8 November 2022
No doubt members will be closely following the progress of the Federal Government’s Secure Jobs and Better Pay Bill 2022 (Bill) since it was introduced into the House of Representatives last Thursday.
The Bill represents a significant shift from the balance between employers and employees enshrined in the original Fair Work Act 2009 and poses major challenges to the continuity of “institutionally appropriate” employment arrangements in the Higher Education sector.
– The Employers have clearly identifiable “common interests”, and
– A “majority” of employees wish to be covered by the proposed multi-employer agreement
The common interest criteria appear to be very broad and likely to result in industry-wide agreements. The Fair Work Commission is required to have regard to the geographical location of the enterprises, the regulatory regime applying to the enterprises, the nature of the enterprises, and the terms and conditions of employment in those enterprises.
“Majority of employees”
To commence bargaining – The majority of employees from the targeted universities must “want to be covered” by the proposed multi-employer agreement.
NOTE: It’s not the majority of targeted universities, but rather an overall majority of employees. This may result in employees of larger universities dragging smaller employers into bargaining multi-employer agreements because larger universities have more employees.
Subsequent adding of universities to bargaining – Once commenced unions can seek to add “common interest” universities to the bargaining process if inter alia a majority of employees in each of the new universities wishes to be covered by the proposed agreement.
Under the Bill universities will lose their ability to go directly to staff to vote on a proposed enterprise agreement.
Intractable disputes will be referred to the FWC for resolution and ultimately arbitration. The Bill brings ‘unilateral arbitration’ into enterprise bargaining, where union intransigence can effectively force outstanding claims to be arbitrated and imposed on all parties.
Better of Overall Test (BOOT)
While the approval process is simplified, the sting in the tail is that the FWC can reconsider the BOOT post-approval should any employee(s) claim they are worse off under the EA than the Award. This open-ended ability to reconsider agreements will create significant uncertainty for universities.
May be taken where a majority of the employees proposed to be covered by the multi-employer agreement choose to do so. This means that employees at larger Universities may effectively expose smaller Universities to industrial action. Such industrial action may be taken on matters that are not relevant to your university or your staff and reflect the concerns of other universities.
Fixed term employment
The Bill will limit fixed term contracts for the same role to two consecutive contracts or a maximum duration of two years while preserving the legitimate use of fixed term contracts in certain limited circumstances. These limited circumstances are similar but by no means identical to the “HECE” provisions enshrined in both sector Modern Awards and in Sector Agreements.
While the explanatory memorandum to the Bill states that its provisions would allow “…existing sector-specific arrangements in modern awards that regulate the use of fixed term contracts to remain in place…and the Bill would not seek to displace these…” it is not clear at this time whether the specified limitations set out in the Bill will be read in conjunction with the HECE provisions or not. If they read in conjunction this will provide further restriction and/or operational complications in respect of fixed term contracts exceeding two years.
We are particularly concerned about the adverse impact on research fixed term opportunities (which are tied to fixed term research funding schema). Far from achieving its aim of enhancing job security, it may perversely lead to universities reducing non casual employment opportunities.
Termination of enterprise agreements
Whilst our sector has only terminated one enterprise agreement in over two decades of EA making, the availability of this reserved avenue has had an important moderating effect on union bargaining behaviour. The Bill effectively removes this lever.
AHEIA is pushing back on amendments that would remove institutional autonomy and the managerial prerogative of our member universities. Considering the long-standing history of wall-to-wall enterprise agreement coverage in the sector providing excellent wages and conditions, AHEIA is strongly advocating to Canberra in both submissions and representations as follows:
In addition, AHEIA will further seek:
Currently, multi-employer bargaining does not take place in higher education, however, it is proposed that access be greatly
expanded via three streams:
The potential introduction of single interest employer authorisation (multi-employer bargaining) will affect our members due to the following concerns:
• Unions may be able to obtain authorisation from the FWC forcing a university to bargain in good faith and in conjunction with other universities provided the FWC is satisfied inter alia that:
There is an identifiable “common interest” – which includes considerations as to geographical location, regulatory regime, or the nature of the business, but is otherwise very broad. The FWC has a limited discretion if it considers that the authorisation is contrary to the public interest. However, no mention is made about whether the employers are competing against each other and accordingly should not be collectively bargaining on employment terms; and
A “majority” of employees wish to be covered. Of concern is that a “majority” in this context is a majority across all employers to be covered rather than a majority in each individual university. As a result, employees at a larger university may be able to compel a smaller university and its employees to be joined into the bargaining of a multi-employer agreement.
• Unions may gain authorisation to add subsequent “common interest” employer(s) to the bargaining of a multi-employer agreement where inter alia a majority of employees in each new employer wish to be covered.
• A university would only be exempted from bargaining and coverage whilst it has an enterprise agreement not yet passed its nominal expiry date.
• Post approval variation – once a single interest employer agreement is approved unions can apply to the FWC to essentially “rope in” additional employers with “common interest” subject largely to the support of a majority of the employees in each additional employer.
Better Off Overall Test (BOOT)
Intractable Bargaining Declaration
In doing so, it may either:
– Provide a further period for the parties to negotiate and finalise outstanding matters, or
– Move to finalise the agreement through arbitration and the making of a workplace determination. This form of unilateral arbitration may be imposed on employers in both single and multi-employer bargaining streams.
Termination of enterprise agreements
Restrictions on the use of fixed term employment
* Supported bargaining
• Aimed at feminised and low-paid industry sectors, for example, Aged and Child Care, the supported bargaining stream essentially renames and expands upon the “low-paid bargaining authorisations” already in the FW Act.
• This stream is not likely to be of relevance to our members.
Cooperative Workplaces Stream
• Enables employees and employers to jointly apply to the FWC to have their enterprise joined to another existing cooperative workplace agreement.
We will be providing a further update to our members. If you have any questions in the meantime, certainly feel free to contact us to discuss.