DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Education group
(AM2015/6)

4 yearly review of modern awards – Higher Education Industry – Academic Staff – Award 2010 and Higher Education Industry – General Staff – Award 2010 – Fair Work Act 2009, ss. 156, 138 and 134.

CONTENTS

ABBREVIATIONS

1. INTRODUCTION

[1] On 11 November 2014 the President issued a direction that this Full Bench hear and determine the substantive issues raised during the 2014 four yearly review of modern awards (the Review) with respect to the Education Group of Awards, i.e. the Educational Services (Post-Secondary Education) Award 2010 13, the Educational Services (Schools) General Staff Award 201014, the Higher Education Industry – Academic Staff – Award 2010¹⁵ (Academic Staff Award) and the Higher Education Industry – General Staff – Award 2010¹⁶ (General Staff Award).

[2] This decision concerns the two higher education industry awards referred to the Full Bench. The issues that this Full Bench has been directed to determine were set out in Schedules A.3 and A.4 to the President’s directions as amended on 21 April 2015. Specifically the issues were:

•  coverage of research institutes;

•  coverage;

•  restriction on use of fixed-term contract;

•  fixed-term employment categories;

•  fixed-term expiry severance pay;

•  industry specific redundancy provisions (Academic Staff Award only);

•  information and communication technology (ICT) allowances;

•  professional and discipline currency allowance;

•  hours of work;

•  classification of academic staff;

•  rates of pay – linking to classification descriptors;

•  working hours and overtime; and

•  casual conversion.

[3] A number of issues were either agreed between the parties prior to being heard or are no longer pressed, e.g. claims regarding the restriction on use of fixed-term contract.

[4] The claims in respect of the remaining issues can be summarised as follows:

•  Coverage of research institutes – the National Tertiary Education Union (NTEU) seeks to vary the Awards to cover staff in medical, health and research institutes. The Full Bench has dealt with this issue in a separate decision. 17

•  Coverage – Australian Higher Education Industrial Association (AHEIA) proposed the deletion of clause 4.3 of the Academic Staff Award on the basis that it was no longer applicable. This claim is considered in Chapter 6 of this Decision.

•  Fixed-term employment categories – AHEIA seeks the inclusion in the Awards of an additional circumstance in which persons can be employed as a fixed-term employee, i.e. where an area is under review. This claim is considered in Chapter 7 of this Decision.

•  Fixed-term expiry severance pay – both AHEIA and the Group of Eight Universities (Go8) seek the deletion from the Awards of provisions providing for the payment of severance pay upon the expiry of fixed-term employment. These claims are considered in Chapter 8 of this Decision.

•  Industry specific redundancy provisions – AHEIA seeks the deletion of clause 17—Industry specific redundancy provisions of the Academic Staff Award, whilst the Go8 seeks to vary clause 17.6 of the Award which provides an extended period of notice of termination for employees not accepting redundancy to align the period of notice with the National Employment Standards (NES) as per clause 15 of the Award. The NTEU seeks to replace the word ‘context’ in clause 17.1(b)(ii) of the Award with the word ‘content’. These claims are considered in Chapter 9 of this Decision.

•  ICT allowances – the NTEU seeks to vary the Awards to provide for allowances to be paid to employees in respect of the costs of establishing, maintaining and using their own telephone, mobile phone, email and internet in circumstances where they are required to do so to satisfactorily perform their duties. This claim is considered in Chapter 10 of this Decision.

•  Professional and discipline currency allowance – the NTEU seeks to vary the Academic Staff Award to provide for compensation for time spent by casual academic staff maintaining currency in an academic discipline or field of study and keeping abreast of employer policies. This claim is considered in Chapter 11 of this Decision.

•  Classification of academic staff – the NTEU seeks to vary the Academic Staff Award to provide that in the absence of a bona fide academic promotion system academic employees may seek to enforce the correct classification and rate of pay for the work that they perform on the basis of the Minimum Standards for Academic Levels (MSALs). This claim is considered in Chapter 12 of this Decision.

•  Academic hours of work – the NTEU seeks to vary the Academic Staff Award to provide a method for determining ordinary hours of work for academic staff whilst taking into account the unique nature of academic work. This claim is considered in Chapter 13 of this Decision.

•  Rates of pay – linking to classification descriptors – the NTEU seeks to vary the General Staff Award to update the classification definitions in the General Staff Award and to make it clear that classifications are the determinant for classifying general staff. This claim is considered in Chapter 14 of this Decision.

•  Working hours and overtime – the NTEU proposes that the General Staff Award be varied to impose an obligation on employers to take active steps to ensure that staff are only working additional hours if they are appropriately compensated through overtime payments, time off in lieu or similar. This claim is considered in Chapter 15 of this Decision.

•  Changes to sessional academics rates schedule – key aspects of the NTEU claim were clarification of the points in the salary structure at which relevant doctoral qualifications and full subject coordination duties became relevant to determining the rate of pay and the insertion in the Academic Staff Award of definitions of the terms ‘lecture’, ‘tutorial’, ‘repeat lecture’, ‘repeat tutorial’ and ‘associated working time’. This claim is considered in Chapter 16 of this Decision. The submissions made by Australian Business Industrial and the New South Wales Business Chamber (ABI & NSWBC) were limited to this claim given its overlap with a similar claim by the NTEU in respect of the Educational Services (Post-Secondary Education) Award 2010. 18 Accordingly, reference to those submissions is limited to Chapter 16.

•  Casual conversion – the NTEU has foreshadowed an application to vary the Academic Staff Award to provide for the conversion of certain academic casual work. This issue is discussed at Chapter 17 of this Decision.

[5] In addition, two common issues relating to the Awards, i.e. annual leave and award flexibility, were referred to the Full Bench for determination on 23 November 2015 19 and 24 April 201620 respectively. The annual leave issue concerns both Awards, while the award flexibility issue only relates to the General Staff Award. The issues are discussed at Chapters 18 and 19 respectively of this Decision.

[6] Finally, we note that, permission was granted for both the Go8 and ABI & NSWBC to be legally represented. In exercising the discretion available to it to grant permission the Full Bench was satisfied that the circumstances set out in s.596(2)(a) of the Fair Work Act 2009 (Cth) (the Act) existed in this case.

2. THE STATUTORY FRAMEWORK

[7] The Act provides that the Fair Work Commission (Commission) must conduct a 4 yearly review of modern awards (s.156(1)). Section 156(2) deals with what has to be done in a review:

“(2) In a 4 yearly review of modern awards, the FWC:

(a) must review all modern awards; and

(b) may make:

(i) one or more determinations varying modern awards; and

(ii) one or more modern awards; and

(iii) one or more determinations revoking modern awards; and

(c) must not review, or make a determination to vary, a default fund term of a modern award.

Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 2: For reviews of default fund terms of modern awards, see Division 4A.”

[8] Subsections 156(3) and (4) deal with the variation of modern award minimum wages in a Review and are not relevant for present purposes.

[9] Section 156(5) provides that in a review each modern award is reviewed in its own right, however, this does not prevent the Commission from reviewing two or more modern awards at the same time.

[10] The general provisions relating to the performance of the Commission’s functions apply to the Review. Sections 577 and 578 are particularly relevant in this regard. In conducting the Review the Commission is able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the Act. Importantly, the Commission may inform itself in relation to the Review in such manner as it considers appropriate (s.590).

[11] The modern awards objective is central to the Review. The modern awards objective applies to the performance or exercise of the Commission’s “modern award powers”, which are defined to include the Commission’s functions or powers under Part 2-3 of the Act. The Review function in s.156 is in Part 2-3 of the Act and so will involve the performance or exercise of the Commission’s “modern award powers”. It follows that the modern awards objective applies to the Review.
[12] The modern awards objective is set out in s.134 of the Act, as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2–6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”

[13] The modern awards objective is directed at ensuring that modern awards, together with the NES, provide a “fair and relevant minimum safety net of terms and conditions” taking into account the particular considerations identified in paragraphs 134(1)(a) to (h). The objective is very broadly expressed. 21 The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision-making process.22

[14] No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant to a particular proposal to vary a modern award.

[15] There is a degree of tension between some s.134 considerations. The Commission’s task is to balance the various considerations and ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions.

[16] The modern awards objective requires the Commission to take into account, among other things, the need to ensure a “stable” modern award system (s.134(1)(g)). The need for a “stable” modern award system supports the proposition that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of the merit argument required will depend on the variation sought. As the Full Bench observed in the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision (the Preliminary Issues Decision):

“Some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.” 23

[17] In the Review the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made. 24 The proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective (see s.138). What is “necessary” in a particular case is a value judgment based on an assessment of the s.134 considerations having regard to the submissions and evidence directed to those considerations.25

[18] The Full Bench in the 4 Yearly Review of Modern Awards – Penalty Rates Decision (the Penalty Rates Decision) 26 made it clear that it was not necessary, in order to justify the variation of a modern award, that a “material change in circumstances” since the making of the modern award(s) under review be demonstrated.27

[19] In performing functions and exercising powers under a part of the Act (including Part 2-3 – Modern Awards) the Commission must take into account the objects of the Act and any particular objects of the relevant part (see s.578(a)). The object of Part 2-3 is expressed in s.134 (the modern awards objective) to which we have already referred. The object of the Act is set out in s.3 as follows:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.”

[20] Finally, we note that the Full Bench in the Penalty Rates Decision 28 summarised the task of the Commission in the conduct of the 4 Yearly Review as follows:

“1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.

2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.

The particular context may be a cogent reason for not following a previous Full Bench decision, for example:

•  the legislative context which pertained at that time may be materially different from the FW Act;

•  the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or

•  the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.” 29 (Endnotes omitted)

[21] In Shop, Distributive and Allied Employees Association v The Australian Industry Group 30 a Full Court of the Federal Court of Australia considered applications made by the Shop, Distributive and Allied Employees Association and United Voice for judicial review of the Full Bench’s Penalty Rates Decision.31 In rejecting the applicants’ case the Full Court stated among other things:

“[38] The meaning of s 156(2) is clear. The FWC must review all modern awards under s 156(2)(a). In that context “review” takes its ordinary and natural meaning of “survey, inspect, re-examine or look back upon”. Consequential upon a review the FWC may exercise the powers in s 156(2)(b). In performing both functions the FWC must apply the modern awards objective as provided for in s 134(2)(a).” 32

[22] The Full Court in its decision also referred to the decision in Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd 33as follows:

“[45] As explained in Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd … at [28]–[29] by Allsop CJ, North and O’Callaghan JJ:

[28] The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 — terms may and must be included only to the extent necessary to achieve such an objective.

[29] Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.” (Underlining added, citation omitted)

[23] We respectfully agree with these approaches and follow them in this case.

3. THE NTEU’s CASE

[24] The NTEU submitted that the proper framework for consideration of the changes it sought to the Awards was the Full Bench decision in the Preliminary Issues Decision. 34 The NTEU also noted in its submissions that it was proceeding on the basis that the Commission was not limited to granting or refusing the claims of the parties and that were the Commission not convinced of the merit of what had been proposed that the Commission was obliged to formulate its own solution to that problem, preferably with the assistance of the participating parties.

[25] Specifically, the NTEU sought that: 35

•  the Academic Staff Award be varied to

•  include an enforceable limit on working hours for academic employees,

•  include payment for policy familiarisation and professional and discipline currency for casual academic employees,

•  provide access to reclassification in circumstances where an academic employee did not have access to academic promotion,

•  address drafting errors regarding casual academic rates of pay,

•  correct a long standing typographical error in the academic redundancy provisions, and

•  include a new provision for the conversion of certain casual academic work;

•  the General Staff Award be varied to

•  include a provision obliging employers to take active steps to prevent the working of uncompensated additional hours by general staff,

•  reinsert an express link between the rates of pay and the classification definitions, and

•  incorporate minor updates to classification definitions; and

•  both the Awards be varied to

•  replace the words ‘full-time employment’ in clause 11 of the Academic Staff Award and clause 10 of the General Staff Award with the words ‘continuing’ employment, with consequential amendments to the definitions of full time and part-time employment,

•  include a new allowance for personal information and communication technology (ICT) expenses incurred by employees for work purposes, and

•  cover independent research institutes.

[26] The NTEU opposed the bulk of the variations proposed by the Go8 and AHEIA but did not oppose AHEIA’s proposal to delete clause 4.3 from the Academic Staff Award.

[27] In its oral closing submissions the NTEU essentially drew on its written submissions. Beyond that, key general aspects of the NTEU’s oral closing submissions included its view that: 36

•  the central test in this matter was whether what was sought was necessary to achieve the modern awards objective; and

•  most of the employer evidence in this case was from senior managers, with the NTEU adding that very little of their evidence was backed up by data or hard information and as such was mostly opinion or conclusion evidence.

The CPSU’s submissions

[28] The Community and Public Sector Union (CPSU) supported the NTEU’s submissions in respect of the General Staff Award and in particular urged the Commission to adopt the NTEU’s proposed variations in respect of working hours and overtime for general staff. 37

NTEU Evidence

[29] The NTEU led evidence from 23 witnesses, with their witness evidence summarised below.

Elodie Janvier 38

[30] Ms Janvier is employed by Flinders University as Team Leader, Research Support. Attached to Ms Janvier’s witness statement were extracts from her personnel records which she deposed demonstrated that her accrued annual leave entitlements were carried over when her fixed term contracts ending on 14 August 2014 and 15 March 2015 expired and were replaced by new fixed term contracts. Ms Janvier was not required for cross examination.

Anthony Wilkes 39

[31] Mr Wilkes has worked for the University of Adelaide as an Anatomy Technical Officer in the School of Animal Veterinary Science at the Roseworthy campus since 2008. Mr Wilkes’ role requires him to, among other things, order carcasses and other parts for dissection for the entire School. Mr Wilkes deposed in his witness statement that:

•  for the first couple of years his hours were informally self-managed;

•  after that he was informed that he needed to keep track of his hours for reference and as such began to keep a spreadsheet of his hours, adding that within the first two years of his employment he had accumulated approximately 120 hours of time off in lieu of overtime (TOIL);

•  since then the School had acted to prevent such incidents by employing a casual assistant to help him during peak times (between March and November), adding that he was happy with this arrangement as it provided him with some flexibility in his working day;

•  during non-peak times he would take the occasional day off or even leave early every so often to keep his TOIL to a minimum, adding that he liked having this flexibility;

•  there were operational reasons why he needed to work long hours, including that practical classes were scheduled to finish at 5.00 pm and there was generally one and a half hours of clean-up after each practical class;

•  the School also ran occasional weekend workshops two or three times a year which he attended for 12 hours, adding that he was paid for the actual time spent working which was about four or five hours with the remainder of the time claimed as TOIL;

•  it was not a requirement of his job to check emails after hours, though he sometimes did check and respond to emails out of hours;

•  his current working of unrecorded hours was limited to working through the occasional lunchtime and small periods too short to be worth recording, adding that he rarely had to work through his lunch break due to time constraints; and

•  while his supervisor encouraged him to finish work as soon as he could after 5.00 pm he had never been specifically directed to go home.

[32] The key aspect of Mr Wilkes’ oral evidence was that he did not see any need to change his arrangements in relation to working additional hours as he liked what he had.

Ken McAlpine 40

[33] Mr McAlpine provided three witness statements in which he provided a range of material going to aspects of the NTEU’s claims, including the results of two surveys conducted by the NTEU in 2015 (i.e. the NTEU 2015 State of the Uni Survey (2015 Uni Survey) and the NTEU Academic Workload Survey). Among other things, Mr McAlpine deposed in his witness statements that:

•  among academic staff, workload was an issue of widespread concern;

•  2011 Census data obtained from the Australian Bureau of Statistics (ABS) by the NTEU indicated that 82.7 per cent of respondents who identified as university lecturers and tutors indicated that they worked more than 40 hours per week in the week prior to the Census;

•  a 2011 survey commissioned by the then Commonwealth Department of Education, Employment and Workplace Relations to determine how much effort was going into Australian Competitive Grant research within universities indicated that across all institutions average hours per full-time equivalent (FTE) were 96.25 hours per fortnight;

•  based on his experience the following propositions were generally true across non-casual academic staff covered by the Academic Staff Award

•  in many cases academic staff will have substantial input into decisions about which units they will teach, though decisions about whether a unit was to be taught and who would teach it were ultimately a decision for management,

•  for most non-casual academics there is a practice of consulting them about the size of their teaching allocation, though ultimately this was again a question for management,

•  academics exercised some autonomy about how much time they spent in teaching related duties,

•  academics exercised little or no autonomy in relation to administration which took a considerable amount of academic time,

•  it would be almost unheard of for an academic to be directed to research a specific question or to apply for a research grant about that question,

•  there were important respects in which the autonomy of much of the research work of academics was very limited, i.e. including requirements that research bring in research income, that academics apply for a certain number of research grants, that research comply with the strategic direction of the university and that research outputs such as publications comply with certain metrics such as where they are published;

•  about 28 per cent of all non-casual academic staff were employed in research only functions, with nearly all of these employed on fixed term projects of limited duration.

[34] Mr McAlpine also disputed employer contentions that the type of regulation which the NTEU was seeking was at odds with the regulation of academic workloads internationally.

[35] Key aspects of Mr McAlpine’s oral evidence were that: 41

•  in the making of the modern award, the NTEU had not sought the inclusion of a policy familiarisation allowance, a discipline currency allowance, enhanced overtime arrangements for general staff or a claim for overtime for academic staff, though the issues had been pursued by the NTEU in bargaining rounds:

•  one of the reasons for not doing so was that the evidentiary base was weaker in 2010 than it is now;

•  it was not the NTEU’s position to seek to have some of its award claims in this matter translated into bargaining claims in the current and future bargaining rounds;

•  while the NTEU had negotiated clauses in every enterprise agreement at public universities which dealt with the allocation of academic work, the clause which it sought to have inserted into the Academic Staff Award had not been sought in any of those enterprise agreements;

•  academic staff enjoyed more flexibility than general staff as to when, where and how they worked;

•  to the extent that autonomy, flexibility, academic freedom and self-direction existed they were highly valued by academic staff;

•  academics do have a significant degree of control over many of their service activities;

•  academics were not told what they had to research;

•  teaching contact hours were in the order of 6 to 10 hours per week during a teaching period which averaged out to around 3 to 4 contact hours a week across the entire year;

•  in relation to research work, subject to there being a reasonable minimum period within which to do it, the actual hours spent on research was a function of what the academic chose to pursue and how they chose to pursue it;

•  there was a lesser requirement for academic staff to attend the university;

•  2016 was the first time that the NTEU had raised the prospect of overtime being a relevant or necessary part of award or industrial regulation for academic staff;

•  with regard to the clauses dealing with academic workload at Attachment B of Exhibit G, with the possible exception of the clause relating to the Australian Catholic University (ACU), none of those clauses provided for the payment of overtime or the recording or monitoring of research hours;

•  further, those clauses with some limited exceptions, provided a system of internal review of workload allocation;

•  clause 22 of the Academic Staff Award as currently framed met the requirements of s.147 of the Act;

•  with regard to the NTEU’s proposed hours of work clause

•  there was scope for disagreement as to what activities would be considered within the concept of “required work”, 42

•  it would be well understood that an academic would be assumed to be at work if they were not on leave, and

•  it might well be the case that hours of work may differ significantly for academics in the same discipline, at the same level, with similar teaching workloads but working at different institutions with different performance expectations;

•  in respect of the proposed policy familiarisation allowance, it was not necessary for casual academic staff to have read the policies just as it was not necessary for them to have done any preparation to get paid for preparation time for lectures or tutorials;

•  there were other resources available to all staff where they could access and obtain information regarding policies if necessary;

•  the NTEU considered academic promotion to be the appropriate mechanism for academics to progress through the career structure;

•  the NTEU’s proposed variation to the classification of academic staff clause was intended to eliminate a “small problem” 43; and

•  he was not aware of any disputes that had been brought to the Commission regarding the issues which the NTEU’s proposed variation to the classification of academic staff clause sought to address.

Dr Robyn May 44 (Expert Witness)

[36] In her witness statement Dr May focused on the NTEU’s claim for a discipline currency payment, with her evidence based on her PhD research and her experience working in casual academic teaching roles since 2006. Dr May was put forward by the NTEU as an expert other than in respect of her evidence regarding her personal experience. Among other things, Dr May deposed that:

•  a majority or around half of teaching contact hours were worked by casual employees;

•  most casuals were engaged in core ongoing functions, adding that most casual academic engagements involved a specific commitment to specified hours of teaching work at specified times typically over a semester or sometimes a whole year;

•  the unusual feature of most academic casual employment was that payment was not made for the hours actually worked, adding that the industrial parties had accepted that this approach was appropriate for this work;

•  it was inherent in the nature of this academic work that casual academic employees be aware of significant employer policies which affected their work and maintained adequately up-to-date knowledge of the academic discipline or disciplines relevant to their teaching;

•  full-time academic staff were paid for such work;

•  the amount of time which might realistically be required to establish a knowledge of and familiarisation with university policies upon initial appointment varied from workplace to workplace but would rarely be less than 10 hours;

•  for academic staff not employed to do research, the maintenance of discipline currency must be done by the employee as a distinct and necessary activity;

•  it would only be in unusual circumstances that an academic employee engaged only to teach would need to work for less than 40 hours each year to maintain up-to-date knowledge of an academic discipline;

•  her PhD research, which included the Work and Careers in Australian Universities Survey, found that

•  casual academic staff were younger and more likely to be female than their continuing academic counterparts,

•  male and female casual academic staff worked fairly similar hours per week, and

•  females were more likely than males to have multiple employers, work mostly as tutors, and depend on the casual employment as their main source of income; and

•  over the time she had taught on a casual basis her observation was that the incidental work associated with teaching, such as the requirement to read and understand university policies and procedures, had grown considerably.

[37] Key aspects of Dr May’s oral evidence were that: 45

•  since she completed her PhD she no longer worked as an academic and therefore appeared in these proceedings in a personal capacity;

•  section 3 of her witness statement reflected a series of statements put to her by the NTEU to which she attested;

•  with regard to MFI#1 46, she acknowledged that section 3 of her witness statement which dealt with the claim for a discipline currency payment was almost identical to that section of Honorary Associate Professor Junor’s witness statement which dealt with the same issue;

•  despite the similarities between section 4 of her witness statement (which referred to the Work and Careers in Australian Universities Survey) and Dr Strachan’s witness statement regarding the Survey, the analysis of the Survey in relation to casual academic staff was her research with Dr Strachan’s research involving the analysis and development of the Survey for general and academic staff;

•  her evidence about the amount of time which might realistically be required to establish a knowledge of and familiarisation with university policies upon initial appointment was one of the propositions put to her by the NTEU and was not the subject of empirical research in the study which she undertook; and

•  with regard to the case studies referred to in section 4 of her witness statement, she did not do any monitoring of the time that staff actually spent reading policies, adding that she was not aware of any study that had undertaken that exercise.

Dr Jochen Schroeder 47

[38] Dr Schroeder was a full-time Senior Lecturer in the School of Engineering at RMIT University (RMIT) and prior to that was employed as a post-doctoral fellow, Research Associate (Level A) at The University of Sydney (UoS). In his witness statement Dr Schroeder deposed inter alia that:

•  his normal working weeks as a researcher at UoS were between 40 and 50 hours, with occasional weeks either much longer or a little shorter than that;

•  his teaching load at RMIT was a notional 15 hours per week, adding that preparation time was not included in that 15 hours per week;

•  in the first semester of 2015 he was regularly working a 70 hour week, mostly just keeping up with teaching and associated duties but also modernising the content of the unit he was teaching;

•  in the 2015 mid-year break he spent 80 hours just working on various administrative tasks associated with assessment collection and collation for final year projects;

•  in the second semester of 2015 he estimated that his average hours of work were around or more than 50 hours per week, adding that the reduction when compared to the first semester was in large part because he decided not to update and modernise the course materials in the unit he was teaching and simply not take as much time in preparation of the teaching content;

•  he was fairly confident that his much lower student evaluation scores were as a result of his decisions in that regard;

•  he felt that as a teaching and research academic he was unable to perform adequate research or even keep up with developments in his field;

•  the issue of high workloads had been discussed and raised in various staff meetings prior to the middle of 2015, adding that he had been provided with a casual head tutor to assist him;

•  there was no separate accounting for marking in his school’s workload model;

•  the causes of his workload problems were in part a result of a lack of resources as well as bad organisation and poor administrative support, highlighting in particular a very high student to staff ratio;

•  he estimated that he needed to spend between 20 and 30 hours each year to keep up with university policies and changes to them and developments in his discipline; and

•  most of the discipline specific reading he did was part of his research, adding that if he were only employed to teach that he would have to read a lot more to keep up with his academic discipline.

[39] Key aspects of Dr Schroeder’s oral evidence were that 48:

•  he had resigned from his position at RMIT to take up an academic position in Sweden, adding that the main reason for doing so was that he considered his workload to be “killing” his research career and affecting his mental and social wellbeing;

•  part of the reason he worked long hours in 2015 was that he was at that time new to the role of a teaching and research academic, though he later added that having to coordinate the course was another factor; and

•  in early 2016 he met with Professor Mouritz, Executive Dean of the School of Engineering at RMIT, to discuss academic workload, agreeing that his requests for help to alleviate his workload for that year were agreed to by Professor Mouritz.

Steven Adams 49

[40] Mr Adams is employed by the University of Melbourne (UM) as a Senior Technical Officer in the School of Engineering and has worked in that area for 30 years. Mr Adams’ ordinary hours of work are 8.45 am to 5.00 pm Monday to Friday, with his work during teaching semesters revolving around the teaching timetable. In his witness statement Mr Adams cited two days as examples of his busy schedule, i.e. 27 April and 4 May 2015. Beyond that, Mr Adams deposed among other things that:

•  he could not complete his required tasks without working outside his ordinary hours of work, adding that this was because the central timetabling unit now scheduled laboratory classes at any time between 8.15 am to 6.15 pm throughout the semester;

•  he was eligible for TOIL that had not taken even half of the time owed to him;

•  for the last 10 years or so the nature of his work required him to perform an average of 5 to 10 extra hours work per week during semester;

•  neither UM nor the School of Engineering had a process in place for recording extra time worked;

•  for unpaid overtime UM informed staff to make local arrangements with their line manager;

•  he estimated that 90 per cent of his team’s overtime was not to work on specific projects but was required in order to complete their workload and meet student needs;

•  he had never been directed not to perform uncompensated overtime;

•  in addition to providing technical work for laboratories he also undertook cleaning maintenance, procurement, administrative duties, attended School meetings and also had a number of final year student projects to support;

•  he and other technical staff were constantly talking to his manager about workload and the need for more staff; and

•  peak workloads were during semester.

[41] Key aspects of Mr Adams’ oral evidence were that: 50

•  practical classes normally commenced in the second week of each semester and that to the extent that there was an intense period it was effectively a 4-6 week block within a semester, with a quieter period towards the end of the semester;

•  with regard to those aspects of his witness statement where he deposed that he worked additional hours without accessing TOIL, he agreed that those aspects went to the issue of clause 57.5 of the University of Melbourne Enterprise Agreement 2013 51 (UM Agreement) being properly applied and the staff member documenting their hours of work;

•  he did not record his additional hours of work as he was required to put his timetable on his Outlook calendar which was accessible to his supervisor, later agreeing that his supervisor would not be able to determine from his calendar how many hours he worked, when he took his lunch break or if he had not taken a lunch break;

•  he was not inferring in his witness statement that he was denied TOIL but rather that he did not access or use it;

•  where it had been suggested that a casual employee come to either perform his role or that of one of his team members there had been resistance to the proposal because it entailed a perceived dumbing down of their roles; and

•  none of his managers or supervisors had ever issued him a direction to record his TOIL.

Honorary Associate Professor Anne Junor 52 (Expert Witness)

[42] Associate Professor Junor is a senior Visiting Fellow and Deputy Director in the Industrial Relations Research Centre in the University of New South Wales (UNSW) Business School at UNSW. Associate Professor Junor’s statement comprised four sections – ‘My Personal Experience’; ‘The Claim for a Discipline Currency Payment’; ‘My Own Empirical Research’ and ‘Expert Report’ (comprised of two components – Personal Details and Literature Review). Key aspects of each section of her statement are summarised below.

My Personal Experience

•  Following orientation academic casuals needed support and paid time for ongoing professional learning in order to navigate, access and make effective professional use of a range of resources such as web-based learning and communication modalities and classroom teaching technology, and to acquire and exercise capabilities, specific to cultures, learning styles and developmental levels, for interpreting, mediating and assessing the understanding and application of course content.

•  Over the period 1995 to 2009 she was responsible for recruiting academic casual tutors and ensuring that they had a strong up to date disciplinary knowledge, highlighting two instances (described as exceptions) where issues arose regarding the performance of sessional tutors.

The Claim for a Discipline Currency Payment

[43] Based on her academic research and her own experience in casual academic teaching roles and supervising casual sessional staff, Associate Professor Junor expressed a number of views including that:

•  casual employees played a central role in teaching and a key role in student assessment, particularly at undergraduate level, in Australian universities;

•  most casual academics were engaged in core ongoing functions;

•  many casual academics were in fact career academics or at least expected to be employed for a number of years;

•  the unusual feature of most academic casual employment was that, in respect of the majority of work (i.e. lecturing and tutoring), payment was not made for the hours actually worked;

•  the obligations to be aware of university policies and to maintain discipline currency applied to all long-term employees, whether full-time or casual;

•  the amount of time which might realistically be required to establish a knowledge of and familiarisation with university policies upon initial appointment varied from workplace to workplace but would rarely be less than 10 hours; and

•  for academic staff not employed to do research, the maintenance of discipline currency had to be done by the employee as a distinct and necessary activity, adding that it would only be in unusual circumstances that an academic employee engaged only to teach would need to work for less than 40 hours per year to maintain up-to-date knowledge of an academic discipline.

My Own Empirical Research

[44] This section of Associate Professor Junor’s report covered two aspects of her research into casual academic work, with some of the key findings set out beneath each:

1. a survey of casual academics conducted over the period 2001 to early 2003 with the findings published in 2004 and 2005

•  casual academics were on the whole less qualified than non-casual academics, reflecting the fact that some groups were all enrolled in higher degrees whilst teaching,

•  approximately 20 per cent of casual academics had been working in this way at their current university for over six years and 40 per cent for more than three years, and

•  apart from economic insecurity, casual academics in the 2001-2003 survey reported experiences of marginality in their organisation which it could be inferred, affected their sense of empowerment in seeking resources or advice in maintaining discipline currency; and

2. coding analysis done in 2008 on data generated by a 2007 NTEU Survey, focusing on the 2012 publication of a selection of qualitative findings found among other things that

•  without countervailing measures, the 2012 onset of the demand driven funding model was likely to increase insecurity, because it would increase the requirement for just in time flexible staffing.

Expert Report

[45] The literature review included in Associate Professor Junor’s report dealt covered issues such as the professional dimensions of casual academic work, the special characteristics of casual academic work and the sustainability of developing the next generation of professionals on current university practices in managing the teaching workforce. Key points made in respect of the latter issue were that:

•  failure to guarantee resources for disciplinary currency maintenance posed a threat to the sustainability of academic and professional quality standards. It would therefore appear necessary to mandate sessional university teachers’ entitlement to a minimum standard of paid disciplinary and pedagogical currency maintenance; and

•  academic casuals were not at present paid for the maintenance of discipline currency or knowledge of pedagogy, of teaching and assessment technologies and methods, of university policies and procedures, or of professional obligations. That this lack of professional development characterised the dominant form of university teaching work was of concern.

[46] Key aspects of Associate Professor Junor’s oral evidence were that: 53

•  sections 3 and 4 of her report constituted her responses to the specific statements in section 2 of her report;

•  section 2 of her witness statement included propositions put to her by the NTEU which she agreed with based on her research and experience;

•  her report did not include the propositions she was asked to respond to by the NTEU;

•  while she was not aware that section 2 of her export report was in virtually identical terms to part of the export report submitted by Dr May in these proceedings, she was not surprised as she was aware that various witnesses would be addressing the same set of issues;

•  she was not aware of any published quantitative research on the time spent by casual academics reading policies;

•  she engaged both individuals referred to in the examples referred to in section 1 of her witness statement after looking at their CVs and speaking to them and having regard to the qualifications, experience and what they were going to teach or tutor;

•  that aspect of section 3 of her report dealing with coding analysis on data generated by a 2007 NTEU survey entailed her looking at the responses to open-ended questions put as part of the survey and grouping them thematically into the seven types identified in section 3 of her report;

•  some similarity was identified in those responses when compared to the responses provided in the 2001-2003 survey;

•  the 2001-2003 survey was a survey of the complete population of casual academics at five universities (a sample of approximately 10,000 employees) with a response rate of 29.1 per cent;

•  section 3 of her report was a subset of a paper titled “Casual University Work Choice Risk In equity and the Case for Regulation” which she had previously produced regarding the 2001-2003 survey;

•  with regard to Table 2 in section 3 of her report, ignoring the final two categories and qualified academic jobseekers and cross sectoral non-casual education workers meant that in the order of 45 per cent of survey respondents (comprised of academic apprentices, industry professional apprentices and outside industry experts) would through their PhD studies and outside industry experience be engaged in reviewing and reading articles;

•  with regard to Table 6 in section 3 of her report, earnings such as PhD stipends or scholarships and earnings from other employment were not taken into account;

•  the literature review at section 4 of her report provided a conceptual basis for making the argument that it was necessary to provide a discipline currency allowance to ensure professional quality of casual academic teaching and standards of work in universities, disagreeing that the literature review was in the form of an argument or a submission to support the NTEU’s claim in this regard; and

•  the concept of being current in your discipline also applied to other professions and professionals such as teachers, information technology professionals, human resources professionals, other health workers, psychologists and early childhood education providers.

Professor Phil Andrews 54

[47] Professor Andrews is a Professor in the School of Chemistry in the Faculty of Science at Monash University (Monash) and is also Deputy Head of the School of Chemistry. Professor Andrews provided three witness statements in which he deposed inter alia that:

•  at Monash academic work was categorised under the general headings of teaching, research administration and service;

•  the duties which fell within each of these categories was open to argument, highlighting that in science, medicine and engineering at Monash most of the work arising from supervision of higher degree research students was counted as part of an academic’s research workload allocation despite much of that work being administrative in nature;

•  the fact that this work was counted as research ate away the amount of time a supervising academic had available to do actual research;

•  in his School the allocation of teaching hours was fairly transparent and collegial;

•  workload pressures in the School of Chemistry at Monash had increased significantly in the past five years due to a number of factors including a large increase in student numbers, a reduction in teaching and research academic staff, and growing and changing pressures to generate research output;

•  due to the pressures created by the growth in student numbers, research only staff were increasingly being asked to take on core teaching functions;

•  academic staff were now required to meet minimum research performance expectations and in practice were expected to exceed those minima, adding that Monash’s Performance Standard Indicators set both minimum and aspirational targets;

•  junior academics, who in many schools were loaded up with heavy teaching loads, had little option but to do research in their own time if they wanted to have any chance of promotion;

•  student satisfaction and employability requirements had placed new pressures on academic staff, observing that in the past academics did not have to make students happy but rather just teach them;

•  higher degree supervision was an area that was chronically undercounted in Monash’s workload model;

•  in addition to conducting their own research, academic staff were expected to maintain broad knowledge of developments in their disciplines, estimating that he spent approximately 20 hours during semester breaks and 2 to 3 hours a week during teaching periods keeping up-to-date with developments;

•  other academics with lower administrative loads were expected to spend much more time in this work;

•  it was difficult to draw a line and say “you must stop working now” 55 when someone was pursuing research they had a passion for;

•  workload allocations and performance expectations had grown to the point where they crowded out time to do the things that academics were really interested in;

•  the internal motivations of the majority of academic staff ensured that they worked very long hours to get their required work done in order to then find time to do the creative work that they valued;

•  he worked approximately 50 hours a week on completing his allocated duties and meeting the written and implicit performance expectations of Monash, adding that there was no part of the year when he worked a 38 or 40 hour week;

•  students sent emails to academic staff in the evenings and on weekends and expected an instant response;

•  in the absence of a direct instruction not to respond to emails out of hours and in circumstances where no such instruction had ever been issued, academic staff were guided by the requirement to achieve high levels of student satisfaction;

•  the balance between work required to meet his employer’s expectations and the work he did out of personal choice had shifted significantly such that there was very little time left to do creative work;

•  while he would prefer to work fewer hours, if he did not keep on top of things work pressures would spiral out of control;

•  he was not aware of any efforts by Monash to either reduce the amount of time worked by academic staff or to ameliorate the impact of long working hours;

•  he had never been instructed not to work during lunch breaks or to refrain from working out of hours, adding that he valued the fact that he had professional control over how, when and where much of his work was performed and that without such control the sheer volume of work would not be manageable;

•  a lot of academic work was not named or counted in Monash’s approach to workload management;

•  he observed that laboratory and technical staff were also working longer hours;

•  he received no assistance from Monash for any of the expenses associated with purchasing and maintaining his own ICT equipment or connections; and

•  academic staff were expected to put in whatever hours were necessary to get their work done, adding that it was not uncommon for employees to perform substantial work during their annual leave in order to meet required performance standards especially in relation to research.

[48] Key aspects of Professor Andrews’ oral evidence were that: 56

•  with regard to the Annual Minimum and Aspirational Research Targets 2016 for Teaching and Research Staff in the School of Chemistry 57, he was significantly exceeding the aspirational quantitative research performance expectations;

•  the failure by an academic staff member to meet one or more of those targets did not mean that he or she would be dismissed;

•  the introduction of minimum performance standards was an attempt by Monash to try and quantify what it expected of its academic employees in terms of the research outputs, adding that a lot of people but not everybody would view the research standards as not particularly onerous;

•  if he were to just achieve the minimum performance standards outlined for someone at his classification level, he could probably work 40 hours a week but he would have to have a number of PhD students to run the projects to do research work and he would have to have funding available to run those projects;

•  in respect of that aspect of his first witness statement setting out his experience as part of the NTEU enterprise bargaining team for Monash in respect of academic workloads 58, there was never a claim to include a clause that would see academic hours of work set and recorded by the employer or for an overtime loading or for a provision that required a distinction to be drawn between self-directed work and that pursued over and above what Monash required;

•  there had never in his knowledge been an attempt to say to academics that you cannot conduct certain numbers of hours of research, adding that there had also never been an attempt to regulate academic research work within residual annual allocated hours once the hours allocated to teaching and administration had been set;

•  the object in the last round of enterprise bargaining at Monash was to try and protect the research time that academics had;

•  most academics would not accept a directive to limit their research time;

•  Monash enabled staff to salary package information technology equipment, adding that he had salary packaged a laptop computer; and

•  he claimed the cost of his home internet connection and the like back on tax.

Karen Ford 59

[49] Ms Ford is the Executive Assistant to the Director and Administration Officer for the Centre of Medical Radiation Physics in the School of Physics, Faculty of Engineering and Information Sciences at the University of Wollongong (UW). Ms Ford has been in this role for seven years, with the role involving providing administrative support to the Research Group, including diary and email management for the Director, timetabling and preparation of the three subjects that the Director and one other teaching/research academic at the Centre taught.

[50] In her witness statement, Ms Ford deposed that:

•  she was responsible for all administration activities and did not have a team to fall back on;

•  when she was absent on leave her work did not get done, meaning that she returned to a huge backlog of work;

•  since commencing at UW almost 10 years ago she had worked on a Flexible Working Hours Arrangement which saw hours worked in excess of seven hours per day or 35 hours per week accrue towards time off as opposed to being paid as overtime;

•  she averaged two extra hours of work per day and found it very difficult to take time off;

•  UW’s Flexible Working Hours Arrangement policy only allowed a staff member to accrue 10 hours at any time with anything beyond that forfeited;

•  in 2015 she lost 20 days of flexitime as she was unable to carry more than 10 hours of the accumulated time into the next timekeeping period;

•  she would much prefer to be paid overtime for extra hours worked;

•  her supervisor did not encourage her to take her accrued hours; and

•  her supervisor would often email her at night and on weekends such that by Sunday night she would have 20 new action items in her email inbox, with her supervisor expecting her to action those early on a Monday.

[51] In her oral evidence Ms Ford attested inter alia that: 60

•  it was possible to be paid overtime under a Flexible Working Hours Arrangement;

•  she took 16 flex days during 2015;

•  she could in accordance with UW’s policy called My Time Keeping 61 book a flex day up to 3 months in advance, thereby giving herself a greater flex time carryover, later adding that at the start of 2015 she did not understand that she could in advance book in six days as flex leave and this would carryover the correct amount of hours worked and that she could not recall when she became aware that this could be done;

•  she had never asked for a casual to cover her while she was on leave;

•  with regards to the emails that her supervisor sent her over the weekend, he did not expect her to work over the weekend to action those emails;

•  there was a process for seeking approval (either verbal or written) and claiming overtime at the UW, and that she recalled putting in for overtime twice without overtime being approved; and

•  since becoming aware of the ability to book flex days up to 3 months in advance she had forfeited accrued flex hours as it was not easy to try and juggle the six flex days she could take during that period, adding that she was unable to pinpoint how many hours she had forfeited since becoming aware of the scope to do so.

Clark Holloway 62

[52] Mr Holloway was employed by UW as a Business Analyst in the Project Management Office of the Information Management and Technology Services Division. Mr Holloway resigned from his employment with UW with effect from 6 May 2016.

[53] In his first witness statement, Mr Holloway deposed that general staff employees at UW were required to record their working hours in an online form, adding that the system used by UW since 2012 had several inbuilt features which operated to limit the extent to which actual working hours could be recorded. Mr Holloway listed those features as including not allowing a carryover of more than 10 hours of accumulated flexitime in any fortnight unless time had already been booked and entered into the system to be taken off in the next fortnight and an inability to enter weekend hours of work or additional approved hours for overtime.

[54] Mr Holloway further deposed that staff in the Information Management and Technology Services Division often worked long hours and were required to perform duties on weekend and that several years ago his supervisor agreed to his request to stop using UW’s timekeeping system as a result of the above features. In his supplementary witness statement, Mr Holloway disputed a number of aspects of Ms Thomas’s witness statement (an AHEIA witness) and deposed among other things that in his work area the flexitime system operated and overtime was not paid for long hours or weekend work.

[55] In his oral evidence, Mr Holloway attested that he had never attempted to claim overtime and had never seen UW’s Overtime Related Expenses Claim Form, later adding that he had never been advised by a supervisor or anyone else to claim overtime 63. Other key aspects of Mr Holloway’s oral evidence were that:64

•  he did not formally take up with UW, in his capacity as President of the NTEU’s UW Branch, his concerns that UW’s timekeeping policy was contrary to workplace law and entitlements; and

•  given his view of the inadequacies of UW’s flexitime recording system, he approached his manager and put place an arrangement that enabled him to capture the time he actually worked.

Andrea Brown 65

[56] Ms Brown has been employed at UM as a Safer Community Program Coordinator since 1 May 2016. Ms Brown’s evidence related almost exclusively to her employment at Victoria University (VU) over the period 1995 to 2014, where she was initially classified as a higher education worker (HEW) Level 6 and from 2000 as a HEW Level 8 employee. Ms Brown had also held a number of NTEU positions/roles.

[57] Ms Brown deposed in her witness statement inter alia that:

•  as a HEW Level 6 employee her workload required her to work well beyond the 36.75 hour week prescribed by the applicable enterprise agreement, adding that she recalled working on average between 40-42 hours per week and from time to time working on a Saturday and Sunday to ensure a particular piece of work was finished on time;

•  during this time she consistently accrued a substantial amount of TOIL which she would draw down instead of taking annual leave and during periods of university shutdown;

•  as a HEW Level 8 employee she was entitled to TOIL but not paid overtime as compensation for additional hours worked and that there needed to be prior approval to accrue TOIL;

•  for her, in the vast majority of cases seeking prior approval to accrue TOIL just did not happen;

•  her workload as a HEW Level 8 employee was not manageable within ordinary hours of work and she recalled working up to a 45 hour week on a regular basis;

•  she had no power or authority to influence the demands or workload of her role as a HEW Level 8 employee but was responsible for getting her work done;

•  approval to accrue TOIL was never provided, with her manager insisting on prior approval to work additional hours and accrue TOIL on that basis;

•  from 2005 onwards and particularly during 2011-2014, VU underwent successive periods of major organisational change with general staff heavily impacted and reduced by over 400 positions;

•  her experience was that while general staff numbers reduced substantially, the type and volume of work did not change;

•  except for the period 2009 to 2014 when she was provided a mobile phone by her employer, she had always provided and paid for ICT to effectively work from home;

•  she had purchased her own modem, laptop computer, broadband access and necessary software to enable her to work from home;

•  she had always paid the internet service provider costs even though the vast majority of the use of her ICT was for work purposes; and

•  university employers had never provided this service nor reimbursed her for the ICT costs she incurred at home.

[58] Key aspects of Ms Brown’s oral evidence were that: 66

•  over the period 2010 to 2014, she recalled team meetings where her then supervisor enabled staff to discuss workload and hours of work and that she also had individual meetings with her then supervisor;

•  following her return from parental leave in 2010 she had an arrangement where she took a day of annual leave each week, with that arrangement continuing until 2014;

•  following that she had an arrangement whereby she left the workplace one afternoon each week to pick up her child from school after which she would work from home;

•  she could not remember whether the workload review process provided for in clauses 41.7 and 41.8 of the Victoria University Enterprise Agreement 2013 67 (VU Agreement) had been invoked while she was at VU, though her sense was that it probably would have been;

•  she did not recall a laptop being made available to her for working from home;

•  she did claim some of the ICT expenses she incurred as a tax deduction;

•  she had entered into various arrangements with VU to provide flexibility to assist her in accommodating her parental responsibilities;

•  she had the option to approach her supervisor to discuss TOIL and seek approval, adding that the expectation was that you would not ask or seek approval for TOIL;

•  she was sure that in the very early stages of commencing in the role of Equal Employment Opportunity Officer (the role she held from 1999 to 2014) that she would have discussed with her supervisor the need to work additional hours and take TOIL, with the message that was given to herself and other staff being that if you need to work additional hours you need to discuss that with your supervisor prior to working the extra hours if you wish or if you have an expectation that you will subsequently be able to take TOIL for that period;

•  she did not discuss the need to work additional hours with her supervisor very often, estimating that the number of occasions that she had been refused approval to take TOIL as four;

•  she accepted that she did not recall being told explicitly that she could not raise issues of additional hours and TOIL;

•  she was not aware that VU paid millions of dollars in overtime or paid in excess of 1300 hours of TOIL over the period 2013 to 2015;

•  VU had not directed her to work from home, adding that the arrangement was by mutual agreement;

•  she agreed that whether or not she was working from home she would now have the internet on at home and that she did use the internet for private purposes; and

•  as a HEW Level 8 employee she had not been instructed not to work additional hours.

Professor Glenda Strachan 68 (Expert Witness)

[59] Professor Strachan is a Professor in the Department of Employment Relations and Human Resources, Griffith Business School at Griffith University in Queensland. Professor Strachan’s evidence centred on the report Work & Careers in Australian Universities: Gender and Employment Equity: Strategies for Advancement in Australian Universities which was the result of a study undertaken as a result of an Australian Research Council(ARC) linkage grant, with Professor Strachan the study’s lead Chief Investigator.

[60] The Work and Careers in Australian Universities Survey was conducted as part of the study, with data collection occurring over the period August 2011 to January 2012. The Survey involved separate survey instruments for three groups of employees – professional/general, academic, and sessional (i.e. casual staff employed in the last pay period prior to the study launch). The overall response rate for the survey was 27 per cent, while the response rate for the different employee groups was 35 per cent for academic staff, 32 per cent for professional/general staff and 12 per cent for sessional staff. The Survey included a number of questions regarding working hours (and workload for academic and sessional staff only), work and family and flexible working arrangements (in respect of professional/general and academic staff only).

[61] Key survey results for each group were as follows:

•  Professional/general staff – 56 per cent of full-time employees reported as usually working 35-39 hours per week, while 34 per cent reported as usually working 40-49 hours per week; 56 per cent responded that if they could choose they would prefer to work about the same hours as now, while 35 per cent would prefer fewer hours than now; 39 per cent responded that work sometimes interfered with their responsibilities or activities outside work, while 45 per cent responded that work rarely or never interfered; 39 per cent of respondents considered workloads to be a major or somewhat of an impediment to balancing their work and family life, while 59 per cent of respondents considered workload to either be a minor impediment or not an impediment; 48 per cent of the total sample thought they would prefer a change in their work arrangements.

•  Academic staff – 10 per cent of full-time academic staff reported as usually working 35-39 hours per week, while 39 per cent reported as usually working 40-49 hours per week and 51 per cent reported as usually working 50 or more hours per week; 44 per cent responded that if they could choose they would prefer to work about the same hours as now, while 52 per cent would prefer fewer hours than now; 41 per cent responded that work almost always or often interfered with their responsibilities or activities outside work, while 39 per cent responded that work sometimes interfered and 20 per cent responded that work rarely or never interfered; 38 per cent of the total sample thought they would prefer a change in their work arrangements.

•  Sessional staff – 22 per cent responded that work almost always or often interfered with their responsibilities or activities outside work, while 40 per cent responded that work sometimes interfered and 37 per cent responded that work rarely or never interfered.

[62] Beyond this, the survey results indicated that 76 per cent of sessional staff identified as having access to a workspace, computer and phone at their university, while 57 per cent identified as having access to a suitable space for student consultation.

[63] Key aspects of Professor Strachan’s oral evidence were that: 69

•  in responding to a survey question directed at professional/general employees regarding how they were compensated when they worked more than their weekly hours, 17 per cent responded that they received overtime payments, 12 per cent received TOIL and 67 per cent responded that they received no compensation;

•  with regard to her expert evidence, she

•  did not know why her report was not signed consistent with the practice note or guidance concerning expert evidence,

•  was aware that the report was required to identify the specific questions she was asked to address, adding that if that was not included this was because she was not asked to include that material,

•  was not given advice that her report needed to include an acknowledgement that her opinion was based wholly or substantially on her specialised knowledge,

•  was instructed by the NTEU to prepare a submission around details from the research that had been conducted,

•  acknowledged that the NTEU had put some content to her which was included in the initial report which she filed,

•  did not acknowledge in her report that she was member of the NTEU,

•  had not discussed her evidence with either Dr May or Dr Junor, and

•  had not included the survey instrument for sessional staff as Dr May was going to give evidence regarding sessional staff, adding that she probably did discuss that approach with the NTEU;

•  the survey target group was a random selection;

•  with regard to the findings in her report regarding the hours of work for professional/general staff

•  she was aware the HEW Level 8-10 employees did not have an entitlement to paid overtime under the vast majority of enterprise agreements and the General Staff Award,

•  the survey instrument did not seek to distinguish between the hours that professional/general staff were directed to work and the hours they worked, nor did it ask whether the hours respondents were reporting had been recorded,

•  the survey did not ask participants if they would choose their preferred number of hours if they came with a commensurate increase or decrease in remuneration,

•  she did not agree that the questions and responses set out at Table 15-17 of her report were negatively framed, highlighting that some of the questions were drawn from other surveys such as the Household, Income and Labour Dynamics in Australia (HILDA) survey,

•  agreed that the question dealt with at Table 19 of her report was not work limited and did not identify causative reasons;

•  she accepted that in respect of academic staff who completed the survey, those academic staff who were exceeding their performance expectations would have reported their hours of work including that contribution which saw them exceed minimum expectations;

•  she was “not a huge expert on questionnaire design” 70, though other Chief Investigators on the research team were;

•  with regard to the findings in her report concerning the hours of work for academic staff

•  research since the 1990’s indicated that academics in Australia were working longer than 40 hours per week,

•  she found it very difficult to divide activities into directed and self-directed,

•  she was not sure that research activity was self-directed because in a lot of performance reviews academic staff had to meet certain outcomes,

•  what academics chose to research was under their control, and

•  the report showed that 67 per cent of academics had a preference for more research time;

•  with regard to Table 83 of the Survey report which concerned the number of casual/sessional staff that an academic usually supervised per semester, it was not clear from the responses whether respondents were including PhD supervision as research or as part of their teaching allocation;

•  55 per cent of sessional academic staff identified as also currently studying for a qualification; and

•  guest speakers who received a casual engagement for one or two lectures and academics engaged to do marking were not likely to have been picked up by the Survey, adding that this was not of great concern as the research team wanted information about those casual staff doing ongoing work in universities.

Cathy Rytmeister 71

[64] Ms Rytmeister works as the Quality Assurance and Professional Development Lead in the Office of the Pro-Vice Chancellor (Learning and Teaching) at Macquarie University (Macquarie). Ms Rymeister had been President of the NTEU Branch at Macquarie since 2010 and had been directly involved as a negotiator in enterprise bargaining for four enterprise agreements since 2003, deposing that academic workloads had been an issue in each of the bargaining rounds in which she had been involved. Ms Rytmeister further deposed that to the best of her knowledge management representatives had never raised any concerns on behalf of the university regarding the practicalities of implementing or applying clause 4.3.29 of the Macquarie University Academic Staff Enterprise Agreement 2014⁷² (Macquarie Agreement) which among other things required that “maximum workload allocations be set within a nominal limit of 1575 working hours per year (45 weeks at 35 nominal hours per week)”.

[65] Key aspects of Ms Rytmeister’s oral evidence were that: 73

•  in accordance with the current enterprise agreement for academic staff, workload models at Macquarie were determined at the faculty level, adding that she had not been involved in any such process;

•  clauses 4.3.21 and 4.3.42 of the Macquarie Agreement which provided inter alia that the workload model would take into account staff preference and scope for an academic staff member and their head of department to have discussions to vary the staff member’s workload were both suggested by the NTEU;

•  while employed as an academic she was undertaking a higher degree for part of that time, with that study considered part of her research work;

•  in the various bargaining rounds in which she had been involved there had never been an explicit claim for something such as an overtime payment for academic staff nor a claim that would involve an academic staff member recording the time they worked;

•  the Macquarie Agreement had a reasonable degree of specificity and particularisation around teaching and teaching related activities but otherwise there was any amount of work that could be done with a lot of that work self-directed or self-determined consistent with the nature of the academic role;

•  with regard to clause 4.3.29 of the Macquarie Agreement, it did not result in an academic being paid an additional amount in circumstances where they worked more that their nominal 35 hours per week and was intended to ensure that the required work allocated to an academic could be done within a reasonable timeframe;

•  an overload of teaching hours was relatively easy to measure but it was very difficult to measure hours of work outside of teaching; and

•  disputes had arisen about individual workload allocations, with most of those disputes concerning teaching workloads which were generally resolved through negotiation.

Dr John Kenny 74

[66] Dr Kenny is a Senior Lecturer in Science education in the Faculty of Education at University of Tasmania (UTAS). Dr Kenny deposed in his initial witness statement that as a member of the NTEU’s enterprise bargaining team, as a union officer engaged in the resolution of workplace disputes and as an academic researcher he had become familiar with the operation of academic workloads across UTAS. Dr Kenny described himself as a workload activist for who academic workloads and working time had become one focus of his research.

[67] Dr Kenny deposed that some of an academic’s workload reflected allocated duties, i.e. typically teaching and related duties and some administration, while some was self-directed work where the employer may set output targets or expectations but the academic had significant discretion about how those targets would be met, e.g. research. Dr Kenny further deposed that increasingly self-directed time for academic research was being eroded. In his witness statement, Dr Kenny outlined his teaching allocation, his research expectations and his service and administration activities, adding that he typically worked about 45 hours a week and always aimed to exceed UTAS’ expectations.

[68] Dr Kenny also outlined the key findings of a national online survey of academic staff which he conducted in late 2015 and early 2016. The survey enquired about academic staff workloads and performance management expectations and attracted 2061 respondents from 39 Australian universities, a response rate of nearly 27 per cent, with survey participants not a random sample. The key findings included that:

•  90.5 per cent of respondents said they were unable to complete their duties and meet their performance expectations within a 38 hour week;

•  94 per cent of respondents said they had to work weekends to get their job done;

•  78 per cent of respondents claimed the time allocated for their research was inadequate; and

•  79 per cent of respondents claimed their university’s workload allocation process did not contain realistic expectations of the time required to complete the tasks they were required to do.

[69] Beyond that, Dr Kenny deposed that:

•  he had never been instructed by his employer not to take on additional duties or work very long hours;

•  UTAS did not instruct academic staff to work on weekends (except in relation to occasional specific instances such as open days) or evenings;

•  despite concerns about the impact of long working hours and high workload pressures on staff having been raised in enterprise bargaining and at the Academic Senate, UTAS had not conducted any health and safety audits in relation to the working of long hours by academic staff;

•  the NTEU took UTAS to the Commission on two occasions to force some action in respect of academic hours of work;

•  he used his personal phone and laptop to perform academic work when at home or away from campus; and

•  it was necessary for him to maintain an internet connection at home as well as a smart phone and laptop, estimating that approximately 50 per cent of the use he made of these items was work-related.

[70] In his supplementary witness statement, Dr Kenny elaborated on the development of the 2012 UTAS Academic Workload Guidelines, 75 deposing that the Guidelines demonstrated that for teaching the determination of inputs was relatively straightforward once the associated tasks had been identified. In respect of research, the Guidelines provided only estimates of the minimal expectations to be used to determine staff as “research active” in accordance with the requirements of the then enterprise agreement, opining that there was no reason why a process similar to that applied for determining the teaching workload allocations would not work for determining research workload.

[71] Key aspects of Dr Kenny’s oral evidence were that: 76

•  he would not be able to provide a sensible answer for any particular project or any particular individual if asked how long does a research project take to complete;

•  a research project was affected by a range of factors such as the availability of resources and an academic’s experience as a researcher;

•  there were a lot of factors that could come into play in achieving a particular performance expectation, adding that it was difficult to quantify some of this and that there would need to be some way of estimating what the key activities required to achieve a performance expectation might involve;

•  the University of Tasmania Staff Agreement 2013-2016⁷⁷ (UTAS Agreement) included mechanisms regarding academic workload models and dispute resolution;

• outside of casual academic staff, UTAS did not record the actual working time of academic staff;

•  he chose to conduct the 2015–2016 national online survey (national online Survey) of academic staff as part of his research allocation, adding that the Survey was conducted with the support of the NTEU;

•  there was an element of self-selection in terms of the survey sample, adding that he did not claim that the results of the survey were applicable to the whole profession;

•  the survey would not get through a peer review process as a study in relation to quantitative measures of academic work without acknowledging its potential biases;

•  with respect to question 9 of the survey, the term “actual academic workload” was not defined in the survey with respondents likely to consider everything they did in pursuing their discipline to be part of their academic workload;

•  there were a range of things that academics got involved in related to their work but how those activities directly related to their performance as far as the institution was concerned was debatable;

•  continuing academic staff at UTAS were not required to read all of the University’s policies and there were a variety of supports available to academic staff members who may have to do with an issue covered by a policy; and

•  the UTAS Agreement provided for paid induction for casual academic staff.

Emeritus Professor Michael Hamel-Green 78

[72] Professor Hamel-Green is an Emeritus Professor at VU in Melbourne. Professor Hamel-Green retired from paid employment with VU in November 2014. In his witness statement, Professor Hamel-Green deposed among other things that:

•  at VU some work such as teaching allocations were specifically allocated by the employer while other work was largely self-directed, e.g. the topic and form of research;

•  the workload allocation model operating at VU considered a full academic workload to be 100 points with an upper limit on allocations of 110 points in any year, adding that any points over 100 could be carried forward into the subsequent year and a concomitant reduction in points negotiated to result in an average of 100 points over time;

•  in practice many staff would carry workloads of greater than 100 points year in and year out, opining that the system enabled the fair distribution of overwork rather than allowing for the total volume of work to be limited to anything approaching standard hours;

•  VU measured academic research performance using the Measure of Research Activity (MoRA) under which each type of research output was allocated points, adding that MoRA imposed definite performance requirements on academic staff in relation to their research effort;

•  administrative duties of academic staff had expanded in recent years;

•  there were many variables that came into play when considering how much time an academic might reasonably spend doing the work allocated to them, with those variables including the academic’s discipline, the nature and level of the courses taught, the academic’s individual research commitments, the teaching experience and the size and characteristics of the student cohort;

•  the heavy workload during teaching weeks was to some extent balanced against the fact that there was less pressure during non-teaching weeks;

•  while most academic staff were not involved in teaching all year-round, there were increasing requirements for teaching to be done outside the traditional two semesters;

•  after returning to a teaching and research academic role in 2012 he was working approximately 60 hours a week when averaged across the year of which approximately 55 hours per week were spent doing what was absolutely essential to complete the work required of him by VU;

•  academic work could not be constrained to a 9 to 5 working week and did not lend itself to a timesheet or timeclock system;

•  flexibility in when work was performed was a different question from the total hours spent working;

•  he was aware that the workload pressures on general staff had also increased in recent years, noting that he would commonly receive documents by email that had been sent by general staff at times well beyond their recorded working hours;

•  general staff at lower classification levels were more likely to have their overtime authorised and compensated for;

•  when appointing sessional teaching academics he looked for people who he knew to be committed to keeping up-to-date with their discipline;

•  in his experience, most sessional academic staff spent at least one hour a week during the course of their engagement keeping up-to-date with their field;

•  he would expect sessional academics at VU to at least be familiar with a number of policies, including policies on assessment, equity, plagiarism, health and safety among others;

•  he was not aware of any steps taken by VU to examine the health and safety impact of the long hours being worked by academic or general staff;

•  it was well established practice that academic staff would undertake online work when they were away from campus and that as a result he, like most academic staff, maintained an Internet connection at home at his own expense;

•  he had been provided with a laptop and mobile phone account by VU but due to a conscientious objection to the service provider used by VU opted to use his own phone; and

•  he was able to claim a portion of his home office expenses, including internet connection, against his tax.

[73] Key aspects of Professor Hamel-Green’s oral evidence were that: 79

•  the various categories of academic work just could not be achieved within the time allocated under the 38 hour week notional requirement;

•  there were mechanisms for an academic staff member who considered that they were overloaded and working excessive hours to talk to their supervisor about moderating their workload;

•  more senior levels of general staff had access to some flexible working arrangements;

•  he was not aware that VU had recently instituted a three hour paid induction program for sessional academic staff; and

•  there had been a significant number of technological advancements in relation to research which had enabled greater research productivity.

Professor Michael Leach 80

[74] Professor Leach is a Professor in Politics and International Relations at Swinburne University of Technology (Swinburne University) and is also Chair of the University’s Department of Education and Social Sciences. Professor Leach deposed in his witness statements that a large majority of academic staff had responsibilities which included teaching and research, adding that scholarship was an important activity related to the performance of those functions in an efficient manner. Professor Leach described scholarship as most commonly consisting of among other things the reading of academic works and participating in conferences or other meetings within a discipline.

[75] More specifically, Professor Leach deposed that:

•  since his appointment as Chair of Department his average working week was somewhere in the range of 60 to 65 hours per week, noting that from a certain perspective it might be said that his personal working hours were “self-imposed” 81 in the sense that he chose to try and maintain an effort in relation to service to the discipline and in research;

•  there had been a gradual but significant increase in workload and consequently working time associated with several aspects of teaching;

•  he estimated that all or almost all of the full-time academic staff that he supervised would work between 45 to 55 hours per week;

•  the general level of work to be allocated within an academic unit was almost exclusively a function of available staff resources;

•  given the performance expectations and work allocation within the Department of Education and Social Sciences, very few or no full-time employees could perform their required duties to a satisfactory level within a 38 hour week averaged over a whole year;

•  it was fair to draw a distinction between required academic work and all academic work:

•  the concepts of specific allocated duties and performance standards or outputs were not mutually exclusive as much of the work done in pursuit of one was also done in pursuit of the other;

•  workload models and work allocation set out fairly clearly what the required or allocated duties or standards were while promotion criteria set out clearly what the performance standards were for progression through the academic structure;

•  it was essential to the efficient performance of his work that he use his home computer and internet connection for work purposes, adding that he received no recompense from Swinburne University in respect of the purchase or upkeep of his information technology equipment nor any contribution to the maintenance of his home internet connection; and

•  particularly over the last year or two there had been an occasional but increasing tendency for general staff within his general work area to contact him by email well into the evening about work matters.

[76] In his oral evidence 82 Professor Leach attested that as Chair of Department one of his primary duties was to allocate workload to the other staff in his Department of Education and Social Sciences. As to how that process worked, Professor Leach stated that he met individually with staff members and together they initially worked out what their research workload was and any service requirements they were performing, with the residual comprising the teaching workload which was then allocated. In looking at the research workload, they would look at the individual’s research contribution in the past and their current performance and determine that it constituted X per cent of their workload, adding that the approach was in effect a performance based reward system with a high research allocation for those staff who performed in terms of research outputs.

[77] Professor Leach also attested that as an academic supervisor he did not direct staff not to work hours that go beyond those specified in Swinburne University’s enterprise agreement, noting that academics would be working those hours “for reasons to do with their desire for advancement and promotion.” 83 With regard to his use of information technology at home for work purposes, Professor Leach stated that he did claim that usage on his tax return and that he was aware that Swinburne University had a scheme whereby staff could purchase information and communications technology equipment at a special rate.

Andrew Giles 84

[78] Mr Giles worked as a general staff employee at Deakin University from 1989 until 2013, working in a number of roles at different campuses including as Director of Community Engagement at the Burwood campus and as acting General Manager of the Science Faculty on a number of occasions. Among other things, Mr Giles deposed in his witness statement that:

•  he experienced pressure to work long hours in all of his jobs at Deakin University, citing various sources of that pressure including work flow issues created by deadlines and meeting cycles, the overall volume of work, his own commitment to completing work on time and express expectations from his supervisors that he be available to take their calls at any time;

•  performance review meetings were rarely used to discuss workloads and never directly addressed the question of working hours or whether work expectations were achievable without working overtime, adding that there was no structured mechanism for reviewing or discussing hours worked;

•  Deakin University had provided training to staff on how to prioritise work;

•  he had never seen a general instruction from Deakin University management advising staff and supervisors not to work long hours or to ensure that overtime or TOIL was approved whenever additional hours were worked;

•  formal applications for TOIL were subject to the operational convenience of the work area;

•  he was not paid for any TOIL on his departure from Deakin University;

•  during his employment with Deakin University he observed a number of changes which resulted in an increased workload for general staff, highlighting funding pressures and the increased use of email resulting in shorter turnaround times on most communications; and

•  senior staff would have their information technology equipment provided by Deakin University but more junior staff at HEW Levels 5-8 were in practice required to be accessible out of hours and would end up using their private phones and computers for work purposes for which they were not reimbursed.

[79] Mr Giles, in his oral evidence 85 attested that for the last 10 years of his employment at Deakin University he was employed as HEW Level 10 employee, the highest classification level for general staff. Mr Giles also acknowledged that under the enterprise agreement in operation at the time86 he was entitled to TOIL at ordinary time rates and that the Performance Planning and Review document87 used by Deakin University enabled staff as part of their end of year review, to indicate whether excess workload had affected their performance.

[80] Mr Giles further acknowledged that the abovementioned enterprise agreement also provided for general staff in an area to request a workload review where they had concerns about excessive workloads and for an individual staff member to raise concerns/disputes regarding their workload. Finally, Mr Giles attested that he was not aware of any employee(s) seeking a workload review in accordance with those provisions of the enterprise agreement, opining that one explanation for this might be that employees saw workload issues as a matter for discussion with their immediate supervisor but also suggesting that employees would be “sticking their neck out” 88 were they to raise workload issues with some managers.

Dr Caron Dann

[81] Dr Dann is a casual lecturer in communications and literature at the Faculty of Arts at Monash, coordinating two units in the Master of Communications programme. In Semester 1 of 2016 Dr Dann also shared the teaching (on a 50-50 basis) in a third unit. Dr Dann has worked as an academic since 2008 and in that time has held three one year fixed term contract appointments, with the remainder of her employment being as a sessional academic paid on an hourly basis.

[82] Key aspects of Dr Dann’s initial witness statement were that: 89

•  she was paid for the specific duties listed in her contract of employment and that if work was not listed on the contract she was not paid for it;

•  the assumed time involved in the rates of pay for lectures and tutorials significantly underestimated the actual time she spent in preparation and student consultation;

•  she had a small office at Monash in 2012 when she was on a fixed term contract but as a casual did not have a physical presence on campus and frequently had to work from home or other locations;

•  while there was communal sessional office space available on campus there was no storage facility and no phone that was “hers”;

•  as she worked at Monash’s Clayton and Caulfield campuses she needed to have readily portable communication devices;

•  she had paid for her computer, telephone and iPad which she described as necessary tools for her work;

•  she spent in the order of $200 per month on internet access, data and mobile phone expenses with 80 per cent of this claimable on tax as a work expense, adding that she received no reimbursement from her employer in respect of these expenses;

•  she did about 40 hours per week work from home;

•  maintaining currency in media studies was a constant, adding that she spent at least five hours per week reading academic articles and reading about media in different fields;

•  in order to carry out her work efficiently she needed to maintain a comprehensive up-to-date home library which had cost her thousands of dollars to compile since 2008 and on which she spent at least $200 a year;

•  much of the work she did to maintain her professional skills and knowledge was not done as preparation for specific classes;

•  there was very little opportunity for sessional staff to be involved in formal and informal development regarding pedagogy;

•  in order to keep up with her field she should attend professional and industry conferences as well as undertaking a variety of professional development courses offered by her employers, adding that as a sessional academic she got no support for doing so either in terms of payment of registration costs or on payment of wages for time spent in such activities;

•  during her employment with Monash she had attended several national and international conferences and maintained membership of several professional associations at her own expense; and

•  she estimated that she spent at least eight hours a year in refreshing her knowledge of employer policies and procedures.

[83] In her supplementary witness statement, Dr Dann responded to aspects of Mr Picouleau’s witness statement deposing inter alia that: 90

•  in order to perform her work to a satisfactory standard it was necessary for her to perform much of her preparation at home using her own information technology hardware and software;

•  a hot desk with a shared computer did not provide her access to all the files and records which she needed;

•  as she often had to work at night or on weekends to prepare for classes and to mark assignments it was not practicable to be using work hot desks at these times; and

•  Mr Picouleau’s understanding of how contracts and claimable hours worked in the School of Media, Film and Journalism was erroneous.

[84] Key aspects of Dr Dann’s oral evidence were that: 91

•  clauses 16.12 to 16.18 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 92 (Monash Agreement) dealt with the matters raised in her initial witness statement;

•  in circumstances where she had taught one of the subjects she was teaching at Monash for five years, it took her much less time to prepare for a lecture in that subject than if she were developing a new lecture;

•  she had access to computer facilities at both the Caulfield and Clayton campus, acknowledging that to the extent she needed to save or transfer material that was readily achievable with a USB or external hard drive;

•  her discipline did not require particular software beyond the sort of software that appeared on a computer;

•  while she had an external hard drive she did not find that an efficient means of accessing her electronic files for several reasons, including that some of the computers were rather old and in a hot desk situation she would have to be continually plugging the external drive in and out as people were coming and going in the room;

•  with regard to Monash’s Conduct in Compliance Procedure – Provision of University IT Equipment and Communication Facilities to Staff 93 she was not aware that there was capacity for staff to seek provision of information technology facilities and equipment;

•  agreed that the preparatory work that she did for lectures was a substantial step towards maintaining discipline currency pointing out that she also delivered tutorials which required her to have much wider knowledge than for a lecture as she was unable to foresee what issues might be raised in tutorials;

•  agreed that her attendance at international conferences and maintaining membership of professional associations was not directed or required by Monash and reflected judgements that she had made about how to develop her career, knowledge and networks;

•  with regard to policy familiarisation, agreed that in addition to the documents that were on the University’s system there were a range of resources available to her should she be confronted with an issue or problem;

•  she had undertaken an induction session at Monash on one occasion but beyond that she had not been specifically paid to familiarise herself with the University’s policies; and

•  none of her supervisors had ever suggested to her that Monash could provide her with information technology equipment.

Dr Linda Kirkman 94

[85] Dr Kirkman has worked at Latrobe University (Latrobe) as a casual lecturer, tutor and facilitator for 14 years. At the hearing, Dr Kirkman attested that since June 2016 she had been employed on a short term contract as a full-time Level A lecturer working in the Hallmark Program, with that contract due to finish at the end of December 2016. Key aspects of Dr Kirkman’s witness statement were that:

•  during an average week over the last 5 years she would interrupt her PhD study and writing to plan and prepare for at least 2 or 3 different subjects (sometimes in different faculties);

•  in a marking week she could have 20-30 hours’ work in addition to classes and class preparation;

•  she instigated sessions to support students, e.g. sessions on how to write an essay, but for was not paid for this;

•  when she first arrived at Latrobe she was given a paid induction and a hard copy handbook on the university and her faculty, adding that all the information was now online and that she had to find out about policies and procedures in her own time;

•  she estimated that she devoted between 5-7 hours each week to keep up to date with research and publications in her area of expertise;

•  she would attend 5-10 days of professional development per year, adding that this all occurred in her own time and sometimes involved her travelling to Latrobe’s Melbourne campus for which she paid her own travel costs;

•  she used her home computer, internet connection and phone for work at her own expense, adding that she estimated that she wold spend at least 10-12 hours per week on the phone and/or computer, adding that 50-60 per cent of her home technology use was work related and that she claimed this work use as a tax deduction; and

•  as an expert in her field she was called upon for additional unpaid work, e.g. advocacy and awareness raising, and that she participated in order to be visible and contribute.

[86] In her oral evidence 95 Dr Kirkman attested that she had not been directed by Latrobe to provide her session to students on how to write an essay and that while the session could be seen to duplicate writing guides available on the Latrobe’s internet site,96 the students who attended her session were students who found accessing the online material difficult. Dr Kirkman further attested that with regard to the advocacy and awareness raising activities referred to in her witness statement she had not been directed by Latrobe to participate in those activities and that she had not assumed that as a casual academic staff member she would be paid to undertake those activities.

Dr Camille Nurka 97

[87] Dr Nurka has worked as a sessional academic both tutoring and lecturing at a number of Australian universities, including the UM and UNSW, since March 2000. In early 2016 Dr Nurka was working as a lecturer in Latrobe’s Tertiary Enabling Program.

[88] In her witness statement, Dr Nurka deposed that an inherent requirement of undertaking a teaching role at a university was that the employee would be familiar with university policy, adding that this may involve reading through extensive and multi-layered policies and procedures. To emphasise that point, Dr Nurka deposed that there were 145 policies listed on the UM website, with UM’s Discrimination, Sexual Harassment and Bullying Procedure 98 listing 21 related documents. Dr Nurka stated that other universities at which she had worked had a similar array of policies and that each time she started work at a new university she had to familiarise herself with the institution’s particular policies.

[89] Dr Nurka acknowledged that there were some policies which she would never need to know but considered familiarisation with student support policy as particularly time consuming. Dr Nurka deposed that on commencing employment with a university she would generally spend at least 10 hours over the course of her initial semester researching policy and the support programs available to students and in the order of 2 hours in each subsequent semester. Dr Nurka further deposed that some policy information had been included in the induction sessions she had attended, adding that access to paid induction sessions for sessional staff was variable and that the induction sessions she had attended had not been exhaustive.

[90] With regard to the issue of maintaining discipline currency, Dr Nurka deposed that when teaching she would typically spend 4 hours per week reading background material (which equated to 48 hours over a 12 week semester) and that if she was also writing an academic article that she would spend at least 8 hours per week extra on research and writing (totalling 96 hours over a 12 week semester). Dr Nurka further deposed that this ‘knowledge work’ was essential in performing well in the classroom and that in undertaking this work she was carrying out the general direction of her employer to remain expert in her area of knowledge.

[91] As to the issue of ICT, Dr Nurka stated that in order to perform her academic duties she among other things regularly accessed work emails and websites from home, marked, read and prepared for lessons from home and took work related phone calls outside working hours. Beyond this, Dr Nurka also deposed that:

•  she had frequently had to use her own devices even when on campus since the University only provided her with access to a room with shared telephones and computers;

•  when working as a casual tutor at UNSW in 2013 and living in the Blue Mountains it was often more time efficient for her to do much of her work from home rather than on campus;

•  she had rarely been allocated a dedicated office space on campus that was suited to the sort of quiet reflections necessary for much academic work; and

•  when working away from campus she used her own mobile phone and home internet connection for work purposes, adding that she had never been reimbursed for the costs of doing so, with those costs being $30 per month in respect of her mobile phone account and $75 per month in respect of her home internet connection.

[92] Key aspects of Dr Nurka’s oral evidence were that: 99

•  in addition to her various academic roles she had since around 2007 also run a copywriting and copy editing business for which she maintained a computer, access to the world wide web and a website;

•  there were various supports available at UM to enable staff and students to obtain advice regarding matters that arose under the policies operating at the university;

•  she had not looked at all 21 related documents referred to in the UM’s Discrimination, Sexual Harassment and Bullying Procedure;

•  she had chosen to approach her role in relation to support services in a very hands-on way and accepted that she could just refer a student to the student services representative or ask the representative to contact the student;

•  each time she had been engaged as a sessional tutor or lecturer it was because she had the requisite skills, knowledge and experience to teach in her area of expertise;

•  the activities she undertook in preparing for a tutorial or lecture contributed to her knowledge of the discipline;

•  she did not accept that the additional activities she referred to in her witness statement, e.g. journal editor, writing articles, publishing in her field, could be separated from the expectations set out in the relevant employment agreement, contending that expertise was more fluid than that;

•  she claimed in her tax return deductions for home office expenses;

•  she had not sought to claim any expenses in relation to her information technology work or computer equipment despite being aware of policies and procedures at the universities at which she has worked regarding employees claiming expenses; and

•  none of the universities at which she had worked or her supervisors had advised her that she should be applying for reimbursement of information technology expenses.

Associate Professor Graham Hepworth 100 (Expert Witness)

[93] Associate Professor Hepworth is the Deputy Director of the Statistical Consulting Centre at the UM, is an accredited statistician with the Statistical Society of Australia and has over 30 years’ experience as a consulting statistician. Associate Professor Hepworth was asked by the NTEU to give expert evidence regarding the 2015 Uni Survey. Specifically, the NTEU sought Associate Professor Hepworth’s expert opinion as to the appropriateness and clarity of the questions, and the structure of the Survey in terms of trying to elicit genuine and useful responses, particularly in relation to those questions relating to working hours for academic and general staff.

[94] In his witness statement Associate Professor Hepworth deposed that:

•  the 2015 Uni Survey questions were pertinent and appropriate to the aims of the 2015 Uni Survey;

•  the wording of 2015 Uni Survey questions did not reflect a desire to elicit particular responses, with most of the questions about hours of work being essentially factual and eliciting quantitative information rather than opinions;

•  the structure of the 2015 Uni Survey was satisfactory with automatic pathways by the software removing the possibility of respondents accidentally answering the wrong questions;

•  the wording of questions involving opinion was generally clear, which allowed confidence that the results would be interpreted appropriately;

•  there were a few exceptions in this regard, 101 e.g. because of the negative phrasing of the following statement which required a level of agreement “My workload has not increased significantly over the last 5 years” some participants could have chosen “Disagree” because of its negative connotation when they meant “Agree”;

•  he did not notice any other questions like this; and

•  some questions relied on certain assumptions for clarity, which may be entirely legitimate but was difficult to verify, e.g. to use the information from the question “Please estimate how many hours you spend on each of the following activities in an average TEACHING WEEK, to make the work and performance requirements expected of you by your employer” it needed to be assumed that additional hours were to meet work and performance requirements rather than for some other purpose such as maintaining high standards.

[95] In his oral evidence, Associate Professor Hepworth attested inter alia that: 102

•  his expert report did not go to the representativeness of the 2015 Uni Survey results or the validity of the process that was used in relation to the gathering of the information;

•  he was not involved in preparing the 2015 Uni Survey and did not design the questions or have any input into their design;

•  with regard to the question directed to academic staff “If you are a full-time staff member, how many hours a week on average do you spend on university work?” he believed that those who answered the question would clearly know what was university work, even if what was required or expected was harder to define, and agreed that university work might include work that an academic chose to do or pursue;

•  he did not agree that the question was atypical of surveys in that it called for an estimate of hours in the bands set out in the questions (e.g. 36-40 hours), agreeing that the use of bands would inevitably give a less precise estimate of average hours;

•  the 2015 Uni Survey questionnaire in using terms such as “normal working week” 103 and “in an average teaching week”104 in the questions which followed the above question could have been better designed;

•  agreed with Professor Wooden’s view that the responses to these ensuing questions would not provide reliable data on expected or required hours but might provide an estimate from each employee as to the hours that they have spent working on university activities; and

•  disagreed with Professor Wooden that these ensuing questions elicited opinions, adding that the responses were estimates that may not be very precise.

Dr Michael Dix 105

[96] Dr Dix has worked in higher education since 1990 and in 2014 secured an ongoing teaching intensive position with Swinburne University. Dr Dix deposed in his witness statement that as a teaching intensive academic he had no workload allocation for research and that he had been a researcher in philosophy since 1990 but while employed as an academic had never been paid for doing his own research. Dr Dix estimated that until he secured his current position it would have cost him approximately $10,000 per annum in foregone teaching to make time to do his research and stated that the considerable teaching load he had worked for much of his academic life had prevented him from bringing his many ongoing research projects to completion and publication. Beyond that Dr Dix deposed that:

•  during his employment as a sessional academic he spent time maintaining and expanding his knowledge, estimating that on average over his period of casual employment he spent at least 8 hours per week engaged in such activity;

•  he could not have maintained the currency of his work as an academic, developed as a teacher or adequately grounded his teaching had he not put in the effort to maintain and expand his knowledge;

•  all the universities he had worked for had extensive policy libraries;

•  as a casual academic employee at Swinburne University he had always been required to know Swinburne University’s policies and procedures which relate to the academic work of staff and students, though he acknowledged that there were some policies which he only needed to consult occasionally;

•  in 2013-2014 he spent approximately 20 unpaid hours familiarising himself with new, existing or revised Swinburne University policies and procedures;

•  since 2006 he has had an office on campus with a computer, phone and internet connection and that for a number of reasons it was an inherent requirement of his job that he would use his personal communication technology to perform work, adding that he was not reimbursed for the cost of his home internet connection and mobile phone;

•  he did not think that the things required of him by his workload allocation could be done to a professional standard within an average 38 hour week; and

•  on average he did between 50-55 hours work for Swinburne University is each of the 40 weeks he is employed for each year.

[97] Key aspects of Dr Dix’s oral evidence were that: 106

•  the works that he listed in his witness statement as having read or re-read over the last five years were related to his research as opposed to being required for his teaching as a sessional academic staff member;

•  he was aware that he could borrow a laptop from Swinburne University if he happened to be working away from campus and that if there was an ongoing need to do so that he could be provided with a laptop by Swinburne University, adding with regard to the latter option that he had not investigated the option as he was an impatient person and there was a “bit of a rigmarole” involved; and

•  with regard to his home internet connection and his mobile phone, he used both for personal as well as work use and did not bother to claim the work related use on his tax though he did so many years ago.

Michael Evans 107

[98] Mr Evans is a National Organiser with the NTEU. In his witness statement Mr Evans deposed that during 2015 a series of meetings were held in the NTEU’s National Office to discuss the need for it to collect more reliable and comprehensive data about employees in the higher education industry and to plan and design the survey instrument for the 2015 Uni Survey. Mr Evans further deposed that the final sign off on the content of the 2015 Uni Survey and its method of distribution was by the union’s National Assistant Secretary and himself. More specifically, Mr Evans deposed that:

•  the 2015 Uni Survey was designed to be distributed by email and used the online survey software, Survey Monkey;

•  not all questions were presented to all respondents as a series of filters were used so that respondents were not given questions which were not relevant to their circumstances;

•  the 2015 Uni Survey was only sent by email;

•  it was not possible to complete the 2015 Uni Survey without having access to the login which was included in the email, adding that the survey was not available for completion at any social media site, website or by any other means; and

•  the 2015 Uni Survey mechanism did not allow for more than one response from the same IP address.

[99] Key aspects of Mr Evans’ oral evidence included that: 108

•  he did not have any formal qualifications in relation to survey design or survey methodology, nor did he claim to be any sort of expert in survey design or analysis;

•  it was not essential to have received the email regarding the 2015 Uni Survey to have access to the log in, with individuals able to access the 2015 Uni Survey via the NTEU’s website;

•  the 2015 Uni Survey was an NTEU survey and was not conducted independently;

•  NTEU members represented about 60 per cent of 2015 Uni Survey respondents despite only 20 per cent of the emails regarding the 2015 Uni Survey going to NTEU members;

•  he accepted that the 2015 Uni Survey did not constitute a representative set of data across the higher education sector of all staff given the significant overrepresentation of NTEU members in 2015 Uni Survey respondents and the significant differences in response rates between institutions; and

•  it was possible to complete multiple responses to the 2015 Uni Survey, e.g. it could be completed from an individual’s work computer and then from their laptop at home.

4. THE Go8’s CASE

[100] The Go8 proposed the following variations to the Awards: 109

•  deletion of the severance pay provisions applying upon the expiration of fixed term employment in clause 12.4 of the Academic Staff Award and clause 11.4 of the General Staff Award;

•  removal of the entitlement to an age-based notice payment scale upon redundancy in clause 17.6 of the Academic Staff Award; and

•  minor drafting updates to the annual leave loading provisions in clause 23.3 of the Academic Staff Award and clause 30.3 of the General Staff Award.

[101] The Go8’s substantive submissions in support of its proposed variations are set out below in the chapters dealing with each issue. In its closing submissions the Go8 made a number of overarching points, including that:

•  the appropriate outcome in this case was not wholesale or significant changes to the Awards of the type sought by the NTEU but rather the non-imposition of a range of substantial additional restrictions that were matters for enterprise bargaining or policy;

•  there was no direct evidence in this case from any employees to whom the Awards actually applied;

•  the NTEU had failed to demonstrate that if the Awards were varied as it proposed that they would include terms to the extent necessary to achieve the modern awards objective;

•  the test as to whether the NTEU’s proposed variations should be made was one of necessity as opposed to one of desirability; and

•  the reliability, relevance and probative value of much of the NTEU’s evidence was questionable.

[102] The Go8 supported the proposed variation sought by AHIEA to vary clause 11.3 of the Academic Staff Award to provide for a new category of fixed-term employment in circumstances where an area was under review. The Go8 opposed the majority of the NTEU’s claim. With particular regard to the NTEU’s proposed variations, the Go8 contended as a general submission that the claims were not supported by the modern awards objective and extended well beyond matters that were necessary to achieve that objective, that a number of the claims would be unworkable, restrictive and costly and in a number of cases would also be inconsistent with other modern awards and extend into bargaining matters well beyond a fair minimum safety net of all terms.

Go8 Evidence

[103] The Go8 lead evidence from 7 witnesses, with their witness evidence summarised below.

Professor Stephen Garton 110

[104] Professor Garton is the Provost and Deputy Vice-Chancellor at the UoS and Chairs the University’s Workload Monitoring Committee. In his witness statement Professor Garton deposed that the NTEU’s hours of work claim for academic staff was fundamentally at odds with academic employment, academic culture, the nature of academic work and the way in which the UoS and its staff operated. Professor Garton further deposed that were the claim to be adopted it would be impossible to properly administer and would cause significant disruption and damage to the UoS, its academic staff and the UoS’ international standing and research innovation.

[105] Beyond that, key aspects of Professor Garton’s witness statement were that:

•  the nature of academic work and academic culture demanded autonomy and flexibility, adding that academic work was largely self-directed and autonomous and that academic hours of work had never been recorded (other than in respect of casual/sessional academic staff) or constrained;

•  Part G of the University of Sydney Enterprise Agreement 2013-2017 111 (UoS Agreement) dealt with among other things academic workloads;

•  the UoS also had an Academic Staff Workloads Policy which was designed to provide a framework for the development of workload allocation arrangements at the school or faculty level as required by the UoS Agreement;

•  various faculties, schools and colleges within the UoS had their own workload allocation policies/guidelines/models which had been developed in consultation with staff and which were approved by the UoS’s Workloads Committee;

•  all of those policies sought to apply the 40:40:20 principle, with one of the key reasons for the principle being to help ensure that academic staff were addressing teaching and service but also had sufficient opportunity to undertake research;

•  the 40:40:20 principle was not designed to control or monitor the hours of academics staff spent on research;

•  the workload model could not dictate to the hour what amount of research and self-directed activities were being undertaken;

•  the UoS’s workload allocation mechanisms were separate to and distinct from performance standards and promotion, adding that promotion involved an assessment of the particular staff member against the criteria in the academic promotions policy and based upon their research output, relevant to their academic standing;

•  there had been no fundamental changes in the nature of academic work since 2010 which had resulted in or required significant changes to the way in which academic hours were performed or which had significantly increased the amount of hours worked by academic staff;

•  the UoS provided significant access to information technology resources and facilities for all staff;

•  the NTEU’s academic hours of work claim was unworkable and inappropriate for a number of reasons including that

•  universities did not and never had asked academics to record or report on hours that they devoted to research, service and other activities,

•  outside of teaching and attendance at university meetings, universities generally did not require academic staff to be physically in attendance at the university,

•  the definition of “required work” 112 was ill suited to the nature of academic work,

•  UoS did not allocate specific duties as such to academic staff particularly around research,

•  there was no clear line between what may be considered to be “productive self-directed work” 113 and what was work that was necessary to “achieve any promotion expectations”114, adding that all work undertaken by academic staff was relevant to whether they were performing and to promotion,

•  the NTEU’s proposed clause would be extremely difficult to administer, assess, monitor and enforce,

•  the claim if accepted would involve significant costs, and

•  the claim would result in the relationship between academics and universities being significantly undermined and has the very real potential to cause significant and fundamental damage to the economy and the innovation and reputation of the academy of Australia;

•  in respect of the NTEU’s policy familiarisation claim for certain sessional staff, staff were, inter alia, not required to read every policy and procedure, particularly as the vast majority of policies and procedures did not directly relate to their activities, were provided with induction and could seek guidance from support staff and/or their supervisor on what was required;

•  in relation to the NTEU’s discipline currency claim, the sessional rates set out in the Academic Staff Award and maintained in the UoS Agreement incorporated a period of preparation time which varied according to the particular activity; and

•  he had been informed by the UoS’s Director Employee Relations that many of the claims or areas now sought by the NTEU had been the subject of previous bargaining claims and negotiations in enterprise bargaining.

[106] Key aspects of Professor Garton’s oral evidence were that: 115

•  while there were certain expectations set with respect to research, those expectations were about performance and not necessarily a matter relevant to the hours worked;

•  there was nothing in the NTEU’s hours of work claim that would limit what an academic could do over and above what the university required of them;

•  there was no specification of what happens in the 40 per cent of academic hours earmarked for research and there was no effort to quantify what 40 per cent represented and there was no request at the workload committee to quantify the issue of the research element, adding that there was oversight of the teaching and the service elements to insure that there is 40 per cent available for research time;

•  the UoS’s Workload Monitoring Committee had been vigilant in excluding performance criteria from the workload management scheme;

•  with regard to clause 267 of the UoS Agreement which provided that “... staff will not be required to work more than 1725 hours per year” 116, the UoS’s requirements were expressed and explicitly worked through in the Workload Monitoring Committee around teaching and service but not research;

•  the UoS’s Code of Conduct 117 directed all staff and affiliates, including casuals, to “maintain and develop knowledge and understanding of the area of expertise or professional field” and that by force of the Code of Conduct casual academic staff were required to maintain discipline currency;

•  when regard was had to the people who were employed as casuals, preparation time more than adequately covered the requirement to maintain discipline currency;

•  the UoS’s Code of Conduct did not necessarily require all sessional academic staff to be aware of the existence of a whole range of University policies and procedures;

•  the UoS did not currently ascertain the hours of work involved in research;

•  the minimum expectations regarding research were averaged over a three-year period though some disciplines preferred a five year period, adding that research activities were a matter for the academic to pursue as they see fit; and

•  the minimum performance expectations were what local communities believed would be an outcome doing ordinary work, adding that some academics may achieve those minima in much less than the working week while some academics may take a bit longer to achieve those minima which was why the minima were performance criteria and not specifically hours of work criteria.

Professor Marnie Hughes-Warrington 118

[107] Professor Hughes-Warrington is the Deputy Vice-Chancellor (Academic) at the Australian National University (ANU) and also chairs the ANU’s Promotion Committee and also serves on the Academic Promotions Committee for the University of South Australia.

[108] Professor Hughes-Warrington deposed in her witness statement that there were significant difficulties and problems with the NTEU’s claims, adding that at a general level they sought to impose greater restrictions, introduce new entitlements and regulation that would increase costs and reduce flexibility in an environment where universities were facing either flat or declining government funding and increased international and domestic competitive threats.

[109] More specifically, Professor Hughes-Warrington deposed that the NTEU’s academic hours of work claim was, inter alia, inconsistent with the nature of academic employment; inconsistent with the nature of academic work, particularly research which was not and could not be meaningfully allocated or determined in hours; inconsistent with academic work and activities being largely self-directed; complex and unworkable; and would impose a very significant regulatory burden and lead to increased costs in respect of systems, staffing and other costs.

[110] Beyond that, key aspects of Professor Hughes Warrington’s witness statement were that:

•  academics largely self-managed their work other than in respect of the specific hours they were required to teach, attend student consultation meetings and attend mandatory university meetings;

•  outside those specific activities, the nature and extent of the research performed, how that research was undertaken, the locations at which work was performed, attendance at the university and hours of work were determined by academic staff members themselves;

•  the concept of recording or limiting hours of work that an academic can perform or paying overtime for teaching and research academics was not part of any academic employment worldwide of which she was aware and certainly formed no part of the concept of academic employment in the United Kingdom, USA or Australia;

•  academic workloads at the ANU were regulated through various allocation mechanisms and workload models with the focus of allocation of academic activities by the University being around the allocation of teaching and teaching related activities;

•  as required by the ANU enterprise agreement, colleges within the ANU had their own workload allocation models/policies and in addition the ANU also has a Workloads Policy and a Workloads Procedure which among other things identified the mechanisms and processes that were in place for staff to seek a review of their academic workload;

•  she had been informed by the ANU’s Executive Director, Human Resources that the Workloads Policy and Workloads Procedures had been in place since at least 2005 and since that time there had been two requests for a review of workload is both of which were ultimately resolved locally through discussions between the academic and their supervisor;

•  the nature and extent of academic workloads had not significantly changed since the Academic Staff Award was made in 2009/2010;

•  the practical effect of the NTEU’s hours of work claim was that academic staff would need to complete time and attendance records if a university was to have any meaningful confidence to avoid allegations of breach;

•  the cost of the claim was impossible to determine but would be significant;

•  the NTEU’s discipline currency and policy familiarisation claims were not appropriate to be included in the Academic Staff Award as, among other things, rates of pay for sessional staff incorporate a period of preparation time and the vast majority of the ANU’s policies and procedures did not require staff to have read all such policies and procedures;

•  the claims would involve a significant increase in costs for the ANU; and

•  she had also been informed by the ANU’s Executive Director, Human Resources that a number of the claims made by the NTEU for variation of the Awards had been made in enterprise bargaining and had been the subject of negotiation with the ANU in the past.

[111] Key aspects of Professor Hughes-Warrington’s oral evidence were that: 119

•  it was not correct to state that the actual volume of work that an academic had to perform was determined by the University, adding that the volume of work was actually subject to disciplinary norms;

•  the ANU did not have codified standards for outputs or performance requirements for output, noting that satisfactory performance was determined on a case-by-case basis in performance development discussions between an academic and their supervisor;

•  while academic staff could be instructed to teach certain hours, they were never instructed to work a particular number of hours;

•  in circumstances where an academic went from a full-time workload to extra workload, the University would probably need to move from an assumed workload model to an ascertained workload model and would have to quantify the effort in quite a detailed way to make sure it was competent and professional, leading to an environment where timesheets was the only way to review academic workload;

•  with regard to the NTEU’s policy familiarisation claim, the ANU outlines for casual, continuing and contract staff which are the most important policies to look at and which ones they are obligated to know about;

•  while general staff have less control over the work that is coming to them, their supervisor should instruct them when to work and when not to work;

•  none of the workload models operating at the ANU ascertained research activities in hours, adding that research models tended to quantify expected outputs; and

•  the hours of work of academics were not monitored by any strict mechanisms.

Professor Simon Biggs 120

[112] Professor Biggs is the Executive Dean of the Faculty of Engineering, Architecture and Information Technology (the Faculty) at University of Queensland (UQ). In his witness statement Professor Biggs deposed that fundamental to the nature of academic work were concepts such as autonomy, freedom, flexibility and self-direction and that outside of timetabled student teaching and academic committee work staff enjoyed the flexibility to arrange their work as they saw fit to maximise outcomes. Professor Biggs further deposed that:

•  academic staff were not required nor would they be willing to complete timesheets or otherwise record their hours of work or attendance for work;

•  while many academics may say they worked long hours, the majority of their activities were not directed monitored or recorded;

•  across the Faculty the typical contact teaching hours that were allocated ranged between approximately 5 to 8 hours per week per staff member on average across the 26 week teaching period per annum;

•  based on his experience and direct observations teaching contact hours and associated activities for most if not all academic staff within the Faculty would account for approximately one third of an academic staff member’s work for the year;

•  the only hours of work of an academic at the Faculty which were monitored concerned whether academic staff actually turned up to their timetabled teaching activity;

•  he saw a significant number of issues with the NTEU’s academic hours of work claim, including that it was fundamentally inconsistent with the nature of academic work (particularly research work which could not be sensibly allocated or determined in hours); it was unworkable; it would impose a significant regulatory burden on the university and its academic staff; it would likely undermine the relationships of trust and would be met with significant resistance from academic staff;

•  with regard to the NTEU’s policy familiarisation claim, the Faculty conducted induction sessions for all casual academic staff during which they were advised of the Faculty’s expectations, including what it expected them to be doing and how it expected them to do it;

•  all tutors in the Faculty must attend four hours of training before they were able to be employed to deliver tutorials, with that training covering relevant policies and procedures that they were required to adhere to during their employment;

•  with regard to the NTEU’s discipline currency claim, in many cases the sessional rates of pay provided sufficient preparation time for such staff to ensure that they were across the relevant lecture and tutorial materials and to ensure that they could deliver the quality that was required and expected of them; and

•  the claim was not reasonable as the expectation was that sessional academic staff were up-to-date and relevant in their discipline area.

[113] Key aspects of Professor Biggs’ oral evidence were that: 121

•  in his experience when people talked about excessive workload in an academic context they were really talking about the allocation of teaching, i.e. the amount of teaching they were asked to do was so large that they did not feel they had sufficient time left over to make contributions in research;

•  clause 59 of The University of Queensland Enterprise Agreement 2014-2017 122 which deals with academic staff workloads did not require the absolute recording of time;

•  in deciding whether the workload allocation for a research only academic staff member was reasonable, the contributions were measured by the outcomes that were delivered as a consequence of their work which was a matter discussed by the individual staff member and their supervisor as part of the annual appraisal process, with the staff member having access to a grievance mechanism in circumstances where they believed they had been unfairly treated;

•  while he did not require academic and some general staff to use home computers in the course of their duties a large number of them appeared to do so;

•  work performed outside of normal work hours by HEW Level 7 and below employees should not be done unless it was authorised by the employee’s line manager;

•  UQ did not equate research outputs with time for a number of reasons, including that the amount of time that any individual puts into an activity was largely self-directed;

•  with regard to the UQ Academic Workloads Tool 123, the challenge in applying it to the NTEU’s claim for ascertaining hours was how to allocate time in a comparative and proportionate way in circumstances where for example one staff member may produce 30 papers of relatively low quality while another staff member might produce just one paper which is so seminal in the field, adding that in those circumstances concluding that 30 times X is equivalent to 1 times X would be a meaningless approach in such a rich and nuanced area as research;

•  the measures that were already in place in universities to measure and assess workload could not be applied to the NTEU’s academic hours of work clause because in respect of research it would require trying to measure an input based on an output; and

•  there had been disputes about workload in the Faculty which were sought to be resolved amicably, adding that in his time as Executive Dean there had not been any serious issues.

Andrew Picouleau 124

[114] Mr Picouleau is an industrial relations consultant who consults in the higher education sector, consulting to Monash and other organisations. Prior to his retirement from full-time employment at the end of 2015, Mr Picouleau was employed by Monash University as Deputy Executive Director, Monash HR (a role he had held since 2010) and prior to that was the University’s Director – Workplace Relations (a role he held from 1999-2010).

[115] Mr Picouleau’s evidence was that during the period he was employed by Monash the University negotiated four enterprise agreements, the most recent being the Monash Agreement. Mr Picouleau deposed that many of the variations to the Awards which the NTEU now sought had previously been the subject of NTEU claims in enterprise bargaining and had been the subject of negotiations with Monash in the past. For instance, there had been a series of claims for improved terms and allowances for casual academic staff with the outcome being the inclusion of a clause in predecessor agreement to the Monash Agreement providing for a 4 hour paid induction for teaching associate staff, with that clause retained in the Monash Agreement. Similarly, NTEU claims in respect the regulation of academic hours of work and reasonable steps to ensure that general staff were not working in excess of their ordinary hours except where they were receiving appropriate overtime resulted in the inclusion of clauses in the Monash Agreement.

[116] More particularly, with regard to the variations sought by NTEU in this case, Mr Picouleau deposed inter alia that:

•  academic work was characterised by very high degree of autonomy, significant self-directed work and significant freedom as to how academics pursued research as well as the other activities that they undertook outside of allocated teaching;

•  in terms of industrial regulation, academic staff had always been paid an annual salary, had never had set hours of work, were not required to record their time and in substance outside of allocated teaching duties and attendance at meetings, had freedom as to whether they attended the University and how they undertook their academic duties;

•  the Monash Agreement identified a number of factors to be taken into account in determining unreasonable workloads or hours of work of academics staff and provided access to a Faculty Board of Review should there be concerns about the nature or extent of the academic workload;

•  the number of requests for review of workloads were very limited, adding that over the period 2010 to 2015 there were only five requests for review of workloads of which only two involved a Faculty Board of Review being convened;

•  the proposed NTEU clause regarding academic hours of work did not reflect the existing regulation of academic hours of work, introducing concepts such as “required work”, “ascertained hours”, “ordinary hours workload” 125, recording and monitoring of staff hours, overtime payments and distinguishing between self-directed work and discretionary effort;

•  the proposed NTEU clause would be ill suited to the nature of academic work and would effectively be impossible to police and enforce in the absence of recording academic time and directing academic work, including restricting research work to limit additional labour costs;

•  there were a number of issues with the concept of “required work” 126, including that universities do not allocate specific research duties or work to academic staff members and that academics were not required to achieve promotion;

•  that aspect of the NTEU’s proposed clause requiring universities to ascertain the number of hours per week within which academic employees could be expected to perform their required work was likely to lead to significant resistance and disputation about the validity and reasonableness of any identified number of hours;

•  complying with the NTEU’s proposed clause would require

•  universities to set hours and record time and would also involve academic staff being required to record and monitor their own time, including in relation to their research activities,

•  some system to enable supervisors to monitor or otherwise validate the self-recorded time, and

•  a determination as to whether the particular activities performed included only work activities allocated by the university or whether they also included “productive self-directed work”  127;

•  either approach would be unworkable and would involve significant additional costs in terms of money and time for both Monash University and its academic staff;

•  while casual academic staff were expected to familiarise themselves with particularly important policies and procedures they were not required to read and understand all of Monash’s policies and procedures, with the majority of policies and procedures only needing to be consulted or referred to by staff if a particular circumstance arose;

•  discipline currency was effectively a condition of employment or an inherent requirement for sessional academic staff, adding that discipline currency was not generally something that was developed or maintained over the course of the particular set of tutorials, teaching semester or subject being taught;

•  the responsibility to hold a particular level of expertise or to maintain a particular level of currency was the responsibility of the particular individual;

•  in respect of delivery of a particular tutorial or lecture, the Academic Staff Award provided for a rate that incorporated not only an hour of delivery but between 1-3 additional hours for preparation time and associated activities;

•  if Monash was to apply the NTEU’s policy familiarisation and discipline currency claims it would involve a significant increase in costs for the University estimated as $1.11 million and $1.79 million respectively, which if extrapolated across the sector were estimated at approximately $60-$70 million per annum;

•  Monash provided a range of ICT facilities and access to those facilities to all staff (both academic and professional) across the University;

•  the provision of ICT and other facilities and services to staff had been the subject of bargaining claims by the NTEU, with Monash and the NTEU agreeing that Monash would provide teaching associate staff with the facilities and resources appropriate to enable the fulfilment of their duties as well as providing a number of other elements such as out of hours access, email accounts and network and intranet access;

•  staff were therefore provided the facilities they needed and access to those facilities required to undertake their duties on campus, adding that it was not necessary for staff to work from home or to buy their own laptops, mobile phones or home internet access for the purposes of performing work;

•  nevertheless many academic staff chose to perform their work at places other than Monash, e.g. at home, emphasising that this was a choice made by the individual staff member and was not a requirement of Monash; and

•  Monash had a policy which enabled staff to seek reimbursement for the use of certain information technology equipment and communication facilities in certain circumstances.

[117] Beyond that, in his witness statement Mr Picouleau disputed aspects of Professor Andrews’ and Ms Dann’s witness statements and also aspects of the NTEU’s submissions regarding the proposed change of ‘context’ to ‘content’ in the Academic Staff Award and the issue of subject coordination sessional rates. 128

[118] Key aspects of Mr Picouleau’s oral evidence were that: 129

•  clause 65.2 of the Monash Agreement which required the University to inter alia “take reasonable positive steps to ensure that professional staff members do not work excessive or unreasonable hours” 130 had not imposed an unreasonable administrative burden on Monash ;

•  with regard to clause 59 of the Monash Agreement which dealt with academic workloads, it was fair to say that regarding academic workload allocation at Monash University there was a balancing act between the desire to allow staff to do as much as they wished to within their discretion as professionals on the one hand and Monash’s need to actually have certain things done on the other;

•  with regard to clause 59.10 of the Monash Agreement which “recognises 1645 hours per annum as the maximum annual allocated hours” 131, the reference to 1645 hours in his mind had always been about what Monash would direct academic staff to undertake and that underpinning that understanding there was an autonomous self-directed component to academic work which was an area into which Monash was reluctant to venture or intervene;

•  in the realm of self-directed work, there was nothing to prevent academic staff working more than 1645 hours per annum if they chose to;

•  with regard to Monash’s workload regulation in respect of research, the measures of research performance were all measures of research outputs with their being no explicit link between those measures of performance and a particular amount of time that the staff member might devote to achieving those outcomes, adding that there would often be a link in terms of the history of research performance of the staff member and their teaching allocation;

•  research performance standards are set at a faculty, department or discipline level through discussion within those organisation units;

•  clause 59 of the Monash Agreement was careful to avoid tying research performance standards to the allocation of hours, adding that the workload model does not specify the time to be spent on research;

•  the starting point in terms of the workload allocation process was to identify the requirements of the faculty or organisational unit in terms of teaching activities and how they were to be distributed, with regard had in that context to research activity and performance as demonstrated by the record of the particular staff member, what other activities were assigned to the particular staff member, with the balance left to research;

•  the concept of ordinary hours of an academic was not a concept that had been used or which he was familiar with in the context of academic employment and raised a number of issues which he tried to identify in his witness statement;

•  professional development activities offered by a professional organisation in order for a sessional academic to maintain their registration, e.g. as a nurse or lawyer, would not be encompassed by the preparation time paid to sessional academics nor would time spent reading or talking to other staff or making inquiries about relevant University policies unless it was the subject of some specific direction;

•  Monash did not collect data on the actual hours worked by its academic staff, had a payroll system which included information about the work performed by general professional staff that was paid for but did not include data on how much overtime professional staff might do which they have not claimed for, and he was not aware of any data on the extent of after-hours use of Monash’s information technology systems by general staff;

•  the Academic Workloads Advisory Committee provided for in clause 59.20 of the Monash Agreement provided an opportunity for engagement between the Director - Workplace Relations and workplace relations staff and representatives of the NTEU Monash Branch to discuss issues regarding academic workloads and to make recommendations where it thought appropriate to do so;

•  new academic sessional staff went through an online induction process which provided summaries of certain key policies regarding equal opportunity, occupational health and safety, adding that they would only be expected to read the source documents where there was some reason for them to do so; and

•  there were other supports and resources available to staff to deal with issues covered in the policies, e.g. advisors assigned to all faculties, divisions and organisational units, who were able to advise staff members about the operation of human resource policies while issues concerning students would be dealt with within faculty student services units.

Professor Dawn Freshwater 132

[119] Professor Freshwater is Senior Deputy Vice-Chancellor and Registrar at University of Western Australia (UWA), a role she has held since March 2014. Professor Freshwater’s witness statement dealt solely with the NTEU’s academic hours of work claim. Key aspects of Professor Freshwater’s evidence were that:

•  the NTEU’s claim was clearly inconsistent with the nature of academic employment which was largely self-managed, with academic staff setting their own hours;

•  if adopted, the NTEU’s proposed clause would necessarily lead to the imposition of significant restrictions upon the way in which academics undertook their work, would be impossible to properly administer and enforce and would likely have a significant cost impact;

•  introducing regulation such as that which the NTEU’s proposed clause sought to do constrained individual academic judgement and activity management and undermined the status of an academic as a self-organising professional;

•  work practices, intensity and hours worked varied from academic to academic, week to week, day-to-day and even year-to-year;

•  in all UK research intensive universities academics did not have fixed working hours or anything that remotely looked like an apportionment of hours of work based on activities, they did not have any entitlement to overtime payments, were not required to complete timesheets or otherwise record their hours of work;

•  flexibility in terms of working hours and how and when work was performed was something that was highly valued by academics, enhanced their professional status and provided the scope to deal with peaks and troughs in work;

•  the NTEU’s proposed clause required the recording of time and would necessarily require a degree of managerial control to be adopted to avoid significant increases in additional labour costs, adding that any suggestion that the employer would limit or cap the capacity of academics capacity to pursue their research would be fiercely resisted by most academic staff; and

•  were the NTEU’s proposed clause adopted it would lead to a loss of quality researchers to the US and UK in particular.

[120] In her oral evidence 133 Professor Freshwater attested that a discussion between an academic and his or her supervisor regarding whether his or her teaching allocation was reasonable would involve looking at the academic’s workload as a whole and in the context of the whole school. The reference to 1725 hours per annum in clause 36.3.3 of The University of Western Australia Academic Staff Agreement 2014134 had not required the introduction of time recording at UWA and did not prevent academic staff from working more than those hours on additional self-directed work, noting that the 1725 hours per annum already provided for quite a lot of self-directed work that did not fall within any of the academic’s assigned or required tasks. Professor Freshwater also attested that she did not think it appropriate that UWA and an academic staff member should be able to agree on higher workload requirements in return for a higher salary given that it would require a much more managerial approach to the allocation of activities which would have a detrimental impact on job satisfaction, academic culture, collegiality and the attraction and retention of academic staff. As to why UWA did not record time for academic staff, Professor Freshwater attested that senior leaders at UWA did not feel that there was any need to do that as they work in the context of an academic culture and a collegiality which allowed individual academics to make judgements about their own priorities, about how they allocated their time to those priorities and their activities, adding that each individual undertook their activities in a completely different way and that UWA preferred to allow that to happen in as much freedom as possible.

David Ward 135

[121] Mr Ward is Vice-President, Human Resources at UNSW, a role he has held since 2008. In his witness statement, Mr Ward deposed that he had been involved in enterprise bargaining on behalf of UNSW since 1999 and had led enterprise bargaining since 2005. Mr Ward further deposed that throughout this time a number of NTEU’s claims in respect of the Awards had formed part of NTEU enterprise bargaining claims and had been the subject of negotiations with UNSW, though he stated that in respect of the NTEU’s academic hours of work claim the NTEU had never sought the inclusion of a provision in the form it now sought. Beyond that, Mr Ward deposed among other things that:

•  overtime and TOIL arrangements had been in place for some time in respect of professional staff at UNSW;

•  the total amount of overtime paid to professional staff in 2015 was $1.745 million representing an average of $3,443 paid to each employee that was paid overtime;

•  issues concerning overtime or TOIL were not significant issues raised by professional staff;

•  at UNSW all staff were provided with a wide range of ICT facilities and the necessary access to those facilities to enable them to perform the work required of them, adding that in some schools and faculties facilities such as computers and printers may be shared for sessional academic staff;

•  in a number of schools and faculties, staff could borrow laptops, iPads and other ICT equipment if required;

•  staff were not generally directed or required to undertake work from home or be contactable after hours, nor was it generally necessary for them to do so;

•  whilst academic staff frequently performed work away from campus this was by choice and represented the significant flexibility available to them;

•  UNSW’s casual academic staff contract only specifically asked casual academic staff to familiarise themselves with the University’s ICT Resources Policy and Procedure;

•  while academic staff at UNSW are required to familiarise themselves with a number of policies, e.g. the UNSW Australia Code of Conduct, they were not required to read and understand all policies and procedures that may apply and be relevant to their employment;

•  many schools and faculties at UNSW nevertheless had formal paid induction programs for casual academic staff; and

•  if UNSW were required to apply the NTEU’s policy familiarisation and discipline currency claims, the estimated annual direct cost using the relevant Award rate was calculated as over $941,000 and over $1.425 million using the UNSW rate as at January 2016 in respect of policy familiarisation and over $788,000 and $1.193 million respectively in respect of discipline currency.

[122] Key aspects of Mr Ward’s oral evidence were that 136:

•  it was possible under clause 23.2(c) of the UNSW Australia (Professional Staff) Enterprise Agreement 2015 137 for a professional staff member at UNSW to lose accrued flex-time hours provided that the employee had a reasonable opportunity to take the hours, adding that he did not have any specific knowledge as to the extent to which this occurred;

•  he was not aware of any disputes having arisen regarding the operation of clause 23.2(c);

•  UNSW would not know of additional hours worked by professional staff not on a flex-time arrangement unless they were claiming those extra hours as overtime;

•  UNSW had an induction program for new professional staff which operated at both the University and local level, with information regarding the flex-time system in place and how to claim overtime dealt with at the local level;

•  not all UNSW staff were provided with a mobile phone and it was uncommon for casual academic staff to have their own office with computer;

•  while UNSW relied on the professional judgement of its academic staff as to whether they needed to respond to an urgent student query received late in the evening, that was not the same as UNSW agreeing that the particular query could only have been answered from home and not the following day at work;

•  the various policies referred to in the UNSW Code of Conduct 138 applied to all staff, including casual staff;

•  with regard to the estimated cost of the NTEU’s policy familiarisation and discipline currency claims referred to in his witness statement, they were not discounted for the number of paid induction hours, to take account of those casual staff who were industry practitioners or who worked at more than one university or for the amount paid to casual staff for participating in staff development or attending conferences;

•  it was not UNSW’s practice to fund the cost of home internet connections for staff, though it may do so for some staff;

•  UNSW did not have any data about the actual hours worked by academic staff, adding that UNSW did have a workload allocation model which was based on a set of broad assumptions and that UNSW did not require academic staff to fill in timesheets; and

•  an important part of the workload allocation process at UNSW was the conversation between academic staff members and their supervisor about what their particular focuses at work were going to be.

Professor Mark Wooden 139 (Expert Witness)

[123] Professor Wooden is a Professorial Fellow at the Melbourne Institute of Applied Economic and Social Research at UM. Professor Wooden has been employed in that role since March 2000 and since July 2000 has been a director of the HILDA Survey project. Professor Worden was asked to prepare a report seeking his expert opinion on a variety of matters relating to the 2015 Uni Survey as well as the expert commentary on that 2015 Uni Survey provided by Associate Professor Hepworth. In particular, Professor Wooden was asked to provide expert opinion on:

(a) the appropriateness and clarity of the questions included in the 2015 Uni Survey, especially those about working hours;

(b) the structure of the 2015 Uni Survey;

(c) the distribution of the 2015 Uni Survey; and

(d) 2015 Uni Survey responses.

[124] In summary, Professor Wooden opined in his report that:

•  the 2015 Uni Survey may be able to provide an indication about the estimated number of hours worked by academic staff (at least among those that responded), but not about required or expected hours adding that this was a concept that would be difficult for many academic staff to answer with any accuracy;

•  the approach used in the 2015 Uni Survey meant that many respondents were not reporting about required hours but simply taking the number of hours they estimated that they usually spent on university work and dividing that number between the four activity categories canvassed in the Survey;

•  questions 42 and 43 of the 2015 Uni Survey did not support Associate Professor Hepworth’s conclusion that the wording of questions did not reflect a desire to elicit particular responses, adding that these questions seemed designed (whether intentionally or unintentionally) to lead respondents to overstate the number of required working hours;

•  other parts of the 2015 Uni Survey were more neutrally framed and far less problematic than the sections relating to working hours, though there were some notable exceptions;

•  he did not consider Associate Professor Hepworth’s statement that the structure of the 2015 Uni Survey was satisfactory to be a fair assessment of the structuring of the Survey questions concerning working time;

•  the 2015 Uni Survey response rate of just 5.5 per cent meant that it was very unlikely that the sample was representative of the broader population of university staff in Australia; and

•  the bigger concern was that persons responding to the 2015 Uni Survey were those who were most concerned about their workloads, particularly as the email sent to employees inviting participation in the 2015 Uni Survey cited work and working conditions as the first among a short list of four topics provided to indicate what the purposes of the 2015 Uni Survey were.

[125] Under cross examination Professor Wooden was asked a series of questions regarding the 2015 Uni Survey questions regarding working hours. 140 In response Professor Wooden largely reiterated the concerns expressed in his report.

5. AHEIA’s CASE

[126] AHEIA originally sought the deletion of clauses 4.3 – Coverage, 12.4 – Severance pay (Incidents of fixed-term contract of employment) and 17 – Industry specific redundancy provisions from the Academic Staff Award and the deletion of clauses 11.4 – Severance pay (Incidents of fixed-term contract of employment) and 18.3 – Accident pay from the General Staff Award. AHEIA also sought to vary the Awards to add a further category of fixed-term employment to those currently set out in the Awards. 141

[127] AHEIA opposed most of the NTEU’s claims. With regard to the NTEU’s proposed variations to the General Staff Award to:

•  reinsert an express link between the rates of pay and the classification definitions, AHEIA noted that similar wording was included in pre-reform awards applying to general staff at universities and stated that it was not clear that the words were necessary for the General Staff Award to meet the modern awards objective and that as such it did not consent to the proposed variation; and

•  vary the classification definitions, AHEIA stated that it did not consent to the variations proposed but indicated that it was not opposed in principle to considering variations to the current Schedule.

[128] AHEIA agreed with the NTEU that the proper framework for consideration of the various changes proposed to the Awards was the Full Bench Decision in the Preliminary Issues Decision. However, AHEIA submitted that the Commission should reject the NTEU’s suggestion that where the Commission was not convinced of the merit of what had been proposed that it was obliged to formulate its own solution to that problem. AHEIA further submitted that the Full Bench in the Preliminary Issues Decision had not envisaged such a broad approach.

[129] Beyond that AHEIA submitted that:

•  much of the NTEU’s submissions and evidence seemed to address alleged problems or mischief of a more general nature than problems associated with the operation of the modern awards safety net;

•  no support for the NTEU’s suggested approach could be found in either the modern awards objective or the Preliminary Issues Decision; and

•  if there were any problems beyond the proper application of the Awards themselves, those problems could be addressed in collective bargaining.

AHEIA Evidence

[130] AHEIA lead evidence from 5 witnesses, with their witness evidence summarised below.

Sue Thomas 142

[131] Ms Thomas is the Director, Human Resources Division at UW. With regard to the NTEU’s claims for policy familiarisation and professional and discipline currency Ms Thomas deposed that clause 31.2 of the University of Wollongong (Academic Staff) Enterprise Agreement 2015 143 (UW Agreement) provided for two hours mandatory paid induction for casual academic employees, with the induction making staff aware of the UW Agreement, policies, procedures and other relevant university documents and legislation. Ms Thomas further deposed that in addition each of UW’s faculties provided their casual academic staff with more localised and specific inductions of between two and three hours in duration, with staff paid to attend these inductions. In her witness statement, Ms Thomas deposed that:

•  she disagreed with the NTEU’s contention that the amount of time required to become familiar with university policies would rarely be less than 10 hours;

•  UW paid for up to 5 hours induction which was more than sufficient time for casual academic staff to achieve a suitable level of knowledge and familiarisation with those university policies of relevance to them; and

•  were the NTEU’s claim to be granted she could foresee difficulties for UW, e.g. there would be a real cost for UW.

[132] With regard to the NTEU’s claim that employers be obliged to take active steps to prevent the working of uncompensated additional hours, Ms Thomas deposed that while UW was sympathetic to staff required to work in excess of the ordinary hours of work or outside the ordinary spread of hours, the clause proposed by the NTEU would be difficult to implement due to factors outside UW’s control, e.g. where there was an unforeseen influx of student enquiries at a student reception desk immediately before closing time. Ms Thomas also disputed aspects of Ms Ford’ and Mr Holloway’s witness statements.

[133] Beyond the above, Ms Thomas deposed that:

•  it was not correct that staff were either required to lie about the hours they worked or that they forfeited flexitime in excess of 10 hours;

•  staff were able to accrue up to 66 hours of flexitime, comprised of the 10 hour carryover balance and an additional 56 hours made up of 14 hours for the current timekeeping period and up to 3 months in advance;

•  overtime was applied for, approved and processed separately from UW’s timekeeping system;

•  there may have been instances where Ms Ford did lose some of her accrued flexitime because it exceeded the allowable carryover balance; and

•  Ms Ford’s supervisor had informed her that whilst Ms Ford was requested to work longer hours in some instances, often she did so of her own accord and that Ms Ford’s requests to utilise her flex accruals were approved however there were instances where they were not approved due to operational requirements.

[134] Key aspects of Ms Thomas’ oral evidence were that: 144

•  UW usually ran two semesters (or teaching sessions) each year with some faculties having a summer teaching session as well and that only those casual academic employees employed for a second teaching session were required to undertake the online induction program;

•  she believed the induction program covered the policy obligations of sessional staff in enough detail to enable them to perform their duties adequately, with policies to do with teaching and assessment covered in the local faculty induction together with UW policies regarding student conduct and student academic misconduct;

•  of UW’s 57 policies there were quite a lot of policies that affected the work of casual academic staff beyond those that were addressed in either the online induction program or faculty induction and that a number of those policies would not need to be accessed by sessional academic until a particular circumstance arose;

•  in respect of UW’s policy regarding plagiarism, she expected that a sessional academic would seek assistance from a more senior academic to deal with such an issue;

•  casual academic staff were required to comply with UW policies from the commencement of their employment;

•  UW’s payroll system enabled casual academic staff to make a specific request in relation to payment for their induction, reiterating that the NTEU’s claim if successful would require UW to reprogram its payroll system such that the payment could be separately accounted for;

•  UW did not have a system to track the actual hours worked by academic staff, nor were academics required to record their hours of work;

•  she was not aware that academics were directed as to how many hours they were to spend on a particular task or instructed to cease working when they had worked a particular number of hours in a week, a month or a year, nor did their contract of employment place a limit on how many hours they could be required to work;

•  when asked about Professor Strachan’s 2011 research in which 43 per cent of full-time general staff reported that they worked more than 40 hours per week and 9 per cent reported that they worked more than 50 hours per week, she did not consider that to be typical of UW general staff;

•  she did not have any better data than that relied upon by Professor Strachan in respect of the actual hours worked by general staff at UW ;

•  UW’s flexitime recording system did not track how many hours had been forfeited by general staff and did not flag to the Human Resources area that there was a problem that may be worth addressing;

•  she did not think that UW would have difficulty taking reasonable measures to avoid additional work being performed without it being compensated by way of payment or TOIL provided that the work was required to be done;

•  with regard to that aspect of UW’s Weather Map 145 which showed that only 50 per cent of staff agreed with the proposition that their workload was manageable, UW was working through that issue with staff and the issue may reflect things outside the University’s control;

•  she could not recall any formal disputes having arisen under the agreements covering general or academic staff with regard to workload allocation; and

•  to the best of her knowledge no staff other than Ms Ford had made complaints or claims in respect of lost flexitime.

Professor Andrew Vann 146

[135] Professor Vann is the Vice-Chancellor and President of Charles Sturt University (CSU) and is also the President of AHEIA. Professor Vann deposed in his witness statement that one of the great benefits of an academic role was that it was an autonomous professional role, adding that he saw the NTEU’s submissions as antithetical to this important ideal. With regard to the NTEU’s academic hours of work claim, Professor Vann stated in his witness statement that no university denied the need to manage staff workloads, particularly for high achieving staff some of whom may need to be protected from themselves.

[136] As to the NTEU’s discipline currency claim, Professor Vann deposed that the remuneration arrangements for sessional academic staff already comprehended maintenance of discipline currency, highlighting that rates for lecturing vary from one hour of delivery and two hours associated working time to a maximum of one hour delivery and four hours associated working time.

[137] Finally, with regard to the NTEU’s claim for academics (other than casual/sessional academic staff) to have access to reclassification if they did not have access to promotion, Professor Vann deposed that the academic promotions process sat completely outside the industrial framework and was designed to reward individual effort and achievement by academic staff members who had successfully developed their capabilities and careers. This, Professor Vann added, was very different from a non-academic reclassification process where the inherent requirements of the job had changed such that it required review. Further, the ability for academic staff to apply to an external industrial tribunal would completely undermine the academic promotion system founded on peer review and would likely lead to universities requiring staff to apply for more senior positions rather than allowing them to apply for promotion to a position.

[138] Key aspects of Professor Vann’s oral evidence were that: 147

•  with regard to AHEIA’s claim to introduce a new category for the use of fixed term contracts, student enrolments tended to be variable with the question of who accepted and who actually enrolled becoming much more uncertain, particularly as a result of the demand driven system;

•  whether the average teaching workload for academic staff had increased over a past 20 years would probably depend on the discipline to some extent;

•  the number of casual academic staff appears to have doubled over the past 20 years;

•  CSU spends a lot of time training its managers to understand the provisions of its enterprise agreement and to attend appropriately to matters such as workload allocation and also pursued a number of strategies to ensure that general staff understood their entitlements and that they could take appropriate action if they had issues with their workload;

•  casual academic staff were not actually paid for the time that they worked but rather were paid for an assumption about how much time they were likely to work, adding that CSU did not have any data about the actual hours worked by casual academic staff;

•  casual academic staff were expected to have discipline currency, observing that while some disciplines moved very quickly others did not and that discipline currency did not necessarily evaporate over a space of about 12 weeks;

•  casual academic rates of pay were by and large drawn on an average;

•  the flexibility to do their work when it suited them, either on or off campus, was an important part of the value of academic work;

•  it was not usual practice for CSU to direct its professional or academic staff that they were required to use mobile technologies to work from home, adding that generally speaking there was not an expectation that everybody in the university would be contactable all the time;

•  CSU’s practice was that if it expected people to be available for contact outside of work, they would have a work mobile phone which would have associated data coverage;

•  CSU did not collect any data about the actual hours worked by academic staff, including part-time academic staff;

•  in respect of part-time academic staff, whatever the fraction of employment is the workload that was assigned to the academic would be appropriate to that fraction noting that the Charles Sturt University Enterprise Agreement 2013-2016 148 provided some flexibility around the portions of time devoted to particular activities by the staff member;

•  teaching and related duties for academic staff were allocated according to hours which were based on an estimated average time for that particular bundle of duties, acknowledging that the time taken to perform those duties was variable with what was a fair figure affected by discipline factors;

•  in respect of research, the workload allocation model operating at CSU provided for a percentage of the academic’s annual hours to be allocated as available for research activity, adding that the academic staff contract of employment at CSU did not specify working hours or put any upper limit on the amount of work that an academic could be required to do and that academic staff that took on extra workload did not normally receive any additional payments;

•  over the past 20 years in respect of academic staff there had been an increase in the requirements for reporting and accountability measures, an increase in research expectations, an increase in the formal requirement to articulate learning outcomes and curriculum objectives and an expansion of the use of annual performance reviews;

•  consistent with CSU’s Academic Staff Promotion Policy 149 externally funded academic staff at CSU would not normally move through the career path on the basis of promotion unless the budget afforded the possibility to pay for their promotion, adding that he was pretty comfortable that the overall system was fair and afforded opportunities for staff to be appropriately paid given the opportunity that such academics had to negotiate their contracts;

•  CSU did not direct or require any academics to work from home;

•  academics at CSU would usually have access to computers on campus;

•  while there had been one off exercises with some information regarding academic hours of work were gathered through survey, CSU has not sought to collect information about academic hours of work as a management tool as academics hated it because they felt they were being micromanaged; and

•  unlike the time allocated to face-to-face teaching, specific time was not allocated to research activities and outputs because research was a lot more unpredictable.

Professor Owen Coaldrake AO 150

[139] Professor Coaldrake is the Vice-Chancellor of Queensland University of Technology (QUT).. In his witness statement Professor Coaldrake stated that a number of emerging trends presented challenges to the higher education sector, including advances in technology, reduced public funding, increased competition and amplified student expectations, adding that these trends were driving change in the way academic work was done now and would be conducted in the future. More specifically, Professor Coaldrake deposed that:

•  his observation was that the hours per week worked by academics would have likely increased over the past 20 years;

•  nevertheless his view was that a competent academic should be able to complete their work within an indicative average of 5 days per week across 46 weeks per year as set out in QUT’s Framework for Academic Workload Allocation;

•  academics view their work as a vocation rather than a mere job and are driven by their desire to advance knowledge in their chosen field;

•  that ideal was reinforced by non-assigned hours, adding that assigned hours would cut across academic freedom;

•  the non-regulation of working hours for academics was a feature of academic terms and conditions internationally;

•  the way in which academics at QUT moved from one classification level to another was through the promotion process;

•  the position classification standards in the Queensland University of Technology Enterprise Agreement (Academic Staff) 2014-2017 151 were not used to assess applicants for promotion, adding that they played no role in this;

•  as with the introduction of regulation of academic hours in an industrial award, a system whereby an industrial tribunal could determine the classification of an academic staff member would put Australia significantly out of step with its international peers; and

•  if a university abandoned its promotion process, it would lose talented staff to other institutions.

[140] In his oral evidence 152 Professor Coaldrake attested that QUT had a policy of conducting rolling reviews of organisational areas which sometimes considered things like the school or organisational structure within a faculty and which at a broad level could have consequences for workforce requirements within the faculty. Professor Coaldrake also agreed that academic workload requirements set by the employer needed to be kept within reasonable bounds, adding that academics had an enormous privilege in that they did not have assigned hours, with flexibility as to when they worked being one aspect of that privilege.

[141] Beyond that, key aspects of Professor Coaldrake’s oral evidence were that academic staff at QUT did not have anything in their contracts about hours of work (though sessional academic staff did), the best way for a university to decide the appropriate classification of an employee was through the promotion system and it would not be fair to academic staff were a university to abandon its promotion system.

Professor Marie Herberstein 153

[142] Professor Herberstein is Chair of the Academic Senate of Macquarie University, a role she took up in May 2016. Professor Herberstein has been employed as an ongoing academic staff member at Macquarie University since 2001 and over the period 2012 to 2015 was Head of Department, Biological Sciences and held the position of Deputy Dean, Faculty of Science and Engineering from June 2015 until May 2016.

[143] Professor Herberstein deposed in her witness statement that as Head of Department she had 40 continuing academic staff reporting to her and was responsible for developing an annual written workload allocation for each of the staff members in consultation with them. Professor Herberstein further deposed that in her experience the advantage of academic life was the incredible freedom and control that academic staff had over their work, adding that academic staff had complete control over how and when they performed their workload allocation (subject to teaching contact hours). Professor Herberstein pointed out that the Macquarie Agreement specified the total number of hours of work for academic staff per year and that the Faculty needed to design and implement a workload model equitably across the Faculty.

[144] Professor Herberstein added that the Faculty of Science and Engineering had implemented a new workload model in 2016 that incorporated teaching, service and research tasks in a single model and which allowed a degree of flexibility to balance the workload across those areas, with the balancing of the workload done with the Head of Department notwithstanding that the Head had to ensure the Department could deliver its core business.

[145] Professor Herberstein further deposed that it was possible to achieve minimum expectations in regard to teaching allocation, research/scholarship and contributions to the University and community within the 1575 working hours per year for a full-time staff member, with this including the work that would enable the academic to be promoted from one academic level to the next. Professor Herberstein did acknowledge however that being able to achieve consistent research outputs while teaching did require strategic management of research and teaching and that being able to complete work in an average of 35 hours per week required good time management.

[146] Professor Herberstein also deposed that as a manager she would never explicitly ask an academic staff member to work more than 35 hours a week but rather she would help them manage their workload. Professor Herberstein further stated that she would not direct an academic not to undertake extra work that they chose to do even though it might result in them working hours greater than 35 per week as it is their freedom to do so.

[147] Finally, Professor Herberstein deposed that it was often the choices made by an academic that resulted in a “blowout” 154 of hours, adding that in her experience this was in part due to a reluctance by academics to accept that the way they were teaching needed to change in response to changes in the environment such as increased student numbers and the reluctance of academics and departments to consolidate curriculum where units had been added. Professor Herberstein stated that she was very concerned for her colleagues who experience working long hours and the impact that this might have on them, adding that it was possible to address this if staff were prepared to change their behaviour through more prudent and strategic teaching, research and time management.

[148] In her oral evidence 155 Professor Herberstein reiterated that she would not issue a direction to a colleague that work not be done and outlined some of the steps she put in place to assist those of her colleagues who reported to her and who were working long hours. They included putting in place additional tutors and support to help manage a unit where enrolments had unexpectedly doubled and encouraging another staff member to revise a unit over a longer period than just one semester.

Diana Chegwidden 156

[149] Ms Chegwidden is the Director, Human Resources at ACU, a role she has held since August 2008. Ms Chegwidden has over 25 years’ experience in human resources with ACU.

[150] In her witness statement Ms Chegwidden deposed that clause 6.7.2 of the Australian Catholic University Staff Enterprise Agreement 2013-2017 (ACU Agreement) provided for fixed term employment in the specific circumstances set out in the clause, with most of those circumstances reflecting the provisions of the Awards. Ms Chegwidden further deposed that the ACU Agreement included some additional circumstances in which fixed term employment could be used by ACU, i.e. in respect of a new organisational area about which there was uncertainty as to whether it would continue or to perform specific commencement activities and where a decision has been made to disband an organisational unit within 3 years. These additional circumstances were, according to Ms Chegwidden, first introduced in the predecessor agreement to the ACU Agreement. Ms Chegwidden stated that in the absence of being able to offer a fixed term contract in respect of new organisational unit that the ACU would be likely to engage staff as casual academic or general staff or explore alternatives such as an employment agency, adding that ACU had utilised the provision on 65 occasions (12 relating to academic staff and the remainder relating to general staff). In relation to discontinued work, Ms Chegwidden deposed that the ACU required this flexibility because it only required the employee’s services for a limited period of time.

[151] In her oral evidence Ms Chegwidden attested among other things that: 157

•  the circumstances covered by AHEIA’s additional clause regarding fixed-term employment could arguably be covered by the existing Award provisions;

•  the proposed provision was included in the ACU Agreement to provide greater clarity, later adding that in the absence of such a clause she anticipated that there would be a greater number of disputes that affected the ACU;

•  a university work activity was being introduced or discontinued in just about every department of the university all the time;

•  with regard to workload allocation at the ACU, the research workload component was determined on past performance, opportunity and where an individual’s research plane was going in relation to the trajectory around research quality, with other academic activities subsequently distributed to get to the individual’s annual 1595 hours of work specified in the ACU Agreement;

•  it was fair to say that in respect of additional hours that a general staff employee should not perform the work unless he or she was compensated by way of time off in lieu, flextime or paid overtime; and

•  it would be good management policy for a university to have a policy which provided that general staff employees needed to advise their supervisor if they were working outside the span of hours, adding that this issue was covered in the ACU Agreement.

6. COVERAGE

[152] AHEIA proposed the deletion of clause 4.3 of the Academic Staff Award on the basis that it is no longer applicable. Clause 4.3 provides as follows:

“4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.”

[153] The Exposure Draft of the Higher Education Industry – Academic Staff – Award 2015 issued by the Commission on 18 December 2015 included the following coverage clause:

3. Coverage

. . .

3.3 This award does not cover:

(a) employees excluded from award coverage by the Fair Work Act 2009 (Cth) (the Act);

(b) employees who are covered by a modern enterprise award or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees; or

(c) employees who are covered by a State reference public sector modern award or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

[154] In its submissions of 15 April 2016 regarding the abovementioned exposure draft AHEIA made no mention of the coverage issue and has not subsequently pressed its claim. 158 Against that background, we do not need to determine this issue.

7. FIXED-TERM EMPLOYMENT CATEGORIES

[155] AHEIA seeks the inclusion in the Awards of additional circumstances in which a person can be employed as a fixed-term employee, i.e. where an area is under review. 159 Specifically, AHEIA seeks the insertion of the following clause at 11.3 of the Academic Staff Award and clause 10.3 of the General Staff Award (the clause if inserted into the Awards would be clause 11.3(g) and 10.3(f) in the respective Awards):

“Reorganisation

Where uncertainty exists as to future workforce requirements arising from a decision to undertake major organisational change or a formal review of the work area, or where work activity is being introduced or discontinued, or to cater for a sudden and unanticipated increase or decrease in student enrolments.” 160

[156] AHEIA submitted that universities had a clear operational need to be able to make fixed term appointments in the circumstances proposed in its variation, adding that the Awards in their current form did not permit such appointments. By way of background, AHEIA submitted that the fixed term provisions in the Awards had their origins in the Full Bench Decision which resulted in the making of the Higher Education Contract of Employment Award 1998 (1998 Award). AHEIA contended that since the 1998 Award had been made it had become apparent that the categories of fixed term employment permitted by the 1998 Award were inadequate, adding that this had been recognised in enterprise bargaining given that the great majority of current enterprise agreements permitted fixed term appointments in the circumstances contemplated by the proposed provision. 161

[157] AHEIA’s claim was supported by the Go8. 162

[158] The NTEU on the other hand submitted that the claim should be rejected primarily on the basis that the proposed clause would widen the scope of the circumstances in which fixed term employment could be used so as to make the Award provisions regulating the use of fixed term employment largely nugatory. The NTEU also contended that the Commission should draw no conclusions from the terms of enterprise agreements, noting that in very few cases had more than one of the criteria proposed by AHEIA been agreed to in a single agreement and, where they had, all were qualified by varying degrees of protection against misuse. 163 The NTEU in its submissions also highlighted what it considered to be the lack of clarity in the drafting of the proposed clause.164

Consideration of the issues

[159] Clause 11.3 of the Academic Staff Award which deals with fixed-term employment provides as follows:

“11.3 Fixed-term employment means employment for a specified term or ascertainable period, for which the instrument of engagement will specify the starting and finishing dates of that employment (or instead of a finishing date, will specify the circumstance(s) or contingency relating to a specific task or project, upon the occurrence of which the term of the employment will expire).

Fixed-term employment may contain a reasonable probationary period that is directly related to the nature of the work to be carried out under the contract. As a condition incidental to employment on probation, an employee must be advised of, and given an opportunity to make response to, any adverse material about the employee which the employer intends to take into account in a decision to terminate the employment upon or before the expiry of the period of probation.

Any second or subsequent fixed-term contract, with the same employer, must not contain a probationary period.

The use of fixed-term employment must be limited to the employment of an employee engaged on work activity that comes within the description of one or more of the following circumstances:

(a) Specific task or project means a definable work activity which has a starting time and which is expected to be completed within an anticipated timeframe. Without limiting the generality of that circumstance, it will also include a period of employment provided for from identifiable funding external to the employer, not being funding that is part of an operating grant from government or funding comprised of payments of fees made by or on behalf of students.

(b) Research means work activity by a person engaged on research only functions for a contract period not exceeding five years.

(c) Replacement employee means an employee:

(i) undertaking work activity replacing a full-time or part-time employee for a definable period for which the replaced employee is either on authorised leave of absence or is temporarily seconded away from their usual work area; or

(ii) performing the duties of:

•  a vacant position for which the employer has made a definite decision to fill and has commenced recruitment action; or

•  a position the normal occupant of which is performing higher duties pending the outcome of recruitment action initiated by the employer and in progress for that vacant higher duties position

until a full-time or part-time employee is engaged for the vacant position or vacant higher duties position as applicable.

(d) Recent professional practice required

Where a curriculum in professional or vocational education requires that work be undertaken by a person to be engaged who has recent practical or commercial experience, such a person may be engaged for a fixed period not exceeding two years.

(e) Pre-retirement contract

Where a full-time or a part-time employee declares that it is their intention to retire, a fixed-term contract expiring on or around the relevant retirement date may be adopted as the appropriate type of employment for a period of up to five years.

(f) Fixed-term contract employment subsidiary to studentship

Where a person is enrolled as a student, employment under a fixed-term contract may be adopted as the appropriate type of employment for work activity, not within the description of another circumstance in the preceding paragraphs of this clause, that is work within the student’s academic unit or an associated research unit of that academic unit and is work generally related to a degree course that the student is undertaking within the academic unit, provided that:

(i) such fixed-term contract employment will be for a period that does not extend beyond, or that expires at the end of, the academic year in which the person ceases to be a student, including any period that the person is not enrolled as a student but is still completing postgraduate work or is awaiting results; and

(ii) an offer of fixed-term employment under this paragraph must not be made on the condition that the person offered the employment undertake the studentship.”

[160] The equivalent provision in the General Staff Award (clause 10.3) is in similar terms.

[161] In her oral evidence Ms Chegwidden acknowledged that the circumstances covered by AHEIA’s additional clause regarding fixed-term employment could arguably be covered by the existing Award provisions 165 and that a university work activity was being introduced or discontinued in just about every department of the university all the time.166 Ms Chegwidden further attested that the proposed provision had been included in the ACU Agreement to provide greater clarity167, later adding that in the absence of such a clause she anticipated that there would be a greater number of disputes that affected the ACU.168

[162] AHEIA’s case relied almost exclusively on Ms Chegwidden’s evidence. However, AHEIA led no evidence indicating that the absence of its proposed provision from the Awards had caused operational difficulties for universities or had been the cause of disputation. As noted above, AHEIA in its submissions contended that the great majority of current enterprise agreements permitted fixed term appointments in the circumstances contemplated by the proposed provision. 169 An examination of the extracts of enterprise agreements attached to AHEIA’s submissions of 18 March 2016170 indicates that a majority or enterprise agreements provided for the use of fixed-term employment in circumstances where a new organisation unit is created or an existing organisational unit is to be disestablished. However, the duration of such employment arrangements varies from between 12 months to 3 years. While some enterprise agreements provide for the use of fixed-term employment in circumstances of an unanticipated increase and/or decrease in student numbers/enrolments, the prevalence of such provisions is far less common than in respect of organisational change. As to duration in such circumstances, most agreements provide for a maximum period of 3 years.

[163] Against that background, we are not satisfied that AHEIA has made out a case for including such a provision in the Awards. More specifically, we are not satisfied that the inclusion of the provision proposed by AHEIA is necessary to achieve the modern awards objective. Further, we observe as a general premise that to the extent that particular issues arise regarding the use of fixed-term employment by universities such issues are in our view more appropriately addressed through enterprise bargaining and/or the Awards’ dispute resolution procedures. We note that this appears to be the case in practice. The prevalence of provisions in enterprise agreements dealing with aspects of the circumstances reflected in AHEIA’s proposed variation undermines the NTEU’s contention granting AHIEA’s claim would make the Award provisions regulating the use of fixed term employment largely nugatory.

[164] For all the above reasons, we decline to vary the Awards as proposed by AHEIA.

8. FIXED-TERM EXPIRY SEVERANCE PAY

[165] Both AHEIA 171 and the Go8172 seek the deletion from the Awards of provisions providing for the payment of severance pay upon the expiry of fixed-term employment.

[166] Clause 12.4 of the Academic Staff Award and clause 11.4 of the General Staff Award are in almost identical terms, with clause 12.4 of the Academic Staff Award providing as follows:

“12.4 Severance pay

(a) A fixed-term employee whose contract of employment is not renewed in circumstances where the employee seeks to continue the employment will be entitled to a severance payment or retrenchment benefit payment howsoever called in accordance with the NES as it would apply to a full-time employee engaged in an equivalent classification in the following circumstances:

(i) the employee is employed on a second or subsequent fixed term contract to do work required for the circumstances described in clause 11.3(a) or (b) and the same or substantially similar duties are no longer required by the employer; or

(ii) the employee is employed on a fixed term contract to do work required for the circumstances described in clause 11.3(a) or (b) and the duties of the kind performed in relation to work continue to be required but another person has been appointed, or is to be appointed, to the same or substantially similar duties.

(b) Where an employer advises an academic in writing that further employment may be offered within six weeks of the expiry of a period of fixed-term employment, then:

(i) the employer may defer payment of severance benefits for a maximum period of four weeks from the expiry of the period of fixed-term employment.

(c) An employer, in a particular case, may make application to the Fair Work Commission to have the general severance payment or retrenchment benefit payment prescription varied if the employer obtains acceptable alternative employment for the employee.”

[167] The Go8 submitted that the clauses were inconsistent with the NES and did not constitute a fair and relevant minimum safety net of terms and conditions in accordance with the modern awards objective. More specifically, the Go8 submitted that:

•  the entitlement to severance pay upon expiration of certain fixed-term contracts was originally included in pre-reform awards at a time when there was no federal legislative redundancy scheme or termination entitlements;

•  the Awards adopted a position which was inconsistent with the NES and operated to exclude at least part of the NES, noting that provisions which operated to exclude the NES or part of it were void and of no effect under ss.55 and 56 the Act;

•  there was a public interest in ensuring that the Awards provided a clear safety net, adding that the current clauses did not do so;

•  the Awards already significantly limited when fixed-term contracts could be used;

•  if it were accepted that contracts meeting the requirements could be offered on a fixed-term basis as provided for in the Awards, cessation of employment due to the expiration of that fixed-term/effluxion of time should not attract termination/severance payments;

•  there were no similar provisions in other modern awards; and

•  any such benefits were more properly matters for enterprise bargaining or negotiation as part of the particular contract. 173

[168] AHEIA’s submissions were in similar terms to those of the Go8. 174

[169] The NTEU pointed out that since the advent of the 1998 Award the award safety net for nearly all employees in this industry had included a provision that certain limited classes of employees, whose employment was liable to continue from contract to contract, were entitled to a severance payment in circumstances where the employer decided not to continue their employment after the expiry of fixed-term contract. 175 The NTEU also contended that the Go8’s and AHEIA’s construction of s.55(1) of the Act should be rejected on the basis that it misunderstood the purpose of the NES and, more importantly, misunderstood the purpose of s.55(1) of the Act which was to safeguard the conditions provided by the NES rather than lock types of employees to minimum standards.176 The NTEU acknowledged that the NES did not provide any entitlement to redundancy payment for fixed-term contract employees but added that where an award or agreement provided for an entitlement to redundancy pay for fixed term contract employees then that was an entitlement that built on what was provided by the NES and would be correctly characterised as supplementary for the purpose of s.55 of the Act.177

[170] The NTEU further submitted that there was authority for the proposition that the Commission was empowered to create an award that provided a scheme for redundancy payment that supplemented, or sat alongside, an industry specific redundancy scheme drawing on item 558 of the Explanatory Memorandum to the Fair Work Bill 2008 which stated:

“558. In addition to industry specific schemes dealt with by clause 141, a modern award may also deal with redundancy by including terms that supplement the NES (see paragraph 55(4)(b)).” 178

[171] The NTEU also highlighted that the Go8’s and AHEIA’s construction of s.55 of the Act would equally affect the substance of enterprise agreements, contending that on their reading of the Act it would not be possible for an agreement or award to include either redundancy pay or notice for a casual employee because s.123 of the Act provided that the NES division that contained those entitlements did not apply to casual employees. The NTEU submitted that an interpretation that resulted in such an outcome was absurd and should be rejected.

Consideration of the issues

[172] As noted above, the fixed-term expiry severance pay provisions in the Awards had their origins in the AIRC Full Bench decision in National Tertiary Education Industry Union v Australian Higher Education Industry Association 179 which resulted in the making of the 1998 Award. In its decision, in respect of the fixed-term expiry severance pay issue the Full Bench stated as follows:

“4.6.3 Severance:

A provision for severance pay is an allowable matter under paragraph 89A(2)(m). There are differing award prescriptions for retrenchment benefits and other forms of severance pay for continuing employees across higher education employment. The principal provisions appear to be clause 6 of the HEGSS Award and clause 21(q) of the Universities and Post Compulsory Academic Conditions Award 1995. We have included in our award in clause 4.1.3 access to those or the relevant prescriptions. The entitlement to severance payments is generally worded out of deference to the range of award prescriptions at State level that apply. The wording is intended to cover the payment to fixed-term employees of the severance or retrenchment benefit howsoever called equivalent to that payable to a continuing employee. We have restricted the entitlement to employees engaged on research, or specific task or project activity. To be eligible, such an employee must be disappointed by failure to gain renewal of his or her contract of employment in circumstances where the work that has been required under serial contracts is no longer required, or where the work continues to be required but another person is to be appointed to perform substantially similar duties. We consider those circumstances to be sufficiently akin to redundancy to warrant a severance payment.” (Underlining added)

[173] Other than in the last sentence of the above extract the Full Bench provided no explanation as to the rationale for the inclusion of the fixed-term expiry severance pay provision in the 1998 Award.

[174] Both the Go8 180 and AHIEA181 sought the removal of the provision from the Awards as part of the award modernisation process. In making the Awards, the Full Bench noted that during the second round of consultations on the exposure drafts of the awards that there was significant comment on a number of issues including the rules surrounding fixed-term employment. The Full Bench went on to state as follows:

“[173] Of particular concern to employers was the inclusion in the exposure draft of the terms of the Higher Education Contract of Employment Award 1998 (the HECE award). This was an award made by a Full Bench following extensive evidence and submissions. In resolving the merits of the argument, certain conditions were placed on the extensive use of fixed term contracts. These conditions were peculiar to the universities and related to their employment practices. Nothing has been advanced which persuades us to revisit the decision of the Full Bench or to call its findings into question.

[174] With one exception, we have decided to maintain the approach in the exposure drafts. The exception is that we have limited the operation of the clause to the universities covered by the original HECE award. Other universities covered by the modern awards were not before the Full Bench. We are not prepared to assume that their employment practices and procedures match those of the universities against whom the award was originally made.” 182(Endnotes not included)

[175] The issue was not pursued as part of the Transitional Review of Modern Awards.

[176] We do not accept the Go8’s contention that the provision operates to exclude part of the NES. While we do not disagree that the provision deviates from the NES, in our view a more appropriate characterisation of the provision is that it supplements the NES as permitted by s.55(4)(b) of the Act.

[177] Data drawn from the Commonwealth Department of Education and Training suggests that fixed-term employment is significant in this industry. The data is set out in the following table which has been downloaded from the Department’s website 183. However, we note that it is likely that the number of Limited term employees shown in the table below also includes casual employees. Other data drawn from the Department’s website indicates that in 2017 there were 22,194 actual FTE casuals employed in the industry184. Excluding casuals from the Limited term category below points to there being in the order of 25,000 fixed-term employees working in the industry in 2017, which equates to around 25 per cent of the total number of employees in the industry.

(a) Data for 2009 do not include the Batchelor Institute of Indigenous Tertiary Education.

(b) Numbers include “No information”.

[178] By way of background, “Limited Term” is defined as “The effective substantive appointment or current duties are for a fixed period of time” while “Tenurable Term” is defined as “The effective substantive appointment or current duties will normally last until retirement age. Staff with an academic classification and also staff with a non-academic classification who are employed on a permanent basis may be classified as having a tenurable term.” 185

[179] The above analysis supports a finding that on any measure the level of fixed-term employment in this industry is significant. When the Awards’ fixed-term expiry severance pay provisions are viewed through that prism we consider that they reflect the particular employment characteristics of this industry. Also relevant in our view is the longstanding nature of the provisions and that they were determined by the AIRC as opposed to having been inserted by consent. Taken together, those considerations support the retention of the existing fixed-term expiry severance pay provisions in the Awards on the basis they are an integral part of the safety net.

[180] For all the above reasons we decline to vary the Awards as proposed by AHEIA.

9. INDUSTRY SPECIFIC REDUNDANCY PROVISIONS (ACADEMIC STAFF AWARD)

[181] This issue was the subject of differing claims by AHEIA, the Go8 and the NTEU. We set out each of those claims below.

AHEIA claim 186

[182] AHEIA seeks the deletion of clause 17 – Industry specific redundancy provisions of the Academic Staff Award which currently provides as follows:

“17. Industry specific redundancy provisions

17.1 This clause applies to any institution which:

(a) was bound by the Universities and Post Compulsory Academic Conditions Award 1999 [AP801516] at 12 September 2008; and

(b) has decided to terminate the employment of one or more academic employees for reasons of an economic, technological, structural or similar nature, including:

(i) a decrease in student demand or enrolments in any academic course or subject or combination or mix of courses or subjects conducted on one or more campuses;

(ii) a decision to cease offering or to vary the academic context of any course or subject or combination or mix of courses or subjects conducted on one or more campuses;

(iii) financial exigency within an organisational unit or cost centre; or

(iv) changes in technology or work methods.

17.2 All payments under this clause will be calculated on the employee’s salary at the date of cessation of employment and the benefits in this clause are instead of any other notice period, access to a scheme of redeployment or other redundancy benefit.

17.3 The benefits of this clause do not constitute a severance payment or retrenchment benefit payment for the purposes of clause 12.4.

17.4 If an employee is ill during the period of notice and provides the employer with a medical certificate to this effect, stating the period of illness, the notice prescribed by this clause will be extended for that period. However, the extension will be limited to the extent of an employees accumulated sick leave entitlement and will be available in accordance with the terms otherwise applicable to the utilisation of sick leave.

17.5 Employees accepting redundancy

Where an employee volunteers to accept termination of employment by reason of redundancy and the employee’s employment is terminated by the employer accordingly, the following conditions will apply:

(a) the employee will be notified of the date on which their employment will terminate;

(b) this date will be no less than six months from the date of notification;

(c) the employer may elect to pay to the employee an amount equal to six months pay instead of the period of notice;

(d) during the period of notice of termination the employee may request and the employer may agree that the balance of the period be waived, in which case the employee is entitled to payment for the balance of the period or four weeks’ pay, whichever is the lesser;

(e) the employee must be paid a redundancy payment of:

(i) a sum calculated at the rate of two weeks’ salary per completed year of service with the employer, to a maximum entitlement of 52 weeks’ salary; and

(ii) payment on a pro rata basis for long service leave calculated on completed years of service.

17.6 Employees not accepting redundancy

Where an employee is not a volunteer for redundancy and the employer terminates the employment of an employee for reason of redundancy the following benefits will apply:

(a) the greater of the period of notice prescribed by the NES or the contract of employment of the employee; plus

(b) notice according to the following scale:

Age	Notice
Below 40	6 months
40	7 months
41	8 months
42	9 months
43	10 months
44	11 months
45 and over	12 months

(c) on retrenchment, an employee must, in addition, receive the amount of severance pay set out in the NES in respect of a continuous period of service.” (Underlining added)

[183] AHIEA submitted, in support of its claim, that s.141(5) of the Act provided that “The FWC may vary a modern award under Division 4 or 5 by omitting an industry-specific redundancy scheme from the award.” AHEIA also highlighted that the clause only applied to those institutions that were bound by the Universities and Post Compulsory Academic Conditions Award 1999 187 (1999 Award) at 12 September 2008, meaning that the provision did not apply to institutions such as the University of Notre Dame, Bond University and Batchelor Institute of Indigenous Education.

[184] More particularly, AHEIA submitted that clause 17 should be deleted for the following reasons: 188

•  it was possible that other institutions would in future be covered by the Academic Staff Award and as such they would not be bound by the requirements of clause 17;

•  the provision imposed a significant regulatory burden and cost on those universities to whom it applied, adding that the application of such a regulatory burden on some employers in an industry and not on others was inconsistent with the requirement that a modern award provide a fair safety net; and

•  the notice period provided for in clause 17 was significantly out of step with general standards that applied in other modern awards.

[185] The Go8 supported the variation sought by AHEIA.

[186] The NTEU submitted that the variation should be rejected as it would result in a significant change to the Academic Staff Award and no probative evidence had been led to support the assertion that the provision imposed any significant regulatory or cost burden on those employers to whom it applied or that any unfairness to those employers resulted from the operation of the provision.

Go8 claim 189

[187] The Go8 proposes that clause 17.6 of the Academic Staff Award be varied as followed (changes highlighted):

17.6 Employees not accepting redundancy

Where an employee is not a volunteer for redundancy and the employer terminates the employment of an employee for reason of redundancy the following benefits will apply:

(a) the greater of the period of notice prescribed by the NES or the contract of employment of the employee; plus

(b) notice according to the following scale:

(a) notice, or pay instead of notice, in accordance with clause 15(2)(b); and

(b) on retrenchment, an employee must, in addition, receive the amount of severance pay set out in the NES in respect of a continuous period of service.”

[188] The Go8 in its submissions outlined the history of clause 17.6 of the Academic Staff Award stating that the provision dates back to 1999 and the 1999 Award which provided redundancy entitlements that differed based on age. The Go8 noted that at the time there was no Commonwealth age discrimination legislation or any legislated entitlement to redundancy pay. The Go8 also stated that the provision was included in the Academic Staff Award as part of the Award modernisation process in 2010, adding that the provisions were not originally included in the exposure draft of the Academic Staff Award and therefore were not the subject of detailed submissions by the parties.

[189] More specifically, the Go8 submitted that the proposed variation was sought first on the basis that clause 17.6 discriminated on the basis of age and therefore was of no effect as it was a discriminatory term pursuant to s.153 of the Act and second the clause did not constitute a “fair and relevant minimum safety net of terms and conditions” in accordance with the modern awards objective. 190

[190] In its oral submissions, the Go8 indicated that an alternative approach should the Commission consider it necessary would be to replace the Academic Staff Award’s existing age-based scale with a service-based scale. 191 However, the Go8 emphasised that its primary position remained that the period of notice should be 6 months. AHIEA indicated in its closing submissions that it supported the Go8’s alternative approach in circumstances where the Full Bench determined to not vary the Academic Staff Award as it had sought or in accordance with the Go8’s primary position.

[191] In opposing the claim, the NTEU highlighted that s.141 of the Act allowed for the inclusion of an industry-specific redundancy scheme in a modern award, with s.12 of the Act defining “industry-specific redundancy scheme” as follows:

“Industry-specific redundancy scheme means redundancy or termination payment arrangements in a modern award that are described in the Award as an industry-specific redundancy scheme.”

[192] The NTEU disputed the Go8’s contention that clause 17.6(b) provided for an entitlement to a notice payment submitting that the provision provided for an entitlement to notice. The NTEU further disputed that clause 17.6(b) was discriminatory and therefore not permitted by virtue of s.153 of the Act, submitting inter alia that a proper construction of the Act revealed that the provision was not discriminatory for the purposes of s.153 because it was an affirmative action measure designed to compensate for the otherwise discriminatory impact of redundancy on academic staff over the age of 40. 192 The NTEU submitted that the Go8’s construction should be rejected having regard to the terms of s.153 and the context of the Act. The NTEU also submitted that if the provision was considered to be discriminatory that, in the alternative, clause 17.6(b) could be varied such that all employees covered by the clause would be entitled to 12 months’ notice.

[193] In its oral submissions in reply, the NTEU contended that in relation to the industry-specific redundancy scheme and the issue of discrimination neither the Go8 nor AHEIA had advanced a merit case in support of their proposed changes to the Academic Staff Award. 193

NTEU claim

[194] The NTEU seeks to replace the word “context” in clause 17.1(b)(ii) of the Academic Staff Award (highlighted in bold above at [182]) with the word “content”. 194

[195] The Go8 submitted that the provision had been in place for in excess of 25 years, had been entrenched in subsequent awards and enterprise agreements, had not given rise to any issues or concerns save for one discrete issue arising under a clause included in an enterprise agreement which in involved significant other issues that were not referred to by the NTEU. The Go8 also contended that the proposed change could hardly be described as necessary. 195 In response to questions from the Bench, the Go8 acknowledged that the proposed change, if made, would not be of any great moment and reiterated its view that there was no reason to make the change and that the Act provided that variation should only be made to the extent necessary to constitute a fair and relevant safety net.

[196] AHEIA acknowledged in its submissions that the draft Academic Staff Award submitted in the proceedings before Commissioner Baird contained the word “content” rather than “context” but made no further submissions in relation to the proposed variation. 196

Consideration of the issues

[197] Section 141 of the Act which deals with industry-specific redundancy schemes is relevant to our consideration of the claims made by AHEIA and the Go8. Specifically, s.141 provides as follows:

“141. Industry-specific redundancy schemes

When can a modern award include an industry-specific redundancy scheme?

(1) A modern award may include an industry-specific redundancy scheme if the scheme was included in the award:

(a) in the award modernisation process; or

(b) in accordance with subsection (2).

Note: An employee to whom an industry-specific redundancy scheme in a modern award applies is not entitled to the redundancy entitlements in Subdivision B of Division 11 of Part 2-2.

Coverage of industry-specific redundancy schemes must not be extended

(2) If:

(a) a modern award includes an industry-specific redundancy scheme; and

(b) the FWC is making or varying another modern award under Division 4 or 5 so that it (rather than the modern award referred to in paragraph (a)) will cover some or all of the classes of employees who are covered by the scheme;

the FWC may include the scheme in that other modern award. However, the FWC must not extend the coverage of the scheme to classes of employees that it did not previously cover.

Varying industry-specific redundancy schemes

(3) The FWC may only vary an industry-specific redundancy scheme in a modern award under Division 4 or 5:

(a) by varying the amount of any redundancy payment in the scheme; or

(b) in accordance with a provision of Subdivision B of Division 5 (which deals with varying modern awards in some limited situations).

(4) In varying an industry-specific redundancy scheme as referred to in subsection (3), the FWC:

(a) must not extend the coverage of the scheme to classes of employees that it did not previously cover; and

(b) must retain the industry-specific character of the scheme.

Omitting industry-specific redundancy schemes

(5) The FWC may vary a modern award under Division 4 or 5 by omitting an industry-specific redundancy scheme from the award.”

[198] With particular regard to industry specific redundancy scheme provided for in clause 17 of the Academic Staff Award, the scheme can be traced back to 1989 when Commissioner Baird considered an application by the Australian Universities Industrial Association to have an award made to provide for redeployment, retirement and redundancy. In that matter the Commissioner identified the issue to be determined as “whether or not a provision for involuntary as well as voluntary redundancy will be included in the award.” 197 Commissioner Baird determined that “provision for the “rare and unusual” case can be made by an involuntary redundancy provision” and directed the parties to confer “to prepare an award redundancy provision which meets the criteria giving emphasis to voluntary provisions but providing for termination where all alternatives have been exhausted.”198

[199] Commissioner Baird handed down a further decision 199 on 17 November 1989 determining those issues which the parties could not reach agreement on in respect of redundancy. That decision noted that the agreement between the parties was extensive and provided for retrenchment (i.e. involuntary redundancy). The Australian Universities Academic Staff (Conditions of Employment) Award 1988200 (1988 Academic Staff Award) and the Australian Post Compulsory and Higher Education Academic Staff (Conditions of Employment) Award 1988201 (1988 Post Compulsory and Higher Education Award) were subsequently varied to provide for retrenchment in circumstances where a surplus employee had not applied for voluntary redundancy202. The minimum period of notice in those circumstances was 7 months, with the period of notice for employees over 40 years of ranging from 8 months for someone over 40 years of age to 13 months for someone over 45 years of age.

[200] In late 1995 Commissioner Smith (as he was at that time) made the Universities and Post Compulsory Academic Conditions Award 1995 203 (1995 Award) to replace the above two awards. That Award provided for periods of further employment (in effect notice) which were one month less than the notice periods mentioned above. In addition, employees were also entitled to the period of notice specified in the Conciliation and Arbitration Act 1904 or their contract of employment, whichever was greater.

[201] Commissioner Lewin reviewed the 1995 Award as part of the award simplification process, with the outcome reflected in the renamed Universities and Post Compulsory Academic Conditions Award 1999 204. In his decision the Commissioner stated the following regarding the Award’s redundancy provisions:

“In this case, whilst the form of the retention provisions contained in subclause (i) [the equivalent provision to clause 17.6 of the Academic Staff Award] is similar to those considered by Commissioner Larkin, the context in which they appear in the award, the specific terms of the award, its history, the employment context and most importantly the text of the award provisions and the obligations they create, in my view, reveal significant differences of substance.

In my view, subclause (i) forms part of a clause which is about termination of employment by reason of redundancy and prescribes benefits accordingly. The overall scheme of clause 21 is to provide two paths to such termination. One is a voluntary path, the other is compulsory. The voluntary path can be traced through subclauses (a), (e), (f) and (g). The compulsory path can be traced through subclauses (a), (e), (h), (i) and (j). The scheme provides two benefit schemes depending upon which path is followed.

In the case of voluntary redundancy:

2 weeks pay per year of service

Pro rata long service leave for each year of service

Six months further employment from the date of acceptance by the university of voluntary redundancy (which may be waived or reduced on the employees request provided that if the request is agreed to the reduced period or a minimum of four weeks pay is payable).

In the case of compulsory redundancy:

12 months employment if over 45 years of age

if over 40 but less than 45 such further employment according to the following scale:

Age 40	7 Months
Age 41	8 Months
Age 42	9 months
Age 43	10 months
Age 44	11 months

If less than 40, 6 months further employment

Depending on an employees length of service in addition notice or payment in lieu of notice in accordance with the schedule to section 170CM of the Act.

Depending upon the employee’s length of service between 2 and 8 weeks pay

...

It may be noted that while the structure of the redundancy entitlements varies between the voluntary and the compulsory paths there is a rough symmetry between the aggregate values of those entitlements.

In my view, removing the retention periods from the two scales of entitlement would be to remove a benefit which, in context and usage has nothing to do with redeployment and can reasonably be described as notice or incidental to notice, and necessary for the effective operation of the award’s redundancy provisions.” 205 (Underlining added)

[202] Commissioner Lewin’s decision in respect of redundancy was upheld on appeal 206.

[203] In making the Academic Staff Award the award modernisation Full Bench stated:

“[171] In relation to redundancy, there has been an industry specific scheme which has applied to a number of universities. This was not included in the exposure draft. We have been persuaded to include the industry specific redundancy scheme but only where it previously applied. The provision we have included will not apply to universities who were not party to the Universities and Post Compulsory Academic Conditions Award 1999.” 207 (Endnote not included)

[204] As noted by the Full Bench in the Penalty Rates Decision variations to modern awards must be justified on their merits and in conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. In this case AHIEA sought to justify deletion of the provision primarily on the basis that it was out of step with general standards and did not apply to some universities, whereas the Go8 argued inter alia that clause 17.6 of the Academic Staff Award was discriminatory and an inappropriate safety net provision. Neither AHEIA nor the Go8 put any material before the Commission which pointed to the provision being problematic from a practical or operational perspective. For instance, there was no material put before the Commission as to how often the provision was utilised, either in respect of voluntary and/or involuntary redundancies. While we accept that the provision does have cost implications for those universities to whom the industry specific redundancy scheme applies, as can be seen from above the provision has a long history, with the inclusion of a provision regarding involuntary redundancy initially determined by Commissioner Baird in 1989 and the provision the subject of detailed consideration by Commissioner Lewin as part of the award simplification process (albeit under a different statutory framework).

[205] While the rationale for the extended period of notice provided for in the Academic Staff Award is not apparent from the various decisions referred to above, what is clear is that the Academic Staff Award’s industry specific redundancy provision is an established part of the safety net for the overwhelming majority of academic employees. Further, we consider that the provision continues to constitute an important part of a “fair and relevant minimum safety net of terms and conditions” in accordance with the modern awards objective. As such, we decline to delete clause 17 of the Academic Staff Award as proposed by AHEIA.

[206] We turn now to deal with the Go8’s proposed variation. As previously mentioned, the Go8 submitted that clause 17.6 of the Academic Staff Award directly discriminated on the basis of age as it contained significantly different entitlements based upon an employees’ age rather than their length of service or any other reason. In support of its submissions, the Go8 relied on the decision in Centennial Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) 208 (Centennial Mining) and the Full Bench decision as part of the 4 Yearly Review of modern awards in respect of the Black Coal Mining Industry Award 2010209.

[207] A key issue in Centennial Mining was whether clause 30.8 of the relevant enterprise agreement which provided that “The amount of retrenchment payment due to an employee is not to be more than the employee would have received had the employee remained in employment with the Company until the age of sixty (60) years” 210 discriminated on the basis of age and therefore an unlawful term within the meaning of s.194 of the Act. Justice Buchanan dealt with the issue of alleged age discrimination in the following way:

“[40] Until 30 June 2006 coal mine workers in New South Wales were obliged to retire from coal mining at the age of 60 years. Section 5(1) of the Coal and Oil Shale Mine Workers (Superannuation) Act 1941 (NSW) prohibited the employment of mine workers of or above the age of 60 years. The prohibition was removed by the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 2006 (NSW) (s 3, Sch 1 cl [4]).

[41] For so long as a coal mine worker could not work beyond the age of 60 years it was at least arguable that no discrimination would have been involved in a provision such as cl 30.8 of the Agreement. I do not need to consider further how any such argument might have been resolved.

[42] However, it is unarguable that cl 30.8 will have a dramatically different effect upon a long-serving employee retrenched at age 60 or over (for example) than one retrenched at less than that age. Leaving aside any debate at the margins about a progressive reduction in entitlement as age 60 is approached, the effect of cl 30.8 is stark from age 60 on: no retrenchment payment is available no matter what the length of service.

[43] The reason for that difference in outcome is the employee’s age. In my view, the conclusion is inescapable that the term of the Agreement having that effect (cl 30.8) is a discriminatory term (s 195 of the FW Act) and therefore an unlawful term (s 194(a) of the FW Act).”

[208] The Full Bench decision in respect of the Black Coal Mining Industry Award determined that the identical clause to that considered in Centennial Mining was discriminatory. Specifically the Full Bench determined as follows:

“[40] Additionally, we find that clause 14.4(c) is a term which discriminates directly against employees at or over the age of 60, as well as employees nearing 60, on the ground of their age. We consider that the reasoning and conclusion in the Centennial Mining Decision, with which we agree, are directly applicable to clause 14.4(c). We do not accept CMIEG’s submission that the substantive and operative purpose of clause 14.4(c) is not to treat someone adversely because of their age but rather to set a “reasonable limit” on economic compensation paid by reason of the retrenchment. The background history which we have earlier set out belies this, and the provision does not provide any “reasonable limit” in its operation. It may be accepted that it is common and legitimate for redundancy schemes, particularly those of a more generous nature, to be subject to a cap on the total payment to be made in respect of employees who have reached or surpassed a particular period of service. This is not, however, what clause 14.4(c) does. For example a person aged 50 who is retrenched after 30 years’ service is subject to no limitation upon his or her retrenchment pay and will receive 60 weeks’ retrenchment pay (in addition to 30 weeks’ severance pay). An employee aged 60 or over will receive no retrenchment pay whatsoever, regardless of the employee’s length of service. The difference in outcomes is only rationally explicable on the basis of age.

[41] The effect of this conclusion is that clause 14.4(c) is a provision which is not permitted to be included in a modern award under s.153(1), and therefore under s.137 has no effect. We do not of course have the power to make a binding declaration to that effect, but we are entitled to act on the basis of the conclusion we have reached in deciding whether or not to vary the Award to delete clause 14.4(c).”

[209] Applying clause 17.6(b) of the Academic Staff Award to two academic employees who are 33 and 45 years of age respectively and both with 6 years of service would see the employees be entitled to periods of notice of 6 and 12 months respectively. The only reason for the difference in entitlement is as a result of their age. Drawing on the decisions in Centennial Mining and in respect of the Black Coal Mining Industry Award supports a finding that the provision is not permitted to be included in a modern award under s.153(1) of the Act. We do not accept the NTEU’s contention that the provision was not discriminatory because it was an affirmative action measure designed to compensate for the otherwise discriminatory impact of redundancy on academic staff over the age of 40 on the basis that there was no material before us to substantiate the alleged discriminatory impact relied upon by the NTEU.

[210] By way of background, s.153 of the Act provides as follows:

“153 Terms that are discriminatory

Discriminatory terms must not be included

(1) A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory

(2) A term of a modern award does not discriminate against an employee:

(a) if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or

(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:

(a) all junior employees, or a class of junior employees; or

(b) all employees with a disability, or a class of employees with a disability; or

(d) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.”

[211] Further, we note that:

•  s.136(2)(a) of the Act provides that a modern award must not include terms that contravene Subdivision D – s.153 of the Act is part of Subdivision D; and

•  s.141(3)(a) of the Act only empowers the Commission to vary an industry-specific redundancy scheme in a modern award by varying the amount of any redundancy payment in the scheme.

[212] Against that background, we propose to vary the Academic Staff Award as proposed by the Go8. This would result in all employees irrespective of their age being entitled to a period of notice of 6 months. We note that this approach is consistent the period of notice for employees who accept voluntary redundancy.

[213] Beyond that, we are concerned that clause 17.6(a) of the Academic Staff Award which provides that, in addition to the extended period of notice, an employee who is made involuntarily redundant is also paid “the greater of the period of notice prescribed by the NES or the contract of employment of the employee.” This additional payment does not apply in respect of voluntary redundancies and in our view entails a degree of doubling up for those employees made involuntarily redundant. Against that background, we have formed the provisional view that clause 17.6(a) should be deleted. In our view this would reduce both employment costs and the regulatory burden on universities consistent with s.134(1)(f) of the Act whilst ensuring that the Academic Staff Award together with the NES provided a fair and relevant minimum safety net of terms and conditions as per the modern awards objective. Further, we consider such an approach permissible by s.141 of the Act.

[214] As this option was not canvassed in the proceedings before us, we will provide the parties with an opportunity to comment on our provisional view. Further details are provided in Chapter 20–Next Steps.

[215] Finally, with regard to the NTEU’s claim to replace the word “context” in clause 17.1(b)(ii) with the word “content”, we note that when Commissioner Baird varied the 1988 Academic Staff Award and the 1988 Post Compulsory and Higher Education Award to provide for retrenchment that the relevant provisions [clause 12(e)(ii)(2)] read as follows:

“(e) “Surplus” indicates that an academic position is no longer required, or belongs to a class of positions not all of which are required because of:

...

(i) a decision by the institution to:

...

(2) vary the content of a course or courses to such an extent that one or more positions are not required;” (Underlining added)

[216] While we accept that the clause has been unproblematic as a result of the word “context” replacing “content” at some stage, we also note that the word context is much broader than content and out of place from a literal perspective. Further, we note the Go8’s acknowledgement that the proposed change, if made, would not be of any great moment. In our view, the proposed change is consistent with s.134(1)(g) of the Act in that it would ensure that the Academic Staff Award was simple and easy to understand. We therefore propose to amend the Academic Staff Award as proposed by the NTEU.

10. ICT ALLOWANCES

[217] The NTEU seeks to vary the Awards to provide for allowances to be paid to employees in respect of the costs of establishing, maintaining and using their own telephone, mobile phone, email and internet in circumstances where they are required to do so to satisfactorily perform their duties. 211

[218] Specifically, the NTEU proposes that the Academic Staff Award be varied to insert a Schedule C in the following terms: 212

“Schedule C – Allowances

C.1 Information Technology Allowance

C.1.1 Where an employee is required to use any of the following for work purposes other than at the workplace:

(a) A telephone connection;

(b) Email access;

(c) An internet connection;

(d) Any like data connection or account;

the employer shall either provide that connection at no cost to the employee, or shall pay an allowance to the employee in accordance with this clause.

C.1.2 The value of the allowance shall be reimbursement of the actual cost incurred by the employee, up to the value of the monthly subscription cost of the cheapest service package (sufficient to provide the level data connection required for the performance of the work) that is readily available in the location (whether that is a bundled package or not), and is payable with respect to each month of employment after the first month.

C.1.3 For the purposes of sub-clause C.1.1, an employee is required to use any of the services itemised in that sub-clause for work purposes if that use is required by the nature of their work, including by custom and practice, unless they are directed in writing not to perform any work requiring any of those services when away from the workplace.”

[219] As to the General Staff Award, the NTEU proposes that Schedule C be varied to include the following: 213

[220] In support of its claim the NTEU contended that its proposed Award provisions were both necessary and appropriate in order to establish a fair safety net of conditions, noting that it was a long-standing principle of industrial fairness that where an employee was required in the course of their employment to incur expenses that an award should provide for the reimbursement of those expenses. 214 The NTEU submitted that the evidence in this case showed that a significant number of university employees were now required by the nature of their work to incur ICT expenses, including the maintenance of a home internet connection215. More particularly, the NTEU submitted that:

•  the work of academic staff involved a considerable amount of work done away from a fixed workstation, including working from home (especially in the evenings and on weekends), attending conferences, travelling between campuses and working at locations on their own or other campuses away from their office or workstation; 216 and

•  an increasing number of general staff were required the check emails, answer queries and complete project work away from campus, including at home, at conferences, at marketing or promotional events, and when travelling between campuses or working in a different campus where they do not have an office or workstation. 217

[221] While the NTEU acknowledged that some universities allowed staff to borrow university equipment for use when working away from campus, it also noted that with the exception of some senior staff who might have a home office provided by their university that such equipment was usually only available for particular events or projects and not for ongoing use.

[222] The NTEU further submitted that the proposed provision should be considered an essential part of the safety net for some tens of thousands of casual employees who were provided with limited or in some cases no adequate ICT facilities by their employers and could not do their jobs without such a connection. 218 The NTEU also contended that granting its claim would promote modern and flexible work practices, would promote productivity and would have a minimal employment cost and regulatory burden impact on employers. Finally, the NTEU contended that the proposed clause could be included in a modern award on the basis that it fell squarely within the terms of s.139(1)(g)(i) of the Act which concerned allowances in respect of expenses incurred in the course of employment.219

[223] The Go8 submitted that the claim was not necessary to meet the modern awards objective. 220 Among other things, the Go8 highlighted that:

•  no other modern award included a clause in the same or similar terms to that proposed by the NTEU; 221

•  19 of the 137 modern awards provided for a telephone allowance or reimbursement of expenses relating to the use of a telephone or something similar however in most cases the payment was connected to a requirement that such employees be “on-call” and that there was no such requirement in the Awards; 222 and

•  there were otherwise no other modern awards that required employers to pay for or reimburse employees for home internet use or email access. 223

[224] The Go8 further submitted that the weight of evidence showed that universities provided significant ICT facilities and equipment to all staff throughout university campuses, 224 noting that whilst the facilities may vary from university to university and within the various organisational units within those universities such facilities and equipment generally included access to desktop computers, laptops, printers, network and internet access including Wi-Fi, email accounts, access to computer laboratories and IT facilities in libraries.225 While the Go8 accepted that many academic staff performed work from home and at locations other than their university, it contended that the evidence showed that this was generally by choice and was reflective of the self-directed nature of academic work and the flexibility and freedom enjoyed and valued so highly by academic staff about how, when and where they performed their work.226 The Go8 also submitted that there was no evidence that the work use of existing home internet or mobile phone, in conjunction with various personal uses, resulted in increased cost, relative to the existing ICT expenditure for employees and noted that it was recognised that where employees worked from home and used their own ICT facilities and equipment then this was a tax deductible expense, with this latter point acknowledged by a number of NTEU witnesses.227

[225] In its submissions, the Go8 disputed the NTEU’s contention that:

•  where ICT equipment was provided to staff it was usually only available for particular events or projects and not for ongoing use; 228 and

•  general staff experienced pressure to answer emails or to take telephone calls outside of work hours, contending that the evidence showed that where general staff use their personal devices and home internet connection to perform work that this was not at the direction of universities and was more limited. 229

[226] In its submissions AHEIA reiterated a number of aspects of the Go8’s submissions, contending that the NTEU’s application should be rejected because it was unnecessary, it was not simple and easy to understand, would add to the regulatory burden on universities and could significantly add to employment costs in the sector if the claim was granted and was flowed on in enterprise bargaining. 230

Consideration of the issues

[227] The evidence in this case supports the following conclusions:

•  universities generally provide employees with on campus access to the ICT equipment (e.g. computer, printer and telephone) necessary to fulfil their role, with for casual academics that ICT equipment shared at some universities or provided in a large room used by a number of casual academic employees;

•  academics frequently worked from home by choice, with a number of witnesses acknowledging that control over when, where and how work was performed was one of the aspects of academic work that was highly valued by academic employees;

•  universities did not as a general rule require academics to work from home;

•  some universities had arrangements in place which allowed employees to purchase items such as laptop computers at a special rate or on a salary sacrifice basis;

•  universities did not as a matter of course reimburse, either in part or full, employees for the cost of purchasing ICT equipment and related services;

•  some universities had policies in place which enabled staff to seek reimbursement for the use of certain information technology equipment and communication facilities in certain circumstances;

•  in some cases employees were not aware that there was the capacity to seek provision of information technology facilities and equipment and/or the reimbursement of ICT related costs, though in other cases employees were aware of that capacity but did not pursue it, e.g. Dr Dix’s evidence was that he had not investigated the option of being provided a laptop by his employer as “there was a bit of a rigmarole” 231 involved;

•  many employees used their ICT equipment and associated services for both personal and work purposes;

•  a number of employees claimed a component of their ICT related expenditure as a tax deduction; and

•  the provision of ICT and other facilities had been the subject of bargaining at some universities.

[228] Beyond this, there was no evidence of employees incurring increased costs as a result of using their home internet connection and/or mobile phone for work related purposes. While there was some evidence that general staff sent emails out of hours and presumably using their personal ICT equipment, the evidence does not support a finding that this practice was widespread or more importantly that it was required by their university.

[229] Having regard to the material before the Commission, we are not satisfied that the case for NTEU’s claim has been made out. Further, we are not satisfied that varying the Awards as proposed by the NTEU is necessary to meet the modern awards objective. In that regard, we note that the claim if granted is likely to impose regulatory and cost burden on universities in circumstances where they already make available to employees on campus appropriate ICT facilities to fulfil their roles. Further, given the clause proposed by the NTEU is premised on employees being “required” to use ICT equipment/services away from the workplace, we anticipate a degree of disputation over whether the particular work was “required” or alternatively “self-initiated”. Against that background, we consider that to the extent that issues related to the provision of ICT equipment/facilities and/or the reimbursement of ICT related expenses arise they are more appropriately dealt with through collective bargaining at the enterprise level.
[230] For all these reasons, we decline to vary the Awards as proposed by the NTEU.

11. PROFESSIONAL AND DISCIPLINE CURRENCY ALLOWANCE

[231] The NTEU seeks to vary the Academic Staff Award to provide for compensation for time spent by casual academic staff maintaining currency in an academic discipline or field of study and keeping abreast of employer policies. The NTEU proposed the insertion of the following sub-clause in clause 13 of the Academic Staff Award which deals with Casual employment and loading:

“13.3 Payment for Policy Familiarisation and Professional and Discipline Currency

Any academic staff employed on a casual basis to deliver a series of 6 or more related

lectures or tutorials in an academic unit of study (an “eligible employee”) will, in addition to any other payment, be paid:

(a) Policy Familiarisation

10 hours’ pay at the relevant rate of pay for “Other required academic activity” as specified in clause 18.2 for the employee’s work in becoming informed of relevant workplace policies, procedures and academic obligations applicable to the employee’s duties. Provided that:

(i) Where an eligible employee is re-engaged by the same employer, no fresh entitlement to this payment will arise unless the break between engagements was longer than twelve months; and

(ii) Where the employer provides paid formal induction the payment under this sub-clause will be reduced by the number of hours’ paid to that employee for formal induction; and

(iii) Where the employer expressly directs an employee to undertake more than the hours of work, for which payments are provided by this Sub-clause, on work in becoming informed of relevant workplace policies, procedures and academic obligations applicable to the employee’s duties, the employee will be paid for all the time so directed. Otherwise, the employer shall have no liability for payment beyond the requirements of this Sub-clause in respect of such work.

(b) Policy and Discipline Currency

In each calendar year of employment, one hour’s pay at the relevant rate of pay for “Other required academic activity” as specified in clause 18.2 for each four hours’ delivery of lectures or tutorials performed in that year, for the employee’s work in maintaining currency in the employee’s discipline and relevant pedagogy, and remaining informed of workplace policies, procedures and academic obligations. Provided that:

(i) The maximum payable under this sub-clause to an employee in any calendar year shall be 40 hours’ pay; and

(ii) Where the employer has paid the employee to attend staff development, academic or professional conferences or like activities, the allowance payable under this sub-clause will be reduced by the number of hours’ paid to the employee for attending those activities; and

(iii) Payment in accordance with this sub-clause will not apply in respect of the delivery of tutorials or lectures which relate directly to the practice of a profession in which the employee is engaged as their primary employment or occupation; and

(iv) Payment in accordance with this sub-clause will not apply to the extent that a payment has been made to the employee under this sub-clause by another employer in respect of that discipline or a cognate discipline (An employer may ask an employee to substantiate that they have not already received payment in accordance with this sub-clause from another employer.)

(v) Where the employer expressly directs an employee to undertake more than the hours of work, for which payments are provided by this Subclause, on work in maintaining currency in the employee’s discipline and relevant pedagogy, and remaining informed of workplace policies, procedures and academic obligations, the employee will be paid for all the time so directed. Otherwise, the employer shall have no liability for payment beyond the requirements of this Sub-clause in respect of such work.

[232] Key aspects of the NTEU’s submissions in support of its claim were that:

•  the proposed payments were clearly matters capable of being included in a modern award either as minimum wages [s.139(1)(a)] or hours of work [s.139(1)(c)] or if formulated in a different way as allowances for responsibilities or skills not taken into account in rates of pay [s.139(1)(g)(ii)];

•  there were 11,045 EFT teaching only and teaching and research casual staff who could meet the eligibility requirements for the payments; 232

•  the evidence of Professor Strachan was that 38 per cent of casual academic respondents to the 2011-2012 Work and Careers in Australian Universities Survey (2011–2012 Survey) had worked at their current university for less than one year and that 45 per cent had worked there for three years or more; 233

•  it was common ground between the parties that casual academics were required to be familiar with and comply with employer policies and that outside the paid induction programs they were not currently paid for this work; 234

•  the evidence supported the conclusion that the NTEU’s claim for payment for 10 hours was modest and represented an underestimate of the real-time likely to be required; 235

•  casual academics were required as a formal contractual obligation to know and comply with university policies; 236

•  university policies, procedures, guidelines and regulations were extensive; 237

•  the evidence of casual academics was that the NTEU claim underestimated the actual time spent in policy familiarisation, with those employer witnesses who spoke about policies not giving any evidence from direct experience of casual employment; 238

•  maintaining discipline and professional currency were inherent requirements of academic teaching work, e.g. the University of Sydney Code of Conduct 239 expressly required all staff to “maintain and develop knowledge and understanding of the area of expertise or professional field”;240

•  the evidence showed that discipline currency went well beyond what was required and encompassed within the concept of preparation time associated with particular hours of lecture or tutorial delivery; 241

•  while employees who maintained their work-related skills gained some personal benefit in terms of employability, it was nevertheless work performed in the course of employment, was work which the employer both accepted and benefited from and was work which the safety net should ensure was paid for; 242

•  the evidence pointed to a significant proportion of casual academic workers having been employed for more than a single engagement at their university; 243

•  much discipline and professional currency work occurred during the course of casual academic engagements, with the time spent in this work difficult to predict or determine with precision and potentially varying between disciplines and professional fields but rarely if ever being less than the hours of payment sought by the NTEU; 244

•  there were two important points of principle which should be drawn from the AIRC’s decision in the 2000 Casuals Case 245, casual work should not be cheaper nor more expensive than the main counterpart types of employment and casual award rates in this industry had never reflected the actual time worked for the great majority of the work involved in lecturing and tutoring as the award provided a set payment for particular forms of work irrespective of the actual time worked;246

•  the employer estimates of the cost impact of the NTEU’s claim should not be relied upon as they were based on inflated assumptions about how many staff might be eligible for the payments and the extent to which staff would be eligible and did not take into account the exemptions and reductions built into the architecture of the claims; 247

•  the existing Academic Staff Award was not a fair or relevant safety net to the extent that casual hourly paid employees were required by the nature of their work to perform such work and not be paid for its performance;

•  the relative living standards of this group of low income workers weighed in favour of making the changes proposed; 248

•  the employment cost of granting the claims would be low, adding that the absolute and merely theoretical maximum the claims would increase employment costs in respect of casual staff was 8 per cent; 249 and

•  an award variation was necessary to give effect to the modern awards objective.

[233] In its oral submissions, the NTEU contended among other things that: 250

•  the principle underpinning its claim was that people should be paid for the work that they do; and

•  if the Full Bench was not attracted by the detail of the NTEU’s model, there was still an obligation to address this issue and ensure that payment was made.

[234] The Go8 submitted that the Commission should not be satisfied that it was necessary to vary the Awards in the manner sought by the NTEU. Among other things, the Go8 submitted that the NTEU’s claims, particularly the discipline currency claim, constituted an increase in minimum rates of pay for casual academic staff when undertaking lectures and tutorials which was not supported by any evidence demonstrating a change in work value as required by s.156(3) of the Act. 251 The Go8 further submitted that:252

•  the variations proposed by the NTEU were not necessary to achieve the modern awards objective;

•  to adopt the policy familiarisation payment would be inconsistent with the approach to award regulation in any other modern award;

•  employees were already paid for policy familiarisation to the extent reasonably necessary, including through induction;

•  there was a difference between policy awareness and policy immersion;

•  there were significant resources and supports available to staff, including casual staff, at each university enabling them to perform activities or deal with issues in a way that was consistent with the relevant university’s policies or guidelines;

•  matters which may require a more detailed knowledge of policies were in the significant majority of cases undertaken by non-casual staff;

•  the NTEU’s witnesses overstated what was required in respect of policy familiarisation and time;

•  casual academic staff were skilled professionals who were recruited specifically for their existing expertise and knowledge in the same way as the engagement of any skilled, licensed or highly qualified casual employee in other industries;

•  casual staff were generally paid to deliver not develop course content;

•  work performed to maintain discipline currency was not required work;

•  the rates of pay for lectures and tutorials already included an amount of associated working time for preparation and associated activities;

•  the claims were excessive, with the costs estimated on the order of $50-$60 million at award rates and $80-$90 million at enterprise agreement rates; and

• 

•  the claims were matters that have been and could continue to be pursued in bargaining.

[235] AHEIA submitted that the claims should not be granted for a number of reasons including the following: 253

•  the practical reality was that not all casual academics were required to familiarise themselves with all university policies;

•  casual academics could seek guidance and assistance on policy matters from more senior staff;

•  there were common elements to policies from one university to the next, meaning that casuals who had previously been employed at another university may already be familiar with similar policies;

•  casual academics already undertook and were paid for preparatory work that assisted them in maintaining an up-to-date knowledge of the discipline area in which they were teaching;

•  casual academics were not appointed unless they already had a strong discipline knowledge;

•  many casual academics were PhD students who were already familiar with the discipline;

•  preparation hours were encompassed within the casual rates, with this representing payment for the academic’s skill currency;

•  there was nothing to stop a casual academic from requesting payment for time spent either familiarising themselves with university policy or in maintaining discipline currency under the “Other required academic activity rate” already specified in the Academic Staff Award if that work was genuinely required by their employer;

•  the NTEU’s claim would add to the regulatory burden on universities by requiring the establishment of systems to monitor and make these payments; and

•  there would be difficulty for universities in policing the protection against “double dipping” by employees who claim such payments from more than one university a time.

Consideration of the issues

[236] Key aspects of the evidence in respect of this issue includes that:

•  casual academics deliver a significant proportion of teaching at Australian universities;

•  casual academics were required to comply with university policies;

•  universities invariably had a plethora of policies,

•  many universities provided paid induction which covered key policies which casual academics needed to be aware of, with at least one university (i.e. UW) providing paid induction at the institutional level supplemented by more localised paid induction at the faculty level;

•  casual academics were not required to be across the detail of all university policies;

•  support was available to casual academics in circumstances where they required further information and/or assistance in respect of a particular policy;

•  some casual academics chose to be very hands-on in providing student support despite the existence of university guides to assist students, e.g. Dr Kirkman’s evidence that a session she provided for students on how to write an essay could be seen to duplicate writing guides on her university’s internet site; 254

•  there was an absence of any published research on the time spent by casual academics reading university policies;

•  a significant proportion of casual academics would through their studies or outside industry experience be maintaining the discipline currency, e.g. Honorary Associate Professor Junor attested that 45 per cent of respondents to the survey underpinning her expert report would through their studies or outside industry experience be maintaining the discipline currency while Professor Strachan attested that 55 per cent of casual academic respondents to the 2011–2012 Survey identified as currently studying for a qualification;

•  casual academic rates provided for preparation time which encompassed an opportunity to maintain discipline currency;

•  universities employed individuals as casual academics because they had the requisite knowledge;

•  while some disciplines moved very quickly in terms of developments this varied from discipline to discipline;

•  discipline currency did not necessarily evaporate over the space of a semester;

•  the need to remain current in a particular discipline also applied to a number of other professions and professionals; and

•  the NTEU’s proposal was costed at up to $1.79 million per annum for Monash University and in the order of $60-$70 million per annum across the sector, with the cost for UNSW estimated at between $1.73 million and $2.62 million per annum.

[237] Beyond that we note that the weight that can be attached to both Dr May’s 255 and Honorary Associate Professor Junor’s expert evidence256 is diminished by their acknowledgement that their respective reports included propositions put to them by the NTEU. For example, Dr May attested that her evidence as to the amount of time that might realistically be required for casual academics to become familiar with university policies was a proposition put to her by the NTEU and was not the subject of empirical research in the study which she undertook.257 The weight that can be attached to Dr May’s report is further diminished by her acknowledgement that in respect of the case studies referred to in section 4 of her witness statement she did not do any monitoring of the time that casual academics actually spent reading policies.

[238] A key consideration from the Commission’s perspective in respect of the policy familiarisation aspect of the NTEU’s claim is the absence of any empirical research on the time spent by casual academics reading university policies. While a number of witnesses provided estimates as to the amount of time they spent familiarising themselves with university policies, it was not clear from that evidence as to what necessitated the amount of time they spent doing so, i.e. whether it was as a result of a particular issue which had arisen or alternatively undertaken at the individual’s initiative. We note also that as in most workplaces support is available to casual academics in circumstances where further information or guidance is required in respect of particular policies. However, what appeared from the evidence of some witnesses is a desire to handle issues such as student enquiries themselves rather that refer them to specialist areas such as student support services. In those circumstances, we are not convinced that the estimates of time spent by casual academics familiarising themselves with university policies are reliable.

[239] In our view, access to paid induction is the most appropriate means of alerting casual academics as to the key university policies of which they need to be aware of supplemented by the support available to them in respect of further information and/or guidance regarding those policies. The material before the Commission supports a finding that many universities have already put in place arrangements which reflect their circumstances. We see no reason to interfere with that approach. We also note that to the extent that these “local” arrangements are considered inadequate or deficient that such concerns can be addressed at the university level, whether through enterprise bargaining, established consultative mechanisms or other channels.

[240] Drawing on the above analysis, we are not satisfied that the varying the Academic Staff Award to provide for a policy familiarisation payment is necessary to meet the modern awards objective. With particular regard to s.134(1)(f) of the Act, based on the cost estimates before the Commission and allowing for a margin of error in those estimates, we consider that the proposed payment is likely to impact significantly on employment costs. For all these reasons we decline to vary the Award to provide such a payment.

[241] Turning now to the discipline currency aspect of the NTEU’s claim, we accept that the rates of pay for casual academics entail a degree of preparation time which constitutes an opportunity for them to maintain discipline currency. We also note that casual academics are invariably employed because they have the requisite skills and that the evidence suggests that around half of casual academics are either currently undertaking study or working in industry which assists in maintaining discipline currency. Finally, we acknowledge that it is in a casual academic’s best interest to maintain their discipline currency as a means of maximising their employability.

[242] Having regard to the material before the Commission we are not satisfied that the safety net for casual academics is deficient in the absence of the NTEU’s proposed policy and discipline currency payment or that that such a payment is necessary to meet the modern awards objective. With particular regard to the modern awards objective, we consider that the proposed payment is likely to impact significantly on employment costs and also carries with it an increased regulatory burden for universities, in particular the need to establish whether such a payment has been made to the casual academic by another employer. Finally, given that the speed at which developments occur varies from discipline to discipline, we consider that, to the extent that existing arrangements do not adequately recognise this, such issues are more appropriately dealt with through enterprise bargaining.

[243] For all these reasons we decline to vary the Academic Staff Award to provide for a policy and discipline currency payment.

12. CLASSIFICATION OF ACADEMIC STAFF

[244] The NTEU seeks to vary the Academic Staff Award to provide that in the absence of a bona fide academic promotion system academic employees may seek to enforce the correct classification and rate of pay for the work that they perform on the basis of the MSALs. Specifically, the NTEU seeks to vary clause 18 of the Academic Staff Award by including the highlighted text below: 258

“18. Classification of academic staff

Minimum standards for levels of academic staff, other than a casual, are set out in Schedule A – Minimum Standards for Academic Levels (MSAL). The levels are differentiated by level of complexity, degree of autonomy, leadership requirements of the position and level of achievement of the academic. The responsibilities of academic staff may vary according to the specific requirements of the employer to meet its objectives, to different discipline requirements and/or to individual staff development.

An academic appointed to a particular level may be assigned and may be expected to undertake responsibilities and functions of any level up to and including the level to which the academic is appointed or promoted. In addition, an academic may undertake elements of the work of a higher level in order to gain experience and expertise consistent with the requirements of an institution’s promotion processes.

MSAL will not be used as a basis for claims for reclassification, provided that the employer regularly operates a bona fide academic promotion system based on academic merit which is broadly consistent with the MSAL, to which the employee has access, and by which the employee’s classification under this Award can be advanced. Where an employee is entitled to make a claim for reclassification, the employee shall be classified at that classification for which the MSAL best describes the work of the employee.”

[245] The NTEU submitted that the current scheme of the Academic Staff Award was that promotion in accordance with the particular university’s promotion system was key to identifying the classification level at which employees were required to work, i.e. the link between the salary scale and the MSALs was established through the system of academic promotion. 259 In that regard, the NTEU noted in its submissions that all Australian universities currently operated a system of academic promotion to which the majority of academic staff had access.260 The NTEU further submitted that this failed to provide an enforceable safety net in relation to wages for two central reasons.261 First, the quality, transparency and fairness of the promotion scheme was left entirely in the gift of the employer on the basis that the Academic Staff Award did not require that such a system operate or even that it exist and second that not all academic staff had access to promotion systems. The result of these two factors, according to the NTEU, was that the academic level at which someone was employed and paid was entirely at the discretion of their employer and was not constrained in any enforceable way by the existence of the Academic Staff Award classification structure based on work value or relativity.262 As such, the Academic Staff Award was deficient.

[246] The NTEU also contended that the current legislative context was different to that which prevailed when the Award provision was first made in 2002, pointing out that s.89A(2) of the Workplace Relations Act 1996 empowered the AIRC to deal with an industrial dispute inter alia about “classifications of employees and skill based career paths” 263. More particularly, the terms of the Academic Staff Award as they currently stood effectively closed off access to any dispute settling procedures even in circumstances where an employer failed to operate a promotion system consistent with the MSAL.264 The NTEU further contended that the BOOT test could not operate effectively if employees were not entitled to an enforceable rate of pay determinable by reference to work value.265

[247] Beyond this, the NTEU submitted that: 266

•  its proposal was clearly encompassed by s.139(1)(a) of the Act which related to minimum wages, referring in particular to the relationship between minimum wages and skill base classifications and career structures;

•  in respect of academic employment, the work value classification structure was “differentiated by level of complexity, degree of autonomy, leadership requirements of the position and level of achievement of the academic” 267, with assessment of the appropriate work value level largely done through the academic promotion system, adding that these characteristics made the Academic Staff Award unique;

•  in the absence of access to a system of academic promotion, a bar on seeking reclassification meant that the safety net was not fair;

•  its preference was to retain the unique characteristics of academic promotion which was not prescribed by the Academic Staff Award;

•  while it did not seek that the system of academic promotion be prescribed by the Academic Staff Award, it submitted that the Award needed to address those circumstances where access to a promotion system was not available and ensure that in those circumstances employees had access to a mechanism for challenging an inappropriate classification decision by an employer;

•  the great majority of academic staff did not have a “position” that was identified in reference to a particular classification;

•  academics that applied for promotion were not applying for a different job but rather for appropriate recognition of the work already performed by the employee, meaning that academic promotion was fundamentally different to conventional promotion as was understood in other industries; and

•  the evidence showed that some university promotion policies excluded some classes of employees from promotion on a variety of grounds, e.g. fixed term employees unless their contract was of at least three years duration, persons against whom a formal disciplinary process had been initiated and some grant funded research only staff whose positions were dependent on funding and grant conditions.

[248] In its oral submissions the NTEU submitted among other things that:

•  it was an essential part of a system of fair minimum wages that an employee was entitled to dispute his or her classification; 268 and

•  the Academic Staff Award deprived employees of this right once they were appointed. 269

[249] The Go8’s position was that there was no compelling reason to introduce the change proposed by the NTEU, particularly when regard was had to the requirements of the Act, in the absence of any disputation in relation to the current framework. 270 The Go8 further submitted that the NTEU had not established a merit case supported by probative evidence.271

[250] In its submissions, the Go8 set out a number of reasons why the NTEU’s claim should be rejected. They included that: 272

•  the claim was inconsistent with the history of the current Award clause, emphasising that the clause was the subject of contested arbitration before the AIRC in 2002 during which it was recognised that the appropriate process for advancement between academic levels was merit-based promotion based upon peer-review and that the inclusion of the MSALs in the Award was not intended to undermine that position nor to compete with academic promotion;

•  academic standing was not capable of sensible industrial regulation, adding that the use of the MSALs as a basis for reclassification would create a tension with the current framework which required comparison not just with the MSALs but with an academic’s peers both nationally and internationally and their overall capability;

•  the existing safety net was sufficient – the MSALs contained in the Academic Staff Award together with clauses 14 and 18 of the Award already required that an employee be appropriately classified at the time of employment; and

•  the proposed clause was not a required term under the Act and was not necessary to meet the modern awards objective.

[251] Beyond that, the Go8 highlighted that the NTEU could not recall any disputes about employee classification raised in the last 30 years and with regard to s.134(1)(g) of the modern awards objective contended that the proposed clause was ambiguous and amenable to disputation and was therefore not practical and would be potentially difficult to implement. 273

[252] AHEIA submitted that the evidence in respect of this claim showed that all Australian universities had an academic promotions process based on peer assessment of individual merit, through university policy rather than through regulation by either award or enterprise agreement, adding that the evidence also showed this to be the case in other countries that had such a system. 274 More particularly, AHEIA submitted that the NTEU proposal should be rejected as it was both unnecessary and inappropriate given the history of the Academic Staff Award, the history of the industry and the nature of academic work.275 With regard to the history of award regulation of academic staff, AHEIA highlighted that the MSALs were inserted into the academic award by consent on the basis that they were not an appropriate basis for the reclassification of academic staff.276 In that regard, AHEIA relied on the decision of Senior Deputy President Duncan in National Tertiary Education Industry Union v Australian Higher Education Industrial Association, the University of Melbourne and others277. Beyond this AHEIA submitted that:278

•  it was nonsense to suggest as the NTEU did in its closing submissions that universities might abandon or freeze their promotions schemes;

•  the NTEU’s proposed clause went well beyond the class of persons or situations with which the union was apparently concerned, adding that a person on a fixed-term contract would have the opportunity to renegotiate their appointment level at the beginning of each contract with the potential for increased costs for universities in circumstances where any reclassification was not met by external research funding; and

•  if the NTEU had problems with specific exclusions from academic promotion it could raise those concerns with the relevant university in relation to their academic promotion policies.

[253] In its oral submissions AHIEA contended inter alia that as the Award provided for the right to be properly classified at the commencement of each contract this disposed of the argument. 279

[254] In conclusion, AHEIA contended that the NTEU was looking in the wrong place for a solution to what it acknowledged to be a small problem.

Consideration of the issues

[255] Both the Go8 and AHEIA in their submissions referred to the decision of Senior Deputy President Duncan in National Tertiary Education Industry Union v Australian Higher Education Industrial Association, the University of Melbourne and others. The decision concerned an NTEU claim for the inclusion of Position Classification Standards in a consolidated academic award. In the second of his decisions in that matter the Senior Deputy President stated as follows:

“I intend nothing be done which encourages or even permits competition between merit promotion and the MSAL.” 280

[256] In this case it was not disputed that academic promotion should be the primary means by which academic employees move to higher classification level. For instance, Mr McAlpine’s evidence was that the NTEU considered academic promotion to be the appropriate mechanism for academics to progress through the career structure. Critically, in our view, Mr McAlpine also attested that the NTEU’s proposed variation was intended to eliminate a “small problem” 281 and that he was not aware of any disputes that had been brought to the Commission regarding the issues which the NTEU’s proposed variation sought to address.

[257] In circumstances where the variation sought by the NTEU seeks to address what Mr McAlpine described as a “small problem” 282 and in the absence of any probative evidence pointing to a gap in the safety net which needed to be addressed, we are not satisfied that the variation proposed by the NTEU is necessary to meet the modern awards objective. We also note AHEIA’s submission that to the extent that academic employees and/or the NTEU had problems with specific exclusions from academic promotion they could raise those concerns with the relevant university in relation to their academic promotion policies.

[258] For all the above reasons we decline to make the variation sought by the NTEU.

13. ACADEMIC HOURS OF WORK

[259] Clause 22 of the Academic Staff Award deals with Hours of work and simply provides that “For the purpose of the NES, ordinary hours of work under this award are 38 per week” 283 The Award does not include provisions dealing with overtime or other penalty payments.

[260] The NTEU seeks the deletion of clause 22 of the Academic Staff Award and its replacement with the following clause: 284

“22. Hours of work

22.1 Definitions and Application

For the purposes of this clause:

a. The relevant period of account shall mean each calendar year or such other period as is agreed in writing between the employer and the employee (not exceeding two years), or in the case of a fixed term contract engagement of less than eighteen months, the period of that engagement; or otherwise where the employment or part of the employment covers only part of a year, that part of the year. The period of account shall exclude any periods during which leave or public holidays are taken.

b. Required work shall mean:

i. The specific duties and work allocated to an employee; and

ii. To the extent these are not covered by i), any work necessary to meet performance standards expected of the employee.

c. Ordinary-hours workload for an employee shall mean that amount of required work such that employees at the relevant academic level and discipline or group of disciplines could with confidence be expected to perform that work in a competent and professional manner within an average 38 hours per week, as determined prospectively in respect of the relevant period of account. In respect of part time employees, all specifications in this clause in relation to hours of work will be calculated pro rata to the fraction of employment.

22.2 The maximum ordinary hours of work of an academic employee shall be an average of 38 hours per week over the relevant period of account. For this purpose, in addition to any required work performed on those days, each public holiday and each day of leave shall count as 7.6 hours of work.

22.3 Where the employee’s actual hours of work are not set by the employer and recorded, maximum ordinary hours of work shall be deemed not to have been exceeded if the amount of required work does not exceed ordinary-hours workload, or exceeds it by less than 1/19^th part.

22.4 This sub-clause applies in circumstances where the employee’s actual hours of work are set by the employer, are recorded and exceed an average of 38 over the period of account. In this case, the employee shall be entitled to be paid overtime at the ordinary hourly rate of pay for the first 5 additional hours per week (averaged over the period of account), and at 150% of the ordinary hourly rate of pay thereafter, provided that the rate of overtime loading for hours in excess of 5 per week shall be capped at 150% of the ordinary rate applicable to the sixth step of Level C.

22.5 This sub-clause applies where the actual hours are not set and recorded by the employer, and where the required work exceeds ordinary-hours’ workload. In this case, the employee shall be paid an overtime loading calculated as follows:

a. The number of hours per week within which employees at the relevant academic level and discipline or group of disciplines could with confidence be expected to perform the required work, as allocated to the employee, at a competent and professional level, as averaged across the period of account, shall be ascertained in hours per week (“ascertained hours”);

b. Where the number of ascertained hours under a) is less than 40, no overtime loading shall be paid;

c. Where the number of ascertained hours under a) is at least 40 and less than 44, the overtime loading shall be equal to 1/38^th of the minimum salary applicable to the employee for each whole hour by which the number of those ascertained hours exceeds 38;

d. Where the number of ascertained hours under a) is at least 44, the overtime loading shall be equal to 5/38ths of the minimum salary applicable to the employee, plus 3.947% for each whole additional hour in excess of 43, provided that the rate of overtime loading in respect of hours in excess of 43 shall be capped at the rate applicable to the sixth step of Level C.

22.6 An error made in good faith by an employer in ascertaining the number of hours per week, as required under 22.5 a), does not constitute a breach of this Award, provided the employer has a fair and rigorous system for ascertaining those hours. This sub-clause does not limit the entitlement of employees to any overtime loading.

22.7 The employer must advise the employee before the period of account, or for a new employee within 14 days of the commencement of the period of account, whether any overtime loading is payable, and if so the basis and amount of the loading. An employee is not entitled to an overtime loading in respect of periods of leave. Overtime loading may be averaged over the period of account and any periods of leave or public holidays, and may be paid, or part paid, at the end of a period of account. The employer shall be entitled to reduce or withdraw overtime loading where required work in fact does not justify the overtime loading as advised to the employee, and must increase the overtime loading in accordance with this clause if the employer increases the amount of required work beyond that which was advised to the employee. No procedural requirement of Sub-clause 22.5 or this sub-clause need be complied with by any employer if the actual salary paid to the employee at all relevant times exceeds the sum of the minimum salary applicable under this Award and any overtime loading which would otherwise be payable.

22.8 To avoid doubt, with respect to employees whose actual hours of work are not set by the employer, no employer shall be held to be in breach of this clause merely by virtue of the fact that an employee is actually working any number of hours.

22.9 This clause does not apply to casual employees, except that where a casual employee is engaged for more than 76 hours in any two-week period, then the payments for hours worked in excess of 76 shall be 150% of the rate otherwise payable.”

[261] The NTEU submitted that before the 1990s most academic staff would have seen themselves in that category of employees able to determine their hours of work in the sense of determining much of what they did and how much work they did subject to not neglecting their duties. 285 However, the NTEU added, academic staff now had their work volume and much of their specific work determined at the behest and direction of their employer.286 Further, the NTEU contended that the nature of professional academic work was such that for nearly every task, it was only the academic who could determine how much time should be spent on that task, adding that it was for this reason that few academic staff would support the recording of hours actually worked as the basis for pay.287 While the NTEU submitted that the easy answer to this problem was to leave working time unregulated for academics, it also submitted that this led to serious problems such as leaving employees with little way to challenge unreasonable workloads or working hours.288

[262] Against that background, the NTEU in its submissions set out the following conclusions of principle drawn from the situation and the material before the Commission. 289

1. There should be no limitation on the hours of work which an academic could choose to work and the working of additional hours by genuine choice should not attract additional remuneration.

2. Pay should correspond to work requirements not hours as such.

3. The nature of academic work was such that a period of a week was too short a period of account for working hours or workload.

4. If the employee was paid only the minimum award wage, the amount of work required (the workload) should be such that the employee could be expected to be able to complete that workload to a professional standard within a standard working week having regard to objective considerations relating to the academic such as discipline and level appointment.

5. Where the required workload of the employee significantly exceeded that which could reasonably be expected to be completed in an average standard working week, the minimum award remuneration should be increased to appropriately reflect the proportionate increase in workload.

[263] The NTEU characterised its proposed clause as nothing more than an attempt to give effect to the above principles and thereby ensure a fair, relevant and enforceable safety net for employees in relation to minimum wages and working hours. 290 Also in its submissions the NTEU set out what it described as a number of factual contentions which could be drawn from the material before the Commission. Key contentions included:291

•  teaching and research related duties in some combination constituted the great majority of time academics spent on required work;

•  the mix of duties as between the different functions was primarily determined by the employer, either by the nature of the appointment itself or by the employer by periodic decision;

•  most academic staff retained considerable autonomy over such matters as the content of teaching units, research interests and methodologies and choice of service and engagement work within the constraints imposed by professional standards or their academic discipline;

•  there was no or nearly no systematic or official recording of actual hours worked by academics;

•  the great majority of academic working hours performed in the course of employment was work required or directed by the employer, being work which was specifically allocated or acquired of academics or was required to meet the performance standards of employees;

•  for academic staff whose duty included research related duties, the contractual obligation to perform these duties was rarely or never discharged by the employee having worked on them for a particular number of hours, noting that research work which was mostly “self-directed” was nevertheless required work;

•  a number of employers already had provisions in their enterprise agreements which were in large part consistent with the NTEU’s claim except for the provision of additional remuneration for more than a full-time workload;

•  academic staff on average worked significantly longer hours than a standard working week of 37.5 or 38 hours or relevant pro rata amounts for part-time employees

•  Professor Strachan’s research suggested that 51 per cent of academic staff were working more than 50 hours per week

•  the 2011 national survey conducted for the Commonwealth Government indicated average weekly working hours of 48.1 hours per week

•  the Commission could not on the basis of the evidence available make a finding about what the actual working hours of academics staff in Australia were but was entitled to make a finding that the above contention was made out; and

•  it was possible and practical to make a fair assessment of how much time it would take a competent academic to complete a given total academic workload to a professional standard, adding that university academic supervisors already did so.

[264] In its oral submissions the NTEU contended among other things that:

•  there was no actual evidence before the Commission that the current practice in respect of part-time employees meets the test of the Academic Staff Award (in term calculating the proportion of a FTE academic which the part-time academic’s hours of work equate to) in the absence of any regulation or understanding of the normal ordinary hours specified for a full-time academic; 292

•  the Academic Staff Award’s properly fixed minimum rates are undermined in circumstances where there is no provision in the Award which addresses the issue of long hours of work being required by the employer without compensation; 293

•  employers were wrong to say that the NTEU’s proposed clause required the setting, recording or monitoring of academic hours of work; 294 and

•  in the final analysis, the workloads allocated to academic staff were determined by their employer. 295

[265] With regard to the modern awards objective, the NTEU submitted inter alia that given the relationship between working hours and rates of pay for the safety net of terms and conditions of academic staff in 2017 not to have anything to say about working hours would mean that it was not a relevant safety net. 296 Further, the NTEU submitted that s.134(da)(i) of the Act required the Academic Staff Award to be considered afresh. Beyond this, the NTEU submitted that its proposed clause:297

•  promoted flexible modern work practices and the efficient and productive performance of work by encouraging clarity about work requirements and encouraging employers to provide for the most efficient method of performing the work required;

•  was likely to significantly improve productivity; and

•  was relatively easy to understand and broadly similar in principle to schemes that operate under enterprise agreements.

[266] The Go8 summarised its position as follows: 298

•  the NTEU variation was manifestly not necessary to meet the modern awards objective;

•  there was no proper basis and no substantial merit case for inclusion of an overtime payment and there was no sound basis on which the Commission could be satisfied that inclusion of such a payment was necessary; and

•  if the Commission considered that additional regulation of academic hours was necessary, the regulation should be directed at informing what constituted “unreasonable hours” being required by the employer in the context of s.62 of the Act.

[267] The Go8 further submitted that: 299

•  the existing provisions of the Academic Staff Award combined with the NES were sufficient to meet the modern awards objective;

•  the introduction of overtime payments would be inconsistent with the modern awards objective for several reasons including that

•  it introduced award regulation for professional, autonomous employees that was inconsistent with the regulation of other similar professional employees,

•  was not supported by the history of industrial regulation in the industry,

•  was ill-suited to the nature of academic employment and activities, particularly research,

•  was inconsistent with the nature of how academic work was organised and determined, with much of that work self-determined rather than directed or required by the employer, and

•  it would be divisive and undermine relationships of trust within the academy and lead to disputes; and

•  the NTEU’s proposed clause was complex, ambiguous and would create significant problems if it had to actually be applied.

[268] As did the NTEU, the Go8 also highlighted in its submissions a number of evidentiary conclusions which it contended supported its objection to the NTEU’s claim. Those conclusions included: 300

•  the absence of reliable evidence of the total average hours that represent what universities require, with the evidence showing that the estimates of time worked did not distinguish between activities that constitute academic work but are not work requirements imposed by the university;

•  that universities did not attempt to quantify research outputs based upon time taken to generate the outputs; and

•  compliance with the NTEU’s clause would lead to a number of adverse outcomes, including among other things disputation about what “required work” is and estimates of hours that a competent academic would take to perform the work to the requisite standard.

[269] At the hearing, the Go8 submitted that the NTEU’s proposed variations would impose significant costs and administrative complexity on universities. 301 Responding to the NTEU’s oral submissions regarding the issue of part-time employment, the Go8 contended that there was no evidence in this case of any difficulties or problems along the lines of those suggested by the NTEU.302

[270] With regard to the modern awards objective, the Go8 disputed the NTEU’s submissions in this regard and submitted inter alia that the NTEU had clearly not demonstrated that its proposed variation was necessary to meet the modern awards objective. The Go8 also contended that the claim was inconsistent with the need to encourage collective bargaining, the annual salaries specified in the Academic Staff Award already compensated employees for their role (including all the hours that they can lawfully be asked or required to work under the NES), the regulatory burden and costs of having to apply the clause would be significant. 303

[271] For all these reasons, the Go8 submitted that the NTEU’s claim should be rejected.

[272] AHEIA strongly opposed the inclusion of a clause of the type proposed by the NTEU, contending that the clause would be alien to academic work, disruptive and a major cause of disputation. 304 While AHEIA accepted that some academics worked long hours some of the time, it submitted that this was offset by the fact that they were professionals who had great flexibility and who for half of the year had no assigned teaching duties.305 This AHEIA further submitted was reasonable in terms of s.62 of the Act given all the incidents of the employment of academic staff.306 AHEIA further noted that it was extraordinarily difficult, if not impossible, to distinguish between work “required” of an academic and the other work that they do.307 AHEIA contended that the evidence showed that the only practical way to record the work done by academics would be by asking them to do this, adding that this would be unacceptable to academic employees and did not occur anywhere in the English speaking higher education system.308 As to the modern awards objective, AHEIA contended that the NTEU proposal would significantly increase employment costs under the modern award309 and with regard to s.134(1)(g) of the Act that the NTEU’s proposed clause was anything but simple and easy to understand, suggesting that the clause was convoluted and unclear and likely to give rise to considerable disputation.310 AHEIA also submitted that academics were in no different a situation to other professional staff, including teachers with no overtime provisions in their awards and pointed to the protection of the NES generally and s.62 of the Act which it contended provided recourse in the event of unreasonable working hours requested or required.311

[273] In its oral closing submissions, AHIEA stated that none of the many variations and amendments made by the NTEU to its proposed provision had allayed its fears that the provision would be “absolutely unworkable”, 312 reiterating its view that the provision was confusing and complex.

[274] In conclusion, AHEIA submitted that the NTEU’s claim should be rejected completely.

Consideration of the issues

[275] The NTEU’s case in respect of this claim relied heavily on the survey results canvassed in Professor Strachan’s 313 and Associate Professor Hepworth’s314 expert evidence regarding the 2011–2012 Survey and the 2015 State of Uni Survey respectively and Dr Kenny’s315 evidence regarding the key findings of a 2015-2016 national online Survey of academic staff which he conducted. While their evidence has been summarised earlier in this decision, we note that:

•  Professor Strachan accepted that of the academic staff that completed the 2011–2012 Survey those academics who were exceeding their performance expectations would have reported their hours of work including that contribution which saw them exceed minimum expectations; 316

•  Associate Professor Hepworth attested that he accepted Professor Wooden’s 317 view that responses to a number of questions in the NTEU’s 2015 Uni Survey would not provide reliable data on expected or required hours of work but might provide an estimate as to the hours spent working on university activities, later attesting that the estimates may not be very precise;318 and

•  Dr Kenny attested that he did not claim that the results of the national online Survey he conducted with the support of the NTEU were applicable to the whole profession 319, that the survey would not get through a peer review process without acknowledging its potential biases and that respondents were likely to consider everything they did in pursuing their discipline to be part of their academic workload when responding to a survey question about their actual academic workload.320

[276] Further, Professor Wooden in his expert evidence highlighted a number of issues regarding the NTEU’s 2015 Uni Survey. For instance, Professor Wooden deposed that the 2015 Uni Survey may be able to provide an indication about the estimated number of hours worked by academic staff (at least among those that responded), but not about required or expected hours. 321

[277] The above evidence in our view necessitates that caution should be adopted in relying on the evidence led by the NTEU in respect of the various surveys referred to above.

[278] Beyond this, key aspects to emerge from the evidence before the Commission regarding academic hours of work were that:

•  the available data suggests that many academics work beyond 38 hours per week on a regular basis;

•  it is difficult to distinguish between required and self-directed work;

•  while the teaching component of an academic’s workload could be quantified, this was not the case in respect of research given the self-directed nature of research work;

•  most if not all universities had put in place academic workload allocation arrangements;

•  at an international level, academic hours of work were not regulated;

•  there was scope for disagreement as to what activities came within the concept of “required work”;

•  academics were able to raise and have addressed their concerns about their workload, e.g. Dr Schroeder’s evidence was that his request for help to alleviate his workload were agreed to by the Dean of his School; 322

•  some universities had put in place mechanisms through which an academic could seek a review of their workload, with Mr Picoleau deposing 323 that at Monash over the period 2010 to 2015 there had only been five requests for review of workloads;

•  most academics would not accept a directive to limit their research time;

•  academic work did not lend itself to a timesheet or timeclock system, with a number of witnesses suggesting that implementation of the NTEU’s proposed clause would require the introduction of time sheets to enable universities to review academic workload; and

•  research performance standards were commonly set at a faculty or disciplinary level following discussion within those organisational units or areas.

[279] While the evidence before the Commission points to many academics working more than 38 hours per week on a regular basis, that evidence does not provide a reliable indication as to the actual hours that academics need to work to perform the duties required of them by their university. Indeed, given the undisputed self-directed nature of the research undertaken by academics and how that research is undertaken, it is difficult to envisage that distinction ever being possible. As alluded to above, we have a number of reservations about the survey material relied upon by the NTEU. Those reservations include that the survey data did not distinguish between required and self-directed work and that the survey samples were not necessarily representative. Further, we note that universities have in place workload allocation arrangements and mechanisms for dealing with those circumstances where an academic seeks a review of his or her workload. Those arrangements invariably entail discussions with the individual academic both in terms of their teaching and research activities. The material before the Commission does not point to these arrangements being fundamentally flawed or ineffective. Finally, we also agree that were the NTEU’s proposed variation to be implemented that it would likely require the implementation of more robust and/or rigorous mechanisms for recording the time spent on particular activities by academics.

[280] Having regard to the above, and in the absence of reliable probative evidence, we are not satisfied that the NTEU has established that its proposed variation is necessary to meet the modern awards objective. With particular regard to the modern awards objective we note that the NTEU’s proposed provision if inserted in the Academic Staff Award is likely to both have a cost impact and impose a regulatory burden on universities which are relevant considerations for the purposes of s.134(1)(f) of the Act. As to s.134(1)(da) of the Act, in circumstances where it is not possible in our view to delineate between required and self-directed academic work, it has not been established that the circumstances set out in s.134(1)(da) of the Act, to the extent they are relevant to the work of academics, actually exist. Nor is it possible to formulate an appropriate basis for the provision of additional remuneration. Lastly, we note that issues relating to academic workload have been the subject of enterprise bargaining and that enterprise bargaining continues to provide an appropriate avenue to address issues/concerns regarding a university’s particular arrangements.

[281] For all the above reasons, we decline to make the variation proposed by the NTEU.

14. RATES OF PAY – LINKAGE TO CLASSIFICATION DESCRIPTORS (GENERAL STAFF AWARD)

[282] The NTEU seeks to vary the General Staff Award to update the classification definitions in the Award and to make it clear that classifications are the determinant for classifying general staff. More particularly, the NTEU seeks the insertion of a new clause 15.3 in the Award in the following terms:

“15.3 Classification Levels

The Higher Education Worker Level classifications standards set out in Schedule B – Classification Definitions shall be the primary determinant of the classifications of general staff positions. Positions will be classified at the level which most accurately reflects the work performed by the employee as required by the employer, taking into account the skill and responsibilities required to perform that work.” 324

[283] On 18 December 2015 325 as part of the exposure draft process the Commission issued an exposure draft of the Higher Education – General Staff – Award 2015 which proposed the inclusion of a new clause in the following terms:

8. Classifications

8.1 A description of the classifications under this award is set out in Schedule A – Classification Definitions.

[284] The Go8 subsequently responded 326 that it was not opposed to the inclusion of a clause that references the classification definitions in Schedule A but proposed, as an alternative, that the Commission adopt the following wording which was contained in the two main general staff pre-reform awards that were applicable at the time of the making of the modern award, but which were inadvertently omitted:327

“8.1 The higher education worker level classification standard set out in Schedule A - Classification Definitions, shall be the primary determinant of the classifications of general staff positions. Positions will be classified at the level which most accurately reflects the work performed by the employee as required by the employer, taking into account the skills and responsibilities required to perform that work.

8.2 No employee shall refuse to perform duties reasonably required, consistent with the employee’s classification and which the employee is competent to perform.” 328 

[285] The Go8 further submitted that the adoption of this previous formulation provided greater guidance to the parties as to the relevance and use of the classification levels in Schedule A and reflected the previously established existing award regulation. 329

[286] The NTEU supports the inclusion of clause 8.1 above but objects to the inclusion of clause 8.2. More specifically, the NTEU submitted that variation of the General Staff Award to include clause 8.1 was necessary, as without such a provision the Classification Definitions set out in a Schedule to the Award had no work to do in determining the relevant minimum rate of pay for employees. The NTEU also submitted that the inclusion of the clause 8.1 was consistent with the modern awards objective. As to clause 8.2, the NTEU contended inter alia that: 330

•  there was no logical link to be drawn between the equivalent provisions in the relevant pre-reform awards;

•  the provision had no basis whatsoever in a minimum safety net of conditions for employees given that they would mean an employee could be prosecuted for refusing to perform a particular duty even in circumstances where they had a contractual right to do so; and

•  inclusion of the provision would be contrary to s.138 of the Act which deals with achieving the modern awards objective as inclusion of the clause was not necessary to achieve the modern awards objective of the minimum wages objective 331, adding that these objectives would be met by the inclusion of clause 8.1.

[287] In response, the Go8 submitted that clause 8.2 was uncontroversial, was neither prohibited nor offensive to s.138 of the Act and that it was inconceivable that an employee could be prosecuted for an award breach in circumstances where he or she had an enforceable contractual right to refuse to perform a particular duty. 332

[288] AHEIA made no submissions in relation to this claim.

Consideration of the issues

[289] Senior Deputy President Duncan handed down a decision 333 in November 2001 as part of a review of the Higher Education General and Salaried Staff (Interim) Award 1987 pursuant to item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 which, among other things, considered the adoption of descriptors and the fixing of minimum rates of pay. In his decision the Senior Deputy President included a chronology of events in the history of the Award which touched on the issue of classification descriptors334. That chronology points to the inclusion of classification descriptors in the Award as having a long history. The Senior Deputy President subsequently varied the Award to include the following provision:

“6.4 The Higher education worker position classification standards set out in Schedule A - Position classifications standards shall be the primary determinant of the classifications of general staff positions. Positions will be classified at the level which most accurately reflects the work performed by the employee as required by the employer, taking into account the skills and responsibilities required to perform that work.” 335

[290] That provision is in identical terms to the NTEU’s proposed clause 15.3 and the Go8’s proposed clause 8.1 (i.e. those clauses are identical as well).

[291] In contrast, clause 15.1 of the General Staff Award currently states:

“15.1 The minimum wages payable to employees are as follows: …”

[292] The provision makes no reference to the Classification Definitions at Schedule 2 of the General Staff Award. In other words, there is no explicit link between the rates of pay set out in the Award and the Award’s Classification Definitions.

[293] We consider there is benefit in including the proposed new clause 15.3 in the General Staff Award to provide the abovementioned explicit link which is presently missing from the Award. In short, we consider the inclusion of such a provision is necessary to meet the modern awards objective.

[294] With particular regard to the modern awards objective, we consider that inclusion of such a provision in the General Staff Award will ensure that the Award is simple and easy to understand as per s.134(1)(g) and is consistent with the principle of equal remuneration for work of equal or comparable value [s.134(1)(e)]. Beyond this, we think it highly unlikely that inclusion of the proposed clause in the Award will have any negative impact on universities, productivity and employment costs or impose an increased regulatory burden on universities.

[295] For all the above reasons, we propose to vary the General Staff Award in the terms sought by the NTEU. That is, to insert a new clause 15.3 as set out at [282] of this decision. A draft determination giving effect to this change will be issued shortly.

[296] As to the Go8’s proposal to include it proposed clause 8.2 in the Award, we are not satisfied that the inclusion of such a provision is necessary to meet the modern awards objective. We therefore decline to insert the Go8’s proposed clause in the Award.

15. WORKING HOURS AND OVERTIME (GENERAL STAFF AWARD)

[297] The NTEU seeks to vary the General Staff Award to impose an obligation on employers to take active steps to ensure that staff are only working additional hours if they are appropriately compensated through overtime payments, time off in lieu or similar. 336 The amendments they are seeking to clause 21 and 23 of the General Staff Award are set out below:

21. Ordinary hours and spread of ordinary hours

The maximum ordinary hours of work, and the spread of hours during which (other than shift workers) ordinary hours can be worked, shall be as set out in the following table, provided that ordinary hours may be worked in a manner agreed over a four week cycle.

...

23. Overtime

23.1 An employee will be paid overtime for all authorised work performed outside of, or in excess of, the ordinary or rostered hours as follows:

Time worked	Overtime rate
Monday—Saturday	150% of the ordinary rate of pay for the first two hours (first three hours for PACCT staff); and 200% of the ordinary rate of pay thereafter
Sunday	200% of the ordinary rate of pay
Public holidays	250% of the ordinary rate of pay

23.2 The employer must take reasonable steps to ensure that employees are not performing work in excess of the ordinary hours of work were outside the ordinary spread of hours as specified in clauses 21 and 27, except where such work has been authorised and compensated in accordance with clauses 23, 24 when 26.

23.3 An employee at Level 6 or above who responds to uses email or phone messaging beyond or outside the ordinary hours of work for brief periods, and only occasionally, to meet the needs of the employer, will not be deemed to be performing work beyond or outside the ordinary hours of work, provided that the sending or responding to such email messages at that time is not part of their assigned duties, contract or conditions of employment, has not been directed and is in all other senses voluntary.”

[298] In its submissions the NTEU highlighted what it described as factual contentions which it submitted the Commission could find on the basis of the evidence in this case. Those factual contentions included that:

•  many or some employers had no systems or procedures or practices to prevent or discourage the performance of unauthorised overtime;

•  some employers had systems which discouraged or prevented the recording or claiming of some overtime;

•  generally speaking enterprise agreements covering general staff required the authorisation of compensated overtime, not merely the authorisation of the performance of work;

•  the keeping of time records of actual time worked was not widespread in universities in respect of general staff;

•  some general staff worked necessary overtime without making claims for overtime either because of work pressures or because of perceived concerns that they should not do so;

•  a widespread culture of working long hours without claiming overtime or TOIL existed and for this to change positive action by employers was required;

•  there were reasonable steps that employers could take to ensure that employees were not working uncompensated overtime without imposing an unreasonable administrative burden; and

•  many or some general staff faced workload pressures which encourage the working of hours above ordinary hours.

[299] More specifically, the NTEU submitted that the evidence justified the proposed variation and that the requirement was not onerous or excessively prescriptive as it left it to the employer to choose the reasonable steps which would be most suited to its own operations.

[300] The NTEU further submitted that its proposed variations were manifestly matters which could be included in an award and that they met the modern awards objective relating either to simplicity of expression or modern and efficient work practices. With more particular regard to the modern awards objective, the NTEU submitted that the award safety net was not fair if an employer could benefit at the expense of an employee by either being unaware that uncompensated hours were being worked and wilfully or negligently remaining ignorant of whether additional hours of work were being worked on taking no action about this to either pay for that work in accordance with the General Staff Award or to stop the performance of that work. Moreover, the NTEU also submitted that the safety net was not fully relevant if its intended provisions never came into effect because of the velleity of the employer.

[301] Key aspects of the NTEU’s oral submissions included that: 337

•  the cost burden of its proposed variations was low;

•  if the Full Bench were to conclude that a significant number of general staff, e.g. 5, 10 or 15 per cent, were working uncompensated overtime it would be reasonable to say that the NTEU’s proposed variations were necessary having regard to the modern awards objective;

•  the systems which universities have in place in relation to TOIL were not as robust as they should be; and

•  none of the employer witness in this case had said that uncompensated hours were not being worked or that the issue was not a problem.

[302] In response to a question from the Bench at the hearings, the NTEU acknowledged that in theory nothing precluded an employee raising with his or her supervisor any concerns they may have about their workload. 338

[303] With regard to the NTEU’s proposed change to clause 21 of the General Staff Award, the Go8 contended that no merit-based case had been put forward for the variation and that the claim should be rejected. While acknowledging that the proposed variation was effectively a drafting matter for the Commission, the Go8 submitted that the Commission should note inter alia that the effect of the proposed change was already reflected in the existing clause, there was no evidence that the clause had been misunderstood or the subject of confusion and that there was no suggestion that the clause was ambiguous.

[304] As to the proposed insertion of clauses 23.2 and 23.3, the Go8 submitted that the NTEU clauses should not be adopted as they extended beyond permitted matters contrary to s.139 of the Act, were not variations necessary to achieve the modern awards objective nor were they variations only to that extent and that the NTEU submissions and evidence fell well short of the substantial merit case necessary. By way of background, the Go8 highlighted that the existing clause 23 the General Staff Award already clearly specified and entitlement for employees to be paid overtime and the circumstances in which that entitlement arose, adding that the provision was a standard award formulation which was in similar or identical terms to a large number of award provisions providing an entitlement to overtime.

[305] More specifically, the Go8 contended among other things that: 339

•  clauses 23.2 and 23.3 were not about overtime rates or arrangements for when work was performed consistent with s.139(1)(c) of the Act and could not sensibly be described by the other subsections of s.139;

•  the proposed provisions fell well short of demonstrating or satisfying the legislative requirement in s.142(1)(b) of the Act which provided that a modern award may include terms that are “essential for the purpose of making a particular term operate in a practical way”;

•  the clear weight of evidence demonstrated that where employees undertook authorised work performed outside of, or in excess of, their ordinary or rostered hours they already had an entitlement to benefits such as overtime or TOIL/flextime, universities had in place policies concerning overtime, TOIL and flextime together with appropriate forms and online mechanisms to support these policies and employees were aware of the entitlements that they could have additional work authorised and claim overtime and TOIL using the relevant forms and online mechanisms;

•  universities had made substantial overtime payments; and

•  there was no substantive evidence of staff being adversely treated for claiming overtime or TOIL.

[306] In its oral submissions the Go8 disputed the NTEU’s contention that the systems which universities have in place in relation to TOIL were not as robust as they should be, adding that they were working. Further, the Go8 maintained that there was no need for a policy that effectively said “don’t work outside our policies.” 340

[307] With particular regard to the modern awards objective, the Go8 submitted among other things that:

•  making the proposed NTEU variation would not encourage collective bargaining;

•  the existing Award provision provided for additional remuneration for employees working overtime; and

•  as acknowledged by the NTEU, the proposed clauses would increase the regulatory burden for employers.

[308] As such, the Go8 concluded that inclusion of clauses 23.2 and 23.3 should not be accepted by the Commission.

[309] AHEIA submitted that the evidence demonstrated that: 341

•  many staff were employed under flexible working arrangements under enterprise agreements and this suited them;

•  universities did pay overtime and/or provide TOIL;

•  overtime was payable to staff who worked under flexible arrangements as well as those who did not; and

•  managers were generally aware of their obligations in regard to overtime/TOIL.

[310] AHEIA further submitted that the proposed variations to clause 23 of the General Staff Award were vague and imprecise and could therefore result in disputation about “reasonable steps” and other aspects of the proposed clause. 342 Beyond this, AHEIA submitted that the proposed provision did not fall within matters that may be included in modern awards nor was it “incidental” to allowable modern award matters. AHEIA contended that given the novelty of the NTEU’s proposed scheme it would be more appropriate for the NTEU to pursue the matter in enterprise bargaining, adding that the General Staff Award already provided an appropriate regime for compensation for overtime by either payment or TOIL for eligible staff. In summary, AHEIA contended that the NTEU had not established that the Award needed to be amended in the manner sought and submitted that the claim should therefore be rejected.

Consideration of the issues

[311] By way of background, clause 21 of the General Staff Award currently provides as follows:

21. Ordinary hours and spread of ordinary hours

Ordinary hours may be worked in a manner agreed over a four week cycle.

Category of staff employees	Ordinary hours	Spread of hours (non shiftworkers)
Building services staff	38	6.00 am – 6.00 pm Monday – Friday
Catering and retail staff	38	6.00 am – 7.30 pm Monday – Sunday
Security staff	38	6.00 am – 6.00 pm Monday – Sunday
Children’s services staff	38	6.30 am – 6.30 pm Monday – Friday
Storage services staff	38	7.00 am – 5.30 pm Monday – Friday
Building and maintenance staff	38	6.00 am – 6.00 pm Monday – Friday
Trades staff, including plumbers	38	6.00 am – 6.00 pm Monday – Friday
PACCT staff	36.75	8.00 am – 6.00 pm Monday – Friday

The classifications set out in the above table must be read in conjunction with Schedule B—Classification Definitions.

[312] Key aspects of the evidence before the Commission regarding the NTEU’s claim were that:

•  many universities had in place overtime and TOIL arrangements for general staff, e.g. Mr Ward deposed that UNSW paid a total of almost $1.75 million in overtime to general staff in 2015;

•  some general staff were satisfied with their current arrangements regarding the working of additional hours, e.g. Mr Wilkes attested that he did not see any need to change his existing arrangements;

•  some general staff did not record their additional hours despite this being required by the relevant enterprise agreement, e.g. Mr Adams;

•  some general staff did not seek recompense for working additional hours while others did not utilise the flexibilities available to them, e.g. Mr Holloway’s evidence that he had never attempted to claim overtime and Mr Adams’ evidence that he did not access or use TOIL;

•  in some cases general staff did not understand how to use time recording systems to ensure that accrued carryover hours were not lost, e.g. Ms Ford’s evidence that she did not understand how to book flex leave in advance;

•  mechanisms existed for employees to raise concerns regarding their workload, e.g. Mr Giles attested that the enterprise agreement applying at his former workplace provided for general staff in an area to request a workload review in circumstances where they had concerns about excessive workloads and that he was not aware of any employees seeking a workload review in accordance with those provisions;

•  a number of general staff had negotiated flexible arrangements with their supervisor, e.g. Ms Brown’s evidence that she had entered into various arrangements with VU to provide flexibility to accommodate her parental responsibilities and that when working as a HEW Level 6 employee she would consistently accrue a substantial amount of TOIL which she would draw down instead of taking annual leave and Mr Holloway’s evidence that he agreed an arrangement with his manager which enabled him to capture the hours he worked; and

•  a number of university managers gave evidence that general staff should not work additional hours unless they were compensated for those hours, e.g. Professor Biggs and Ms Chegwidden.

[313] While the evidence pointed to some general staff working additional hours, the evidence does not establish that those hours were worked across the board by general staff or were not capable of being compensated or dealt with in accordance with the processes established under the applicable industrial instrument. Further, we note the dearth of any evidence pointing to hours of work for general staff being the subject of disputes raised in accordance with the relevant industrial instrument. Having regard to all of the material before the Commission in respect of this issue, we are not satisfied that the NTEU has established that its proposed variations to clauses 21 and 23 of the General Staff Award are necessary to meet the modern awards objective.

[314] Furthermore, we consider that the NTEU’s proposed variation is inconsistent with s.134(1)(g) of the Act in that it would impose an unnecessary regulatory burden on universities.

[315] With regard the NTEU’s proposed variation to clause 21 of the General Staff Award, there was no evidence before the Commission that the current formulation had proven to be problematic or that the provision, together with the NES, did not provide a fair and minimum safety net of conditions of employment. We are therefore not satisfied that the proposed variation is necessary to meet the modern awards objective.

[316] For all the above reasons we decline to vary clause 21 and 23 of the General Staff Award as proposed by the NTEU.

16. CHANGES TO SESSIONAL ACADEMICS RATES SCHEDULE

[317] The NTEU made a claim relating to changes to the sessional academics rates schedule in the Academic Staff Award. Key elements of the NTEU claim were: 343

(i) clarification of the points in the salary structure at which relevant doctoral qualifications and full subject coordination duties became relevant to determining the rate of pay; and

(ii) providing definition of the terms ‘lecture’, ‘tutorial’, ‘repeat lecture’, ‘repeat tutorial’ and ‘associated working time’.

[318] In its closing submissions, the NTEU indicated that some aspects of its claim had been addressed in the exposure draft process. Against that background, in relation to (i) above the NTEU indicated that it did not pursue any further changes than those already agreed during the exposure draft process. In respect of (ii), the NTEU maintained that in the absence of any definitions, the modern award failed to provide a fair safety net of wages. In support of its revised claim, the NTEU submitted that the rates of pay for lecturing and tutoring and the concept of associated working time for these and several other categories of casual academic work were key elements of the structure of the casual rates of pay in the modern award, adding that it was fundamental to a fair safety net the employers and employees to be able to determine which rates of pay attached to which work. The NTEU further highlighted that the pre-reform regulation of these rates was characterised by clear statements limiting the circumstances in which different rates applied and that the modern award failed to do this.

[319] Specifically, the NTEU proposed the inclusion of the following definitions in either a new clause 9.4(c) [clause 9.4 of the exposure draft of the Academic Staff Award deals with rates of pay for casual employees] or as additions to the list of definitions at Schedule E to the Academic Staff Award.

(a) “lecture” means any education delivery described as a lecture in a course or unit outline, or in an official timetable issued by the University (including an equivalent delivery through other than face-to-face teaching mode).

(b) “tutorial” means any education delivery described as a tutorial in a course or unit outline, or an official timetable issued by the University (including equivalent delivery through other than face-to-face teaching mode).

(c) “repeat lecture” or “repeat tutorial” means a second or subsequent delivery of substantially the same lecture or tutorial in the same subject matter within a period of seven days of the original delivery.

(d) “associated working time” means time providing duties directly associated with the hour of delivery, being duties in the nature of preparation and reasonably contemporaneous marking and student consultation.

[320] Beyond this, the NTEU contended that defining the terminology used in the casual rates of pay table was clearly a term that may be included in a modern award as it either directly regulated rates of pay or was incidental to that regulation and essential for the Academic Staff Award to operate in a practical way. Further, inclusion of the definitions not only contributed to the establishment of a fair and relevant minimum safety net by ensuring clarity as to the operation of the Award terms but it also reduced the regulatory burden on employers and ensured the Award provisions were easy to understand.

[321] The Go8 submitted that whilst it was arguable that such changes were not necessary it acknowledged that the wording was part of the pre-reform awards in this industry and also commonly appeared in enterprise agreements. 344 Accordingly, in the interests of efficiency in the proceedings and as it further reinforced the Go8’s submission that there was settled, fair and relevant industrial regulation in the sector, the Go8 did not oppose the addition of the NTEU’s proposed definitions.

[322] AHEIA similarly did not oppose the addition of the NTEU’s proposed definitions on the basis that the definitions sought to be inserted appeared in the relevant pre-reform awards. 345

[323] As previously mentioned, the submissions made by ABI & NSWBC were limited to this claim by the NTEU. Given the NTEU’s advice that in respect of the first component of its claim (see (i) at paragraph [317]) it did not pursue any changes beyond those already agreed during the exposure draft process, we do not set out ABI & NSWBC’s submissions regarding that aspect of the claim. In respect of the second aspect of the NTEU’s claim, ABI & NSWBC submitted that the variation sought should not be made. 346 More specifically, ABI & NSWBC opposed the proposed variation for a number of reasons, including that:

•  reinsertion of the definitions would not make the Academic Staff Award any simpler or easier to understand in a way that would satisfy s.134(g) of the Act;

•  casual academics may be disadvantaged by delimiting and narrowly defining the types of activities “associated working time” might include, adding that this was a significant change which must be supported probative evidence properly directed to demonstrating the facts supporting the proposed variation; and

•  there was a lack of evidence which directly addressed the proposed variation.

Consideration of the issues

[324] Clause 18.2 of the Academic Staff Award currently provides as follows:

“18.2 The following will apply to casual academics for work performed:

	Per hour (including the casual loading) $
Lecturing
Basic lecture (1 hour of delivery and 2 hours of associated working time)	125.77
Developed lecture (1 hour of delivery and 3 hours associated working time)	167.72
Specialised lecture (1 hour of delivery and 4 hours associated working time)	209.64
Repeat lecture (1 hour of delivery and 1 hour associated working time)	83.84
Tutoring
Tutorial (1 hour of delivery and 2 hours associated working time)	98.14
Repeat tutorial (1 hour of delivery and 1 hour associated working time)	65.41
Tutorial (1 hour of delivery and 2 hours associated working time) (where academic holds Doctorate)	111.38
Repeat tutorial (1 hour of delivery and 1 hour associated working time) (where academic holds Doctorate)	74.23
Musical accompanying
Musical accompanying (1 hour of delivery and 1 hour preparation time)	65.41
Musical accompanying (1 hour of delivery and 1 hour preparation time) (where academic holds Doctorate)	74.23
Undergraduate clinical nurse education
Little preparation required (1 hour of delivery and 0.5 hours associated working time)	49.07
Normal preparation time (1 hour of delivery and 1 hour associated working time)	65.41
Little preparation required (1 hour of delivery and 0.5 hours associated working time) (where academic holds Doctorate)	55.68
Normal preparation time (1 hour of delivery and 1 hour associated working time) (where academic holds Doctorate)	74.23
Marking rate
Standard marking	32.69
Marking as a supervising examiner, or marking requiring a significant exercise of academic judgment appropriate to an academic at level B status	41.93
Standard marking (where academic holds Doctorate)	37.13
Marking as a supervising examiner, or marking requiring a significant exercise of academic judgment appropriate to an academic at level B status (where academic holds Doctorate)	41.93
Other required academic activity
If academic does not hold doctoral qualification or perform full subject coordination duties	32.69
If academic holds doctoral qualification or performs full subject coordination duties	37.13

[325] The Academic Staff Award does not define any of the terms used in clause 18.2.

[326] No evidence was led highlighting that the effective operation of the existing Award provision had been compromised in the absence of the NTEU’s proposed variation or that there was any uncertainty in the application of the award provision. Further, as the Go8 noted in its submissions, the wording proposed by the NTEU commonly appeared in enterprise agreements.

[327] Together these considerations do not support a finding that the minimum safety net is somehow deficient. While we note that the definitions were included in pre-reform awards we are nevertheless not satisfied that their inclusion as proposed by the NTEU is necessary to achieve the modern awards objective, particularly as it appears that any issues arising from the absence of the definitions in the Award are being dealt with through enterprise bargaining.

[328] As such, we decline to vary the Academic Staff Award as sought by the NTEU.

17. CASUAL CONVERSION (ACADEMIC STAFF AWARD)

[329] The NTEU has foreshadowed an application to vary the Academic Staff Award to provide for the conversion of certain academic casual work. In its submissions the NTEU noted that this claim would be scheduled and addressed after the conclusion of the common issue matter AM2014/197.

[330] The Go8 noted that the NTEU was not presently pressing any application to provide for academic casual conversion and that any such application in the future was dependent on the outcome of the Casual Employment common claim.

[331] AHIEA noted in its submissions that it would strongly oppose any application to vary the Academic Staff Award to provide for the conversion of certain academic casual work.

[332] The Casual Employment Full Bench handed down its decision in the 4 Yearly Review of Modern Awards – Casual employment and Part-time employment 347 common issue matter on 5 July 2017. In that decision the Full Bench set out a proposed model casual conversion clause348 and a timetable for interested parties to make further submissions concerning the proposed model casual conversion clause349. To date the Casual Employment Full Bench is yet to finalise the terms of model casual conversion clause. Against that background, the NTEU is yet to lodge its foreshadowed application regarding casual conversion.

18. COMMON ISSUE – ANNUAL LEAVE

[333] In its 11 June 2015 decision (the June 2015 decision) 350 the Annual Leave Full Bench set out its provisional views regarding model terms in respect of a number issues relating to annual leave, including granting annual leave in advance, the cashing out of annual leave and excessive annual leave. In its 15 September 2015 decision351 (the September 2015 decision) the Annual Leave Full Bench finalised the terms of the model terms, indicated that it would next deal with the insertion of the model terms into modern awards and foreshadowed its intention to provide interested parties with an opportunity to make submissions and adduce evidence in relation to whether the various model terms should now be inserted into particular modern awards. The Go8, AHIEA and the NTEU all filed submissions as part of the Annual Leave common issue proceedings. Those submissions focussed on the issue of excessive annual leave. As previously noted, the Annual Leave Full Bench on 23 November 2015352 referred the implementation of the annual leave model terms in respect of the Awards to this Full Bench for determination.

[334] The final version of the excessive annual leave model term was determined in the September 2015 decision. 353 The Annual Leave Full Bench subsequently reviewed the model term to ensure it was expressed in plain language in the 23 May 2016 decision (May 2016 decision).354 The revised model term as determined by the Annual Leave Full Bench in its 24 June 2016 decision (June 2016 decision)355 is as follows:

1.3 Excessive leave accruals: general provision

NOTE: Clauses 1.3 to 1.5 contain provisions, additional to the National Employment Standards, about the taking of paid annual leave as a way of dealing with the accrual of excessive paid annual leave. See Part 2.2, Division 6 of the Fair Work Act.

(a) An employee has an excessive leave accrual if the employee has accrued more than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a shiftworker, as defined by clause 1.x).

(b) If an employee has an excessive leave accrual, the employer or the employee may seek to confer with the other and genuinely try to reach agreement on how to reduce or eliminate the excessive leave accrual.

(c) Clause 1.4 sets out how an employer may direct an employee who has an excessive leave accrual to take paid annual leave.

(d) Clause 1.5 sets out how an employee who has an excessive leave accrual may require an employer to grant paid annual leave requested by the employee.

1.4 Excessive leave accruals: direction by employer that leave be taken

(a) If an employer has genuinely tried to reach agreement with an employee under clause 1.3(b) but agreement is not reached (including because the employee refuses to confer), the employer may direct the employee in writing to take one or more periods of paid annual leave.

(b) However, a direction by the employer under paragraph (a):

(i) is of no effect if it would result at any time in the employee’s remaining accrued entitlement to paid annual leave being less than 6 weeks when any other paid annual leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account; and

(ii) must not require the employee to take any period of paid annual leave of less than one week; and

(iii) must not require the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the direction is given; and

(iv) must not be inconsistent with any leave arrangement agreed by the employer and employee.

(c) The employee must take paid annual leave in accordance with a direction under paragraph (a) that is in effect.

(d) An employee to whom a direction has been given under paragraph (a) may request to take a period of paid annual leave as if the direction had not been given.

NOTE 1: Paid annual leave arising from a request mentioned in paragraph (d) may result in the direction ceasing to have effect. See clause 1.4(b)(i).

NOTE 2: Under section 88(2) of the Fair Work Act, the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

1.5 Excessive leave accruals: request by employee for leave

(a) If an employee has genuinely tried to reach agreement with an employer under clause 1.3(b) but agreement is not reached (including because the employer refuses to confer), the employee may give a written notice to the employer requesting to take one or more periods of paid annual leave.

(b) However, an employee may only give a notice to the employer under paragraph (a) if:

(i) the employee has had an excessive leave accrual for more than 6 months at the time of giving the notice; and

(ii) the employee has not been given a direction under clause 1.4(a) that, when any other paid annual leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account, would eliminate the employee’s excessive leave accrual.

(c) A notice given by an employee under paragraph (a) must not:

(i) if granted, result in the employee’s remaining accrued entitlement to paid annual leave being at any time less than 6 weeks when any other paid annual leave arrangements (whether made under clause 1.3, 1.4 or 1.5 or otherwise agreed by the employer and employee) are taken into account; or

(ii) provide for the employee to take any period of paid annual leave of less than one week; or

(iii) provide for the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the notice is given; or

(iv) be inconsistent with any leave arrangement agreed by the employer and employee.

(d) An employee is not entitled to request by a notice under paragraph (a) more than 4 weeks’ paid annual leave (or 5 weeks’ paid annual leave for a shiftworker, as defined by clause 1.x) in any period of 12 months.

(e) The employer must grant paid annual leave requested by a notice under paragraph (a).” 356

[335] In the May 2016 decision, the Full Bench confirmed its conclusion in the September 2015 decision 357 that any determination inserting the model term will provide that sub-clause 1.2(c) of the model term (being 1.5 in the revised model term above) commences operation 12 months after the commencement of the other sub-clauses358 (being 1.3 and 1.4 in the revised model term above). The June 2016 decision further determined that an additional self-executing provision in the determination would remove the transitional sub-clause from clause 1.5 in 12 months’ time.359 This was reflected in the determinations subsequently issued by the Annual Leave Full Bench on 29 July 2016.360

[336] The Go8 relied on its submissions to the Annual Leave Full Bench. In those submissions the Go8 contended that if the Annual Leave Full Bench intended to include the excessive annual leave model term in the Awards that it should be tailored to take into account and have regard to some specific features of the higher education industry. The Go8 submitted that this tailoring was to protect the integrity of course offerings and avoid adverse student impact. Specifically, the Go8 submitted that were the model term to be adopted clause 1.2(c) of the model term should be tailored to the industry by qualifying the capacity of an employee to give binding notice under the clause to “periods falling outside the teaching and examination period in respect of which the staff member has already been allocated work.” 361 The Go8 further submitted that such an approach would be consistent with the modern awards objective and the NES.

[337] AHEIA opposed the inclusion in the Awards of the excessive annual leave model term. Key aspects of AHIEA’s submissions were that:

•  the Awards already contained provisions for the direction of taking excessive annual leave, adding that those provisions should remain undisturbed;

•  the model term represented a significant departure from the existing clauses in the Awards, highlighting that those existing clauses allowed for direction to occur once leave accruals had reached 30 days and that academic staff could be directed to take their full accrual while general staff could be directed to take up to 20 days of their accrual;

•  since 2006 universities had had difficulty in containing the growth of excessive leave liabilities;

•  there was no evidence that the current provisions did not provide a fair and relevant safety net for the industry; and

•  the model term if inserted into the Awards would reduce the flexibility of employers in the industry to direct staff to take annual leave which in turn was likely to have cost implications arising from further increase in annual leave balances. 362

[338] In its oral submissions AHIEA indicated that were the Full Bench of a mind to insert the model term in the Awards the term should be tailored as proposed by the Go8. 363

[339] The NTEU supported the insertion of the model term in the Awards and submitted that the model term need not be tailored in any way. Further, the NTEU rejected AHEIA’s contention that the insertion of the model term in the Awards would reduce the flexibility of employers to direct staff to take excessive annual leave. 364

Consideration of the issues

[340] Clause 23.1 of the Academic Staff Award deals with the management of annual leave as follows:

“23.1 Management of annual leave

A staff member whose accrued annual leave entitlement equals or exceeds 30 days may be required in writing to take accrued annual leave, but only if the requirement is reasonable.

The employer must give at least 2 months’ notice of the date on which the staff member is required to take leave and where a staff member is directed to take annual leave, the employer will be entitled to deduct the amount of annual leave directed to be taken, at the conclusion of the period of leave.”

[341] Similarly, clause 30.1 of the General Staff Award deals with the issue in the following way:

“30.1 Management of annual leave

An employee whose accrued annual leave entitlement equals or exceeds 30 days may be directed in writing to take up to 20 days of their accrued annual leave entitlement.

The time of taking leave will be determined by the employer, having regard to operational requirements and any matters raised by the individual employee.

Written direction to take annual leave:

(a) must be given at least two months prior to the date on which the employee is to take the leave; and

(b) can be given whether the employee’s accrued annual leave equals or exceeds 30 days when the direction is given or when it takes effect.

Where an employee is directed to take annual leave, the employer will be entitled to deduct the amount of annual leave directed to be taken at the conclusion of the period of leave.”

[342] By way of background, in the June 2015 decision the Annual Leave Full Bench stated as follows in respect of its proposed excessive annual leave model term:

“[177] We also observe that the Employer Group’s model term does not require an employer to enter into any dialogue with an employee before directing them to take part of their annual leave. In particular, the employer is under no obligation to discuss the issue of excessive annual leave accrual with the employee or to seek to reach an agreement with the employee about the time for taking such leave. It is plainly preferable if these matters can be resolved by agreement between the employer and employee, without the need for a direction. We note that about one-third (25) of the 79 modern awards which presently contain excessive leave provisions provide that an employee can only be directed to take a period of annual leave after the “employer has genuinely tried to reach agreement with an employee as to the timing of taking annual leave”.

...

[190] The model term is intended to establish mechanisms to assist both employers and employees to reduce or eliminate “excessive leave accruals” consistent with the statutory framework and subject to appropriate safeguards. It incorporates both terms requiring an employee to take leave in particular circumstances (s.93(3)) and terms otherwise dealing with the taking of paid annual leave (s.93(4)).

...

[209] Subclause 1.2(c) provides for an employee to give a written notice to the employer that the employee wishes to take paid annual leave. This is intended to address circumstances such as where an employee’s requests to take his or her full leave accrual have repeatedly been refused by the employer, or the employee has repeatedly been dissuaded from applying to take his or her full leave accrual. The proposed subclause provides that the employer must grant the employee paid annual leave in accordance with a notice complying with this subclause. While subclause 1.2(c) may be characterised as supplementing the NES (within the meaning of s.55(4)), we acknowledge that there may be some tension between the proposed subclause and s.88. These issues can be canvassed in the opportunity provided to make further submissions (see paragraph [219]).

[210] Such a notice can only be given by the employee if the employee has had an excessive leave accrual for at least six months. This provides the employer with a reasonable opportunity to deal with the employee’s excessive leave accrual before the employee is able to require that leave to be granted. If the employer has already given the employee a direction complying with subclause 1.2(b) to take leave and the directed leave will eliminate the employee’s excessive leave accrual, then the employee cannot issue any notice. If a direction has been given but after the directed leave is taken the employee will still have an excessive leave accrual, the employee could issue a notice under this subclause.

[211] Similarly to an employer direction to take leave, the model term requires the employee first to request a meeting and to genuinely try to resolve the employee’s excessive leave accrual by agreement.” 365 (Underlining added)

[343] A comparison of the existing provisions in the Awards regarding the management of annual leave against the model term indicates that the existing provisions provide a lower threshold in terms of what constitutes excessive annual leave and do not contain a number of the safeguards contained in the model term. More specifically, the existing provisions in the Awards are enlivened where a staff member’s accrued annual leave entitlement either equals or exceeds 30 days whereas the model term defines an excessive annual leave accrual as more than 8 weeks’ accrued annual leave (or 10 weeks’ accrued annual leave in respect of shiftworkers). No material was put before the Commission as to the rationale for the 30 day threshold specified in the existing award provisions 366. Further, the existing provisions do not require attempts to deal with excessive annual leave accruals by agreement before a direction to take annual leave can be given. In our view the existing provisions lack balance when compared to the model term. The absence of the model term’s safeguards from the existing provisions of the Awards supports the insertion of the model terms in the Awards.

[344] With regard to the Go8’s contention that if the model term were to be inserted in the Awards that clause 1.2(c) of the model term [1.5 in the revised model term] should be tailored to the industry, we note that the provision is only enlivened in circumstances where an employee has had an excessive leave accrual for more than six months and the employer has not given a direction under clause 1.2(b) [1.4 in the revised model term] that will eliminate the employee’s excessive leave accrual. In other words, employers have considerable scope to manage excessive annual leave proactively to avoid the Go8’s concern being realised, e.g. by giving a direction under clause 1.2(b) of the model term [1.4 of the revised model term] that leave be taken. The June 2015 decision outlines the scope for employers in this regard (see the underlined text in the above extract from that decision). As such, we do not consider that the Go8’s proposed variation is necessary. However, we consider that one minor variation to the model term is necessary before it is inserted in the Academic Staff Award. Given that the Academic Staff Award does not provide for shiftwork, we consider it necessary to vary the model term to remove any references to a shiftworker.

[345] Further, we do not accept AHEIA’s submission that insertion of the model term in the Awards is likely to have cost implications arising from further increase in annual leave balances. While the model term includes a number of safeguards regarding a direction to take annual leave which do not exist in the current Award provisions regarding the management of annual leave, those safeguards are for the reasons outlined by the Annual Leave Full Bench in its June 2015 decision consistent with the statutory framework. Further, those safeguards do not in our view inhibit the capacity of employers in this industry to actively manage excessive annual leave accruals.

[346] With regard to the modern awards objective, the September 2015 decision stated as follows in respect of the excessive annual leave model term:

“[173] Subject to what may be put about the circumstances pertaining to a particular modern award our general view is that the variation of modern awards to incorporate the model term is necessary to ensure that each modern award provides a fair and relevant minimum safety net, taking into account the s.134 considerations (insofar as they are relevant) and would also be consistent with the objects of the Act.

[174] The taking of accrued paid annual leave can have mutual benefits for employers and employees. Yet most employees do not use their full paid annual leave entitlement and a significant proportion of employees have six weeks or more accrued paid annual leave. The excessive accumulation of leave has significant adverse consequences. Not taking a reasonable portion of leave can give rise to a serious threat to the health and safety of the employees concerned and excessive annual leave accruals represent a significant financial liability for employers which can give rise to cash flow problems (particular for small businesses) when paid out on termination. When leave is taken so as to reduce or eliminate excessive leave accruals, employees will benefit from a period of rest and recovery from work, which has significant positive implications for employee health and wellbeing. Reducing fatigue at work and improving workplace health and safety is also of benefit to employers, and the evidence indicates that absenteeism is also reduced after a period of leave.

[175] The model term facilitates the making of mutually beneficial arrangements between an employer and employee and provides an effective mechanism to address excessive annual leave accruals. It provides an employer with a reasonable opportunity to deal with an employee’s excessive leave accrual before the employee is able to issue a notice requiring of leave be granted. The various safeguards incorporated into the model term seek to protect the interest of both employees and employers.

[176] Section 134(1)(d) of the modern awards objective requires the Commission to take into account the need to promote flexible modern work practices and the efficient and productive performance of work, and under s.134(1)(f) the Commission must also take into account the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden. For the reasons outlined above, the insertion of the model term would assist in ensuring that modern awards are relevant to the needs of the modern workplace, and would assist businesses.

[177] Finally, the insertion of the model term into modern awards is also consistent with the objects of the Act by: providing workplace relations laws that are fair to working Australians and are flexible for businesses (s.3(a)); ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES and modern awards (s.3(b)); assisting employees to balance their work and family responsibilities by providing for flexible working arrangements (s.3(d)); and acknowledging the special circumstances of small and medium-sized businesses (s.3(g)). In respect of s.3(g), as relatively few employees employed in small businesses are covered by a collective agreement, a modern award variation of the type proposed would ensure that all such businesses have capacity to deal with excessive leave accruals.” 367

[347] We respectfully agree with the Annual Leave Full Bench’s views.

[348] For all the above reasons, the excessive annual leave model term will be inserted in the Awards. In respect of the Academic Staff Award, as outlined above, the model term will be varied to remove any references to shiftworkers. The transitional sub-clause in relation to the “Excessive leave accruals: request by employee for leave” clause, and the self-executing provision removing it in 12 months’ time, will be inserted in the determination in order to give employers time to adjust and address situations where a significant proportion of an employer’s workforce currently has excessive leave accruals. We note that the Annual Leave Full Bench issued a determination in relation to the Black Coal Mining Industry Award 2010 in November 2017 which also provided for the 12 month transition. 368

[349] Finally, we note that no party objected to the inclusion of the model terms regarding the cashing out of annual leave and the granting of annual leave in advance. In those circumstances, the model terms will also be inserted in the Awards.

19. COMMON ISSUE – AWARD FLEXIBILITY

[350] The proposed variation to the General Staff Award to include the model TOIL term was referred to this Full Bench for determination by the Award Flexibility Full Bench on 24 April 2016. 369 We note that following that referral the TOIL model term was further varied in a number of respects. The model term as finally determined on 8 July 2016 is as follows:

“A.1 Time off instead of payment for overtime

(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.

(b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause A.1.

(c) An agreement must state each of the following:

(i) the number of overtime hours to which it applies and when those hours were worked;

(ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;

(iii) that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;

(iv) that any payment mentioned in subparagraph (iii) must be made in the next pay period following the request.

Note: An example of the type of agreement required by this clause is set out at Schedule [x]. There is no requirement to use the form of agreement set out at Schedule [x]. An agreement under clause A.1 can also be made by an exchange of emails between the employee and employer, or by other electronic means.

(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.

EXAMPLE: By making an agreement under clause A.1 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.

(e) Time off must be taken:

(i) within the period of 6 months after the overtime is worked; and

(ii) at a time or times within that period of 6 months agreed by the employee and employer.

(f) If the employee requests at any time to be paid for overtime covered by an agreement under clause A.1 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.

(g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

(h) The employer must keep a copy of any agreement under clause A.1 as an employee record.

(i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.

(j) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause A.1 will apply, including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.

Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).

(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause A.1 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

Note: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause A.1.” 370

[351] In those awards which provide for TOIL at the overtime rate, in addition to the other changes to the model term, sub-clause (d) of the model term has been varied as follows:

“(d) The period of time off that an employee is entitled to take is equivalent to the overtime payment that would have been made.

EXAMPLE: By making an agreement under clause T.T an employee who worked 2 overtime hours at the rate of time and a half is entitled to 3 hours’ time off.” 371

[352] The NTEU supported the insertion of the TOIL model term in the General Staff Award, submitting that a requirement for written agreement to take TOIL and a written record of agreed time worked and TOIL taken was appropriate to the industry. 372 The NTEU further submitted that its submissions relating to general staff hours of work and uncompensated overtime also supported the inclusion of the TOIL model term in the General Staff Award.373

[353] The Go8 submitted that the TOIL model term should not be inserted in the General Staff Award for a number of reasons including that doing so would effectively introduce a new entitlement to overtime pay for employees above the HEW 6 classification, the General Staff Award already provided for time off in lieu of overtime payment TOIL, inserting the TOIL model term in the General Staff Award would undermine enterprise bargaining in the sector and the draft term (as it was at that stage) was inconsistent and confusing. 374 In its June 2016 written submissions, the Go8 submitted that the Award Flexibility Full Bench had determined not to include the TOIL model term for employees who do not presently have an overtime pay entitlement, contending that this further supported its submissions. Nevertheless, the Go8 appended to those written submissions a draft determination which applied the TOIL model term in respect of those employees who were eligible to receive paid overtime, i.e. HEW 6 and below employees as per clause 26.1(a) of the General Staff Award.375 The Go8 submitted an updated draft determination on 30 March 2017376.

[354] AHEIA opposes the inclusion of the TOIL model term in the General Staff Award and supports the Go8’s submissions. 377

Consideration of the issues

[355] Clause 26 of the General Staff Award deals with time off instead of overtime payment and provides as follows:

“26. Time off instead of overtime payment

26.1 An employee will be paid overtime or provided with time off instead of overtime payment for all authorised work performed outside of, or in excess of, the ordinary or rostered hours as follows:

(a) An HEW 6 or below will be eligible to receive paid overtime or, where requested by the employee and approved by the employer, may take time off instead of overtime payment calculated in accordance with the relevant overtime rate.

(b) An HEW 7 or HEW 8 will not be eligible for paid overtime but may take time off instead of overtime payment, at a mutually agreed time, calculated in accordance with the relevant overtime rate.

(c) An HEW 9 or above will not, except as provided in this subclause, be entitled to paid overtime or time off instead of overtime payment. By agreement with the employer, the employee will be provided with time off instead of overtime payment at the rate of one hour for each hour of overtime worked when the employee is specifically required to work additional hours and it would be unreasonable for time off instead of overtime payment not to be provided.”

[356] A number of observations can be made about clause 26 of the General Staff Award. First, TOIL calculated in accordance with the relevant overtime rate is available to HEW 6 and below employees. Second, it is clear that HEW 7 and above employees are not eligible for/entitled to paid overtime, with TOIL the default position for HEW 7 and HEW 8 employees. For HEW 9 and above employees TOIL is subject to agreement, the employee being specifically required to work additional hours and it being unreasonable for it not to be provided. Third, the clause does not contain any of the protections reflected in the TOIL model term. For instance, the current General Staff Award provision does not specify the timeframe with in which TOIL is to be taken, does not provide scope for an employee to request payment at any time despite a written agreement to take TOIL and does not provide for payment for the overtime at the relevant overtime rate in circumstances where TOIL has not been taken upon the termination of an employee’s employment.

[357] The absence of the abovementioned protections are in our view significant deficiencies which warrant the inclusion of the TOIL model term in the General Staff Award. However, the insertion of the model term in the General Staff Award should not disturb the existing approach in respect of HEW 7 and above employees who as noted above are not eligible for/entitled to paid overtime. As such, the TOIL model term as applied to awards which provide that TOIL is to be calculated in accordance with the relevant overtime rate will only apply to HEW 6 and below employees.

[358] With regard to the modern awards objective, we note and respectfully agree with the following views expressed by the Award Flexibility Full Bench in its 6 October 2015 decision:

“[69] Subject to what may be put about the circumstances pertaining to particular modern awards our general view is that the variation of modern awards to incorporate the model term is necessary to ensure that each modern award provides a fair and relevant minimum safety net, taking into account the s.134 considerations (insofar as they are relevant) and would also be consistent with the objects of the Act.

[70] We also accept that flexible working arrangements, such as TOIL, may encourage greater workforce participation, particularly by workers with caring responsibilities. The evidence referred to in the Award Flexibility Decision also supports a general finding that regardless of the industry employees work in, the most important aspect of determining employee satisfaction with their current job is the flexibility to balance work and non-work commitments.

[71] As a general proposition we accept that flexible working arrangements, such as TOIL, may encourage greater workforce participation, particularly by workers with caring responsibilities. The insertion of an appropriate TOIL facilitative provision in modern awards is consistent with the objective of promoting social inclusion through increased workforce participation (see s.134(1)(c)).

[72] Section 134(1)(d) of the modern awards objective requires the Commission to take into account the need to promote flexible modern work practices and the efficient and productive performance of work. We accept the proposition that inserting a TOIL provision into a modern award which provides for overtime but does not presently contain a facilitative provision permitting TOIL, is consistent with the promotion of flexible modern work practices.

[73] Section 134(1)(f) provides that the Commission must also take into account the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden. The insertion of the model term will assist in ensuring that modern awards are relevant to the needs of the modern workplace, and will assist businesses.

[74] Finally, the insertion of the model term into modern awards is also consistent with the objects of the Act by: providing workplace relations laws that are fair to working Australians and are flexible for businesses (s.3(a)); ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES and modern awards (s.3(b)); assisting employees to balance their work and family responsibilities by providing for flexible working arrangements (s.3(d)); and acknowledging the special circumstances of small and medium-sized businesses (s.3(g)). In respect of s.3(g), a modern award variation of the type proposed will provide a simple mechanism for all such businesses to provide access to mutually beneficial TOIL arrangements between an employee and their employer.” 378

[359] Against that background, we consider the inclusion of the TOIL model term (amended as outlined above) in the General Staff Award to be consistent with the modern awards objective.

[360] For all the above reasons, we will insert the model term as it relates to awards that time off instead of overtime payment is to be calculated in accordance with the relevant overtime rate in the General Staff Award. The TOIL term will only apply to HEW 6 and below employees.

20. NEXT STEPS

[361] As a first step we propose that Commissioner Johns convene a conference of the parties to establish whether any party wishes to be heard in respect of our provisional view that clause 17.6(a) of the Academic Staff Award should be deleted and, if necessary, consider a proposed timetable for consideration of that issue.

[362] Beyond that, draft Determinations giving effect to the other variations we have decided to make to the Awards will be issued shortly with the parties to be provided an opportunity to comment on those draft Determinations.

VICE PRESIDENT

Appearances:

Ms L. Gale, Mr K. McAlpine and Ms S. Kenna for the National Tertiary Education Industry Union (Ms Gale also appeared for the CPSU, the Community and Public Sector Union).

Mr S. Pill, solicitor for the Group of 8 Universities.

Ms C. Pugsley for the Australian Higher Education Industrial Association.

Mr L. Izzo for Australian Business Industrial and the New South Wales Business Chamber.

Hearing details:

2016.

Melbourne:

July 18, 21, 22, 27–29;

August 29–31;

September 1–2;

October 21;

November 2-3;

December 1.

2017.

Melbourne:

March 29–30.

Printed by authority of the Commonwealth Government Printer

<PR600548>

1 MA000006

2 AE407248, Australian Catholic University Staff Enterprise Agreement 2013-2017

 3   MA000007

 4   [2015] FCA 136

5 AE409776, Macquarie University Academic Staff Enterprise Agreement 2014

 6   AE410374, Monash University Enterprise Agreement (Academic and Professional Staff) 2014

 7   [2017] FWCFB 1001

 8   AE406763, University of Melbourne Enterprise Agreement 2013 (Exhibit MFI#4)

 9   AE406321, University of Sydney Enterprise Agreement 2013-2017

10 AE407077, University of Tasmania Staff Agreement 2013-2016

 11   AE415561, University of Wollongong (Academic Staff) Enterprise Agreement, 2015

 12   AE406376, Victoria University Enterprise Agreement 2013

 13   MA000075

 14   MA000076

15 MA000006

16 MA000007

 17   [2018] FWCFB 797

 18   MA000075

 19   [2015] FWCFB 8030 at [10] and [11]

 20   [2016] FWCFB 2602 at [50](iii)

 21   Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J.

 22   Friends of Hichinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836.

 23   [2014] FWCFB 1788 at [60]

 24   Ibid at [24]

 25   Ibid at [35]-[36]

 26   [2017] FWCFB 1001

 27   Ibid at [230]-[264]

 28   [2017] FWCFB 1001

 29   Ibid at [269]

 30   [2017] FCAFC 161

 31   AM2014/305, [2017] FWCFB 1001

 32   [2017] FCAFC 161

 33   [2017] FCAFC 123

 34   NTEU submission, 11 March 2016 at page 3

 35   NTEU submission, 3 February 2017

 36   Transcript, 29 March 2017 at PN35

 37   CPSU submission, 3 February 2017

 38   Witness statement of Elodie Janvier, 3 June 2016 (Exhibit #E)

 39   Witness statement of Anthony Wilkes, 10 March 2016 (Exhibit #F)

 40   Witness statement and supplementary Witness statements of Ken McAlpine (Exhibits #G-I)

 41   Transcript, 27 July 2016 at PN947

 42   Ibid at PN1443

 43   Transcript, 28 July 2016 at PN1922

 44   Witness statement of Robyn May, undated (Exhibit #L)

 45   Transcript, 28 July 2016 at PN2035–2244

 46   MFI#1, Document comparing Witness Statement of Anne Junor and Robyn May

 47   Witness statement and revised witness statement of Jochen Schroeder, 11 March 2016 (Exhibit #M)

 48   Transcript, 28 July 2016 at PN2247–2413

 49   Witness statement of Steven Adams, undated (Exhibit #N)

 50   Transcript, 28 July 2016 at PN2434–2571

 51   AE406763 MFI#4

 52   Witness statement of Anne Junor, undated (Exhibit #O)

 53   Transcript, 29 July 2016 at PN2585–2875

 54   Witness statement, supplementary witness statement and further supplementary witness statement of Phil Andrews, (Exhibits #P-R)

 55   Witness statement of Phil Andrews, 11 March 2016 at para 36

 56   Transcript, 29 July 2016 at, PN2878–3336

 57   Witness statement of Phil Andrews, 18 March 2016 (Exhibit #Q at Attachment PA-2)

 58   Witness statement of Phil Andrews, 11 March 2016 at paragraphs 55-57 (Exhibit #P)

 59   Witness statement of Karen Ford, 9 March 2016

 60   Transcript, 29 August 2016 at PN3410–3572

 61   Witness statement of Karen Ford, 9 March 2016 at page 6 of Attachment 3

 62   Witness statement and supplementary witness statement of Clark Holloway (Exhibits #W-X)

 63   Transcript, 29 August 2016 at PN3630 and PN3704 (MFI#10)

 64   Transcript, 29 August 2016 at PN3578–3705

 65   Witness statement of Andrea Brown, 7 March 2016 (Exhibit #Y)

 66   Transcript, 29 August 2016, at PN3710–3897

 67   AE406376, Victoria University Enterprise Agreement 2013

 68   Witness statement of Glenda Strachan (Exhibit #Z)

 69   Transcript, 30 August 2016 at PN4286–4634

 70   Transcript, 30 August 2016 at PN4500

 71   Witness statement of Catherine Rytmeister, 9 March 2016 (Exhibit #AA)

72 AE409766, Macquarie University Academic Staff Enterprise Agreement 2014

 73   Transcript, 31 August 2016 at PN5004–5111

 74   Witness statement and supplementary witness statement of John Kenny (Exhibits #AB-AC)

 75   Witness statement of John Kenny, undated at Attachment JK-1, page 30

 76   Transcript, 1 September 2016 at PN5680–6187

77 AE407077

 78   Witness statement of Michael Hamel-Green, 9 March 2016 (Exhibit #AD)

 79   Transcript, 1 September 2016 at PN6202–6312

 80   Witness statement of Michael Leach, undated (Exhibit #AE)

 81   Witness statement of Michael Leach, undated at para 20

 82   Transcript, 1 September 2016 at PN6317–6458

 83   Ibid at PN6392

 84   Witness statement of Andrew Giles, 8 March 2016 (Exhibit #AG)

 85   Transcript, 2 September 2016 at PN6471–6600

 86   AE881638, Deakin University Enterprise Agreement 2009-2012 (Exhibit MFI#37)

 87   Exhibit MFI#38

 88   Transcript, 2 September 2016 at PN6597

 89   Witness statement of Caron Dann, 10 March 2016 (Exhibit #AO)

 90   Supplementary witness statement of Caron Dann, 11 July 2016 (Exhibit #AP)

 91   Transcript, 21 October 2016 at PN8307–8566

 92   AE410374, Monash University Enterprise Agreement (Academic and Professional Staff) 2014

 93   Witness statement of Andrew Picouleau, 6 June 2016 at Attachment AP-5 (Exhibit #12)

 94   Witness statement of Linda Kirkman, 11 March 2016 (Exhibit #AQ)

 95   Transcript, 21 October 2016 at PN8570–8627

 96   Exhibit #AHEIA12

 97   Witness statement of Camille Nurka, 10 August 2016 (Exhibit #AR)

 98   Ibid at Attachment CN-2, page 33

 99   Transcript, 2 November 2016 at PN8645–8931

 100   Witness statement of Graham Hepworth, 26 August 2016 (Exhibit #AS)

 101   Transcript, 2 November 2016 at PN9034

 102   Ibid at PN8939–9086

 103   Ibid at PN9027

 104   Ibid at PN9032

 105   Witness statement of Michael Dix, 10 August 2016 (Exhibit #AU)

 106   Transcript, 3 November 2016 at PN9272–9368

 107   Witness statement of Michael Evans, 26 August 2016 (Exhibit #AV)