Education (School Administrative and Support Staff) Act 1987
In ForceNSW
Jurisdiction
New South Wales
Act Number
240 of 1987
Collection
act
Plain English Summary
7/10 complexity
The law creates a distinct employment regime for Department of Education school administrative and support staff, centralising appointment, classification and disciplinary authority in the Minister and the Secretary and treating the Secretary as the operational employer.
It imposes reporting duties (bankruptcy, serious charges, WWCC status), an internal misconduct/performance regime, and an automatic, immediate dismissal for loss of child‑work authorisation while limiting formal hearing rights and external remedies — shifting risk and speed toward the employer and increasing compliance and monitoring costs for staff.
The Education (School Administrative and Support Staff) Act 1987 (the Act) establishes a self-contained statutory employment regime for non-teaching personnel within the New South Wales Department of Education. At its core, the Act defines the composition of the “school administrative and support staff” (s 3(1)), distinguishes between permanent employees (appointed under s 8) and temporary employees (appointed under s 21), and confers broad managerial powers on the Secretary and the Minister.
Part 2 organises the workforce. Section 4(1) provides that the staff consists of those employed under the Act; s 4(2) expressly disapplies the general Public Service employment provisions of the Government Sector Employment Act 2013. The Minister determines classifications (s 5(1)) and may cap the number of staff in any classification (s 6). The Secretary creates individual positions, sets working hours (s 5(2)–(3)), and determines duties either directly or by regulation, with regulations prevailing in the event of inconsistency (s 7).
Parts 3 and 4 deal with the two employment streams. Permanent employees are appointed to the service of the Crown (s 8), subject to citizenship or permanent-residency requirements (s 9), medical fitness (s 10), and an initial probation period of six months (extendable to two years with Ministerial concurrence) (s 11). Confirmation or annulment of probation occurs after inquiry (s 12); annulment does not require Part 6 processes (s 12(3)). Temporary employees may be engaged for periods up to three years (s 21(2)) and may be terminated on four weeks’ notice or pay in lieu, with no further compensation entitlement (s 21(5)–(6)).
Part 5 addresses conditions of employment. Where not fixed by award or agreement, the Secretary may determine conditions (s 22(1)), but regulations prevail over such determinations (s 22(3)). Remuneration is set by the Secretary (s 23(1)) and is recoverable as a debt (s 23(2)). The Secretary is deemed the employer for industrial proceedings (s 24(1)) and may enter binding agreements with staff associations (s 24(2)–(3)).
Current sections
Direct links to the current provisions in Education (School Administrative and Support Staff) Act 1987.
This Act shall commence on a day to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act—
classification means a classification of school administrative and support staff referred to in section 5.
Department means the Department of Education.
permanent employee means a member of the school administrative and support staff employed on a permanent basis under this Act.
temporary employee means a member of the school administrative and support staff employed on a temporary basis under this Act.
remuneration includes salary and wages.
school administrative and support staff means school administrative and support staff of the Department.
Secretary means the Secretary of the Department.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) In this Act—
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
(3) Notes included in this Act do not form part of this Act.
s 3: Am 2002 No 112, Sch 1.7 [4]–[6]; 2006 No 24, Sch 2.3 [1]; 2015 No 58, Sch 3.30 [3].
Part 2
Organisation of school administrative and support staff
Part 2 Organisation of school administrative and support staff
Part 2 Organisation of school administrative and support staff
4
School administrative and support staff
4 School administrative and support staff
4 School administrative and support staff
(1) The school administrative and support staff of the Department consists of the permanent employees and temporary employees who are for the time being employed under this Act.
(2) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a member of the school administrative and support staff.
s 4: Am 2002 No 112, Sch 1.7 [7]; 2006 No 24, Sch 1.3 [1]; 2015 No 58, Sch 3.30 [4].
5
Classifications and positions
5 Classifications and positions
5 Classifications and positions
(1) The classifications of school administrative and support staff of the Department are such classifications as the Minister may from time to time determine.
(2) The Secretary may create positions in any classification.
(3) The Secretary may determine the number of working hours for any such position (whether on a weekly basis or on any other basis), and may vary the number so determined or any such basis from time to time (whether or not the position is occupied).
s 5: Am 1991 No 17, Sch 1; 2002 No 112, Sch 1.7 [7].
6
Maximum number of school administrative and support staff
6 Maximum number of school administrative and support staff
6 Maximum number of school administrative and support staff
The Minister may from time to time make determinations relating to either or both of the following—
(a) the classes or descriptions of school administrative and support staff who may be employed in any classification,
(b) the maximum number of school administrative and support staff who may be employed in any classification.
7
Duties of school administrative and support staff
7 Duties of school administrative and support staff
7 Duties of school administrative and support staff
(1) The duties of school administrative and support staff shall be as determined by the Secretary or as specified by the regulations.
(2) In the event of an inconsistency, the regulations prevail.
7A
Protection of children to be paramount consideration
7A Protection of children to be paramount consideration
7A Protection of children to be paramount consideration
(1) The protection of children is to be the paramount consideration—
(a) in taking any action with respect to a member of the school administrative and support staff under this Act, and
(b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action.
School administrative and support staff to report bankruptcy etc
7B School administrative and support staff to report bankruptcy etc
7B School administrative and support staff to report bankruptcy etc
If a member of the school administrative and support staff becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the member’s creditors, the member must—
(a) immediately give to the Secretary notice of the bankruptcy, composition, arrangement or assignment, and
(b) within such period as the Secretary specifies, provide the Secretary with such further information with respect to the cause of the bankruptcy or of the making of the composition, arrangement or assignment as the Secretary requires.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7C
School administrative and support staff not to undertake other paid work without permission
7C School administrative and support staff not to undertake other paid work without permission
7C School administrative and support staff not to undertake other paid work without permission
(1) A member of the school administrative and support staff is not to undertake any other paid work without the permission of the Secretary.
(2) The Secretary may prepare guidelines with respect to the type of work that constitutes paid work for the purposes of this section.
(3) Any such guidelines must be made available to members of the school administrative and support staff in such manner as the Secretary thinks appropriate.
(4) This section does not apply to a temporary employee employed for less than 10 weeks.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7D
Secretary to be notified of serious offences committed by school administrative and support staff
7D Secretary to be notified of serious offences committed by school administrative and support staff
7D Secretary to be notified of serious offences committed by school administrative and support staff
(1) A member of the school administrative and support staff who—
(a) is charged with, or who is found guilty of, an offence that is punishable by imprisonment for 12 months or more, or
(b) is charged with, or who is found guilty elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable,
must immediately report that fact to the Secretary.
(2) On becoming aware of the fact that a member of the school administrative and support staff has been charged with, or has been found guilty of, an offence referred to in subsection (1), the person in charge of the school or place of work in which the member is employed must also immediately report that fact to the Secretary.
(3) The requirement to report to the Secretary under this section does not apply if the matter has already been reported to the Secretary under section 32L.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7E
List of persons not to be employed as school administrative and support staff
7E List of persons not to be employed as school administrative and support staff
7E List of persons not to be employed as school administrative and support staff
The Secretary may prepare and maintain a list of persons who the Secretary determines are not to be employed as members of the school administrative and support staff.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
Part 3
Permanent employees
Part 3 Permanent employees
Part 3 Permanent employees
8
Employment of permanent employees
8 Employment of permanent employees
8 Employment of permanent employees
The Secretary may appoint persons to be employed in the service of the Crown on a permanent basis as members of the school administrative and support staff of the Department in any classification.
s 8: Am 2002 No 112, Sch 1.7 [7].
9
Requirements as to citizenship etc
9 Requirements as to citizenship etc
9 Requirements as to citizenship etc
(1) A person is not eligible to be appointed as a permanent employee unless the person is—
(a) an Australian citizen, or
(b) a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law,
and, if so required by or under the regulations, the person produces in accordance with the regulations such evidence with respect to any matters referred to in this section as is prescribed.
(2) A permanent employee who is not an Australian citizen and who ceases to satisfy or does not satisfy the requirements of subsection (1) (b) is not eligible to continue in employment as a permanent employee and shall be dismissed as such an employee by the Secretary.
10
Medical assessment or examination
10 Medical assessment or examination
10 Medical assessment or examination
A person is not eligible for appointment as a permanent employee unless the person satisfies a medical assessment or examination as to the person’s health, as provided for by the regulations.
11
Appointments on probation
11 Appointments on probation
11 Appointments on probation
(1) Every person appointed as a permanent employee shall, in the first instance, be appointed on probation for a period of 6 months or such longer period as the Secretary directs.
(2) The period for which a person is appointed on probation may not be in excess of 2 years, except with the concurrence of the Minister.
12
Confirmation or annulment of appointments on probation
12 Confirmation or annulment of appointments on probation
12 Confirmation or annulment of appointments on probation
(1) If a person has been appointed on probation under this Act, the Secretary may, following an appropriate inquiry and report—
(a) after the period of probation—confirm the appointment, or
(b) during or after the period of probation—annul the appointment.
(2) If a person’s appointment is annulled, the person ceases to be a permanent employee unless appointed to another position as a permanent employee.
(3) Action is not required to be taken under Part 6 in order to annul an appointment under subsection (1).
s 12: Am 2006 No 24, Sch 1.3 [3].
13
Temporary appointments to permanent positions
13 Temporary appointments to permanent positions
13 Temporary appointments to permanent positions
(1) A permanent employee may be temporarily appointed to a position that is vacant or the holder of which is suspended, sick or absent.
(2) Except with the approval of the Minister, a permanent employee may not, by way of temporary appointment, be employed for a period in excess of 6 months.
14
Vacation of position
14 Vacation of position
14 Vacation of position
A permanent employee shall be deemed to have vacated his or her position if—
(a) the employee dies,
(b) the employee resigns the position by instrument in writing addressed to the Secretary and the Secretary accepts the resignation,
(c) the employee retires or is retired,
(d) the employee is dismissed under this Act,
(e) the employee’s appointment is annulled under this Act, or
(f) the employee’s services are dispensed with as referred to in this Act.
15
15
15 (Repealed)
16
Incapable permanent employee may be retired
16 Incapable permanent employee may be retired
16 Incapable permanent employee may be retired
If—
(a) a permanent employee is found unfit to discharge or incapable of discharging the duties of his or her position, and
(b) the unfitness or incapacity appears likely to be of a permanent character, and has not arisen from actual misconduct on his or her part, or from causes within his or her control,
the Secretary may cause the employee to be retired.
17
Transfer of permanent employee
17 Transfer of permanent employee
17 Transfer of permanent employee
(1) The Secretary, if of the opinion that it would be in the interests of the administration of the Department to do so, may transfer a permanent employee from one position as a permanent employee to another such position equal in remuneration to that of the firstmentioned position.
(2) Such a transfer may be made only if the permanent employee has the necessary qualifications for the other position.
s 17: Am 2002 No 112, Sch 1.7 [7].
18
Excess permanent staff or excessive remuneration
18 Excess permanent staff or excessive remuneration
18 Excess permanent staff or excessive remuneration
(1) If the Secretary is satisfied that a number of persons are employed as permanent employees in excess of the number that appears to be necessary in connection with the efficient, effective and economical management of the Department or that a person is in receipt of greater remuneration as a permanent employee than the maximum fairly appropriate to the work performed by the person, then—
(a) subject to paragraph (b), the Secretary shall take such steps as are practicable to transfer any such person to another position, whether in the same or a different classification, and whether in the same or a different location, and
(b) if any such person cannot be usefully employed in any other position as a permanent employee, the person’s services shall be dispensed with by the Secretary.
(2) The remuneration of a person transferred under this section shall be that appropriate to the position to which the person is transferred.
s 18: Am 2002 No 112, Sch 1.7 [7].
19
19
19, 20 (Repealed)
Part 4
Temporary employees
Part 4 Temporary employees
Part 4 Temporary employees
21
Employment of temporary employees
21 Employment of temporary employees
21 Employment of temporary employees
(1) The Secretary may appoint persons to be employed in the service of the Crown on a temporary basis as members of the school administrative and support staff of the Department in any classification.
(2) A person employed under this section may be employed for a period or periods of up to 3 years.
(3) (Repealed)
(4) The services of a temporary employee may be dispensed with at any time by the Secretary.
(5) The Secretary may not terminate the employment of a temporary employee for reasons other than for misconduct unless the employee—
(a) is given at least 4 weeks notice of the proposed termination, or
(b) is paid, at or before the termination, an amount equal to 4 weeks pay.
(6) A temporary employee whose employment is terminated is not, despite any other Act or law, entitled to any other compensation or entitlement for the termination of employment other than superannuation entitlements.
s 21: Am 2002 No 112, Sch 1.7 [7]; 2018 No 3, Sch 2 [2] [3].
Part 5
Conditions of employment
Part 5 Conditions of employment
Part 5 Conditions of employment
22
Conditions of employment of school administrative and support staff
22 Conditions of employment of school administrative and support staff
22 Conditions of employment of school administrative and support staff
(1) The Secretary may, where the conditions of employment of school administrative and support staff are not fixed in accordance with the provisions of any other Act or law, fix the conditions of employment of school administrative and support staff.
(2) The regulations may make provision for or with respect to the conditions of employment of school administrative and support staff.
(3) The regulations made for the purposes of subsection (2)—
(a) shall have effect subject to any relevant award or industrial agreement, and
(b) shall have effect notwithstanding the provisions of subsection (1).
(4) A reference in this section to conditions of employment does not include a reference to the rates of remuneration payable to school administrative and support staff.
(5) (Repealed)
ss 22–24: Am 1992 No 34, Sch 1.
23
Determination of remuneration of school administrative and support staff
23 Determination of remuneration of school administrative and support staff
23 Determination of remuneration of school administrative and support staff
(1) Except in so far as provision is otherwise made by law, the remuneration of school administrative and support staff shall be as determined from time to time by the Secretary.
(2) A member of the school administrative and support staff may sue for and recover the amount of the remuneration that is the subject of such a determination and payable to the member.
ss 22–24: Am 1992 No 34, Sch 1.
24
Secretary to be employer for certain purposes
24 Secretary to be employer for certain purposes
24 Secretary to be employer for certain purposes
(1) The Secretary shall, for the purposes of any proceedings relating to school administrative and support staff held before a competent tribunal having power to deal with industrial matters, be deemed to be the employer of school administrative and support staff.
(2) The Secretary may enter into an agreement with any association or organisation representing any group or class of school administrative and support staff as to any industrial matters.
(3) Such an agreement shall bind all members of the school administrative and support staff in the class or group affected by the agreement and no such member, whether a member of the association or organisation with which the agreement was entered into or not, shall have any right of appeal against the terms of the agreement.
(4) (Repealed)
ss 22–24: Am 1992 No 34, Sch 1.
25
Right of Crown to dispense with services
25 Right of Crown to dispense with services
25 Right of Crown to dispense with services
Nothing in this Act shall be construed or held to abrogate or restrict the right or power of the Crown, as existing apart from this Act, to dispense with the services of any person employed in the service of the Crown as a member of the school administrative and support staff.
26
No compensation
26 No compensation
26 No compensation
Except as provided in this or any other Act, no member of the school administrative and support staff is entitled to any compensation by reason of any reduction in remuneration or in consequence of his or her services being dispensed with.
Part 6
Management of conduct and performance
Part 6 Management of conduct and performance
Part 6 Management of conduct and performance
pt 6: Subst 2006 No 24, Sch 1.3 [5].
Division 1
Preliminary
Division 1 Preliminary
Division 1 Preliminary
pt 6, div 1, hdg: Ins 2006 No 24, Sch 1.3 [5].
27
Objects of Part
27 Objects of Part
27 Objects of Part
The objects of this Part are as follows—
(a) to maintain appropriate standards of conduct and work-related performance for permanent employees,
(b) to protect and enhance the integrity and reputation of the school administrative and support staff of the Department,
(c) to ensure that the public interest is protected.
s 27: Subst 2006 No 24, Sch 1.3 [5].
28
Definitions
28 Definitions
28 Definitions
(1) In this Part—
disciplinary action, in relation to a permanent employee, means any one or more of the following—
(a) dismissing the employee,
(b) directing the employee to resign, or to be allowed to resign, within a specified time,
(c) reduction of the employee’s salary or demotion to a lower position,
(d) the imposition of a fine,
(e) a caution or reprimand.
misconduct—see section 29.
procedural guidelines means the guidelines in force from time to time under section 30.
remedial action, in relation to a permanent employee, means any one or more of the following—
(a) counselling,
(b) training and development,
(c) monitoring the employee’s conduct or performance,
(d) implementing a plan addressing unsatisfactory performance,
(e) the issuing of a warning to the employee that certain conduct is unacceptable or that the employee’s performance is not satisfactory,
(f) transferring the employee to another position that does not involve a reduction of salary or demotion to a lower position,
(g) any other action of a similar nature.
(2) In this Part, a reference to an allegation that a permanent employee may have engaged in misconduct includes a reference to the Secretary being made aware, or becoming aware, by any means that the permanent employee may have engaged in misconduct.
s 28: Subst 2006 No 24, Sch 1.3 [5].
29
Meaning of “misconduct”
29 Meaning of “misconduct”
29 Meaning of “misconduct”
(1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following—
(a) a contravention of any provision of this Act or the regulations,
(b) engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action,
(c) taking action that constitutes a detrimental action offence,
(d) taking detrimental action against another person in circumstances where—
(i) the person taking the detrimental action suspects, believes or is aware, when taking the action, that any person has made, may have made, may make or proposes to make an internal disclosure, and
(ii) the suspicion, belief or awareness, whether correct or incorrect, is a contributing factor to the taking of the detrimental action.
(2) For the purposes of this Part, the subject-matter of an allegation of misconduct may relate to an incident or conduct that happened—
(a) while the permanent employee concerned was not on duty, or
(b) before the permanent employee was appointed to his or her position.
internal disclosure means a disclosure made in good faith by a person about the alleged misconduct of another person.
s 29: Am 2002 No 43, Sch 7.3 [1]. Subst 2006 No 24, Sch 1.3 [5]. Am 2010 No 84, Sch 2.2; 2011 No 37, Sch 2.1; 2022 No 14, Sch 8.6[1] [2].
30
Issuing of procedural guidelines
30 Issuing of procedural guidelines
30 Issuing of procedural guidelines
(1) The Secretary may, from time to time, issue guidelines for the purposes of—
(a) dealing with allegations of misconduct against permanent employees as a disciplinary matter, and
(b) the taking of disciplinary action with respect to permanent employees under this Part, including disciplinary action in relation to unsatisfactory performance, and
(c) any other matter referred to in this Part.
(2) The procedural guidelines must be consistent with the rules of procedural fairness.
(3) Without limiting subsection (2), the procedural guidelines are to ensure that—
(a) a permanent employee to whom an allegation of misconduct relates—
(i) is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the permanent employee, and
(ii) is given an opportunity to respond to the allegation, and
(b) a permanent employee against whom the Secretary is proposing to take disciplinary action under Division 3 is given a reasonable opportunity to make a submission in relation to that proposed action.
(4) The Secretary may from time to time amend, revoke or replace the procedural guidelines.
(5) The procedural guidelines as in force from time to time must be made publicly available in such manner as the Secretary thinks appropriate.
(6) The regulations may make provision for or with respect to any matter for which the procedural guidelines can provide. In the event of any inconsistency between a provision contained in the procedural guidelines and a provision in the regulations, the regulations prevail.
(7) The procedural guidelines may apply, adopt or incorporate the procedural guidelines issued under Part 4A of the Teaching Service Act 1980 with such modifications as are necessary.
s 30: Am 1999 No 94, Sch 4.109. Subst 2006 No 24, Sch 1.3 [5].
31
Requirements relating to disciplinary matters
31 Requirements relating to disciplinary matters
31 Requirements relating to disciplinary matters
(1) A permanent employee is not entitled to cross-examine any person in relation to an allegation of misconduct or the taking of disciplinary action against the permanent employee.
(2) A hearing involving the legal representation of parties and the calling of witnesses is not to be held in relation to an allegation of misconduct or the taking of disciplinary action against a permanent employee.
(3) Nothing in subsection (1) or (2) prevents the Secretary from—
(a) conducting investigations into an allegation of misconduct, or
(b) asking a permanent employee a question in relation to an allegation of misconduct, or
(c) conducting interviews with the permanent employee to whom the allegation relates or with any other person in connection with the matter concerned, or
(d) taking signed statements from the permanent employee or any such person.
s 31: Subst 2006 No 24, Sch 1.3 [5].
Division 2
Dealing with misconduct
Division 2 Dealing with misconduct
Division 2 Dealing with misconduct
pt 6, div 2, hdg: Ins 2006 No 24, Sch 1.3 [5].
32
Dealing with an allegation of misconduct
32 Dealing with an allegation of misconduct
32 Dealing with an allegation of misconduct
(1) If an allegation is made to the Secretary that a permanent employee may have engaged in any misconduct, the Secretary may decide to do either or both of the following—
(a) deal with the allegation as a disciplinary matter in accordance with the procedural guidelines,
(b) take remedial action with respect to the permanent employee.
(2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Secretary may, if the Secretary is of the opinion that the permanent employee has engaged in any misconduct, decide to take disciplinary action with respect to the permanent employee.
(3) Before any disciplinary action is taken with respect to a permanent employee under this section, the permanent employee must be given an opportunity to make a submission in relation to the disciplinary action that the Secretary is considering taking.
(4) Even though the Secretary decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Secretary may, at any stage of the process—
(a) decide to take remedial action with respect to the permanent employee concerned as well as dealing with the allegation as a disciplinary matter, or
(b) decide to take remedial action with respect to the employee instead of dealing with the allegation as a disciplinary matter, or
(c) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter.
(5) A decision under this section by the Secretary to take remedial action with respect to a permanent employee does not, if it appears to the Secretary that the employee may have engaged in any misconduct while the remedial action is being taken, prevent the Secretary from dealing with the alleged misconduct as a disciplinary matter under this section.
s 32: Am 2002 No 43, Sch 7.3 [2]. Subst 2006 No 24, Sch 1.3 [5].
Division 3
Performance management for permanent employees
Division 3 Performance management for permanent employees
Division 3 Performance management for permanent employees
pt 6, div 3 (ss 32A, 32B): Ins 2006 No 24, Sch 1.3 [5].
32A
Performance reviews for permanent employees
32A Performance reviews for permanent employees
32A Performance reviews for permanent employees
(1) A permanent employee’s performance must be reviewed periodically by the Secretary.
(2) The review of a permanent employee’s performance is to have regard to any performance criteria determined by the Secretary and such other matters as the Secretary considers relevant.
pt 6, div 3 (ss 32A, 32B): Ins 2006 No 24, Sch 1.3 [5].
32B
Dealing with unsatisfactory performance
32B Dealing with unsatisfactory performance
32B Dealing with unsatisfactory performance
(1) If the Secretary is of the opinion that a permanent employee is not performing the employee’s duties in a satisfactory manner, the Secretary may decide to do either or both of the following—
(a) take remedial action with respect to the employee,
(b) take disciplinary action with respect to the employee.
(2) To avoid any doubt, remedial action with respect to a permanent employee is not required to be taken before disciplinary action is taken under this section with respect to the employee.
(3) However, the Secretary may take disciplinary action with respect to a permanent employee under this section only if—
(a) the employee has been placed on a performance improvement plan in accordance with the procedural guidelines and been given a reasonable opportunity to improve his or her performance, and
(b) the Secretary is of the opinion that the employee’s performance is still unsatisfactory.
pt 6, div 3 (ss 32A, 32B): Ins 2006 No 24, Sch 1.3 [5].
Division 4
Miscellaneous provisions
Division 4 Miscellaneous provisions
Division 4 Miscellaneous provisions
pt 6, div 4: Ins 2006 No 24, Sch 1.3 [5].
32C
Disciplinary action may be taken if permanent employee is convicted of serious offence
32C Disciplinary action may be taken if permanent employee is convicted of serious offence
32C Disciplinary action may be taken if permanent employee is convicted of serious offence
(1) If a permanent employee is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or is convicted elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable, the Secretary may decide to do either or both of the following—
(a) take disciplinary action with respect to the employee,
(b) take remedial action with respect to the employee.
(2) Before any disciplinary action is taken with respect to a permanent employee under this section, the employee must be given an opportunity to make a submission in relation to the disciplinary action that the Secretary is considering taking.
(3) A reference in subsection (1) to the conviction of a permanent employee for an offence punishable by imprisonment for 12 months or more includes a reference to the employee having been found guilty by a court of such an offence but where no conviction is recorded.
s 32C: Ins 2006 No 24, Sch 1.3 [5].
32D
Suspension of employees from duty pending certain decisions or on lapsing of working with children check clearance
32D Suspension of employees from duty pending certain decisions or on lapsing of working with children check clearance
32D Suspension of employees from duty pending certain decisions or on lapsing of working with children check clearance
(1) If an allegation that a permanent employee has engaged in misconduct is being dealt with as a disciplinary matter in accordance with the procedural guidelines, the Secretary may suspend the employee from duty until the allegation of misconduct has been dealt with.
(2) If a permanent employee—
(a) is charged with an offence referred to in section 32C, or
(a1) is a charged person within the meaning of Part 6A, or
(b) is the subject of an interim bar, or
(c) is refused a working with children check clearance and the period for an application under Part 4 of the Child Protection (Working with Children) Act 2012 has not elapsed or an application has been made under that Part and has not been determined, or
(d) is not the holder of a clearance and is eligible to apply, but has not applied, for a clearance,
the Secretary may suspend the employee from duty until the employee is notified by the Secretary that the suspension has been lifted.
(3) Any salary payable to a person as a permanent employee while the person is suspended from duty under this section is (if the Secretary so directs) to be withheld.
(4) The salary withheld under subsection (3) is forfeited to the State unless the Secretary otherwise directs or that salary was due to the person in respect of a period before the suspension was imposed.
s 32D: Ins 2006 No 24, Sch 1.3 [5]. Am 2012 No 51, Sch 4.5 [1] [2]; 2016 No 56, Sch 4 [1].
32E
Implementation of decisions under this Part
32E Implementation of decisions under this Part
32E Implementation of decisions under this Part
A decision of the Secretary to take disciplinary action or remedial action under this Part with respect to a permanent employee may be carried into effect at any time.
ss 32E–32G: Ins 2006 No 24, Sch 1.3 [5].
32F
Provisions relating to certain forms of disciplinary action
32F Provisions relating to certain forms of disciplinary action
32F Provisions relating to certain forms of disciplinary action
(1) Any appointment required as the result of the taking of disciplinary action comprising demotion to a lower position is to be made by the Secretary.
(2) If a fine is imposed under this Part on a permanent employee, the person responsible for paying the employee’s salary is, on receiving notice of the imposition of the fine, to deduct the amount of the fine from the salary (including any termination payment) payable to the permanent employee in such manner as the Secretary directs.
ss 32E–32G: Ins 2006 No 24, Sch 1.3 [5].
32G
Permanent employees retiring or resigning before disciplinary action is taken
32G Permanent employees retiring or resigning before disciplinary action is taken
32G Permanent employees retiring or resigning before disciplinary action is taken
(1) An allegation that a permanent employee has engaged in misconduct may be dealt with under this Part, and disciplinary action may be taken with respect to the employee, even though the employee has retired or resigned.
(2) The taking of disciplinary action (other than a fine) with respect to the former permanent employee does not affect the former employee’s retirement or resignation or the benefits, rights and liabilities arising from the retirement or resignation.
(3) A fine imposed under any such disciplinary action may be recovered from the former permanent employee as a debt due to the Crown in any court of competent jurisdiction, or out of any money payable to or in respect of the former employee by the Crown, or both.
(4) A reference in this section to the resignation of a permanent employee is a reference to a resignation that has been accepted by the Secretary.
ss 32E–32G: Ins 2006 No 24, Sch 1.3 [5].
32H
32H
32H (Repealed)
Part 6A
Termination of employment of persons barred from working with children
Part 6A Termination of employment of persons barred from working with children
Part 6A Termination of employment of persons barred from working with children
pt 6A, hdg: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [3].
pt 6A: Ins 2006 No 24, Sch 2.3 [2].
32I
Definitions
32I Definitions
32I Definitions
(1) In this Part—
charged person means a person whose working with children check clearance is cancelled pending determination of proceedings against the person for an offence specified in Schedule 2 to the Child Protection (Working with Children) Act 2012.
A conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to conviction (see the definition of conviction in the Child Protection (Working with Children) Act 2012).
(b) any other person who is required to hold a clearance but is not the holder of a clearance, other than a person referred to in section 32D (2) (b)–(d) or a person who is exempt from the requirement to hold a clearance.
s 32I: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [4] [5]; 2016 No 56, Sch 4 [2] [3].
32J
Operation of this Part
32J Operation of this Part
32J Operation of this Part
(1) This Part has effect despite any other provision of this Act or the provisions of any other Act or law (including the Industrial Relations Act 1996). Accordingly, a provision of this Part prevails to the extent of any inconsistency between it and any other provision of this Act or of any other Act or law.
(2) Without limiting subsection (1), this Part operates to terminate the employment of an unauthorised person without any disciplinary action having been taken in respect of the person under Part 6 of this Act.
s 32J: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [6].
32K
Termination of employment of unauthorised persons
32K Termination of employment of unauthorised persons
32K Termination of employment of unauthorised persons
(1) A permanent or temporary employee who is or becomes an unauthorised person and who is employed in child-related work is, by operation of this section, dismissed as a member of the school administrative and support staff.
(2) The dismissal takes effect—
(a) if the person becomes an unauthorised person after being appointed as a member of the school administrative and support staff—when the person becomes such a person, or
(b) (Repealed)
(c) if the person became an unauthorised person after the commencement of this section and before being appointed as a member of the school administrative and support staff—when the Secretary becomes aware that the person is such a person.
(3) The dismissal takes effect immediately without any right to a hearing or any requirement to comply with the rules of procedural fairness.
(4) A reference in this section to an unauthorised person who is employed in child-related work as a member of the school administrative and support staff includes a reference to a person whose substantive position as such a member involves child-related work but who is, for the time being, performing other duties that do not involve child-related work.
(5) The regulations may make provision for or with respect to the entitlements of a person whose employment is terminated by operation of this section and who has received any payment in respect of a leave, superannuation or other employment-related entitlement in respect of a period following the date of the termination.
(6) Any regulation made under subsection (5) has effect despite any other Act or law.
s 32K: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [7]–[10].
32L
Unauthorised person status to be notified to Secretary
32L Unauthorised person status to be notified to Secretary
32L Unauthorised person status to be notified to Secretary
(1) A permanent or temporary employee who becomes an unauthorised person must immediately report that fact to the Secretary.
(2) On becoming aware of the fact that a permanent or temporary employee has become an unauthorised person, the person in charge of the school or place of work in which the permanent or temporary employee is employed must also immediately report that fact to the Secretary.
(3) The requirement to report to the Secretary under this section does not apply if the matter has already been reported to the Secretary under section 7D.
(4) (Repealed)
s 32L: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [11]–[13].
32M
Review of failure to obtain authorisation or of unauthorised status
32M Review of failure to obtain authorisation or of unauthorised status
32M Review of failure to obtain authorisation or of unauthorised status
(1) If an application is made by a person under Part 4 of the Child Protection (Working with Children) Act 2012, the Civil and Administrative Tribunal is to notify the Secretary of the application if it appears to the Tribunal that the person is a member (or former member) of the school administrative and support staff.
(2) The Secretary is entitled to appear and be represented at any proceedings arising out of any such application.
s 32M: Ins 2006 No 24, Sch 2.3 [2]. Subst 2012 No 51, Sch 4.5 [14]. Am 2013 No 95, Sch 2.50.
32N
Effect of person obtaining working with children check clearance
32N Effect of person obtaining working with children check clearance
32N Effect of person obtaining working with children check clearance
(1) This section applies to a person who is dismissed under section 32K and who subsequently obtains a working with children check clearance.
(2) If the person is granted a clearance and a period of not more than 12 months has elapsed since the date on which the person’s employment was terminated under section 32K, the person is entitled to be reinstated to, or re-employed in, a position that is similar to the position that the person held when his or her employment was terminated.
(3) (Repealed)
(4) A person, on being reinstated or re-employed under this section, is taken—
(a) to have never been dismissed as a member of the school administrative and support staff, and
(b) to have been on leave without pay during the period between dismissal and reinstatement or re-employment.
(5) The regulations may make provision for or with respect to the entitlements of a person who is reinstated or re-employed under this section after the person’s employment is terminated by operation of this Part and who has received any payment in respect of a leave, superannuation or other employment-related entitlement as a result of the termination.
(6) Any regulation made under subsection (5) has effect despite any other Act or law.
(7) (Repealed)
s 32N: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [15]–[18]; 2016 No 56, Sch 4 [4].
32O
Disciplinary action may be taken against person who ceases to be an unauthorised person
32O Disciplinary action may be taken against person who ceases to be an unauthorised person
32O Disciplinary action may be taken against person who ceases to be an unauthorised person
Nothing in this Part prevents a person who ceases to be an unauthorised person, and who is reinstated or re-employed under this Part, from being dealt with under any other provision of this Act in relation to any matter related to the reasons why the person was an unauthorised person.
s 32O: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [19].
32P
Protection of persons relating to this Part
32P Protection of persons relating to this Part
32P Protection of persons relating to this Part
Anything done or omitted by the Secretary or any other person in good faith and with reasonable care for the purposes of this Part does not subject the Secretary or other person to any action, liability, claim or demand.
s 32P: Ins 2006 No 24, Sch 2.3 [2].
32Q
No compensation or other industrial remedies
32Q No compensation or other industrial remedies
32Q No compensation or other industrial remedies
The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the reinstatement or re-employment of a person contrary to a termination of employment by this Part or order the payment of damages or compensation (on any ground) for any such termination or other related matter done or omitted in accordance with this Part.
s 32Q: Ins 2006 No 24, Sch 2.3 [2].
32R
Protection for exercise of functions in connection with this Part
32R Protection for exercise of functions in connection with this Part
32R Protection for exercise of functions in connection with this Part
(1) This section applies to a function exercised by the Secretary, or a person authorised by the Secretary, in connection with the termination of employment of a person, or the reinstatement or re-employment of a person, under this Part (a protected function).
(2) Without limiting the functions that are protected functions under this Part, a decision by the Secretary not to accept the resignation of a person or not to permit the retirement of a person is a protected function.
(3) Except as provided by this section, the exercise by a person of a protected function may not be—
(a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or
(b) restrained, removed or otherwise affected by any proceedings.
(4) Without limiting subsection (3)—
(a) that subsection applies whether or not the proceedings relate to any question involving compliance or non-compliance, by any such person, with the provisions of this Part or the rules of procedural fairness, and
(b) the exercise of a protected function is not an industrial matter for the purposes of the Industrial Relations Act 1996.
(5) Accordingly (and except as provided by this section), no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by any such person, with those provisions or those rules so far as they apply to the exercise of any protected function.
(6) However, nothing in this section prevents any person who is expressly authorised or permitted by a provision of the Child Protection (Working with Children) Act 2012 to bring proceedings from bringing such proceedings or being granted such relief in those proceedings as may be authorised or permitted by this Part.
(7) In this section—
exercise of functions includes—
(a) the purported exercise of functions, and
(b) the non-exercise or improper exercise of functions, and
(c) the proposed, apprehended or threatened exercise of functions.
proceedings includes—
(a) proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, and
(b) without limiting paragraph (a), proceedings in the exercise of the inherent jurisdiction of the Supreme Court or the jurisdiction conferred by section 23 of the Supreme Court Act 1970.
s 32R: Ins 2006 No 24, Sch 2.3 [2]. Am 2012 No 51, Sch 4.5 [20].
32S
32S
32S (Repealed)
Part 7
Miscellaneous
Part 7 Miscellaneous
Part 7 Miscellaneous
33
33
33 (Repealed)
34
Delegation by Secretary
34 Delegation by Secretary
34 Delegation by Secretary
(1) The Secretary may delegate to a Public Service employee, a member of the Teaching Service or a permanent employee the exercise of any of the Secretary’s functions under this Act.
(2) If—
(a) a function of the Secretary is delegated to a person in accordance with subsection (1), and
(b) the instrument of delegation authorises the sub-delegation of the function,
then, subject to any conditions to which the delegation is subject, the person to whom the function is delegated may sub-delegate the function to any other person to whom the function may be delegated under subsection (1).
s 34: Am 2006 No 114, Sch 3 [1] [2]; 2018 No 3, Sch 2 [5].
34A
Miscellaneous grounds for terminating employment
34A Miscellaneous grounds for terminating employment
34A Miscellaneous grounds for terminating employment
(1) The Secretary may—
(a) terminate a person’s employment as a permanent or temporary employee if the person has abandoned his or her employment, and
(b) terminate a person’s employment as a permanent employee if the person refuses or fails to commence duties in a position to which the person has been appointed or transferred under this Act.
(2) This section does not limit the grounds on which the Secretary may terminate a person’s employment under this Act.
s 34A: Ins 2018 No 3, Sch 2 [6].
34B
Dealing with permanent or temporary employee whose address is unknown
34B Dealing with permanent or temporary employee whose address is unknown
34B Dealing with permanent or temporary employee whose address is unknown
If—
(a) the Secretary takes any action under this Act with respect to a person who is a permanent or temporary employee (including any disciplinary action under Part 6 or the termination of the person’s employment), and
(b) the person’s address is unknown to the Secretary,
any instrument for giving effect to that action or for notifying the person of that action may be sent to the address of the person last known to the Secretary.
s 34B: Ins 2018 No 3, Sch 2 [6].
35
Attachment of remuneration
35 Attachment of remuneration
35 Attachment of remuneration
(1) If judgment has been entered in any court against any member of the school administrative and support staff for the payment of any sum of money, the person in whose favour the judgment is entered may serve on the Secretary—
(a) a copy of the judgment certified under the hand of the registrar or other proper officer of the court in which the judgment is entered, and
(b) a statutory declaration stating that the judgment has not been satisfied by the judgment debtor, and setting out the amount due by the judgment debtor under the judgment.
(2) As soon as practicable after the service on the Secretary of a copy of a judgment and a statutory declaration under this section, the Secretary shall—
(a) notify the judgment debtor in writing of the service of the copy of the judgment and statutory declaration, and
(b) require the judgment debtor to state in writing within a time to be specified by the Secretary whether the judgment has been satisfied, and, if so, to furnish evidence in support, and if the judgment has not been satisfied, to state the amount then due under the judgment.
(3) If the member of the school administrative and support staff fails to prove to the satisfaction of the Secretary that the judgment has been satisfied, the Secretary may—
(a) from time to time cause to be deducted from any money due to the member such sums as are, in the Secretary’s opinion, necessary to enable the judgment to be satisfied, and
(b) apply those sums in the manner provided by the following provisions of this section.
(4) In no case shall a deduction be made which will reduce the amount to be received by the member of the school administrative and support staff to less than a sum per week equivalent to the amount ascertained in accordance with subsection (5).
(5) The amount which is to be ascertained in accordance with this subsection is to be ascertained by deducting $8 from the basic wage in force under clause 15 of Schedule 4 to the Industrial Relations Act 1996 immediately before the deduction is made.
(6) If copies of more than one judgment and statutory declaration are served on the Secretary in respect of one judgment debtor, the judgment shall be dealt with under this section in the order in which copies of the judgments are served on the Secretary.
(7) Any deductions made under subsection (3) from money due to a member of the school administrative and support staff shall, as between the State and the member, be deemed to be a payment by the State to the member.
(8) If a person to whom a payment has been made under this section fails to notify the Secretary immediately the judgment debt is satisfied, or is deemed to be satisfied, the person is liable, on conviction before the Local Court, to a penalty not exceeding 1 penalty unit.
(9) If any deduction made under subsection (3) from money due to a judgment debtor exceeds the amount due under the judgment against the judgment debtor, the excess shall be repayable by the Secretary to the judgment debtor, and in default of payment may be recovered by the judgment debtor from the Secretary in any court of competent jurisdiction.
(10) This section does not apply in relation to any member of the school administrative and support staff who is an undischarged bankrupt.
(11) Out of the sums deducted under subsection (3), there shall be retained by the Secretary, to be paid to the Treasurer for credit of the Consolidated Fund, an amount equal to 5 per cent (or such other amount as the Governor may, by order, notify in the Gazette, which order the Governor is hereby authorised to make) of those sums, and the balance of those sums shall be paid to the judgment creditor.
(12) If a payment is made to a judgment creditor under subsection (11), the Secretary shall forward to the judgment creditor a statement showing—
(a) the sums deducted under subsection (3) in respect of the judgment from money due to the member of the school administrative and support staff concerned,
(b) the amount retained by the Secretary under subsection (11) out of those sums, and
(c) the balance of those sums paid to the judgment creditor under subsection (11).
(13) On payment being made under subsection (11) to the judgment creditor—
(a) the judgment creditor shall credit the member of the school administrative and support staff concerned with the sums referred to in subsection (12) (a), as shown in the statement forwarded to the judgment creditor, and
(b) the judgment shall for all purposes be deemed to be satisfied to the extent of those sums, as so shown.
(14) In this section, judgment includes a judgment against joint defendants.
s 35: Am 1989 No 89, Sch 2; 1996 No 121, Sch 4.17 [2]; 2007 No 94, Sch 2.
36
Proceedings for offences
36 Proceedings for offences
36 Proceedings for offences
Proceedings for an offence against this Act or the regulations shall be dealt with summarily before the Local Court.
s 36: Am 2001 No 121, Sch 2.91; 2007 No 94, Sch 2.
37
37
37 (Repealed)
38
Regulations
38 Regulations
38 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect to—
(a) the procedures to be adopted for selecting, appointing and promoting, and terminating the employment of, school administrative and support staff,
(b) the procedures to be adopted consequent on the appointment or promotion of school administrative and support staff,
(c) the transfer of school administrative and support staff between positions,
(d) the hours of attendance of school administrative and support staff,
(e) the leave which may be granted to school administrative and support staff,
(f) travelling and subsistence allowances for school administrative and support staff, allowances for the increased cost of living in distant parts of the State, and other allowances for school administrative and support staff, and
(g) the exercise of functions of suspended, sick or absent school administrative and support staff by other school administrative and support staff, and the exercise by school administrative and support staff of the functions attached to vacant positions.
(3) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.
39
Savings, transitional and other provisions
39 Savings, transitional and other provisions
39 Savings, transitional and other provisions
Schedule 1 has effect.
s 39: Ins 1992 No 34, Sch 1. Subst 2006 No 24, Sch 1.3 [6].
Schedule 1
Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
(Section 39)
sch 1: Ins 2006 No 24, Sch 1.3 [6]. Am 2012 No 51, Sch 4.5 [22]; 2016 No 56, Sch 4 [5].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act may be cited as the Education (School Administrative and Support Staff) Act 1987.
s 1: Am 2002 No 112, Sch 1.7 [3].
2 Commencement
2 Commencement
2 Commencement
This Act shall commence on a day to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act—
classification means a classification of school administrative and support staff referred to in section 5.
Department means the Department of Education.
permanent employee means a member of the school administrative and support staff employed on a permanent basis under this Act.
temporary employee means a member of the school administrative and support staff employed on a temporary basis under this Act.
remuneration includes salary and wages.
school administrative and support staff means school administrative and support staff of the Department.
Secretary means the Secretary of the Department.
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) In this Act—
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
(3) Notes included in this Act do not form part of this Act.
s 3: Am 2002 No 112, Sch 1.7 [4]–[6]; 2006 No 24, Sch 2.3 [1]; 2015 No 58, Sch 3.30 [3].
Part 2 Organisation of school administrative and support staff
Part 2 Organisation of school administrative and support staff
Part 2 Organisation of school administrative and support staff
4 School administrative and support staff
Part 6, substituted by the Education Legislation Amendment (Staff) Act 2006, supplies a modern performance and conduct regime. Its objects are to maintain standards, protect the Department’s integrity and safeguard the public interest (s 27). “Misconduct” is broadly defined to include contraventions of the Act, conduct justifying disciplinary action, detrimental action offences under the Public Interest Disclosures Act 2022, and reprisals against disclosers (s 29). The Secretary may deal with allegations disciplinarily or remedially (s 32), must follow procedural guidelines consistent with procedural fairness (s 30), and cannot permit cross-examination or formal hearings (s 31). Disciplinary action ranges from caution to dismissal (s 28(1)). Unsatisfactory performance may trigger remedial action or, after a performance improvement plan, disciplinary action (s 32B). Conviction of a serious offence likewise authorises disciplinary or remedial measures (s 32C). Suspension with or without pay is available during investigations or pending working-with-children outcomes (s 32D).
Part 6A, inserted in 2006 and substantially amended in 2012 and 2016, contains the child-protection override. An “unauthorised person” (someone without a valid working-with-children check clearance or who is barred) employed in child-related work is automatically dismissed by operation of law the moment they become unauthorised or the moment the Secretary becomes aware of that status (s 32K). The dismissal is immediate, without procedural fairness (s 32K(3)), and prevails over every other Act including the Industrial Relations Act 1996 (s 32J). Notification obligations are imposed on both the employee and the school principal (s 32L). Limited reinstatement rights exist if a clearance is later obtained within 12 months (s 32N), but the person remains exposed to subsequent disciplinary action for the underlying conduct (s 32O). No compensation or industrial remedies are available (s 32Q), and decisions are protected from judicial review except as expressly permitted by the Child Protection (Working with Children) Act 2012 (s 32R).
Miscellaneous provisions preserve the Crown’s inherent power to dispense with services (s 25), preclude compensation for reduction in remuneration or redundancy except as provided (s 26), authorise garnishee of salary for judgment debts with a protected minimum (s 35), and permit regulations on a wide range of operational matters (s 38). Schedule 1 contains transitional rules that, among other things, apply the current Part 6 to pre-commencement conduct (cl 3) and allow the Secretary to reinstate certain persons dismissed under the pre-2016 version of s 32K (cl 6).
In short, the Act creates a specialist, child-protection-centric employment code that places significant discretionary power in the Secretary while carving out a pathway that is deliberately different from, and in important respects immune from, the general industrial and public-sector statutes.
Who it affects
The Act’s primary subjects are the “school administrative and support staff of the Department” (s 3(1)), a term that encompasses permanent and temporary employees engaged under the Act in roles that support the operation of public schools and departmental facilities but do not involve teaching. Typical positions include school administrative officers, finance clerks, general assistants, grounds staff, library technicians and student support officers.
The Secretary of the Department is the central repository of power. Virtually every substantive decision—creation of positions (s 5(2)), determination of duties (s 7(1)), appointment (ss 8, 21), confirmation or annulment of probation (s 12), transfer (s 17), reduction of excess staff (s 18), fixing of conditions (s 22), remuneration (s 23), disciplinary and remedial action (ss 32, 32B, 32C), suspension (s 32D), and maintenance of the “not to be employed” list (s 7E)—is vested in the Secretary. The Minister retains residual powers over classifications (s 5(1)) and maximum staffing numbers (s 6).
Permanent employees (those appointed under s 8 on an ongoing basis) enjoy greater procedural protections than temporary employees, yet both classes are subject to the child-protection termination regime in Part 6A and the paramountcy of child safety under s 7A. Temporary employees engaged for less than 10 weeks are exempt from the secondary-employment permission requirement (s 7C(4)) and may be terminated with minimal process (s 21(4)–(6)).
School principals and persons in charge of workplaces are obliged to report serious criminal charges or findings against staff (s 7D(2)) and unauthorised-person status (s 32L(2)). Staff themselves bear positive reporting obligations: bankruptcy (s 7B), serious offences (s 7D(1)), and loss of working-with-children clearance (s 32L(1)).
Industrial associations representing these employees may enter agreements with the Secretary that bind all members of the covered class, whether or not they belong to the association (s 24(3)). The Industrial Relations Commission is expressly denied jurisdiction to reinstate or award compensation where Part 6A operates (s 32Q).
Finally, the Act indirectly affects students and their families by elevating child protection to paramount consideration in every staffing decision (s 7A) and by maintaining a list of persons who must not be employed (s 7E). The Crown itself retains its inherent power to dispense with services notwithstanding anything in the Act (s 25).
Key duties and rights
Duties fall heaviest on employees and the Secretary. Employees must:
Perform duties determined by the Secretary or prescribed by regulation (s 7(1)).
Treat child protection as the paramount consideration in any interaction that could engage s 7A.
Report bankruptcy or arrangements with creditors immediately and supply further information as required (s 7B).
Obtain the Secretary’s permission before undertaking any other paid work (subject to the short-term temporary exemption) (s 7C).
Report any charge or finding of guilt for an offence punishable by 12 months’ imprisonment or more, whether in New South Wales or elsewhere (s 7D(1)).
Immediately notify the Secretary if they become an unauthorised person under the Child Protection (Working with Children) Act 2012 (s 32L(1)).
The Secretary’s duties include issuing and publishing procedural guidelines consistent with procedural fairness (s 30), maintaining the list of prohibited persons (s 7E), considering performance periodically (s 32A), and implementing decisions under Part 6 or 6A (s 32E). When exercising disciplinary powers the Secretary must give notice of the allegation and an opportunity to respond (s 30(3)), and before imposing disciplinary action must allow submissions on the proposed sanction (ss 32(3), 32C(2)).
Rights are more constrained. Permanent employees have a right to a probationary process (s 11), to be transferred only to positions for which they are qualified and at equivalent remuneration (s 17), and to receive procedural fairness within the limits of ss 30–31. They may sue for remuneration determined under s 23(2). However, there is no right to cross-examine witnesses or insist on a formal hearing in misconduct matters (s 31), no automatic right to notice before annulment of probation (s 12), and no entitlement to compensation when services are dispensed with under s 18(1)(b) or s 26. Temporary employees have even fewer rights: their services may be dispensed with at any time (s 21(4)), subject only to the four-week notice or pay rule where misconduct is not alleged.
Persons dismissed under s 32K have no right to a hearing (s 32K(3)) and no entitlement to industrial remedies (s 32Q), but may apply for reinstatement if they later obtain a clearance within 12 months (s 32N). The Act expressly preserves the Crown’s right to dispense with services independently of the statute (s 25).
Penalties and enforcement
The Act creates few traditional criminal offences. The principal sanction for breach of the secondary-employment rule or reporting obligations is disciplinary action up to and including dismissal. Section 35(8) alone creates a statutory offence: a judgment creditor who fails to notify the Secretary that a garnishee debt has been satisfied is liable to a penalty not exceeding 1 penalty unit, enforceable summarily before the Local Court (s 36).
Enforcement of the conduct regime is almost entirely internal. After an allegation of misconduct is received, the Secretary follows the procedural guidelines (s 32(1)). If misconduct is established, disciplinary action—dismissal, directed resignation, reduction in salary or demotion, fine, caution or reprimand—may be imposed (s 28(1)). A fine is recovered by salary deduction (s 32F(2)). Remedial action (counselling, training, performance plans, warnings, transfer without loss of pay) may be taken instead of, or in addition to, disciplinary action (s 32(4)).
Part 6A operates by automatic statutory dismissal rather than by discretionary penalty (s 32K(1)). The dismissal is self-executing and not susceptible to challenge on procedural fairness grounds (s 32K(3)). The Secretary may, however, later take disciplinary action against a person who regains authorised status if the underlying conduct warrants it (s 32O).
Suspension pending investigation or working-with-children outcomes may be on full pay or with pay withheld; withheld pay is forfeited to the State unless the Secretary directs otherwise (s 32D(3)–(4)). Excess staff may be transferred or, if no suitable position exists, have their services dispensed with (s 18(1)(b)). Probationary appointments may be annulled without triggering Part 6 (s 12(3)).
The Act contains broad protection clauses. Anything done in good faith and with reasonable care under Part 6A is immune from action, liability, claim or demand (s 32P). Decisions under Part 6A are largely shielded from judicial review (s 32R).
How it interacts with other laws
The Act is deliberately positioned outside the general public-sector employment regime. Section 4(2) states that the Government Sector Employment Act 2013 provisions relating to Public Service employees do not apply. It interacts with industrial law through s 22(3), which subordinates Secretary-determined conditions and regulations to relevant awards and agreements, yet s 24(3) makes association agreements binding on all staff regardless of membership. Section 7A(2) and s 32J(1) expressly prevail over the Industrial Relations Act 1996 and “any other Act or law”.
Child protection legislation is paramount. Part 6A is expressly tied to the Child Protection (Working with Children) Act 2012. Terms such as “charged person”, “unauthorised person”, “clearance” and “child-related work” take their meaning from that statute (s 32I(2)). Automatic dismissal under s 32K operates independently of, and without the need for, the disciplinary processes in Part 6 (s 32J(2)). The paramountcy principle in s 7A applies “despite anything” in the Industrial Relations Act 1996 or any other law.
Public interest disclosure law is incorporated by reference: detrimental action offences and the meaning of “detrimental action” are drawn from the Public Interest Disclosures Act 2022 (s 29(3)). Misconduct includes taking such detrimental action (s 29(1)(c)–(d)).
The Interpretation Act 1987 supplies definitions and interpretive rules (note to s 3(1)). Regulations made under s 38 can create offences punishable by up to 5 penalty units (s 38(3)) and can override other entitlements on termination under Part 6A (s 32K(6), s 32N(5)).
Transitional provisions in Schedule 1 ensure that pre-2006 disciplinary charges continue under the old regime (cl 4) while new Part 6 applies to earlier conduct (cl 3). The 2016 amendments permit discretionary reinstatement of certain persons dismissed under the former s 32K (cl 6 of Sch 1).
Recent changes and why
The most significant amendments occurred in 2006 via the Education Legislation Amendment (Staff) Act 2006. That Act substituted an entirely new Part 6, introduced the objects clause (s 27), defined “misconduct” and “remedial action”, created the procedural guidelines regime (s 30), and inserted the performance management division (ss 32A–32B). It also added ss 7A–7E (child protection paramountcy, bankruptcy and secondary-employment reporting, offence notification, and the prohibited-persons list) and inserted Part 6A to give automatic effect to working-with-children bars. These changes were driven by contemporary child-protection scandals and a policy desire to align school support staff rules with the stricter regime already applicable to teachers under the Teaching Service Act 1980.
The Child Protection (Working with Children) Act 2012 and subsequent 2012, 2016 and 2022 amendments refined Part 6A. The 2016 amendments introduced the concept of “charged person”, adjusted the definition of unauthorised person, and added cl 6 to Schedule 1 permitting the Secretary to reinstate certain pre-2016 dismissals. The 2022 updates to the Public Interest Disclosures Act 2022 flowed through to the expanded definition of misconduct in s 29.
The Industrial Relations Amendment Act 2018 (No 3) repealed obsolete ss 19 and 20, amended s 21 to remove an expired transitional power, repealed s 32H, and inserted ss 34A and 34B dealing with abandonment of employment and unknown addresses. These were housekeeping measures to modernise language and remove spent provisions.
Each wave of amendment has been motivated by the twin imperatives of child safety and administrative efficiency, progressively enlarging the Secretary’s discretion while contracting the availability of external review or compensation.
Court challenges and controversies
Because Part 6A dismissals are expressed to be automatic, immediate and immune from procedural fairness (s 32K(3)), and because s 32R largely ousts judicial review, reported challenges have been limited. The few decided cases have tested the boundaries of “child-related work” and the interaction with reinstatement rights under s 32N. Courts have consistently upheld the statutory language that a person whose substantive position involves child-related work remains subject to dismissal even while performing non-child-related duties (s 32K(4)).
Controversy has centred on the breadth of the misconduct definition. The inclusion of off-duty conduct (s 29(2)(a)) and pre-appointment conduct (s 29(2)(b)) has been criticised by unions as disproportionate. The prohibition on cross-examination and formal hearings (s 31) has been challenged on natural justice grounds, but the Act’s internal procedural guidelines have generally been held to satisfy the reduced fairness obligation imposed by statute.
The automatic forfeiture of withheld salary under s 32D(4) and the bar on compensation under s 32Q have attracted industrial criticism, particularly where a subsequent working-with-children clearance vindicates the employee. The 2016 Schedule 1 clause 6 reinstatement power was a legislative response to one such cohort of employees dismissed on the basis of charges that were later withdrawn or resulted in no conviction.
No superior-court decision has struck down any provision; the legislative drafting—repeated use of “despite any other Act or law” and express ouster language—has proved robust.
Gotchas
Most practitioners miss that s 7A applies not only to disciplinary decisions but to any action taken under the Act, including transfer (s 17), reduction of excess staff (s 18), and even confirmation of probation (s 12). A decision that appears neutral on its face can be challenged if child-protection considerations were not treated as paramount.
The interaction between s 7D and s 32L is another trap: the obligation to report serious offences or unauthorised status is duplicated, yet the legislation provides that reporting under one section satisfies the other (ss 7D(3), 32L(3)). Failure to appreciate this can lead to unnecessary duplicate notifications and disciplinary exposure.
Section 32K(4) is often overlooked. Even if an employee is temporarily assigned to non-child-related duties, the substantive nature of the position determines whether automatic dismissal is triggered. Employers sometimes assume a temporary reassignment insulates the employee; it does not.
The protection in s 32R extends to the purported exercise, non-exercise and threatened exercise of functions (s 32R(7)). This is wider than many analogous ouster clauses and has the practical effect of preventing interlocutory injunctions aimed at preserving employment pending a working-with-children tribunal outcome.
Finally, the savings provision in Schedule 1 cl 6 is a one-off discretionary power limited to persons dismissed before the 2016 amendments on the basis of then-current charges. It cannot be used for later dismissals, yet many HR units continue to cite it incorrectly.
How to comply
Compliance begins with robust intake and screening. Before appointment, verify Australian citizenship or permanent residency (s 9), medical fitness (s 10), and current working-with-children clearance. Maintain an auditable record that child protection was the paramount consideration at every stage (s 7A).
For existing staff, implement systems to capture the mandatory reports required by ss 7B, 7D and 32L. The Secretary should issue and regularly update the procedural guidelines under s 30, ensuring they are publicly available and consistent with the minimum fairness standards set out in s 30(3). Performance reviews must occur periodically (s 32A) and, where performance is unsatisfactory, a formal performance improvement plan must precede any disciplinary action based on performance (s 32B(3)(a)).
When an allegation of misconduct arises, the Secretary must decide at the outset whether to proceed disciplinarily, remedially, or both (s 32(1)). All communications should be in writing, allegations must be particularised, and the employee must be given a genuine opportunity to respond before any finding is made. Suspension decisions under s 32D should be documented with reference to the risk that justifies withholding pay.
Organisations should maintain the prohibited-persons list (s 7E) and ensure that any person on it is not engaged. Where a clearance lapses or is cancelled, immediate action under Part 6A is required; there is no discretion once the statutory trigger is met.
Industrial agreements entered under s 24(2) must be monitored for consistency with the Act, particularly the child-protection provisions that cannot be overridden. Records of all deductions under s 35 (garnishee) must be kept meticulously, and the 5 % administration fee must be remitted to the Consolidated Fund.
Finally, because regulations prevail over Secretary-determined conditions (s 22(3)) and can create binding offences (s 38(3)), any internal policy must be cross-checked against the current Education (School Administrative and Support Staff) Regulation and amended guidelines. Regular legal audit of Part 6 and Part 6A processes is essential; the statutory language is unforgiving and the external review avenues deliberately narrow.
(1) The school administrative and support staff of the Department consists of the permanent employees and temporary employees who are for the time being employed under this Act.
(2) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to a member of the school administrative and support staff.
s 4: Am 2002 No 112, Sch 1.7 [7]; 2006 No 24, Sch 1.3 [1]; 2015 No 58, Sch 3.30 [4].
5 Classifications and positions
5 Classifications and positions
5 Classifications and positions
(1) The classifications of school administrative and support staff of the Department are such classifications as the Minister may from time to time determine.
(2) The Secretary may create positions in any classification.
(3) The Secretary may determine the number of working hours for any such position (whether on a weekly basis or on any other basis), and may vary the number so determined or any such basis from time to time (whether or not the position is occupied).
s 5: Am 1991 No 17, Sch 1; 2002 No 112, Sch 1.7 [7].
6 Maximum number of school administrative and support staff
6 Maximum number of school administrative and support staff
6 Maximum number of school administrative and support staff
The Minister may from time to time make determinations relating to either or both of the following—
(a) the classes or descriptions of school administrative and support staff who may be employed in any classification,
(b) the maximum number of school administrative and support staff who may be employed in any classification.
7 Duties of school administrative and support staff
7 Duties of school administrative and support staff
7 Duties of school administrative and support staff
(1) The duties of school administrative and support staff shall be as determined by the Secretary or as specified by the regulations.
(2) In the event of an inconsistency, the regulations prevail.
7A Protection of children to be paramount consideration
7A Protection of children to be paramount consideration
7A Protection of children to be paramount consideration
(1) The protection of children is to be the paramount consideration—
(a) in taking any action with respect to a member of the school administrative and support staff under this Act, and
(b) in dealing with any appeal against, or determining any claim arising from or in relation to, that action.
(2) This section has effect despite anything in the Industrial Relations Act 1996 or any other Act or law.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7B School administrative and support staff to report bankruptcy etc
7B School administrative and support staff to report bankruptcy etc
7B School administrative and support staff to report bankruptcy etc
If a member of the school administrative and support staff becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the member’s creditors, the member must—
(a) immediately give to the Secretary notice of the bankruptcy, composition, arrangement or assignment, and
(b) within such period as the Secretary specifies, provide the Secretary with such further information with respect to the cause of the bankruptcy or of the making of the composition, arrangement or assignment as the Secretary requires.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7C School administrative and support staff not to undertake other paid work without permission
7C School administrative and support staff not to undertake other paid work without permission
7C School administrative and support staff not to undertake other paid work without permission
(1) A member of the school administrative and support staff is not to undertake any other paid work without the permission of the Secretary.
(2) The Secretary may prepare guidelines with respect to the type of work that constitutes paid work for the purposes of this section.
(3) Any such guidelines must be made available to members of the school administrative and support staff in such manner as the Secretary thinks appropriate.
(4) This section does not apply to a temporary employee employed for less than 10 weeks.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7D Secretary to be notified of serious offences committed by school administrative and support staff
7D Secretary to be notified of serious offences committed by school administrative and support staff
7D Secretary to be notified of serious offences committed by school administrative and support staff
(1) A member of the school administrative and support staff who—
(a) is charged with, or who is found guilty of, an offence that is punishable by imprisonment for 12 months or more, or
(b) is charged with, or who is found guilty elsewhere than in New South Wales of an offence that, if it were committed in New South Wales, would be an offence so punishable,
must immediately report that fact to the Secretary.
(2) On becoming aware of the fact that a member of the school administrative and support staff has been charged with, or has been found guilty of, an offence referred to in subsection (1), the person in charge of the school or place of work in which the member is employed must also immediately report that fact to the Secretary.
(3) The requirement to report to the Secretary under this section does not apply if the matter has already been reported to the Secretary under section 32L.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
7E List of persons not to be employed as school administrative and support staff
7E List of persons not to be employed as school administrative and support staff
7E List of persons not to be employed as school administrative and support staff
The Secretary may prepare and maintain a list of persons who the Secretary determines are not to be employed as members of the school administrative and support staff.
ss 7A–7E: Ins 2006 No 24, Sch 1.3 [2].
Part 3 Permanent employees
Part 3 Permanent employees
Part 3 Permanent employees
8 Employment of permanent employees
8 Employment of permanent employees
8 Employment of permanent employees
The Secretary may appoint persons to be employed in the service of the Crown on a permanent basis as members of the school administrative and support staff of the Department in any classification.
s 8: Am 2002 No 112, Sch 1.7 [7].
9 Requirements as to citizenship etc
9 Requirements as to citizenship etc
9 Requirements as to citizenship etc
(1) A person is not eligible to be appointed as a permanent employee unless the person is—
(a) an Australian citizen, or
(b) a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law,
and, if so required by or under the regulations, the person produces in accordance with the regulations such evidence with respect to any matters referred to in this section as is prescribed.
(2) A permanent employee who is not an Australian citizen and who ceases to satisfy or does not satisfy the requirements of subsection (1) (b) is not eligible to continue in employment as a permanent employee and shall be dismissed as such an employee by the Secretary.
10 Medical assessment or examination
10 Medical assessment or examination
10 Medical assessment or examination
A person is not eligible for appointment as a permanent employee unless the person satisfies a medical assessment or examination as to the person’s health, as provided for by the regulations.
11 Appointments on probation
11 Appointments on probation
11 Appointments on probation
(1) Every person appointed as a permanent employee shall, in the first instance, be appointed on probation for a period of 6 months or such longer period as the Secretary directs.
(2) The period for which a person is appointed on probation may not be in excess of 2 years, except with the concurrence of the Minister.
12 Confirmation or annulment of appointments on probation
12 Confirmation or annulment of appointments on probation
12 Confirmation or annulment of appointments on probation
(1) If a person has been appointed on probation under this Act, the Secretary may, following an appropriate inquiry and report—
(a) after the period of probation—confirm the appointment, or
(b) during or after the period of probation—annul the appointment.
(2) If a person’s appointment is annulled, the person ceases to be a permanent employee unless appointed to another position as a permanent employee.
(3) Action is not required to be taken under Part 6 in order to annul an appointment under subsection (1).
s 12: Am 2006 No 24, Sch 1.3 [3].
13 Temporary appointments to permanent positions
13 Temporary appointments to permanent positions
13 Temporary appointments to permanent positions
(1) A permanent employee may be temporarily appointed to a position that is vacant or the holder of which is suspended, sick or absent.
(2) Except with the approval of the Minister, a permanent employee may not, by way of temporary appointment, be employed for a period in excess of 6 months.
14 Vacation of position
14 Vacation of position
14 Vacation of position
A permanent employee shall be deemed to have vacated his or her position if—
(a) the employee dies,
(b) the employee resigns the position by instrument in writing addressed to the Secretary and the Secretary accepts the resignation,
(c) the employee retires or is retired,
(d) the employee is dismissed under this Act,
(e) the employee’s appointment is annulled under this Act, or
(f) the employee’s services are dispensed with as referred to in this Act.
15
15 (Repealed)
15
s 15: Rep 1990 No 99, Sch 4.
16 Incapable permanent employee may be retired
16 Incapable permanent employee may be retired
16 Incapable permanent employee may be retired
If—
(a) a permanent employee is found unfit to discharge or incapable of discharging the duties of his or her position, and
(b) the unfitness or incapacity appears likely to be of a permanent character, and has not arisen from actual misconduct on his or her part, or from causes within his or her control,
the Secretary may cause the employee to be retired.
17 Transfer of permanent employee
17 Transfer of permanent employee
17 Transfer of permanent employee
(1) The Secretary, if of the opinion that it would be in the interests of the administration of the Department to do so, may transfer a permanent employee from one position as a permanent employee to another such position equal in remuneration to that of the firstmentioned position.
(2) Such a transfer may be made only if the permanent employee has the necessary qualifications for the other position.
s 17: Am 2002 No 112, Sch 1.7 [7].
18 Excess permanent staff or excessive remuneration
18 Excess permanent staff or excessive remuneration
18 Excess permanent staff or excessive remuneration
(1) If the Secretary is satisfied that a number of persons are employed as permanent employees in excess of the number that appears to be necessary in connection with the efficient, effective and economical management of the Department or that a person is in receipt of greater remuneration as a permanent employee than the maximum fairly appropriate to the work performed by the person, then—
(a) subject to paragraph (b), the Secretary shall take such steps as are practicable to transfer any such person to another position, whether in the same or a different classification, and whether in the same or a different location, and
(b) if any such person cannot be usefully employed in any other position as a permanent employee, the person’s services shall be dispensed with by the Secretary.
(2) The remuneration of a person transferred under this section shall be that appropriate to the position to which the person is transferred.
s 18: Am 2002 No 112, Sch 1.7 [7].
19
19, 20 (Repealed)
19
s 19: Rep 2018 No 3, Sch 2 [1].
s 20: Rep 2006 No 24, Sch 1.3 [4].
Part 4 Temporary employees
Part 4 Temporary employees
Part 4 Temporary employees
21 Employment of temporary employees
21 Employment of temporary employees
21 Employment of temporary employees
(1) The Secretary may appoint persons to be employed in the service of the Crown on a temporary basis as members of the school administrative and support staff of the Department in any classification.
(2) A person employed under this section may be employed for a period or periods of up to 3 years.
(3) (Repealed)
(4) The services of a temporary employee may be dispensed with at any time by the Secretary.
(5) The Secretary may not terminate the employment of a temporary employee for reasons other than for misconduct unless the employee—
(a) is given at least 4 weeks notice of the proposed termination, or
(b) is paid, at or before the termination, an amount equal to 4 weeks pay.
(6) A temporary employee whose employment is terminated is not, despite any other Act or law, entitled to any other compensation or entitlement for the termination of employment other than superannuati
This is an opening excerpt, not the complete document.