HR Information Sharing SessionHR Information Sharing Session

April 2006April 2006

Major Changes to theMajor Changes to the

Varied Australian National University Varied Australian National University Enterprise Agreement 2005 – 2008 Enterprise Agreement 2005 – 2008

(VANUEA)(VANUEA)

PresenterPresenter

Bradley Beasley, LLM, LLB, Grad Cert Legal PracticeBradley Beasley, LLM, LLB, Grad Cert Legal Practice

Legal Practitioner of the:Legal Practitioner of the:

Supreme Courts ACT, NSW; andSupreme Courts ACT, NSW; and

The High Court of AustraliaThe High Court of Australia

OverviewOverview1.1. Why vary the Australian National Why vary the Australian National

University Enterprise Agreement 2005-University Enterprise Agreement 2005-2008 (the ANUEA)?2008 (the ANUEA)?

2.2. The Major Changes to the Varied The Major Changes to the Varied Australian National University Enterprise Australian National University Enterprise Agreement 2005-2008 (VANUEA)Agreement 2005-2008 (VANUEA)

AWAsAWAs Employment TypesEmployment Types Fixed TermFixed Term SeveranceSeverance

3.3. Navigating the VANUEANavigating the VANUEA

Why vary the Why vary the Agreement?Agreement?

On 29 April 2005 the Government announced the new Higher On 29 April 2005 the Government announced the new Higher Education Workplace Relations Requirements (HEWRRs). Education Workplace Relations Requirements (HEWRRs).

On 3 June 2005, arising out of representations made by On 3 June 2005, arising out of representations made by Professor Di Yerbury on behalf of the Australian Vice-Professor Di Yerbury on behalf of the Australian Vice-Chancellors’ Committee the HEWRRs were amended. Chancellors’ Committee the HEWRRs were amended.

On 10 November 2005 the Australian Parliament passed the On 10 November 2005 the Australian Parliament passed the Higher Education Legislation Amendment Bill (2005), giving Higher Education Legislation Amendment Bill (2005), giving effect to the HEWRRs.effect to the HEWRRs.

The HEWRRs are designed to meet the Prime Minister’s broader The HEWRRs are designed to meet the Prime Minister’s broader workplace relations reforms and has a significant impact on workplace relations reforms and has a significant impact on future Higher Education funding eligibility.future Higher Education funding eligibility.

For the Australian National University to obtain access to 2006 For the Australian National University to obtain access to 2006 and future funding the Australian National University Enterprise and future funding the Australian National University Enterprise Agreement 2005-2008 (the ANUEA) had to be varied to be Agreement 2005-2008 (the ANUEA) had to be varied to be HEWRR compliant by HEWRR compliant by 31 August 2006.31 August 2006.

Changes required to comply Changes required to comply with HEWRRswith HEWRRs

Staff must have a choice in Agreement making, this is by the University Staff must have a choice in Agreement making, this is by the University offering Australian Workplace Agreements (AWAs) to all staff.offering Australian Workplace Agreements (AWAs) to all staff.

There must be a direct relationships with staff, staff may only be There must be a direct relationships with staff, staff may only be represented by unions if and when they choose, however the University represented by unions if and when they choose, however the University must observe Freedom of Association principals.must observe Freedom of Association principals.

The Agreement must deliver Workplace Flexibility, Productivity and The Agreement must deliver Workplace Flexibility, Productivity and Performance.Performance.

The Agreement had to be streamlined to be “principle-based”. The Agreement had to be streamlined to be “principle-based”.

Based on the Based on the HEWRRsHEWRRs and advice from and advice from DESTDEST the University had to transfer the University had to transfer current detailed clauses to Schedules and/or draft University policy. current detailed clauses to Schedules and/or draft University policy.

As such As such the University no longer has a comprehensive document that the University no longer has a comprehensive document that addresses the majority of terms and conditions of employment affecting addresses the majority of terms and conditions of employment affecting staff.staff. You You must review University policy, procedures and must review University policy, procedures and guidelinesguidelines with respect to staff employment conditions. with respect to staff employment conditions.

Operative DateOperative Date

Orders were made by Orders were made by Commissioner Deegan of the Australian Commissioner Deegan of the Australian Industrial Relations Commission giving effect to the Varied Industrial Relations Commission giving effect to the Varied

Australian National University Enterprise Agreement 2005-2008 (the Australian National University Enterprise Agreement 2005-2008 (the VANUEA) on and from VANUEA) on and from 17 March 2006.17 March 2006.

This is the date that impacts on all Fixed Term Employment This is the date that impacts on all Fixed Term Employment Agreements, Employment Schemes, RASCEs and Severance Agreements, Employment Schemes, RASCEs and Severance

Payments (Payments (clause 13, 55 and Schedule 1clause 13, 55 and Schedule 1))..

Main ChangesMain Changes

AWAs,AWAs, clause 12clause 12;;

USCC-SCUSCC-SC, , clause 10clause 10;;

Permits a staff member being Permits a staff member being representedrepresented, however this does not , however this does not include a Barrister or a Solicitor, except include a Barrister or a Solicitor, except in relation to actual proceedings in relation to actual proceedings initiated in a Court, initiated in a Court, clause 9.4clause 9.4;;

Does not limit the Does not limit the types of employmenttypes of employment that the University may offer, that the University may offer, clause 11 clause 11 and Schedule 1and Schedule 1;;

Introduction of Introduction of RASCERASCE, , clause 13.1.2 clause 13.1.2 andand Schedule 1.2.5Schedule 1.2.5..;;

Fixed termFixed term staff provisions have staff provisions have changed, changed, clause 54 and clause 54 and Schedule 1Schedule 1;;

Severance pay exclusionsSeverance pay exclusions now takes now takes into account Employment Schemes, into account Employment Schemes, clause 54.2clause 54.2;;

Severance Severance transitional arrangementstransitional arrangements, , clause 55.2clause 55.2;;

Increased severance paymentsIncreased severance payments for staff on for staff on eligible fixed term Employment eligible fixed term Employment Agreements, Agreements, clause 55.3clause 55.3;;

Where possible Where possible entitlementsentitlements have been set have been set out in consolidated tables both in the body out in consolidated tables both in the body of the Agreement and in the Schedules;of the Agreement and in the Schedules;

Staff and the University may enter into Staff and the University may enter into flexible arrangements for the taking of flexible arrangements for the taking of LSL LSL and Annual Leaveand Annual Leave , , clause 29 and Schedule clause 29 and Schedule S4.1.3, S4.1.5 and S4.3.3S4.1.3, S4.1.5 and S4.3.3;;

Requiring a staff member to undergo a Requiring a staff member to undergo a medical examinationmedical examination has been broadened, has been broadened, clause 57.2clause 57.2;;

Redundancy provisionsRedundancy provisions have been have been simplified in the VANUEA, simplified in the VANUEA, clause 43clause 43; ;

Extending the Extending the notice or redeployment notice or redeployment periodperiod by staff due to sickness may be by staff due to sickness may be refused by the Director Human Resources, refused by the Director Human Resources, clause 43.5.2clause 43.5.2;;

Staff may Staff may appeal appeal against the Director against the Director Human Resources decision above through Human Resources decision above through Review of Decisions, Review of Decisions, clause 50clause 50..

EmploymentEmployment

The VANUEA does not restrict the:The VANUEA does not restrict the:

Manner the University may Manner the University may advertiseadvertise, clause 11.3;, clause 11.3;

Director Human Resources Director Human Resources transferringtransferring staff into vacant positions staff into vacant positions during redeployment, clause 11.3;during redeployment, clause 11.3;

Director Human Recourses making a Director Human Recourses making a fixed term offerfixed term offer of of employment at his or her discretion clause, 54.1.3;employment at his or her discretion clause, 54.1.3;

Form or mix of Form or mix of employment employment the University may offer, clause 11.the University may offer, clause 11.

Genuine ChoiceGenuine Choice

Staff have a genuine choice whether to have there terms and conditions of Staff have a genuine choice whether to have there terms and conditions of employment covered by the employment covered by the VANUEAVANUEA or an Australian Workplace Agreement or an Australian Workplace Agreement ((AWAAWA), clause 12.1.), clause 12.1.

The Employment Agreement must include:The Employment Agreement must include:

AllAll the the terms and conditionsterms and conditions that relate to the staff member’s employment, that relate to the staff member’s employment, clause 12.2. clause 12.2.

AllAll documentary, or other recorded sources documentary, or other recorded sources from which such conditions derive, from which such conditions derive, clause 13.1.4.clause 13.1.4.

The The dutiesduties and and reporting relationshipsreporting relationships have to be documented, clause 13.1.4. have to be documented, clause 13.1.4.

The staff member’s The staff member’s supervisor,supervisor, clause 16.2. clause 16.2.

Note: Note: A staff member’s A staff member’s career prospectscareer prospects cannot be adversely affected by their cannot be adversely affected by their choice to enter into either form of Employment Agreement, clause 12.3.1. In the choice to enter into either form of Employment Agreement, clause 12.3.1. In the Agreement: the word “Appointment” has been replace with “Employment”. The Agreement: the word “Appointment” has been replace with “Employment”. The words “Employment Agreement” means “Contract of Employment”. words “Employment Agreement” means “Contract of Employment”.

Entering into an AWAEntering into an AWA

If a staff member enters into an AWA:If a staff member enters into an AWA:

He or she has He or she has 21days21days from their commencement from their commencement of employment with the University to consider of employment with the University to consider entering one, clause 12.3.2; entering one, clause 12.3.2;

He or she may appoint a He or she may appoint a Bargaining AgentBargaining Agent to to negotiate an AWA, clause 12.3.3; andnegotiate an AWA, clause 12.3.3; and

It will It will override override the terms of the VANUEA, clause the terms of the VANUEA, clause 5.1.5.1.

Types of EmploymentTypes of Employment

The types of employment the University offers are: The types of employment the University offers are: Standard;Standard;Part-time; Part-time; Fixed term; or Fixed term; or Casual, clause 13Casual, clause 13

The above types of employment covers both The above types of employment covers both academic and general staff.academic and general staff.

Note:Note: With respect to the categories of staff the University With respect to the categories of staff the University may employ see Schedule 1. This Schedule is significant for may employ see Schedule 1. This Schedule is significant for Letters of Offer and Employment Agreements and with Letters of Offer and Employment Agreements and with respect to what rights staff have when their employment respect to what rights staff have when their employment concludes with the University.concludes with the University.

Casual StaffCasual Staff

CircumstancesCircumstances for employing casual for employing casual staff no longer apply, the old clause 12 staff no longer apply, the old clause 12 of the ANUEA;of the ANUEA;

‘‘Casual employment’ meansCasual employment’ means employment on an hourly basis which is employment on an hourly basis which is normally for an irregular pattern of normally for an irregular pattern of hours on an intermittent or irregular hours on an intermittent or irregular basis, Schedule 1.2.4;basis, Schedule 1.2.4;

If the staff member is engaged regularly If the staff member is engaged regularly or systematicallyor systematically[1][1] for a sequence of for a sequence of periods of at least 12months, if it were periods of at least 12months, if it were not for the termination of their not for the termination of their employment, the staff member would employment, the staff member would have had an expectation of have had an expectation of employment,employment,[2] they will they will notnot be be considered to be considered to be a genuine casuala genuine casual;;

In light of the above the staff member is In light of the above the staff member is entitled to seek entitled to seek conversionconversion to non to non casual employment in accordance with casual employment in accordance with existing arrangements, see clause existing arrangements, see clause 13.1.3 and Schedule 7 of the old 13.1.3 and Schedule 7 of the old ANUEA;ANUEA;

The staff member may seek to have a The staff member may seek to have a decision decision reviewed reviewed not to convert their not to convert their employment, clause 50.2.6;employment, clause 50.2.6;

[1] Ryde Eastwood Leagues Club v TaylorRyde Eastwood Leagues Club v Taylor [1994] 56 IR 385 pp 397-398 [1994] 56 IR 385 pp 397-398[2] S638 (4) of [2] S638 (4) of the Workplace Relations Act 1996the Workplace Relations Act 1996

General staff are employed to work for no General staff are employed to work for no less than less than 3 hours3 hours unless otherwise unless otherwise specified specified in the VAUNEAin the VAUNEA, clause 21.3.1;, clause 21.3.1;

Are paid a Are paid a 23%23% casual loading, clause casual loading, clause 17.4.3;17.4.3;

Are paid the casual loading Are paid the casual loading in lieuin lieu of all of all paid leave entitlements (including Long paid leave entitlements (including Long Service Leave), penalties and loadings, Service Leave), penalties and loadings, unless otherwise specified in the VAUNEA, unless otherwise specified in the VAUNEA, clause 17.4.1;clause 17.4.1;

General staff are entitled to be paid General staff are entitled to be paid overtimeovertime if directed to work it by their if directed to work it by their supervisor, Schedule 3.2.3 however they supervisor, Schedule 3.2.3 however they are not paid the casual loading, Schedule are not paid the casual loading, Schedule 3.2.4.3.2.4.

Are to be paid within Are to be paid within 22 days22 days of submitting of submitting a valid and completed claim for payment, a valid and completed claim for payment, clause 17.4.4;clause 17.4.4;

Are entitled to, and are required to give Are entitled to, and are required to give 1 1 hours noticehours notice to terminate their to terminate their Employment Agreement, clause 52.1.Employment Agreement, clause 52.1.

Note: Note: The casual provisions are addressed by The casual provisions are addressed by clauses: 13.1.1, 13.1.3 15.2, 17.4, 21.3, clauses: 13.1.1, 13.1.3 15.2, 17.4, 21.3, 25.6, 26.3, 33.1, 43.1, 50.2.6, 52.1, 25.6, 26.3, 33.1, 43.1, 50.2.6, 52.1, S1.2.4, and Schedules S2.3, S3.2.3, S3.2.3, 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.S3.2.3(c), S3.2.4, S3.3.7, S4.4.2.

Research Academic Staff Research Academic Staff Career Employment (RASCEs)Career Employment (RASCEs)

RASCEs may be employed on RASCEs may be employed on 2 x 7 year2 x 7 year Employment Agreements, Schedule Employment Agreements, Schedule 1.2.5 (a); 1.2.5 (a);

Are restricted to academic Are restricted to academic Levels A, B, or CLevels A, B, or C, Schedule 1.2.5;, Schedule 1.2.5;

They may be employed as a They may be employed as a fractionalfractional, Schedule 1.2.5 (b);, Schedule 1.2.5 (b);

Their engagement is predominantly for Their engagement is predominantly for ResearchResearch, they may teach on , they may teach on occasions and the teaching load will not exceed 40%, Schedule 1.2.5 (b);occasions and the teaching load will not exceed 40%, Schedule 1.2.5 (b);

May have their employment May have their employment convertedconverted, , Schedule 1.2.5Schedule 1.2.5 (a); (a);

May have access to May have access to severanceseverance payments, payments, Schedule 1.2.5Schedule 1.2.5 (c) (i); and (c) (i); and

Have limited rights to the standard Have limited rights to the standard redundancy redundancy provisions, clause 43.2.1(c) provisions, clause 43.2.1(c) and and Schedule 1.2.5Schedule 1.2.5 (e). (e).

Fixed Term EmploymentFixed Term Employment

The University The University nono longer has to provide longer has to provide reasonsreasons for offering for offering fixed term Employment Agreements.fixed term Employment Agreements.

However, the Letter of Offer and/or the Employment However, the Letter of Offer and/or the Employment Agreement must specify what type, classification and other Agreement must specify what type, classification and other essential details related to the staff member’s employment essential details related to the staff member’s employment

as this affects whether the staff member is entitled to as this affects whether the staff member is entitled to severance payments.severance payments.

For example some staff do not receive redundancy, severance For example some staff do not receive redundancy, severance payments or other entitlements as specified in the VANUEA. payments or other entitlements as specified in the VANUEA.

See clauses 23.4, Schedule 3.3.1 and 3.3.2 Overtime and Shift See clauses 23.4, Schedule 3.3.1 and 3.3.2 Overtime and Shift Penalties. Clause 43 Redundancy and clause 54.2.1 Penalties. Clause 43 Redundancy and clause 54.2.1

Severance Payments for staff employed on an employment Severance Payments for staff employed on an employment scheme as specified in Schedule 1.scheme as specified in Schedule 1.

Breaks in ServiceBreaks in Service

For the purpose of determining For the purpose of determining service entitlements of a fixed term service entitlements of a fixed term staff member, staff member, breaksbreaks between fixed between fixed

term periods of employment of up to term periods of employment of up to 2 2 times per yeartimes per year and of up to and of up to 8 weeks8 weeks, ,

or the period between terms of or the period between terms of employment over the employment over the summersummer break, break, are deemed not to constitute breaks are deemed not to constitute breaks in in continuous servicecontinuous service, clause 13.2., clause 13.2.

Notice for Fixed Term StaffNotice for Fixed Term Staff

Where a fixed term Employment Agreement expires and the staff Where a fixed term Employment Agreement expires and the staff member is not offered continuing employment, the following notice member is not offered continuing employment, the following notice

periods apply: periods apply:

Period of continuous service and Minimum notice periodPeriod of continuous service and Minimum notice period

Less than: Less than:

3 years3 years - - 2 weeks2 weeks

3 years but less than 5 years3 years but less than 5 years - - 3 weeks3 weeks

5 years or over5 years or over - - 4 weeks4 weeks

clause 51.3clause 51.3

Severance PaymentsSeverance Payments

Severance payments Severance payments AREARE paid under paid under the the

following circumstances:following circumstances:

Where the Where the work continueswork continues and is and is offered to another staff member and offered to another staff member and the Employment Agreement is not the Employment Agreement is not renewed or converted:renewed or converted:

For academic staff of For academic staff of 5 years5 years; ; andand

For general staff of For general staff of 3 years3 years, , clause 55; orclause 55; or

A staff member is entitled to A staff member is entitled to severance payments if they are on severance payments if they are on their their second or subsequentsecond or subsequent fixed term fixed term employment with the University, employment with the University, clause 55 and their contract is not clause 55 and their contract is not converted or renewed, clause 54.converted or renewed, clause 54.

The following:The following:

Accommodates the introduction of RASCE’s; andAccommodates the introduction of RASCE’s; and

Applies to all fixed term Employment Agreement Applies to all fixed term Employment Agreement staff from 17 March 2006 clause 55.2.staff from 17 March 2006 clause 55.2.

Period of Continuous Service and Severance Period of Continuous Service and Severance Pay:Pay:

Less than 1 year Less than 1 year -- NilNil1 yr & less than 2 yrs 1 yr & less than 2 yrs -- 4 weeks' pay4 weeks' pay2 yrs & less than 3 yrs2 yrs & less than 3 yrs - - 6 weeks' pay6 weeks' pay3 yrs & less than 4 yrs3 yrs & less than 4 yrs - - 7 weeks' pay7 weeks' pay4 yrs & less than 7 yrs4 yrs & less than 7 yrs - - 8 weeks' pay8 weeks' pay7 yrs & less than 9 yrs7 yrs & less than 9 yrs - - 9 weeks' pay9 weeks' pay

9 yrs & less than 10 yrs9 yrs & less than 10 yrs - - 10 weeks' pay10 weeks' pay10 yrs & less than 11 yrs10 yrs & less than 11 yrs - - 11 weeks' pay11 weeks' pay11 yrs & less than 12 yrs11 yrs & less than 12 yrs - - 12 weeks' pay12 weeks' pay12 yrs & less than 13 yrs12 yrs & less than 13 yrs - - 13 weeks' pay13 weeks' pay13 yrs & less than 14 yrs13 yrs & less than 14 yrs - - 14 weeks' pay14 weeks' pay

14 yrs & over 14 yrs & over - - 15 weeks' pay15 weeks' pay

‘ ‘week’s pay’ means the ordinary time rate of pay, week’s pay’ means the ordinary time rate of pay, clause 55clause 55

Severance Payments Severance Payments ContinuedContinued

Severance payments Severance payments ARE NOTARE NOT paid paid under the under the

following circumstances:following circumstances:

A staff member who is on their first fixed A staff member who is on their first fixed term Employment Agreement will not be term Employment Agreement will not be paid severance payments on its expiry for:paid severance payments on its expiry for:

An academic staff member of An academic staff member of 5 years5 years;;

A general staff member of A general staff member of 3 years3 years, , clause 55.1;clause 55.1;

The staff member The staff member declinesdeclines further further employment, clause 54.2.2;employment, clause 54.2.2;

The staff member The staff member obtainsobtains further further employment within the University without employment within the University without the loss of accrued entitlements, clause the loss of accrued entitlements, clause 54.2.3; and54.2.3; and

The University The University assistsassists the staff member in the staff member in securing the same or similar employment securing the same or similar employment with another employer, with a transfer of all with another employer, with a transfer of all accrued entitlements, clause 54.2.4.accrued entitlements, clause 54.2.4.

Where a staff member is employed on a Where a staff member is employed on a fixed term employment schemes, :fixed term employment schemes, :

‘ ‘Replacement Employee Scheme’ S1.3.2;Replacement Employee Scheme’ S1.3.2;

‘‘Professional Practice Scheme’ S1.3.3;Professional Practice Scheme’ S1.3.3;

‘ ‘Career Entry Development Schemes’ Career Entry Development Schemes’ S1.3.4;S1.3.4;

‘ ‘Student Internships Scheme’ S1.3.5;Student Internships Scheme’ S1.3.5;

‘ ‘Student Employment Scheme’ S1.3.6;Student Employment Scheme’ S1.3.6;

‘ ‘An Apprenticeship Scheme’ S1.3.7;An Apprenticeship Scheme’ S1.3.7;

‘ ‘Trainee Technical Officer Scheme’ S1.3.8;Trainee Technical Officer Scheme’ S1.3.8;

‘ ‘Trainee Scheme’ S1.3.9; andTrainee Scheme’ S1.3.9; and

‘ ‘Pre-Retirement Scheme” S1.3.10; Pre-Retirement Scheme” S1.3.10;

Note:Note: clause 54.2.1clause 54.2.1

Fixed Term ConversionFixed Term Conversion

Staff employed on a fixed term Employment Agreements may Staff employed on a fixed term Employment Agreements may apply for apply for conversionconversion if they have if they have more than 12 months servicemore than 12 months service. .

However their application must be made not less than However their application must be made not less than 3 3 months prior to their Employment Agreement expiringmonths prior to their Employment Agreement expiring clause clause

54.1;54.1;

Conversion is only available where Conversion is only available where further workfurther work is is available, available, funding securityfunding security for the position has for the position has occurred occurred and the staff and the staff

member was employed through an member was employed through an open competitive selection open competitive selection processprocess, clause 54.1.1;, clause 54.1.1;

Conversion will not take effect if the staff member’s Conversion will not take effect if the staff member’s performance is found unsatisfactory, clause 54.1.1 therefore performance is found unsatisfactory, clause 54.1.1 therefore performance managementperformance management must be undertaken and recorded; must be undertaken and recorded;

andand

Conversion is not available to staff employed under an Conversion is not available to staff employed under an Employment Scheme, clause 54.10.1.Employment Scheme, clause 54.10.1.