AHEIA Strategy Roadmap: Q1 - Q2 2023

As mentioned in our special December EB Dial-In, we have been working on a strategic roadmap for our member’s consideration before the bargaining and multi-employer agreement provisions of the Secure Jobs, Better Pay Act 2022 commencing from 6 June 2023*.

The roadmap below deals with the following scenarios:

·         Universities seeking to maintain an Agreement for a Single Enterprise.

·         Universities currently with an in-term Enterprise Agreement.

·         Universities considering entering into the Multi-Employer Agreement Stream.

Here are Graeme Watson’s slides that were used during his presentation discussing IR Reforms.

In the new year, AHEIA will host forums to further unpack the amendments to the FW Act and its implications for our members. Invitations to the first of these forums will be issued in the new year.

(*commencing 6 June 2023 or earlier as proclaimed)

For Universities seeking to maintain an Agreement for a Single Enterprise.

Scenario 1 – Pursue a simple ‘rollover’ of existing terms

The bargaining focus should be limited to NES compliance updates, a reasonable salary offer, and minimal changes with the aim of finalising a new EA (Enterprise Agreement) before 6 June 2023.

To achieve this strategy:

Engage with the union in bargaining immediately and put a proposed EA that reflects a minimal change to the union and bargaining representative asap. The advantage of this approach is a greater prospect of reaching an agreement with the Union and/or staff and low bargaining and implementation transaction costs which provides staff with an acceptable pay rise without the spectre of any changes to their conditions- “nothing really changes just my pay.”

Taking this approach WILL greatly increase your chances of reaching an agreement on a replacement EA by 6 June 2023, which will protect you from being “roped” into a multi-employer agreement.

NOTE: – Universities have until:

i) 6 June 2023, or

ii) 9 months from the expiry of their current EA (NED)

whichever is the latter, to avoid the potential of being roped into a multi-employer agreement structure.

To support this strategy, universities should:
1. Issue a NERR* (Notice of Employee Representational Rights).  If the NERR has not been issued, then do so immediately.

2. Set up bargaining meetings with the union.

3. Put a prepared rollover document ie, proposed EA to the union and representatives with pay offer.

4. Disseminate proposals to staff and conduct town hall meetings.

5. If the union rejects the offer, consider a direct vote to staff.

6. If it becomes clear early in negotiations that the rollover strategy is being resisted (or unions are not bargaining in good faith), consider steps 5 and onwards in Scenario 2 below.

Note – Care must be taken during bargaining, as any matters agreed between the university and the union WILL NOT be considered if the negotiations end up in an arbitration before the Fair Work Commission (FWC).

Scenario 2 – Pursue Reform of your current EA reform

This approach builds on the above option but adds additional issues to the negotiation process.  However, this option should be considered in light of your current bargaining process.  The earlier your bargaining round, the less likely this option will be used.

1. Issue a NERR*.  If the NERR has not been issued, then do so immediately.

WHY? Issuing the NERR gives you access to intractable bargaining processes, including arbitration, if you want to use it later in the negotiation process.

2. Seek a commitment from the Union for a replacement single employer EA – this may be as simple as acknowledging their log of claims for replacement EA and commencing meetings with the union diarised for bargaining, protocols, etc.

Note – AHEIA will prepare a template for this purpose.

3. Commence/continue bargaining/town hall meetings with staff etc.

4. Be assertive about the areas of your agreement you need to be remedied – even if unpopular and likely to remain un-agreed.

WHY? Under the Act, outstanding matters may be arbitrated as a BATNA (best alternative to no agreement). Typically, arbitrated outcomes are likely to be closer to community standards and less restrictive to productivity (objects of the FW Act).

5. Be assertive in respect of good faith bargaining.  Call out the union on issues such as not turning up to meetings, not engaging in genuine discussions, and poor union representative behaviours.

6. Before 6 June 2023, seek a section 240 bargaining conciliation from the FWC where impasses occur.

WHY? Because this, together with a minimum bargaining period of 9 months, is required to access the intractable bargaining arbitration lever.

7. At some point, consider putting your offer to staff. If successful, lodge with the FWC asap…

WHY? The offer could be successful.  If not successful, it may strengthen your intractable bargaining application.

8. Attempt conciliation under section 240. Try and use the FWC to narrow the disputed areas – probably your wish list clauses and salary offer.

WHY? This approach will inform the union that your intention is to narrow the differences and let them know that you are willing to use arbitration as a lever. In addition, you may also get to gauge the FWC’s sentiment toward your position.

9. On or after 6 June 2023, you may wish to seek an intractable bargaining declaration* and arbitration on all non-agreed matters. Note: The FWC will place all matters previously agreed during bargaining into the workplace determination.

NOTE: Having non-agreed matters arbitrated may give you some success in redressing poor clauses down to “community standards,”…. Eg, reviews, redundancy processes, misconduct, AWMs, etc

*Important issuing the NERR starts the 9-month “minimum bargaining period,” and this requirement, together with having previously participated in a section 240 conciliation, must be met before an intractable bargaining declaration can be made and arbitration accessed.

IMPORTANT ITEMS:

– The 9-month period before seeking an intractable bargaining declaration is not triggered from 6 June 2023. Pre-bargaining activity is considered (ie, the later date of the NED or the NERR).

– Any matters agreed to before arbitration will not be re-examined; only unresolved matters will be dealt with. Care must be taken regarding the issues you put on the table and when you bring them to the table.

For Universities currently with an in-term Enterprise Agreement

Scenario 3 – Existing  Enterprise Agreement

This scenario considers the steps that should be considered by a University that has an existing EA on foot.

1. Up to a year before the NED:

a. Begin planning/ preparations for a replacement EA.

b. Attempt to reach an agreement from the union for a single employer EA ie issue a bargaining date schedule etc.

It is important to ascertain asap whether the NTEU agrees to negotiate a replacement single EA. If not, you may need to pivot to a multi-employer agreement strategy (see below).

2. Issue a NERR*

WHY? Issuing the NERR gives you access to intractable bargaining processes, including arbitration, if you want to use it later in the negotiation process.

3. The university should: commence pre-bargaining communications with staff, conduct surveys on what is important, and create engagement plans.

4. Consider the development of a proposed EA to later serve on union/bargaining representatives when formal bargaining commences and to share the draft EA with staff (again, noting agreed matters cannot be arbitrated).

5. Issue NERR at the earliest point.

6. Follow dot points 3-9 in scenario 2. above.

For Universities considering entering into the Multi-Employer Agreement Stream
You may perceive some advantages to entering into the Multi-Employer Agreement Stream. AHEIA recommends holding off on this approach until the FWC has provided significant guidance in respect of the amendments to the FW Act.

1. Proactively find a suitable bargaining partner employer side ie, a like university or two.

WHY? Given the complexities of multi-employer bargaining in our sector, you must identify a university partner(s) that you can work with.

2. Once you have identified your university partner(s), seek authorisation from the FWC to group you and your partner(s) under the single-interest multi-employer agreement.  This approach can be used to negate the possibility of being “roped in” to a union “designed” multi-employer agreement.  The union is likely to have very different motivations from universities in their choice of groupings.

3. Pursue a low ambit strategy – i.e., a simple multi-employer agreement with only core terms and conditions and non-core / local arrangements contained in policies outside the multi-employer agreement.  This approach will help to ensure that each university maintains its own employee value proposition via customised terms and conditions contained in its respective policies.

4. Negotiate with the unions in good faith.

5. Pursue s240 conciliation when impasses arise.

WHY? To set up a lever for arbitration later

6. If no agreement, consider a voting request order from the FWC to put an offer to staff.  Note, unlike single employer EAs, an agreement is required from the union to put the offer to staff.  If the union agreement is not forthcoming, you can apply to the FWC for an order to put the offer to staff.

7. If rejected, pursue an intractable bargaining declaration after 9 months of bargaining (from the date of the multi-agreement bargaining authorisation).

Commercial in Confidence