Primary Teachers' Collective Agreement
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Part 9: Employment Protection and Surplus Staffing Provisions
Primary Teachers' Collective Agreement
Effective: 1 July 2019 to 30 June 2022
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9.1 Employment Protection Provisions
9.1.1 ‘Restructuring’ is given the same definition as in section 69OI of the Employment Relations Act 2000 and includes:
- Contracting out; or
- Selling or transferring the employer’s business (or part of it) to another person; but excludes mergers, and school reorganisations as defined in Appendix 4.
9.1.2 Where work undertaken by an employee covered by this Agreement will be, or is likely to be, undertaken by a new employer (whether or not the new employer is an “employer” defined in 1.6) the employer will notify the National Office of NZEI Te Riu Roa where one or more of the employees affected by the restructuring is a member of the union. In such circumstances the employer will meet with representative(s) of the union to:
- Identify the issues the employee(s) wish to have considered by the new employer;
- Ensure that all current terms and conditions of employment of the employee(s) are accurately recorded; and
- Determine the process by which communications to/from the employee(s) will be conducted.
9.1.3 The employer will encourage the new employer to agree to the involvement of the union(s) in the processes described in clauses 9.1.4 and 9.1.5 below.
9.1.4 Having completed the process described in 9.1.2 above, the employer will meet with the new employer to:
- Provide the new employer with details of the work currently performed by the employees concerned together with details of the terms and conditions of their employment; and
- Seek a proposal for the employment of the affected employees by the new employer, including clarification of the terms and conditions upon which those employees would be offered employment by the new employer.
9.1.5 The following shall be matters for clarification under clause 9.1.4(b) and again should be read in conjunction with the surplus staffing provisions of this Agreement.
- The number and type of positions that may be offered by the new employer to employees affected by the restructuring;
- The terms and conditions of employment to be offered to those employees (including whether the employees will transfer to the new employer on the same terms and conditions of employment);
- The arrangements, if required, for the transfer of any accrued benefits and entitlements in relation to those employees;
- The arrangements, if required, for when and how offers of employment are to be made to the affected employees and the mode of acceptance, including whether any offers of employment made by the new employer will be conveyed through NZEI Te Riu Roa.
9.1.6 The process to be followed at the time of the restructuring to determine what entitlements, if any, are available for employees who do not transfer to the new employer are set out in the rest of this Part. Part 9.1 as a whole shall be read in conjunction with those provisions.
Note: Attention is drawn to the application of the State Sector Act 1988 section 77HA (restriction of compensation for technical redundancy arising from closure or merger of schools).
9.2 Surplus Staffing
- Advising the NZEI Te Riu Roa of Surplus Staffing Review
When staffing requirements within a school are being reviewed by an employer (including the closure or change of class or designation of a school other than when that school has been closed or had its class or designation changed as the result of a school reorganisation process), the employer shall advise the employees and NZEI Te Riu Roa and the provisions of clauses 9A to 9A.11 shall apply.
- School Reorganisation Process
When staff requirements within a school are being reviewed in a school reorganisation process that results in an amalgamation, merger, closure or change of class or designation for that school the provisions of Appendix 4 shall apply.
- Advising the NZEI Te Riu Roa of Surplus Staffing Review
9A Surplus Staffing - Teachers
9A.1 The provisions of clause 9A shall apply to teachers
When a review shows that a staffing surplus will exist or a reduction in units is required the employer shall, at the first instance, consider in consultation with staff whether this staffing surplus and/or reduction in units can be absorbed by attrition.
9A.3 Where Attrition Cannot Achieve the Reduction
If the required number of positions cannot be achieved through attrition and if a surplus staffing situation still exists, an identification of the teacher(s) to be deemed surplus will be made from among permanent teachers, pursuant to clause 9A.4. If attrition cannot achieve the reduction in the units required, clause 9A.4 will apply.
9A.4 Needs Analysis
The identification of the surplus teacher(s) and/or the identification of unit holder(s) who are to lose units will be made in the following manner:
- The employer shall conduct a needs analysis in consultation with staff to identify the future management structure, curriculum and other staffing needs of the school which will determine:
- The most appropriate area(s) for the surplus position(s) to be identified from; and/or
- The most appropriate area(s) within the staffing structure for the reduction of units to occur.
- The processes set out in clause 9A.4(c) and (d) should be co-ordinated in cases where both positions and units are lost. Boards should ensure that the outcomes of the processes set out in clause 9A.4(c) and (d) are consistent with the needs analysis.
- For determining the surplus teachers the following process shall apply:
- If the needs analysis identifies a specific position, the teacher holding that position will be deemed surplus and the provisions of clause 9A.6 will apply;
- Where there is more than one position in the affected area(s) the remaining positions from the affected area(s) will be advertised internally;
- The teachers from the affected area(s) will apply for those positions in their respective area(s);
- Those positions shall be filled by applicants from the relevant affected area(s). The teacher(s) not appointed as a result of this process will be deemed to be surplus and the provisions of clause 9A.6 will apply.
- For determining the unit holders who are to lose units the following process shall apply:
- if the needs analysis identifies a specific position, the teacher holding that position will be deemed to be the teacher who is to lose or have a reduction in unit(s). That teacher will have access to the salary protection arrangements specified in clause 9A.5;
- If a needs analysis identifies an area(s) involving more than one position, the employer shall develop descriptions of the roles and responsibilities associated with the unit(s), including the number of units to be allocated to each position, which shall be advertised internally. The position(s) shall have the remaining units available in the affected area(s) allocated to them. No teacher shall receive more units than she/he held before the review;
- Teachers from the affected area(s) shall apply for the positions within the relevant affected area(s);
- The teacher(s) who loses her/his unit(s) will be the teacher(s) appointed to a position with either a reduced number of units or no units allocated to it. Those teachers will have access to the salary protection arrangements specified in clause 9A.5.
9A.5 Salary Protection, Dealing with Units and AP/DP Entitlements
Where a teacher permanently appointed to a position to which unit(s) are allocated loses unit(s) or has the position altered in status because of the application of these provisions, the following salary protection arrangements shall apply:
- Where the allocation has been made on a permanent basis, the period of protection shall be one year while the teacher continues to hold a position in the school;
- Where the allocation has been made on a fixed term basis, the period of salary protection shall be for the lesser of the term of the appointment agreed or for a maximum of one year while the teacher continues to hold a position at the school;
- In no case under clause 9A.4 or clause 9A.5 shall the eventual salary reduction be to a rate less than would otherwise apply had the teacher not been appointed to a position to which unit(s) had been allocated;
- Where a school is required to identify a teacher as surplus and a teacher designated as assistant or deputy principal loses all her/his units as a result of the review of staffing, that teacher designated assistant or deputy principal may volunteer to be considered under the identification process set out in clause 9A.6 below or elect the provisions contained in clause 9A.7.
- Where the number of unit(s) held by a teacher is reduced, should any subsequent units be allocated to the school that teacher shall be entitled to have those unit(s) allocated to them, up to the number of units held by the teacher prior to the reduction and within the period of salary protection, i.e. within one year of the reduction. Should units be reduced for more than one teacher, those teachers will have any new units allocated to them in the order that the reduction occurred. Where two or more teachers lose units at the same time and subsequently the school gains new units but does not have sufficient units to reinstate units to all the teachers who had their units reduced, those teachers shall be entitled to apply to have their units reinstated. The employer shall decide which of these teachers the new units(s) will be allocated to.
9A.6 Overview of Staff Surplus Options
9A.6.1 The primary focus of these provisions is to retain qualified teachers in the teaching service. Therefore, where a teacher’s position is to be disestablished, as a result of the above process, the redeployment and retraining options must in the first instance be thoroughly explored by the employer in consultation with the employee.
9A.6.2 The severance and long service provisions will only be offered by the employer after the redeployment and retraining options have been thoroughly explored by the employer in consultation with the employee and these options are considered inappropriate in the circumstances.
9A.6.3 Once the surplus teacher(s) have been identified and before the date the surplus staffing takes effect, the options set out below will be considered for permanently employed teachers.
9A.6.4 For part-time teachers the following provisions only apply if the identification process requires a complete reduction of the hours they are employed to work.
9A.6.5 Where the needs analysis requires a part reduction in hours for a part-time teacher they will be given two months notice of the reduction in hours and the provisions below will not apply.
9A.7 Redeployment and Retraining
In the first instance the parties will consider whether the teacher can:
- Redeployment/supernumerary – be redeployed for 30 school weeks within the school or at any other school requested by the teacher with the approval of the original Board and of the Board of that other school. During this time the teacher shall continue to seek a suitable alternative position; or
- Retraining – undertake a suitable course of retraining approved by the Secretary, for 30 school weeks which enhances or upgrades the teacher.
9A.8 Provisions for Redeployment
The following redeployment/supernumerary procedures shall apply to a permanently employed teacher who is redeployed under clause 9A.7(a).
9A.8.1 The employer shall assist the teacher to find a suitable alternative position and will meet the reasonable costs of attending relevant interviews.
9A.8.2 Where a teacher elects redeployment under clause 9A.7(a) and a position at the same or lower level becomes vacant at the school at which the teacher is redeployed (or with the teacher’s original Board where the teacher has been redeployed to a different school) the teacher shall be offered the vacant position unless the position is either a Māori immersion teacher or special education teacher position requiring skills not possessed by the teacher.
9A.8.3 Where a teacher declines placement under clause 9A.8.2 at the same level or declines a reasonable offer of appointment at the same or higher level from another Board, that teacher’s employment shall be terminated without further compensation.
9A.8.4 A teacher may, during their period of redeployment, subject to agreement between the teacher and their employer, undertake a defined special project(s) of work.
9A.8.5 At the end of the period of redeployment if a permanent position has not been secured the teacher’s employment shall be terminated. If the employment is likely to be terminated in these circumstances the Board of Trustees shall advise the teacher in writing of this not less than one month before the expiry of the period of redeployment.
9A.8.6 Where either:
- A school is merged and the teacher is not placed in a position in the continuing school; or
- A school is closed; the teacher will have all of the surplus staffing options available to them. Continued employment may be approved by the Secretary for up to a further one term.
9A.8.7 If a transfer of location is involved, teachers employed under clause 9A.7(a) may elect to be reimbursed removal expenses according to Part 6 of this Agreement in one or another but not both of the following circumstances:
- Where the teacher transfers to another school to continue employment pursuant to clause 9A.7(a); or
- Where the teacher transfers to a school where they have been appointed to a new permanent position.
9A.9 Provisions for Retraining
The following shall apply to a teacher who is retraining under clause 9A.7(b):
- There is no requirement on the employer to meet any costs and expenses of training, including course fees;
- At the end of the period of retraining if a permanent position has not been secured the teacher’s employment shall be terminated. If the employment is likely to be terminated in these circumstances the Board of Trustees shall advise the teacher in writing of this not less than one month before the expiry of the period of retraining.
- If a vacancy occurs at the school after confirmation of the retraining option the position may be offered to the teacher. The teacher may elect to accept the position or continue with the retraining option.
- Payment of the 30 school weeks of retraining will commence at the start of the school year or two months after notice of disestablishment of the teacher’s position (if the surplus is not generated as a consequence of the September Staffing Notice).
9A.10 Long Service Leave and Severance Provisions
Where the options outlined in clause 9A.7(a) and (b) have been thoroughly explored and no such option is suitable, the employer shall offer a teacher either:
- Long Service Payment - To be paid a long service payment to assist a teacher, with not less than twenty-five years service, to retire from the teaching service. The payment will be equivalent to twenty-six weeks salary at the time of termination; or
- Severance - to be paid a severance payment based on the following table:
Length of Service Weeks of Payment (Ordinary Pay) Up to 3 years 7 weeks Over 3 and up to 5 years 15 weeks Over 5 years 23 weeks
9A.11 Payment of Long Service and Severance Provisions
Payment of severance or long service payment under clause 9A.10 is subject to the following provisions:
- Where a teacher who has received a severance payment or long service payment commences permanent employment in a state or state-integrated school within a number of weeks which is less than the number of weeks of payment received under clause 9A.10 the teacher shall refund the difference between the number of weeks for which they were without employment and the number of weeks for which severance or long service payment was received;
- Payment under this provision is conditional on the teacher finishing on an agreed date. That date should be no less than two months from the date of disestablishment of the position unless a shorter period is mutually agreed, but may be longer depending on the educational needs of the school. Where the teacher resigns her/his position or is appointed to another permanent teaching position in a state or state-integrated school before the date of payment, no payment will be made;
- Any teacher receiving the severance payment or long service payment will be deemed to have been paid in full for service to that date for the purpose of calculating service for any future sick leave, severance, or long service payment entitlements. Provided that a teacher who is subject to clause 9A.11(a) shall receive pro rata reinstatement of these service entitlements;
- For the purpose of these provisions ordinary pay is defined as basic taxable salary plus regular taxable allowances paid on a continuous basis as at the effective date that the surplus staffing takes effect. For teachers on leave without pay, ordinary pay shall be the ordinary pay at the time of taking leave;
- For the purpose of clause 9A.11 “service” is defined as the aggregate of all employment as a teacher in state or state-integrated schools and/or service as a trained and certificated teacher in the employment of a Free Kindergarten Association and any credit (to a maximum of five years credit) given for time spent on childcare pursuant to 5.5.
9B Surplus Staffing Provisions for Speech Language Therapists
9B.1 When a review shows that a Speech Language Therapist (SLT) staffing surplus will exist the employer shall, at the first instance, consider in consultation with SLT staff whether this staffing surplus can be absorbed by attrition.
9B.2 If the required number of positions cannot be achieved through attrition and if a surplus staffing situation still exists, an identification of the SLT(s) to be deemed surplus will be made from among permanent SLT(s), through a fair and transparent process.
9B.3 Once the surplus SLT(s) has been identified and before the date the surplus staffing takes effect, the options described in clauses 9A.7 to 9A.11 will be available to that SLT(s). For the purposes of this provision, any reference to “teacher” in clauses 9A.7 to 9A.11 shall be read as a reference to a SLT.
9C Surplus Staffing Provisions for Resource Teachers
The provisions of clause 9A shall apply to Resource Teachers. However, employers and resource teacher employees are advised that these provisions must be applied in conjunction with the provisions outlined in Appendix 5 to this Agreement.
9D Changing Status to Kura Kaupapa Māori
In the event of staffing needs being reviewed as a result of a school changing to a kura kaupapa Māori or a school which will provide level 1, 2 or 3 Māori immersion programmes, all of the surplus staffing provisions will apply to teachers so affected and required to transfer out.