Education (Amendment)

Ordinance 2004Major Provisions Introduction

27 September 20045,7 & 16 October 2004

2

Commencement Date

The Education (Amendment) Ordinance 2004 shall come into operation on 1 January 2005.

3

Establishment of IMC(Operating Schools)

Aided Schools (Section 40BK) The school sponsoring body (SSB) shall

submit to the Permanent Secretary a draft of the constitution of the incorporated management committee (IMC) (Section 40BL) and a list of the proposed managers (Section 40BM) before 1 July 2009. (Note ： The Legislative Council may, by a resolution passed after 1 October 2008 but before 1 July 2009, extend the deadline of submission to 1 July 2011 at the latest.)

DSS schools or specified schools (Schedule 3) (Sections 40BJ & 40BK) The SSB shall notify the Permanent Secretary

in writing of its intention to establish an IMC and submit the related documents within 6 months from the date of the notice given.

4

Establishment of IMC(Planned Aided and DSS Schools)

The scheduled opening date falls on or after 1 January 2005 (Sections 40BT & 40BU). Submit the related documents not later than 6 months before the scheduled opening date (if the SSB of a DSS school has notified the Permanent Secretary in writing of its intention).

5

IMC members include (Section 40AL): SSB managers, can reach up to 60% of the total

number of managers (one alternate SSB manager may be provided) ；

the principal — an ex-officio member ； teacher manager(s) (if there is only one teacher

manager, an alternate teacher manager shall be provided) ；

parent manager(s) (if there is only one parent manager, an alternate parent manager shall be provided)

alumni manager(s) ； and independent manager(s). (Note ： In calculating the maximum number of SSB

managers, all alternate managers shall not be counted.)

Composition requirements of IMC

6

Composition requirements of IMC

Except voting right, an alternate manager shall have all functions and rights of a manager (Section 40AS).No person shall serve in an IMC in more than one capacity (Section 40AL).

7

Exemption from composition requirements

(Section 40AR)

The first independent manager: register within one year from the establishment of the IMCThe first teacher manager of a planned school: register within one year from the establishment of the IMCThe first parent manager of a planned school: register within 3 years from the establishment of the IMCThe first parent manager of an operating school: register within 3 months from the establishment of the IMC

8

Functions and Powers of SSB

The SSB is responsible for (Sections 40AE,40AF & 40AG): setting the vision and mission for the school ; drafting the constitution of the IMC ; giving general directions to the IMC in the

formulation of education policies of the school ; overseeing the performance of the IMC ; deciding the mode of receiving government

aid ; issuing guidelines for raising funds and

entering into contracts involving funds other than funds received from the Government ; and

deploying principals and teachers among sponsored schools under certain circumstances (Section 40AG).

9

Functions of IMCIMC is responsible for (Sections 40AD & 40AE) : managing the school ; formulating education policies of the school in

accordance with the vision and mission set by the SSB ;

accounting to the Permanent Secretary and the SSB for the performance of the school ;

ensuring that the mission of the school is carried out ;

planning and managing financial and human resources available to the school ;

ensuring that the education of the pupils is promoted in a proper manner ; and

school planning and self-improvement of the school.

10

Powers of IMC

Powers of IMC include (Section 40AF) : act in accordance with the vision and mission and the

general educational policies and principles set by the SSB ;

employ such teaching staff and non-teaching staff as it thinks fit and determine their terms and conditions of service ;

use and dispose of its funds and assets ; open and operate bank accounts and invest its funds ; borrow money ; solicit and receive donations, and handle

the moneys or property in the capacity of a trustee ; enter into any contract, agreement or arrangement etc.

Restrictions on the exercise of powers of the IMC (Section 40AF(3)-(5))

11

Constitution of IMC

The constitution shall be approved by the Permanent Secretary (Section 40AY).The constitution of IMC shall provide for the following (Regulation 75A ) ： the number of each category of managers ; the procedures for nominating or electing

persons for registration as managers ; the tenure of office of the managers ; the procedures for the selection of the principal

; and meetings and proceedings of the IMC, etc

EMB will provide a sample constitution for IMCs.

12

Amendment to the Constitution

Amendment to the constitution (Section 40AY) ： An IMC may, by passing a resolution, amend its

constitution in the manner provided for in the constitution.

The proposed amendment to the constitution shall be lodged with the Permanent Secretary and shall not take effect before the expiry of one month.

If the Permanent Secretary objects to the amendment, he shall specify the reason for the objection by notice in writing.

An IMC shall amend the constitution in such a manner specified by the Permanent Secretary.

SSB/IMC may lodge an appeal against the decision of the Permanent Secretary on the vetting of and subsequent amendment to the constitution (Section 61).

13

Assets and Funds (1)The SSB is responsible for maintaining full control of the use of funds and assets owned by it (Section 40AE).An IMC may use and dispose of the funds and assets owned by it, and handle funds and assets received from the Government in the capacity of a trustee (Section 40AF).No property belonging to and provided by the Government, the sponsoring body or any other person for the operation of a school shall, by reason only of the establishment of the IMC of the school, become property of the committee (Section 40AH).In the execution of a judgment by writ of fieri facias, the property that is located in the school premises and used in connection with giving instructions to the pupils of the school shall not be seized (Section 40BD).

14

Assets and Funds (2)On the cancellation of the registration or provisional registration of a school (i.e. the IMC is dissolved), the Permanent Secretary shall (Section 40BE) apply the properties owned by the IMC to

settle the outstanding liabilities of the committee in such manner he considers fair;

if any property which was donated to the committee remains, return the property to the donor unless the donor indicated at the time of the donation that he did not wish to reclaim the property in the event of the dissolution of the committee;

if any property remains, apply the property towards any purpose which is conducive to education in Hong Kong.

15

Liability of manager and protection

The general proceedings against a school shall be brought against the IMC instead of an individual manager.A manager shall not incur any civil liability in respect of anything done or omitted to be done by him in good faith in the performance or purported performance of any function of his office as the manager (Section 40BI).No proceedings shall be brought against a manager of a school for anything done or omitted to be done by the IMC unless he has not acted in good faith (Section 40BI).Unless with the consent or connivance of an individual manager towards any unlawful behavior, an individual manager is not held liable to the contravention of Education Regulations by the IMC (Section 87).

16

Supervisor (1)Must be a manager of the school

but must not be the principal or a teacher of the school.Must be appointed by the SSB of the school or elected by the managers of the school in accordance with the constitution of the IMC (Section 40AJ).

17

Supervisor (2)

Functions of supervisor (Section 40AK): preside over the meetings of the IMC. give notice in writing to the

Permanent Secretary that any manager, principal or teacher ceases to hold office, or any teacher is employed.

sign the statement of accounts. perform such functions as may be

provided for in the constitution of the IMC……

18

Selection of principal (Section 57A)

Before recommending any person to be the subsequent principal, the IMC shall appoint a principal selection committee.A principal selection committee shall be composed of representatives of the SSB, managers of the IMC and (where applicable) such other persons as may be provided for in the constitution of the IMC.The SSB or the IMC or both as may be provided for in the constitution of the IMC shall nominate in an open, fair and transparent manner suitable candidates for the principal selection committee to select.The IMC shall recommend the person selected by the principal selection committee to the Permanent Secretary as the principal of the school.

[Special condition ： Section 40AG(1)(a)(ii)]

19

Teacher, parent and alumni manager election

(Sections 40AN, 40AO & 40AP)Teacher, parent and alumni managers shall be elected.

The recognised associations (parent manager(s) – recognised parent-teacher association; alumni manager(s) – recognised alumni association) shall conduct the elections and nominate the elected persons for registration as managers.

All teachers/parents of the current pupils have equal voting right and right of candidature; the voting shall be conducted by secret ballot.

The election system must be fair, open and transparent.

20

Other points to note for the nomination of managers

(Sections 40AM,40AP,40AQ & 30)Managers not to be electedNomination for registration as:Teacher manager

must not be

the principal of the school

Parent manager

….. a teacher of the school

Alumni manager

….. a teacher of the school

Independent manager

….. a teacher, a parent of a current pupil, an alumnus, or a member or an employee etc of the governing body of the SSB of the school

21

Grounds for refusal to register manager and cancellation of

registration of manager (Sections 30 & 31)

A bankrupt within the meaning of the Bankruptcy Ordinance (Cap. 6)

Has previously been convicted of a criminal offence punishable with imprisonment.

Under the age of 18 years. Has attained the age of 70 years and fails to

produce a medical certificate. Has been registered as a manager of 5 or more

schools. Has been absent without the consent of the IMC

from all meetings of the committee in a school year.

22

Declaration and disclosure of interests by

manager (1)Make a written declaration at least once in every 12 months (Section 40BF): states the particulars of any pecuniary or

other personal interest, direct or indirect, that he has in any matter that raises or may raise a conflict with his duties as a manager; or

States that he has no such interest

Within one month after a change occurs in any matter stated in a declaration, make another written declaration.

23

Declaration and disclosure of interests by manager (2)If a manager has any pecuniary interest or conflict in a matter that is considered or is to be considered at a meeting of the IMC, a disclosure shall be made. Unless the IMC otherwise determines, the manager shall not take part in any deliberation or decision with respect to the matter. (Section 40BG)

The IMC shall keep a register of interests of the declarations and disclosures made respectively. The public is permitted to inspect the register of disclosures with respect to the matter considered at a meeting of the IMC at any reasonable time. (Section 40BH)

24

Permanent Secretary to maintain registers

The Permanent Secretary shall maintain a register of IMCs, in which shall be entered the name, tenure of office and category of each manager, for public inspection (Section 8).

25

Failure to establish IMC

If a school fails to establish an IMC before the deadline, the Permanent Secretary may appoint one or more persons to be the managers of the school. The manager(s) shall hold office until the term of office expires or the IMC is established, whichever is the earlier; and May cancel the registration of any manager of the school (Section 40BS).

26

Supporting measures (1)Provide various kinds of guidelines, such as a sample constitution for IMCs, the guides on parent, teacher, and alumni manager election, and a school-based management handbook.Organise training courses for school managers and those who are interested to be managers to enhance their understanding of school-based management and the legal responsibilities of school managers.

27

Supporting measures (2)

Provide voluntary legal services, such as forming a legal professional supporting network which may make use of the internet to provide professional advice to schools, etc.

Provide IMC Liability Insurance cover for IMC schools.

28

Thanks!