HR Information Sharing Session August 2007 Fixed Term Contract WorkChoices, HEWRRs And The ANU

Presenter Bradley Beasley LLB, LLM, Grad Cert Legal Practice Legal Practitioner of the: Supreme Courts ACT, NSW; and High Court of Australia. Senior Employment Strategies Advisor –Legal Telephone (02) Facsimile:(02) Address:Human Resources Division Building 10B, Chancelry The Australian National University ACT 0200 Australia

Overview 1. Fixed Term Contracts 2. WorkChoices 3. HEWRRs 4. ANU Fixed Term Contracts

Fixed Term Contracts A fixed term contract is one that expires through the effluxion of time.[1] A fixed term contract is one that expires through the effluxion of time.[1][1] However, it is not a fixed term contract if the employment is or can be terminated at the initiative of the employer.[2] However, it is not a fixed term contract if the employment is or can be terminated at the initiative of the employer.[2][2] [1][1] National Tertiary Education Industry Union on behalf of Ms Lynn Fisher v Edith Cowan University (960313) [1] [2][2] M Mohazab v Dick Smith Electronics Pty Ltd. FB of IR Ct (Lee, Moore and Marshall JJ) (NI 2571 of 1995) 28/11/95. [2]

The Law What the court does look towards is, had the employer not taken the action it did the employee would have remained in employment.[1] What the court does look towards is, had the employer not taken the action it did the employee would have remained in employment.[1][1] Northrop J in Cooper v Darwin Rugby League Inc IR 238 at p 241stated: "Of more importance generally is the fact that, even if the contract of employment was such a contract, (ie a contract for a specified period of time) the respondent, possibly, was not entitled to the immunity conferred by s 170CC of the Act. One thing is clear. The employment of the applicant was terminated by the unilateral act of the respondent. The employment was not terminated by effluxion of the period of time specified in the contract of employment. In these circumstances, it is only fair that the issue of whether the termination was lawful or not depends upon all the facts leading up to the unilateral termination of employment by the respondent…" Northrop J in Cooper v Darwin Rugby League Inc IR 238 at p 241stated: "Of more importance generally is the fact that, even if the contract of employment was such a contract, (ie a contract for a specified period of time) the respondent, possibly, was not entitled to the immunity conferred by s 170CC of the Act. One thing is clear. The employment of the applicant was terminated by the unilateral act of the respondent. The employment was not terminated by effluxion of the period of time specified in the contract of employment. In these circumstances, it is only fair that the issue of whether the termination was lawful or not depends upon all the facts leading up to the unilateral termination of employment by the respondent…" In Nikulin v The University of Newcastle Print Q5610, Raffaelli C stated:"At the outset, I consider that it would be a curious effect of the Act if the entering into a fixed term contract would inhibit the Commission from intervening notwithstanding a deliberate and clear breach of such fixed term contract by the effecting of a termination prior to the agreed expiry date. Surely the exclusion is only in respect of a termination that occurs at the end of the fixed term.” In Nikulin v The University of Newcastle Print Q5610, Raffaelli C stated:"At the outset, I consider that it would be a curious effect of the Act if the entering into a fixed term contract would inhibit the Commission from intervening notwithstanding a deliberate and clear breach of such fixed term contract by the effecting of a termination prior to the agreed expiry date. Surely the exclusion is only in respect of a termination that occurs at the end of the fixed term.” [1] R Grout v Gunnedah Shire Council. IR Ct (Moore J) (No NI 397 of 1994) 30/9/94. [1] R Grout v Gunnedah Shire Council. IR Ct (Moore J) (No NI 397 of 1994) 30/9/94. [1]

WorkChoices Under WorkChoices, with the exceptions of an unlawful termination of a contract of employment, there are a number of classes of staff who are excluded from running an unfair dismissal case, however for our purposes, this applies if: Under WorkChoices, with the exceptions of an unlawful termination of a contract of employment, there are a number of classes of staff who are excluded from running an unfair dismissal case, however for our purposes, this applies if: They are on probation or qualifying period; They are on probation or qualifying period; They are employed on a fixed term contract of employment or project; They are employed on a fixed term contract of employment or project; They are a casual employee; They are a casual employee; Genuine operational needs[1] (unless it is a sham);[2] Genuine operational needs[1] (unless it is a sham);[2][1][2][1][2] Their remuneration is in excess of $101,300.00;[3] and the staff member is not covered by an award, enterprise agreement or AWA[4]; and Their remuneration is in excess of $101,300.00;[3] and the staff member is not covered by an award, enterprise agreement or AWA[4]; and[3][4][3][4] Others… Others… [1][1] S643(8) Workplace Relations Act 1996 [1] [2][2] Brent Acworth v Boeing Australia Limited - [2007] AIRC 413 (25 May 2007) PR [2] [3][3] S638 (7) (b) Workplace Relations Act 1996 and Reg 12 of the Workplace relations Regulations 2006 [3] [4][4] S638 (1) (i), s642 (6) Workplace Relations Act 1996 R12 of the Workplace Relations Regulations 2006 [4]

HEWRRs On 29 April 2005 the Government announced the new Higher Education Workplace Relations Requirements (HEWRRs). On 29 April 2005 the Government announced the new Higher Education Workplace Relations Requirements (HEWRRs). On 3 June 2005, arising out of representations made by Professor Di Yerbury on behalf of the Australian Vice-Chancellors’ Committee the HEWRRs were amended. On 3 June 2005, arising out of representations made by Professor Di Yerbury on behalf of the Australian Vice-Chancellors’ Committee the HEWRRs were amended. On 10 November 2005 the Australian Parliament passed the Higher Education Legislation Amendment Bill (2005), giving effect to the HEWRRs. On 10 November 2005 the Australian Parliament passed the Higher Education Legislation Amendment Bill (2005), giving effect to the HEWRRs. The HEWRRs are designed to meet the Prime Minister’s broader workplace relations reforms and has a significant impact on future Higher Education funding eligibility. The HEWRRs are designed to meet the Prime Minister’s broader workplace relations reforms and has a significant impact on future Higher Education funding eligibility. For the Australian National University to obtain access to future funding the Varied Australian National University Enterprise Agreement (the VANUEA) was introduced to be HEWRR compliant, this occurred through consultation and on advice obtained from DEST and DEWR. For the Australian National University to obtain access to future funding the Varied Australian National University Enterprise Agreement (the VANUEA) was introduced to be HEWRR compliant, this occurred through consultation and on advice obtained from DEST and DEWR.

Genuine Choice Staff have a genuine choice whether to have there terms and conditions of employment covered by the VANUEA or an Australian Workplace Agreement (AWA), clause The Employment Agreement must include: All the terms and conditions that relate to the staff member’s employment, clause All the terms and conditions that relate to the staff member’s employment, clause  All documentary, or other recorded sources from which such conditions derive, clause  The duties and reporting relationships have to be documented, clause  The staff member’s supervisor, clause Note: A staff member’s career prospects cannot be adversely affected by their choice to enter into either form of Employment Agreement, clause In the Agreement: the word “Appointment” has been replace with “Employment”. The words “Employment Agreement” means “Contract of Employment”.

Types of Employment The types of employment the University offers are: Standard; Standard; Part-time; Part-time; Fixed term; or Fixed term; or Casual, clause 13 Casual, clause 13 The above types of employment covers both academic and general staff. Note: With respect to the categories of staff the University may employ see Schedule 1. This Schedule is significant for Letters of Offer and Employment Agreements and with respect to what rights staff have when their employment concludes with the University.

Fixed Term Employment The University no longer has to provide reasons for offering fixed term Employment Agreements. However, the Letter of Offer and/or the Employment Agreement must specify what type, classification and other essential details related to the staff member’s employment as this affects whether the staff member is entitled to severance payments. For example some staff do not receive redundancy, severance payments or other entitlements as specified in the VANUEA. See clauses 23.4, Schedule and Overtime and Shift Penalties. Clause 43 Redundancy and clause Severance Payments for staff employed on an employment scheme as specified in Schedule 1.

Breaks in Service For the purpose of determining service entitlements of a fixed term staff member, breaks between fixed term periods of employment of up to 2 times per year and of up to 8 weeks, or the period between terms of employment over the summer break, are deemed not to constitute breaks in continuous service, clause 13.2.

Notice for Fixed Term Staff Where a fixed term Employment Agreement expires and the staff member is not offered continuing employment, the following notice periods apply: Period of continuous service and Minimum notice period Less than: 3 years - 2 weeks 3 years but less than 5 years - 3 weeks 5 years or over - 4 weeks clause 51.3

Severance Payments Severance payments ARE paid under the following circumstances: Where the work continues and is offered to another staff member and the Employment Agreement is not renewed or converted: Where the work continues and is offered to another staff member and the Employment Agreement is not renewed or converted: For academic staff of 5 years; and For academic staff of 5 years; and For general staff of 3 years, clause 55; or For general staff of 3 years, clause 55; or A staff member is entitled to severance payments if they are on their second or subsequent fixed term employment with the University, clause 55 and their contract is not converted or renewed, clause 54. A staff member is entitled to severance payments if they are on their second or subsequent fixed term employment with the University, clause 55 and their contract is not converted or renewed, clause 54. The following: Accommodates the introduction of RASCE’s; and Applies to all fixed term Employment Agreement staff from 17 March 2006 clause Period of Continuous Service and Severance Pay: Less than 1 year - Nil 1 yr & less than 2 yrs - 4 weeks' pay 2 yrs & less than 3 yrs - 6 weeks' pay 3 yrs & less than 4 yrs - 7 weeks' pay 4 yrs & less than 7 yrs - 8 weeks' pay 7 yrs & less than 9 yrs - 9 weeks' pay 9 yrs & less than 10 yrs - 10 weeks' pay 10 yrs & less than 11 yrs - 11 weeks' pay 11 yrs & less than 12 yrs - 12 weeks' pay 12 yrs & less than 13 yrs - 13 weeks' pay 13 yrs & less than 14 yrs - 14 weeks' pay 14 yrs & over - 15 weeks' pay ‘week’s pay’ means the ordinary time rate of pay, clause 55

Severance Payments Continued Severance payments ARE NOT paid under the following circumstances: A staff member who is on their first fixed term Employment Agreement will not be paid severance payments on its expiry for: A staff member who is on their first fixed term Employment Agreement will not be paid severance payments on its expiry for: An academic staff member of 5 years; An academic staff member of 5 years; A general staff member of 3 years, clause 55.1; A general staff member of 3 years, clause 55.1; The staff member declines further employment, clause ; The staff member declines further employment, clause ; The staff member obtains further employment within the University without the loss of accrued entitlements, clause ; and The staff member obtains further employment within the University without the loss of accrued entitlements, clause ; and The University assists the staff member in securing the same or similar employment with another employer, with a transfer of all accrued entitlements, clause The University assists the staff member in securing the same or similar employment with another employer, with a transfer of all accrued entitlements, clause Where a staff member is employed on a fixed term employment schemes, : ‘Replacement Employee Scheme’ S1.3.2; ‘Professional Practice Scheme’ S1.3.3; ‘Career Entry Development Schemes’ S1.3.4; ‘Student Internships Scheme’ S1.3.5; ‘Student Employment Scheme’ S1.3.6; ‘An Apprenticeship Scheme’ S1.3.7; ‘Trainee Technical Officer Scheme’ S1.3.8; ‘Trainee Scheme’ S1.3.9; and ‘Pre-Retirement Scheme” S1.3.10; Note: clause

Severance Transitional provisions Review the procedure for “Severance Payments” for details concerning the transitional arrangements between the: Review the procedure for “Severance Payments” for details concerning the transitional arrangements between the: Australian National University Enterprise Agreement ; and Australian National University Enterprise Agreement ; and Varied Australian National University Enterprise Agreement Varied Australian National University Enterprise Agreement The procedure for Severance Payments may be found at the following website: The procedure for Severance Payments may be found at the following website:

Fixed Term Conversion Staff employed on a fixed term Employment Agreements may apply for conversion if they have more than 12 months service. However their application must be made not less than 3 months prior to their Employment Agreement expiring clause 54.1; Conversion is only available where further work is available, funding security for the position has occurred and the staff member was employed through an open competitive selection process, clause ; Conversion will not take effect if the staff member’s performance is found unsatisfactory, clause therefore performance management must be undertaken and recorded; and Conversion is not available to staff employed under an Employment Scheme, clause