her effective service as a prescribed employee, the long service leave to which he or she is entitled under this Schedule must, subject to this clause, be determined on the basis that the period of his or her service that would have been taken into account for the purpose of determining his or her entitlement to long service leave in respect of the prescribed employment, as at the cessation of that employment, was effective service as a prescribed employee.

(2) In this clause—

prescribed employment means—

(a) employment in the Public Service of the Commonwealth; and

(b) employment in the Public Service of this State; and

(d) employment in the Public Service of another State or a Territory of the Commonwealth; and

(e) employment by a University established in this State; and

(f) any other employment approved by the Minister.

(3) If long service leave has been granted, or payment has been made in lieu of long service leave, in respect of a period of service in prescribed employment required by this clause to be regarded as effective service as a prescribed employee, the employee's entitlement to long service leave in respect of the total period of his or her effective service will be taken to have reduced accordingly.

(4) For the purposes of this clause, continuity of service is not interrupted by an interval, not exceeding 3 months, between the cessation of prescribed employment and the commencement of employment as a prescribed employee.

(5) If there is an interval of more than 3 months between the cessation of prescribed employment and the commencement of employment as a prescribed employee, the chief executive may, if he or she thinks that special reasons exist for so doing, declare that the interval does not disrupt the continuity of service for the purposes of this clause, and such a declaration has effect according to its terms.

14—Recognition of service as employee in future employment

(1) If a prescribed employee is transferred to other public sector employment in this State and his or her service in that employment is continuous with his or her effective service as a prescribed employee, the long service leave to which he or she is entitled in respect of that other employment must, subject to this clause, be determined on the basis that—

(a) his or her effective service as a prescribed employee; and

(b) any service required under clause 13 to be regarded as effective service as a prescribed employee in determining his or her long service leave entitlement under this Schedule,

was service in that other employment.

(2) If long service leave has been granted, or payment has been made in lieu of long service leave, in respect of a period of effective service as a prescribed employee (or a period required to be regarded as effective service as a prescribed employee), the person's entitlement to long service leave in respect of the total period of his or her service will be taken to have reduced accordingly.

15—Retiring age

A prescribed employee may retire on or after the day on which he or she reaches the age of 55 years.

16—Disciplinary action

(1) If a prescribed employee—

(a) contravenes or fails to comply with this Act; or

(b) contravenes or fails to comply with a lawful direction given to the employee under this Act; or

(d) is absent from duty without proper cause; or

(e) is guilty of any disgraceful or improper conduct,

there is sufficient cause for disciplinary action against that employee.

(2) If the chief executive finds that there is sufficient cause for disciplinary action under this clause, he or she may by written determination—

(a) reprimand the employee; or

(b) impose a fine on the employee not exceeding the amount of 1 week's salary of the employee; or

(d) suspend the employee from duty (without pay) for a period not exceeding 1 year; or

(e) dismiss the employee.

(3) A prescribed employee may, within 14 days after he or she receives notice of a determination under this clause, appeal to the Appeal Board against the determination.

(4) The Appeal Board may, on the hearing of an appeal under this clause, vary or revoke the determination subject to appeal, and, if the determination has taken effect, order that the prescribed employee be reinstated as an employee as if no such determination had been made.

(5) A fine imposed on a prescribed employee under this clause may be deducted from the salary or other remuneration payable to that employee.

17—Suspension

(1) If, in the opinion of the chief executive, the nature or circumstances of a matter alleged against a prescribed employee is such that the employee should not continue in the performance of his or her duties, the chief executive may suspend the employee.

(2) A suspension under subclause (1) may be given whether or not the employee has been charged with an offence.

(3) Unless the chief executive otherwise determines, a person suspended under this clause is entitled to his or her salary in respect of the period of suspension.

(4) If a direction has been given under subclause (3), and the guilt of the suspended employee of the matter alleged against that employee is not established by due process of law, he or she is entitled to receive the salary to which he or she would have been entitled if there had been no direction under subclause (3).

Schedule 1—Repeal and transitional provisions

Part 1—Repeal of Technical and Further Education Act 1975

1—Repeal of Act

The Technical and Further Education Act 1975 is repealed.

Part 2—Transitional provisions

2—Transitional provisions

Unless the context requires a different interpretation—

(a) a reference in another Act to an officer of the teaching service under the Further Education Act 1975, the Further Education Act 1976 or the Technical and Further Education Act 1975 will have effect as if it were a reference to a prescribed employee under Schedule A1 of the TAFE SA Act 2012; and

(b) a reference in another Act—

(i) to an officer or employee appointed by the employing authority under the Technical and Further Education Act 1975; or

(ii) to an officer or employee under the Technical and Further Education Act 1975,

will have effect as if it were a reference to an employee of the chief executive of TAFE SA under the TAFE SA Act 2012; and

(c) a reference in another Act to the Director-General of Further Education will have effect as if it were a reference to the chief executive of TAFE SA under the TAFE SA Act 2012; and

(d) a reference in another Act—

(i) to a college of advanced education or college of technical education; or

(ii) to a college within the meaning of the Technical and Further Education Act 1975,

will have effect as if it were a reference to TAFE SA.

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