Non-Profit Organisations Act, 1997
R 385
South African Schools Act, 1996 (Act No. 84 of 1996)SchedulesSchedule 2 |
(Amendment of Educators' Employment Act, 1994, by section 63)
| 1) | Amendment of section 1 by – |
| a) | the insertion of the following definitions: |
"Department"
means a department contemplated in section 7(2) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), responsible for education in the national government;
"educational institution"
means a public school, college of education, technical college, other college or an office controlling such a school or college or rendering a support service to such a school or college where educators are employed, in regard to which the terms and conditions of employment of such educators are determined by this Act but excludes a university, technikon, independent school or independent college;
"Labour Relations Act"
means the Labour Relations Act, 1995 (Act No. 66 of 1995);
"public educational institution"
means an educational institution which is not a state-aided college;
"public school"
means a public school as defined in section 1 of the South African Schools Act, 1996;
"state-aided college"
means a college of education, technical college or other college which is wholly or partly funded by the State in respect of the remuneration and conditions of service of educators in posts on the establishment created in terms of section 3(1) and in regard to which the college is the employer of such educators;
"unsubsidised post"
means a post at a state-aided college in respect of which no subsidy in terms of a law is paid by the State;
| b) | substitution for the definitions of "educator", "employee member" and "employer" of the following definitions, respectively - |
"educator"
means any person who teaches, educates or trains other persons or provides professional therapy educational services including professional therapy at any school, technical college or college of education educational institution or assists in rendering professional services or performs educational management services or educational auxiliary services provided by or in a department of education and whose employment appointment and terms and conditions of employment is are regulated by this Act; 'employee member' means an employee organisation that is a member of the Education Labour Relations Council established in terms of section 6 of the Education Labour Relations Act 37(3)(b) read with item 20 of Schedule 7 to the Labour Relations Act;
"employer"
means -
| i) | in the case of a departmental public educational institution or office, the head of a department; and |
| ii) | in the case of a state-aided educational institution college, the body which employs an educator; |
| iii) | for the purposes of section 5(1)(a) and (b) the Minister in respect of educators appointed to posts created in terms of sections 3(1) and (3); and |
| iv) | in the case of an unsubsidised post at a public school referred to in section 3A, the body which employs the educator, and |
| c) | the deletion of the following definitions, namely - |
"departmental educational institution"
"subsidised post"
"state-aided educational institution"
"Executive Council"
"Education Labour Relations Act"
| 2) | The substitution for section 3 of the following section : |
3. "Educator Establishment of educational institutions and Department
| 1) | Notwithstanding anything to the contrary contained in any other law, but subject to this Act and the National Policy for General Education Affairs on the Salaries and Conditions of Employment of Educators Act, 1984 (Act No. 76 of 1984), the educator establishment at an a state educational institution in a province shall consist of the posts which the Member of the Executive Council creates and the educator establishment of the Department of Education shall consist of the posts which the Minister creates. |
| 2) | The employer A state-aided college may create unsubsidised posts additional to the educator establishment referred to in subsection (1). |
| 3) | Educators may be appointed on a temporary basis additional to the establishment referred to in subsection (1) with the approval of the Member of the Executive Council or the Minister, as the case may be. |
| 4) | A post referred to in subsection (1) may be regraded, redesignated, converted or abolished by the Member of the Executive Council or the Minister, as the case may be.". |
| 3) | By the insertion after section 3 of the following section : |
"3A. Transitional arrangement
| 1) | The authority to create unsubsidised posts, to employ educators in such posts and all other matters incidental thereto which, in terms of section 3(2), vested in a state-aided school prior to the commencement of this Act, shall remain intact for such school until 31 December 1997, and thereafter such authority shall cease. |
| 2) | Contracts of employment of educators appointed to posts referred to in subsection (1) entered into after the commencement of this Act, shall not be valid after 31 December 1997.". |
| 4) | The substitution for section 4 of the following section : |
"4. Appointment and promotion of educators
| 1) | The qualifications for appointment and promotion as an educator shall be prescribed determined by the Minister. |
| 2) | Subject to the provisions of the Constitution, the Labour Relations Act, 1995 (Act No. 66 of 1995), and agreements reached in terms thereof Posts posts shall be filled by appointment, transfer or promotion and the power to fill a post created under section 3 shall, subject to the provisions Of this Act, vest in the employer, who shall exercise such power with regard to posts referred to in section 3(1) and (3) subject to the prior approval of the Member of the Executive Council or the Minister, as the case may be. |
| 3) | The authority to fill a post referred to in section 3(1) and (3) at a public school in terms of subsection (2) is exercised on the recommendation of a public school, as represented by its governing body, and the employer may only deviate from such recommendation if : |
| a) | the candidate does not have the required qualifications; |
| b) | the candidate has been found guilty of misconduct; or |
| c) | sufficient proof exists that the recommendation made by the school was based on improper influence. |
| 4) | An educator may be appointed under subsection (2) this section- |
| a) | in a permanent capacity, which shall include an appointment to the permanent relief staff, whether on probation or not; or |
| b) | temporarily or on special contract, whether in a full-time or part-time capacity. |
| 5) | An appointment, transfer or promotion referred to in subsection (2) shall be effected in such manner and subject to such conditions as may be determined by the Minister. |
| 6) | An educator appointed in terms of any law repeated by this Act shall be deemed to have been appointed in terms of this Act to the appropriate post on the establishment of the state educational institution in question. |
| 7) | An educator appointed in terms of the Public Service Act, 1994, shall be deemed to have been appointed in terms of this Act. |
| 8) | An educator appointed at a public school shall not, by virtue of an amendment of this Act by the South African Schools Act, 1996, be regarded as having changed employers.". |
| 5) | The amendment of section 5 – |
| a) | by the substitution for subsection (1) of the following subsection: |
| "(1) | Notwithstanding anything to the contrary contained in any other law, but subject to the provisions of the National Policy on the Salaries and Conditions of Employment of Educators Act for General Education Affairs, 1984 (Act No. 76 of 1984), and the Education Labour Relations Act and subsection (2)- |
| a) | the salaries, salary scales, and allowances and other terms and conditions of employment of educators appointed, transferred or promoted to posts referred to in section 3(1) and (3) shall be determined by the Minister; |
| b) | the other terms and conditions of employment and service benefits of educators referred to in paragraph (a) shall be prescribed by the Minister; and |
| c) | the salaries, salary scales, allowances and other terms and conditions of employment referred to in paragraphs paragraph (a) and (b) with a financial implication shall be determined by the Minister with the concurrence of the Minister responsible for finance at national level; and |
| d) | the salaries, salary scales, allowances and other terms and conditions of employment of educators at a state-aided college appointed, transferred or promoted to posts referred to in section 3(2)(3) shall be determined by the employer."; and |
| b) | by the deletion of subsection (2). |
| 6) | The substitution for section 6 of the following section : |
"6. Transfer and secondment of educators
(1) Subject to the provisions of this section, section 4(3) and applicable terms and conditions of employment, an educator employed in an office or departmental a public educational institution may be transferred from the post in which he or she serves to any other post-
(a) at the same departmental educational institution or office or at another departmental educational institution or office a public educational institution under the control of the same provincial education department by the Member of the Executive Council; or
(b) at a departmental public educational institution or office in a different province or the Department at national level by the Member of the Executive Council, or the Minister, as the case may be, with the concurrence of the Member of the Executive Council of such other province or the Minister, as the case may be.
(2) Subject to the provisions of this section, an educator employed at a state-aided educational institution college may with his or her consent, be transferred from the post in which he or she serves to any other post at the same or to any other state-aided educational institution college or public departmental educational institution-
(a) in the same province by the Member of the Executive Council, with the concurrence of the employer or employers concerned; or
(b) in a different province by the Member of the Executive Council, with the concurrence of the Member of the Executive Council of such other province and the employers concerned; or
(c) at the Department at national level with the concurrence of the Minister.
(3) Subject to the provisions of this section, an educator at a departmental public educational institution or office may, with his or her consent, be transferred from the post in which he or she serves to any other post at a state-aided educational institution college, and in such a case the provisions of subsection (2) must apply mutatis mutandis.
(4) A transfer provided for in subsections (1), (2) and (3) may be effected irrespective of whether the post to which an educator is transferred is of the same, a lower or higher grade: Provided that-
(a) the salary and salary scale of an educator shall not be lowered without his or her consent; and
(b) paragraph (a) shall not apply in respect of an educator transferred in terms of section 19(1).
(5) An educator who is employed in a permanent capacity at a state public educational institution in a post of a lower or higher grading than that appropriate to his or her rank shall, subject to section 4(4) (5) and (6) be transferred to a post with a grading appropriate to his or her rank as soon as a suitable vacancy arises.".
| 7) | The amendment of section 7 by the substitution for the expression "state educational institution", wherever it occurs, of the expression "public educational institution". |
| 8) | The amendment of section 8 by the substitution for the expression "state educational institution", wherever it occurs, of the expression "public educational institution". |
| 9) | The amendment of section 10 by the substitution for the expression "state educational institution", wherever it occurs, of the expression "public educational institution". |
| 10) | The amendment of section 11 by the substitution for subsection (3) of the following subsection: |
"(3) If the name of an educator is struck off a register of educators kept by a body recognised by the Minister in terms of the National Policy for General Education Affairs Act, 1984 (Act No. 76 of 1984), the South African Council for Educators he or she shall notwithstanding anything to the contrary contained in this Act, be deemed to have resigned with effect from the date following immediately upon the day on which his or her name was so struck off."
| 11) | The substitution for section 22 of the following section: |
"Transfer of educators on declaration of public educational institution to be state-aided college
22. (1) An educator who was employed at a departmental public educational institution immediately prior to the date of declaration of such institution to be a state-aided educational institution college shall with effect from that date with his or her consent be transferred to and appointed in the service of the state-aided educational institution college in question.
(2) An educator transferred and appointed under subsection (1) shall be appointed on the terms and conditions of employment applicable to persons in the service of a state-aided college educational institutions : Provided that-
(a) his or her salary shall not be reduced without his or her consent as a result of such transfer and appointment;
(b) for the purposes of the said terms and conditions of employment, including pension benefits, his or her period in the service of the state-aided public educational institution shall be deemed to be a period in the service of the provincial government at the state-aided college concerned;
(c) sick leave or vacation leave credit obtained by him or her as a result of his or her continuous service in a departmental public educational institution shall be deemed, subject to the conditions determined by the Minister, to have been obtained by him or her as a result of his or her service at the state-aided educational institution college in question; and
(d) any disciplinary proceedings instituted or to be instituted against him or her in respect of misconduct which he or she allegedly committed prior to the date contemplated in subsection (1) shall be disposed of or instituted, as the case may be, in terms of this Act.".
| 12) | The substitution for section 23 of the following section: |
"Transfer of educators on declaration of state-aided college to be public educational institution
23. (1) An educator who was employed in a subsidised post at a state-aided educational institution college immediately prior to the date of declaration of such institution to be departmental a public educational institution shall with effect from that date with his or her consent be transferred to and appointed in the service of the provincial government concerned.
(2) An educator transferred and appointed under subsection (1) shall be appointed on the terms and conditions of employment applicable to educators in the service of the provincial government concerned: Provided that-
(a) his or her salary shall not be reduced without his or her consent as a result of such transfer and appointment;
(b) for the purposes of the said terms and conditions of employment, including pension benefits, his or her period in the service of the state-aided educational institution college shall be deemed to be a period in the service of the provincial government concerned;
(c) sick or vacation leave credit obtained by him or her as a result of his or her continuous service at the state-aided educational institution college shall be deemed, subject to the conditions determined by the Minister, to have been obtained by him or her as a result of his or her period in the service of the provincial government concerned; and
(d) any disciplinary proceedings instituted or to be instituted against him or her in respect of misconduct allegedly committed prior to the said date shall be disposed of or instituted, as the case may be, in terms of this Act.".
