HR Information Sharing Session April 2006 Major Changes to the Varied Australian National University Enterprise Agreement 2005 – 2008 (VANUEA)

Presenter Bradley Beasley, LLM, LLB, Grad Cert Legal Practice Legal Practitioner of the: Supreme Courts ACT, NSW; and The High Court of Australia

Overview 1. Why vary the Australian National University Enterprise Agreement (the ANUEA)? 2. The Major Changes to the Varied Australian National University Enterprise Agreement (VANUEA) AWAs AWAs Employment Types Employment Types Fixed Term Fixed Term Severance Severance 3. Navigating the VANUEA

Why vary the Agreement? 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 2006 and future funding the Australian National University Enterprise Agreement (the ANUEA) had to be varied to be HEWRR compliant by 31 August For the Australian National University to obtain access to 2006 and future funding the Australian National University Enterprise Agreement (the ANUEA) had to be varied to be HEWRR compliant by 31 August 2006.

Changes required to comply with HEWRRs Staff must have a choice in Agreement making, this is by the University offering Australian Workplace Agreements (AWAs) to all staff. Staff must have a choice in Agreement making, this is by the University offering Australian Workplace Agreements (AWAs) to all staff. There must be a direct relationships with staff, staff may only be represented by unions if and when they choose, however the University must observe Freedom of Association principals. There must be a direct relationships with staff, staff may only be represented by unions if and when they choose, however the University must observe Freedom of Association principals. The Agreement must deliver Workplace Flexibility, Productivity and Performance. The Agreement must deliver Workplace Flexibility, Productivity and Performance. The Agreement had to be streamlined to be “principle-based”. The Agreement had to be streamlined to be “principle-based”. Based on the HEWRRs and advice from DEST the University had to transfer current detailed clauses to Schedules and/or draft University policy. Based on the HEWRRs and advice from DEST the University had to transfer current detailed clauses to Schedules and/or draft University policy. As such the University no longer has a comprehensive document that addresses the majority of terms and conditions of employment affecting staff. You must review University policy, procedures and guidelines with respect to staff employment conditions. As such the University no longer has a comprehensive document that addresses the majority of terms and conditions of employment affecting staff. You must review University policy, procedures and guidelines with respect to staff employment conditions.

Operative Date Orders were made by Commissioner Deegan of the Australian Industrial Relations Commission giving effect to the Varied Australian National University Enterprise Agreement (the VANUEA) on and from 17 March This is the date that impacts on all Fixed Term Employment Agreements, Employment Schemes, RASCEs and Severance Payments (clause 13, 55 and Schedule 1).

Main Changes AWAs, clause 12; AWAs, clause 12; USCC-SC, clause 10; USCC-SC, clause 10; Permits a staff member being represented, however this does not include a Barrister or a Solicitor, except in relation to actual proceedings initiated in a Court, clause 9.4; Permits a staff member being represented, however this does not include a Barrister or a Solicitor, except in relation to actual proceedings initiated in a Court, clause 9.4; Does not limit the types of employment that the University may offer, clause 11 and Schedule 1; Does not limit the types of employment that the University may offer, clause 11 and Schedule 1; Introduction of RASCE, clause and Schedule ; Introduction of RASCE, clause and Schedule ; Fixed term staff provisions have changed, clause 54 and Schedule 1; Fixed term staff provisions have changed, clause 54 and Schedule 1; Severance pay exclusions now takes into account Employment Schemes, clause 54.2; Severance pay exclusions now takes into account Employment Schemes, clause 54.2; Severance transitional arrangements, clause 55.2; Severance transitional arrangements, clause 55.2; Increased severance payments for staff on eligible fixed term Employment Agreements, clause 55.3; Where possible entitlements have been set out in consolidated tables both in the body of the Agreement and in the Schedules; Staff and the University may enter into flexible arrangements for the taking of LSL and Annual Leave, clause 29 and Schedule S4.1.3, S4.1.5 and S4.3.3; Requiring a staff member to undergo a medical examination has been broadened, clause 57.2; Redundancy provisions have been simplified in the VANUEA, clause 43; Extending the notice or redeployment period by staff due to sickness may be refused by the Director Human Resources, clause ; Staff may appeal against the Director Human Resources decision above through Review of Decisions, clause 50.

Employment The VANUEA does not restrict the: Manner the University may advertise, clause 11.3; Manner the University may advertise, clause 11.3; Director Human Resources transferring staff into vacant positions during redeployment, clause 11.3; Director Human Resources transferring staff into vacant positions during redeployment, clause 11.3; Director Human Recourses making a fixed term offer of employment at his or her discretion clause, ; Director Human Recourses making a fixed term offer of employment at his or her discretion clause, ; Form or mix of employment the University may offer, clause 11. Form or mix of employment the University may offer, clause 11.

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”.

Entering into an AWA If a staff member enters into an AWA: He or she has 21days from their commencement of employment with the University to consider entering one, clause ; He or she has 21days from their commencement of employment with the University to consider entering one, clause ; He or she may appoint a Bargaining Agent to negotiate an AWA, clause ; and He or she may appoint a Bargaining Agent to negotiate an AWA, clause ; and It will override the terms of the VANUEA, clause 5.1. It will override the terms of the VANUEA, clause 5.1.

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.

Casual Staff Circumstances for employing casual staff no longer apply, the old clause 12 of the ANUEA; Circumstances for employing casual staff no longer apply, the old clause 12 of the ANUEA; ‘Casual employment’ means employment on an hourly basis which is normally for an irregular pattern of hours on an intermittent or irregular basis, Schedule 1.2.4; ‘Casual employment’ means employment on an hourly basis which is normally for an irregular pattern of hours on an intermittent or irregular basis, Schedule 1.2.4; If the staff member is engaged regularly or systematically[1] for a sequence of periods of at least 12months, if it were not for the termination of their employment, the staff member would have had an expectation of employment,[2] they will not be considered to be a genuine casual; If the staff member is engaged regularly or systematically[1] for a sequence of periods of at least 12months, if it were not for the termination of their employment, the staff member would have had an expectation of employment,[2] they will not be considered to be a genuine casual;[2] In light of the above the staff member is entitled to seek conversion to non casual employment in accordance with existing arrangements, see clause and Schedule 7 of the old ANUEA; In light of the above the staff member is entitled to seek conversion to non casual employment in accordance with existing arrangements, see clause and Schedule 7 of the old ANUEA; The staff member may seek to have a decision reviewed not to convert their employment, clause ; The staff member may seek to have a decision reviewed not to convert their employment, clause ; [1][1] Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385 pp [1] [2][2] S638 (4) of the Workplace Relations Act 1996 [2] General staff are employed to work for no less than 3 hours unless otherwise specified in the VAUNEA, clause ; Are paid a 23% casual loading, clause ; Are paid the casual loading in lieu of all paid leave entitlements (including Long Service Leave), penalties and loadings, unless otherwise specified in the VAUNEA, clause ; General staff are entitled to be paid overtime if directed to work it by their supervisor, Schedule however they are not paid the casual loading, Schedule Are to be paid within 22 days of submitting a valid and completed claim for payment, clause ; Are entitled to, and are required to give 1 hours notice to terminate their Employment Agreement, clause Note: The casual provisions are addressed by clauses: , , 17.4, 21.3, 25.6, 26.3, 33.1, 43.1, , 52.1, S1.2.4, and Schedules S2.3, S3.2.3, S3.2.3, S3.2.3(c), S3.2.4, S3.3.7, S4.4.2.

Research Academic Staff Career Employment (RASCEs) RASCEs may be employed on 2 x 7 year Employment Agreements, Schedule (a); Are restricted to academic Levels A, B, or C, Schedule 1.2.5; Are restricted to academic Levels A, B, or C, Schedule 1.2.5; They may be employed as a fractional, Schedule (b); They may be employed as a fractional, Schedule (b); Their engagement is predominantly for Research, they may teach on occasions and the teaching load will not exceed 40%, Schedule (b); Their engagement is predominantly for Research, they may teach on occasions and the teaching load will not exceed 40%, Schedule (b); May have their employment converted, Schedule (a); May have their employment converted, Schedule (a); May have access to severance payments, Schedule (c) (i); and May have access to severance payments, Schedule (c) (i); and Have limited rights to the standard redundancy provisions, clause (c) and Schedule (e). Have limited rights to the standard redundancy provisions, clause (c) and Schedule (e).

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

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