One of the more difficult staffing challenges faced by our members is when an ongoing teacher is the successful applicant for a fixed term position at another school. In this scenario, the teacher wants to hold onto their ongoing position at their substantive school, but also be released to teach at another school. While the teacher will certainly have what they believe are justifiable reasons for making the application in the first place, this does place pressure on the principal of their substantive school as:

The release of the teacher will be disruptive to the learning of their students.
They can be difficult to replace, particularly at the moment when it is so difficult to find suitable staff. It can be particularly difficult when a highly skilled and experienced teacher wants to be released and the only available replacements are not of the same calibre of what you are losing.
The principal is being asked to release this teacher, yet also knows doing so will almost certainly disadvantage the school.

As always in these situations, the answer in dealing with matters like this lies in Department Policy which states:

Except as noted below, where an ongoing employee is the successful applicant for an advertised vacancy of 12 months or less the employee will be temporarily transferred to that position for the period of the vacancy. For the purpose of this policy, '12 months or less' includes circumstances where a complete school year, inclusive of school vacation periods, is longer than 12 months. At the expiration of the fixed period, the employee will return to their original school.

For vacancies of 12 months or less, the actual commencement date will need to be negotiated between the respective principals and the successful applicant. The release date should be negotiated to reflect the needs of both schools and the employee and release should not be unreasonably refused.

Where an ongoing employee is the successful applicant for an advertised fixed term position at another school, the timing of release will be negotiated between the two principals. Where there is no agreement on the timing of the release, the following will apply:

Where the release is required in the same year, the principal of the base school may refuse to release the employee where the principal is unable to replace the employee prior to release
Release at the commencement of the following year
Where an ongoing employee’s temporary transfer is to be extended (either by appointment to an advertised vacancy or otherwise) the principal of the school must notify the base school principal by 1 November that the transfer is extended. If this does not occur, the employee will return to the base school unless otherwise agreed between the two principals.

Where the principal of the base school does not agree to release the employee, the employee may lodge an application for a personal grievance with the Merit Protection Boards.

An ongoing employee who is the successful applicant for an identified fixed term position of up to 3 years in the Science, Mathematics and associated Technology areas at John Monash Science School, will be temporarily transferred to John Monash Science School for the duration of the vacancy. At the expiration of the fixed period, the employee will return to their base school.

An ongoing employee who is the successful applicant for an identified fixed term position of up to 3 years in the VCE Extended Investigation and VCE Algorithmics subjects at the Centre for Higher Education Studies (CHES), will be temporarily transferred to CHES for the duration of the vacancy. At the expiration of the fixed period, the employee will return to their base school.

An ongoing employee, other than an ongoing employee who is the successful applicant for an identified fixed term position at John Monash Science School or the Centre for Higher Education Studies, who is temporarily transferred in response to an advertised fixed term vacancy may be offered one further period of temporary transfer at the same school, without advertisement of the position, provided the base school principal agrees to the further release and the position continues to satisfy the fixed term criteria set out under ‘duration of vacancy’. Where this occurs:

it can be for the same duration as the initial period of transfer or for any shorter period but not less than 30 working days; and
the temporary transfer will be extended, and the employee (other than where that employee is excess to workplace requirements) will return to their original school at the expiration of the subsequent fixed period; or
the employee must be offered permanent transfer to the position if that employee is excess to workplace requirements and the initial and subsequent fixed periods exceed 12 months in total at the same school.

If an ongoing employee is selected for a further advertised fixed term position of 12 months or less at the same school:

the temporary transfer will be extended and the employee (other than where that employee is excess to workplace requirements) will return to their original school at the expiration of the subsequent fixed period; or
the employee must be offered permanent transfer to the position if that employee is excess to workplace requirements and the initial and subsequent fixed periods exceed 12 months in total at the same school.

We’ve represented our members at the Merit Protection Board on this matter several times this year and also provided advice to our members. On most occasions, the principal has not wanted to release the teacher because of the disruption this will cause to the learning of the students in their own school. For others, the principal has appointed an ongoing employee to a fixed term vacancy at their school only to have the principal of another school refuse the release.

As a general rule, we’ve learned that there is an expectation that the teacher will be released. For those wanting to be released during the year, a release date can be limited to when a replacement has been found. If the principal has attempted to find a replacement by advertising without success, it is our view that the Merit Protection Board will support the principal and not approve the temporary transfer during that particular year. If the principal has not advertised to try and find a replacement, the Board is likely to support the teacher and approve the temporary transfer.

If an ongoing teacher is successful in gaining a fixed term temporary transfer for the following year, it is our view that the base school principal is expected to grant this release.

Finally, the temporary transfer can be extended for one further year provided the principal lets the base school principal know prior to 1st November.

Do:

Contact the other principal to negotiate the release date. Note that you’ll approve a request for a temporary transfer during a school year subject to a replacement being found prior to the release of that teacher. In effect you’re saying yes, they can go, but not until a suitable replacement is found. If the release date is for the following year, the temporary transfer should normally be approved to start at the beginning of the next year.
Contact the Department or us for further advice as required.
Contact us if a grievance to the Merit Protection Board is submitted. We can provide expert support in these matters.

Do not:

Reject the release without attempting to fill the position.
Unreasonably refuse a temporary transfer.

Note the above applies to staff wanting to transfer within our system. If a teacher came to me asking for approval for short-term release to a non-government school, a completely different set of considerations come into play, including permission to engage in other employment and managing a conflict of interest. In such a situation, I would not to agree to release a teacher and disadvantage the students in my school in order to provide an advantage to the students at a neighbouring independent school.

Australian Principals Federation

Fortnightly Newsletter

Issue 242 · 18 Oct 2023

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