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Following is a question by the Hon Ip Kin-yuen and a written reply by the Secretary for Education, Mr Eddie Ng Hak-kim, in the Legislative Council today (April 27):
Question:
Under subsections (3)(c), (4) and (5) of section 40AF of the Education Ordinance (Cap. 279), recruitment of teachers by incorporated management committees (IMCs) of schools to fill teaching posts within the establishment of staff (the establishment) provided for in the Codes of Aid (COA) (including the Code of Aid for Primary Schools, the Code of Aid for Secondary Schools, the Code of Aid for Special Schools, and the Code of Aid for Aided Schools applicable to aided schools with an IMC) must be conducted in accordance with the terms and conditions of service as set out in the COA. According to a judgment handed down by the Court of Final Appeal on the case of Ko Hon-yue v the Management Committee of Fung Kai No. 1 Secondary School for the year 2001 (FACV 8/2011), schools may not terminate the employment of teachers within the establishment simply by adopting the approach of letting employment contracts expire or giving such teachers due notice, and they are required to follow the procedures set out in the COA. Moreover, the COA have not specified that schools may employ teachers for a defined contract period (DCP) to fill teaching posts within the establishment. Nevertheless, quite a number of aided schools have been employing teachers on DCP terms to fill permanent teaching posts in their establishment (regular teachers on DCP terms) in recent years. According to the information provided by the authorities, there are over 1 200 regular teachers on DCP terms in this school year, and their average length of service is 2.1 years and the longest length of service among them is 10 years. Some regular teachers on DCP terms have pointed out that as their contracts need to be renewed annually, they have been deprived of job security, their professional development has been seriously hindered, and a succession problem in the teaching profession has arisen. They have also pointed out that, according to Section 56 of the Code of Aid for Primary Schools and Code 13.2(k)(iv) of the Code of Aid for Aided Schools, teachers on first appointment to a school will serve a probationary period of two years and be employed by the same school thereafter. In the event that the schools wish to terminate their employment (regardless of whether the probationary period has ended), they may not do so simply on the premise that the employment contracts have expired but they have to follow the specified procedures. In this connection, will the Government inform this Council:
(1) whether it knows since when aided schools have employed regular teachers on DCP terms;
(2) of the current number of regular teachers on DCP terms with a length of service of five to 10 years; whether it knows the respective reasons why aided schools have (i) employed those teachers on DCP terms for prolonged periods, and (ii) not converted them to regular teachers on permanent terms over the years (set out such information separately by primary and secondary schools);
(3) of the respective numbers, in the past five years, of regular teachers on DCP terms in primary and secondary schools whose employment contracts were not renewed upon expiry or whose employment was terminated by their schools after giving due notice or payment in lieu of notice; whether it knows the reasons why those teachers' contracts were not renewed/employment was terminated; whether it has assessed (i) the legal basis for the schools adopting this practice, and (ii) if such a practice is in breach of the relevant requirements under the Basic Law, the Education Ordinance, the Employment Ordinance (Cap. 57), the COA and the common law;
(4) whether the Education Bureau (EDB) conducted any review in the past three years to see if sufficient job security had been provided for regular teachers on DCP terms; if the EDB did, of the details;
(5) given that the EDB has all along been allowing aided schools to employ regular teachers on DCP terms, whether the EDB has examined if the relevant practices of employment and termination of employment have violated the relevant requirements under the legislation concerned and the COA; if the EDB has, of the details; if not, whether the EDB will conduct such an examination; if the EDB will, when the examination will be completed and the relevant outcome published;
(6) as it has been specified in the Code of Aid for Primary Schools (1994 edition) and the Code of Aid for Secondary Schools (1994 edition) have provided that the employment of teachers after the two-year probationary period will be permanent and that the termination of the employment of such teachers by the schools must follow specified procedures, of the intent of the EDB in setting out such provisions;
(7) whether it has assessed if the employment contracts of the teachers within the establishment who have passed the two-year probationary period as mentioned in (6) are permanent contracts and not subject to annual renewal; if it has assessed and the outcome is in the affirmative, and given that the Code of Aid for Primary Schools and the Code of Aid for Secondary Schools published in 1994 contain provisions relating to permanent employment not subject to annual renewal, of the reasons why such provisions have not been included in all the various editions of the Code of Aid for Aided Schools published since 2005; the policy considerations for the decision of the EDB not to include such provisions in the Code of Aid for Aided Schools; whether the EDB will consider adding such provisions to that code; if the EDB will, of the specific timetable; if not, the reasons for that;
(8) whether it has examined if the EDB's allowing schools to employ regular teachers on DCP terms is in contradiction with the intent of establishing permanent teaching posts; of the reasons for the EDB changing the following arrangement: teachers first employed within the establishment will serve a probationary period of two years and will continue to be employed by the same school thereafter;
(9) whether the EDB has any plans to require aided schools to convert regular teachers on DCP terms to regular teachers on permanent terms; if the EDB does, when the relevant work will be completed; if not, of the reasons for that; and
(10) given that the EDB has repeatedly revised the COA, thus giving rise to differences between the terms in the employment contracts for newly appointed and those for existing teachers as well as changes to the legal position of and remuneration packages for teachers, whether the EDB will conduct an extensive consultation with frontline teachers before revising the COA in future; if the EDB will, of the details; if not, the reasons for that?
Reply:
President,
The posts within the approved teaching staff establishment of aided schools are regular posts, and the teachers filling these posts (except temporary or supply teachers) are regular teachers. According to the information provided by schools on the appointment of teachers, while most regular teachers do not have a fixed term of employment, a small number of regular teachers are employed for a clearly defined contract period. These teachers are entitled to the same remuneration package, including participation in the Grant/Subsidised Schools Provident Fund Schemes, as those without a specified term of employment. My reply to the question raised by the Hon Ip Kin-yuen is as follows:
(1) Before the introduction of appointment of regular teachers on terms with a defined contract period (DCP), (i.e. regular teachers on DCP terms as mentioned in the question), schools wishing to employ teachers on a short-term basis to fill regular posts due to factors like actual operational needs and anticipated fluctuation of manpower requirements in the coming years could only employ temporary teachers, who were not eligible to join the Grant/Subsidised Schools Provident Fund Schemes. In response to the request of the school sector and taking into account the actual operational needs, starting from the 2006/07 school year, the Education Bureau (EDB) has allowed schools the flexibility to employ regular teachers on DCP terms with justified reasons.
(2) According to the statistics for the 2015/16 school year, there were about 70 regular teachers employed on DCP terms for five to 10 years. To our understanding, the schools concerned employed regular teachers on DCP terms for various reasons, which mainly include anticipated redundancy arising from reduction of classes in future, the time-limited nature of some regular teaching posts (for example, the six additional teaching posts under the Voluntary Optimisation of Class Structure Scheme, provision of additional teaching posts to primary schools maintaining 30 students per class, etc), flexibility in planning the senior secondary curriculum and appropriate match of subject teachers.
(3) Every year, teachers choose to resign or not to renew contracts for various reasons, for instance, health, family, further studies, taking offer from another school, retirement, etc. Changes in the number of classes in individual schools may also affect the number of regular teachers in their establishment, and teachers who have become surplus are required to leave. At present, schools only need to report to the EDB the effective date and period of notice of termination of service (if applicable) for the departure of regular teachers within the establishment without giving details of the handling procedures unless such termination involves disciplinary action. Therefore, we do not have the statistics on DCP teachers whose employment contracts were not renewed.
(4) As the employers of teachers, school management committees/incorporated management committees (SMCs/IMCs) of aided schools are required to comply with the Employment Ordinance, Education Regulation, relevant Codes of Aid (COA) and legislation as well as guidelines issued by the EDB from time to time in handling the appointment and dismissal of teachers and other personnel matters. The EDB always reminds schools via various channels that regular teachers on DCP terms are regular teachers within the approved establishment and that their salaries and leave entitlement (including contribution to the Grant/Subsidised Schools Provident Fund) as well as their appointment and dismissal are no different from those for regular teachers in general. These matters should also be handled in compliance with the COA and the requirements set out in relevant ordinances/regulations. Other than the time-limited nature of the teaching posts, regular teachers on DCP terms are provided with employment protection similar to that for other regular teachers regarding dismissal.
(5) As mentioned above, regular teachers on DCP terms are introduced in response to schools' actual operational needs. As pointed out in part (4) above, aided schools are required to comply with the Employment Ordinance, Education Regulation, relevant COA and legislation as well as guidelines issued by the EDB from time to time in handling matters concerning the appointment and dismissal of regular teachers, irrespective of whether they are employed on DCP terms or not. The EDB has kept the teacher employment situation of aided schools under review, and often reminds schools that employment of regular teachers on DCP terms should be truly justified and that schools should not take such mode of employment as a staff management tool.
(6) According to the COA, regular teachers employed in aided schools are required to serve a two-year probationary period before they are offered appointment on a long-term basis. As in other professions, the purpose of setting a probationary period is to allow employees an opportunity to know how well they are suitable for long-term employment in the profession on the one hand, and enable employers to observe whether the performance and character of the employees fulfil the criteria and requirements of the jobs concerned on the other. It is a well-established and well-received practice in the education sector to set a two-year probationary period for regular teachers employed in aided schools.
(7) Relevant provisions of the Code of Aid for Aided Schools for schools governed by an IMC stipulate that teachers and specialist staff on first appointment should normally serve a probationary period of two years. After the probation, termination of employment shall follow the requirements prescribed in the Compendium to the Code of Aid for Aided Schools and any other conditions as set out in the letter of appointment or contract of service signed between the schools and employees. Although the Code of Aid for Aided Schools does not stipulate that it is necessary for staff employed after the two-year probationary period to renew their contracts annually and the wording of permanent employment is not used either, it does not imply that the employment arrangement for qualified regular teachers will be changed after the two-year probationary period. Schools should specify the term of employment in the contracts for information of the teachers concerned if there are justifiable reasons or actual operational needs (e.g. teaching posts being time-limited in nature) to do so. For other matters concerning appointment and dismissal, the arrangements are basically the same as the requirements stipulated in the COA for primary schools, secondary schools and special schools. Therefore, we consider that revision to relevant provisions is not necessary.
(8) As mentioned in part (2) above, some schools employ regular teachers on DCP terms owing to various reasons or actual operational needs. The EDB has not changed the arrangement stated in the COA that requires a regular teacher to serve a two-year probationary period before being employed continuously by the same school thereafter.
(9) As mentioned above, regular teachers on DCP terms are introduced in response to schools' actual operational needs. The EDB has kept the teacher employment situation of schools under review. We have always stressed that schools may consider employing regular teachers on DCP terms only when there are actual operational needs. The EDB will ask schools to make improvement if they employ regular teachers on DCP terms without justifiable reasons. In fact, the overall number of regular teachers employed on DCP terms has been declining over the past three years.
(10) Please refer to part (4) above for matters requiring the attention of SMCs/IMCs in handling the appointment and dismissal of teachers as the employer of teachers. The Code of Aid for Aided Schools was developed to tie in with the implementation of school-based management and the establishment of IMC. It is incumbent upon the EDB to review and revise related provisions in the Code from time to time having regard to the actual implementation and feedback from the sector. Taking the above into account holistically, the claim as raised in the question about the differences in the employment terms between newly appointed and serving teachers and the change in the legal position of and remuneration packages for teachers as a result of the revision made to the COA by the EDB is without grounds.
All along, the EDB attaches great importance to communication with the sector and is always ready to listen to the views of various parties on the provisions of the Code of Aid for Aided Schools. Appropriate amendments will be made as necessary so that the design and content of the Code can be refined to support schools in fulfilling the goal of providing quality education.
Ends/Wednesday, April 27, 2016
Issued at HKT 16:25
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