Pre-school Teachers and Assistants (Leave) Act 1984
No. 10135 of 1984
Version incorporating amendments as at
30 March 2022
table of provisions
Section Page
1 Short title 1
2 Commencement 1
3 Definitions 2
4 Entitlement to long service leave 4
4A Sick leave 6
5 Continuity of employment 7
6 Regulations 9
Endnotes 10
1 General information 10
2 Table of Amendments 12
3 Explanatory details 14
Version No.016
Pre-school Teachers and Assistants (Leave) Act 1984
No. 10135 of 1984
Version incorporating amendments as at
30 March 2022
An Act to make provision in relation to portability of long service leave for certain pre-school teachers and assistants and for other purposes.
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
S. 1
amended by No. 105/1986 s. 6(1).
1 Short title[[1]](#endnote-2)
This Act may be cited as the Pre-school Teachers and Assistants (Leave) Act 1984.
2 Commencement
This Act shall come into operation on a day to be proclaimed by proclamation of the Governor in Council published in the Government Gazette.
3 Definitions
(1) In this Act unless inconsistent with the context or subject-matter—
S. 3(1)
def. of award inserted by No. 105/1986 s. 4(a), amended by Nos 47/1992 s. 25(8), 83/1992 s. 184(Sch. 6 item 19.1), substituted by No. 82/1994 s. 13(Sch. 2 item 5), amended by No. 59/1996 s. 10(Sch. 2 item 19.1), substituted by No. 74/2009 s. 18(2), amended by No. 13/2022 s. 75(a).
award means—
(a) an enterprise agreement made under the Fair Work Act 2009 of the Commonwealth; or
(b) an agreement-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; or
(c) a modern award within the meaning of the Fair Work Act 2009 of the Commonwealth; or
(d) a determination of the Fair Work Commission made under the Fair Work Act 2009 of the Commonwealth; or
(e) an award-based transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth;
S. 3(1) def. of Fair Work Australia inserted by No. 74/2009 s. 18(1), repealed by No. 13/2022 s. 75(b).
S. 3(1) def. of Fair Work Commission inserted by No. 13/2022 s. 75(c).
Fair Work Commission has the same meaning as in the Fair Work Act 2009 of the Commonwealth;
pre-school assistant means—
(a) a person who is employed to assist a pre-school teacher in a kindergarten or play centre when children are in attendance; or
(b) a prescribed person;
pre-school teacher means—
(a) a registered primary teacher;
(b) a person holding a prescribed qualification in pre-school teaching;
(c) a person holding a prescribed qualification in early childhood teaching;
(d) a person holding a prescribed qualification as a play leader;
prescribed means prescribed by the regulations;
relevant kindergarten means a kindergarten declared in accordance with subsection (2) as a relevant kindergarten for the purposes of this Act;
relevant play centre means a play centre declared in accordance with subsection (3) as a relevant play centre for the purposes of this Act;
S. 3(1) def. of sick leave inserted by No. 105/1986 s. 4(b), amended by No. 74/2009 s. 18(3).
sick leave means leave with pay on account of illness or injury which a pre-school teacher or pre-school assistant is entitled to take in accordance with an award or in accordance with the National Employment Standards under the Fair Work Act 2009 of the Commonwealth, but does not include leave in respect of which a pre-school teacher or pre-school assistant is entitled to receive compensation payments under an Act.
(2) The Governor in Council may by Order published in the Government Gazette, declare a kindergarten to be, or to have been, a relevant kindergarten.
(3) The Governor in Council may by Order published in the Government Gazette, declare a play centre to be, or to have been, a relevant play centre.
(4) In this Act, a reference to employment in a relevant kindergarten or relevant play centre does not include a reference to employment in a relevant kindergarten or relevant play centre during a period during which a declaration under subsection (2) or (3) (as the case may be) in respect of that kindergarten or play centre does not apply or is not in force.
(5) A declaration under subsection (2) or (3) in respect of a kindergarten or play centre may be expressed to apply in relation to a period or periods whether before or after the commencement of this section.
(6) In this Act, a reference to employment in a relevant kindergarten or relevant play centre includes a reference to a period or periods of employment in a prescribed office.
4 Entitlement to long service leave
(1) In computing the period of employment which entitles a pre-school teacher or pre-school assistant to long service leave or pay in lieu thereof—
S. 4(1)(a) substituted by No. 12/1989 s. 4(1)(Sch. 2 item 96.1), amended by No. 9/2020 s. 390(Sch. 1 item 78).
(a) pursuant to regulations made for the purposes of section 50 of the Local Government Act 2020;
S. 4(1)(b) substituted by No. 83/1992 s. 184(Sch. 6 item 19.2), amended by No. 59/1996 s. 10(Sch. 2 item 19.2), substituted by No. 12/2018 s. 61(1).
(b) under the Long Service Leave Act 2018 (except section 6)—
there shall be taken into account any periods of employment calculated in accordance with subsection (2).
(2) For the purposes of subsection (1), the periods of employment to be taken into account are periods of employment calculated as follows:
S. 4(2)(a) amended by Nos 12/1989 s. 4(1)(Sch. 2 item 96.2), 9/2020 s. 390(Sch. 1 item 78).
(a) In the case of employment of persons who are covered by regulations made for the purposes of section 50 of the Local Government Act 2020—on the completion of each year of employment as a pre-school teacher or pre-school assistant in a relevant kindergarten or relevant play centre—nine days;
S. 4(2)(b) amended by Nos 83/1992 s. 184(Sch. 6 item 19.3), 59/1996 s. 10(Sch. 2 item 19.2), 12/2018 s. 61(2).
(b) In the case of employment as an employee to whom the Long Service Leave Act 2018 applies—on the completion of each year of employment as a pre-school teacher or pre-school assistant in a relevant kindergarten or relevant play centre—six days.
(3) The periods of employment to be taken into account for the purposes of subsection (1) do not include—
(a) any interruption of or absence from employment of a kind mentioned in section 5(g), (h), (i), (j), (k), (l) or (m); or
(b) any period of employment in respect of which long service leave or pay in lieu thereof has already been granted.
S. 4A
inserted by No. 105/1986 s. 5.
4A Sick leave
(1) In this section—
pre-school worker means a person who is a pre-school teacher or pre-school assistant;
pre-school workplace means a place which is a relevant kindergarten, a relevant play centre or both a relevant kindergarten and a relevant play centre.
(2) If a pre-school worker—
(a) is at the date of commencement of this section working at a pre-school workplace; or
(b) after the date of commencement of this section leaves work at a pre-school workplace and starts work at another pre-school workplace—
the worker's employer must credit the worker with sick leave accrued by the worker in respect of periods of employment at pre-school workplaces where the worker has previously worked if the worker's employment at the pre-school workplaces where the worker has previously worked and at the pre-school workplace where the worker is now working is continuous.
(3) Subsection (2) does not require an employer to credit a pre-school worker with periods of sick leave which the worker has accumulated but has already taken.
(4) This section applies to periods of employment whether they occurred before or occur after the commencement of this section.
(5) Except where an award which applies to a pre-school worker contains express provision to the contrary, for the purposes of this section a pre-school worker's employment is to be treated as continuous despite the absences from or interruptions of work mentioned in paragraphs (a) to (m) of section 5.
5 Continuity of employment
For the purposes of this Act, employment in a relevant kindergarten or relevant play centre (whether before or after the commencement of this Act) shall be deemed to be continuous notwithstanding—
(a) the taking of any annual leave or long service leave;
S. 5(b) amended by Nos 12/1989 s. 4(1)(Sch. 2 item 96.3) (as amended by No. 13/1990 s. 38(2)(o)), 9/2020 s. 390(Sch. 1 item 78).
(b) in relation to persons who are covered by regulations made for the purposes of section 50 of the Local Government Act 2020, any absence from work of not more than fourteen days in any year on account of illness or injury;
S. 5(c) amended by No. 83/1992 s. 184(Sch. 6 item 19.4(a)).
(c) any absence from work of not more than 48 weeks in any year on account of illness or injury;
S. 5(d) amended by Nos 83/1992 s. 184(Sch. 6 item 19.4(b)), 59/1996 s. 10(Sch. 2 item 19.2), 12/2018 s. 61(3).
(d) any absence from work of a worker performing duties in relation to assets of a particular kind arising solely by reason of a transfer to which section 11(6) of the Long Service Leave Act 2018 applies of the assets from one employer to another employer;
(e) any interruption or ending of the employment by the employer if the interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave;
(f) the taking of leave granted by the employer which is not leave or absence of work of a kind mentioned in paragraph (a), (b) or (c);
(g) any interruption arising directly or indirectly from an industrial dispute;
(h) a dismissal of the pre-school teacher or pre‑school assistant if that teacher or assistant is re-employed within a period not exceeding three months from the date of dismissal;
(i) the standing down of the pre-school teacher or pre-school assistant when no work is available;
(j) any absence from work of a female pre-school teacher for a period not exceeding eighteen months in respect of her pregnancy;
(k) any absence from work of a female pre-school assistant for a period not exceeding twelve months in respect of her pregnancy;
(l) any other absence on account of injury arising out of or in the course of the employment of the pre-school teacher or pre‑school assistant or by leave of the employer; or
(m) any other absence of the pre-school teacher or pre-school assistant with the prior approval or subsequent acquiescence of the employer that is not referred to in paragraph (a), (b), (c), (d) or (e).
6 Regulations
The Governor in Council may make regulations for and with respect to any matter or thing that by this Act is authorized or required or permitted to be prescribed or that is necessary to be prescribed for carrying this Act into effect.
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
The Pre-school Teachers and Assistants (Leave) Act 1984 was assented to on 13 November 1984 and came into operation on 18 December 1985: Government Gazette 18 December 1985 page 4640.
The name of this Act was changed from the Pre-school Teachers and Assistants (Portability of Long Service Leave) Act 1984 to the Pre-school Teachers and Assistants (Leave) Act 1984 by section 6(1) of the Pre‑school Teachers and Assistants (Sick Leave) Act 1986, No. 105/1986.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Pre-school Teachers and Assistants (Leave) Act 1984 by Acts and subordinate instruments.
S. 1: Section 6(2) of the Pre-school Teachers and Assistants (Sick Leave) Act 1986, No. 105/1986 reads as follows:
6 New short title
(2) In any Act, subordinate instrument or document a reference to the Pre-school Teachers and Assistants (Portability of Long Service Leave) Act 1984 is deemed to be a reference to the Pre‑school Teachers and Assistants (Leave) Act 1984. ↑